ADULTERY – A GROUND FOR DIVORCE AND A WAY TO MAINTENANCE?

Author(s): Raman Mittal

Source: Journal of the Indian Law Institute , July-September 2004, Vol. 46, No. 3 (July-
September 2004), pp. 418-423
Published by: Indian Law Institute

Stable URL: https://www.jstor.org/stable/43951918

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418

NOTES AND COMMENTS

ADULTERY - A GROUND FOR DIVORCE AND

A WAY TO MAINTENANCE?

THE CASE, Valsarajan v. Saraswathy1 was a revision directe

the order of the family court, Kozhikode. The petitioner, V
married the respondent in April, 1987 and a child was bor
marriage was, however, dissolved in October, 1997 as the
living in adultery. An application for maintenance filed d
pendency of divorce proceedings by the respondent was dis
the ground that the wife was living in adultery and hence not e
receive maintenance by virtue of section 125 of the Criminal P
Code.2 After the dissolution of the marriage, the respondent, Sa
filed a fresh application for maintenance in the capacity
divorced woman incapable of maintaining herself as she was wi
the explanation (b) to section 125(1) Cr PC.3 The petitioner resi
application on two grounds: since the earlier similar application
the respondent was dismissed, the second application was not
maintainable; and since the respondent was living in adultery, she was
not entitled to get maintenance in view of the provisions contained in
section 125(4) of the Cr PC. The family court rejected both the objections
and allowed the application. In the present case,4 the family court's
order allowing the maintenance was challenged. Citing various Supreme
Court decisions the high court dismissed the revision petition.
As regards the first question the court5 responded, "In this case the
earlier application was on one state of facts and the second application
was based on a different state of facts. The respondent filed the first
application as the wife of the petitioner but the second application was
filed by her as his divorced wife6 . Therefore, the lower court was fully
justified in finding that the second application is maintainable".7

1. Valsarajan v. Saraswathy, 2003(2) KLT 548.

2. S. 125, Cr PC; see, infra note 10.
3. Ibid.
4. Valsarajan v. Saraswathy, supra note 1.
5. Ibid.
6. The court in Valsarajan v. Saraswathy has used the expression 'divorced
wife' at many a place whereas s. 125 Cr PC uses the expression 'divorced woman'.
7. Valsarajan v. Saraswathy, supra note 1 at 549, para 3.

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2004] NOTES AND COMMENTS 4 1 9

In order to buttress its arguments th

Supreme Court decision in Rohtash Sin
where it has been held:9

[A] woman has two distinct rights fo

she is entitled to maintenance unless
disabilities indicated in section 125
namely, as a divorced woman, she
maintenance from the person of wh
woman after divorce becomes a destitute. If she cannot maintain
herself or remains unmarried, the man who was, once, her
husband continues to be under a statutory duty and obligation to
provide maintenance to her.
The material question of law that arises here is whether a woman
has two distinct rights of maintenance under section 125 Cr PC: one as
a wife and the other as a divorced woman. The relevant part of section
125 Cr PC is reproduced below:10
125. Order for maintenance of wives, children and parents-
(1) If any person having sufficient means neglects or refuses to
maintain-

(a) his wife, unable to maintain 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 ....

Explanation- For the purposes of this Chapter -

(b) "wife" includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.

(4) No wife shall be entitled to receive an allowance 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.

8. Rohtash Singh v. Smt. Ramendri and others, JT 2000 (2) SC 553.

9. Id. at 557-8, para 1 1 .
10. S. 125, Cr PC.

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420 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 46 : 3

(5) On proof that any wife in whose favour an order ha

made under this section is living in adultery, or that w
sufficient reason she refuses to live with her husband, or
they are living separately by mutual consent, the Magi
shall cancel the order.

Section 125 talks only about the right of a wife to receive

maintenance at one place in one go. Further, explanation (b) to section
125(1) widens the ambit of the expression 'wife' so as to include a
'divorced woman'. But the section nowhere talks about the rights of a
divorced woman separately. So the understanding of the courts11 that 'a
woman has two distinct rights of maintenance under section 125 Cr PC:
one as a 'wife' and the other as a 'divorced wife' is an instance of
erroneous interpretation of the statute. In other words, the rights
'divorced woman' are subsumed in the rights of a 'wife'. 'Wif
bigger circle and 'divorced woman' is a smaller circle within that b
circle. 'Divorced woman' is a sub-set of a wider expression called 'w
Logically, the smaller circle or the sub-set can never break through
go beyond the bigger circle. The part cannot be bigger than the w
So, the rights which are not available to the 'wife' can never be
available to the 'divorced woman'. Making a right available to a 'div
woman' which was not available to her as 'wife' is an error in lo
well as law and the following chart demonstrates it.

r available

0 r available Held: Right to maintenance not

J

Right to maintenance made available

/wiFE/'
f Divorced ' Held: Right to maintenance
l ļ woman j available???

1 1. Rohtash Singh v. Smt. Ramendri and others , supra note 8 at 557-8, para 1 1;
Valsarajan v. Saraswathy, supra note 1 at 549, para 3.

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2004] NOTES AND COMMENTS 42 1

Can there be an enhancement i

and above those which were availa
of marriage? Surveying the entire
the vast Hindu and Muslim juris
worth the name that emanates or accrues to a divorced woman which
was not available to her during the subsistence to marriage. In fact, the
institution of marriage entails various rights on the wife and
corresponding obligations on the husband and the rights get diminished,
curtailed and truncated to a great extent upon divorce. Logically, the
rights of a divorced woman is a sub-set of rights of a wife.
The finding of the court12 that a woman has two distinct rights of
maintenance, one as a 'wife' and another as a 'divorced wife' will
amount to accrual of fresh rights to a divorced woman, which is bad in
family jurisprudence.
Another issue that involved the consideration of the court13 was
whether the respondent was disentitled to get maintenance in view of
the provisions contained in section 125(4) of the Cr PC? As per section
125(4) no wife shall be entitled to receive an allowance from her husband
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.14 The court examined the conduct of the divorced woman and
stated, "A divorced wife can never live in adultery".15 In this context it
is worthwhile considering the argument put forward by another scholar:16
Clearly adultery is a matrimonial offence and so it cannot be
committed by «a woman who is not a wife. Likewise it could be
argued that the term 'wife' cannot, in ordinary parlance, include
a divorced woman. But the legislature has chosen to achieve its
aim by enacting an inclusive definition for the term 'wife' which
comprehends even a divorced woman. If so, consequently, it
could be argued, that the term 'adultery' should also take its
meaning from the context. It could include promiscuity as well
for the purpose of Section 125(4) and 125(5).
The court referred to a Supreme Court decision in a similar situation
in Vanamala v. Ranganatha Bhatta 17 where a petition for maintenance'
filed by a divorced wife under section 125(4) was resisted on the ground

12. Valsarajan v. Saraswathy, supra note 1 at 549, para 3. See also, Rohtash
Singh v. Smt. Ramendri and others , supra note 8.
13. Ibid.
14. S. 125(4), Cr PC, see, supra note 10.
15. Valsarajan v. Saraswathy, supra note 1 at 550, para 4.
16. K.N. Chandrasekharan Pillai, "Maintenance to a Divorced Wife under section
125 Criminal Procedure Code, 1973" 2 Ac LR (1978) 347 at 353.
17. Vanamala v. Ranganatha Bhatta , 1995 (2) KLT 397.

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422 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 46 : 3

that the divorce was by mutual consent and, therefor

woman was not entitled to get maintenance. The Supreme
On a plain reading of section 125(4) it is clear that the e
'wife' in the sub-section does not have the extended m
including a woman who has been divorced. This is f
obvious reason that unless there is a relationship of
and wife there can be no question of a divorced wom
in adultery or without sufficient reason refusing to liv
husband?... In this context, therefore, sub section (4) o
does not apply to the case of a woman who has bee
or who has obtained a decree for divorce.

Here also the court has tried to examine the conduct of the wife
subsequent to divorce. The offence of adultery is defined in relation to
the husband. If the petitioner is legally declared to be not her husband,
she also ceases to be wife de-hors the explanation enabling to embracing
her within the fold of the larger category of 'wife'. Just as a woman
falling in this category cannot be expected to live with the erstwhile
husband, she cannot be expected to be faithful to the erstwhile husband.
Is it not more appropriate to say that the category of divorced woman
would not be wife despite the explanation if she lives in adultery or
deserts the husband as these acts could be done only by a 'wife' who,
generally, would uphold the sanctity of marriage and discharge the
obligations of partner in life?
It seems that the Supreme Court's answer is in the affirmative - if
so, it becomes obligatory on its part to explain as to how does it restrict
the explanation to a part of the section though explanation (b) to section
125(1) declares it to be applicable to the whole chapter 19 .
The paradise of maintenance, once lost during subsistence of
marriage, cannot be regained upon divorce. The errors of interpretation
by many a court20 have created terrors in the minds of harassed
husbands21 .
In the case of Rohtash Singh v. Smt. Ramendri and others 22 the
Supreme Court cited another of its decisions in the matter of Captain

1 8. Id. at 399, para 3.

19. Explanation (b) to s. 125(1) states:
For the purposes of this Chapter , - "wife" includes a woman who has been
divorced by, or has obtained a divorce from, her husband and has not remarried.
See, supra note 1 0.
20. Valsarajan v. Saraswathy, supra note 1; Rohtash Singh v. Smt. Ramendri
and others , supra note 8; Vanamala v. Ranganatha Bhatta , supra note 17.
21. The expression 'harassed husbands' is borrowed from Prof. Kusum's book
bearing the same title.
22. Rohtash Singh v. Smt. Ramendri and others, supra note 8 at 557, para 9.

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 2004] NOTES AND COMMENTS 423

Ramesh Chancier Kaushal v. Mrs.

had been held:

This provision is a measure of social justice and specially enacted

to protect women and children and falls within the constitutional
sweep of Article 15(3) reinforced by Article 39. We have no
doubt that sections of statues calling for construction by courts
are not petrified print but vibrant words with social functions to
fulfil. The brooding presence of the constitutional empathy for
the weaker section like women and children must inform
interpretation if it has to have social relevance. So viewed, it is
possible to be selective in picking out that interpretation out of
two alternatives which advances the cause - the cause of the
derelicts.

'Gender sensitivity' which is an essential ingredient of the training

of lawyers and social scientists can sometimes be counter productive
and turn into 'gender bias' and surely it continues to shadow the vision
of the courts in India.
One should examine the impact of the decisions of this ilk. If a
recalcitrant wife who was divorced on the ground of her infidelity wants
to take revenge upon the erstwhile husband, she can continue to live in
adultery with her paramour under the nose of the former husband and
compel him to maintain her even if saddled with the burden of
maintaining his second wife and children. Could we attribute such an
intention to the legislature?
The main plank of maintenance is avoidance of destitution. If the
woman was unfaithful, she cannot be called a wife as she breaks the
very basis of marriage. Also she cannot be a 'legally wedded wife' - the
category insisted upon by courts to determine eligibility for
maintenance.24
All said and done it is high time that such decisions are set aside at
the earliest.

Raman Mittal*

23. Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others , AIR
1978 SC 1807.
24. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another , ( I ^öö)
1 SCC 530.
* Assistant Research Professor, Indian Law Institute, New Delhi.

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