However, sub-section (4) of Section 125 provides three circumstances when a woman is not entitled to maintenance: if she is living in adultery, refuses to live with the husband without sufficient reason or if the couple, by mutual consent, decide to live separately .
A bench of Chief Justice J S Khehar and Justices D Y Chandrachud and Sanjay Kishan Kaul faced a dilemma when Manoj Kumar, through advocate Nisha Priya Bhatia, challenged a Himachal Pradesh HC order asking him to pay an alimony of Rs 3,000 per month to Champa Devi despite the divorce being granted on ground of desertion.
Bhatia argued that when a woman is not entitled to alimony under Section 125(4) if she had deserted her husband, how could she, after divorce on grounds of desertion, be entitled to alimony . The SC bench appeared to accept Bhatia’s arguments for the most part of the proceedings. “Grant of alimony in such a case would be in the teeth of Section 125 (4),“ she said. The bench appeared to have made up its mind when it told Champa Devi’s counsel Anil Nag, “If Section 125(4) was not there, we could have said whatever is the woman’s fault, she is entitled to maintenance to prevent destitution, especially when the state is not obliged to maintain her. But the legislation categorically says if it is adultery or desertion by free will, then she is not entitled to maintenance.“
From a hopeless position, Nag rallied to save the day for Champa Devi by citing an earlier SC judgment which had stressed on the social welfare intent of the legislation to prevent destitution of divorced women. Nag said a divorced woman had an indefeasible right to get maintenance ,irrespective of the ground for dissolution of marriage.
The SC in its March 2000 judgment had said, “ As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity , namely , as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce be comes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her.“
This retrieved Champa Devi from being denied alimony . The bench upheld the Himachal HC order granting her alimony and said it would not interfere in grant of alimony to divorced women under all circumstances, a logic that had consistently been the thread of SC rulings for last 25 years -to uphold social welfare intent of the legislation which was to prevent destitution among divorced women.