Men fighting bitter divorce cases in courts often stoop to levelling false allegations of adultery (infidelity) against their wives in order to avoid paying maintenance. This is the stark reality today. In order to shield women from such vilification, the National Commission for Women (NCW) is all set to recommend strict penalties against a man who levels false allegations of adultery against his wife.
The NCW has held two rounds of consultations with the National Law School, Bangalore, on its proposal to amend Section 125 of the Code of Criminal Procedure (CrPc) and is in the process of preparing draft recommendations. Section 125, which deals with order for maintenance of wives, children and parents, states, "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." At the same time, the Section clarifies that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered as just ground for his wife's refusal to live with him.
According to NCW Chairperson Girija Vyas, "There is no denying the fact that men level false charges of adultery against their wives. Such charges should be investigated by the court in-camera so that privacy is maintained but the true facts come out. What we would like to propose to the Law Ministry is a strict penalty in cases where it is found that false allegations of adultery have been levelled against the wife."
What does the legal community think of the NCW initiative? Atul Nagarajan, a Delhi-based advocate, is all for it. He says, "As of now, there is no specific provision in the CrPc to punish a man who is found making false charges of adultery (infidelity) against his wife. There is, however, remedy available under Section 340 and 344 of the CrPC if a false statement is made on oath or false evidence is given in any case. The NCW initiative is, therefore, welcome as matrimonial proceedings are very personal in nature and it is only in the fitness of things that such proceedings be held in-camera to encourage either party to speak his or her mind in an enabling environment."
Discrediting wives is increasingly turning out to be convenient escape route for men. Even when they have no dearth of money, they plead that they are paupers. Most women report that their husbands want to walk out of a marriage without paying a single penny.
Speaking on conditions of anonymity, a young woman based in Delhi shares her story. "I did not want to live in the shadow of another woman who my husband was seeing. He engineered a situation compelling me to leave my matrimonial home and then slapped charges of desertion against me by exploiting the fact that he has a life-threatening illness. This, even though I had stood by him for several years following this diagnosis. Today, he is living right next to the home of his new partner. It is hard on my dignity to ask for money from a person who has never valued me. He resisted suo motu suggestions from the Judge to give me a lump sum by pleading that he was in a private job which he was likely to lose at any point of time, although he takes home a monthly salary exceeding Rs 1,00,000(US$1=Rs 46.7). I let him go out of consideration for his illness. But it's a shame that the man had the audacity to tell me that he would not have paid me anything in any case."
While there are many women who can narrate stories of bitter divorce battles, Nidhi Gupta, an advocate practicing in the Supreme Court, is reluctant to view all men as culprits. She feels that while there is an element of truth in what the NCW Chairperson has said, it must be remembered that the courts don't proceed only on allegations. "The presumption is that the Court will satisfy itself that the woman is indeed living in adultery before invoking Section 125. Let us not lose sight of the fact that Section 125 is there in the statute books so that there is no harassment caused to men. Women are equally adept at making false charges if the divorce is acrimonious. I know of a couple of cases where women have taken men to the cleaners," she says.
Gupta also disagrees with the general perception that men are always reluctant to support their estranged wives by way of maintenance. Regarding cases where men default in payment of maintenance, as in the recent case involving actor Raghuvir Yadav, she says, "If a man is a habitual defaulter in the payment of maintenance as directed by the Court, then the wife has a remedy in law. She is free to initiate contempt proceedings against the husband or seek any other suitable remedy available to her in the facts and circumstances of the case."
There are even rare cases where men have volunteered to support estranged wives. A Delhi-based writer who parted ways with his wife in 1997 claims that he made a couple of payments of Rs 20,000 each to his wife on his own even when it was not legally binding on him to do so. Apart from that, he has been paying his wife maintenance regularly for the last 10 years. "I had the choice of making a payment of Rs 15,00,000 at one go or split it into two parts. It's definitely a strain on my pocket as it's not a mean sum of money but, for me, it's like purchasing my freedom. I experience inner peace not because I am paying her money but because I have my freedom. I have paid regularly all these years. Once or twice, I had some difficulty in paying but she was quite accommodating."
Apart from the controversies over maintenance, there are other thorny issues that women want addressed. After the Cabinet cleared the Bill to make Irretrievable Breakdown of Marriage ground for divorce under the Hindu Marriage Act and the Special Marriage Act - it is to be introduced in the next session of Parliament - the Mumbai-based group, Majlis, has been arguing that a discussion on women's right to matrimonial property should go alongside the discussion on irretrievable breakdown of marriage. According to noted lawyer, Flavia Agnes of Majlis, this is the only way to ensure that safeguards for women are built into the proposed law. The National Commission for Women has promised to take the issue forward.
For the short term at least divorce in India will continue to be a minefield, negotiating which will demand not just resilience but a greater awareness of gender rights.