PROJECT ON

CODE OF CRIMINAL PROCEDURE

“MAINTENANCE OF WIFE: WHETHER SECTION 125

NEEDS TO BE GENDER NEUTRAL”

Submitted To: - Prof. Abhiraj Das

Submitted By: - Nancy VijayKumar Sharma

Date of Submission: - 16/Oct/2023

ID NO.: -80
LL.B 3rd Year – 2023-2024

KLE COLLEGE OF LAW,

NAVI MUMBAI
 ACKNOWLEDGEMENT

The success and final outcome of research paper required a lot of guidance and assistance
from many people and I’m extremely fortunate to have got this along the completion of the
research project. Whatever I have done is only due to such guidance and assistance and I
would not forget to thank them I respect and thank Principal DINKAR GITTE, and
Professor ABHIRAJ DAS for giving me this opportunity to do this research work and
providing me all support and guidance which made me complete the research work on time.

I am extremely grateful to her for providing such a nice support and guidance for converting
my thoughts into reality and for encouragement to prepare the project of CODE OF
CRIMINAL PROCEDURE. The research to enhance my ability in the field of law. I am
grateful because I managed to complete this assignment within the given time. This
assignment would not have completed without effort and cooperation from my teachers hence
once again, I would like to express my gratitude to them.
 Abstract
The concept of maintenance, typically understood as financial support provided by one
spouse to another, has historically been associated with providing support to wives. However,
the call for making maintenance laws gender-neutral, applicable to both husbands and wives,
has gained traction. This abstract explores the rationale and implications of introducing
gender-neutral maintenance laws:
Historical Perspective:
Maintenance laws have traditionally focused on providing financial support from husbands to
wives, rooted in historical norms where wives were often economically dependent on their
husbands.
Rationale for Gender Neutrality:
Gender Equality: Advocates argue that gender-neutral maintenance laws promote gender
equality by recognizing that both husbands and wives may face circumstances where they
require financial support from their spouses.
Changing Roles: As societal roles evolve, more women are entering the workforce and
becoming financially independent, while some men may become financially dependent on
their spouses. Gender-neutral laws adapt to these changing dynamics.
Legal Reforms and Interpretations: Some legal systems have attempted to interpret
existing laws in a gender-neutral manner, allowing husbands to claim maintenance when they
meet certain criteria. However, this approach lacks consistency and may benefit from clear
legislative amendments.
Legislative Process: Implementing gender-neutral maintenance laws requires legislative
changes to explicitly include both husbands and wives as potential recipients of maintenance.

Impact on Society: The introduction of gender-neutral maintenance laws reflects broader

societal shifts toward recognizing diverse family structures and financial dependencies. It
prompts discussions about legal systems' responsiveness to changing social norms.
In summary, the movement toward gender-neutral maintenance laws challenges traditional
notions of financial support within marriages. Advocates argue that such laws uphold
principles of equality and adapt to evolving societal dynamics, while opponents may raise
concerns about potential complexities and unintended consequences. The decision to enact
gender-neutral maintenance laws depends on legal, cultural, and social considerations within
each jurisdiction.
 Introduction
The concept of maintenance in family law has long been intertwined with the financial
support provided by one spouse to the other, typically from husband to wife. This traditional
framework reflects historical norms where wives were often economically dependent on their
husbands. However, contemporary society is marked by changing gender roles, increased
female workforce participation, and evolving family structures, all of which challenge the
assumption that maintenance laws should exclusively benefit wives.

In response to these shifting dynamics, there has been a growing call for the introduction of
gender-neutral maintenance laws. Such laws would recognize that both husbands and wives
may find themselves in circumstances where they require financial support from their
spouses, regardless of their gender. This shift towards gender neutrality in maintenance laws
reflects broader principles of equality, non-discrimination, and the need for legal systems to
adapt to changing social realities.

This exploration delves into the rationale behind advocating for gender-neutral maintenance
laws, examines the legal reforms required for their implementation, and considers the
potential impact of such changes on society. It recognizes that the question of whether
maintenance laws should be gender-neutral is not only a legal issue but also a reflection of
the evolving dynamics of contemporary relationships and family structures. As societies
strive for greater gender equality and recognition of diverse family units, the debate
surrounding gender-neutral maintenance laws becomes increasingly relevant and complex.

Analysis of Maintenance Laws

Maintenance under Hindu Marriage Act, 19551
It deals with only maintenance of spouse either male or female.
Section 24 of Hindu Marriage Act, 1955 2 states that either husband or wife may claim
maintenance pendent lite i.e. maintenance till the proceedings is in process. If a husband or
wife does not have the income to support the necessary expenses of the proceeding in court,
the court can order the respondent to pay to the petitioner the expenses of the proceedings,
the amount would be reasonable depending on the income of the petitioner and respondent.

1
Maintenance under Hindu Marriage Act, 1955
2
Section 24 of Hindu Marriage Act, 1955.
Further, section 25 of the Act states the grounds for permanent alimony. It is ordered by the
court at the time of passing of the decree or at any time subsequent that the respondent shall
pay to the applicant for his/her maintenance and support. A gross sum or a sum
monthly/periodically not exceeding the life of the applicant.
The sum would be decided to keep in mind the income and property of respondent and
petitioner. The order can further be or rescinded if the party in whose favor the order is
passed
Gets remarried or has sexual intercourse out of wedlock

Maintenance under Hindu Adoption and Maintenance Act, 1956 (HAMA)3

It deals with the maintenance of persons including:
 Wife (sec 18),4
 Widowed daughter in law (sec 19),
 Children and aged parents (sec 20), or
 Dependents as defined (sec 21).

Also HAMA, 1956 does not include the maintenance of males but only females.
Under section 18 of HAMA, the wife is entitled to get maintenance from her husband. In
some cases the wife is entitled to get maintenance even if she doesn’t live with her husband
and her separate living is justified by any of the above circumstances that occur because of
the husband i.e. Desertion, Cruelty, Any other living wife of the husband, Concubine in the
same house or husband habitually resides with a concubine elsewhere, Conversion, or due to
any other cause. The wife would be ineligible for maintenance under this section if she is
unchaste, or converts her religion from Hinduism.
Thus, under CrPC also maintenance is only provided to females and doesn’t include males.

3
Maintenance under Hindu Adoption and Maintenance Act, 1956 (HAMA)
4
Wife (sec 18),
Widowed daughter in law (sec 19),
Children and aged parents (sec 20), or
Dependents as defined (sec 21)
Judicial Analysis
V.M. Arbat v. K.R. Sawai5
In this case, the appellant, Mrs. Vijaya Arbat is a medical practitioner and married daughter
of the respondent. Respondent sought maintenance of ₹500 from the appellant on monthly
basis. Appellant contested that she is not obliged to maintain her father under Section 125(1)
(d) of CrPC. The Judicial Magistrate overruled her objection in this case and held that the
appellant is bound to give due maintenance to her father. Then the appellant made a revision
application in the High court. High Court reaffirmed the order of the judicial magistrate.
After which the appellant filed a Special Leave Petition under Art. 136, the appellants
emphasized the word his in Section 125(1) (d), which makes the only the son liable to
maintain his parents.

The Supreme Court rejected this contention by instating that the word his, which is not
defined in Cr. P.C but derives its meaning from 8 of Indian Penal Code and Section 13(1) of
General Clauses Act, which includes female gender within the male gender. The Supreme
Court furthermore held that it is the moral obligation of a son or a daughter to maintain his or
her parents. The Indian society casts a duty on the children of a person to maintain their
parents if they are not in a position to maintain themselves. It is also their duty to look after
their parents when they become old and infirm.

Vivek Bhatia v. Smt. Anju Bhatia, 20176

The petitioner, Vivek Bhatia, is a former Jet Airways employee. The petitioner and the
respondent got married in 2011, and had a child out of the wedlock. In 2013, the petitioner
filed for divorce on the ground of mental and physical cruelty, and had sought custody of the
child. A divorce decree was passed by a Family Court in Dehradun in 2015. However, the
Court refused to grant the petitioner custody of the child. Both husband and wife then filed
appeals against this order. While the petitioner husband prayed for custody of his minor son,
the respondent wife sought restitution of conjugal rights.

The wife had also filed a petition for maintenance under Section 24 of the Hindu Marriage
Act before the Uttarakhand High Court. In September 2017, the wife approached the Family

5
V.M. Arbat v. K.R. Sawai
6
Vivek Bhatia v. Smt. Anju Bhatia, 2017
Court seeking maintenance under Section 125 CrPC. The judge ordered the petitioner to pay
a sum of Rs 7,000 per month to the respondent, and Rs 8,000 per month for the maintenance
of the minor son. The petitioner challenged the appeal in the The High Court, and it directed
the petitioner to pay a sum of Rs. 30,000 per month to the respondent pending the disposal of
the appeals against the Family Court order.

This chain of events prompted the petitioner to approach the Supreme Court to challenge the
vires of Section 125 CrPC. The petitioner, who lost his job after the closure of Jet Airways,
has approached the Supreme Court against an order to pay maintenance to his more qualified
ex-wife, saying the role of spouses must be re-looked in contemporary society. He challenged
the validity of Section 125 of the Criminal Procedure Code, saying it should be declared
unconstitutional as it was gender-biased and violated the right to equality and non-
discrimination.

He argued that the provision has put additional burden on him, even though he was fighting
for his own sustenance. Providing maintenance might be the role of husband at one point of
time, but in the contemporary society where equality is considered the first pillar of the basic
structure of our Constitution, the role of spouses in the marriage (both during its subsistence
and afterwards) need to be re-looked and reconsidered, he contended.

The petitioner, who stays in Mumbai, contended he was just a high school graduate with a
diploma in aircraft maintenance and was currently unemployed due to shut down of Jet
Airways. But he has been ordered to pay excessive maintenance of Rs 30,000 per month to
the divorced wife, who herself was a graduate and could make her own respectful living. She
has refused to work and wanted to harass him by misusing the gender-based provision of
Section 125 of the CrPC, his plea stated.

There is a prima facie discrimination on the basis of gender without any reasonable
classification under Section 125 of the CrPC, specifically with regard to the presumption that
a husband, father, or son is considered to have the ability to earn and maintain his dependents
if he is healthy and able-bodied, he pointed out. While a mother or a daughter is only liable to
maintain if she has a separate income of her own independent of her husband's income. Such
unreasonable classification in today’s contemporary society is prima facie violate of Articles
14 and 15 of the constitution.
Our Judiciary has taken a direction towards gender justice and gender neutrality through its
Judicial Activism; therefore, it is necessary that gender justice is done for not only one but
both the genders equivocally and without any prejudice and bias. Hence, providing
maintenance might be the role of only the husband at one point of time, thus, it has been
prayed that Section 125 CrPC be struck down as unconstitutional for being violate of Article
14. Alternatively, a prayer has been made to read down Section 125 so that it does not
discriminate between a man and a woman.

Case laws
Section 125 of the Code of Criminal Procedure (CrPC) 7 in India was not gender-neutral, and
it primarily focused on providing maintenance to wives. However, there have been several
legal cases and judgments in Indian courts that have discussed and interpreted the scope of
Section 125 in ways that could have implications for its gender-neutrality. Here are a few
notable cases:

Savitaben Somabhai Bhatiya v. State of Gujarat (2005):8

In this case, the Supreme Court of India held that Section 125 is gender-neutral in nature. The
court ruled that an adult son, whether married or unmarried, can claim maintenance from his
father under Section 125 of CrPC if he is unable to maintain himself despite having the
means to do so.

Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2003):9

In this case, the Bombay High Court held that the term "wife" in Section 125 should be
interpreted broadly to include even a divorced wife who is otherwise eligible for
maintenance. The court emphasized the need for a liberal interpretation of the provision to
ensure that women, including divorced wives, are not left without support.

Chanmuniya v. Virendra Kumar Singh Kushwaha (2011):10

In this case, the Supreme Court of India reaffirmed the gender-neutral interpretation of
Section 125. The court held that a woman living in a relationship in the nature of marriage is
7
Section 125 of CRPC
8
Savitaben Somabhai Bhatiya v. State of Gujarat (2005)
9
Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2003)
10
Chanmuniya v. Virendra Kumar Singh Kushwaha (2011)
entitled to claim maintenance under Section 125 if she fulfills the conditions laid down in the
provision, regardless of her marital status.

Rajesh Burman v. Mitul Burman (2017):11

In this case, the Calcutta High Court ruled that a husband could also claim maintenance from
his wife under Section 125 if he can prove that he is unable to maintain himself despite
having no source of income.
These cases illustrate that Indian courts have, on various occasions, interpreted Section 125 in
ways that expand its scope beyond its initial intent and provide maintenance to parties
regardless of gender. However, it's important to note that while such interpretations exist, the
law itself has not been amended to explicitly make Section 125 gender-neutral. Therefore,
these cases represent specific judicial interpretations and may not be universally applied in all
situations.

Legal interpretations and judgments can evolve, so it's advisable to consult legal experts and
stay updated on the latest developments in Indian family law, especially regarding Section
125 and its gender-neutral application.

Conclusion
11
Rajesh Burman v. Mitul Burman (2017)
The question of whether Section 125 of the Code of Criminal Procedure (CrPC) and similar
maintenance laws need to be made gender-neutral is a complex and multifaceted issue. While
these laws were historically designed to provide financial support to wives, contemporary
society has seen significant changes in gender roles, economic independence, and family
structures.

Advocates for gender-neutral maintenance laws argue that such changes warrant a shift in
legal frameworks to ensure equality and non-discrimination. They contend that both husbands
and wives may face circumstances where they require financial support from their spouses,
and the law should reflect this reality.

However, implementing gender-neutral maintenance laws is not without challenges. It

requires careful legislative amendments to explicitly include husbands as eligible recipients
of maintenance. Moreover, concerns have been raised about potential complexities,
enforcement difficulties, and the potential for misuse or abuse of such laws.

The debate surrounding gender-neutral maintenance laws also extends beyond legal
considerations. It touches upon broader societal shifts in gender dynamics and family
structures. As societies strive for greater gender equality and recognition of diverse family
units, the question of whether these laws should be gender-neutral remains a subject of
ongoing discussion and reform.

Ultimately, the decision to make maintenance laws gender-neutral or maintain their gender-
specific nature may vary from one jurisdiction to another, influenced by cultural, social, and
legal factors. Regardless of the outcome, it is important that any legal framework in this
regard evolves in response to the changing realities of contemporary life while safeguarding
the rights and interests of all individuals involved in maintenance disputes. Legal reforms, if
pursued, should be guided by a balance between gender equality and the practicalities of
implementation within a specific legal and societal context.