Maintenance of a person to whom an individual with sufficient needs owes a duty is more than a mere financial support, maintenance as a legal concept is the measure of social justice and an outcome of the natural duty a man owes to maintain his wife, children and parents when they are unable to maintain themselves[i]. The reason why Parliament and the State Legislature have retained and amended suitably the provision of maintenance in Code of Criminal Procedure, 1973 can be understood from duties cast upon them by Directive Principles of State Policy, which endeavours to strive for social and economic welfare in administration of our country. It is imperative to state that right to maintenance derives it’s origin from Art. 21’s right to live with dignity and has a wide impact on social-economic welfare of the society. Furthermore, when fundamental rights are read and harmoniously construed along with Directive Principles of State Policy, it makes the duty of the state enforceable, thereby making right to maintenance an implied fundamental right under Art. 21, which is actionable against in case of non-observance as state now owes a duty for maintaining socio-economic welfare in the society through maintenance.[ii]
In order to achieve this purpose, state requires both able men and women assist it by paying the due maintenance if the circumstances of a particular situation require it to do so. This short article aims to analyse whether the Section125 of Code of Criminal Procedure was solely made with an intent to cast primary duty on male members of the society to maintain their dependants or the intent was to cover both men and women within the ambit of Section 125, given the fact that women were breaking themselves away from the shackles of patriarchy and establishing themselves as an equal member of the society.
Gender-Neutrality: Equality and Egalitarian Society Concept
In order to understand as to how Section 125 has embodied the duty of state to make special provisions for women and children [Art. 15(3)] and at the same time not transgressed the principle of equality before the law, it will be imperative to briefly discuss the relationship Art. 15(3) and Art. 15(1) share together in order to get a clear view regarding the gender neutrality of Section 125 of Code of Criminal Procedure, 1973.
Art. 15(1) prohibits the state from discriminating any citizen on the basis of caste, sex, religion, race, place of birth or any of them. Art. 15(1) is violated only when the discrimination is just done solely on one of the mentioned basis of Art. 15(1). For example, in the case of Sheikh Hussein v. Sheikh Mohammad[iii], court struck down a provision of Bombay Police Act, wherein no criminal action could be taken against a person born in Greater Bombay, whereas a person born outside Greater Bombay could be externed if he is convicted of any offence. Similarly, in Rajeshwari v. State of Uttar Pradesh[iv], court struck down U.P Court of Wards Act, 1912 as it discriminated solely on the basis of ‘sex’ by allowing male proprietor to manage his property while at the same time denying female proprietor were declared incapable to manage her property, thereby not eligible for any derivable benefits from the act.
When Article 15(1) and Article 15(3) are read together, it seems that state can discriminate men against women by making ‘special provisions for women’, but it has to pass the test of reasonable classification. It is imperative to state that the courts have been quite liberal in upholding these special provisions in order to bring women out their miseries from Indian patriarchal society. However, the Supreme Court restricted its liberalism while adjudicating M.C. Sharma v. Punjab University[v], by upholding the unconstitutional validity of Punjab University Rule which bared male lecturers from getting appointed as a principal of Girl’s College, Court held that the rule is violative as there exists no intelligible differentia as to why a women principal would be able administer the school better than a male principal, the role of principal is more of an administrative task which requires personally developed skills and experience, thereby there exists no rational nexus as to why having a particular gender would render a candidate with more experience or expertise.
There is a common misconception regarding Section 125, when it comes to interpreting the section with respect to maintenance of parents, that only son is liable to maintain his parents. The renowned cases of Shah Bano Begum[vi]and Daniel Latif[vii]impliedly reinforced a common concept of a patriarchal society, wherein it is the primary duty of the male member to maintain his dependents. When this conception of viewing the maintenance is construed along with Art. 15(3), it makes exemption for women for maintaining anyone in their family. Courts in India have come across this challenge, which will be discussed in the coming section.
Case laws on maintenance: Gender-Neutrality on Maintenance of parents
V.M. Arbat V. K.R. Sawai[viii]
Appellant, Mrs. Vijaya Arbat is a medical practitioner and married daughter of the respondent. Respondent soughted for maintenance of ₹500 from appellant on monthly basis. Appellant contested that she is not obliged to maintain her father under Section 125(1)(d). Judicial Magistrate overruled her objection and held that the appellant is bound to give due maintenance to her father. Appellant made a revision application in High court. High Court reaffirmed the order of judicial magistrate. The appellant filed a SLP (Special Leave Petition) under Art. 136, the appellants emphasised on the word ‘his’ in Section 125(1)(d), which makes only 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 it’s 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”[ix].
Vasant v. Govind Rao naik[x]
Applicant filed a criminal revision petition against a maintenance order passed under Section 125 against him. He contended that maintenance order has solely to be executed by him, when he has two younger siblings, i.e. a younger sister and brother. Court was in this proceeding had one question of law, whether parents seek remedy only against one or more of their children? Court held that it would be unjust and arbitrary to leave the onus of deciding which child parents want to seek remedy from, thereby in interest of justice, equity and good conscience it would be prudent to make all three children liable for maintaining their parents, when all of them have the sufficient means of sustaining themselves and their dependents.
The essence of the abovementioned cases when understood in terms of legal perspective, there exists a primary duty of maintaining remains gender-neutral, i.e. both son and daughter owes a legal as well as moral duty to maintain their parents, as seen from the above mentioned cases and co-relating it with Indian circumstances, generally sons had the duty to maintain his parents, now the judicial interpretation has extended the ambit to both daughters and sons. The main reason behind including daughters within the ambit of maintenance was in light to changing roles of women in society, now in India there is an equal participation from both the genders.
Drawing inference from above mentioned points, it is clear that women are also in a position to maintain a dependent, then why amendment has not been made by the parliament to include husbands as person of neglected means (financially) and thereby liable to be maintained by his wife. As far as the Indian Statutory Laws goes in this regard, the only legislation which supports this claim is Section 24 of Hindu Marriage Act 1955. This leaves husbands of other minor religions such as Muslims with no remedy to claim for maintenance.
Section 125 has made laudable move for enforcement of maintenance order, yet the section is primarily sustaining itself on a moral duty which a person with sufficient means owes to his/her dependants. The aim of this article was to examine whether Section 125 was gender-neutral, it can be concluded that Section 125 is gender-neutral when it comes to maintenance of parents but is gender-biased when it comes maintenance of spouses. The impact of this gender-biasness will another challenging question of law, if the same-sex marriage is made legal in India.
Edited by Dhruval Singh
Approved & Published – Sakshi Raje
[i] W. Syngkon, Maintenance For Wives and Children: Section 125 of Code of Criminal Procedure, JBM&SSR 4, 4 (2017).
[ii] Inference drawn from Kesavananada Bharati v. State of Kerala, 4 SCC 225, (1973).
[iii] Sheikh Hussein v. Sheikh Mohammad, AIR Bom 285, (1951). Read with Bhopal Singh v. State of Rajasthan, AIR Raj 41, (1958).
[iv] Rajeshwari v. State of Uttar Pradesh, AIR All 604, (1954).
[v] M.C Sharma v. Punjab University, AIR P& H 87, (1997).
[vi] 1 SCALE 767, (1985).
[vii] 7 SCC 740, (2001).
[viii] V.M. Arbat v. K.R. Sawai, 2 SCC 218, (1997).
[ix] Ibid at 219
[x] Manu MH 167, (2016).