India: Section 25(2) Of The Hindu Marriage Act, 1955: A Perennial Harvest

Marriages are said to be made in heaven, nuptials are believed to be pre-determined by destiny, However, man has ensured that the course of this, what some may call, romantic fiction, is fettered with a string of legislations irrespective of the nature of the religion of the parties. These legislations govern all arenas of the idea and concept of marriage, commencing from the initiation of the marriage to the ill-fated, breakdown of marriage and all situations arising in between and that could possibly arise after.

The present article attempts to dissect one such legislation that is placed on the statute book to deal with marriages inter se Hindus, the Hindu Marriage Act, 1955. The scope of the present article restricts itself to a provision of the said Act that upon first blush may seem enabling and well thought out by the Legislature in its quintessential "wisdom". However, a second, profound analysis gives way to an ambiguity that may require examination afresh or raise a few questions. Section 25 of Hindu Marriage Act, 1955 deals with permanent alimony and maintenance, the contours of the said section are widely drafted, perhaps a bit too wide for comfort, as this article will attempt to demonstrate.

The scope of Section 25 sub-section 1 envisages that any court exercising jurisdiction under the said Act may, at the time of passing any decree or at any time subsequent thereto, on the basis of an application made to the Court in question for the purpose by either the wife or the husband, as the case may be, order that the non-applicant shall pay to the applicant for her or his maintenance and support, such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the non-applicant's own income and other property, if any, the income and other property of the applicant, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the non-applicant. Let us endeavor to break down the words and intentions of the said provision for a holistic understanding before we proceed to discuss Prima Donna of this paper i.e. Section 25 sub-section 2 of the Hindu Marriage Act, 1955. Section 25 sub-section 1 deals with the idea of maintenance to the applicant party which the Court, in its wisdom may deem just and accordingly determine. Thus, upon an appropriate application being filed and heard in extenso, an order may be passed awarding the applicant such gross sum or such monthly or periodical sum that the Court may deem just and expedient, the story thus far appears to be free of any ambiguous wrinkles. The difficulty is not too distant though, the wording of Section 25 sub-section 2 which immediately follows sub-section 1 without being qualified by a proviso states that if the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

The said sub-section is plagued by ambiguity galore, our initial concern finds its genesis in the fact that the said provision seems to agreeably do away with "finality" of a judicial order. This finality is however aside from the power of judicial review and appellate powers of a superior court. One is reminded of the decision of the High Court of Australia in Rola Co. (Australia) Pty. Ltd v. Commonwealth wherein the High Court held that what distinguishes judicial tribunals from administrative tribunals is the pivotal fact that the judgments and decrees of judicial tribunals are final and conclusive in nature. Judicial decisions in some manner or the other envisage that the Court that gives a ruling then becomes functus officio and the ruling itself becomes conclusive apart from the limited arenas of review and appeal that a particular case may be amenable to. The doctrine of res judiciata also appears to be strongly diluted in the face of the wordings of sub-section 2 of section 25 of the Act. The legislative intent of sub-section 2 of section 25 of the Act doesn't appear to be clear from a perusal of the provision. The provision makes room for an unlimited string of future litigations between the same parties inter se whom an order under sub-section 1 has been passed by a Court. Sub-section 2 of section 25 of the Act provides for an unfettered and untrammeled discretion in the Court to vary, modify and rescind an order made under sub-section 1. In order to attempt to decipher the intention of the legislature at the time of enactment of the said provision, it is imperative to shed some light on the concept of maintenance in Hindu Law and its codification in the Act.

Maintenance under Hindu Law

The types of maintenance under Hindu laws are as follows:

1. Interim Maintenance:

Interim maintenance is awarded by the court if the party has no substantial means of income to maintain oneself. There are no laws that lay down the amount of this type of maintenance and it is completely upon the discretion of the court to determine how much maintenance is sufficient of the applicant to sustain during the proceedings.

Section 24 of the Hindu Marriage Act, 1955 lays down that both the husband and wife can file an application for interim maintenance.

2. Permanent Maintenance:

Permanent maintenance is paid by one party to the other in case of divorce, and the amount is determined through a maintenance petition filed before the competent Court. Section 25 of the Act states that the court can order the non-applicant to pay maintenance to the applicant in form of a lump sum or monthly amount for his or her lifetime. However, a party may not be eligible for maintenance if there are any changes in their circumstances.

Thus interim maintenance is awarded by a Court during the life span of the litigation proceedings, what Section 25 of the Act envisages is "permanent" alimony and maintenance which is awarded at the time of passing of a decree of divorce or at any time subsequent thereto. The fact that wordings of sub -section (2) of Section 25 of the Act allow for any party, on its own whims and fancies to seek variation or modification of an order passed under sub- section (1) denude such an order of any permanence whatsoever. This argument is strengthened by the Ninety Eighth Report of the Law Commission which clearly stipulates that Section 24 of the Act is confined to "interim maintenance" whereas Section 25 is confined to "permanent maintenance". Given that the legislature has qualified the introduction of this section with the word permanent and has been mindful in dealing with "interim maintenance" under Section 24 of the Act clearly goes to show that such an ambiguous interplay of sub-sections (1) and (2) of Section 25 was not intended. The legislature was surely conscious of the fact that such an innocuous situation was not warranted.

The lack of finality that the said Section accords apart, proponents of Section 25 sub-section 2 would argue that the legislature has provided for a mechanism for a party to approach the Courts of Law in cases where a change in the circumstances of either party at any time after it has made an order under sub-section (1). By way of example an argument may be taken that an amount was decided by a Court in favour of the wife, who also had a child of six years of age when the order under sub-section 1 of Section 25 of the Act was passed. The said order kept in mind the income and property of the husband at the time, assuming that over the course of the next decade, the husband amasses substantial wealth and properties and the wife moves the Court for a variation of the initial order for enhancement of the amount so granted or the wife moves the Court for a variation of the initial order citing high educational or medical expenses of the child. This, prima facie, appears to be a fair and just scenario, where, it could be argued that the legislature has contemplated and made appropriate provisions for a bona fide exigency as such. Our main concern and argument, despite keeping in mind the bona fide example discussed above is that the fact that the said provision allows for a bona fide exigency to be met, it also, in the same breath opens up an equally strong channel for the harassment and misuse against a party besides the threat of being involved in constant litigation. This channel is untrammeled and unfettered, so as to say, that even after the passing of a just, fair and appropriate order under sub section 1, the threat of challenge to that order is not done away with. In fact, the wordings of the sub section 2 not only arms a party with "a" challenge but arms a party with an unlimited number of challenges seeking variation and modification of an order each time they may feel that the circumstances have changed. The Courts, of course, are seized of the power, to determine the justness of the change in circumstances and the variation/modification sought for, but the said determination will include judicial scrutiny and will be the outcome of a litigative endeavor, thus ensuring that a party is armed with the power to take the other to Court on any number of occasions and increasing the cost of litigation in equal folds. The untrammeled nature of sub section 2 encourages litigation that may severely fall foul of being characterized as "bona fide" and could often be used as a tool to harass and arm twist the other party. We are not dismissing a bona fide eventuality, but the legislative provisions should be watertight enough to eliminate frivolous revisits to an order passed under sub section 1 of the Act at the mere whims and caprices of a party. The said provision also falls foul of the principles of res judicata and seems to do away them entirely, what begs the question is if the legislature intended for such a peculiar situation to arise, in our view, that surely cannot be the case.

Section 25 of the Act proceeds to reveal further succulent ambiguities, especially when viewed from the prism of contemporary law laid down by our nation's Top Court. Section 25(3) of the Act mandates that if the court is satisfied that the party in whose favour an order has been made has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, the Court may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just. The ambiguity in the wordings of this section is not exasperating to determine. On 27th September, 2018, on the basis of a petition preferred by a Indian residing in Italy, Joseph Shine, five judges of the Hon'ble Supreme Court of India speaking in a unanimous, bold and impenetrable voice declared "Adultery" to no longer be a criminal offence, thus burying this archaic and draconian law which was an unfortunate legacy of the colonial era, ten fathom deep with no chance of resurrection. It was indeed a celebrated decision wherein all the five senior judges ruled said the law was archaic, arbitrary and unconstitutional.

Chief Justice Dipak Misra in his opinion wrote "Husband is not the master of wife. Women should be treated with equality along with men," Justice Rohinton Fali Nariman concurred by adding that "ancient notions of man being the perpetrator and a woman being the victim no longer hold good". This statement of the Learned Chief Justice is pertinent in more ways than one, when today, adultery, is not an actionable offence in wedlock itself, then one wonders as to how a person could be deprived of her legal entitlement, in the event she fails to remain chaste when in most of such cases the marriage is already, for all purposes, met its nadir. The impact of Section 25(3) of the Act breathes life into the words of the Learned Chief Justice and does in fact make the husband the master of the wife. This is a situation which the legislature surely did not warrant and even if so, the contemporary and ever dynamic evolution of law has rendered it nugatory.

Justice Dhananjay Yeshvant Chandrachud ruled that the law perpetuated the subordinate status of women, denied dignity, sexual autonomy, and was based on gender stereotypes".

The significant impact and ripples of this decision have a staunch, and perhaps, unexamined effect on the provisions of Section 25(3) of the Act. The said section attempts to curtail the right of a woman in the event she fails to remain chaste, the Section endows the Courts with a power to vary, modify or rescind any order made under this Section in the eventuality that the wife has forgone her chastity. This premise of the said section reeks of archaic and contemporarily incompatible ideas and law. The fact that the Top Court of the country, by way of a Constitution Bench judgment has held this patriarchal practice to be in violation of the Constitution and the freedoms it seeks to guarantee, requires a thorough reexamination of the said Section in order to have a just, fair and gender neutral.

Thus, Sections 25(2) and (3) may require to be revisited by the legislature in light of the ambiguities that plague them and also in light of the modern evolution of law, lest they continue to form the arsenal for frivolous and motivated litigations, thus making them a perennial harvest for lawyers and an unending dark alley for litigants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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