mehnatSection 125 of CrPC and desertion or adultery by wife, or separation by mutual consent
Top of PageSub-section (4) of Section 125 CrPC describes the extent of any husband's liability to pay maintenance in case of desertion by wife, adultery by wife, and also in case of separation of husband and wife by mutual consent. The long and the short of it is that a husband's liability to pay maintenance in such situations is zero, i.e. there is no requirement to pay any maintenance whatsoever. Section 125(4), i.e sub-section (4) of Section 125 CrPC reads as follows:–
“(4) No wife shall be entitled to receive an 1[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] 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.”
1. Subs. by Act 50 of 2001, s. 2, for ―allowance‖ (w.e.f. 24-9-2001).
Explanation to Chapter IX of CrPC
Top of PageSub section (1) of Section 125 CrPC contains an explanation of the meaning of the words 'minor' and 'wife' as contained within Chapter IX of the CrPC. It reads as follows:–
Explanation.—For the purposes of this Chapter,—
(a) ―minor‖ means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b) ―wife‖ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
The law on maintenance under section 125 of CrPC in marital situations involving desertion by wife, as interpreted by the Supreme Court
Top of PageAs can be seen from the above, women who inter alia desert their husbands (“…or if, without any sufficient reason, she refuses to live with her husband…”) are not entitled to receive maintenance from such husbands according to Section 125(4) CrPC. The Supreme Court of India in its interpretations of CrPC 125 over the years has also reaffirmed this to be the case, while adding that this is the case only DURING the subsistence of the marriage of the concerned husband with his wife. When it comes to the period AFTER the dissolution of such a marriage however, the Supreme Court has repeatedly taken a different position –curious though it may appear to the layman (and not only to the layman). Our highest court has declared a number of times that there is no bar on award of maintenance u/s 125 CrPC to any deserting wife after the dissolution of her marriage.
Note that–
1) Applicability of desertion as a defence u/s 125 CrPC starts immediately from the moment of desertion by his wife of the man being sued for maintenance. The minimum two-year desertion requirement which is seen in the Hindu Marriage Act in the context of maintainability of suits for divorce finds no mention here.
2) A common usual exception to award of maintenance u/s 125 CrPC remains in force even after dissolution of marriage. The exception is that if a wife agrees to take one-time full and final alimony at the time of divorce OR if she receives any such amount as is payable to her at the time of customary divorce (i.e. amount payable under the custom governing her / the custom being pleaded) then she does not remain eligible for any further maintenance payments from her (by now) ex-husband.
Judgments of the Supreme Court which cover the scope for denial of maintenance pre-divorce and post-divorce in case of desertion by wife
Top of PageFour cases adjudicated by the Supreme Court are noteworthy for the present writeup. Smt. Vanamala Vs. Shri H.M. Ranganatha Bhatta (1995), Rohtash Singh Vs. Smt. Ramendri And Ors. (1999), Manoj Kumar vs Champa Devi (2014), and Dr Swapan Kumar Bannerjee vs state of West Bengal and Another (2015).
(i) Smt. Vanamala Vs. Shri H.M. Ranganatha Bhatta
Top of PageThe earliest of these involving divorce due to desertion by wife –Smt. Vanamala Vs. Shri H.M. Ranganatha Bhatta- was decided by a division bench consisting of the CJI Aziz Mushabber Ahmadi himself along with Justice Suhas C. Sen on the 27th of July 1995.
Supreme Court
Criminal Appeal No. 836 Of 1995
Equivalent Citations: 1995 SCC (5) 299; JT 1995 (5) 670; 1995 SCALE (4) 660;
Smt. Vanamala Vs. Shri H.M. Ranganatha Bhatta
Date of Judgment: 27/07/1995
Decided by a division bench of the Supreme Court of India
Ahmadi A.M. (CJ)
Sen, S.C. (J)
Held (in the 3rd paragraph of the judgment):
“On a plain reading of this Section it seems fairly clear that the expression 'wife' in the said sub-section (mentioned here by the presiding bench with reference to sub-section (4) of Section 125 CrPC – MU) does not have the extended meaning of including a woman who has been divorced.” (emphasis supplied)
Further Held (in the 3rd paragraph of the judgment):
“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.”
(ii) Rohtash Singh Vs. Smt. Ramendri And Ors.
Top of PageThe next such case was adjudicated by Justice Saiyed Saghir Ahmed and Justice Devinder Pratap Wadhwa on the 2nd of March 2000.
Supreme Court
SLP (Crl.) 2763 Of 1999
Equivalent Citations: AIR 2000 SC 952; 2000 Cr. LJ 1498; 2000 3 SCC 180; JT 2000 (2) SC 553;
Rohtash Singh Vs. Smt. Ramendri And Ors.
Date of Judgment: 02/03/2000
Decided by a division bench of the Supreme Court of India
Mr. Justice S. Saghir Ahmad
Mr. Justice D.P. Wadhwa
Held (in the 6th paragraph of the judgment:
“Under this provision (Note: mentioned here by the presiding bench with reference to sub-section (4) of Section 125 CrPC – MU), a wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of Section 125 Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end.” (emphasis supplied)
Further Held (also in the 6th paragraph of the judgment):
“Taking the three circumstances individually (Note: mentioned here by the presiding bench with reference to sub-section (4) of Section 125 CrPC – MU), it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure.” (emphasis supplied)
Further Held (in the 7th paragraph of the judgment):
“The second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband.” (emphasis supplied)
Further Held (in the 10th paragraph of the judgment):
“Claim for maintenance under the first part of Section 125 Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125 Cr. P.C.”
Further Held (in the 11th paragraph of the judgment):
“This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. 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 (Note: spelling error in original, ‘whom’ was spelt as ‘whome’ –MU) she was once the wife.” (emphasis supplied)
Rohtash Singh Vs. Smt. Ramendri And Ors. in Allahabad High Court
Top of PageJudgment upheld by the said Supreme Court judgment:—
Allahabad High Court
Rohtash Singh Vs. Smt. Ramendri And Ors.
Date of Judgment: 23 March, 1999
Bench and other details including text of judgment: Not Available on the website of Allahabad High Court
Sukumar Dhibar vs Smt. Anjali Dasi
Top of PageAnother interesting case is from Calcutta High Court. This case finds mention in the judgment of Rohtash Singh (supra):—
Calcutta High Court
Equivalent citations: 1983 Cr. LJ 36
Sukumar Dhibar vs Smt. Anjali Dasi
Date of Judgment: 22 September, 1982
Decided by a single judge bench of the Calcutta High Court
Mr. Justice A Dutta
Author: A Dutta
Held (in the 6th paragraph of the judgment):
The husband in his evidence has declined to take the wife to his house after the decree for divorce dissolving the marriage. Under Section 125 of the Code a divorcee or a woman who has been divorced by her husband is entitled to get maintenance allowance from her ex-husband till her remarriage, if she leads a chaste life. Under Section 25 of the Hindu Marriage Act, 1955 also, the matrimonial court has discretion to grant permanent alimony to the wife after the decree for divorce although such decree has been passed on the ground of adultery or cruelty or desertion, if she remains single and as long as she shall live chaste. (emphasis supplied)
(iii) Manoj Kumar Versus Champa Devi
Top of PageAnother maintenance case involving divorce on grounds of desertion by the wife was decided by a full bench of the Supreme Court. Judges on the bench were the then Chief Justice of India Jagdish Singh Khehar, Justice Dhananjaya Yeshwant Chandrachud, and Justice Sanjay Kishan Kaul. That case and the case whose decision was upheld in the said case are outlined here.
Supreme Court
SLP (Crl.) No.10137/2015
Manoj Kumar Versus Champa Devi
Date of Judgment: 06/04/2017
Decided by a full bench of the Supreme Court of India
CJI Jagdish Singh Khehar
Dr. Justice D.Y. Chandrachud
Mr. Justice Sanjay Kishan Kaul
Held (in the 2nd paragraph of the judgment):
“2. 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. (emphasis supplied)
The aforesaid consistent view has been followed by the High Court while passing the impugned order. (emphasis supplied)
Further Held (in the 3rd paragraph of the judgment)
3. 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.”
Manoj Kumar Versus Champa Devi in Himachal Pradesh High Court
Top of PageDetails of the impugned Judgment which was upheld by the said Supreme Court judgment:
Himachal Pradesh High Court
Cr. MMO No. 230 of 2014
Manoj Kumar vs Champa Devi
Date of Judgment: 9 April, 2015
Decided by a single judge bench of the Himachal Pradesh High Court
Mr. Justice Tarlok Singh Chauhan.
Held (in the 7th paragraph of the judgment):
“7. Ironically, learned counsel for the respondent in order to claim maintenance has also placed reliance upon the judgment of the Hon'ble Supreme Court in Rohtash Singh's case (supra), but then as observed by the Hon'ble Supreme Court, since a decree of divorce was passed on the ground of desertion by the respondent, therefore, she would not be entitled for any maintenance prior to passing of the decree.” (emphasis supplied)
Further Held (in the 8th paragraph of the judgment):
“8. Accordingly, the present petition is partly allowed and the order passed by the learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, is modified to the extent that the respondent shall be entitled to the maintenance only w.e.f. 4.9.2008 when the decree for divorce was passed. Insofar as the order passed by learned Sessions Judge, Mandi is concerned, the same otherwise provides for enhanced maintenance from 6.11.2009 on which date the application was filed and therefore, calls for no interference because admittedly the same has been passed much after the decree of divorce.” (emphasis supplied)
(iv) Dr. Swapan Kumar Banerjee vs. State of West Bengal and Anr.
Top of PageA fourth case which was being litigated after divorce on the grounds of desertion was decided in 2019.
Supreme Court
Criminal Appeal No(s). 232-233 of 2015
Dr. Swapan Kumar Banerjee vs. State of West Bengal and Anr.
Date of Judgment: 19/09/2019
Decided by a division bench of the Supreme Court of India
Justice Deepak Gupta
Justice Aniruddha Bose
Held (in the 6th paragraph of the judgment):
“Mr. Debal Banerjee urged that the matter requires reconsideration. We are not in agreement with him for two reasons. Firstly, the view taken in the first two judgments has been confirmed by a three-judges (sic) Bench and, therefore, we cannot refer it to a larger Bench.”
Further Held (in the 7th paragraph of the judgment):
“Even otherwise, this view has been consistently taken by this Court and the said view is in line with both the letter and spirit of the Cr.P.C.” (emphasis supplied)
Further Held (in the 11th paragraph of the judgment):
“No evidence has been led to show what is the income of the wife or where the wife is working. It was for the husband to lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself.” (emphasis supplied)
Has the Supreme Court been correct in its interpretation of CrPC 125 (with reference to post-divorce maintenance in cases involving desertion by wife)?
Top of PageThe Supreme Court appears to have erred in the above 4 judgments. This is mainly because none of the 4 benches in the above listed 4 Supreme Court cases have explained away a critically important portion of CrPC Section 125 (3 of them have not even mentioned it), namely the explanation to Chapter IX of the CrPC which is contained within Section 125(1) CrPC, which is as follows :–
It is true that this portion has been quoted in the 4th Supreme court judgment listed above, i.e. in Dr Swapan Banerjee vs. State of West Bengal and Another, but it has not been taken into consideration by the court in the said judgment. Further, although it has been declared in Vanamala that “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”, but the justification for the same has not taken into account the explanation of the word “wife” within Chapter 9 of CrPC, not to speak of any exposition thereof.Explanation.- For the purposes of this Chapter,-
x x x x x x x x x
(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.
The fact is that when the word “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband for the purpose of the whole Chapter 9 of CrPC (i.e. for the purpose of CrPC Section 125, 126, 127, and 128) then we are required to read all those portions of Section 125 CrPC where the word “wife” is mentioned strictly in accordance with this enlarged meaning of the same word. The text of Section 125(4) CrPC is therefore required to be read as follows :–
(4) No wife (including any woman who has been divorced by her husband, or has obtained a divorce from him and has not remarried), shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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.
As is clear from the foregoing, the letter as well as the spirit of CrPC 125 forbids payment of maintenance to a deserting wife even after divorce.
It can be rightly objected at this point that the question of a wife deserting a man in her capacity as his wife when she is no longer his wife simply does not arise, and therefore how can it be said that the Supreme Court has erred in the 4 judgments? The reply to this is that even the question of calling a woman a man’s wife after the dissolution of their marriage does not arise. But it is expressly stated in the law here that the word wife includes a woman who has been divorced or has obtained a divorce. If we start from an absurd proposition then we are bound to end up with absurd conclusions, and it is a mistake to expect otherwise, as the Supreme Court has done.
You may also wish to read an article about denial of maintenance in CrPC 125 on grounds of adultery. Alternatively, you may wish to read the bare text of Chapter 9 of the CrPC.
सी.आर.पी.सी. धारा १२५ अंतर्गत अभ्यस्त व्यभिचारिणी पत्नी को खर्चा नामंज़ूरी के बारे में एक लेख पढ़िए। विकल्पतः, पढ़िए सी.आर.पी.सी. अध्याय ९ के प्रलेख मात्र का हिंदी अनुवाद।