Missus Can Do No Wrong – Uxorem Non Potest Peccare

Pardon me for paraphrasing a well-known maxim- ‘rex non potest peccare’ or ‘the King can do no wrong’ to suit the context, but allow me to elaborate. ‘Sovereign immunity’ is a legal doctrine by which the King/ Crown/ President/ State cannot commit a legal wrong, i.e. they are immune from civil suit or criminal prosecution. The immunity has further been extended to:

1. Immunity from suit
2. Immunity from enforcement

It means the state is immune from any legal claim and that the judgment cannot be enforced if a suit is brought in any other jurisdiction and won by a litigant.

Various commentators have used this fascinating maxim to mean different things. This website defines the maxim as per the legal system of each country.

But I digress. The reason I drag the ‘Missus’ into the maxim is fairly simple. To Her, you see, the humble husband and his relatives are mere subjects who must bow down and obey the whims of Her Highness. Don’t get me wrong. I am not saying this because I work for men harassed by the law of this land. The law, however crooked, must be adhered to. If filing a case is easier for women because of the sheer weight of the past, I tell men to keep up the unfair fight, roll with the punches, not throw the towel midway, and reclaim the lost ground. Men battle at great cost to get visitation for kids, deny maintenance when the wife does not deserve it, get Anticipatory Bail and get acquitted of crimes which they had never committed.

On the other hand, men cannot prosecute the ‘Missus’ even when she has misused the law. That is the law of the land. You and I can’t prosecute someone for perjury. It needs not only the court’s permission but also requires the court to show that the said prosecution is ‘expedient in the interest of justice’. Even if the court finds out after years that the maintenance awarded to the wife was unjust, there is no mechanism to retrieve the money paid as interim to the wife. And, of course, the courts are too liberal to quash the heinous crime like ‘Dowry’ on a settlement. I haven’t heard a whisper against such practice by any feminist, who cry foul that lakhs of women are burnt every year for ‘Dowry’.

The compounding of offences is laid down under section 320 CrPC. However, courts have taken Judicial Activism to such an extent that they are “Quashing” grave offences like molestation and attempt to rape charges by a wife towards the father in law/Uncle in law/Brother-in-law without batting an eye on a settlement and in the interest of justice. Is filing molestation and then withdrawing it by seeking a shield of legality over extortion justified in law? Of course, one would consider it extortion if a man did the same to another man. But a woman and especially the wife…. Ahh! Missus can do no wrong.

The laws made for citizens are clear. There cannot be any ambiguity in law because, if it were so, people would easily escape the clutches of law. In my opinion, this week, the Hon’ble Supreme Court has done the same. This creates ambiguity in the well-settled law about maintenance/alimony to an ex-wife at the time of divorce. The intent of the SC was, of course, not to amend the law. The settled law to date in the matrimonial offence was that “No person can be allowed to take benefit of his wrong” and that “at the time of deciding permanent maintenance, the court has to consider the conduct of the parties”. Translated, it means that the erring party has no right to maintenance/alimony, or in simpler words, if A, being the wife, were to be found guilty of matrimonial wrong entitling her husband to seek divorce against her, she would lose her alimony claim. However, at varied times, some subsistence amount has been given to such women to save them from vagrancy, destitution or pushing them into immoral life (Reliance on AIR2013SC415 also AIR2013SC2176).

This week, the Hon’ble Apex Court has gone against this basic tenant. In this widely publicized judgment, the SC held that though the woman was guilty of filing false cases against the husband, she was still entitled to an alimony of Rs. 50 Lakhs and a house worth one crore.

There are states in the USA where the only ground for divorce is the Irretrievable Breakdown of Marriage. The courts don’t go into the details of who the erring party was and divide the estate equally between the parties in the marriage. However, in India, the situation is different. Except for Muslims, as of date, divorce can only be sought on the grounds of guilt of the other party or by way of mutual consent. Hence, a man has to go to court and spend time and energy fighting for his right to have a dignified life. And when he sees the end of the tunnel after many years of litigation, would it be justified to grant his wish only after extracting a pound of flesh? If the courts intend to promote so-called social equity, why must it always fall in the favour of a wife, even when she has been convicted/pronounced guilty? Suppose vagrancy and destitution of a wife is a social issue. Why’s the ‘criminalization’ of an innocent husband and his family members on account of a broken marriage not on the same platform? If this is the case, we must agree that MISSUS CAN DO NO WRONG.

You may be interested in reading Landmark Judgments in Favour of Men by clicking HERE