The answer to the above mentioned question is in affirmative but before we dive in further explanation let us explain the meaning of maintenance.
Maintenance
Maintenance is a kind of financial support to be provided to a spouse whether it be a wife or husband if the spouse is in need.
Now, maintenance as provided in law can be maintenance pendente lite (maintenance to be given during the legal proceedings) or a lump sum money in order to maintain.
Factors to be considered while granting maintenance.
The court while deciding the magnitude of maintenance to be granted to the spouse has to consider the financial status of the spouse, financial status and lifestyle, earnings, medical expenses, education of child if any and such other factors.
Legal provisions
Section 24 & 25 of Hindu Marriage Act specifically deals with the maintenance. Under this provision any spouse either the husband or the wife can claim the maintenance. Section 125 of Code of Criminal Code, 1973 also provides for rhe maintenance. There are other legal provisions under Domestic Violence Act, 2005 or Hindu maintenance and adoption Act.
Whether a wife having an affair can claim maintenance?
Maintenance is basically a monetary relief to provide assistance to the aggrieved party or the needy one. It is also being presumed that the party who is claiming the benefit is innocent and does not have any other source to satisfy monetary needs. It can be construed from the intention of the legislature that if any of the spouse is not in need or has ceased to obligate matrimonial obligations or living in adultery or having an affair cannot be provided reliefs as above mentioned.
This has been made clear by the legislature by including this intention specifically within the Section 125 Cr.P.C. sub section 4 which states that “no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent”.
Therefore, it has been made very clear that any wife who is having an affair and living in adultery cannot be granted relief of maintenance. However, it has been made reiterated by Hon’ble Courts many a times that the adultery must be proved.
