Open Access Research Article
MEN’S RIGHT TO ALIMONY: AN ANALYSIS UNDER INDIAN LEGAL SYSTEM AND PATRIARCHAL STRUCTURE OF SOCIETY
Published Paper
Article Details
MEN’S RIGHT TO
ALIMONY: AN ANALYSIS UNDER INDIAN LEGAL SYSTEM AND PATRIARCHAL STRUCTURE OF
SOCIETY
AUTHORED BY - PAYEL GHOSH,
Research Scholar,
Department of Legal Science, Techno India University, West
Bengal
CO-AUTHOR - DR. DEBASHREE CHAKRABORTY,
Faculty of Law, Department of Legal Science,
Techno India University, West Bengal.
ABSTRACT
Alimony is a right to get the
necessities which are justified and reasonable. It can also be said as spousal
support. It would include means of subsistence, supply of necessaries and
conveniences, aid, support, assistance, the support which one person who is
bound to extend, gives to another for his/her living. It would also include
medical and other expenses related to normal pursuit of life, so that a person
can live in the manner, more or less, to which he/she is accustomed. It may be
considered as a legal marital obligation of a partner in a marriage to provide
financial support to the other partner following a separation or divorce. India
and its people came a long way to attain gender equality. To erase
discrimination on the ground of sex, major steps have been taken.
Constitutional amendments, adoption of new policies, enactment of new laws,
overruling of old judgments etc. are few examples of those steps. But it is
surprising and shocking at the same time to know that inequality still remains
in almost every home in India. Inequality in marriage is the biggest example of
it. Indian patriarchal society, since the very beginning, has imposed attitudes
and behaviours on human beings on the basis of gender which always affected the
institution of marriage, laws relating to marriage, divorce and alimony. It has
always been believed that if women start to earn, it would be impossible to
limit their liberty and freedom anymore. Considering all the factors since
early ages, this paper seeks the intention of the legislatures of the laws
relating to alimony. This paper argues that most of the alimony provisions in
Indian laws create unequal status of the parties to a marriage. This inequality
is helping women to remain in inferior position in a wedlock and somehow
keeping them in an apprehended vulnerable position.
Keywords: Marriage, Alimony, Personal Laws,
Criminal Laws, Gender Inequality, Patriarchy
INTRODUCTION
Marriage is demonstrated to be a
universal social institution. It is established with the objective to control
and regulate the life and behaviour of human beings. Right to marriage under
Indian Constitution is guaranteed under Article 21 which states about the right
to life as a fundamental right to every person in the country. Rituals,
ceremonies and registration mandate of a marriage in India differs from
religion to religion, region to region and each such religion has an individual
set of personal laws governing the sacrosanctness of marriage.
India and its people came a long way
to attain gender equality. To erase discrimination on the ground of sex, major
steps have been taken. Constitutional amendments, adoption of new policies,
enactment of new laws, overruling of old judgments etc. are few examples of
those steps. But it is surprising and shocking at the same time to know that
inequality still remains in almost every home in India. Inequality in marriage
is the biggest example of it. Indian patriarchal society, since the very
beginning, has imposed attitudes and behaviours on human beings on the basis of
sex which always affected the institution of marriage, laws relating to
marriage, divorce and alimony. Despite the Constitution of India, considering
all men and women as equal entities, there still exist some laws and
legislations in the country that remain partial to a particular gender. The
branch of alimony laws in India is one of those.
In most systems of law the wife’s
special provision in her husband’s household is recognised. In the patrilineal
family structure, management of the husband’s household has been the main task
of the wife. The patriarchal society did not contemplate and consider it to be
her role or duty to be engaged in the earning of wealth. In the modern society
also, most wives are still financially dependent on their husbands. This is
reflected in law by the rule that wife can pledge the credit of her husband for
necessities. Most systems of law recognise the direct obligation of the husband
to maintain his wife so long as marriage subsists and his wife remains faithful.
In the modern legal system, the responsibility exists even after the
dissolution of marriage.[2]
CONCEPT OF
ALIMONY
In simple words, alimony is a right to
get the necessities which are justified and reasonable. The Latin term ‘alimonia’
from which the English term ‘alimony’ has been derived actually means
sustenance. It can also be said as spousal support. It would include means of
subsistence, supply of necessaries and conveniences, aid, support, assistance,
the support which one person who is bound to extend, gives to another for
his/her living. It would also include medical and other expenses related to
normal pursuit of life, so that a person can live in the manner, more or less,
to which he/she is accustomed. It may be considered as a legal marital obligation
of a partner in a marriage to provide financial support to the other partner
following a separation or divorce. The object of alimony is to provide
financial support by one partner to other who has a lower income or no income
at all to meet his or her basic necessities. According to the definition given
by Corpus Juris, alimony is the allowance required by law to be made to a wife,
out of her husband’s estate for her support either during the pendency of the
matrimonial suit or on its termination, where the fact of the marriage is
established and she proves that she is entitled to a separate maintenance. Like
maintenance, alimony denotes the existence of an obligation on the part of a
person to provide for the need of another person or persons who is or are in one way or the other related to, or
dependant upon him.[3] Though the term ‘alimony’ doesn’t
have any statutory definition, but the term ‘maintenance’ has been defined
under Section 3(b) of Hindu Adoption and Maintenance Act, 1956. According to it,
maintenance includes provision for food, clothing, residence, education and
medical attendance and treatment. In the case of an unmarried daughter, it also
includes the reasonable expenses of and incident to her marriage.
HISTORICAL
BACKGROUND
In most areas of the Indian
socio-legal structure, it has been the general practice to grant alimony to a
wife obtaining a divorce or separation. The exercise of granting alimony to the
wife and not to the husband arose out of the common law obligation of the husband
to support his wife and family.[4] Gender polarisation is a concept in
sociology by American psychologist Sandra Ben which states that societies tend
to define feminity and masculinity as polar opposite genders, such that male -
acceptable behaviours and attitudes are not seen appropriate for women and
vice-versa. The theory is an expansion of the sex and gender differentiation in
sociology in which sex refers to the biological distinction between men and
women, while gender refers to the cultural differences between them, such that
gender describes the “socially constructed roles, behaviours, activities and
attributes that a given society considers appropriate for men and women.” From
the ancient period of time, society has been fixing what a man should do and
what a woman should do. Husbands are playing the role to earn for the family,
to meet the expenses, to pay maintenance i.e. to take all the financial
liabilities which has been superimposed by society and wife has the role to
take care of the house, the children and in case of separation or divorce, to
claim maintenance. The cruel truth is that our culture expects men to be the
primary bread earner in the family and there are simply more options for women
to do part-time work or to take care of children, husband and in-laws.
INDIAN LEGAL
SYSTEM
Part III of the Indian Constitution
has given its citizen certain exclusive fundamental rights which are to be
enjoyed against the State. This part provides with, inter alia, the right to
equality and right to life which are extraordinary rights and can never be
denied by the State. The concept of equality has been held rudiment to the rule
of law and is regarded as the most fundamental hypothesis of republicanism.[5] The majority of the Supreme Court has
held in the case of Indira Nehru Gandhi v. Raj Narain,[6] that the right to equality conferred
by Article 14 is a basic structure of the Constitution and an essential feature
of democracy or rule of law. It has been held to be a right which more than any
other is a basic principle of our Constitution.[7] It was interpreted icy the Supreme
Court in the case of Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical
College,[8] that the rule of equality is not an
absolute one and there are a number of exceptions to it. Right to equality and
equal protection of law must become a living reality for the large masses of
the people. Those who are unequal, cannot be treated by identical standards. It
may be equality in law but it would certainly not be real equality. But gender
based reservation system did not succeed in achieving gender equality in India.
As per Article 21, the right to life
includes the right to live with human dignity and all that goes along with it,
namely, the bare necessities of life such as clothing, sufficient nutrition and
shelter over the head and facilities for writing, reading and expressing
oneself in diverse forms, freely moving about and mixing and commingling with
fellow people.[9] It was also held by the Supreme Court
that right to livelihood is also an important facet of right to life. If the
right to livelihood is not treated as a part of the constitutional right, the
right to life, the easiest way of depriving person of his right to life would
be to deprive him of his means of livelihood to the point of repudiation.[10]
Article 39A of the Indian
Constitution, which was inserted by the Constitution (42nd Amendment) Act,
1976, states that the State is under obligation to ensure and secure the
operation of legal system which is to promote justice on a basis of equal
opportunity, o provide free legal aid by appropriate legislation or schemes and
to ensure that opportunities for securing justice are not denied to any citizen
by reason of economic difficulties or other disabilities.[11] It falls within the broad header of
the Directive Principles of State Policy which states that the State shall
direct its policies toward ensuring that all citizens, men and women alike,
have access to a sufficient means of subsistence, that children are provided
with opportunities and facilities to develop in a dignified and healthy manner
and that childhood and youth are protected from exploitation and moral and
material desertion.
ALIMONY UNDER
PARSI LAW
The Parsi Marriage is regarded as a
contract through a religious ceremony of Ashirvad which is necessary for its
validity. The Parsi Marriage and Divorce Act at present was passed in 1865.
Since then the circumstances have greatly changed and there has also been a
change in the sentiments and thoughts of the Parsi community. Now, Parsi law
for marriage and divorce is regulated and monitored by the Parsi Marriage &
Divorce (Amendment) Act, 1988.
Section 39 of the Act deals with
alimony pendente lite. According to this section, if an application made before
the court for alimony by either the husband or the wife who has no independent
income sufficient for his or her support and the necessary expenses of the
suit, the court may order the defendant to pay to the plaintiff, the expenses
of the suit and such weekly or monthly sum, during the suit, as having regard
to the plaintiff’s own income and the income of the defendant.
Section 40 states that any court
exercising jurisdiction under this Act may, at the time of passing any decree
or at any time subsequent thereto, on an application made to it either by the
wife or the husband, order that the defendant shall pay to the plaintiff 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 plaintiff as taking into
consideration the income and owned property of both the parties, their conduct
and other facts and 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
movable or immovable property of the defendant.
The court, on application by either
party and after getting satisfied, may verify, modify or rescind any previous
order as it thinks fit. The order in favour of wife can be cancelled if it is
found that she is remarried or has not remained chaste and in favour of
husband, if it is found that he had sexual intercourse with any woman outside
wedlock.
According to section 41, in all cases
where the court shall make any decree or order for alimony, it may direct the
same to be paid either to the wife herself, or to any trustee on her behalf to
be approved by the Court or to a guardian appointed by the court and may impose
any terms or restrictions which to court may seem expedient and may from time
to time appoint a new trustee or guardian, if for any reason it shall appear to
the court expedient to do so.
ALIMONY UNDER
HINDU LAW
Under Hindu Law, in certain cases the
duty and obligation of a Hindu to maintain others arises from the mere
relationship between the parties, independently of the possession of any property.
In other cases, it depends altogether on the possession of property.[12] The former liability may be called
as personal liability or absolute
liability or liability on account of relationship and the later is the
liability restricted by the possession of ancestral or other property.[13]
According to Hindu Law, a member of
the family is entitled either to a share in the ancestral property or
maintenance out of the income of that property. Wife, widowed daughter-in-law,
children and aged parents and dependants of the deceased are the persons who
are entitled to maintenance under Hindu Adoptions & Maintenance Act, 1956.
Section 18 of the Hindu Adoption &
Maintenance Act, 1956 deals with the maintenance of wife only. There is no
mention regarding the right of a husband to claim maintenance or alimony from his wife. Prior
to this Act the Hindu Married Women’s Right to Separate Residence and
Maintenance Act, 1946, was in force but this Act has now been replaced by
Section 29 of the Hindu Adoption and Maintenance Act, 1956.[14] According to section 18(1), a Hindu
married woman, irrespective of the date of marriage, shall be entitled to be
maintained by her husband and this obligation on her husband will continue
throughout the life of the wife. The right of the wife to claim maintenance
from her husband in her personal right against her husband and it arises
irrespective of the fact whether the husband has got any property either
ancestral or self acquired.[15] A wife entitled to be maintained out
of the profits of her husband’s property and under the express terms of Section
39 of the Transfer of Property Act,[16] can enforce her right against the
properties in the hands of the alience with notice of her claim.[17] Thus, the right of a wife for
maintenance is an incidence of the status or state of matrimony and a Hindu
under a legal obligation to maintain his wife. The liability to maintain the
wife is completely personal liability and arises from the very existence of the
relation between the parties. Section 18 of the Act, substantially reiterates
that right and lays down the general rule that a Hindu wife, whether married
before or after commencement of this Act, is entitled to be maintained by her
husband during her lifetime. According to section 18(2), a Hindu wife shall be
entitled to live separately from her husband without forfeiting her claims to
maintenance if he is guilty of desertion i.e. absconding her without reasonable
cause and without her consent or against her wish or wilfully neglecting her or
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 or if
he is suffering from a virulent form of leprosy or if he has any other wife
living or habitually resides with a concubine elsewhere or if he has ceased to
be a Hindu by conversion to another religion or if there is any other cause
justifying her living separately. But the wife shall not be entitled to
separate residence and maintenance from her husband if she is unchaste or cease
to be a Hindu by conversion to another religion. Where the wife claims separate
residence, the burden lies upon her to show the special circumstance which
entitles her to a separate residence.
Sections 24 & 25 of Hindu Marriage
Act, 1955 deals with maintenance and surprisingly, it gives the right to claim
maintenance both to the husband and the wife. Section 24 of the Hindu Marriage
Act deals with maintenance pendent lite during the proceedings between a
husband and a wife, while Section 25 of this Act deals with permanent alimony
and maintenance to be fixed at the time of passing any decree or subsequent
thereto. According to Section 24, if it appears before the Court at any time
during the pendency ofd a proceeding under this Act that either the wife or the
husband has no independent income sufficient for his or her support and the
necessary expenses of the proceeding, the court may order to the respondent to
pay to the petitioner the expenses of the proceeding and a reasonable monthly
expense during the preceding after considering the petitioner’s own income and
the income of the respondent.
Maintenance pendente lite means any of
the spouses is financially weak and filed any matrimonial relief against the
other spouse and the proceedings are still pending, the spouse weak in
financial position can claim maintenance during the pending of the litigation.[18] Section 24 of the Act not only
recognises the principle of the right of a wife for maintenance but goes a step
further to lay down that such an order can be made by the court even in favour
of the husband. If the husband is himself dependent, he need not pay for
maintenance. In Smt. Pramila Bhatia vs. Vijaya Kumar Bhatia,[19] the Court held that when husband is
unemployed and dependent on his mother, wife is not entitled to maintenance.
The object behind section 24 of the Act is to provide financial assistance to
the indigent spouse to maintain himself or herself during the pendency of the
proceedings and also to have sufficient fund to defend or carry on the
litigation so that spouse does not unduly suffer in the conduct of the case for
want of fund[20] and to ensure that any party to
marriage against whom a matrimonial litigation has started does not suffer
injustice on account of his or her poverty.[21] It has been ruled by the Court that
in absence of any special circumstance, one fifth of the entire income of the
husband’s income must be parted by him towards maintenance of his wife.[22] But it has been overruled that it is
not mandatory on the court that one fifth of the net income of the husband (or
wife) should be awarded by way of interim maintenance to the applicant.[23]
Thus, the application for maintenance
can be made either by the ‘wife’ or ‘husband’. Granting of maintenance to a
husband was entirely new and exceptional concept accepted in the Indian
Jurisprudence by sections 24 & 25 of the Hindu Marriage Act. Once it is
established that the applicant has no sufficient means for her or his
maintenance and support, the court should pass an order of maintenance. These
sections are considered as welfare legislation. Right to maintenance under
section 25 would include right to residence too.[24]
High Court opined that a reading of
sections 24 and 25 of the Hindu Marriage Act, 1955 together would reveal that
both the sections are angling provisions and confer a right on the indigent
spouse to claim maintenance either pendente lite or in the nature of permanent
alimony and maintenance.
ALIMONY UNDER
MUSLIM LAW
It has been contended that the
Mohammedan Law as to maintenance is a law of imperfect obligation imposing a
moral and not a legal obligation.[25] It is incumbent on a husband to
maintain his wife, whether she be Muslim or Kitabiya, poor or rich, enjoyed or
unenjoyed, young or old. In case where the wife is too young for matrimonial
intercourse, she has no right to get maintenance from her husband, whether she
is living in his house or with her parents.[26] This broad and wide obligation is
restricted only in cases where he is not obedient and does not allow the
husband free access at all lawful times. If the husband has not paid the prompt
part of dower or she refuses to live with her husband because of cruelty, the
husband is bound to maintain her.[27] Where husband has married a second
wife or keeps mistress, the wife may refuse to live with the husband and still
claims maintenance from him. Section 3 of the Muslim Women (Protection of
Rights on Divorce) Act, 1986 entitles a divorced woman to (i) reasonable and
fair provision, (ii) maintenance to her, (iii) provision and maintenance to her
children for two years, (iv) mar amount and (v) all properties given to her
before, at the time of and after her marriage. This Act was enacted to protect
the rights of Muslim women who have been divorced by, or have obtained divorce
from their husbands and to provide for matters connected therewith or
incidental thereto. Section 5 of the Act mentions that the parties are having
an option to declare jointly, if both give consent, to be governed by either
the CrPC or the new Act. Section 7 of the Act provides that every application
made by the wife under section 125 or 127 CrPC pending before the magistrate on
the commencement of the Act shall be disposed of in accordance with the
provisions of this Act. The Court also held that the Act nowhere nullifies the
orders passed under section 125. Once that order is passed, her rights are
established and she gets vested right to recover maintenance allowance from her
former husband. That vested right has not been taken away by Parliament.[28]
ALIMONY UNDER
CRIMINAL LAW
As per the Law Commission, primary
reason and justification for placing provisions relating to maintenance to
wives, children and parents which are civil in nature in the Code of Criminal
Procedure is that a remedy more speedy and economical than that available in
Civil Courts is provided to them. Moreover, these provisions are aimed at
preventing starvation and vagrancy leading to the commission of crime. Section
125 of Code of Criminal Procedure enacts if any person having sufficient means
neglects or refuse to maintain his wife, children or parents, unable to maintain
themselves, a judicial magistrate first class may order such person to pay
maintenance to them at such rate as he deems fit. This section is a summary
remedy which aimed at preventing starvation, destitution and vagrancy of
dependents. The principal object of this section is to secure relief to
deserted and destitute wives, discarded and neglected children and disabled and
helpless parents.[29] By providing a simple, speedy and
limited relief, cumbersome process of civil law is avoided by compelling those
persons whose duty is to maintain their dependents who are unable to maintain
themselves. As per Law Commission’s 41st Report, no wife, child or parent can
be left beggared and destitute on the scrap-heap of society so as to be tempted
to commit crime in regard to them.[30] In this provision also, it was not
even thought that a man in a marriage can also be in helpless and destitute
position. Because the society always thinks that a wife is the only party in a
marriage who can be financially weak and can be helpless. As the result of
gender polarisation, women have always been tagged as vulnerable and weaker
section of the society and it is assumed that only they can be in a position in
need of support.
It has been interpreted in Avitaben
v. State of Gujarat,[31] Chaturbhuj v. Sita Bai,[32] and Shabana Bano v. Imran Khan[33] that this section has been enacted to
achieve goal of social justice and is aimed to protect women, children and old
parents by putting emphasis on moral and fundamental duty of a man to maintain
his wife, children and parents, if they are unable to maintain themselves. It
was held by the courts in various cases that section 125 is a measure of social
justice and specially enacted to protect women and children which falls within
the constitutional sweep of Article 15(3) reenforced by Article 39 of the
Constitution. The section is intended to prevent starvation of wives deserted
by their husbands, children neglected by their fathers and parents discarded by
their sons. Legislation in favour of such weaker section of the society cannot
be said to be arbitrary or unreasonable offending Article 14 of the
Constitution.[34] The Bharatiya Nagarik Suraksha
Sanhita, 2023 replaces the Code of Criminal Procedure, 1973. But the contents
and procedures of these provisions remain same in the sections 144 to 147
JUDGMENTS IN
FAVOUR OF HUSBANDS
There have been several cases in which the Courts the
decision in favour of the husband and rejected the claim of maintenance to the
wife either due to wife’s own fault or her sound financial condition.
In the case of Bhagyashri v. Jagdish,[35] the Bombay High Court has recently asked a wife to
pay alimony to her former husband and said either of the spouses can claim
alimony under provisions of the Hindu
Marriage Act. A local court in Maharashtra's Nanded had earlier directed the
woman to pay Rs. 3000/- to her divorced husband who is unable to maintain
himself and is in need of money. The Bombay High Court upheld the orders of the
local court. The marriage came to an end in 2015 after 23 years and the wife is
a university teacher. The Court stated that the provision of
maintenance/permanent alimony being a beneficial provision for the indigent or
needy spouse can be invoked by either of the spouse where a decree of any kind
by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or
adversely affected by such decree of the court. In the year 1992, the couple
got married and were divorced in 2015 after the wife approached the court
alleging cruelty. The husband then filed a petition for alimony of Rs. 15000/-
per month and claimed he did not have any source of income. He also mentioned
that he encouraged his wife to complete her higher studies while he managed the
household. The wife claimed the husband had his way of income and earned
sufficiently. She stated that the husband had a grocery shop and also earns
from leasing out his auto-rickshaw, while she has to take care of their
daughter too. The wife's counsel had opposed the alimony claim on the point
that the divorce was granted in 2015, the ex-husband moved for alimony in 2017.
The High Court explained that the argument is not maintainable as alimony can
be sought at any time. Until the plea of permanent alimony of Rs. 15000/- per
month is decided, the woman was asked by the Nanded Civil Court to pay
maintenance of Rs. 3000/-. The order has been upheld by the Bombay High Court.[36]
Lalit Mohan v. Tripta Devi[37] was one of the few early landmark cases that dealt
with the maintenance of the husband by his wife. The Jammu and Kashmir High
Court observed that the wording ‘wife or husband’ in sections 24 & 25 of
Hindu Marriage Act, 1955 indicated that either of the parties to the marriage
can seek relief under the Act including maintenance pendente lite and permanent
alimony. It was stated by the Court that this Act’s provision on maintenance
was clearly separate from section 125 of the Code of Criminal Procedure, 1973.
Under the Hindu Marriage Act, 1955, either party to the marriage might be given
support and expenses of the proceedings if the circumstances are sufficient.
The provisions were introduced on social and moral grounds with the goal of
ensuring that the party could support himself or herself during the course of
the proceedings because there was no freedom to form another marriage. The
legislature had the intention to offer financial proceedings and after the
passing of the decree. The other spouse owes it to the aggrieved spouse to
offer financial help so that the processes can be carried out and that he or
she is not subjected to famine or moral degradation while the proceedings are
pending. The facts and circumstances of this case revealed that the husband had
no independent income and that the respondent wife was able to give the husband
support under the Act. The Court was convinced that the petitioner was entitled
to alimony pendente lite, expenses of the proceedings and permanent alimony
based on the respondent’s own income and income from other properties, the
petitioner’s earning ability and the parties’ conduct. Considering the facts
and circumstances and all the parameters of the case, it was ordered that the
respondent wife must pay Rs. 500/- as court expenses and Rs. 100/- per month as
maintenance pendente lite and permanent alimony to the petitioner, husband from
the date of application until his death or remarriage, whichever comes first.
In the case of Gurbinder Singh,[38] while
divorce and various other proceedings were going on, both the parties were made
to sign a mutual settlement according to which they had to sign undertaking.
The undertaking kept both husband and wife under obligation and condition of
not to interfere in their personal affairs of each other and also not to
disturb their parents or relatives. It explicitly put restrictions upon both
parties to do anything which could affect the character or reputation of the
other. The respondent also made it clear that she will not take any action
against their children, provided that they were living with the petitioner at
that time. In August 2004, the wife again filed an application under section
125 of the Code of Criminal procedure in Jalandhar Court. Following the
application, the respondent was made to give the perusal of an ex party order.
It clearly showed that she suppressed the material facts from the court. While
applying for maintenance, she did not disclose that she was a teacher in a
school in Jalandhar and that she filed affidavit in the High Court that she
will not harass her husband. It was found by the Court that she was filing the
application for maintenance only to harass her husband and this clearly
violates the undertaking signed between them. Her conduct of suppressing
material facts from the Court and obtaining an ex parte order made her guilty
of contempt of court and was liable to pay a fine of 10,000/- rupees. The
husband was not under any obligation to maintenance to her.
DRAWBACKS
After a deep analysis of the legal provisions
regarding alimony in India, it can be clearly noted that the existing laws are
not gender neutral. The principle of equality has been reflected only in the
provisions of the Parsi Marriage and Divorce Act, 1936 and the Hindu Marriage
Act, 1955. These provisions allow both the parties to a marriage to move before
the court for filing a maintenance petition and get support. On the other hand,
provisions of Hindu Adoption and Maintenance Act, 1956; Muslim Personal Laws,
Special Marriage Act, 1954; Section 125 of Code of Criminal Procedure; the
Indian Divorce Act allow a wife and only a wife to claim maintenance. Many of
these laws were made ages ago. Structure of society, structure of family,
opportunities, mentality and thoughts of people were different. Illegitimate
hierarchy played a negative role in a family throughout years and decades. Now,
everything came forward but certain laws. Alimony and maintenance provisions of
the above mentioned legislations continued to remain unequal, uneven and
slanted. It must be noted that there are number of maintenance orders which
have been given in favour of husbands.
CONCLUSION AND SUGGESTIONS
Provisions for alimony in India is absolutely needed
and indispensable. But as the institution of marriage is a partnership of life,
the inequality in alimony laws is queer and should be erased. This inequality
is helping women to remain in inferior position in a wedlock and somehow
keeping them in an apprehended vulnerable position. Most of the alimony
provisions in Indian laws create unequal status of the parties to a marriage.
Even though Constitution is treating them alike, they are equal before law,
some provisions are discriminating them in certain issues and being partial,
increasing the gap between the status of two genders.
Keeping Article 15 (3) of the Indian Constitution in
mind, multiple legislations are there for the protection of women and
upliftment of their status. But the alimony laws being gender biased,
discriminatory, partisan, prejudiced and partial, are pulling them back. If a
girl knows from the very beginning that she and only she in a marriage is
entitled to get maintenance no matter what, her desire to be capable of earning
will be questioned. It will always remain to be a choice to her to earn.
Support system makes human being dependant and without financial independence,
women will remain to be in inferior position in a marriage. If granting
maintenance to a skilled person promote idleness then it must be for both the
parties to a marriage.
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Article Information
MEN’S RIGHT TO ALIMONY: AN ANALYSIS UNDER INDIAN LEGAL SYSTEM AND PATRIARCHAL STRUCTURE OF SOCIETY
Authors: PAYEL GHOSH, DR. DEBASHREE CHAKRABORTY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/13
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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