A plea has been moved before the Supreme Court, challenging the constitutional validity of Section 125 of CrPC, on the grounds of gender inequality.

The petition was filed by one Vivek Bhatia through Advocates M S Vishnu Shankar and Sriram Parakkat by the order of the Family Court of Dehradun, whereby he was directed to pay monthly allowance to his wife under the aforesaid provision.

The Petitioner's case is that he has been obligated to provide maintenance to his divorced wife on a presumption that since he has a healthy body and a healthy mind, he must be able to maintain his wife. Moreover, he asserts that the court failed to take note of the fact that the Petitioner was merely a high school graduate, having a diploma in aircraft maintenance and was presently unemployed. His ex-wife on the other hand, was a graduate in English, sociology and psychology and was capable of earning a living for herself but refused to work.

Assailing the aforementioned presumption inherent in Section 125 CrPC, the Petitioner has raised his plea on the following grounds:

1. That the provision violates general equality provided under Article 14 of the Constitution and it, contrary to Article 15 of the Constitution, is prima facie discriminatory on the ground of gender, without any reasonable classification:

i. Firstly, as its scope is limited to wives only and husbands cannot claim maintenance from their well-off wives.

ii. Secondly because it proceeds on a presumption that males have the ability to earn if they are healthy and able-bodied whereas a woman has the ability to earn when she has a source of sufficient income of her own, independent of their husband.

2. That initially the obligation of providing maintenance was put upon husbands because post marriage, a woman relinquished her personal property rights. However, since this rule is no longer in force, the law on maintenance must be made 'mutual and gender-neutral'.

3. That the provision, contrary to the ratio of Preeti Srivastava (Dr) v. State of M.P., (1999) 7 SCC120, does not serve the general good of all or public interest as the husbands who are in genuine need of maintenance are instead of being supported, burdened with providing maintenance to their wives, even if the wife is capable of earning a living.

4. That in Joseph Shine v. Union of India, WP (Crl) No. 194/2017, the Apex Court held that Article 15(3) of the Constitution does not apply to laws made before commencement of the Constitution. Therefore, Section 125 CrPC should not enjoy the protection of Article 15(3) in as much as it was duplicated from a pre-constitutional law, i.e., Section 488 CrPC, 1898. However, it was clarified that the petition did not seek to not allow women to be granted maintenance but rather sought equality before law and equal protection of laws.

5. That in UK, the source of Indian jurisprudence, maintenance laws under Matrimonial Causes Act, 1973 are absolutely gender neutral.

6. That in the US all States have gender neutral alimony laws and thus maintenance may be granted to either of the spouse, depending on the facts of the case.

7. That since the Constitution is a living document, as held on numerous occasions, the Constitutional Morality must be evolved with evolution of societal perception and change in societal morality. Hence, while providing maintenance was solely the husband's responsibility at one point of time, the first pillar of the basic structure of our constitution in the contemporary society is equality and thus the roles of the spouses in the marriage must be reconsidered.

Based on the aforementioned arguments, the Petitioner has prayed before the court to declare Section 125 CrPC unconstitutional or read it down in a manner that it is gender-neutral.