Man, whether in the role of a son, a father or a husband, has a socially
embedded duty to provide for the well-being – physical as well as financial - of
his elderly parents, children and wife. This duty cast upon men is a consequence
of the entrenched societal belief and mindset which has prevailed over the
world, and especially in India, that the husband is the bread-earner of the
family, whereas the duty of the wife is limited to taking care of the household.
It is, perhaps, because of this social system that women have often been
considered to be the inferior gender, as they were never afforded an equal
opportunity to be educationally qualified – a privilege afforded only to men.
In order to negate the above-mentioned societal perceptions, the laws in India
have been framed in such a manner that they specifically envisage the betterment
of women under the wider ambit of social justice.
The makers of Constitution
of India have gone a step ahead to ensure 'social justice' for women by allowing
the State to make any special provision for women and children, despite the
mandate of Article 15 of the Constitution of India which stipulates that the
State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them. The reason for such an
exemption is the prejudice that women have been constrained to endure
Maintenance provisions are incorporated in the Code of Criminal Procedure, 1973
and personal laws of citizens by way of public policy and are measures of social
justice intended to protect weaker sections like women, children and old parents
as envisaged under Article 15 (3) of Constitution of India, reinforced by the
Directive Principles of State Policy enshrined in Article 39 of the Constitution
The object is to compel a man blessed with sufficient means to perform
the moral obligations which he owes to the society in respect of the wife, minor
legitimate or illegitimate children and his parents who are unable to maintain
themselves, so that they are not left beggared and destituted on the scrap heap
of society and thereby driven to a life of vagrancy, immorality and crime for
Institution of marriage is necessary for the well being of the society. A wife
is duty bound to live with the husband who has the corresponding duty to protect
and maintain her. Manu enjoins a Hindu husband to provide maintenance of his
wife, even while going abroad. Amongst the seven steps 'Sptapadi' in a
traditional Hindu marriage, the first four steps are food, strength, wealth and
The measures for maintenance by themselves are social in character. Those aim at
avoiding immorality and destitution. Maintenance for judicial purposes has its
pragmatics having relation to the need and necessity to make for person's
provisions for securing reasonable bio-economic as well as bio-cultural
requirements such as shelter, food, garment and health. Further, whenever issues
of maintenance arise, they raise an intensely human problem.
Scheme Of Provisions Of Maintenance Under Code of Criminal Procedure & Personal
General provisions as to maintenance are inserted in Chapter IX of the Code of
Criminal Procedure, 1973, whereas, specific provisions of maintenance in respect
of Hindus including Buddhists, Jains or Sikhs are statutorily enumerated in
various sections of the Hindu Marriage Act, 1955 and Hindu Adoptions and
Maintenance Act, 1956.
Similarly, Muslim Personal Law and recently enacted:
Muslim Women (Protection of Rights on Divorce) Act, 1986 envisage provisions
regarding obligation to pay maintenance to destituted wife, children and other
The provisions of the Code of Criminal Procedure was intended to provide for
summary, speedy and cheap remedy of a limited nature to wives and other
dependants. These provisions create statutory rights independent of personal
law, a right which cannot be enforced in a Civil Court. This rights and remedy
do not take away any right which the wife has under the common law or personal
law or other statutes.
Section 125 of Code of Criminal Procedure is apparently designed to prevent
destitution and to provide speedy and summary relief to destitute wives and
children. It has nothing to do with the right of Consortium and Connubium but is
concerned with plain Board and Bed. It is also apparent that the right to claim
maintenance under Section 125 Cr. P. C is not dependent on the right to claim
maintenance under personal law of the parties.
It is further clear that Section
125 Cr. P. C is not meant to substitute the personal law of the parties. On the
other hand, an order made under Section 1265 Cr. P. C is always subject to the
adjudication of the rights of the parties by a competent Civil Court. That is
provided by Section 127 (2) of the Code of Criminal Procedure.
The scheme of the provisions embodied in Chapter IX of the Code of Criminal
Procedure comprising of Sections 125 to 128 which constitute Code in itself
requires to be comprehended. It deals with three questions viz,:
- Adjudication as regards the liability to pay monthly allowance to the
neglected wife and child etc.;
- The execution of the order on recovery of monthly allowance; and
- The mode of execution of an order for monthly allowance.
The Overriding Importance Of Section 125 Of The Code Of Criminal Procedure, 1973:
Section 125 of the Code of Criminal Procedure, 1973 is one such exempting
provision in favour of women, which casts upon a man a fundamental duty to
financially support his wife in the event she is unable to maintain herself. It
is well settled through various judicial pronouncements, that the criteria
required to be fulfilled for availing maintenance under this provision is that
the woman must be incapable of sustaining herself from the financial resources
she currently possesses.
Contentions of the husband such as, inter alia, his own limited means or other
dependents of the family under his care, have been held by the judiciary to be
mere bald excuses holding no weight in the eyes of law.
The law is essentially sacrosanct on this aspect: if the husband is capable of
earning and is able-bodied, there is no plausible reason for him to escape his
financial liabilities towards his wife (and children).
The husband has the obligation to maintain wife and the children as the law
requires. For the purpose of fixation of quantum the status of the person as
well as the status of the claimant are to be taken into consideration. A
neglected wife has to sustain herself. The minor children are to be looked
after. A wife has to be treated with dignity as she does not play a subsidiary
role in the life of a man.
The relationship is beyond physical bondage and is in
the arena of subtler and final mental stream. A neglected wife cannot be
expected to live like a church mouse. In the days of yore a wife was neglected
as an epitome of the cementing factor in the domestic life and an embodiment of
sacrificing synthesis in social fabric. She was regarded as a symbol of virtue,
an emblem of Olympian Calmness and an embodiment of Himalayan poise. This being
the position of wife , it is undesirable to conceive that she would live in
distress because of the neglect of husband.
In the Appeal (Crl.) 1627 of 2007 titled Chaturbhuj v/s Sitabai, decided on
27th November, 2007, the Hon'ble Supreme Court of India has observed as under:
7. But there is an inseparable condition which has also to be satisfied that
the wife was unable to maintain herself. These two conditions are in addition to
the requirement that the husband must have neglected or refused to maintain his
It is has to be established that the wife was unable to maintain herself.
The appellant has placed material to show that the respondent-wife was earning
some income. That is not sufficient to rule out application of Section 125 Cr.
P. C. It has to be established that with the amount she earned the
respondent-wife was able to maintain herself.
8.............Where the personal income of the wife is insufficient she can
claim maintenance under Section 125 Cr. P. C. The test is whether the wife is in
a position to maintain herself in the way she was used to in the place of her
husband. In Bhagwan v/s Kamla Devi, AIR 1975 SC 83, it was observed that
the wife should be in a position to maintain standard of living which is neither
luxurious nor penurious but what is consistent with status of a family. The
expression 'unable to maintain herself' does not mean that the wife must be
absolutely destitute before she can apply for maintenance under Section 125 Cr.
Further the Supreme Court in Criminal Appeal NOS.564-565 OF 2015
[Arising out of SLP (Crl.) Nos. 6380-6381 of 2014]titled Shamima Farooqui
v/s Shahid Khan, decided on 6 April, 2015 held as under:
15.........A woman, who is constrained to leave the marital home, should not be
allowed to feel that she has fallen from grace and move hither and thither
arranging for sustenance. As per law, she is entitled to lead a life in the
similar manner as she would have lived in the house of her husband. And that is
where the status and strata of the husband comes into play and that is where the
legal obligation of the husband becomes a prominent one.
As long as the wife is
held entitled to grant of maintenance within the parameters of Section 125 Cr.
P. C, it has to be adequate so that she can live with dignity as she would have
lived in her matrimonial home. She cannot be compelled to become a destitute or
a beggar. There can be no shadow of doubt that an order under Section 125 Cr. P.
C can be passed if a person despite having sufficient means neglects or refuses
to maintain the wife.
Sometimes, a plea is advanced by the husband that he does not have the means to
pay, for he does not have a job or his business is not doing well. These are
only bald excuses and, in fact, they have no acceptability in law. If the
husband is healthy, able bodied and is in a position to support himself, he is
under the legal obligation to support his wife, for wife's right to receive
maintenance under Section 125 Cr. P. C, unless disqualified, is an absolute
The Exceptions Under Sub-Section 4 To The Grant Of Maintenance Under Section 125 Of The Code:
The above mentioned judicial pronouncements clearly emphasise the overriding
importance and gravity of a statute such as Section 125 of the Code; as seen
above, there are virtually no excuses or reasons given by the husband for
refusing to maintain his wife / children, which are acceptable to the Courts.
However, perhaps the framers of this legislation sensed that this provision
would be excessively onerous for men, for they also imposed a rider on the grant
of maintenance to the woman under this section, in the form of sub-section 4 of
Section 125 of the Code. Sub-section 4 of section 125 of the Code protects him
from maintaining his wife, or bearing her litigation expenses, as the case may
be, if the wife is living in adultery, is refusing to live with him without
sufficient reason, or is living separately from him by mutual consent.
In light of sub-section 4 of Section 125, it now becomes essential to evaluate
the nature and extent of the action(s) of the wife which may preclude her from
claiming maintenance from her husband under Section 125 of the Code, by
considering the following questions:
- Firstly, will just a single, solitary and isolated instance of adultery
be enough to disqualify a woman from her rights under Section 125 of the
- Secondly, will the extenuating circumstances surrounding her living in
adultery/adulterous actions be relevant and ought to be considered while
allowing or dismissing her petition for maintenance in light of section 125
(4) of the Code?
The expression, living in adultery deserve special notice. Living in
adultery means an outrageous adulterous conduct when the wife lives in a
quasi-permanent union with a person outside the wedlock. [Kasthuri Vs. Ramaswamy, 1979 Cri.
L. J 7411]. The expression living in adultery postulates that there should be
proof of adulterous living shortly before or after the petition for maintenance
filed by the wife. Adultery is the breach of matrimonial ties.
So, it is clear
that an adulterous act is not a sporadic act. It is only been when the wife
adopts as a way of life it is living in adultery by the wife. Therefore, the
expression living in adultery used in Section 125 (4), Code of Criminal
Procedure contemplates a continuous course of conduct on the part of the wife
with the adulterer and a single act of unchastity or a few lapses from virtue
will not disentitle the wife from claiming the maintenance from the husband
under Section 125, Code of Criminal Procedure.
A Single, Solitary And Isolated Instance Of Adultery, Whether Sufficient Do Disqualify A Woman From Her Rights Under Section 125 Of The Code:
Adultery referred to in sub-section (4) of Section 125 Cr. P. C to disentitle a
wife from claiming maintenance from her husband does not imply an occasional
lapse or a past misconduct. It is existing and habitual adultery. The provisions
do not refer to an act of adultery and exvitermini neither a single act nor
isolated acts adultery would suffice, but the type of adultery contemplated to
attract the provision of sub-section (4) of Section 125 of the Code of Criminal
Procedure is of the nature of a continual or recurring lapse.
It has to be
repetitive or habitual. An adulterous intercourse is a condition contemplating
repetition of extra martial relationship when opportunity offers. It is a
condition of cohabitation in contradiction to occasional acts.
The expression 'living in adultery' was considered by Madras High Court in [Bilawati
Pegu v/s Phukan Pegu, 1988 Cri. L. J NOC 30] holding to mean an outright
adulterous conduct where the wife lives in quasi permanent union with the man
whom she is committing adultery.
This interpretation 'living in adultery' was adopted by the Hon'ble High Court
of Gujarat in [Giraben Sandipbhai Jotangiya & Ors. v/s State of Gujarat & Ors,
decided on 4th August, 2015, holding that a continuous adulterous relationship
on the part of the wife is a vital requirement for her to be disentitled to
claim maintenance from her husband under section 125 of the Code. The Hon'ble
Court, while delivering a detailed judgment, has also relied upon the
observations of various courts from different parts of the country to the effect
that a continuing adulterous relationship on the part of the wife is one of the
fundamental requirements for her to be disqualified from claiming maintenance
from her husband by virtue of section 125 (4) of the Code.
The relevant portion
of this judgment is as under:
10. … The expression living in adultery has been discussed and decided by the
Court to how that this connotes a course of adulterous conduct more or less
continuous. An occasional lapse would not be a sufficient reason for refusing
maintenance within the ambit of Subsection (4) of Section 125 of Code.
11. … The Orissa High Court has also held that there must be clear proof of
adultery and a suspicion nurtured by the husband will not disentitle the wife to
receive the maintenance under the Code 12 (a) Reference is made of the decision
of the Madras High Court of Kasturi Vs. Ramaswamy, reported in 1979 Cr. L. J
741, wherein it is held and observed that living in adultery means outright
adulterous conduct on the part of the wife and stray act of illicit relationship
will not amount to living in adultery.
The Extenuating Circumstances Surrounding The Wife's Living In Adultery / Adulterous Actions, Whether Relevant For Adjudicating Her Petition For Maintenance In Light Of Section 125(4) Of The Code?
It would be profitable to reproduce sub-section (4) of Section 125 of the Code
of Criminal Procedure, 1973 as under:
No wife should be entitled to receive an allowance for the maintenance or the
interim maintenance and expenses of proceedings, 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.
The words without any sufficient reason in the above-mentioned provision open
the door for scrutiny and debate on which circumstances constitute sufficient
reasons for justifying, or at least condoning, the wife's refusal to live with
her husband as his wife, irrespective of whether they are staying under the same
roof or not, for the purpose of granting her maintenance under Section 125 of
The Hon'ble High Court of Delhi in its judgment titled [Pradeep Pant & Anr Vs
Govt Of NCT Delhi], which has relied upon the judgment of the Hon'ble
Supreme Court of India titled [Sureshta Devi v/s Om Prakash (1991) 2 SCC
25] has clarified the concept of a couple living separately as under:
9..........The expression living separately, connotes to our mind not living
like husband and wife. It has no reference to the place of living. The parties
may live under the same roof by force of circumstances, and yet they may not be
living as husband and wife. The parties may be living in different houses and
yet they could live as husband and wife. What seems to be necessary is that they
have no desire to perform marital obligations and with that mental attitude they
have been living separately for a period of one year immediately preceding the
presentation of the petition.
Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973
specifically limits the rights of maintenance of wives only to those wives who
are not living in adultery. The essence of contents of this sub-section is that
no wife shall be entitled to receive maintenance allowance from her husband
under Section 125 (1) of the Code of Criminal Procedure if she is living in
This provision shows that rights of the wife to claim maintenance is not
absolute right but is qualified one subject to her fulfilment of certain
condition of not living in adultery is one of them. In the words of their
Lordship of Supreme Court, as expressed in [Subanu alias Banu Vs A. M. Abdul
Gafoor, 1987 Cri. L. J 980] this sub-section (4) provides that a wife shall not
be entitled to receive maintenance from her husband if she is living in adultery
or if without sufficient reason she refuses to live with her husband or she
lives separately by mutual consent.
The expression 'living in adultery' in Section 125 (4) of Code of Criminal
Procedure, 1973 has to be a continuous course of adulterous conduct and stray
instances of departure from virtue would not be sufficient to deny maintenance
to wife. The fact that wife is living in adultery has to be established by the
husband. In quasi-criminal proceedings, the standard of proof would be
preponderance of evidence.
Marriage is a phenomenal event of life by which wife is clasped with love and
affections by husband. As on today, various revolutions, social vicissitudes,
global formulae have directly changed the equation making it a universally
standard norms that after marriage a wife is to be maintained by her husband.
The flow of life with sufficient and adequate facilitation moving around the
unavoidable needs and their supplement make marital conjugations happy and
pleasant and accordingly other ventures of life can be pursued.
The right to
life is the prominent desiderata to and criteria to establish the due for a
human being. Law of maintenance is personal as well as legal in character and
arises from the very existence of relationship between the parties. Law of
maintenance with no doubts is inclined toward woman in both structures whether
it is Hindu or Muslim law. As per the above mentioned sections and the facts and
the circumstances referred it states that a husband cannot be made liable to pay
alimony if the wife’s adultery is proved in the Court of Law.
Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature,
Email: [email protected], [email protected]