iii.

Whether the right to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973,
is liable to be read gender neutrally, and can be extend to persons in a homosexual relationship?

At the very outset it is clear that the issue is regarding the interpretation of a provision.

125 Crpc:

(1) If any person having sufficient means neglects or refuses to maintain--

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself,
or

(c) 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

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person
to make a monthly allowance for the maintenance of his wife or such child, father or mother,
at such monthly rate 1* * * as such Magistrate thinks fit and to pay the same to such person
as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not possessed of
sufficient means:

[Provided further that the Magistrate may, during the pendency of the proceeding regarding
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monthly allowance for the maintenance under this sub-section, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate considers reasonable, and to
pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and
expenses of proceeding under the second proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of notice of the application to such person.]

Explanation.--For the purposes of this Chapter,

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.

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[(2) Any such allowance for the maintenance or interim maintenance and expenses of
proceeding shall be payable from the date of the order, or, if so ordered, from the date of
the application for maintenance or interim maintenance and expenses of proceeding, as the
case may be.]

(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in
the manner provided for levying fines, and may sentence such person, for the whole or any
part of each months 4[allowance for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be,] remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one month or until payment if
sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Court to levy such amount within a period of one
year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.
Explanation.--If a husband has contracted marriage with another woman or keeps a
mistress, it shall be considered to be just ground for his wifes refusal to live with him.

(4) No wife shall be entitled to receive an 5[allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be,] 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 in
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.

Law and society are two things that are ever evolving. Evolution is something that law has
frequently undergone. Changes come about in law with new and recent developments in
the society. Interpretation of the law also must change with the changing times.
Doctrine of purposive interpretation has to be applied in such cases. Supreme Court in Tirath Singh v.
Bachittar Singh approved and adopted the said approach. In Shamrao V. Parulekar v. District Magistrate,
Thana, Bombay the Court reiterated the principle from Maxwell: “If one construction will lead to an
absurdity while another will give effect to what commonsense would show was obviously intended, the
construction which would defeat the ends of the Act must be rejected even if the same words used in
the same section, and even the same sentence, have to be construed differently. Indeed, the law goes so
far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words
if by doing so absurdity and inconsistency can be avoided. The same can be adopted in the case of
section 125 of cpc where this doctrine can be applied; the section is liable to be read with gender
neutrality where it needs to include homosexual couples .

Section 125 of the Criminal Procedure Code provides for the maintenance of the wife, child, and parents.
The court after the party has invoked Section 125 of the Code, may order the respondent, that is the
husband, to maintain the wife who is unable to maintain herself by providing monthly maintenance to
her. The same objective was further enunciated by HMJ K. Subba Rao also said that the objective behind
granting maintenance power is to protect the weaker section of the society .The grounding principle of
the section is to uplift the economic condition of poor and weaker sections of society that need to
include homosexual couples . or else it leads to absurdity as stated in the case. They are also entitled for
maintenance . or it leads to gender discrimination.

It is very clear that intention behind the legislation was to provide maintenance to the weaker section.
Earlier man was considered to be stronger sex. He had the role of being the breadwinner of the house.

But things have changed now, men and women no longer follow traditional gender roles and norms. It is
in this situation that the section has to be interpreted gender neutrally. In this context, both men and
women must be eligible for maintenance based on who is dependent and who cannot self-sustain
oneself. The same thing applies to homosexuals as well. Homosexuals were recognized by the Supreme
court in Navjet Singh Johar Judgement . The court has also repeatedly held that the right to maintenance
is not limited to married couples and it also applies to live in couple. Irrespective of whether the right to
marriage is given to homosexuals or not, they must be granted the right to maintenance . Not granting
them the right to maintenance would be gross violation of Article 14 of the Indian Constitution. Although
maintenance is not a fundamental right, homosexuals who are in Live in relationship must be granted
the right to maintenance based on the test I mentioned above.

Every Indian citizen is guaranteed the right to equality under Article 14 of the constitution. This right
ensures every citizen to avail equality and raises voice against inequality, which prima facie is injustice
and against the concept of equal protection before the law. The objective of this article is also to restrict
the state to pass any such legislation which is manifestly arbitrary for citizens of the country. Any
legislation or provision of the legislation found against the objectives of Article 14 in the judicial review
process shall be declared unconstitutional. Section 125 of Cr.P.C. 1973 stands unconstitutional as it
violates Article 14 of the Indian constitution because it fails to provide equal protection of law to men by
allowing only women to claim maintenance from their husband. By not allowing men to claim
maintenance, this section presumes that only women can face any such possibility where maintenance
becomes quintessential, negating the same possibility for men.

Furthermore, this section stands contrary to the precedent established by the Apex Court of India in
Preeti Srivastava (Dr.) V. State of M.P. in which it held that every legislation must be in the public interest
and should not be manifestly prejudicial on the part of any segment of the society. It is also submitted
that the section fails to pass the reasonable classification test under article 14 of the Indian constitution
as it fails to provide any rationale for not providing the right to maintenance to husbands.

The supreme court in Hiralal case held The classification of “adult male person” clearly subverts the
doctrine of equality, by restricting the reach of a social beneficial statute meant to protect women
against all kinds of domestic violence.

Following the case laws laid down, the Supreme Court may kindly give a Liberal Interpretation to
Section 125 Crpc.

Section 125 of Cr.P.C. is uniform and, as opined in Mohammad Ahmed Khan v. Shah Bano Begum, secular
in nature. Abstaining someone from claiming maintenance under the said section based on sex blatantly
violates their right guaranteed under article 15. There appears no reasonable contention under this
article by which the legitimacy of the gender-based character of section 125 can be held constitutional.
The section is contrary to its laying principle or it is not in conformity to its foundation .

Yogyakarta Principles:

Yogyakarta Principles, launched in 2007, has become a guiding force to eradicate all the distinctions
present in the laws based on gender identity and sexual orientation. It asserts that all human beings
have the equal right to enjoy every right guaranteed to them under legal instruments without facing
discrimination on any ground including sexual orientation and gender identity. The reference of
Yogyakarta principles has been positively affirmed by the Supreme Court while deciding the matter of
Navtej Singh Johar. Principle 1 provides that a person of any sexual orientation and gender identity is
entitled to enjoy basic human rights and further obligates the State to amend the criminal law to make it
consistent with rights guaranteed under international human rights instruments. Principle 2 prohibits
discrimination based on gender identity and sexual orientation and Principle 3 provides an equal right to
recognition before the law to everyone. Most importantly, Principle 28 provides that everyone is entitled
to avail effective remedy in case any of his rights are violated and obligates the State to set up such
tribunals where remedies could be implemented timely and effectively.

Based on all these arguments the supreme court may be pleased to give a liberal interpretation to the
provision.