Why the Madras High Court Was Wrong to Moralise About Maintenance

Madras High Court (Photo: Yoga Balaji Wikipedia Commons)

Madras High Court (Photo: Yoga Balaji Wikipedia Commons)

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.

Crude moralism

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.


Categories: Law

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  • time4MAN

    Yes, we understand, it’s a pain in a… for lawyers when such reasonable judgments based on natural justice are passed by courts… Coz such cases limit earnings for lawyers who get “cut” in the alimony/maintenance awarded to cruel intentioned wives!
    So what’s your view Mr. Lawyer-Professor … A husband should be extorted of the alimony/maintenance even when the wife is wrong? As it is he’s bound to pay if he’s found on a wrong footing + may be jail term also!
    Being a law graduate you may be well aware already that it’s very difficult to prove adultery of a wife! So much so that when a hubby installed CCTV and obtained footage of his adulterous wife, HE was charged for breaching privacy of his wife!!
    Our judiciary otherwise has stooped to gutter by uplifting unscrupulous women riding on draconian n biased laws!

  • Nambirajan Kesavaraman

    I agree that a solitary instance of adulterous act cannot be interpreted and construed as “Living in Adultery” within the meaning of Section 125 of Cr.P.C. But, when the husband proves and establishes such solitary instance, then the Court is fully justified in presuming factually that the wife is “Living in Adultery”. The onus, therefore, shifts to the wife to show that she is not “Living in Adultery”. Generally, a wife commits an adulterous act unbeknown to her husband. Hence, it won’t be practical and pragmatic, to expect him to prove that his wife’s lifestyle being decadent. Therefore, proof of a solitary instance of adulterous act is sufficient enough to hold that the husband has successfully brought his case within the purview of section 125(4) Cr.P.C. Moreover, in the instant case, the husband had complained about the wife’s adulterous conduct even during the subsistence of marriage. There is therefore nothing wrong in High Court disregarding SC’s decision in Rohtash Singh v Ramendri holding that the disqualification does not apply where the adulterous act had been committed after dissolution of marriage. If the author’s interpretation were to be accepted then the provisions contained in Section 125(4) will become redundant. It is not as if the Madras High Court has disqualified a wife, whose fidelity is unquestionable. The author’s article is largely misleading on account of his misconception.

  • Nambirajan Kesavaraman

    I would even say that the judgement rendered in 2000-3-SCC-180 is itself wrongly perceived. If a divorced wife is eligible for reception of maintenance under sub section 1 of section 125 of Cr.P.C., then justice, equity and good conscience requires that she must be subject to the restriction contained in sub section 4 of section 125 of Cr.P.C as well. It operates as absolute injustice to compel a husband to pay maintenance to a debauchery wife on the grounds that she is entitled to lead a decadent life after getting divorced and that the same would not make her ineligible to receive maintenance under section 125 of Cr.P.C.


    But Madras high court has to consider it.

  • Ravi Shankar Maruthi

    Bribery is an offence whether it is once committed and continued. In similar way the Adultery being an offence and against the Character of well being by a woman, when committed either by taking the weakness of Husband or for satisfying the fire of lust it can not be accepted under our Indian culture and system. Hence when the court comes to conclusion that the married woman indulged in adultery whether once or twice she cheats her husband on faith and fidelity and purity. therefore the adultery wife has to take care of her on own and she should not be permitted to get alimony from the faithful husband whom she has cheated and duped. Administering Poison whether it is single drop or spoonful it is dangerous and the offender can not claim that he gave a drop only.