Divorce, relationship and alimony: Why the Madras High court is right

By Nithin Sridhar

The Madurai bench of the Madras High court, has recently made an observation that a divorced woman cannot claim alimony from her ex-husband, if she enters into any relationship with another man.

The bench was hearing a revision petition filed by a man who was pleading that he should not be made to pay an alimony of Rs 1000 to his ex-wife as he had got an ex-parte divorce from his ex-wife on the grounds that she was adulterous.

Justice S. Nagamuthu, who presided over the case said that: "Since a man carries an obligation to maintain his divorced wife, the woman also carries the obligation not to live in relationship with another man. If she commits breach… she will suffer disqualification from claiming maintenance… If she wants to live in relationship with another man, she may be entitled for maintenance from him and not from the former husband."

The judgment has come under criticism in certain sections of population who are viewing the judgment as patriarchal. But, is such a view really justifiable?

Let us first look into what marriage is. The Merriam-Webster dictionary defines marriage as "the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law." Therefore, marriage is not just acquaintance or friendship. It is a union between spouses in every-sense of the word- physical, mental, and social.

The concept of marriage in Hindu culture takes it one step further and makes it even a spiritual union, wherein the spouses together work towards attaining all the four-fold goals of life- kama (desire including sexual desires), artha (wealth and prosperity), dharma (duty and righteousness), and moksha (final liberation).

Therefore, sexual fidelity is implicit and most vital in the union of marriage. As marriage is a physical, emotional, ethical, and social bond, the sexual infidelity or adultery which amounts to cheating at all levels from physical to social, is considered as being opposite to the very essence of marriage.

The bond of marriage is rooted in fidelity, and this bond breaks down due to infidelity. It is for this reason that the amendment to the marriage laws in 1976 stipulated that even a single instance of adultery could be a ground for divorce. Therefore, sexual fidelity which implicitly includes emotional, ethical and spiritual fidelity as well is at the very center of marriage and hence of divorce as well.

Regarding the reason for giving alimony to women after divorce, Justice S. Nagamuthu said: "Even after divorce, the law takes care that a woman does not end up in destitution and that is the reason why she is entitled for maintenance from her erstwhile husband."

Therefore, the husband is to provide financial assistance to his wife even after divorce, so as to help her sustain herself. In other words, the husband is being stipulated by the law to perform his conjugal duty of economically sustaining the family, even after divorce.

Now, if such a divorced woman, who is receiving alimony from her ex-husband, is entering into a relationship with another man, be it casual affair or permanent bond, the woman in question is breaching the conjugal bond that is rooted in sexual fidelity with her ex-husband and creating a new conjugal bond with a different person.

Hence, the court rightly observes that: "If she wants to live in relationship with another man, she may be entitled for maintenance from him and not from the former husband."

Why should the husband be expected to do his conjugal duties even after divorce, when his wife has established a new conjugal relationship with another man?

Therefore, it is incorrect to consider the court judgment as being patriarchal. Instead, the judgment upholds the core tenet of marriage which is fidelity and commitment.