File photo of the Supreme Court of India

NEW DELHI: Preferring social welfare to legal technicality, the Supreme Court has held that even if a woman is disentitled to maintenance from her husband during the period of separation after deserting him, she will be entitled to it after divorce if she is unable to sustain herself.

The judiciary has resorted to Section 125 of the Criminal Procedure Code irrespective of the religion of married couples, including in the Shah Bano case by the SC in 1985, to grant alimony to women during pendency of divorce proceedings or those facing destitution after divorce.

However, sub-section (4) of Section 125 provides three circumstances when a woman is not entitled to maintenance: if she is living in adultery, refuses to live with the husband without sufficient reason or if the couple, by mutual consent, decide to live separately.

The SC faced a dilemma when Manoj Kumar, through advocate Nisha Priya Bhatia, challenged a judgment of the Himachal Pradesh HC, which had ordered him to pay an alimony of Rs 3,000 per month to Champa Devi despite the divorce being granted on ground of desertion.

Bhatia argued, and the bench appeared to accept it for most part of the proceedings, that when a woman during subsistence of marriage was not entitled to alimony under Section 125(4) of CrPC if she had wilfully deserted her husband, how could she, after divorce being granted on ground of desertion, be entitled to alimony. “Grant of alimony in such a case would be in the teeth of Section 125(4),” she said.

The bench appeared to have made up its mind when it told Champa Devi’s counsel Anil Nag, “If Section 125(4) was not there, we could have said whatever is the fault of the woman, she is entitled to maintenance to prevent destitution, especially when the state is not obliged to maintain her. But the legislation categorically says if it is adultery or desertion by free will, then she is not entitled to maintenance.”

From a hopeless position, Nag rallied to save the day for Champa Devi by citing an earlier SC judgment which had stressed on social welfare intent of the legislation to prevent destitution of divorced women. Nag said a divorced woman had an indefeasible right to get maintenance irrespective of the ground for dissolution of marriage.

The SC in its March 2000 judgment had said, “As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A 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.”

This retrieved Champa Devi from the jaws of being denied alimony. The bench upheld the Himachal HC order granting her alimony and said it would not interfere in the grant of alimony to divorced women under all circumstances, a logic that had consistently been the thread of SC rulings for last 25 years, to uphold the social welfare intent of the legislation which was to prevent destitution among divorced women.

