Report No. 132
3.8. Deleting onerous and embarrassing fetters imposed on the wife in order to entitle her to receive and continue to receive maintenance.-
For the purposes of comprehending the issue involved in this part of the discussion, it is necessary to take a glance at sub-sections (4) and (5) of section 125(1) which provides:
"(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
The limitation imposed by the aforesaid provisions on her right to receive and to continue to receive maintenance, particularly in the context of the rider that she should not be entitled to such allowance "if she is living in adultery" works in an oppressive manner in so far as the wife is concerned. A wife can be embarrassed to no end by cross-examination being directed on this aspect. Questions loaded with insinuations and embarrassing questions regarding the associations and movements of the wife may be posed regardless of whether or not there is substance in the insinuations. Such course may be adopted with a view to intimidate the wife and make her abandon the proceedings or submit to an unjust settlement.
The wife would find herself under great pressure in view of her anxiety to save herself from such predicament and result me embarrassment in open court out of fear of social stigma. Even if a wife is living in adultery in the sense in which the expression has been interpreted by the expression has been interpreted by the courts1 guilty not only of a mere lapse from morality but of being engaged in a persistent adulterous relationship), it could be scarcely possible to establish it in a court of law by leading satisfactory evidence. It would not suffice to establish that the wife is seen moving about in the company of a person with whom she is alleged to have a liaison.
Nor would it suffice to adduce evidence about the frequency of their meeting or the extent of their familiarity. Much more would have to be established in order to succeed in establishing such a serious allegation which it is very easy to make and very difficult to prove, even if true. Under the circumstances, no purpose, other than of causing embarrassment to the wife and demoralising her, is served by retaining this part of the provision.
It is not necessary for the present purpose to consider whether the sexual loyalty or fidelity to the husband who on the one hand refuses or neglects the wife and on the other is free to lead a promiscuous life on his own can justly be taken into account for enforcing an obligation to maintain the wife arising out of the matrimonial bond and recognised by the law. The Commission, therefore, is of the view that the aforesaid two sub-sections of section 125 deserve to be amended by deleting the phrase "if she is living in adultery" occurring in the aforesaid two sub-sections.
1. Shravan Kanwar v. Anjanbai, 1985 Cr LJ 1213 (Bom); S.S. Manicham v. Asputha, 1980 Cr LJ 354 (Mad); Kasturi v. Ramaswamy, 1979 Cr LJ 741 (Mad); Vimla Devi v. Session Judge & Others, 1981 Cr LJ NOC 89 (All).
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