Bombay HC junks plea challenging provision for maintenance to divorced woman

The Bombay High Court has dismissed a petition filed by a man challenging the provision for maintenance for a divorced woman under the Criminal Procedure Code (CrPC).

The petitioner had alleged that the provision was discriminatory as it provided for maintenance only for a divorced woman and not a man if he were to demand it.

In the order passed last week, a bench of justices Akil Kureshi and S J Kathawalla dismissed the plea filed by one Mohd Hussain Patil.

Patil, a resident of Solapur, was granted divorce and directed by a local family court in 2014 to pay a monthly maintenance of Rs 30,000 to his wife, and Rs 10,000 per month to his minor son as per the provision under section 125 of the CrPC. The maintenance order was upheld by a single bench of the Bombay High Court.

Following the single bench order, Patil filed a writ petition in the high court in 2018, challenging the very provision that provides for such maintenance.

Section 125 of the CrPC mandates that a magistrate's court can direct a man to provide maintenance to his divorced wife, his minor children, his children who have attained adulthood but are unable to earn a living owing to physical or mental disabilities, and to his dependent parents if any or all of these parties are unable to "maintain themselves".

Patil, however, argued that this provision was discriminatory and in breach of a man's constitutional right to life, and his constitutional guarantee against discrimination under Articles 14 and 15 of the Constitution, respectively.

He submitted that section 24 of the Hindu Marriage Act, 1955, gives the right to both the wife and the husband to seek maintenance without any discrimination on the ground of gender. However, section 125 of the CrPC "removes this equality and brings the angle of providing maintenance only to a wife".

Patil also urged the court to direct the state and Union authorities to formulate guidelines ensuring that courts award maintenance to a woman not merely by considering whether she is working or not, but by also taking into account her educational qualification and her capability to earn a living.

The court, however, ruled that section 125 was a "welfare provision" meant for the "protection of the needy and weaker section of the society".

The bench cited several apex court judgements to say that the provision was not discriminatory.

It further said section 125 is not meant to be a punishment for a man, but it seeks to ensure that in cases where a man is capable of providing for the categories of persons mentioned above, he does not shirk his responsibility.

It also dismissed Patil's prayer for guidelines saying that the Union or the state do not have the "power to issue guidelines to govern the judicial discretion of the competent courts while considering the cases of maintenance under the different statutory provisions".