alimony divorce

In this article, Tisha Chhaparia discusses Reasons why taking dowry will land you in legal trouble.


Abstract

The practice of dowry poses a heavy threat or a hostage-like situation in the life of a woman. Dowry demands pressurize both the bride and her family. Does Alimony do the same to the husband and his family (nowadays the wife’s too) after separation/divorce? In this paper, the author goes into the details of various laws dealing with the dowry, dowry deaths, and alimony. The paper gives an analysis of whether dowry and alimony could be the two sides of the same coin. There has been a growing trend of Alternative Dispute Resolution (ADR) mechanisms in every field of law. In resolving matrimonial disputes, these ADR mechanisms can be effectively used. The author of this paper has discussed recent court judgments encouraging the usage of the same and the various advantages of it.

Introduction


According to the recent survey, India has been ranked as one of the most dangerous countries for women in the world. A survey was conducted by the Ministry of Women and Child Development in which six simple questions were asked to the respondents the most dangerous country for women in terms of human trafficking, including sex slavery and domestic servitude and other customary practices, etc. After the survey, it was concluded that out of 193 United Nations members India is the most dangerous country for women in recent years followed by Afghanistan and Syria.

The Dowry Prohibition Act, 1961

According to The Dowry Prohibition Act, 1961, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly:

  • From one party to a marriage to the other party to the marriage; or

  • By the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

After the enactment of the above Act, there were offences which were left uncovered. The issues of harassment and dowry death became a bigger public concern. In December 1983, the Criminal Law (second amendment) Act was passed, introducing Section 498A to the Indian Penal Code(IPC). According to this section, “cruelty” means“

(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

Later on, section 113A of Indian Evidence Act, 1872 was inserted by Criminal Law (second amendment) Act 46 of 1983, i.e., Presumption as to abetment of suicide by a married woman which states – ”When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband”.

The above section was inserted because there was increasing number of dowry death which was, in fact, a matter of great concern. The tradition of Dowry is so entrenched in the society that, regardless of the various acts and statues, it’s eradication has still been unfulfilled.

Relevant Case Laws

Indrawati v. Union of India

Constitutionality of Section 4 of the Dowry Prohibition Act, 1961 was challenged which states the punishment for demanding dowry. The Allahabad High Court held that the said Section is not unconstitutional, as it does not violate Article 14, 19, 21 and 22 of the Constitution of India.

Madhu S. v. K.C. Bhandari

The Supreme Court observed that furnishing of a list of ornaments and other household articles like furniture, refrigerator, and electrical appliances at the time of settlement of the marriage, amounts to a demand for dowry under the Dowry Prohibition Act.

L.V. Jadhav v. Shankar Rao

The court held that where demand for money is made during marriage ceremony is being performed and is repeated after the ceremony got over, it will be an offence under the Dowry Prohibition Act.

Budhiman Singh v. The State of U.P

The deceased wife had, before being set on fire by her in-laws, written a letter to her father that she was being ill-treated, harassed, and threatened for not fulfilling the dowry demands. “The court held that the offence of demanding dowry under Section 4 of the Dowry Prohibition Act had been committed”.

Dowry has become one of the largest silent killers of women in India. According to the National Crime Records Bureau, the incidence of dowry deaths has been 7,621. “Muslim communities have a token meher (bride price) as well as a more substantial jahez (dowry). The Syrian Christians euphemistically call dowry “share” and it can run into lakhs or crores depending on the social status of the family. In the IT industry, educated women pay huge dowry to marry men who and hold better possess higher educational qualifications than them jobs”. Dowry, dahej, jahez, varadakshina, sthreedhanam, daheri, yautuk, or dahez call it by any name and it still remains a killer.

This gives rise to a very interesting question. Is Alimony the sister of Dowry? Are they two sides of the same coin? Should, Alimony be made illegal?

Meaning of Alimony According to Black’s Law Dictionary

Alimony means “the allowance made to a wife out of her husband’s estate for her support, either during a matrimonial suit, or at its termination, when she proves herself entitled to a separate maintenance, and the fact of a marriage is established. Alimony is an allowance out of the husband’s estate, made for the support of the wife when living separately from him. It is either temporary or permanent.” Over time, the definition has changed a bit. Alimony, also known as “spousal support” or “spousal maintenance,” refers to the obligation of an individual to provide their spouse with financial support after the separation or divorce. Even the husband can claim maintenance from his wife after separation/divorce.

Isn’t alimony too a monetary transaction but after separation/divorce?

Section 25 of Hindu Marriage Act, 1955 provides for the grant of permanent alimony and maintenance to any of the party to a marriage at the time of passing any decree under the Act or at any time subsequent thereto.

Sub-clause 2 of the act states that changes in the circumstances of either party after the order has been passed can give the court the power to vary, modify or rescind any such order in such manner as the court may deem just.

Section 24 of the said act recognises the principle of alimony in favour of the husband in addition to the well-recognized English matrimonial system, which only recognizes the husband’s duty to pay alimony to his wife.

It must be noted that order for maintenance can be passed only if divorce is granted. If the petition for divorce is dismissed and the wife is living separate from her husband, maintenance could not be asked for. In spite of this restriction, the wife can claim maintenance under Section 18(1) of the Hindu Adoption and Maintenance Act, 1956 or under Section 125 of the Criminal Procedure Code, 1973.

Although Hindu Laws prohibits bigamy, the second wife is granted some rights under the Hindu Marriage Act. In the case of Rajesh bai v. Shanta Bai, the court held that the second “wife” whose claim as wife failed because her husband’s marriage with her was bigamous, can also apply for maintenance under Section 25 of Hindu Marriage Act. This decision can be validated by looking at another judgement given by the Bombay High Court. The court interpreted the words “wife” and “husband” used in S.24 of the Hindu Marriage Act, 1955 as to include persons who have gone through a ceremony of marriage, which would have conferred the status of a husband and wife on them.

The idea behind alimony is to provide the same standard of living to the spouse as he/she was enjoying before separation. But if one spouse, let’s say the wife, is able to afford her basic needs and take care of the child reasonably, should she be entitled to extra support in form of money from her former husband?

This raises a debatable question. Whether a working wife should be entitled or not? The Indian courts themselves don’t have a clear understanding of this subject matter and they have been giving divergent verdicts. In Bhagwan v. Kamla Devi and Chaturbhuj v Sita Bai it was held that working women can claim maintenance. On the other hand, in 2009, there have been instances where the court held that, even though the wife is not working, her professional degree can become a restriction on the quantum of alimony. Then again in 2015, a family court in Nagpur ruled that the wife is entitled to monthly alimony even if she’s earning, as she has a right to live a dignified life as her husband’s standards. Andhra Pradesh High Court, in another judgement in 2017, ruled out that, a wife, if working and getting an income, is not entitled to ask for maintenance.

Contradicting the judgment, the Delhi High Court is of the view that working women are entitled to the status and standard of living which they used to enjoy at their matrimonial house. There cannot be a set answer to this question. A lot of factors should be taken into consideration. Looking at it objectively, the author is of the view that no alimony should be granted to a working wife. However, if the wife has the custody of the child, the husband should be bound to provide some financial support. Also, the income of the wife should also be taken into consideration. If there is a huge gap between the standard of living enjoyed by the wife before and after the divorce, the husband should be compelled to pay.

However, if the wife can look after herself decently or has a scope of getting a better job because of her educational qualifications, she should be encouraged to work harder instead of relying on the alimony.
In 2017, the Supreme Court in Kalyan Dey Chowdhury vs Rita Dey Chowdhury set a benchmark for maintenance to be paid by the husband to his estranged wife. The court stated that 25% of his net salary might constitute a “just and proper” amount as alimony. The author believes that the judgment has not covered all aspects of maintenance to be awarded in a failed marriage. The benchmark judgment is not comprehensive. The author believes that the judgment lacks careful deliberations on various scenarios and consequences. What if a couple has no children? Will the woman still get 25% of the salary of the husband as maintenance? If not, then what happens to the benchmark of 25%? This landmark judgment by the Supreme Court would lead to confusion for the lower court judges while deciding matters of alimony where the husband is earning a minimal amount which might be insufficient just for himself.

The High Court of Kerala faced a similar situation in a case in which husband was claiming for maintenance from the wife. The High Court set aside the order of the Family Court of wife maintaining the husband because he earns less and is suffering from hypertension. The High Court held that it is the duty of the husband to maintain his wife, they are of view that if this maintenance is allowed to husband then idleness of husband will be promoted and they will be tempted not to do any work and depend on wife for their livelihood and such things cannot be promoted in the society and that was not the intention of section 24 of the Hindu Marriage Act to provide maintenance to either of the spouses. The court also had the dissented view that “if a husband is disabled and he is unable to earn then he should be maintained by his wife in exceptional cases”.
Alimony like dowry should not be totally banned. The society we live in, where women are expected to leave their job and sit at home, makes alimony indispensable as it is difficult to maintain oneself and find a job after divorce. So, it can be safely concluded that alimony is not the sister of dowry but rather a need of an hour with certain factors to be taken into consideration to make the process of determining the amount easier and just.

Alternative Dispute Resolution (ADR)

Coming back to the issue of dowry, let’s discuss the possibilities of mediation and other ADR mechanisms in settling disputes. William E. Galdstone has rightly stated, “that justice delayed is justice denied”. The huge number of pending cases in the Supreme Court, High Courts, and the lower courts in India, in addition to the less number of judges in the lower judiciary, has led to delay in delivering justice to the needy.

In India, “ADR (Alternative Dispute Resolution) mechanisms are governed by the Arbitration and Conciliation Act, 1996. This Act allows the arbitral tribunal to settle a dispute by way of mediation, conciliation or other procedures. In addition to this Act, Section 89 of the Civil Procedure Code also provides for ADR mechanisms to resolve disputes between the parties. In a case, after the birth of a girl child, disputes arose between the husband and the wife. The wife filed a divorce petition as well as a criminal case against the husband under Section 498A of IPC, 1860 and Section 3 and 4 of the Dowry Prohibition Act, 1961.

The divorced matter was referred to mediation under Section 89 of the Code of Civil Procedure (CPC) and both the parties mutually agreed to a settlement. After this, the wife wanted to quash the criminal proceedings which the court allowed stating that, since the parties have settled their dispute amicably through mediation, there is no point of proceeding further with the criminal complaint.

Aforesaid, the judgement is based on the Supreme Court precedent where it was held that “even if the offences are non-compoundable, if they are related to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, then, for the purpose of securing the ends of justice, Section 320, of the Code of Criminal Procedure (Cr.P.C) would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings in respect of such offences can be quashed in exercise of power under Section 482, of the Code of Criminal Procedure (Cr.P.C)”.

However, one could argue that the court acquitted the accused without making him to pay for the heinous crime. In the opinion of the author, if issues could be sorted out amicably, where both the parties are satisfied without investing much money, time, and effort in going into litigation then mediation should be encouraged.

In Ramgopal and Anr. v. The State of M.P. and Anr, the court requested the Law Commission of India and the Union Government to make certain offences compoundable so as to reduce the burden of the courts and encourage the process of reconciliation between parties. In another case, the Supreme Court heard an appeal filed by the husband against the order of the Andhra Pradesh High Court which set aside the divorce petition granted in his favour. The Supreme Court observed that, if the parties were sent to a mediation centre, the bitterness between them would not have escalated.

In the same manner, alimony settlements can be done in a better way through mediation. It will be easier for both the parties to sit together and put forward the needs of each other and come to a better benchmark for alimony rather than the set 25% benchmark given by the Supreme Court which might lead to dissatisfaction. It gives flexibility and control to the parties to resolve the issue which courts do not provide. By parties resolving this issue in mediation and without the court’s intervention, the parties take control of their respective lives and reach a decision he/she can live with. This is better than putting it in the hands of a person you’ve never met before and will never know how his/her decision impacts you and your family.

Conclusion

As we have already established that dowry is an old custom, its practical eradication is difficult even with adequate laws. Better investigation of dowry cases and enforcement of laws to get justice for the victim and set deterrence for criminals is all that we need. On the other hand, alimony cannot be done away with. It is an indispensable part of matrimonial dispute which acts as a major support (emotional and financial) to the spouse. Precaution should be taken in settling alimony cases and there should be more gender-equal laws regarding the same. Talking about mediation, we have seen a tremendous growth in mediation especially in divorce cases in India, but issues like alimony should also be promoted to be settled through these ADR mechanisms. “Mediation is the very basis of every society to maintain harmony in the social fabric.”

Reference

  • Prof. G.C.V. Subba Rao, Family Law in India, Tenth Edition.
  • N.H. Jhabvala, Principles of Hindu Law 2018.

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