By Sujit Bhar
At first glance, the recent decision of the Gauhati High Court delivered by Justice Pranjal Das appears to be a straightforward application of settled legal principles. A woman claiming maintenance under Section 125 of the Code of Criminal Procedure (now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023) failed to establish that her earlier marriage had been lawfully dissolved. The only proof offered was a notarised affidavit, a document that, as the Court unequivocally held, has no legal efficacy in dissolving a marriage. Consequently, her claim to be the “lawfully wedded wife” of the respondent collapsed, and with it, her entitlement to maintenance.
In strictly doctrinal terms, the ruling is unexceptionable. Yet, beneath the apparent clarity of law lies a tangled web of social practices, legal pluralism, and human vulnerability that deserves closer scrutiny. The case exposes uncomfortable questions about the multiplicity of personal laws governing marriage and divorce in India, the informal and often illegal ways in which marriages are ended and re-entered, and the limits of a legal system that is asked to balance doctrinal purity with social justice.
The factual matrix before the High Court was not in dispute on crucial points. Fulmala Khatun, the respondent before the Court, admitted in her deposition that she had married one Manik Ali in 2000 and had three children from that marriage. She further claimed that in 2017 she had “divorced” him by executing an affidavit before a Notary. This affidavit, a mere photocopy, was the sole document relied upon to establish the dissolution of her first marriage.
Justice Pranjal Das rightly rejected this claim. As the Court observed: “Needless to say that a marriage cannot be dissolved by way of an affidavit made before the Notary.” The judgment further noted the complete absence of any material to show that the respondent had invoked the Dissolution of Muslim Marriages Act, 1939, the statute governing dissolution of marriage for Muslim women. The so-called divorce deed was not even properly exhibited before the Family Court. A passing reference during cross-examination, the High Court held, could not substitute for proof of lawful dissolution.
Equally settled is the principle that while proceedings under Section 125 CrPC are summary in nature and do not demand strict proof of marriage, the moment a previous marriage is admitted, the burden shifts to the claimant to establish that such marriage has ended in accordance with law. This burden, the High Court found, was not discharged.
A DEEPER MALAISE
If the matter were to end there, the decision would merely reaffirm black-letter law. But to stop at that point is to miss the deeper structural problem that the case brings to light—the uneasy coexistence of multiple personal laws, informal social practices, and a criminal-law-based maintenance framework that is expected to operate as a social safety net.
India’s marriage and divorce landscape is fragmented along religious lines, each governed by distinct statutes, customs, and interpretations. While Muslim law permits divorce through specific recognised modes, including talaq and judicial dissolution under the 1939 Act, none of these modes remotely resemble the execution of a notarised affidavit. Yet, across large swathes of the country, “affidavit divorces” are a social reality, even if they are legal nullities.
Courts encounter such documents with disturbing regularity. They are often treated as sufficient by families, communities, and sometimes even by local authorities, despite having no basis in law. This case is a reminder that when such informal practices collide with formal legal processes, it is usually the woman—often economically dependent and socially marginalised—who bears the brunt of the consequences.
One of the striking aspects of the case is the petitioner’s contention that Fulmala was an advocate’s clerk. On the surface, this fact appears to weaken any claim of ignorance. Yet, this assumption itself deserves interrogation.
Being adjacent to the legal system is not the same as understanding it. Advocate’s clerks often perform administrative or clerical tasks and may have little exposure to substantive family law, let alone the nuances of personal law statutes. Legal literacy in India remains shallow even among those who work in legal environments, especially women who may have limited access to independent legal advice.
It is entirely plausible that Fulmala believed—perhaps in good faith—that executing an affidavit amounted to a valid divorce. Such beliefs are often reinforced by community practices, informal advice, and even unscrupulous intermediaries who offer “quick divorces” without judicial oversight. The law presumes knowledge, but lived reality frequently contradicts that presumption.
THE UNCOMFORTABLE QUESTION
Perhaps the most troubling aspect of the case is not what the Court decided, but what the facts quietly reveal. If Fulmala’s first marriage was never lawfully dissolved, how did the alleged second marriage take place at all?
If the marriage to Tufazzul Hussain was indeed solemnised under Islamic law, as she claimed, it raises serious questions about the role of the persons who facilitated it. Was there any inquiry into her marital status? Was the affidavit treated as sufficient proof of divorce by the community or the person officiating? Or was the relationship informal and later described as a marriage to secure maintenance?
These questions point to a broader social failure. Marriages are entered into with alarming informality, while divorces are treated with even greater casualness. The legal consequences of bigamy, void marriages, and invalid divorces are rarely explained to women, who are often left navigating a maze of conflicting claims once relationships break down.
Section 125 CrPC was designed as a measure of social justice, not as an adjudication of matrimonial status. Courts have repeatedly emphasised that its object is to prevent destitution and vagrancy. Yet, the provision cannot be stretched to override basic legal requirements when a claimant’s status as a wife is fundamentally compromised.
This creates a harsh paradox. On the one hand, the High Court could not, in law, grant maintenance to a woman whose previous marriage subsisted. On the other hand, the factual reality remains that she has been abandoned and claims to have no means to feed herself.
The law, as it stands, offers limited solutions. She may still pursue remedies against her first husband if the marriage subsists. Alternatively, she may seek relief under other legal frameworks, including civil claims or welfare schemes. But these avenues are neither swift nor assured.
NEED FOR INTROSPECTION
Cases like this demand more than doctrinal correctness; they demand institutional introspection. One possible answer lies in strengthening legal awareness at the grassroots level, particularly concerning marriage and divorce. Another lies in stricter regulation of informal divorce practices that continue to thrive unchecked.
There is also a compelling argument for re-examining the fragmentation of maintenance laws. When criminal procedure is used as a substitute for social welfare, courts are forced into binary decisions that may be legally sound, but socially devastating. A more robust, uniform framework for spousal support—detached from the technicalities of marital validity—may better serve the constitutional promise of dignity.
Justice Das’ ruling is correct in law and difficult to fault in principle. An affidavit cannot dissolve a marriage, and courts cannot legitimise legal shortcuts simply because hardship follows. Yet, the case is a stark reminder that clarity of law does not always translate into justice on the ground.
Between the rigidity of statutes and the messiness of human relationships lies a grey zone where women like Fulmala often fall through the cracks. The challenge for the legal system is not merely to declare what the law is, but to confront why so many people continue to live—and suffer—outside its formal boundaries.
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