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MAINTENANCE; LEGAL EVOLUTION OF ITS SCOPE AND ITS FUTURE BY: MAHIMA JAYAN & GOPIKA S NAIR
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MAINTENANCE;
LEGAL EVOLUTION OF ITS SCOPE AND ITS FUTURE
Sub-Theme: Maintenance of Children, Parents & Wife
AUTHORED
BY: MAHIMA JAYAN
Name of
Institute: School of Legal Studies, Cochin University of Science and Technology
Official
Designation: V year B.B.A. LL.B. student
Email
Address: mahimajayan24@gmail.com
Postal
Address: MIG 451, 9th Crossroad, Panampilly Nagar, Ernakulam.
Pincode:
682036.
Contact
Number: 6238633568
CO-AUTHOR:
GOPIKA S NAIR
Name of
Institute: School of Legal Studies, Cochin University of Science and Technology
Official
Designation: V year B.Com. LL.B. student
Email
Address: gopika.s.nair2000@gmail.com
Postal
Address: Kakkattussery House, Kinginimattom P.O, Kolenchery, Ernakulam.
Pincode:
682311.
Contact
Number: 8129829426
Introduction
Maintenance is derived from the
original 12th century Old French verb 'maintenir' which means 'shelter,
protection' and also ‘upkeep’. Maintenance in literal sense means “Financial
support provided for a person's living expenses”. In the context of Family Law,
maintenance is the financial support that a person is ordered by a court to
give to their spouse during separation or following divorce. In India
maintenance is not limited to spouses but also parents and children. The
concept of maintenance is governed by personal laws as well as general laws
such as the Code of Criminal Procedure.
The maintenance provisions are
intended to serve the social purpose of protecting the weaker sections of
society, mainly women.[1] The background of providing such benefits is
to give economic support to the woman who had to solely depend on her husband.
It is a practice in India for the woman to leave her paternal home and move
into the matrimonial home after her marriage. The husband and his family
members are legally obligated to give shelter and maintenance to the wife in
marriage. The woman became obligated to be the homemaker and caretaker of the
children, leaving them with fewer opportunities to make an earning to support
themselves. As a result, the women had to rely entirely on their husbands for
economic security, and when that was disrupted due to marital troubles, they
were left destitute. The legal provisions are intended to safeguard women from
such exploitation and to provide them with the financial security they need to
support themselves and their children in the situation of their husband's
desertion. However, certain personal laws allow husbands who are unable to
support themselves to seek maintenance.
The concept of maintenance was
adopted by the legislature as a measure of social and economic justice from the
duties cast upon the legislature by the Directive Principles of State
Policy. The maintenance laws are
protected by Article 15 of the Constitution which states that the prohibition
contained in Article 14 shall not prevent the state from making any special
provision for women and children. Article 39 also mandates the State to direct
its policies towards ensuring that the citizens, men, and women equally, have the
right to an adequate means of livelihood that children are given opportunities
and facilities to develop healthy conditions of freedom and dignity, and that
childhood and youth are protected against exploitation and moral and material
abandonment.
Maintenance
under various personal laws:
Hindu Law:
Hindu Adoption and Maintenance Act,
1956, and Hindu Marriage Act, 1955 provide the right to claim maintenance.
Maintenance is defined as "anything that can provide for food, clothes,
shelter, education, and medical expenses" under the Hindu Adoption and Maintenance
Act, 1956 definition clause, Section 3(b). In short, it is financial support
provided by a husband or father that covers all of a family's fundamental
needs.
Sections 24 and 25 of the Hindu
Marriage Act, of 1955 deal with maintenance; pendente lite, and permanent
respectively. The provision enables both husband and wife to have no
independent income to support themselves to claim maintenance. This is one of
the legislation that enables both spouses to claim maintenance.
Furthermore, the right of a married
woman to reside separately and claim maintenance, even if she is not seeking
divorce or any other major matrimonial relief, has been recognized in Hindu law
alone. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 provides for
maintenance of the wife from her husband during her lifetime whilst living
separately from her husband. The Act envisions situations in which it may
become impossible for a wife to continue residing and cohabiting with her
husband, but she may not want to cease the matrimonial tie for a variety of
reasons ranging from growing children to social stigma.
Muslim Law:
Previously, a Muslim woman could only
claim maintenance under Quranic Muslim personal law, which stated that a
husband was only obligated to pay maintenance to his wife during the period of
'iddat'. However, in the landmark Shah
Bano[2] case, the
Supreme Court held that a Muslim woman can claim maintenance under Section 125
of the Criminal Procedure Code, 1973, regardless of Muslim personal law.
Furthermore, the "Women (Protection of Rights on Divorce) Act, 1986"
was enacted, with the Act's stated goal being "the protection of the
rights of Muslim women who have been divorced by, or have obtained divorce
from, their husbands."
Section 3 of the Act requires a
Muslim husband to pay maintenance to his divorced wife during the iddat period.
This provision has been misinterpreted in the past to mean that the husband is
only legally required to support his wife during the iddat period. However, the
Supreme Court interpreted in the landmark case of Daniel Latiffi v. Union of
India [3] that the
husband must make a reasonable and fair provision for maintenance during the
iddat period for the future of the divorced wife and it can extend beyond the
iddat period as well. If the divorced wife is unable to support herself after
the iddat period, she must rely on her consanguine relatives – children,
parents, and other relatives who are entitled to a share of her property.
Christian Law:
Sections 36 to 38 of the Divorce Act,
1869 govern the issue of maintenance under Christian Law. Under Section 36, a
Christian wife can claim interim maintenance and under Section 37 a wife can
claim permanent maintenance from her husband. The wife, on the other hand,
would be eligible for this maintenance amount only if she does not remarry and
"remains chaste." The provision of maintenance is only available to a
Christian wife. The wife can also claim maintenance under Section 125 of
Cr.P.C.
Parsi Law:
Sections 39 to 41 of the Parsi
Marriage and Divorce Act, 1936 address the wife's right to maintenance,
including both alimony pendente lite and permanent alimony. The concept of
maintenance in Parsi Law is largely similar to that in Christian law, with one
significant difference. Maintenance can be claimed by both spouses like Hindu
law. The conditions of remarriage and chastity are similar to the Christian
law. The personal law does not prevent the wife from claiming maintenance under
Section 125 Cr.P.C.
Provision
under the Criminal Procedure Code
Section 125 of Cr.P.C. makes it
obligatory for a person who has sufficient means to provide maintenance to his
wife, legitimate or illegitimate minor children, legitimate or illegitimate
minor children suffering from any physical or mental abnormality, or his father
or mother, unable to maintain themselves. On proof of his neglect or refusal to
do so, a Magistrate of the First Class may order such person to make a monthly
allowance for maintenance at such rates as may be specified.
This provision has become the
strongest weapon of the judiciary in preventing the destitution of the
vulnerable sections of society, especially women. Through judicial
interpretation, the scope of the provision has been expanded, preventing mere
technicalities from stalling women’s access to economic and social justice and
further ensuring that maintenance provides for much more than mere animal
existence.
The object of this provision is to
achieve social justice which is a Constitutional vision. The Supreme Court has
rightly pointed out that while dealing with maintenance provisions, the Courts
have to adopt a social justice adjudication also known as social context
adjudication as a mere adversarial approach may not be very appropriate[4]. Apart
from the socio-economic inequalities resulting in an unequal fight, the
adversarial process itself operates to the disadvantage of the weaker party. In
such a situation, the Judge has to not only be sensitive to the inequalities of
the parties involved but also positively inclined to the weaker party so that
the imbalance does not result in the miscarriage of justice.
When a petition for maintenance is
presented under Section 125, Cr. P.C., the husbands try to wriggle out of their
responsibility to pay maintenance by questioning the validity of the marriage.
To thwart such attempts, the Supreme Court, in Dwarika Prasad Sathpathy v.
Bidyut Prava Dixit & Anr[5] have
held that the statutes aimed at social justice should be interpreted so as to
favor the derelicts. Section 125 falls within the ambit of Article 15 (3) of
the Indian Constitution, which provides for special beneficial provisions for
women and children, as well as Article 39 which casts a duty on the state to
direct its policies towards ensuring that all its citizens have adequate means
of livelihood. The Court held that in proceedings under Section 125, Cr.P.C if
the Magistrate is prima facie satisfied with regard to the performance of
marriage, strict proof of performance of essential rites is not required. The
standard of proof of marriage in a proceeding under Section 125 is not as
strict as required in the trial of an offense under Section 494, IPC. The
non-performance of certain essential religious or customary rites in a marriage
does not disentitle a woman from claiming maintenance.
To prevent wrongful denial of
maintenance to women by invoking Section 11 of the Hindu Marriage Act to claim
the marriage is void on the ground of it being bigamous, the Supreme Court via
its decision in K. Vimal V. K. Veeraswamy
[6]
has attached a burden on the husband to tender strict proof of the allegedly
subsisting first marriage when the second marriage was solemnized. The
advantage of a beneficial provision aimed at preventing vagrancy and
destitution cannot be denied unless the husband satisfactorily proves the
existence of a legal and valid marriage at the time of solemnizing the second
marriage.
Further, to ensure economic and
social justice for women who were victims of bigamy, the Supreme Court in Badshah V Sou. Urmila Badshah[7]
held that when a man marries for a second time, keeping the woman in the
dark about the fact of the first surviving marriage, she cannot be denied
maintenance on the ground that her marriage is void. The Court observed that a
person cannot take advantage of his own wrong and turn around to say that the
woman is not entitled to maintenance.
The question of whether long-term
live-in relationships can be presumed as marriage for the purposes of
proceedings under Section 125 came up for the consideration of the Supreme
Court in Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr [8]. The Court
held that the term “wife” must be liberally interpreted so as to enable even a
woman who has cohabited with a man for a long period of time without the
performance of essential ceremonies of marriage to claim maintenance. The Court
also observed that a man must not be allowed to take advantage of the loopholes
in the law to enjoy the benefits of a de facto marriage while avoiding the
responsibilities and obligations that ought to be undertaken. The judgment was
referred to a larger bench. This decision was rendered relying on the Malimath
Committee Report on Reforms of the Criminal Justice System, published in 2013,
which recommended that where there is evidence of a long-term cohabitation
between parties, marriage can be presumed.
In its recent decision in Rajnesh v. Neha [9],
the Supreme Court reiterated the factors to be considered while awarding
maintenance so that the sum granted to the woman is adequate and sufficient for
her to maintain the same standard of living as she had in her matrimonial home.
The factors which should weigh with
the Court are:
i.
The status of the parties
ii.
The reasonable needs of the wife and the dependent
children
iii.
Whether she is educated and professionally qualified
iv.
Whether she has any independent source of income
v.
Whether the income is sufficient to enable her to
maintain the same standard of living as she had in her matrimonial home
vi.
Whether she was employed prior to her marriage
vii.
Whether she was working during the subsistence of the
marriage
viii.
Whether she was required to sacrifice her employment
opportunities for nurturing the family and looking after the members of the
family
ix.
Reasonable costs of litigation for a non-working wife.
Concluding
Remarks
Thus, with time, the judicial
interpretations have widened the scope of Section 125, Cr.P.C, thereby securing
justice to a wide section of women who otherwise would have been left out of
its purview. Further, the judiciary, through its various sets of guidelines has
ensured that the maintenance granted to a woman is sufficient for her to
maintain herself and is not mere namesake.
The maintenance laws are social
benefit legislations aimed at protecting the vulnerable classes including
women. It is, however, also true that in the light of the evolving social
background, the maintenance laws need a reconsideration.
Many personal laws as well as the
Cr.P.C have confined the benefit of these provisions to women. An exception to
this is the Hindu and Parsi laws, under which both the spouses are entitled to
claim maintenance. The Hindu and Parsi laws may seem prima facie to be gender
neutral by including both husband and wife to claim maintenance, but the
parameters that decide the eligibility are different. For a husband to get
maintenance, he has to prove he is physically or mentally incapable of earning
while the wife to be eligible only needs to prove the fact that she does not
have a separate income to maintain herself. Hence the parameter for the husband
is in capacity to earn while for the wife it is the mere fact of earning. This
can be a problematic approach in a situation where a wife is qualified and
capacitated enough to earn but doesn't earn. Such a situation was discussed in Chanchal Mehta v. Supriya Mehta [10],
where the court interpreted Section 125 and observed the expression 'unable to
maintain herself' clearly shows that it does not mean 'capable of earning'.
Hence, a wife who is unable to maintain herself, whether capable or not, is
entitled to maintenance while it's not the case for the husband to be entitled.
The personal
laws and general laws were drafted in a patriarchal society where women were in
a disadvantaged position. The law was made in a society where women were
discouraged from having financial independence. However, in the present women
have come a long way and are trying to maintain an equal financial position
with their male counterparts. In such an evolving society, a general law
unconditionally favoring women is discriminatory and violative of Articles 14
and 15. The law must be equally available to any spouse who is not able and
incapable of maintaining themselves to claim from their earning partner.
Further, these provisions are
incompatible with the present social reality. With the recognition of
consensual homosexual relationships, the traditional concept of marriage being
heterogeneous has undergone a drastic change. There is a growing demand for the
recognition of the right to maintenance in same-sex relationships as well.
It is emphasized that laws must keep
pace with the advancements in the society and evolve itself to be relevant in
the existing social context.
References:
1. The Code of
Criminal Procedure, 1973
2. Hindu
Marriage Act, 1955
3. Hindu
Adoption and Maintenance Act, 1956
4. Women
(Protection of Rights on Divorce) Act, 1986
5. Indian
Divorce Act, 1869
6. Parsi
Marriage and Divorce Act, 1936
7. Aatif S . Right
Of Maintenance In Same Sex Relationships. Legal Service India. https://www.legalserviceindia.com/legal/article-3818-right-of-maintenance-in-same-sex-relationships.html
8. Agnes, F.. Maintenance
for women rhetoric of equality. Cambridge Dictionary | English Dictionary,
Translations & Thesaurus.(1992, October 10)
https://www.jstor.org/stable/4398994?read-now=1&seq=1
9. Agnes, F. India's
Family Laws Are Discriminatory. That's Why Judges Shouldn't Be 'Neutral' on
Gender. The Wire. (2021, November 25) https://thewire.in/women/indias-family-laws-are-gender-blind-judges-shouldnt-be-afraid-to-question-them
10. Dubey, N.,
& AGARWAL, P. . GENDER-NEUTRAL MAINTENANCE NEEDED: REVISITING SECTION 125
OF CR.PC. The Daily Guardian.(2021, May 26) https://thedailyguardian.com/gender-neutral-maintenance-needed-revisiting-section-125-of-cr-p-c/
11. Garg,
R. Husband's right to claim maintenance.
iPleaders.(2021, July 11)
13. Garg, R. Analyzing
maintenance for men in India under different personal laws. iPleaders. (2021,
December 9). https://blog.ipleaders.in/analyzing-maintenance-for-men-in-india-under-different-personal-laws/
14. Kaur,
G. Indian Laws Relating To Maintenance.
Legal Service India.
16. Khan, A. 'Wife
who can sustain herself not entitled to maintenance' | Delhi News - Times of
India. Times of India. (2019, June 3) https://m.timesofindia.com/city/delhi/wife-who-can-sustain-herself-not-entitled-to-maintenance/amp_articleshow/69625591.cms
17. Mehta, A.,
Nandu, M., & Singh, T. Women And Maintenance - Divorce - India.
Mondaq.(2021, March 10). https://www.mondaq.com/india/divorce/1034554/women-and-maintenance
18. Padmasree,
Y. J. MAINTENANCE UNDER VARIOUS LAWS. District Courts. https://districts.ecourts.gov.in/sites/default/files/1-Maintenance%20-%20by%20Smt%20YJ%20Padmasree.pdf
19. Rai, D. Concept
of Maintenance in Hindu Marriage Act, 1955. iPleaders. (2019, June 13)
21. Rai, D. Do
earning wives have the right to maintenance? iPleaders. (2020, April 24).
23. Rathi, B. Maintenance:
A Gender Neutral Law? Legal Service India.
https://www.legalserviceindia.com/legal/article-5831-maintenance-a-gender-neutral-law-.html
24. Shah, S. Comparative
Study of Laws of Maintenance in Hindu, Muslim, Christian and Parsi Personal
Laws in India. Goforthelaw.com. http://www.goforthelaw.com/articles/fromlawstu/article65.htm
[1] Badshah v. Urmila Badshah Godse (2014) 1 SCC 188
[2] Mohd. Ahmad
Khan v. Shah Bano Begum AIR 1985
SC 945
[3] Daniel Latiffi v. Union of India 2001 (7) SCC
[4] Badshah v. Urmila Badshah Godse (2014) 1 SCC 188
[5] Dwarika Prasad
Sathpathy v. Bidyut Prava Dixit &
Anr AIR 1999 SC 3348
[6] K. Vimal v. K. Veeraswamy 1991 SCR (1) 904
[7] Badshah v. Urmila Badshah Godse (2014) 1 SCC 188
[8] Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr 2011 (1) SCC 141
[9] Rajnesh v. Neha AIR 2021 SC 569
[10] Chanchal Mehta v. Supriya Mehta Crl. Revn. No. 365 of
2016
Article Information
MAINTENANCE; LEGAL EVOLUTION OF ITS SCOPE AND ITS FUTURE BY: MAHIMA JAYAN & GOPIKA S NAIR
Authors: MAHIMA JAYAN, GOPIKA S NAIR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/25
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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