On April 7, 2017, the Supreme Court of India upheld a Himachal Pradesh High Court judgement of granting alimony to wife who wilfully deserted her husband. This order was completely in contrast to the Sub Section 4 of Section 125 of the Criminal Procedure Court. In its order, the supreme court ‘preferred social welfare to legal technicalities.’
The apex court became too liberal and generous when they pointed out, even if a woman is not entitled to get maintenance from her husband during the period of drifting apart — after leaving him by her own choice —she will still be entitled to the alimony after divorce if she’s unable to uphold herself.
The judiciary relied upon Section 125 of the Criminal Procedure Code (CrPC) regardless of the religion of married couples. It also included the controversial Shah Bano Case by the SC in 1985, to grant alimony to women in the course of dangling or pendency of divorce procedures or those going through destitution after divorce.
Talking about Section 125, there lies Sub Section 4 in it, that states three circumstances wherein a woman is not entitled to maintenance after or in the pendency of the divorce. The same are:
- if she is living in adultery
- if she refused to live with the husband and without sufficient reason to understand
- if the couple, by mutual consent decides to live separately
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Based on this, the Supreme Court struggled to come to a decision, when petitioner Manoj Kumar, through advocate Nisha Priya Bhatia, challenged a judgment of the Himachal Pradesh High Court. The Himachal HC had ordered Kumar to pay alimony of Rs 3,000 per month to his wife Champa Devi, even after the divorce had been granted on grounds on desertion in the year 2008.
Advocate Bhatia argued that when a woman, in the course of subsistence of marriage was not entitled to alimony under Section 125(4) of CrPC if she had wilfully deserted her husband, then how could she be entitled to the same, after a divorce had been granted on the ground of desertion. Bhatia quoted:
Grant of alimony in such a case would be in the teeth of Section 125(4).
The SC had seemed to accept most of the argument presented. Hence, the court stuck to the point argued by Bhatia, and the bench told Champa Devi’s counsel Anil Nag,
If Section 125(4) was not there, we could have said whatever is the fault of the woman, she is entitled to maintenance to prevent destitution, especially when the state is not obliged to maintain her. But the legislation categorically says if it is adultery or desertion by free will, then she is not entitled to maintenance.
Nag bounced back from an impossible situation that saved the day for Champa Devi. He cited an earlier SC judgment that had stressed on social welfare intent of the legislation to prevent destitution of divorced women. He said a divorced woman had an inherent right to get maintenance and the ground for dissolution of a marriage does not play a role in it.
In March 2000, the SC in its judgment had said,
As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her.
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Champa Devi who thought she had almost lost the case, breathed a sigh of relief when the top court upheld the Himachal HC order granting her alimony and said it would not interfere in the grant of alimony to the woman under all circumstances.
The Supreme Court in the end concluded on the logic they had been holding consistently while ruling for the last 25 years, to uphold the social welfare intent of the legislation which was to prevent destitution among divorced women.
MANOJ KUMAR V/s CHAMPA DEVI
Supreme Court (2017)
The Apex while deciding the matter has taken into consideration the order of the High Court of Himachal Pradesh which took the reference of the case of Vanamala vs. HM Ranganatha Bhatta(1995) 5 SCC 299
The Court in this case referred to Para 3 of the judgment wherein the expression ‘wife’ has been construed in the following manner:
3.Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-section (1) of section 125 inter alia says that if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife not exceeding Rs.500/- in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Clause (b) of the explanation to the sub-section defines the expression ‘wife’ to include a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. In the instant case it is not contended by the respondent that the appellant has remarried after the decree of divorce was obtained under Section 13 B of the Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the respondent prior to the passing of the decree of divorce. By virtue of the definition referred to above she would, therefore, be entitled to maintenance if she could show that the respondent has neglected or refused to maintain her.
The Court further observed that on plain reading of the sub section 4 of the Section 125 Crpc it seems fairly clear that the expression ‘wife’ in the said sub-section does not have the extended meaning of including a woman who has been divorced. This is for the obvious reason that unless there is a relationship of husband and wife there can be no question of a divorcee woman living in adultery or without sufficient reason refusing to live with her husband. After divorce where is the occasion for the women to live with her husband? Similarly there would be no question of the husband and wife living separately by mutual consent because after divorce there is no need for consent to live separately. In the context, therefore, sub-section (4) of section 125 does not apply to the case of a woman who has been divorced or who has obtained a decree for divorce. In our view, therefore, this contention is not well founded.”
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The Court further took into consideration the Case of Rohtash Singh vs. Ramendri 2000 SC 952 wherein the Hon’ble Supreme Court held as under:
“11. Learned counsel for the petitioner then contended that the maintenance has been allowed to the respondent from the date of the application. The application under sec 125 Cr.P.C. was filed by the respondent during the pendency of the civil suit for divorce under Sec 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by respondent, she would not be entitled to maintenance for any period prior to the passing of the decree under sec 13 of the Hindu Marriage Act. To that extent, learned counsel appears to be correct. But for that short period, we would not be inclined to interfere.
After hearing the counsels for both the parties the Apex Court Dismissed the Special Leave petition filed by the husband and while doing so considered the following merits:
- Having perused the impugned order, we are satisfied, that the same is based on the two decisions rendered by this Court, firstly, Vanamala (Smt) vs. H.M.Ranganatha Bhatta, (1995) 5 SCC 299, and secondly, Rohtash Singh vs. Ramendri (Smt) and others, 2000(3) SCC 952. Section 125 of the Criminal Procedure Code, including the explanation under sub-section (1) thereof, has been consistently interpreted by this Court, for the last two decades. The aforesaid consistent view has been followed by the High Court while passing the impugned order.
- For the reasons recorded hereinabove, we find no justification whatsoever, to interfere with the impugned order, in exercise of our jurisdiction under Article 136 of the Constitution.