Section 125 is one of the very few sections in the Code of Criminal Procedure, 1973 that deal with substantive law. The section often comes in controversy because of the numerous parallels in personal law that deal with maintenance. The section is not gender-neutral, unlike Section 25 of the Hindu Marriage Act, as it contemplates situations only when wives are dependent on men for maintenance. A recent writ petition before the Supreme Court prayed for the declaration of the section as unconstitutional for being discriminatory on the basis of sex. This piece, however, concerns itself with sub-section (4) of the section that disentitles wives of their right to claim maintenance if they have been living in adultery. The sub-section reads as –
“(4) 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.”
For the purpose of Section 125(4), adultery is construed in the dictionary meaning of the word i.e. voluntary sexual intercourse between a married person and a person who is not their spouse. The technicalities of Section 497 of the Indian Penal Code do not come into play. This construction is also in harmony with the verdict in Joseph Shine v Union of India that struck down Section 497 as unconstitutional. Many High Court judgments, like Pundurang Barku Nathe v Leela Pandurang Nathe, have interpreted the expression ‘living in adultery’ as having a continuous quasi-permanent union of the wife with another man. A single act of adultery is not sufficient. The immorality should persist and should not merely be an occasional lapse of virtue. Furthermore, the definition of ‘wife’ in the section also includes divorced women who have not remarried. This is where the problems in interpretation arise.
Section 125 requires the husband to maintain his wife if he has sufficient means to do so. This obligation continues even after divorce. The woman who is no longer his wife retains the right to be maintained if she is unable to maintain herself. This is to avoid destitution and vagrancy. Adultery is a matrimonial wrong. A person cannot commit adultery if she is divorced. However, this simple logic cannot apply to Section 125 as it includes within its ambit women who are divorced. Sub-section (4), hence, leads to an absurdity where a divorced woman can be disentitled of maintenance on the ground of adultery.
One interpretation of the Section can be to hold that, for the purpose of disqualification from maintenance under sub-section (4), the term ‘wife’ includes only a married woman. After divorce, a woman is not under any obligation, moral or legal, to remain sexually faithful to her ex-husband. She can exercise her sexual autonomy as per her own will without entailing any depravity. She should not, therefore, be refused of her right to maintenance for infidelity after matrimonial ties have been severed.
In Vanamala v. H.M. Ranganatha Bhatta, the Supreme Court held that a plain reading of sub-section (4) shows that the extended meaning of ‘wife’ in Section 125 does not apply to it. The court applied the simple logic that adultery cannot be committed by a divorced woman. The context of sub-section (4), which has reference to the situation of not living together, also contributed to such interpretation. The court, hence, limited the inclusion of divorced women only for the purpose of obtaining maintenance from their ex-husband. This view is in concord with the view in Ramesh Chander Kaushal v Veena Kaushal where the social justice aspect of the section was emphasized. It was held that the interpretation of Section 125 should empathize with the weaker sections like women and children. A selective interpretation was held to be possible for the purposes of this section.
This view is problematic not only because it goes against the unequivocal language of the section that covers divorced women in its ambit, but because it puts an undue obligation on the husband. The purpose behind including divorced women was to minimize the dangers of destitution. However, when a woman lives with another man in a quasi-permanent union, that man assumes the role of her benefactor and the ex-husband should no longer be obligated to pay her any allowance. The woman cannot expect to be maintained by two men at the same time.
From the husband’s perspective, such a woman cannot be held to be his wife by any stretch of the imagination. The legal ties between them have severed. The woman is intimately connected to another man and the element of faith or loyalty no more exists. To hold the woman to be his wife only for providing maintenance cannot be justified. A woman can grossly misuse this section by compelling her erstwhile husband to pay for her needs while she enjoys being intimate with her paramour. The erstwhile husband should not be saddled with the duty of maintaining a woman with whom he holds no valuable connection. Therefore, this view justifies a woman to be faithful to her ex-husband even after divorce if she wants to claim maintenance. However, now this construction goes against the plain meaning of adultery, which is a matrimonial offence. This is because sub-section (4) requires ‘adultery’ for disentitlement which cannot be committed by a divorced woman. Furthermore, such construction would also bind a divorced woman to the moral obligations that entail marriage.
Therefore, what we have is a paradox, wherein a divorced woman cannot be disqualified from getting maintenance on the ground of adultery because she cannot commit adultery by the virtue of being divorced and where a divorced woman can commit adultery because she has been defined as ‘wife’ for the purpose of the chapter. It is clear that the legislature’s broad definition of ‘wife’ and the usage of the term ‘adultery’ cannot coexist in the section without altering or limiting their definition. On one hand, we have the Apex Court’s interpretation that solves the paradox by limiting the definition of ‘wife’ given explicitly in the section for the purposes of the whole chapter. This interpretation gives divorced women an absolute advantage to exact maintenance from their erstwhile husband. The other interpretation, on the other hand, goes against the ordinary meaning of ‘adultery’ and further imposes matrimonial obligations on a divorced woman for solving the paradox.
The second interpretation, it is contended, has deeper roots in reason, although it goes against the plain meaning of ‘adultery’. With respect to Section 125, adultery is construed as a sustained sexual relationship of a ‘wife’ with a man other than her husband. It would only be justified in such circumstances to assume that the new sexual partner assumes the duty of maintaining her. In such a situation, the pre-requisite of not remarrying to claim maintenance is no longer satisfied by the virtue of her new relationship. Though the relationship cannot be called marriage by any logic, such a union is inconsistent with the logic of keeping a woman who remarries out of the ambit of ‘wife’. When the woman gets a companion who supports her, the obligation of her erstwhile husband to provide maintenance ceases as the objective of Section 125 is met then. This construction better serves the object behind providing maintenance to divorced women.
The concern regarding the plight of divorced women is not misplaced. However, this concern should not prevail by imposing undue obligations on the erstwhile husband. The right to maintenance should not be made unqualified. Undoubtedly, Section 125 as a whole favours males. But equity should not be restored by any unjustified counterbalance. The section is of massive importance as it is applicable irrespective of the parties’ religion. The paradox can be resolved by legislative intervention. Till that happens, there is a need to tread carefully to avoid misinterpretations.
