Ameya Sharma and Hamza Jawed Khan

In this article, we propose an alternative interpretation of Section 125 of the Code of Criminal Procedure, 1973 (“CrPC”), which is in consonance with the principles of natural justice. The piece suggests to exclude women who have been divorced due to their own fault from obtaining maintenance from the aggrieved husband u/s 125 CrPC, and provides an alternative recourse.

Introduction

Section 125 of the CrPC imposes an obligation on individuals having sufficient means to maintain their wives. Explanation (b) of the section includes divorcees in the ambit of ‘wife’ to be granted maintenance. This explanation does not explicitly mention the conduct of the divorcee as a parameter before granting relief.

In this article, we attempt to provide an alternative perspective on granting maintenance u/s 125 CrPC to divorcees at fault. We do this in the following manner – first, we navigate the present stance of the courts on this issue; and second, we assess the compatibility of this stance with principles of natural justice. We conclude by presenting possible alternatives for maintaining the divorcees at fault such that it relieves the burden of their former husbands, both under Hindu and Muslim personal laws.

Onus on the Husband in the Present Jurisprudence

The Andhra High Court in the case of Chepuri Hanumantha Raio vs Chepuri Uma Bala allowed the wife’s claim for maintenance under 125 CrPC. This decision came despite the fact that a decree of divorce had been passed against the wife after appreciating the evidence of cruelty inflicted by her. The court reasoned that the divorcee’s conduct was not a parameter to be considered before granting maintenance under 125 CrPC. It held that this provision being a welfare legislation ought to be construed liberally to include all the divorcees, regardless of their conduct. A similar stance was taken by the Delhi High Court in Pradeep Kumar Sharma v. Deepika Sharma, where it granted maintenance in a case where the divorcee had been found to be adulterous. The Supreme Court has affirmed this proposition in Rohtash Singh vs Smt. Ramendri, where it granted maintenance to the divorcee though she had unjustifiably deserted her husband. With this stance of courts, divorcees u/s 125 remain eligible for maintenance despite their conduct.

It is important to note that under Section 25 of the Hindu Marriage Act, 1956 (“HMA”), the divorcee’s conduct is considered before allowing her plea of maintenance. This system of checks in HMA had been put in place to ensure that the divorcee does not benefit from her misconduct. However, there remains a backdoor of getting maintenance which renders the deterring effect of checking the conduct under HMA redundant. The reason being that u/s 125, the husband is asked to provide maintenance to his former wife, regardless of her conduct. Such inconsistency between the provisions render the purpose of including checks under Section 25, HMA futile as a faulty woman would know that she has recourse to maintenance under 125 CrPC, even if she is denied the same under 25 HMA.

Section 125(4): The Case for a Wider Application

Despite enacting this provision as welfare legislation, the legislators had found it unfair to ignore the conduct of the wives entirely by imposing a blanket liability on the husbands to maintain their wives, regardless of all the surrounding circumstances. Section 125(4) CrPC was thus included which relieves the husbands from paying maintenance if the wives were living in adultery or desertion.

The courts, taking into consideration only the woman’s welfare, have granted maintenance to divorced wives despite being adulterous or having deserted their husbands. In doing so, they have created a peculiar distinction between a husband and a former husband.

The question that arises is: why should the benefit of this exemption from maintaining wives on grounds of suffering adultery or desertion not be extended to former husbands akin to husbands in a subsisting marriage? Why should the faulty conduct of an existing wife debar her from claiming maintenance, but a similar faulty conduct of a divorcee be conveniently ignored before allowing her claim of maintenance?

An Alternative Interpretation of Explanation (b)

The conventional stance of the courts has been to interpret Explanation (b) in a manner that includes every divorcee in the ambit of wife with no qualification of her conduct. This creates an anomaly when read with 125(4) CrPC. However, the Bombay High Court has construed Explanation (b) in an alternate manner in Bhagwan Raoji Dale vs Sushma Alias Nanda. The judgment divides the wording of this Explanation into two parts: (i) a woman who has been divorced by her husband and (ii) a woman who has obtained a divorce from her husband. The first category would include women divorced unilaterally by their husbands under personal or customary Laws; the second would include women who obtain a decree of divorce from the court for some fault on the husband’s part. The court concluded that a woman against whom a divorce decree has been obtained comes under none of the two categories and thus stands excluded from the ambit of wife for the purpose of relief under 125 CrPC.

Thus, there are two ways Explanation (b) could be interpreted. It may include all the divorcees against whom a divorce has been obtained through the court, which is the general view of the courts, or exclude all of them by the interpretation the aforementioned judgment proposes. When multiple interpretations of a statute arise, the court must choose that which is more just, fair and reasonable in the specific circumstances of the case.

We propose that in the case of divorcees against whom a decree of divorce has been obtained, the courts must use their discretionary power to draw a distinction between these two categories, building on the judgement of the Bombay High Court. The first category includes wives against whom divorce had been obtained for intentional fault grounds, namely cruelty, desertion and adultery. The second category includes those against whom a decree for divorce has been obtained for infirmities not attributable to their will. The husbands of the women in the first category should not be compelled to provide maintenance under 125 CrPC as doing the same will violate the clean hands doctrine and amount to allowing such divorcees to take advantage of their own wrong. In contrast, the latter category of divorcees may benefit under the broader interpretation of Explanation (b) as no principles of natural justice will be violated.

Alternatives for Sustaining Divorcees at Fault

Indian courts work on the welfare principle, and would prefer to allow maintenance to a wife with a destitute status even if she doesn’t come with clean hands. Considering this, we seek to provide a substitute recourse for the courts to adopt for divorcees to whom relief under 125 CrPC is denied, so that they are saved from turning destitute while their husbands are protected from unfairly being compelled to maintain them.

Widowed and Divorced: An Expendable Distinction in HAMA

In Indian culture and tradition, once a female is widowed or divorced, her return to natal home is anticipated. However, while the father is legally obligated to maintain his widowed daughter by way of Section 22, read with Section 21(vi) of Hindu Adoption and Maintenance Act, 1956 (“HAMA”), this provision does not cover a divorced daughter.

Section 21(v) narrowly interprets “unmarried daughter” and precludes the divorced daughters from claiming maintenance from their father, thereby severing her from her natal family. This severance makes her entirely dependent on her former husband for sustenance and survival, thereby undermining her dignity.

Additionally, this artificial distinction grossly violates one’s basic fundamental right provided under Article 14. The Supreme Court in the landmark judgment of Shayara Bano v. Union of India and Ors. had reiterated that in order to avoid violation of Article 14 of the Constitution, any distinction between two classes of people must be based on intelligible differentia that has a reasonable nexus with the object of the legislation. It must be appreciated that the objective of enactment of the HAMA was to provide for maintenance among the Hindus not able to maintain themselves. However, the distinction between a divorced and a woman widowed is manifestly arbitrary and there does not exist a thread of reasonable nexus between the distinction and the intent of the legislation.

A woman whose husband is dead and one whose relationship with her husband is dead hold the same marital status in a practical sense- unmarried. In both circumstances, the social position and the financial requirements of the woman are identical. The interpretation of “unmarried daughter” in 21(v) HAMA should, therefore, be expanded to include divorced daughters.

This interpretation of the HAMA provision would act as a safety cover for divorced daughters in cases where the courts exempt the former husband from the liability of maintaining them under 125 CrPC owing to their fault. Doing so would allow the courts to relieve the husband’s burden to pay while simultaneously providing recourse to the divorcee.

Additionally, in cases where the children of such a divorcee can maintain her, the courts could direct her to claim maintenance from them under 125(1)(d) of CrPC instead of claiming from the husband under 125(1)(a), CrPC.

Alternative provision for Muslim divorcees

The Muslim Women (Protection of Rights on Divorce) Act, 1986 (“Muslim Divorcees Act”) under Section 4(1) has provided a recourse to Muslim women who are divorced and are thereafter not able to maintain themselves. It places the responsibility of maintaining her upon the relatives who would inherit her property after her demise, if they are incapable to maintain her, this responsibility is transferred to the State Wakf Board. Thus, where relief is denied under 125 CrPC considering the faulty conduct of the divorcee, an adequate remedy could be given under the aforementioned provision to protect such divorcee from turning destitute.   

Conclusion

As elaborated earlier, the welfare principle dominates the judicial mind to an extent that they often blindside the inequitable mental and financial burden put on the husband. The purpose of barring a group of wives based on their wrongful conduct under Section 125(4) and 125(5) would be entirely defeated if the divorcees at fault were allowed to claim maintenance under the provision while married women who perform the same acts are denied maintenance.

Thus, Explanation (b) must be interpreted narrowly in cases of divorcees who were at fault so as to exclude them from maintenance. This will harmonise Explanation (b) with the exemptions under 125(4). The Hindu women who are denied maintenance would not be left destitute but would be eligible for maintenance from their parents under HAMA and also under 125(1)(d) of CrPC, where their children have sufficient means. Meanwhile, provision could be made for maintaining the Muslim Divorcees under Muslim Divorcees Act where relief is denied to them under 125 CrPC. If this approach is taken, the problem of sustaining divorcees at fault would be resolved without placing an undue and unfair burden upon their husbands, who have been aggrieved.

The authors are second year undergraduate students at NALSAR University of Law, Hyderabad.