Open Access Research Article
MAINTENANCE RIGHTS OF A HINDU SPOUSE – ANATOMY OF LEGAL PROVISIONS
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Article Details
MAINTENANCE RIGHTS OF A HINDU
SPOUSE –
ANATOMY OF LEGAL PROVISIONS
ANATOMY OF LEGAL PROVISIONS
AUTHORED BY - MANISH DULANI
Introduction
In common parlance the Maintenance
could be understood as a certain amount or basic resources provided to a person
for his/her sustaining a minimum basic way of life.
As a purpose the Maintenance
ensures that the standard of living of the those who are dependent/entitled is
in accordance with status they have had before and that they are not forced to
starve, suffer or face vagrancy by mere reason of not having adequate means to
support.
The Maintenance as a
measure provided by law is not to punish a person for his previous deeds, but
to protect rights of those who cannot support or maintain themselves.
The Maintenance is
granted keeping in view the living standards and status of person liable to
maintain and person to be maintained while ensuring that it’s not too harsh on
the person liable and not too favorable for one entitled to.
When looked at with the
legal perspective the provisions granting Maintenance to a Hindu are dealt with
in Section 24 and 25 of the Hindu Marriage Act, 1955, Section 18 of the Hindu
Adoptions and Maintenance Act, 1956 and Section 125 of the Code of Criminal
Procedure,1973.
This article covers a deep
analysis and not just the copy paste of laws to have a better understanding and
interpretation of the subject-matter.
Statutory Advice: This article and any part
thereof should not in any way be construed as a Legal
advice/opinion/guidance/suggestion etc. of any kind. This article has been published
in the public domain only for educational and informational purposes only and
use/reproduction of this article or any part thereof, in any manner whatsoever,
shall in all cases require specific written consent of the author.
|
Dear Reader,
This article is
broadly interpretative in nature and at many a place the words have been
reproduced to impart better understanding of subject matter and because of
same the article may be a little long to be read in a go and hence for the
sake of convenience I have analyzed the above-mentioned provisions in 3 parts
in the following order:
- Section 24 and 25 of the Hindu Marriage Act,
1955
- Section 18 of the
Hindu Adoptions and Maintenance Act, 1956
- Section 125 of the
Code of Criminal Procedure, 1973
To the extent possible I have tried to
keep this article relevant, practical and a bit thought provoking but still
there may be ambiguities, perceptions and for the same a sincere pardon.
|
Part - 1
(Section
24 and 25 of the Hindu Marriage Act, 1955 (“the Act”))
Provision
S. 24 - Maintenance
pendente lite and expenses of proceedings.
1)
Where in any proceeding
under this Act it appears to the court that either the wife or the husband, as
the case may be, has no independent income sufficient for her or his support
and the necessary expenses of the proceeding, it may, on the application of the
wife or the husband, order the respondent to pay to the petitioner the expenses
of the proceeding, and monthly during the proceeding such sum as, having regard
to the petitioner’s own income and the income of the respondent, it may seem to
the court to be reasonable.
Provided that the application for the payment of the
expenses of the proceeding and such monthly sum during the proceeding, shall,
as far as possible, be disposed of within sixty days from the date of service
of notice on the wife or the husband, as the case may be.
Analysis
Sub-Section – (1)
·
Pendency of proceeding
The amount can be
ordered to be provided by courts only if the proceeding is pending before court
under any provision of the Hindu Marriage Act, 1955 as provision provides that “where
in any proceeding under this act”.
·
Enabling provision
The above section is an
enabling provision which gives a discretionary right to court to determine the
expenses to be paid by respondent to petitioner with reading as “it
appears to the court that either the wife or the husband, as the case may be,
has no independent income sufficient for her or his support and the necessary
expenses of the proceeding, it may, on the application of the wife or the
husband, order the respondent to pay to the petitioner the expenses”
·
No independent income source
To have the right on
expenses and other amount it is important that the party seeking it should not
have any independent income which is sufficient/reasonable to live his/her life
and also to continue the proceedings of the case as provision provides that “that
either the wife or the husband, as the case may be, has no independent income
sufficient for her or his support and the necessary expenses of the
proceeding”.
·
No gender bias
The right on expenses
and other amount can be given to either the wife or husband depending on each
case but not to any other person except them as provision provides “that
either the wife or the husband, as the case may be”.
·
Reasonability
The amount provided by
the court be a reasonable sum considering the income of both the petitioner and
respondent, as the provision provides “having regard to the petitioner’s own
income and the income of the respondent, it may seem to the court to be reasonable”.
·
No suo-moto cognizance allowed
The court cannot suo-moto
order payment by one party to other party but can do so only when an
application for the same has been filed made either by husband or wife as the
provision provides “it may, on the application of the wife or the husband”.
·
Statutory time limits
If the application is
made by any party the same will be decided within 60 days (not absolute but
directory time limit) as provision provides “the application for the
payment of the expenses of the proceeding and such monthly sum during the
proceeding, shall, as far as possible, be disposed of within sixty days” and time limit shall be counted from the date
when notice is served on wife/husband (i.e. respondent) as provision
provides “sixty days from the date of
service of notice on the wife or the husband”.
S. 25 - Permanent
alimony and Maintenance.
1)
Any court exercising
jurisdiction under this Act may, at the time of passing any decree or at any
time subsequent thereto, on application made to it for the purpose by either
the wife or the husband, as the case may be, order that the respondent shall pay
to the applicant for her or his Maintenance and support such gross sum or such
monthly or periodical sum for a term not exceeding the life of the applicant
as, having regard to the respondents own income and other property, if any, the
income and other property of the applicant, the conduct of the parties and
other circumstances of the case, it may seem to the court to be just, and any
such payment may be secured, if necessary, by a charge on the immovable
property of the respondent.
Analysis
Sub-Section – (1)
·
End of Proceedings
The provision provides
that the court dealing with matter may order for a sum as Maintenance only
during passing the decree of the case or any time after that, reproduced:
“Any court exercising jurisdiction under this
Act may at the time of passing any decree or at any time subsequent”.
·
No gender bias
The provision provides
that an application can be given by either the wife or husband depending on
each case but not any other person, reproduced:
“On
application made to it for the purpose by either the wife or the husband, as
the case may be”.
·
Up to the life of applicant
The provision provides
that sum can be provided only upto the life of applicant and it doesn’t matter
that there’s any person also dependent on such applicant, reproduced:
“For a term not
exceeding the life of the applicant”.
·
Reasonability
The provision provides
that amount provided by the court will be a reasonable sum considering the
income of both the applicant and respondent, reproduced:
“Having regard to the respondent’s
own income and other property, if any, the income and other property of the
applicant, the conduct of the parties and other circumstances of the case”.
·
Secured Amount
The provision provides that the court dealing
with the matter may also provide that any sum ordered to be paid by one party
to the other shall be secured by a charge only on an immovable property that
also the respondent’s own property, reproduced:
“And any such payment may be secured, if
necessary, by a charge on the immovable property of the respondent”.
Sub-Section – (2)
·
Subsequent powers of court
The provision provides
that if court is satisfied after making of the order of Maintenance that
circumstances of either party have changed then such order can be varied,
modified, rescinded by the court only when any party applies for the same to
the court as the court is not suo-moto empowered to do so, reproduced:
“If the court is
satisfied that there is a change in the circumstances of either party at any
time after it has made an order under sub-section (1), it may, at the instance
of either party, vary, modify or rescind any such order in such manner as the
court may deem just”.
Sub-Section – (3)
·
Circumstantial Change
The provision provides
if by any reason there comes a change in the circumstances of party in whose favor
the order the was earlier made i.e., remarriage, unchasteness (having sexual
intercourse other than the person one is married to) or in case of husband having
sexual intercourse with any women except whom wedded with, reproduced:
“If the court is
satisfied that the party in whose favor an order has been made under this
section has re-married or, if such party is the wife, that she has not remained
chaste, or, if such party is the husband, that he has had sexual intercourse
with any women outside wedlock”.
However, it can be had
that above provision does not prohibit casual dating (only if there’s no sexual
intercourse between such persons) and another thing that it doesn’t prohibit
gay sexual relations (in case of husband), reproduced:
“That he has had sexual
intercourse with any women outside wedlock”.
Further, the court
doesn’t have suo-moto power in this case as well but only when the other party
applies for it, reproduced:
“It may at the
instance of the other party”.
Further, the order in
such circumstantial change can be
“varied” (to change according
to the situation),
“modified” (to change something especially to make it
more suitable for a particular purpose); or
“rescinded” (terminating the legal effect).
Part - 2
(Section
18 of the Hindu Adoptions and Maintenance Act, 1956 (“the Act”))
Provision
S. 18 - Maintenance of
wife
1) Subject to the provisions of this section, a Hindu wife,
whether married before or after the commencement of this Act, shall be entitled
to be maintained by her husband during her life time.
2) A Hindu wife shall be entitled to live separately from
her husband without forfeiting her claim to Maintenance, ?
(a) if he is guilty of
desertion, that is to say, of abandoning her without reasonable cause and
without her consent or against her wish, or of wilfully neglecting her;
(b) if he has treated
her with such cruelty as to cause a reasonable apprehension in her mind that it
will be harmful or injurious to live with her husband;
(c) * * * * * (omitted)
(d) if he has any other
wife living;
(e) if he keeps a
concubine in the same house in which his wife is living or habitually resides
with a concubine elsewhere;
(f) if he has ceased to
be a Hindu by conversion to another religion;
(g) if there is any
other cause justifying her living separately.
3) A Hindu wife shall not be entitled to separate residence
and Maintenance from her husband if she is unchaste or ceases to be a Hindu by
conversion to another religion.
Analysis
Sub-Section – (1)
·
Specifically Hindu wife
The provision specifically provides the right to Maintenance
only to a Hindu wife as hence a women who was not a Hindu by birth but has
become a Hindu by conversion or by any other means can also apply for Maintenance
under the above provision, reproduced;
“a Hindu wife”.
·
Retrospective effect
The
above provision has both retrospective and prospective effect as it entitles Maintenance
to a Hindu wife whether married before or after the Act coming into force,
reproduced;
“A Hindu wife, whether married before or after the commencement of this Act”.
·
Lifetime entitlement
The Hindu wife is
compulsorily entitled to be maintained during her lifetime as the provisions
mentions the word shall, however the same is subject to the other provisions of the Act,
reproduced;
“Subject
to the provisions of this section, a Hindu wife, whether married before or
after the commencement of this Act, shall be entitled”.
Sub-Section – (2)
·
Entitlement
to live separately
The provision entitles a
wife to live separately which is in addition to her claim to Maintenance,
however by living separately it does not specifically means living in a
separate house or away from the place from her husband and same can be done the
other way as well.
E.g., if the husband and
wife live in 2/3 story house then they may still be ordered to live separately
on different floors, reproduced;
“A Hindu
wife shall be entitled to live separately”.
·
Situations
specified
The provision specifies certain
situations only during which a wife can be entitled to live separately i.e.,
when the husband:
a)
“Is guilty of desertion” –
As there is specific mention of word “guilty” it can be meant that the guilt must have been established already before
the court.
b) “Has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband” –
The “Cruelty” (an intentional or
criminal act that causes pain and suffering) need not to be meant to
cause bodily pain but enough to cause “Reasonable Apprehension” (which could possibly imbibe the apprehension in a man of ordinary
sense) of any potential
harm or injury that could be caused by her husband physically or mentally and should
be enough that living with her husband will be harmful or injurious for her.
E.g.- The husband prolongedly shows fury
towards his wife and breaks the household and other stuff but doesn’t cause any
bodily harm to her, can be said to cause enough cruelty towards his wife to develop
the apprehension that it will be harmful to live with her husband.
c)
“Has any other wife living”-
In this case the husband needs to have another
wife however such wife need not to be a Hindu but can also be from any other
religion and there’s mentioned “Any other wife’’ and also the other one must be living.
However, there arises an interesting question that if the husband married such
another wife and she died without this thing ever coming into the notice of his
first wife then whether there will arise the attraction of this section by
plain reading it appears No but the same is a case dependent.
d) “Keeps a concubine in the same house in which his wife is
living or habitually resides with a concubine elsewhere” –
In the
above case the husband should have kept the concubine (means a women with
whom a man cohabits without marrying her) in the same house where his wife is
living and hence the house need not to be husband’s own but can be rented/
joint acquired property as well and the other part “habitually resides with
a concubine elsewhere” restricts living by husband with the concubine
elsewhere, however the word habitually used in the section can be interpretated
that husband should reside with her intermittently in a series of time e.g.
once in every 7/15/30 days or so.
Also, the
section uses the word “resides” and not “visits” and thus
there exists an ambiguity that how much time the husband should actually spend
with her, however going with an ordinary prudence and keeping in view the
practice that laws are a bit women centric it can be said that even visiting
the concubine frequently can attract this section, however residing only once
with such concubine may not attract this section.
e)
“Has ceased to be a Hindu
by conversion to another religion” –
In the above case the husband should have adopted the other religion
and not caste as both are completely different from each other also the above
case does not include “renunciation of world” or “ceasing to be Hindu without
adopting any other religion”.
Sub-Section – (3)
·
Disqualifications
The above provision clearly restricts the right to
both the Maintenance and a Separate Residence in 2 cases:
Unchasteness – The unchasteness (sexually
impure, engaging in a sexual activity especially of illicit or extramarital
nature) can be said to be a ground of disqualification because marriage in
Hinduism is considered as a bonding of 2 souls who are believed to stay with
each other for 7 births.
Conversion – If such Hindu wife
converts into the other religion which can happen because of marrying into
different religion or voluntarily adopting other religion, however going with
the common parlance it should not cover forced Religious Conversion.
Additionally-
One thing should be noted in the above
Section that it provides and restricts the rights only in cases the women is
Hindu wife and hence a women who is not a Hindu subsequently marries a Hindu
man and has not converted herself as a Hindu may not be granted the rights
provided above.
Part – 3
(Section
125 of the Code of Criminal Procedure, 1973 (“the Code”))
“Please note that
considering the subject matter of this article only the relevant part of
Section 125 of the Code has been extracted and therefore the forthcoming provision
and all other parts of this article may not contain an exact reproduction of
the aforementioned Section as it has wider scope and covers in its ambit Maintenance
of wives, children and parents”.
Provision
S. - 125 Order
for Maintenance of wives
(a) his wife, unable to
maintain herself
a Magistrate of the
first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the Maintenance of his
wife at such monthly rate as such Magistrate thinks fit and to pay the same
to such person as the Magistrate may from time to time direct:
Provided further that
the Magistrate may, during the pendency of the proceeding regarding monthly
allowance for the Maintenance under this sub-section, order such person to make
a monthly allowance for the interim Maintenance of his wife, and the expenses
of such proceeding which the Magistrate considers reasonable, and to pay the
same to such person as the Magistrate may from time to time direct:
Provided also that an
application for the monthly allowance for the interim Maintenance and expenses
of proceeding under the second proviso shall, as far as possible, be disposed
of within sixty days from the date of the service of notice of the application
to such person.]
Explanation - For the
purposes of this Chapter,
(b) "wife"
includes a women who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.
[(2) Any such allowance
for the Maintenance or interim Maintenance and expenses of proceeding shall be
payable from the date of the order, or, if so ordered, from the date of the
application for Maintenance or interim Maintenance and expenses of proceeding,
as the case may be.]
(3) If any person so
ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the
amount due in the manner provided for levying fines, and may sentence such
person, for the whole or any part of each months [allowance for the Maintenance
or the interim Maintenance and expenses of proceeding, as the case may be,]
remaining unpaid after the execution of the warrant, to imprisonment for a term
which may extend to one month or until payment if sooner made:
Provided that no
warrant shall be issued for the recovery of any amount due under this section
unless application be made to the Court to levy such amount within a period of
one year from the date on which it became due:
Provided further that
if such person offers to maintain his wife on condition of her living with him,
and she refuses to live with him, such Magistrate may consider any grounds of
refusal stated by her, and may make an order under this section notwithstanding
such offer, if he is satisfied that there is just ground for so doing.
Explanation - If a
husband has contracted marriage with another women or keeps a mistress, it
shall be considered to be just ground for his wife’s refusal to live with him.
(4) No wife shall be
entitled to receive an [allowance for the Maintenance or the interim Maintenance
and expenses of proceeding, as the case may be,] from her husband under this
section if she is living in adultery, or if, without any sufficient reason, she
refuses to live with her husband, or if they are living separately by mutual
consent.
(5) On proof that any
wife in whose favor an order has been made under this section in living in
adultery, or that without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual consent, the Magistrate
shall cancel the order.
Analysis
Sub-Section – (1)
·
Deliberate act by husband
The words “neglects or refuses
to maintain” denote the deliberate act by the husband to avoid providing Maintenance to
his wife and hence if such intention is missing on the part of husband the same
would not attract the liability under this provision.
·
Sufficiency
The words “sufficient means” denote that the husband should himself have
sufficient means to provide the Maintenance, however if the husband is himself
a Bankrupt and does not have enough resources he may not be made liable under
this Section.
Sometimes, the husband may in apprehension of a case getting instituted
against him try to divert his resources, but the same may not work considering
the women centric laws of India.
·
Inability of wife
The words “unable to maintain
herself” denote that wife should be in such a state that she can’t maintain
herself out of the resources available with her however the resources can be of
her own or in may a cases be inherited.
e.g., It may happen that two persons may go for a love marriage in which
case the wife may be from an affluent family with enough resources to her share
while the husband may not be and subsequently because of any reason there may
arise attraction of this provision, in such a case the wife can be said to have
sufficient means.
·
Proof of the deliberate act
The words “upon proof of such
neglect or refusal” denote that the claim for Maintenance should be supported with the
evidence of husband’s neglect or refusal in maintaining his wife.
·
Monthly period, amount and
Discretion
The words “monthly allowance” denote the fixed period for providing the allowance to wife i.e. every
month and the words “monthly rate” denote the amount that is to be provided every
month and words “as such Magistrate
thinks fit” denote the discretion of Magistrate in granting the Maintenance to wife
who may depending on case allow or reject the application for Maintenance.
·
Interim Maintenance
The words “Magistrate may, during
the pendency of the proceeding regarding monthly allowance for the Maintenance
under this sub-section, order such person to make a monthly allowance for the
interim Maintenance of his wife” denote the discretion
of magistrate to provide a sum as Interim Maintenance when the matter is
sub-judice and the reason for providing the same could be due to the suit
getting pending once instituted and hence on the side of wife it is advisable
to also mention the interim maintenance as a relief while making application to
magistrate and the words “and the expenses of
such proceeding which the Magistrate considers reasonable” grant discretion to the
magistrate to allow the party to claim the expenses of proceeding as well and
thus the same can be mentioned as a relief along with Interim Maintenance.
·
Statutory time limit
The words “an application for the monthly allowance for the
interim Maintenance and expenses, as far as possible, be disposed of within
sixty days” impose an obligation over magistrate to decide the aforesaid
application within the 60 days wherever possible from date of notice to such
person.
Sub-Section – (2)
·
Broader definition
The words “a women who has been divorced by, or has obtained a
divorce” denote the wider array of the definition of wife and also
include a women who has obtained divorce by herself / who has been divorced by her
husband in which case on the one side the divorce is from the side of wife and
the other is from the side of her husband but on the condition that such women
is not married which going as per the provision does not prohibit live-in
relationships / other form of relationship where such women has not remarried.
Sub-Section – (3)
·
Default by husband
The above sub-section by a plain reading is a stringent one and provides
punishment on failing to comply with order of magistrate however the words “sufficient cause” work as a
protection in the real case scenario.
E.g., if the husband earlier had a good employment or a flourished
business subsequently without any fault on his part faces trouble in his
employment of business and becomes unable to provide maintenance and comply
with the order then he can take protection of such mishappening having happened.
·
Statutory time-limit
The warrant for recovery of any amount due cannot be issued suo-moto by
the court as for the same an application has to be made to the court within a
year from the date such gets due.
·
Supremacy to the wife
The 2nd proviso provides power to the magistrate to consider
and grant maintenance / interim maintenance or expenses on the refusal of wife
to live with her husband on the condition of him maintaining her if there are
justifiable grounds on part of her but the proviso fails to consider the
changing circumstances in the society where such grounds can be fabricated as
well and also the women centric laws.
Sub-Section – (4)
·
Restrictions
The provision restricts rights to Maintenance / Interim allowance /
expenses of proceedings if:
-
“She is living in
adultery”, however the word “living” implies
that she must be in adultery at the time of proceedings and the wife for the
time being may try to get herself out from the adultery to show that there’s no
such thing on her part.
- “Without any sufficient reason, she refuses to live with
her husband” in the given case the sufficient
cause can be a good defense on part of wife
e.g. husband having extra-marital relations, frequent abuses by
husband, threat to life, dowry demands etc.
- “If they are living separately by mutual consent” in this case it is particularly recommended on the part of the husband
to have the mutual consent in writing as in the entire sub-section (4) the
burden to proof appears to lie on the husband.
Sub-Section – (5)
·
Subsequent Cancellation
The language of the provision is
written in the way that even if after the passing of order by magistrate such
order can be cancelled on proof (not specifically by husband) of there being
grounds as same as those mentioned sub-section (4).
Also, it can be inferred from the
sub-section (4) and (5) that the former applies during the proceedings and the
later applies after the proceedings.
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Dear Reader,
The article concludes here and I wholeheartedly thank each of you who
went through it, to the extent possible I tried keeping it as per the opening
note and will be obliged to have all your queries /
suggestions / critics / appraises.
Article Information
MAINTENANCE RIGHTS OF A HINDU SPOUSE – ANATOMY OF LEGAL PROVISIONS
Authors: MANISH DULANI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/16
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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