A brief study on Maintenance to wife

Supreet Kaur

Maintenance is the financial support given by a person to the dependent. There are some relations who are entitled to maintenance and the provisions for their maintenance are different under different personal laws as well as statutory laws. The obligation to maintain wife is considered as utmost obligation in all personal laws whether Hindu law or Muslim law.

The obligation to maintain wife doesn’t cease to exist even after the dissolution of marriage. In fact, maintenance is generally claimed after dissolution of marriage. Maintenance includes the provision for food, clothing, residence ,education, medical treatment[1].

The amount of maintenance is determined after taking into account several factors like status of both parties, the claimant’s reasonable wants, position before the dissolution of marriage and so on. Maintenance to wife can be specifically studied under

  1. Hindu law
  2. Muslim law
  3. Special Marriage Act
  4. Section 125 CrPC

UNDER HINDU LAW

ANCIENT HINDU LAW: Hindu sages have recognized the importance of maintaining one’s wife. According to Manu; “the aged parents, a virtuous wife and an infant child must be maintained even by doing several misdeeds.”

Maintaining the wife is the greatest duty of a person. One may attain salvation if the husband performs this duty and the gates if heaven are open for him. The obligation to maintain the wife is personal in nature. The obligation to maintain the wife doesn’t arise out of any contract but it arises out of sacred relationship between husband and wife .

Under older Hindu law, the obligation to maintain the wife begins with marriage, whether husband has any property or not.

STATUS OF UNCHASTE WIFE: Even an unchaste wife was not denied the maintenance. An unchaste wife however was entitled to starving maintenance provided she continues to live with her husband. [2]

An unchaste wife who left her husband but subsequently performed expiatory rites and returned to her husband was entitled to maintenance.[3]

However the wife who lived separately from her husband whether she has a reasonable cause or not was not given maintenance under old law.

MODERN HINDU LAW: The codified Hindu law has altered many provisions related to maintenance and has adopted a progressive approach. Basically, Hindu Adoption and Maintenance Act,1956 and Hindu Marriage Act,1955 contain provisions regarding maintenance to wife.

HINDU ADOPTION AND MAINTENENCE ACT, 1956: Section 18 of the Act provides for maintenance to a Hindu wife. A wife is to be maintained by her husband during her lifetime. A wife who resides with his husband must be maintained by him.

Non availability of financial resources is not a valid excuse. This obligation only comes to an end when the wife leaves his husband without a good cause.

WHEN WIFE LIVES APART WITH VALID CAUSE: Section 18(2) provides that a wife who is living separately is entitled to maintenance if she has a justifiable cause as given under Section 18(2). These causes are:

DESERTION: If the husband has abandoned her wife without reasonable cause and without her consent or husband wilfully neglects her wife, then wife is justified in living apart.

CRUELTY: If the husband has treated her wife with cruelty either physical or mental, wife can claim maintenance even if she lives apart from her husband owning to husband’s cruelty towards her. The burden of proof that the husband is guilty of cruelty is on wife.[4]

ANOTHER WIFE LIVING: If the husband has another wife living then wife is justified in living apart without forfeiting her claim of maintenance.

KEEPING A CONCUBINE: If the husband keeps a concubine, it is an extreme form of adultery, wife can refuse to live with him. Wife is entitled to live separately and claim maintenance from her husband.

ANY OTHER JUSTIFIABLE CAUSE: This ground has wider scope. The cause must be grave and weighty something more than normal wear and tear of married life. Mere drinking habit of husband is not a good cause.[5]

WHEN WIFE IS NOT NETITLED TO MAINTENANCE?

Section 18(3) provides two grounds when wife is barred from claiming maintenance. These are-

  1. Wife is unchaste
  2. Wife ceased to be a Hindu

If the wife who claimed maintenance while she was living apart doesn’t lose her right of maintenance if she starts living with her husband. As long as the basis of separate living doesn’t extinguish wife is entitled to maintenance. Mere resumption of cohabitation can’t terminate the order passed under section 18(2). [6]

HINDU MARRIAGE ACT, 1955: Under Hindu Marriage Act,1955 both husband and wife can claim maintenance from each other. Section 24 and Section 25 deals with it. The right to claim maintenance under these Sections is an independent right. The fact that wife is already getting maintenance under Hindu Adoption and Maintenance Act is no defense however the quantum of maintenance may be fixed by taking this fact into account.

Section 24: Maintenance pendente lite and expenses of proceedings

Maintenance pendente lite is temporary maintenance given to wife( or husband) during the pendency of proceedings. The requirement is that the wife is able to prove that she has no independent sufficient income for her maintenance or she has no income to meet the expenses of the proceedings. Income doesn’t include the property or assets which yield no income.

Determination of quantum of maintenance: While deciding the amount of maintenance court has to consider several factors like (i) income of applicant( one who is applying for maintenance) and non applicant (ii) means of applicant (iii) number of persons who are maintained by non claimant (iv) conduct of parties (v) reasonable wants of claimant etc.

Travelling expenses of the wife includes expenses of proceedings.[7] If husband has no means the order of maintenance shouldn’t be passed.

Section 25 : Permanent Maintenance and Alimony

On application by wife ( or husband) the court may pass an order for permanent maintenance and Alimony (a) at time of passing of the decree granting the petition for any matrimonial relief (b) at any time after the passing of the decree granting the petition.

Even if the marriage is void ,the wife is entitled to maintenance as decided by Supreme Court in Rameashchandra Rampratapji v. Rameshwari[8]

To claim maintenance it is essential to prove that the wife is unable to maintain herself. Even if wife is qualified but have no employment she can claim maintenance.

Court consider some factors while determining the amount of maintenance:

Income and property of both spouses: If the husband is able bodied he has to maintain her wife in all cases even if he is not able to get a job. If wife is earning well, her income can be taken into account while fixing quantum of maintenance.

Conduct of parties: According to older view, if the wife herself is guilty of any matrimonial relief, she is not entitled to maintenance . If a woman commits adultery once, it doesn’t necessarily mean that all her life she is condemned to live in adultery. Various judicial decisions have followed this approach.

Wife can’t be denied maintenance on the ground that the decree was passed on account of her cruelty.[9]

In Gulab v. Kamal,[10]Bombay High Court submitted that wife is entitled to maintenance even if the divorce decree was passed on ground of her adultery.

The order passed under Section 25 may be rescinded, altered or modified on instance of other party if the court is satisfied that there is change in circumstances of the party. For example if wife starts earning etc.

The order passed can be altered, modified, rescinded if the wife has remarried or has not remained chaste.

MUSLIM LAW

Maintenance is known as NAFAQA under Muslim law. Maintenance to wife is known as kharcha-i- pandan which is an agreement between husband and wife or guardian of wife. Wife is free to use it at her sweet will.

Maintenance in narrower sense includes food, clothing and shelter.

Liability to maintain one’s wife under Muslim law is superior and husband has to maintain his wife even if wife has her own means or husband himself is poor.

DURING SUBSISTENCE OF MARRIAGE: Wife is entitled to maintenance during subsistence of a valid marriage provided that wife is obedient to her husband, obeys his lawful commands , gives access to her at lawful times.

WIFE IS NOT ENTITLE MAINTENANCE IF :

  • She is disobedient
  • She has eloped
  • She is living away from her husband without good cause
  • She denies access to her husband without good cause
  • Owing to her minority, marriage is not consummated
  • If she deserts her husband or make contingent agreement of desertion with her husband.

AMOUNT OF MAINTENANCE: Under Hanafi Law, the position and status of both husband and wife should be taken into account and regard must be to the necessities of wife.

DEFENCE: The only ground available to husband to avoid the obligation is that the wife has sufficient means.

AFTER DIVORCE : According to Muslim personal law, wife is entitled to receive maintenance from her husband only during iddat period or if she is pregnant, until the delivery of the child.

Position after Shah Bano’s case : In the historic Judgment of Shah Bano Begum v. Mohammed Ahmed Khan(1985) Supreme Court held that a Muslim male who has sufficient means is liable to maintain his wife even after expiry of iddat period provided the wife is unable to maintain herself. In this case, the wife was given divorce who has lived in a marital tie for more than 40 years and was also maintaining her children. The husband’s contention that Section 125 of CrPC was not applicable to Muslims was rejected by Court by stating that the application of Section 125 CrPC is irrespective of religion of claimant.

But subsequently in 1986, Rajiv Gandhi’s government passed Muslim women protection of rights on divorce Act,1986 after criticism from Muslim society about the Shah bano’s judgment.

UNDER 1986 ACT :

Husband is liable to make reasonable and fair provisions for the maintenance of wife within iddat period. The reasonable and fair provisions include provisions for meeting the future needs of the wife which is to be made within iddat period.

If the wife is pregnant, the liability of the husband extends to two years from the birth of the child.

If after iddat period, wife is unable to maintain herself, the magistrate may order the relatives of the woman who would inherit her property after her death. It is essential that relatives have good means to pay maintenance.

If the relatives are unable to maintain the wife, it is the duty of state wakf board to maintain the woman.

Constitutional validity of 1986 Act was challenged in Danial Latifi v. UOI , wherein Supreme Court upheld the validity of the Act.

According to Section 5 of the Act, both husband and wife by application can ask the court to be governed by Section 125 of CrPC.

There is difference in views of High Courts that whether a Muslim female can still claim maintenance under Section 125 CrPC.

  • Cases that favor the view that Section 125 of CrPC can be invoked:

Hazran v. Abdul Rahman[11] : The court held that the provisions of Section 125 CrPC are not repealed by the 1986 Act.

Shafaat Ahmad v. Smt. Fahmida Sardar[12]: Allahabad High Court held that the 1986 Act doesn’t exclude the application of CrPC.

Cases that are were decided against the view:

Rizwana Regum v. Matiullah:[13] Section 125 of the code will have no application to the case of a divorced woman who is governed by 1986 Act.

Abdul Gafoor v. Pathumma Beevi[14]: Even though the provisions of CrPC are not repealed by the 1986 Act it cannot be said that the Act supplemented, widened or enshrined the contents of rights available to the wife.

  • Special Marriage Act ,1956

It is a small step toward Uniform Civil Code. Two persons can marry irrespective of their religion. Under this the maintenance can only be claimed by wife under Section 36: Alimony pendente lite and Section 37 : permanent Alimony and maintenance. The provisions are almost same as under Section 24 and Section 25 of Hindu Marriage Act,1955.

  • Section 125 CrPC

According to section 125 If a person who has sufficient means is unable to maintain his wife who is unable to maintain herself, the magistrate may order the husband to pay maintenance to her at monthly rate not exceeding Rs. 500 and to pay the same as the magistrate may from time to time direct.

If the husband agrees to pay maintenance on the condition that wife would live with him but the wife refuses to live, the magistrate will inquire into the cause and make an order accordingly. Wife’s living apart is justified if she has a reasonable cause like if husband keeps a concubine.

When wife is not entitled to maintenance Section 125(4)

  • If the wife is living in adultery
  • If wife is living separately without good cause
  • If husband and wife are living separate by mutual consent
  • If after passing the decree, wife falls in above mentioned category, magistrate has the power to cancel the order as provided under Section 125(5)

If wife is divorced and subsequent to order under Section 125, (a) she remarries (b) if she has taken the whole sum under customary or personal law (c) if she voluntarily surrenders her right to claim maintenance, the court may make alterations in the order passed.

Insolvency on the part of husband can’t be taken as a defence to avoid the liability[15].

When husband had committed fraud to the second wife by not revealing to her the fact of his earlier marriage. S.C. held that the husband can’t deny maintenance to the second wife. He can’t be allowed to take advantage of his own wrong by contending that his second marriage is void.[16]

The income of wife’s parents can’t be taken into account while deciding the ability of the wife to maintain herself, her own income would be a relevant factor.[17]

Live in relationships female partners: In June 2008 , it was recommended by National Commission for Women the ministry of Women and Child Development to take into account female live in partners within the purview of Section 125 CrPC. This view was supported in Abhijit Bhikaseth v. State of Maharashtra and others[18].

  1. Section 3(b) of Hindu Adoption and Maintenance Act,1956
  2. Parami v. Mahadevi 1910 34 Bom 278
  3. Sita v. Gopal 1928 Pat. 275
  4. Pamjulu v. Pamjulu, 1967 A.P. 289
  5. Sobha v. Bhim, 1975 Ori. 180
  6. Dattu v. Tarabai, 1985 Bom.106
  7. Saroj v. Ashok 1988 Raj 84
  8. 2005 S.C. 422
  9. Jagdish v. Manjula 1975 Cal 64
  10. 1985 Bom 88
  11. AIR 1988 Guj 141
  12. AIR 1980 All 182
  13. 1989 Cr LJ 155 Ori.
  14. 1989 CrLJ 1224 ker.
  15. Tarak Shaw v. Minto Shaw, 1984 Cr LJ 206 Cal.
  16. Savita Ben Somabai Bhatia v. State of Maharashtra 2005 3 SCC 636
  17. Ram Dayal vaishya v. Anita Kumari 2003
  18. 2009 Cr LJ 889 Bom.