This article is written by Lalit Ajmani, an advocate (Practising in New Delhi and NCR region).
In matrimonial disputes, maintenance is one of the common issues. In fact in almost every matrimonial case, maintenance is being sought by the wives, irrespective of their qualifications and earning status. Generally, maintenance is being sought by the wives as they are substantially dependent upon their husbands for their financial needs and wants, if not for the other things. Moreover, wives and in some cases husbands try to channelize the provision of maintenance in order to put pressure on the other party.
The law is quite clear on the issue of maintenance, but there is still some doubt over the scope of the provision qua educated, well qualified and earning wives. In the light of the said confusion, this piece of writing is being written to provide some clarity with the help of various case laws.
Fundamental provisions of law qua maintenance
Before discussing the issue in hand, it’d not be out of place to discuss the meaning and scope of maintenance provided by the law. Maintenance has been defined under the Hindu Adoption and Maintenance Act, 1956 as:
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage;
Moreover, there are various other provisions which pave way to the wives to seek maintenance.
Section 24 of the Hindu Marriage Act, 1955 provides right to the party who has insufficient independent income to support himself or herself as the case may be to seek for maintenance pendelite from the other party. It is apposite to mention that section 24 grants right to maintenance to both the parties i.e. husband and wife to seek interim maintenance during the pendency of the matrimonial dispute.
Section 125 of the CrPC, inter alia, provides right to the wife, who doesn’t have sufficient means to support herself, to seek maintenance from her husband who has refused to maintain her. Unlike section 24 of the Hindu Marriage Act, the section doesn’t furnish any benefit to the husbands. However, this provision is open to all the wives irrespective of their religion as the same is not restricted to a particular religion.
Section 18 of the Hindu Adoption and Maintenance Act, 1956 provides right to a wife to seek maintenance from her husband.
Section 23 of the Protection of Women from Domestic Violence Act, 2002 (hereinafter the “DV Act”) empowers the Magistrate to pass interim and ex parte order qua maintenance to the wife where the wife has been the victim of domestic violence or there is likelihood that the husband (or any other respondent) may commit an act of domestic violence.
Moreover, wife can also avail the benefit under Section 36 of the Special Marriage Act, 1954 which empowers them to seek maintenance from her husband during the pendency of the matrimonial dispute provided she has no sufficient means to maintain and support herself.
Bare perusal of the aforesaid provisions demonstrates that the legislature has not discriminated between the qualified and not so qualified wives. However, the issue of inability to sustain independently is visible in more than one statue.
Various case laws have been discussed herein after which have defined, modified restricted and enlarged the scope of right to maintenance for educated, qualified and earning wives.
A. Relevance of qualifications and independent income of the wives
Since the issue pertaining to maintenance can’t be decided with the straight jacket formulae, resultantly there is more than one judicial opinion on a similar point of law. However, the court often tried to elucidate various factors in order to adjudicate the issue of awarding maintenance. On these lines, the Hon’ble High Court of Delhi in the case titled “Sh. Bharat Hegde vs. Smt. Saroj Hegde” has curbed out 11 (eleven) factors qua the same and among those 11 (eleven) factors ‘Independent Income and the Property of the Claimant’ (in most of the cases, wife) is one of the factors which can assist the court to arrive at a reasonable and justified amount. Thus, it is quite clear that the income of the wives play a major role in their application seeking maintenance from their husbands. However, the extent of the qualifications and the income of the wives are further discussed below.
B. Prerequisites under section 125 of the CrPC
The Hon’ble Supreme Court of India in the case of Sunita Kachwaha vs. Anil Kachwaha has elucidated the following pre conditions qua the claim of maintenance from the husband under section 125 of the CrPC.
- Wife being unable to maintain herself.
- Husband has sufficient means to maintain her.
- Husband has neglected to perform his duty to maintain his wife.
Furthermore, the Hon’ble Court also said that merely because the wife is earning some money doesn’t debar her to claim maintenance from her husband.
C. ‘Capable of earning’ and ‘Actually earning’
In the case titled Shalija & Ors. Vs. Khobbanna the Hon’ble Supreme Court held that ‘capable of earning’ and ‘actually earning’ are two different concepts and merely because the wife is capable to earn money doesn’t give sufficient reason to the court to reduce the maintenance awarded to her. Here, the Hon’ble Court clearly held that the qualification of the wife per se doesn’t create any barriers for the wives to seek maintenance from their husbands.
In the case of Arun Vats vs. Pallavi Sharama & Anr., the Hon’ble High Court of Delhi has relied upon the case of Shalija & Ors. Vs. Khobbanna and reiterated the settled principle that ‘capable of earning’ and ‘actual earning’ are two different concepts. The Hon’ble Court refused to lesser down the maintenance awarded by the Family Court under section 125 of the CrPC to the wife merely because of her qualifications and the capability to earn and the disputed income status of the wife.
D. No presumption in the absence of cogent evidence
In the case titled Swapan Kumar Banarjee vs. The State of West Bengal & Ors., the Hon’ble Apex Court held that where there is no evidence qua the income of the wife no presumption can be raised that the wife is earning sufficient amount to maintain herself merely because of the qualifications of the wife.
E. Prima Facie view adopted for interim maintenance
In the case titled Kanupriya Sharma vs. State & Anr., the Hon’ble High Court of Delhi held that section 23 of the DV Act deals with the application seeking interim maintenance and the same is based upon the prima facie view of the case. Further, serious disputes can’t be decided without leading evidence and therefore unless clear and undisputed evidence is produced by the husband qua the gainful employment of the wife, the maintenance to wife can’t be declined. The Hon’ble Court further explained that unlike section 125 of the CrPC, section 23 of the DV Act is not qualified by the expression ‘unable of maintain herself’. Moreover, unable of maintain herself’ doesn’t mean capable of earning. Therefore, the application under section 23 of the DV Act is to be decided on the prima facie view of the case and the serious disputes qua the employment and the capability of the wife to earn can’t be considered without appreciating the evidence.
F. Mere earning is not sufficient
The Hon’ble Supreme Court in the case titled Chaturbhuj vs. Sitabhai has categorically held that merely because the wife earns some amount doesn’t disqualify her to seek maintenance from her husband under section 125 of the CrPc. The litmus test is that whether the amount is sufficient for her to maintain and support herself.
G. Where the wife was earning more than her husband
In the case titled Amit Kumar vs. Navjot Dubey, the Hon’ble High Court of Punjab and Haryana refused to interfere with the decision of the lower court where the maintenance pendent lite under section 24 of the Hindu Marriage Act, 1956 was provided to the wife who was earning more than her husband. However, she was taking care of her two children. The Hon’ble High Court vide the aforesaid order affirmed the right to maintenance for working wives.
Subject to the aforesaid discussion, there are various instances where the different courts have refused to provide relief to the wives and thereby limiting the scope of the subject.
H. No Maintenance where wife is well qualified and possess sufficient means
In the case titled Rupali Gupta vs. Rajat Gupta the Hon’ble High Court of Delhi has upheld the order of the family court refusing to grant interim maintenance to the wife who is a qualified Chartered Account and in the profession from many a years. The Court stressed upon the fact that if a wife is well qualified and capable of earning and chose to remain idle then the courts may be reluctant in awarding interim maintenance to her.
On the similar lines, the Hon’ble High Court of Calcutta in the case of Somdatta Chatterjee nee Raychaudhuri vs. Anindya Chatterjee has held that the object of section 36 of the Special Marriage Act, 1954 is to provide temporary financial support to the wife who is bereft of sufficient means to maintain herself. In the light of the peculiar circumstances of the case where the wife was earning well, the Hon’ble High Court refused to grant interim maintenance to the wife under section 36 of the Special Marriage Act as the wife is not devoid of sufficient means to maintain herself.
I. Husband can’t be forced to beg
In an interesting case, Sanjay Bhardwaj & Ors. vs. The State & Ors. the Hon’ble Court held that the husband can’t be forced to beg and steal in order to maintain his equally qualified wife who refused to live with him coupled with the fact that earning status of the husband is not proved. The relevant excerpt of the judgment is worth perusing for.
“No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management from Pondicherry University, the wife was MA (English) & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, … is contrary to law and not warranted under provisions of Domestic Violence Act… Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed.”
J. In the light of the desertion
The Hon’ble High Court of Madhya Pradesh in the case titled “Anil vs. Smt. Sunita” refused to award maintenance to the wife under section 125 of the CrPC on the ground of living separately/ deserting from her husband for without any reason. This case law stipulates that if the wife leaves the company of her husband for no good reason then she can’t seek maintenance from her husband under section 125 of the CrPC. It also signifies that though a wife has right to maintenance but the law has bestowed the duty upon her to perform her marital duties and the right to maintenance is therefore subject to the performance of her statutory and moral duties.
K. Attempt to clear the dust qua the right of the Earning wives
The Hon’ble High Court of Calcutta in a recent case, Ramiz Raza vs. The State of West Bengal & Ors. has held that a wife has statutory right to seek maintenance from her husband irrespective of the fact that whether she is an earning individual or not. The relevant excerpt of the Hon’ble Supreme Court is as follows:
“It is well settled, by virtue of the decision of the Supreme Court in the case of Bhagwan Dutt (supra) that even a wife having a substantial income of her own or even a working lady is entitled to claim maintenance from her husband. Though initially it was a misconception that a working woman is not entitled to claim maintenance since she has some substantial income and is able to maintain herself, but in view of the decision rendered by the Supreme Court in the said case it is evident that she can claim maintenance even though she is an earning lady.”
Though the Hon’ble High Court of Calcutta has clarified the well settled aspect of the right to maintenance for the earning wives, there have been numerous occasions where the family courts and various High Courts come to a different conclusion subject to the peculiar facts and circumstances of the case, as discussed above. Though the Ramiz Raza judgment was delivered by the Hon’ble High Court of Calcutta in February, 2020, but it is to be kept in mind that the Hon’ble Court merely reiterated the law which was no more res integra.
At last, it can be inferred from the above said statutory provisions and the case laws that the earning wives do have right to seek maintenance subject to the income status of both the parties and the gap between the wives’ incomes and their needs and wants, if any.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: