Wa0000

Name: Sushant Nagar
Ad. No. : 20GSOL1020141

Ba llb ( Sec B)
Babita vs Munna Lal, August 2022
The Delhi High Court in Babita v. Munna Lal recently held that a mere decree under Section 9 of
the Hindu Marriage Act (HMA) for restitution of conjugal rights shall not ipso facto debar the wife
from her statutory right of maintenance under Section 125 of the Code of Criminal Procedure
(CrPC)
Section 125 CrPC states that if any person having sufficient means neglects or refuses to
maintain his wife, unable to maintain herself, the Magistrate of First Class, upon proof of such
neglect or refusal may direct the person to pay monthly allowance.
The said provision, under sub-section (4), however, disentitles the wife from grant of
maintenance if she is living in adultery or if, without sufficient reason, she refuses to live with her
Husband or if they are living separately by mutual consent.
Section 9 of the HMA, on the other hand, provides that when either the husband or the wife has,
without reasonable excuse, withdrawn from the society of the other, the aggrieved party may
apply, by petition to the district court, for restitution of conjugal rights and the court, on being
satisfied of the truth of the statements made in such petition and that there is no legal ground
why the application should not be granted, may decree restitution of conjugal rights accordingly.
The marriage between the parties was solemnized in 1993, and a daughter and a son were
born out of their wedlock. The wife, in 2009, filed a petition under Section 125 CrPC against the
husband for grant of maintenance of herself and the children. Despite notice issued to the
husband, he failed to appear before the trial court, after which it passed an ex parte order
against him.
Parallelly in 2009, the husband filed a petition under Section 9 of the HMA before the Family
Court, Hamirpur for restitution of conjugal rights. The fact of maintenance proceedings was not
disclosed by the husband to the Hamirpur court. After filing a reply in the said proceedings, the
wife subsequently stopped appearing. Later, by virtue of an ex-parte judgment in April 2013, the
petition was decreed ex-parte in favour of the husband, and consequently, the wife was directed
to join the company of the husband.
Meanwhile, the interim maintenance application of the wife came to be allowed by the trial court
and the husband was directed to pay ₹1,300 per month each to the wife and the children. An
appeal by the husband was dismissed by the Sessions Court in December 2013. The husband’s
appeal before the High Court was also dismissed.
The Family Court, after closing of evidence by the wife, passed a judgment dated in February
2018, rejecting the plea of grant of maintenance under Section 125 of CrPC basis the ex-parte
decree under Section 9 of the HMA passed in April 2013. The wife was thus prompted to
approach the High Court in appeal.
Conclusion:
The facts reveal how Section 9 of the HMA, which is intended to preserve the institution of
marriage, is misused by the husband to deny a legitimate claim of the wife for maintenance
under Section 125 CrPC. The High Court, mindful of the practical difficulties of a single mother
having been made to struggle and run from one court to another by the husband to get
maintenance, has upheld the sanctity of Section 125 CrPC by taking a more rational approach,
within the confines of law.
Section 9 of the HMA is one of the most debatable provisions in matrimonial law, since it is
hardly ever used for its intended purpose of preserving marriage. It is mainly used by the
husband as a tool to defeat the claim of the wife for maintenance or as a counter-blast to
divorce and Section 498A proceedings, or simply a means for harassment.
The provision is, therefore, the subject matter of challenge before the Supreme Court in Ojaswa
Pathak & Anr v. Union of India, where its relevance is being considered in light of the right to
privacy under Article 21, as well as Articles 14 and 15 of the Constitution of India.
In fact, the High-Level Committee on Status of Women in India in its Report dated June 1, 2015
has recommended that the provision relating to restitution of conjugal rights in various statues -
including Section 9 of the HMA, Section 22 of the Special Marriage Act and Section 32 of the
Divorce Act - be deleted.

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Name: Sushant Nagar

Ad. No. : 20GSOL1020141

Babita vs Munna Lal, August 2022

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