Maintaining Equality In Claiming Maintenance

An often overlooked aspect of Chapter IX is the procedural provision which has been enacted concerning Section 125 of the Code, i.e. Section 126 of the Code. It is this overlooked provision which is analysed on the constitutional anvil through this article, which is structured as follows: first, the the two statutory provisions have been mentioned; second, two relevant case laws have been discussed, with one adopting a narrower approach, and second, which adopts a broader approach; third, building upon the views taken in latter of the two aforementioned cases, and combining it with the discussion of the doctrine of classification and under-inclusiveness, it has been shown how Section 126 of the Code, in its present state, suffers from the vice of unconstitutionality; and lastly, after summarising the discussion, a solution has been provided regarding what could be the approach to correct the current constitutional conundrum.

I. Statutory Provisions

Chapter IX of the Code contains provisions relating to maintenance. Section 125 of the Code mentions, inter alia, who all are entitled to maintenance:

i. A person's wife, who is unable to maintain herself; or

ii. His legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or

iii. His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury, unable to maintain itself; or

iv. His father or mother, unable to maintain himself or herself.

The headnote of Section 126 of the Code mentions the procedure for claiming maintenance. Sub-section 1 provides for where the proceedings can be instituted against the person from whom maintenance is sought. The places have been enumerated below:

i. Where the person from whom maintenance is sought 'is', or

ii. Where that person or his wife, resides, or

iii. Where that person last resided with his wife, or as the case may be, with the mother of the illegitimate child.

Reading Section 125(1) of the Code with Section 126(1), it becomes apparent that the wife has the right to institute a claim for maintenance at the place where her husband is, or where they last resided or where she is residing. The benefit of the last two clauses has not been made available to claimant-parents. The Supreme Court of India has explained, sketchily as is shown in the next part, the prudence behind providing the benefit of the same in the case of Vijay Kumar Prasad v the State of Bihar.

II. Case Laws

In this case, the applicant-father, while he was residing in Siwan, his son was in Patna and practicing in the Patna High Court. An application for maintenance was filed at Siwan. Negativing the claim of the father regarding his right to institute proceeding at the place of his residence, the Apex Court, reiterated the statutory difference between the two sets of claimants, i.e., wife and children on one side, and parents on the other, in the following words:

It is to be noted that Clauses (b) & (c) of sub section (1) of Section 126 relate to the wife and the children under Section 125 of the Code. The benefit given to the wife and the children to initiate proceeding at the place where they reside is not given to the parents. A bare reading of the Section makes it clear that the parents cannot be placed on the same pedestal as that of the wife or the children for the purpose of Section 126 of the Code.

The Apex Court then explained the difference between the old^[4] and the new Code in the following words:

The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of the application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together.

Perhaps because the argument was not raised before it, the Apex Court didn't consider how the continuation of the difference - claimant-wife being able to claim maintenance at place of her residence or where she last resided together with her husband, which benefit has not been made available to parents - created by the new Code is justified in present times. If the same was considered, in all probability, it would have fatally jeopardised the constitutionality of Section 126 of the Code. Reliance will be placed on the decision of the Bombay High Court in Vasant v Govindrao Upasrao Naik^[6] to drive home the point as to why the continuation of such a difference is wholly unjustified.

In this case, the applicant-parents filed a claim against only one of the children, with whom they allegedly had a dispute and chose not to institute and pursue any action against their other two children, who were residing outside the country but were earning 'lordly' sums, which was much more than the earning of the son against whom the case was instituted. While setting aside the order of grant of maintenance on account of the non-addition of necessary parties (the two other children), the Court expressed its anguish regarding the non-availability of choice with parents to institute the maintenance proceedings at the place of their residence in the following words:

In my respectful and humble opinion, looking to the disablement of old parents - father or mother to go and file an Application under Section 125 Cr.P.C. at the place where the son or their children reside, would be practically denying them the benefit of provisions of Section 125 for claiming maintenance which was inserted by way of clause (d) of Section 125 Cr.P.C. for the first time, under the Code of 1973.

At first blush, a strong base for favouring such favourable treatment can be found in Article 15(3) of the Constitution of India ('the Constitution'), which mentions that the State shall not be prohibited from making any special provision for women and children. However, Articles 14 to 18 of the Constitution create a separate chapter on the right to equality, and they are to "supplement each other and incorporate a non-discrimination principle".^[8] And delving deeper into this chapter will bring to fore that Section 126 of the Code falls foul of this constitutional mandate.

Iii. Reasonable Classification And Under-Inclusiveness

The equality envisaged to be achieved through constitutional provisions is not literal. Instead, what is sought to be achieved by this great principle is a guarantee against "treatment in a manner prejudicial as compared with a person similarly circumstanced by the adoption of a law, substantive or procedural, different from the one applicable to that other person."^[9] A logical and legal corollary of the same would be that the unequal can be, and ought to be, treated unequally. Prima facie, by permitting classification, a paradoxical situation arises in which the Constitution creates a backdoor entry for inequality to creep in. However, the Apex Court has allayed any such apprehension at the outset in these words:

In tackling this paradox the Court has neither abandoned the demand for equality nor denied the legislative right to classify. It has taken a middle course. It has resolved the contradictory demands of legislative specialisation and constitutional generality by a doctrine of reasonable classification.

Professor Tarunabh Khaitan enumerates four distinct elements which can usually be identified in any concern relating to the classificatory rule.^[11] Those four elements, after contextualising them with the present discussion, have been enumerated below:

1.Whether or not the right to equality is engaged?: In the present case, the right to equality is engaged, as parents are claiming equality as compared to the wife regarding where the proceedings can be initiated, both of whom cannot maintain themselves.

2.What classes does the rule create?: Between the wife and the parents, one class can institute maintenance proceedings, inter alia, at the place of her residence, and the other class, i.e. the parents, cannot.

3.What end does it seek to achieve?: As mentioned earlier, the law has a salutary aim to relax the statutory requirement regarding where the maintenance proceedings can be initiated by the claimant-wife, keeping her marital position and societal realities in mind. There is no reason forthcoming regarding why such contrast has been created when compared to the position of claimat-parents.

4.What consequence does it subject each of these classes to?: With respect to parents, the Bombay High Court's opinion describes the situation to a T when it says that Section 126 results in practically denying them the benefit of provisions of Section 125 for claiming maintenance. With respect to claimant-wife, the situation is significantly better in this regard. Consequently, an unnecessary chasm is created between two class of claimants - wife and parents - regarding the place of institution of proceedings.

Respectfully agreeing with the opinion of the Bombay High Court in toto, I opine that when compared to the position of a destitute wife, the parents who cannot maintain themselves are situated in a worse situation. The basis of this opinion is that the latter, apart from suffering financial infirmity, have to undergo sufferings caused by physical infirmity produced by the onset of old age. However, the right granted to the claimant-wife is for a legitimate purpose, as it is a necessary concomitant of our societal realities. In this situation, one cannot reasonably say that she should not be granted the benefit of being able to institute maintenance proceeding at the place of her convenience, thus making the present classification reasonable and therefore constitutional, but only partly. It is not entirely so because her statutory status has to be compared with the claimant-parents, and if the same is done, it would seem that Section 126 suffers from the vice of under-inclusiveness.

In a different context, the Apex Court has succinctly stated that "a classification amounts to being under-inclusive when, inter alia, State provides benefit to persons in a manner that furthers a legitimate purpose but does not confer the same benefit on others who are similarly situated".^[12] And it will be further relevant to mention that under-inclusiveness may pass judicial test because the courts tend to show leniency towards it, but it is clear that the courts will certainly intervene when "there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched".^[13] In the present situation, the legitimate purpose is to enable the needy claimants to institute a case at a place of their convenience. However, for no fair reason, the same benefit has not been extended to another class of claimants. Hence, it becomes apparent that Section 126 suffers from the vice of under-inclusiveness.

The argument that the present provision is in accordance with Article 15(3) is also flawed because the mother, as a claimant, has been excluded from being able to institute maintenance proceedings at the place of her residence. To reiterate, individuals in old age are physically more susceptible to discomfort and complications, as compared to their younger counterparts; thus, non-extension of the benefit of such benevolent provision would still amount to under-inclusiveness. In the eventuality that such benefit is extended, then the comparison of claimant-mother's legal status to that of claimant-father in this regard would again raise constitutional questions which are, at best, avoidable .

Indeed, the language of Article 15(3) makes it abundantly clear that the provision acts as an exception to Article 15. However, the provision cannot be so understood to mean that it provides carte blanche to the State. This is because, structurally, Article 15(3) is located within a separate chapter on equality,^[14] and for it to continue to be ensconced within this chapter, the provisions (and any action taken thereunder) must be so considered together that they further the fundamental guarantee against unreasonable inequality to the greatest possible extent.

IV. The Way Forward

To summarise, the legislature made two admirable inclusions in the 1973 Code as compared to the old Code: (a) apart from wife, it introduced parents as a class of claimants; (b) it expanded the rights of claimant-wife with regard to the courts which would have the territorial jurisdiction of the matter. However, it has been argued that by not extending the benefit of the same to claimant-parents, the new Code has, consciously or otherwise, created a classification which is not commensurate with the provision of the Constitution and results in denial of benefit to parents, and ultimately, under-inclusiveness. And as reflected by the decision of the Apex Court, the question was not dealt with head-on. Thereafter, it has been opined that the correct answer has been provided by the Bombay High Court. Then, it has shown how the provision, in its present form, is also not in accordance with the purported base, i.e. Article 15(3). At last, it is hoped that the legal journey started by introducing the salutary provision in the new Code - giving the parents the right to claim maintenance - is allowed to reach its destination effectively, with the provision enabling the parents to file an application in the same courts as the claimant-wife.

The author is an Advocate at Patna and views are personal.