The Supreme Court on Friday refused to reconsider its earlier view that a husband, who divorced his wife on the ground of desertion, would still be liable to maintain her, after divorce. This view, and reiteration thereof, has amused me and in this piece, I intend to explain reasons for my amusement.
Interpreting Section 125(4) of the Code of Criminal Procedure which bars a wife who deserts a husband from claiming maintenance and the deeming fiction of 'wife to include divorced wife', the Court, in Dr. Swapan Kumar Banerjee vs. State of West Bengal, held that the deeming fiction would only apply to Section 125 and not to the sub-section. But what it refused (or failed) to consider is the legislative intent of making applicable the deeming fiction apply to whole of the chapter, and not just to the particular section or sub-section. Explanation to Section 125 reads as follows:
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.
For a moment, let's apply the deeming fiction to Sub-Section 4. It will read like this:
No (divorced) wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, 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.
But according to the Supreme Court, such a reading is illogical. It says that the deeming fiction of the divorced wife being treated as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the ex-husband.
What is the logic of Section 125(4) anyhow? It is unambiguously clear from the provision that a deserting wife cannot claim maintenance. But the judicial interpretation has made it possible for such a woman to claim maintenance from the moment a husband obtains divorce from her due to her own fault. Application of deeming fiction to sub section 4 and literal reading may not be logical. But if its non application would result in a more illogical and absurd situation, can it be countenanced?
Recently, the Kerala High Court interpreted Section 125(4) and held that a husband may be still liable to maintain a wife who he divorced on the ground of adultery. The court held so taking note of the please 'living in adultery' used in Section 125(4). It noted that, in order to obtain a divorce u/s 13(1)(i) of the Hindu Marriage Act, even a single instance of voluntary sexual intercourse with another person is enough, whereas u/s 125(4), to deny the maintenance, the words used are "living in adultery". Though one may disagree with the logic, it is evident that this view of the High Court finds some reflection in legislative intent. Legislative intent is discernible from difference is phraseology vis-à-vis adultery, used in provision for divorce and maintenance.
As per Section 13 of the Hindu Marriage Act, divorce can be granted on the ground that a spouse deserted the petitioner (seeking divorce) for a continuous period of not less than two years immediately preceding the presentation of the petition. Explanation to the provision makes it clear that such desertion shall be without reasonable cause. So to assume that there might be a reasonable cause for desertion by wife (in a petition she filed seeking maintenance) is misplaced. If the wife is aggrieved with such a finding by Family Court, she should agitate it in appeal. But to hold that a wife who deserts and forces a husband to obtain a divorce on that ground, is entitled to maintenance, is neither the intention of the legislature, nor in the interest of justice, equity or logic.
The three judge bench in Manoj Kumar Vs. Champa Devi, had simply endorsed the view adopted in two judge bench judgments in Vanamala Vs. H.M. Ranganatha Bhatta and Rohtash Singh Vs. Ramendri without assigning any reasons. In my humble view, the bench should have referred the matter to larger bench for reconsideration, especially when it noticed that a three judge bench affirmed division bench view without assigning any reasons.
Scenario 1: A wife applies for maintenance. Husband takes a plea that she is refusing to live with her and proves it with evidence. Her application will be dismissed, as the statute bars her from claiming maintenance.
Scenario 2: After some years, husband obtains a divorce decree on the ground of desertion. The divorced wife applies for maintenance. Her application will have to be entertained, given this dictum laid down in the Supreme Court judgment.
How does a wife, just because of her change in marital status ('married' to 'divorced') become entitled to two opposite results in judicial adjudication on the same issue. Is this arbitrariness not enough to invite the rigour of Article 14 of the Constitution of India?
(Views are personal)