Cuttack: Orissa High Court has ruled that "living in adultery denotes a continuous course of conduct and not isolated acts of immorality", while observing that it was "different from leading an unchaste life".

The ruling on Wednesday came while the court set aside a family court judgment rejecting a woman's plea for maintenance as her husband had accused her of living in adultery.

The Indian Penal Code defines, in Section 497, that "whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery".

The single-judge bench of Justice S.K. Sahoo said there was no dispute that when the wife destroys the sanctity of marriage and lives in adultery with another person, she would not be entitled either to any maintenance or interim maintenance. But an act of isolated lapse would not disentitle the wife to claim maintenance.

"The onus is on the husband to establish that the wife is living in adultery. There must be specific and cogent evidence relating to accusation of adultery," Justice Sahoo observed. "Evidence which creates some sort of suspicion on the conduct of the wife is not enough to establish that she is living in adultery. When the husband comes forward with a case of adultery against the wife in a maintenance proceeding to disentitle the wife from claiming maintenance, there is no back out."

"He has to prove such aspect by adducing cogent evidence and if he fails in that respect, that by itself would be sufficient to entitle her to remain apart from her husband and claim maintenance."

Pushpanjali Chhuria and Sanvi Chhuria, the wife and daughter of a junior engineer in Phulbani, Pranab Kumar Chhuria, had move high court after the Family Court (Kandhamal) rejected her plea for maintenance in August 2015. Pushpanjali had said that she lived separately from her husband on grounds of continuous torture over dowry.

However, Justice Sahoo said the Family Court judge was not justified in holding, without any sufficient reason, that the wife had refused to reside with her husband and therefore, was not entitled to maintenance. Such observations are contrary to the materials available on record and therefore, liable to be set aside, he observed.