The Sikkim High Court headed by CJ Arup Kumar Goswami promptly dismissed a petition against the refusal of continuing to pay maintenance to the wife on the grounds that she committed adultery.
The facts of the case read that the couple had been married to each other but three daughters were born out of wedlock. The husband accompanied by the second daughter banished the wife on the grounds that she had been committing adultery. The second daughter claimed that she had seen her mother in the very act whereas the woman in her defense said that she as tortured and abused which forced her to live with her brother.
Gita Bista advocated on behalf of the petitioner that the daughter who had seen the mother with another man had absolutely no reason to accuse her mother falsely and implying that the wife left the husband out of her own accord. Therefore the claim to a maintenance was unjustful.
The Legal Aid Counsel Tashi Nobru basi claimed that there was no conclusive proof that the wife had been committing adultery. The counsel also added that a simple waiver from virtue does not discredit her from the maintenance claim. The maintenance, reminded the counsel, can only be denied if the person alleged is living in adultery during the time of the motion of the suit.
The court after hearing out the arguments of both the parties concluded that the wife hadn’t eloped. She was forced out of her matrimonial home by her husband and her daughter. The court also held that the claims of extramarital affairs brought forward by her husband were baseless including the allegation of the wife committing adultery with her own brother. The court further held that the wife had been thrown out of the house with charges of torture and abuse against the husband. Under these circumstances, it was inappropriate to suppose that there was an absence of enough reasons for the wife to desert her husband. The court dismissed the petition stating that Section 488(4) of Code of Criminal Procedure, 1898 “living in adultery” does not discredit a woman’s claim for maintenance if the woman has had only a stray act against her virtue and thus the respondent was entitled to maintenance.