The Delhi High Court in Babita v. Munna Lal recently held that a mere decree under Section 9 of the Hindu Marriage Act (HMA) for restitution of conjugal rights shall not ipso facto debar the wife from her statutory right of maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

Section 125 CrPC states that if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, the Magistrate of First Class, upon proof of such neglect or refusal may direct the person to pay monthly allowance.

The said provision, under sub-section (4), however, disentitles the wife from grant of maintenance if she is living in adultery or if, without sufficient reason, she refuses to live with her Husband or if they are living separately by mutual consent.

Section 9 of the HMA, on the other hand, provides that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.  

The background facts which led the High Court to render its decision in the case are as under.

The marriage between the parties was solemnized in 1993, and a daughter and a son were born out of their wedlock. The wife, in 2009, filed a petition under Section 125 CrPC against the husband for grant of maintenance of herself and the children. Despite notice issued to the husband, he failed to appear before the trial court, after which it passed an ex parte order against him.

Parallelly in 2009, the husband filed a petition under Section 9 of the HMA before the Family Court, Hamirpur for restitution of conjugal rights. The fact of maintenance proceedings was not disclosed by the husband to the Hamirpur court. After filing a reply in the said proceedings, the wife subsequently stopped appearing. Later, by virtue of an ex-parte judgment in April 2013, the petition was decreed ex-parte in favour of the husband, and consequently, the wife was directed to join the company of the husband.  

Meanwhile, the interim maintenance application of the wife came to be allowed by the trial court and the husband was directed to pay ₹1,300 per month each to the wife and the children. An appeal by the husband was dismissed by the Sessions Court in December 2013. The husband’s appeal before the High Court was also dismissed.  

The Family Court, after closing of evidence by the wife, passed a judgment dated in February 2018, rejecting the plea of grant of maintenance under Section 125 of CrPC basis the ex-parte decree under Section 9 of the HMA passed in April 2013. The wife was thus prompted to approach the High Court in appeal.

The High Court examined the factual matrix and held that while examining the claim for maintenance against a decree for restitution of conjugal rights, courts must keep in mind:

(i) the evidence led by the wife regarding harassment and physical and/or mental abuse due to which she is unable to reside with the husband;

(ii) whether the embargo contained in Section 125(4) i.e. “without any sufficient reason refuses to live with the husband” has been adjudicated on merits or ex parte, and if so, the monetary and other relevant circumstances of the wife because of which ex parte decree for restitution came to be passed against her;

(iii) the conduct of the wife as to whether she had sufficient reasons to not stay with husband, or husband creating such circumstances that she will not be able to stay with him;

(iv) whether the husband was ready to give effect to the decree for restitution of conjugal rights or that such a decree has been obtained solely to deny the claim of the wife for maintenance under Section 125 CrPC.

After examining the purpose and ingredients of Section 125 CrPC and its interplay with Section 9 of the HMA, the Court came to the conclusion that an ex-parte decree for restitution of conjugal rights held by the husband, wherein no execution proceedings have been filed, will not be a bar to the wife’s claim for maintenance.

The Court further directed that in the proceedings under Section 125 CrPC, the trial court ought to have conducted an independent inquiry and should have appreciated evidence to determine whether the complainant had made out a case for grant of maintenance under Section 125 CrPC or not. Only thereafter could it decide as to whether on the basis of ex-parte decree of restitution of conjugal rights, the wife has disentitled herself from grant of such relief.

The view taken by the trial court that an order of a civil court granting an ex-parte decree of restitution would automatically put an end to the right of the wife to grant of maintenance under Section 125 CrPC was held to be incorrect.

Conclusion

The facts reveal how Section 9 of the HMA, which is intended to preserve the institution of marriage, is misused by the husband to deny a legitimate claim of the wife for maintenance under Section 125 CrPC. The High Court, mindful of the practical difficulties of a single mother having been made to struggle and run from one court to another by the husband to get maintenance, has upheld the sanctity of Section 125 CrPC by taking a more rational approach, within the confines of law. 

Section 9 of the HMA is one of the most debatable provisions in matrimonial law, since it is hardly ever used for its intended purpose of preserving marriage. It is mainly used by the husband as a tool to defeat the claim of the wife for maintenance or as a counter-blast to divorce and Section 498A proceedings, or simply a means for harassment.

The provision is, therefore, the subject matter of challenge before the Supreme Court in Ojaswa Pathak & Anr v. Union of India, where its relevance is being considered in light of the right to privacy under Article 21, as well as Articles 14 and 15 of the Constitution of India.

In fact, the High-Level Committee on Status of Women in India in its Report dated June 1, 2015 has recommended that the provision relating to restitution of conjugal rights in various statues - including Section 9 of the HMA, Section 22 of the Special Marriage Act and Section 32 of the Divorce Act - be deleted.       

Shashank Garg and Monisha Handa are advocates practicing before the Delhi High Court and the Supreme Court of India.