This article is written by Arya Mittal from Hidayatullah National Law University. The article analyses the provisions of different personal laws for entitlement of maintenance to men.
“The soul has no gender, then why should the law?” – Anonymous
The quote rightly emphasizes on the concept of gender equality. The past times have proven to be tough for Indian women which has resulted in a number of laws that are ‘women-centric’. In fact, the Constitution of India itself empowers the state to make special provisions for women under Article 15(3). In present times, men equally become the victim in certain situations. One such situation is that of claiming maintenance from the working wife.
Time is changing and so is the status of women and with such changes, there arises a need to change certain provisions of some statutes. It is always said that it is important to understand the intention of lawmakers to correctly analyze a particular statute. In earlier times, it was mostly the men who went out for work and women handled the household chores. Therefore, in case of separation or divorce, a woman was paid maintenance in order to prevent her destitution. However, with the passage of time, wives also go out for work and in certain cases, earn way more than the husband.
Last year, a petition was also filed in the Supreme Court by Advocate Ashwini Kumar Upadhyay seeking “gender and religion-neutral” uniform grounds of maintenance and alimony for all citizens. Thus, in such a situation, it would be interesting to analyze whether there is a need to revisit our laws and make them gender neutral to still be able to achieve the objectives of such statutes.
Statutory provisions for maintenance in India
Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955 is applicable only to Hindus. Section 24 of the Act provides for maintenance pendente lite (i.e. pending the litigation) and litigation expenses to both Hindu wife and husband, incapable of maintaining herself/himself. Section 25 of the Act entitles either of the spouses to claim maintenance from the other to receive a gross sum or a periodical sum to support his/her life.
In Smt. Kanchan v. Kamalendra (1992), the Bombay High Court held that it is a prerequisite for any man to be disabled or incapable to earn before claiming maintenance. The Court held that if the same is not done, then it can turn into an abusive provision for husbands who will make their wives work and later even claim maintenance from them despite them being completely normal and capable.
In V.M. Nivya v. N.K. Shivaprasad (2017), the Kerala High Court took a similar stand as that of the Bombay High Court and held that it is imperative that there should be a disability on part of the husband before claiming maintenance. If he is not physically handicapped or incapacitated then he is not entitled to claim maintenance. This is done in order to ensure that idleness is not encouraged among men.
In Yashpal Singh v. Anjana Rajput (2000), the Madhya Pradesh High Court held that if a person voluntarily incapacitated himself in order to claim maintenance under the garb of him being disabled, then such an approach will not be accepted by the courts. The whole purpose is to ensure that idleness is not promoted but if such an act becomes acceptable, then the whole purpose will be defeated.
Muslim Women (Protection of Rights on Divorce) Ac.t 1986
Section 3 of Muslim Women (Protection of Rights on Divorce) Act 1986 entitles a Muslim wife to maintenance from her husband during the iddat period. She is also entitled to fair and reasonable provisions to help her cater to her future needs as held by the Supreme Court in Danial Latifi v. Union of India (2001).
Parsi Marriage and Divorce Act, 1936
The provisions relating to maintenance in the Parsi Marriage and Divorce Act, 1936 are similar to that of provisions in the Hindu Law. Section 39 of the Act entitles a Parsi husband or wife to claim maintenance pendente lite. Section 40 of the Act entitles either of the spouses to claim permanent alimony or monthly sum for his/her maintenance.
Divorce Act, 1869
Special Marriage Act, 1954
The Special Marriage Act, 1954 extends to those who have married under this Act. Section 36 of the Act provides for maintenance pending the litigation and Section 37 of the Act provides for permanent maintenance in form of gross or periodic sum to the wife.
Code of Criminal Procedure, 1973
Section 125 of the Code of Criminal Procedure provides for maintenance to not only wives but also children and aged parents. It is also pertinent to note that since it is a secular law, it can be enforced by any wife irrespective of her religion.
Anomaly in maintenance laws for men
As stated earlier, it is only under the personal laws of Hindus and Parsis which entitle the husband to claim maintenance from his wife. It is a paradox that even the secular law i.e. the Code of Criminal Procedure does not entitle a husband to claim maintenance from his wife.
How is it anomalous to the Indian Constitution
Article 14 of the Indian Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The Supreme Court, in Jagannath Prasad v. State of Uttar Pradesh (1961), has also held that laws should be applied alike to people similarly situated. In the case of a husband who is not working/ incapable of working and the wife has a substantial earning should be made liable to pay maintenance to the husband since the vice-versa will always hold true. In a situation like a non-working husband and a non-working wife are similarly situated and therefore, the personal laws as well as secular law should be amended to provide maintenance to husbands as well.
How is it anomalous to the Indian society
With the striking down of Section 377 of the Indian Penal Code, 1860, the Supreme Court, in Navtej Singh Johar v. Union of India (2018), has recognized the existence of the LGBT community by decriminalizing homosexual acts and no more considering them as unnatural. Some courts have even recognized same-sex marriages such as the Madras High Court. Indian society is evolving and correctly identifying LGBTQ as part of mainstream society.
In such a scenario, gender-neutral laws play an important role. In the case of homosexual couples, it would be unfair to not grant maintenance to either of the spouses in view of the fact that neither of them or both of them, whatever the case may be, are women. In the case of couples of the LGBT community, even the personal laws of Hindus and Parsis fail as the respective acts clearly mention the marriage of a Hindu man and woman and do not recognize same-sex marriages or even marriages relating to transgender people.
A way forward
Adoption of gender-neutral laws
The only way forward in order to correct this anomaly is by adopting gender-neutral laws. Keeping aside the personal laws, the secular law should always conform to the provisions of the Indian Constitution. Code of Criminal Procedure is a secular law and it should not infringe the Constitution in any way, whether it is in terms of religion or of sex. Not including men under its purview, would be a gross injustice and would defeat the clause of equality embedded in our Constitution as well as the Preamble.
The scenario in rest of the world
A lot of developed and developing countries in the rest of the world recognize the importance of gender neutrality and allow them to claim ‘spousal maintenance’ rather than ‘maintenance to just wives’. Some of such countries are the United Kingdom, Russia, Singapore, France, Sri Lanka, and South Africa.
The new normal
As society is evolving, the old norms are starting to deviate. Husband taking charge of home and wife going out for work has become socially acceptable these days. Another instance is where the wife earns substantially more than the husband. In situations like these, the husband might land in a disadvantageous position as the wife would have no responsibility towards her former husband. This might sound unusual in Indian society but such a situation could lead to the ‘destitution’ of husbands who have divorced/been divorced.
- The existing statutes, both personal laws (excluding that of Hindus and Parsis) as well as the secular law, have created a gender gap in terms of the right to claim maintenance which seems to be anomalous.
- Such anomalies in law pose a serious threat to the applicability of Article 14 of the Indian Constitution to a certain class of individuals.
- The existing laws are unfair not only to husbands but would also cause difficulty to homosexual couples as well as other members of the LGBT community.
- Many countries, whether they are our neighboring countries or some developed or developing country, have adopted the policy of spousal maintenance, making claims of maintenance available to both spouses irrespective of gender.
- The term ‘maintenance to wives’ should be replaced with ‘spouse’ in order to make it gender-neutral.
As emphasized earlier, maintenance laws in our country need to be gender-neutral. Making them women-centric would do larger harm than the benefit that could be derived from such laws. Making a right gender-specific is a gross violation of other gender groups. Moreover, laws that do not get amended with the changing times, often fail the test of time and become unconstitutional. However, it is better to prevent such extreme situations by amending them at an earlier stage. To conclude, the secular law, which is equally applicable to everyone irrespective of religion and gender, should at least be gender-neutral and thus, maintenance laws should be entitled to both the spouses.
- Family Law Lectures – Family Law II by Poonam Pradhan Saxena
- Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India)
- M.P. Jain, Constitutional Law 1251-1253, LexisNexis (2015)
- Mulla, Hindu Law, LexisNexis (2018)
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