Our laws enforce sexual exclusivity between husband and wife during marriage, so that any deviation from this norm by one spouse gives the other the right to dissolve the marriage by seeking divorce. But once the marriage ends, so does the requirement of sexual exclusivity. Our laws also conceive of marriage as a relationship of economic dependency (primarily for women), the consequence of which however, does not end with the dissolution of marriage. The obligation to provide economic support continues till the wife finds another source of dependence, in another marriage. While the sexual and the economic aspects of marriage have complex correlations in life, in law, they are dealt with as separate questions. But despite being distinct legal issues, the moralism associated with notions of sexual propriety in marriage tends to bleed into questions of economic entitlement of the parties, in course of matrimonial litigation and adjudication.
In a recent judgment, Karuppasamy v Kanimozhi, the Madurai Bench of the Madras High Court ruled that if a husband had obtained divorce on the ground of adultery committed by the wife, then he was exempted from the obligation to pay her maintenance under Section 125 of the Code of Criminal Procedure (CrPC).
The Section in question states that if a man with sufficient means, neglects or refuses to maintain his wife, children or aged parents, who are unable to provide for themselves, then he could be ordered to pay a monthly amount as maintenance. The term “wife” includes a divorced wife who has not married. Clause 4 of the Section states that if the wife is “living in adultery” or she refuses to live with the husband without sufficient reasons or if they are living separately by mutual consent, then the wife is not eligible to receive any maintenance under this Section.
The High Court reasoned in this judgment that the disqualification that a married woman faces if she is “living in adultery”, also applies to a divorced woman. This is a flawed conclusion because (a) the judgment fails to note the difference between the term “adultery” in the context of divorce and the term “living in adultery” in the context of maintenance; and (b) it adamantly refuses to follow the Supreme Court judgments that have clarified that the disqualification clause applies only to married women. I will consider the second point first.
In a 2000 judgment, Rohtash Singh v Ramendri, the Supreme Court had noted that the grounds for disqualification from maintenance enumerated in clause 4 of Section 125 make sense only in the context of a subsisting marriage, and hence, the clause is applicable “where the marriage between the parties subsists and not where it has come to an end”. The same was held in a 1995 Supreme Court judgment and a 2003 Kerala High Court judgment.
No justification by High Court
The High Court considers the above judgments and yet concludes that the holdings of the Supreme Court are not applicable in case of adultery. Without offering any justification for such exceptional treatment to adultery, the judgment concludes that “even after the decree of divorce, the divorced wife carries the obligation not to live in relationship with any other man”.
What caused the judge to exceptionalise adultery is explained by his failure to appreciate the difference between “adultery” as a ground for divorce and “living in adultery” as a ground for disqualification from maintenance. A single act of sexual intercourse outside marriage constitutes “adultery”. The phrase “living in adultery” on the other hand has been defined by a large body of judgments dating from the early twentieth century as “a continuous course of adulterous life” as opposed to “one or two lapses from virtue”.
As a ground for divorce, sex outside marriage is deemed a “matrimonial offence”. Here, “adultery” performs a punitive function, which is the denial of the legal/ social privileges of marriage by dissolving the marriage. But in the context of maintenance under Section 125 CrPC, “living in adultery” does not perform a punitive function, but a distributive one. The objective of the Section is to prevent destitution, and crimes such as vagrancy and prostitution, as a consequence of it. The husband’s obligation to maintain the wife flows from this objective. But when the wife is “living in adultery” with another man, she is disentitled from claiming maintenance from her husband, based on the rationale that she already has someone to maintain her.
The Madras High Court judge failed to grasp that “living in adultery” in clause 4 of Section 125 is not a reference to sexual misconduct the way it is in divorce law, but is a reference to a state of dependency. This failure clearly proved fatal for the woman’s post-divorce sexual and economic life, and her prospects are unlikely to improve, unless the judgment is reversed on appeal. But the chances of appeal are also grim, given that she was represented before the High Court by a legal aid lawyer. This judgment represents a large-scale phenomenon in matrimonial litigation and adjudication, where poor women’s claims for economic support in and after marriage, are defeated by the operation of sexual morality.
The problem however, is not simply one of conservative judicial attitude that drags moralism into maintenance proceedings. Moralism is intrinsic to how the wife’s right to maintenance is framed in Section 125, CrPC. The main concern underlying the maintenance clause is with maintaining sexual purity of women (all woman, and not just wives), rather than their economic wellbeing. In a 1937 judgment of the Madras High Court, the judge explained the rationale behind the maintenance provision in the CrPC, in the following words:
Now, I understand the phrase “living in adultery” to mean something quite different from living an unchaste life. The principle, it seems to me, is that a husband is absolved from the obligation to maintain his wife when his wife has a de facto protector with whom she lives and by whom she is being maintained as if she were his wife. The obligation of a husband to maintain his wife arises from the anxiety of the legislature to protect deserted wives from the bitter necessity of earning a living by trading on their sex. That obligation however ceases when it has been voluntarily assumed by some man other than the woman’s husband. No woman can fairly claim a right to be kept by two men.
A cruder form of moralism and sexism is found in a 1961 Kerala High Court judgment:
The provision that the wife is disentitled to maintenance if she is “living in adultery” means that the husband can withhold his aid only when her adulterous conduct has continued for some length of time suggesting thereby that she has found another albeit less honourable haven from the chill winds of penury.
Section 125 CrPC, then, is primarily concerned with maintaining the distinction between wives and whores. It is intended as a mechanism to prevent wives from becoming whores. The moralism that we encountered in the recent Madras High Court judgment discussed above, then, is not exceptional, but central to the law of maintenance under the Code of Criminal Procedure.
But despite the underlying moralism, being a criminal law provision, Section 125 CrPC is relatively more effective than other legal instruments, in securing economic support for wives. Therefore, we need the Section, but its meaning has to be transformed, by changing the language. Language matters. More so when the subject is something like sex outside marriage, that instantly generates moral panic. When the phrase “living in adultery” is used in the law of maintenance to denote a state of dependency outside marriage, there is an automatic migration of meaning from the law of divorce, where the term signifies sexual misconduct. Section 125 of the CrPC needs to be reframed without reference to a morally loaded term like “adultery”.
The author is Assistant Professor at the Jindal Global Law School, Sonepat, Haryana.