Can Santa Claus be dubbed Lucifer? Yes, in certain child custody battles, where, on birthdays or festivals, goodies sent to children separated from one parent, are either sent back or viewed with suspicion. This is where either parent is well to do. At the heart of such matrimonial disputes are egos and vendetta, emanating from hurt, which sadly cloud reason. But in a vast majority of cases, the estranged wife is battered and impoverished and needs the protective umbrella of the law to lead a life of dignity.
Aside of Section 498 A of the Indian Penal Code dealing with dowry harassment, the most commonly invoked provision of law in family matters is Section 125 of the Criminal Procedure Code (CrPC) which provides for maintenance of wives, children and even parents. An important ingredient is that the person against whom it is sought to be enforced must have ‘sufficient means’. The Supreme Court in Capt. Ramesh Chander Kaushal Vs Veena Kaushal had held that this was “a measure of social justice specially enacted to protect and inhibit neglect of women, children, the old and infirm, and falls within the Constitutional sweep of Article 15(3) reinforced by Article 39.” Speaking for the Bench, Justice V.R. Krishna Iyer observed that such statutes are “not petrified print but vibrant words with social functions to fulfil.” The Apex Court in Danial Latifi Vs Union of India reiterated the purpose of this provision “to prevent vagrancy”.
The legislative intent of this provision, as the Supreme Court held in Vimala Vs Veeraswamy, is “to prevent vagrancy and destitution.” Although there are personal laws involved like the Hindu Marriage Act, the Muslim Women Protection of Rights on Divorce Act, the Parsi Marriage & Divorce Act and the Indian Divorce Act for Christians, Section 125 CrPC works on a secular plank as it is, as a catena of apex court judgments have concluded, a “beneficial piece of legislation.”
Section 125 CrPC kicks in when the wife, divorced but not remarried, is unable to maintain herself or her children or even when parents are in financial dire straits. The exceptions apply if the wife leaves the matrimonial home without sufficient cause or is living in adultery or is separated by mutual consent. The Justice V.S.Malimath Committee, in its 2003 report, had recommended a wider interpretation of the term ‘wife’ to include 'live-in' partners. Before referring the matter to a larger bench, the Supreme Court in Chanmuniya Vs Virendra Kumar Singh Kushwaha tried to resolve the conflict between Section 26 of the Domestic Violence (DV) Act and Section 125 CrPC on maintenance of live-in partners, opining that “in light of the constant change in social attitudes and values” a “broad interpretation” was required.
There have been grey areas in Section 125 CrPC on maintenance where estranged wives have the capacity to earn a living if they are able bodied, educated, have work experience and do not have children of a tender age, or are not earning enough. The Madhya Pradesh High Court in Mamta Jaiswal Vs Rajesh Jaiswal had some harsh words for parties sitting idle cautioning against creating an army of indolent people. “If such army is permitted, lazy spouses would be very happy to fight and frustrate the efforts of amicable settlement because they would be reaping money in the nature of pendente lite alimony.”
In cases where the wife is working but not earning enough, the Supreme Court in Chaturbhuj Vs Sita Bai had ruled that “where the personal income of the wife is insufficient, she can claim maintenance. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband.” Courts have even ordered husbands to pay for the wife’s research studies. The number of years the couple lived together, their social status and the number and age of the children involved are factors for consideration in the computation of maintenance. Supreme Court in Nagendrappa Natikar Vs Neelamma, made it clear that although maintenance is governed by the Criminal Procedure Code, it is in the nature of a civil proceeding. It is “tentative” and “not intended to provide for a full and final determination of the status and personal rights of parties”. Relief cannot be a windfall. Or worse, a Kaun Banega Crorepati show.