Adulterous Relationship – An Impediment to the Exploitation of Maintenance under the Hindu Law and CrPC?

By Ritodeep Bhattacharyya, 2nd Year, BBA.LLB (H), ICFAI Law School Hyderabad

The maintenance jurisprudence which has been one of the essential remedy for the sustenance of women in this society differs in its nature in different personal and territorial laws prevailing in our country with the basics remain that it provides a social and financial security to all those women who has been tortured by their matrimonial family members. There requires a socially embedded duty and obligation on the male member of the family to support the women even after the termination of the marriage as the society from the very beginning has established the wrong notion that the female gender is always inferior to that of men and therefore such support for survival is needed.

The offense of adultery although decriminalised by the Supreme Court in the case of Joseph Shine v. Union of India (2018 SCC Online SC 1676). but still it is still a valid ground for filing divorce under the Hindu law and for disqualifying the right of maintenance to the women. The sole reason behind keeping it still as a valid ground because the women voluntarily steps into the life of immorality and by virtue of it, she breaches the trust, faith and sanctity of a marital relation. 

However, it is of quite importance to mention out the fact that the framers of the law were aware that such remedy of maintenance could have been exploited against the men in consideration for certain economic benefits at its core which would have ultimately defeated the very purpose of the remedy of maintenance. Section 125(4) under the Code of Criminal Procedure, 1973 was enacted with the primary agenda to stand as an impediment to the exploitation to the right of maintenance of the women who is in a voluntary adulterous relation with someone else.  

The exploitation to the remedy of maintenance defeats the purpose of social justice: –

The Indian society from the time of its inception has witnessed a social structure wherein the women were not allowed to work and was casted with the duty to look after the household activities and the men were considered as the sole bread earners of the family.[1] This disparity between the genders has led to various difference comprising mainly out of education, culture, economic and social. The remedy of maintenance has stood as the barrier to such differences and has been a pivotal weapon to negate such differences. However, with the passage of time, there has been various instances in the Indian legal system where in such weapon has been misused and exploited with the ill motive to fetch money from the men. The law makers of the country in such situation made sure that the essence of true “social justice” is upheld by bringing in such provisions which will enable the sovereign to protect the men from such exploitation of the remedy of maintenance.

Section 125(4) has been such provision which was enacted with the objective of providing the relief to the male from the payment of maintenance to the women who is in an adulterous relation with any other male. An adulterous act can be defined as a quasi- permanent association of the wife with some other male thus dissolving the  sacrament of matrimonial tie.

The Bombay High Court in the recent case of Sanjivani Ramchandra Kondalkar v. Ramchandra Bhimrao Kondalkar (2019 SCC Bom 852), held the fact the a women who has been living in adultery with another man for a sufficient period of time, and if such claim is proved correct, then it will be assumed that right of the women to claim maintenance is waived off under section 125(4) of the CrPC, 1973. The husband in such situation will not be made liable to pay the maintenance. The burden of such proof of adulterous relation is although on the husband and if such allegation is proved beyond reasonable doubt, it will lead to an immediate disqualification of the remedy.  

The judgement has upheld the true meaning of social justice and while quashing the order of maintenance it was stated that such provision is subject to the fact that the phrase “living in adultery” under clause (4) of section 125 should be for a reasonable continuous period. The period of adulterous relation of the wife should be for a considerable period of time. The Madras High Court in the case of Bilawati Pengu v. Phukan Pegu (1988 Cri.L.J.30) interpreted the phrase and mentioned that such period should be for a reasonable and long period and mere illicit relationship does not come under this phrase. The Court also mentioned that section 125(4) has negated the effect of the gross miscarriage of justice wherein there could have been a misuse of such remedy of maintenance leading to the ultimate failure of the public justice. The objective of such decision is to make sure that if the women is intentionally leading an immoral life and in addition to that she contends that she needs the maintenance for sustenance, in such situation it will be gross error if the husband is imposed with the liability of providing maintenance to the wife.

The Road Ahead: –

It is evident to believe that the remedy of maintenance has been a much needed legislation in the Indian society. Such remedy has been a pivotal support to the sustenance of the women in various situations which they undergo in daily life. However, the instance of exploitation of such remedy has made the situation worse wherein such remedy should not be enforced to upheld justice, rather in such cases, quashing such remedies has upheld the justice. Section 125(4) has therefore been an important impediment to such ill motive and misuse. The judiciary of our country through various judicial pronouncements has made the society believe that they have been vigilant enough to find out the difference between the dire need of the remedy and the exploitation of such remedy for mere economic gain. When such difference is found out with clarity, it leads to the ultimate justice of the society.

[1] Sir Din shah Fardunji Mulla, Mulla Hindu Law, 21st ed. Lexis Nexis Butterworths Wadhwa,2010

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