As per Hindu laws, marriage is a commitment between a male and a female to live together in all the situations and challenges coming in life, moreover, they promise to jointly pursue the basic elements of life that are Dharma, Artha, Kama, And Moksha. Marriage in Hinduism is not a contract but a sacrament, meaning it is a spiritual bond between two persons that unites their mind, body, and soul for the rest of their lives.

However, sometimes, due to a variety of reasons, people find it hard to live together in wedlock and want to get separated through a divorce. But getting a divorce is not as easy as it sounds. In most cases, the process of divorce turns into a quagmire, dragging on for years with no sight of any outcome.

In this article I have tried to explain the concept of divorce, maintenance and legal questions surrounding them.

Divorce

The Black's law dictionary defines divorce as the legal dissolution of a marriage by a court. Means a complete severance of the ties that bind the couple. There are two ways to dissolve a marriage:

1. Divorce by mutual consent
2. Contested Divorce

Divorce By Mutual Consent

When both the parties in a wedlock mutually decides to dissolve their existing marriage, they may file a joint petition under Section 13B of the Hindu Marriage Act, 1955 stating that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

In the case of Sureshta Devi vs. Om Prakash (07.02.1991 - SC) : MANU/SC/0718/1991 Supreme court interpreted the expression "living separately" and observed that the parties living under the same roof may still be covered under the expression of living separately if they have been living due to the force of circumstances and have no desire to perform marital obligations.

Can the one-year period of separation be waived?

To answer this question, it is important to understand the difference between Section 13B (Applied to mutual divorce) and Section 14 (Contested divorce) of the Hindu marriage act, 1955. Section 13B specifically states that to file a mutual divorce, the parties need to be living separately for a period of one year or more. There is no provision provided under this section for waiving of the condition of living separately for one year or more.

Whereas Section 14 says that, no petition for divorce to be presented within one year of marriage, however the court may allow a petition to be presented on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. Different High Courts have expressed divergent opinions on whether the proviso of Section 14 can be applied to an application filed under Section 13B to waive the condition of living separately for one year or more.

Delhi High Court in the case of Urvashi Sibal and Ors. vs. Govt. of NCT of Delhi (07.01.2010 - DELHC) : MANU/DE/0112/2010, and MP High Court in the case of Vishal Kushwaha vs. Ragini Kushwaha (28.03.2022 - MPHC) : MANU/MP/0656/2022, took a similar view holding that section 13B and section 14 of the Hindu Marriage Act, 1955 are independent of each other, the statutory condition of living separately for one year or more as provided under section 13B is a mandatory prerequisite therefore section 14 cannot be invoked to seek waiver in petition filed under section 13B.

However, In the case Dandamudi Phani Krishna vs. Boyapati Lakshmi Aparna (22.03.2024 - TLHC) : MANU/TL/0363/2024, The Telangana High court in mutual divorce application under section 13B, allowed the application for waiver of condition of living separately for one year or more by invoking proviso of section 14.

In the case of X vs. Y, 2024 LiveLaw (PH) 258 the petitioners cohabited for just three days, were seeking mutual divorce, the Family court rejected their application. In appeal the Punjab and Haryana High court allowed the petition by invoking section 14 and remarked that "….. their freedom to re-marry is required not to be fettered through any intrusion thereto becoming made rather by the Family Court, that too but only for conjectural reasons…"

First Motion

The filing of joint petition U/s 13B for mutual divorce is legally known as "The First Motion Petition for Divorce by Mutual Consent". On the first appearance, it is mandatory that both the petitioners are present to record their statement. After recording the statement, the court as per the statutory provision U/s 13B(2) sets a date six months later, the period of this six month is called cooling off period, the purpose behind the cooling off period is to give the petitioners opportunity to rethink their decision and explore if there is any possibility of settlement and cohabitation.

Waiving off the cooling off period

The Supreme court in the case Amardeep Singh vs. Harveen Kaur (12.09.2017 - SC) : MANU/SC/1134/2017 held that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. While exercising its discretion on whether a case is made out to waive the statutory period under Section 13B(2) or not, the court shall consider the following factors.

1. The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties, is already over before the first motion itself.
2. All efforts for mediation/conciliation, including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties, have failed, and there is no likelihood of success in that direction by any further efforts.
3. The parties have genuinely settled their differences, including alimony, custody of child, or any other pending issues between the parties.
4. The waiting period will only prolong their agony.

The court further held that waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

Whether the consent given can be unilaterally withdrawn?

If we read the provision of the section 13B (2) it says on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit…

In the case Sureshta Devi (Supra) the court considered the questions that Whether a party to a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, ('Act') can unilaterally withdraw the consent or whether the consent once given is irrevocable.? While answering to this question the court held that the mutual consent to divorce should continue till the divorce decree is passed.

Para 13. Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage saying that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. …... Mutual consent should continue till the divorce decree is passed………... "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard"

In the case Ashok Hurra and Ors. Vs. Rupa Bipin Zaveri and Ors. MANU/SC/0283/1997, Supreme Court remarked that the precedent set in the case of Sureshta Devi (Supra) is too wide and needs reconsideration:

It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13B(2) of the Act. …. The decision in Surestha Devi's case (supra) may require reconsideration in an appropriate case.

Let's understand the concept of withdrawal with the help of an example: Suppose, Wife (hereinafter referred as A) and Husband (hereinafter referred as B) are a married couple. A files cases of cruelty, dowry, and domestic violence against B and, based on these, files for divorce. They later reach a settlement where B agrees to a mutual divorce if A withdraws the cases. A withdraws the cases, but during the 6-month waiting period, B withdraws his consent for the mutual divorce.

Whether the B is allowed to unilaterally withdraw the consent from the mutual divorce or he will be estopped in pursuant to their settlement. Bombay High court in the case Prakash Alumal Kalandari Vs. Jahnavi Prakash Kalandari MANU/MH/0665/2011 made distinction between a Mutual divorce petition originally filed by the parties and a mutual divorce petition filed after reaching a settlement in a contested divorce case.

The court held that in the former situation the precedent set in the case Sureshta Devi (Supra) is applicable and either of the parties to the petition can unilaterally withdraw the consent according to the timeline prescribed under section 13B(2) of the Hindu Marriage Act, 1955, however in the letter scenario where the divorce petition was filed as contested and later the parties reached a settlement and agreed to file mutual divorce, in this scenario the parties will be precluded from withdrawing their consent unilaterally.

The Court observed that the husband cannot be permitted to take advantage of his own wrong. Further, the Family Court cannot be a helpless spectator in spite of the duplicity of the husband to induce the hapless wife to waive her maintenance claim and to withdraw the criminal complaints with the hope of starting her life afresh.

The Court went on to observe that if the husband was allowed to withdraw his consent, it would be nothing short of husband resorting to fraud and misrepresentation, which cannot be permitted by the Courts of Law and Equity. The Court further observed that in such situations, no spouse can be allowed to withdraw consent unilaterally, unless he/she was able to substantiate a just cause to the satisfaction of the Court.

Relying on the judgement Prakash Alumal Kalandari (Supra) the Kerala HC in the case Benny vs. Mini (05.02.2021 - KERHC) : MANU/KE/0285/2021 held that once the parties agree to file a joint petition, pursuant to an agreement/compromise in pending proceedings, then the parties are estopped from resiling from the agreement.

However, The Hon'ble Delhi High court while listening to a bunch of connected matters in the case of Rajat Gupta vs Rupali Gupta CONT.CAS(C) 772/2013 gave a diverging opinion and observed that the distinguishing feature of Section 13B of the Act, 1955 is that it recognizes the unqualified and unfettered right of a party to unilaterally withdraw the consent or reconsider/renege from a decision to apply for divorce by mutual consent, notwithstanding any undertaking given in any legal proceeding or recorded in any settlement/joint statement, in or outside the court, resulting in a consent order/decree, to cooperate with the other spouse to file a petition under Section 13B(1) or a second motion under Section 13B(2) of the Act, or both. However, the court held that a defaulting party can be held liable for civil contempt on the ground of breaching the terms and conditions incorporated in an undertaking given to the court or made a part of a consent order/decree.

Second Motion

After the completion of the first motion, if the parties fail to reconcile their marriage during the cooling-off period of 6 months, they may file the second motion within 18 months from the date of the first motion order. upon filing the second motion, the court shall hear the parties and make an inquiry. If satisfied with the averments in the petition, the court will pass a decree dissolving the marriage. The decree of dissolution of marriage will be in effect from the date of the order of dissolution.

Contested Divorce

Unlike mutual divorce, in contested divorce the couple in the wedlock do not mutually agree for the dissolution of marriage and hence one of the couples decides to get the marriage dissolved by going through a court trial. Section 13 of the Hindu marriage act, 1955 provides that a marriage may be dissolved on a petition presented by either of the spouses, the decree of the dissolution of marriage may be granted on the ground that the other party:

• Had voluntary sexual intercourse with any person other than his or her spouse
• Treated the petitioner with cruelty
• Has deserted the petitioner for a continuous period of not less than two years
• Conversion to another religion
• Has been incurably of unsound mind
• Has been suffering from venereal disease in a communicable form
• Has renounced the world by entering any religious order
• Has not been heard of as being alive for a period of seven years

Other than the aforementioned grounds the Supreme Court may grant divorce on the ground of "irretrievable breakdown" of marriage by invoking Article 142 of the Indian constitution to do complete justice. In the case of Shilpa Sailesh vs. Varun Sreenivasan (01.05.2023 - SC): MANU/SC/0502/2023 the 5- Judge constitutional bench of Supreme Court held that the marriage has irretrievably broken down is to be factually determined and firmly established.

For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.

Further the bench explicitly held that a party cannot file a writ petition under Article 32 of the Constitution of India and seek the relief of dissolution of marriage directly from this Court on the ground of irretrievable breakdown of marriage. The Supreme Court's exercise of its power under Article 142 of the Constitution is not a matter of right but a discretion that must be exercised with great care and caution.

Adultery / Voluntary Extra Marital Sexual Intercourse
The statute nowhere mentions the word "adultery" but prefers to use the definition of adultery that is voluntary sexual intercourse with any person other than his or her spouse in order to avoid confusion while interpreting the word. While seeking a decree of divorce on the ground of adultery the petitioner is required to make the adulterer a co-respondent.

In the case of Udai Narain Bajpai vs. Kusum Bajpai (12.08.1974 - ALLHC): MANU/UP/0019/1975 The Allahabad High court held that the Rules framed by the High Court under the Hindu marriage Act 1955, mandates under rule 6 (a) that in a petition for divorce based on the ground of adultery the alleged adulterer must be impleaded as a co-respondent.

In another case Phani Raghavalu Meduri Vs Lakshmi Meduri (CRP 2192/2023) the High Court of Telangana while setting aside the order of the trial court observed that "It is to be noted that since the finding of adultery would adversely affect the interest of adulterer, opportunity should be given to him to defend himself and to disprove the claim of adultery, the said adulterer should be arrayed in the proceedings which would help the court to effectively and completely adjudicate the controversy". However the Delhi High Court in the case of XX Vs YY (MAT.APP.(F.C.) 219/2024) reached a different conclusion and held that Proof of adultery does not necessarily require including the adulterer as a party in the divorce case.

Condonation of adultery

In the case of N.G. Dastane vs. S. Dastane (19.03.1975 - SC) : MANU/SC/0330/1975 Supreme Court observed that Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. If a husband (or wife), after discovering that their spouse has committed adultery, chooses to condone the act and continues to cohabit and live in a marital relationship, the innocent spouse will not be able to seek a divorce on the ground of adultery unless the act is repeated after the condonation.

The Clash Between Right to Privacy and Adultery

The confusion over whether the right to privacy is protected by our Constitution was finally resolved in a landmark judgement delivered by the 9-judge constitutional bench of Supreme Court in the case of K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors. (24.08.2017 - SC) : MANU/SC/1044/2017, The Supreme court held that Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution…… Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.

Since the Supreme Court has affirmed that the right to privacy is a constitutionally protected right under Article 21 of the Constitution, a very pertinent question arises as to whether a court in a civil case can order the production of call detail records (CDRs) and other sensitive records, such as hotel bookings and CCTV feeds.

This very question came before the Delhi High Court for consideration in the case of Sachin Arora vs. Manju Arora CM(M) 64/2023, The appellant challenged the family court's order allowing the prayer of the respondent seeking preservation of the CCTV footage of the hotel where the appellant allegedly involved in adulterous activities, as well as CDRs of the appellant's two mobile numbers. Appellant contended the family court's order infringes his Right to privacy.

However, the High Court while dismissing the appeal observed that when a wife seeks the help of the Court for procuring evidence..…the Court must step in; this would be in consonance with Section 14 of the Family Courts Act, 1984. Further the court observed that right to privacy is not an absolute right, and the wife's right to seek redressal must prevail over the husband's right to privacy.

In a similar case X & Y Vs Z, (CRL.REV.P.-480/2023) the Delhi High Court heard an appeal application seeking ex-parte production and preservation of guest register maintained by hotel, booking invoices, CCTV footage of a hotel, Phone records along with CDR of the respondent husband. While granting relief to the petitioner the court observed that the plea before this Court … was only to direct the third parties who are in possession of such crucial evidence, which the petitioner herself will not be in position to lay her hands on without assistance of the Court, to be preserved so that by the time the trial reaches the appropriate stage of production of evidence, the same are not destroyed.

Cruelty

The term 'cruelty' has not been defined in the Hindu Marriage Act, 1955. It has been used in Section 13(1)(ia) of the Act in the context of human conduct and behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one spouse which adversely affects the other spouse. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of degree which is relevant. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the other spouse.

In the case of N.G. Dastane vs. S. Dastane (19.03.1975 - SC) : MANU/SC/0330/1975 the Supreme Court, while considering an appeal under Section 10 (1) of Hindu Marriage Act, 1955 for judicial Separation laid down the test of cruelty, The court observed that the relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent.

The threat that she will put an end of her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the appellant and his parents are all of so grave an order as to imperil the appellant's sense of personal safety, mental happiness, job satisfaction and reputation. Her once-too-frequent apologies do not reflect genuine contrition but were merely impromptu device to tide over a crisis temporarily.

Since there is no straightjacket definition provided for cruelty, the various courts apply the principle of cruelty based on the fact and circumstances in each case, below are some examples of circumstances that, in the opinion of the courts amounts to cruelty.

Cruelty Against Husband

In the case of Sudeepto Saha Vs Moumita Saha (FA/896/2014) MP High Court observed that …..The appellant solemnized the marriage. It was already decided that he will leave India in a short period. During this period, the appellant was hopeful to consummate the marriage but the same was denied by the respondent and certainly the said act of the respondent amounts to mental cruelty.

In the case of Pankaj Mahajan vs. Dimple (30.09.2011 - SC) : MANU/SC/1145/2011 The Supreme Court observed that…. It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully.

In the case of Nalini Nagnath Uphalkar vs. Nagnath Mahadev Uphalkar (12.10.2022 - BOMHC) : MANU/MH/3924/2022 The Bombay High Court observed that making false and baseless allegations pertaining to the husband's character labelling him as an alcoholic and womaniser has resulted in shredding his reputation in the Society amounts to cruelty.

In the case of Deepti Bhardwaj Vs Rajeev Bhardwaj (MAT.APP.(F.C.) 138/2022) The Delhi HC held that Repeated use of derogatory and humiliating words for husband by the wife amounts to cruelty.

Cruelty Against Wife

Unlike the Hindu Marriage Act, 1955, Section 86 of the Bharatiya Nyaya Sanhita (formerly Section 498A of the IPC, 1860) defines the term 'cruelty' as:

"cruelty" means:

1. any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
2. harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

It is pertinent to mention that the above-mentioned definition is applicable only for the purpose of Section 85 of the Bharatiya Nyaya Sanhita, 2023 which criminalizes acts of cruelty committed against a woman by her husband or his relatives. It also prescribes a punishment of imprisonment for up to three years and a fine.

In the case of Amar Singh vs. Vimla (22.06.2021 - MPHC) : MANU/MP/0613/2021 MP High Court held that compelling a married women to live in her parental home, is a cruelty.

In the case of Poonam Wadhwa v. Rajiv Wadhwa, 2023 SCC OnLine Del 5535 Delhi HC while granting divorce on the ground of cruelty held that inter alia the significant disparity in the financial status of the wife and the husband, ….wife working and the husband not working. …. such kind of instability as faced by the husband was bound to result in mental anxiety, and could be termed as constant source of the mental cruelty to the wife. The term 'mental cruelty' was wide enough to include 'financial instability'

In the case of Deepa Tomar vs Ajay (FA/2409/2023) The MP High court held that the conviction of the husband under Section 302 of IPC and sentence of life imprisonment amounts to mental cruelty towards the wife which entails her getting the divorce from her husband.

It is pertinent to note that a woman getting divorce on the ground of cruelty under section 13 of the Hindu Marriage Act, 1955 does not mean that section 85 of Bharatiya Nyaya Sanhita, 2023 which criminalises the acts of cruelty will automatically get invoked. BNS is altogether different statute serving different purpose hence it will require separate proceeding by the court to convict a person.

Concept of Maintenance

The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support.

Different religions have different personal laws applicable to them however some acts such as Protection of Women from Domestic Violence Act, 2005, Special Marriage Act 1954, and Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 of Crpc) provides a remedy to women irrespective of their religious beliefs. Judiciary has reiterated on many occasions that a wife can claim maintenance under one or more statute simultaneously since each enactments provides an independent and distinct remedy framed with a specific object and purpose. A Hindu wife may claim maintenance under Hindu Adoptions and Maintenance Act 1956, Hindu Marriage Act, 1955, The Protection of Women from Domestic Violence Act, 2005, Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023.

However, in the case of Rajnesh vs. Neha and Ors. (04.11.2020 - SC) : MANU/SC/0833/2020 The Supreme Court observed that the simultaneous operation of these acts, would lead to multiplicity of proceedings and conflicting orders.

This would have the inevitable effect of overlapping jurisdiction. To address this issue the court envisaged following guidelines:

1. where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
2. it is made mandatory for the Applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
3. if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

The Supreme Court in the case of Chand Dhawan v. Jawaharlal Dhawan MANU/SC/0538/1993 : (1993) 3 SCC 406 discussed the interplay between the claim for maintenance under Hindu Marriage Act and Hindu Adoptions and Maintenance Act 1956. The Court held that Section 24 and 25 of the Hindu Marriage Act, 1955 are gender neutral and make provision for maintenance to a party who has no independent income sufficient for his or her support, and necessary expenses, the claim will be considered valid only when the claimant will approach court during the pendency of litigation under section 9 to 14 of the statute as the case may be.

In other words, without the marital status being affected or; disputed by the matrimonial court under the Hindu Marriage Act the claim of alimony will not be valid as ancillary or incidental to such affectation or disruption. On the other hand, Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Subsection (2) of Section 18 provides that a wife has the right to live separately while being in marriage and preserving her marital status. However, her entitlement to claim maintenance from her husband is conditional and can only be sought under specific circumstances explicitly envisaged in the subsection.

Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 of CrPc) that reads as:

1. If any person having sufficient means neglects or refuses to maintain:
   
   1. his wife, unable to maintain herself; or
   2. his legitimate or illegitimate child, whether married or not, unable to maintain itself; or
   3. his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or
   4. his father or mother, unable to maintain himself or 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 or such child, father or mother, at such monthly rate as such Magistrate thinks fit……

The above-mentioned provision is applicable to all the person irrespective of their religious belief or the community they belong to. The legislatures intent behind this provision was to provide a summary relief to the applicant. However, it is to be remembered that an application by wife under this provision can be filled only when these two conditions are met: (i) the husband has sufficient means; and (ii) neglects to maintain his wife, who is unable to maintain herself.

A pertinent question that arises is whether a husband can be relieved from the obligation to pay maintenance if he resigns from his job or becomes unemployed to show that he doesn't has sufficient means?

In the case of Anju Garg and Ors. vs. Deepak Kumar Garg (28.09.2022 - SC) : MANU/SC/1256/2022 The Supreme Court, while rejecting the respondent's argument that he had no source of income due to the closure of his business, observed that the husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute.

In the case of XXXX vs. YYYY (2023 LiveLaw (PH) 50) the Punjab and Haryana High Court went on to observe that …..of course a husband has got a moral and legal liability to maintain his wife unable to maintain herself, even if he is a professional bagger. The respondent/husband could not establish on record that petitioner wife (herein respondent) has got any means of earning or is possessed of sufficient property.

The above judgements reflects that the provisions for maintenance are mandatory in nature and one cannot get relived from such obligations unless they falls under the exceptions provided in the statute.

Misuse of the Laws
In recent times, it has been observed that even for trivial family disputes, women resort to filing cases against their husbands and in-laws under various provisions of the Domestic Violence Act and criminal laws. As the filing of false cases has become rampant, the courts are gradually becoming aware of this trend and are making strong observations whenever they encounter false FIRs filed by wives merely to settle scores.

In the case of Dhananjay Mohan Zombade v. Prachi, 2023 SCC OnLine Bom 1607, the Bombay High Court while quashing the proceedings under Domestic Violence Act, Observed that "No doubt, the provisions of Section 482 of the Code of Criminal Procedure cannot be invoked as a matter of course. The Hon'ble Apex Court in the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303, has held that if the High Court finds that any proceedings is abuse of process of Court then in that case, non-invocation of provisions of Section 482 of the Code of Criminal Procedure would not be justified.

It needs to be recorded that merely because the enactment of DV Act is to provide for more effective protection of the right of woman, it would not mean that a proceeding which is palpably not tenable shall be allowed to be continued. If it is allowed so, then it will be nothing less than sheer abuse of process of Court. Thus, in the considered view of this Court, the present application for quashment of proceeding under DV Act is maintainable."

The Delhi High Court in the case of Prateek & Ors. Vs. State NCT of Delhi and Anr. (CRL.M.C.6676/2024), While quashing the FIRs filed against the Husband and his relatives observed that "It is an abysmal state of affairs that litigants have resorted to making a mockery of the judicial system by preferring false complaints of such a serious nature to arm-twist the other side and gain leverage in matrimonial disputes"

In the case of Rupali Devi v. State of U.P., (2019) 5 SCC 384, the Hon'ble Apex court addressed the question of jurisdiction as to whether a wife who was forced to leave her matrimonial home due to cruelty by her husband and/or his relatives can initiate legal proceedings against them in the court within whose territorial jurisdiction she has taken shelter after leaving her matrimonial home? The Hon'ble held that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.

The court's intention was not to impose undue hardship on husbands or to create a means for misuse but to provide justice to women who might otherwise struggle to pursue legal action. However, a new trend of misuse emerged after this judgement whereby wives strategically began choosing to file cases in locations that cause maximum inconvenience for the husband to defend himself.

Remedies available to husband.

A husband aggrieved by his wife's false cases against him or his relatives may approach the Hon'ble High Court under Article 227 of the Indian Constitution, read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 482 of the Code of Criminal Procedure, 1973), to invoke inherent powers to quash the criminal proceedings against him or his relatives. The Delhi High Court in the case of Prateek & Ors. Vs. State NCT of Delhi and Anr. (CRL.M.C.6676/2024), While quashing the FIRs filed against the Husband and his relatives observed that "It is an abysmal state of affairs that litigants have resorted to making a mockery of the judicial system by preferring false complaints of such a serious nature to arm-twist the other side and gain leverage in matrimonial disputes"

The husband may initiate civil and criminal defamation proceedings against the wife and her family members. The defamation case is strengthened if the High Court quashes the criminal proceedings against the husband and/or his relatives.

The husband may initiate civil and criminal defamation proceedings against the wife and her family members. The defamation case is strengthened if the High Court quashes the criminal proceedings against the husband and/or his relatives.

The husband may file an application under Section 91 of the Criminal Procedure Code (CrPC) to request the production of relevant documents from the appropriate authority. Let's say, A wife falsely submits to the court that she is unemployed and has no source of income to maintain herself. The Husband knowing her true employment status and the company where she works, may file an application under Section 94 of Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly 91 of CrPC) to obtain employment records from the concerned company. Similarly, the Husband may request the court to summon the wife's bank to produce bank account details or other pertinent financial records as needed.

The husband under Section 379 of Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly 340 of CrPC) may file a perjury application, if the wife conceals material facts of the case for example concealing her income or concealing or lying about the employment status. It is pertinent to note that application under section 340 of CrPC shall be filed at appropriate stage otherwise it might become redundant. In the case of Sejalben Tejasbhai Chovatiya vs. State of Gujarat (20.10.2016 - GUJHC) : MANU/GJ/3099/2016 the Hon'ble Gujarat High Court, while upholding the learned trial court's order to prosecute the wife for lying before the court to claim maintenance, observed that:
"Laws which are otherwise in favour of the distressed wife when are sought to be misused by declaring completely incorrect facts and also by suppressing the material aspect, the trial Court at the time of considering the case found that the impact on the administration of justice would make it expedient for it to direct the prosecution."

Written By: Adv.Gulshan Kumar Maurya
Email: [email protected]