Source: Patna High Court 

Why in News? 

Recently, Justice Jitendra Kumar held that living in adultery under Section 125(4) of the Criminal Procedure Code, 1973 (CrPC) implies a continuous adulterous relationship, not isolated acts of infidelity. 

• The Patna High Court held this in the matter of Babul Khatoon & Ors. v. State of Bihar & Ors. (2025). 

What was the Background of Babul Khatoon & Ors. v. State of Bihar & Ors., (2025) Case? 

• Bulbul Khatoon and Md. Shamshad were married and had a son named Danish Raza @ Rahul. The marriage faced difficulties when Md. Shamshad began making unlawful demands for additional dowry from his wife. 
• On 17th July 2017, Bulbul Khatoon left her matrimonial home along with her newly born child. According to her version, she was ousted by her husband due to her inability to meet his illegal dowry demands. 
• Triple Talaq Pronouncement: Md. Shamshad claimed that he divorced his wife by pronouncing Triple Talaq in the presence of one witness in a single sitting. However, he admitted that he neither paid maintenance to his wife during the iddat period nor paid the dainmehar (mehr amount) to her. 
• Md. Shamshad alleged that his wife had been living in an adulterous relationship with one Md. Tarikat, claiming this was the reason for her departure from the matrimonial home. Adultery is considered an offence against one's spouse under matrimonial laws. 
• Bulbul Khatoon filed a criminal complaint against her husband regarding the dowry harassment, which remained pending during the proceedings. 
• Second Marriage: Md. Shamshad subsequently entered into a second marriage with one Kajal Perween, and they had a minor daughter together. 
• Financial Circumstances: 
  • Md. Shamshad worked as a labourer. 
  • Bulbul Khatoon had no independent means of income. 
  • After leaving the matrimonial home, Bulbul Khatoon has been residing at her parental home with her minor son. 
• Maintenance Application: 
  • Bulbul Khatoon and her minor son filed an application for maintenance under Section 125 of CrPC on 30th October 2017. 
• The Family Court denied maintenance to Bulbul Khatoon, accepting the husband's contention that she was living in adultery with Md. Tarikat. However, the court awarded maintenance of Rs. 4,000/- per month to the minor son Danish Raza @ Rahul. 
• Aggrieved by the Family Court's decision to deny maintenance to the wife, the matter was brought before the Patna High Court through a criminal revision petition. 
• Legal Issues Raised: 
  • Whether Triple Talaq pronounced by the husband was valid and effective. 
  • Whether the wife was actually living in adultery as alleged. 
  • Whether the wife was entitled to maintenance under Section 125 CrPC. 
  • The quantum of maintenance to be awarded considering the husband's financial capacity and dependents. 
  • The case primarily revolved around determining the wife's entitlement to maintenance, with the husband's defence being that she had forfeited her right due to alleged adultery, while the wife maintained that she was forced to leave due to dowry harassment and was living respectably at her parental home. 

What were the Court’s Observations? 

• Legal Status of Triple Talaq: The Court observed that Triple Talaq is illegal and invalid in view of the ruling of the Hon'ble Supreme Court in Shayara Bano case, wherein Triple Talaq has been held to be arbitrary and illegal, and the Muslim Women (Protection Of Rights On Marriage) Act, 2019 also declares Triple Talaq void and illegal. 
• Distinction Between Committing and Living in Adultery: The Court observed that "living in adultery" is distinct from "committing adultery" and noted that adultery is an offence against one's spouse, but "living in adultery" denotes a continuous course of conduct and not isolated acts of immorality. 
• Standard for Proving Adultery: The Court observed that one or two lapses from virtues would be acts of adultery but would be quite insufficient to show that the woman was "living in adultery", and a mere lapse followed by a return to normal life cannot be said to be living in adultery. 
• Evidence Assessment: The Court observed that there was no cogent evidence on record to show that Bulbul Khatoon was living with Md. Tarikat, nor was anybody a direct witness to any adulterous life, and no witness examined on behalf of Md. Shamshad had given any date, time and place of such alleged adulterous relationship. 
• Husband's Obligation to Maintain: The Court observed that an able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, with the onus being on the husband to establish with necessary material that he is unable to maintain the family. 
• Maintenance from Date of Application: The Court observed that maintenance is required to be awarded from the date of application in the interest of justice and fair play, because the period during which the maintenance proceeding remains pending is not within the control of the applicant. 

What is Living in Adultery under Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) ? 

• Definition and Scope: Living in adultery under Section 144 of the BNSS is a specific ground that disqualifies a wife from receiving maintenance allowance or interim maintenance from her husband. 
• Distinction from Committing Adultery: Living in adultery denotes a continuous course of conduct and not isolated acts of immorality, distinguishing it from merely committing adultery which may involve one or two lapses from virtue. 
• Standard of Proof Required: A mere lapse, whether it is one or two instances, followed by a return to normal life cannot be said to constitute living in adultery, as it requires a sustained pattern of adulterous behavior. 
• Continuity Requirement: If the lapse is continued and followed up by further adulterous life, only then can a woman be said to be living in adultery, establishing the need for ongoing misconduct rather than isolated incidents. 
• Burden of Proof: The husband claiming that his wife is living in adultery must provide cogent evidence with specific details including dates, times, and places of such alleged adulterous relationship to establish the continuous course of conduct. 
• Legal Consequences: Under Section 144(1) of BNSS, 2023, a wife who is living in adultery forfeits her right to claim maintenance from her husband, making it a complete bar to maintenance proceedings. 
• Evidentiary Standards: Courts require direct evidence or credible witnesses to establish that a woman is living in adultery, and mere allegations or suspicions without substantial proof are insufficient to deny maintenance. 
• Judicial Interpretation: The legal framework treats living in adultery as an offence against the spouse, but requires courts to carefully distinguish between temporary moral lapses and a sustained adulterous lifestyle before denying maintenance rights.