This article has been written by Pragya Rakshita, a student of the National University of Study and Research in Law, Ranchi. 

Introduction

India is a secular country, but the Indian understanding of the concept of secularism is different from the worldwide notion of the term. In India, secularism does not just simply mean that the government does not acknowledge any religion. Rather, it means that the state acknowledges and respects all religions, and allows everyone to follow their own personal laws.

The legal definition of maintenance is the financial support that is paid by one ex-spouse to another pursuant to a legal separation or divorce. This financial support is for the wife’s or the divorced wife’s livelihood, for her children, for the maintenance of the property, and in certain cases, even to enable her to be adequately represented in the lawsuit.

The provisions regarding maintenance are different in different laws. But, there is also a secular law of maintenance that is given in Section 125 of the Code of Criminal Procedure, 1973. For Hindus their laws of maintenance are provided in their personal laws; for Muslims, it is given in the Muslim Personal Law; and for the Christians and Parsis, in their respective personal laws. At the same time, the law of maintenance under CrPC is also given, which is secular in nature, so can be evoked by any person, irrespective of their religion. This is a unique feature in the CrPC as compared to the other personal laws.

In this article, the author will explore the different maintenance laws under the personal laws as well as the CrPC and analyse the differences between them. Finally, the author will attempt to find the recourse that will be better for the welfare of divorced women.

Maintenance under the CrPC

Maintenance under the CrPC is secular in nature, as any woman belonging to and practicing any religion or faith can approach the Court under this. The law of maintenance is given under the Sections 125-128 of the Criminal Procedure Code, and is civil in nature. Under this Section, maintenance can be claimed by the wife, children and parents. Section 125 to 128 provide for a speedy, effective and rather inexpensive remedy against persons who neglect or refuse to maintain their dependant wives, children and parents.[1]

In this research project, the focus is solely on the wife of the person. According to (b) part of the Explanation to the Section 125, the term “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. So the provision for maintenance under this section extends to a divorced wife also, and not only a married wife.

This law, though secular, is gender specific in one aspect. Maintenance under this law can only be claimed by the wife, and not by the husband. The interpretation of the word “wife” also needs to be looked into. According to the Supreme Court judgment in Savitaben Somabhai Bhatiya v. State of Gujarat[2], the term “wife” appearing in Section 125(1) means only a legally wedded wife. But, in the recent judgments of D. Velusamy v. D. Patchaiammal[3] and Chanmuniya v. Virendra Kumar Singh Kushwaha[4] the Supreme Court ruled that in cases where the woman who was in a marriage-like relationship, will though not be considered to be a legally wedded wife under Section 125, can still claim maintenance under the Protection of Women from Domestic Violence Act, 2005.

So, with such great emphasis on the wife being a legally wedded wife, what happens to the second wife, in religions that only allow monogamous relationships? This question will be dealt with in the next chapters of this research paper.

Maintenance under the Hindu personal law

Under the Hindu Personal Law, the maintenance of women comes under the Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956.

Section 18 of the Hindu Adoption and Maintenance Act, 1956 provides for the maintenance of the wife by the husband. For the purposes of this Section, the term wife does not include a divorced wife. This Section only applies to the married wife. The husband is obliged to maintain her during her lifetime. He is also obliged to maintain her even if she is living separately from him, if such separation is justified under any of the reasons given under this particular Section. This Section is also gender specific in nature.

Whereas, the provision for maintenance under Section 25 of the Hindu Marriage Act, 1955 stands on a different footing. Under this Section, either the husband or the wife can claim maintenance. Either of the parties can apply to the Court for maintenance. It is not limited to only the wife. Though, the parameters for deciding whether a person will receive maintenance or not, is gender-specific. This means that for women, the parameter is different from that for men.

According to the case of Kanchan v. Kamlendra[5], it was held that the husband is only entitled to get maintenance from his wife if he was physically or mentally incapable of having an independent income. Whereas, as decided in the case of Manokaran v. Devaki[6], the wife is entitled to maintenance if at any point during the proceeding, it is seen that she does not have any sufficient independent income. So, the wife only needs to prove that she does not have any sufficient and independent income. Whereas, the husband also needs to prove that he is incapable of earning. Also, in the case of Chitra v. Dhruba[7], it was decided that the maintenance does not only mean to provide for bare existence, rather, it means that the claimant must also be in equal level of comfort as the other spouse. So, the quantum of the maintenance must also be fixed accordingly.

Also, in the case of Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga[8], it was held that the expression “at the time of passing any decree” encompasses all decrees passed under Sections 9 to 13 of the Hindu Marriage Act, 1955. Thus, the Court can award maintenance at the time of passing of any type of decree resulting in the breach of marriage.

Comparison with CrPC

The law of maintenance under both of these statutes are on very different footings. According to the Hindu Marriage Act, 1955, both the husband or wife can claim maintenance; whereas, only the wife can claim maintenance under the CrPC. Moreover, the wife only needs to prove that she does not have a sufficient and independent income in order to claim maintenance under the Hindu Marriage Act, 1955. Whereas, to claim maintenance under the CrPC, she also needs to prove that her husband had either refused or neglected to maintain her.

In the case of Shambhu Nath Pathak v. Kanti Devi[9], it was clearly decided that the wife cannot take double benefit of maintenance under both the CrPC, as well as the Hindu Marriage Act, 1955. She can only claim maintenance under one of these.

Status of the second wife

Under the Hindu Marriage Act, 1955, monogamy is the rule according to Section 5(i) of the Act. Also, Section 17 of this Act makes such a second marriage void, and refers to Section 494 and 495 of the IPC, 1860, according to which, bigamy is a punishable offence.

As held in the case of Bhaurao Shankar Lokhande & Anr v. State Of Maharashtra & Anr[10], for the second marriage to be punishable for bigamy under the abovementioned Sections of the IPC, it is necessary that the second marriage must have been validly performed. But, for the question of maintenance, it is not only important that the marriage must have been ‘solemnized’ legally, or performed validly. What is important is that the wife must be a legally-wedded wife.

So, will the second wife be competent to receive maintenance in such a situation?

This question has been answered in various cases which are enumerated below:

In the landmark case of Badshah v. Sou. Urmila Badshah Godse & Anr.[11], it was held that even the second wife is entitled to maintenance under the Section 125 of CrPC, under certain circumstances. Even if a man and women are living together for a long time, without a valid marriage, she should be entitled to maintenance under Section 125 of the CrPC. If a misrepresentation was made to the second wife that the man is single and competent to enter into a marriage, and if the woman was unaware at the time of the marriage that he has a living spouse, then the second wife is entitled to maintenance.

In the case of Mallika and Anr v. P Kulandi[12], it was held that in case the husband misrepresented his first wife’s death, his second wife, would have the right to maintenance.

In the case of Rajesh Bai v. Shantabai[13], a woman’s marriage was declared void because of the subsistence of any previous marriage of her husband, but the Court held that she also has the right to claim maintenance, under Hindu Adoption and Maintenance Act, 1956.

Thus, it is clear from the above judgments that the second wife, though not a legal wife, is entitled to maintenance under Section 125 of the CrPC. The standard of proof of marriage in the proceeding under Section 125, CrPC is not as strict as is required in a trial of the offense under Section 494 of the IPC. The purpose of this Section is to provide social justice which can only be fulfilled through such decisions.

Maintenance under the Muslim personal law

Under the Muslim Personal Law, the law states that the husband who has divorced his wife has to provide maintenance for her during the period of Iddat. The Hedaya defines maintenance as “All those things which are necessary to support life, such as food, clothes and lodging; may confine solely to food.” The Fatwa-i-Alamgiri defines it as “Maintenance comprehends food, raiment and lodging, though in common parlance it is limited to the first”.

So, in common practice, the maintenance only covers the expense of providing food to the wife. The Muslim Personal Law only mandates that the husband needs to maintain his wife, and not a divorced wife. After divorce, he only requires to maintain her for the Iddat period. Usually, the payment of dower is considered to be enough maintenance for the wife.

The law of maintenance in the Muslim Personal Law has evolved through various cases in the following manner-

In the case of Bai Tahira v. Ali Hussain[14], it was held that since the dower amount comes under the meaning of the term ‘sum payable’ as given under Section 127(3)(b) of the CrPC, so a woman who has already received it is not entitled to further maintenance under Section 125 of the CrPC.

In the next case of Fuzlunbi v. K. Khader Vali[15], it was decided that only after judging the sufficiency of the amount of mehr, will the husband be released from making any further payments.

Then, in the light of the landmark case of Mohammed Ahmed Khan v. Shah Bano Begum[16], it was finally cleared out that mehr does not come under Section 127(3)(b), as it is an obligation on the husband and is paid as a mark of respect for the wife, and not the amount payable to the wife on divorce.

After that, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed where provided that reasonable and fair provision is to be made and maintenance is to be paid within the iddat period.

The case of Danial Latifi v. Union of India[17] was then filed challenging the validity of the above Act, where it was held that it was constitutionally valid, and though the maintenance has to be paid within the iddat period, it must be enough to maintain her for her whole life.

Finally, in the case of Abdul Latif Mondal v. Anuwara Khatun[18], it was discussed that since the objective of Section 125 of the CrPC was to prevent the woman from destitution, and since it is speedier, so the Muslim women can still claim maintenance under Section 125 of the CrPC.

Comparison with CrPC

Muslim women can also claim maintenance under the CrPC. Unlike the Muslim Personal Law, even divorced women are given the right to maintenance under the CrPC. It was a controversy and a question of law as to whether the Muslim divorced women can claim the right to maintenance under the CrPC, even after receiving the dower or not. This controversy has been settled once and for all through the cases listed above.

Moreover, Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 also provides that the parties can opt to be ruled by the secular law under Sections 125 to 128 of the CrPC, instead of the Muslim Personal Law. Thus, women can claim maintenance under the CrPC or the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The CrPC is a more appropriate recourse in this scenario as it provides for maintenance for both married and divorced wives, unlike the personal law. Also, the quantum of maintenance is more reasonable under the secular law, whereas just the payment of mehr is considered to be enough under the personal law. Furthermore, in CrPC, the maintenance is for life, whereas under the personal law, it is only till the Iddat period.

Maintenance under the Christian and Parsi personal law and the Special Marriage Act, 1954

The law of maintenance for Parsis is given under Section 40 the Parsi Marriage and Divorce Act, 1936. This Section is exactly like the Section 25 of the Hindu Marriage Act, 1955. According to this also, either the husband or the wife can claim maintenance.

Section 37 of the Indian Divorce Act, 1869 provides for the maintenance of the wife by the husband in cases of a decree of dissolution of the marriage or for judicial separation is obtained. According to this, only the wife can claim maintenance.

Section 38 of the Indian Divorce Act, 1869, and Section 41 of the Parsi Marriage and Divorce Act, 1936 are similar provisions. These Sections lay down the provision that the amount of alimony may be paid either to the wife herself, or to her trustees.

Inter-faith marriages are governed by the Special Marriage Act, 1954. Section 37 of this Act deals with the aspect of maintenance. Under this Section, only the wife can claim maintenance, and so, it is gender specific.

Comparison with CrPC

The provision for maintenance under the CrPC is only limited till the wife, unlike the Parsi Marriage and Divorce Act. Moreover, the CrPC extends to all faiths and religions. But the Parsi Marriage and Divorce Act, 1936 only governs the Parsis, and the Indian Divorce Act, 1869 only rules the Christians, and the Special Marriage Act, 1954 is applicable in cases of inter-faith marriages.

Conclusion

There are various differences in the laws of maintenance as given under the various personal laws as well as in the secular law of CrPC.

Under the Hindu Laws, the male counterparts are also eligible to receive maintenance. But in cases of second marriage, the second wives can only get respite under the secular law of maintenance under Section 125 of the CrPC. So, the CrPC is a better recourse to get maintenance compared to the Hindu Personal Law.

In case of Muslim women, it is definitely more beneficial for them to approach the Court under the CrPC for claiming maintenance, rather than under their personal law. The CrPC provides a reasonable quantum of maintenance. Also, it also applies on divorced women, unlike the Muslim Personal Law. It also provides for a lifetime maintenance, unlike the Muslim Law that only provides for maintenance till the Iddat period.

Thus, through the whole discussion and comparison, it would be expedient to conclude that the CrPC, being a secular, just, effective, inexpensive and speedy method, is the most favourable path to be opted by the divorced women to choose to receive maintenance.

References

[1] R. V. Kelkar, Criminal Procedure 833 (K. N. Chandrasekharan Pillai ed., 6th ed. 2014).

[2] (2005) 3 SCC 636.

[3] (2010) 10 SCC 469.

[4] (2011) 1 SCC 141.

[5] AIR 1992 Bom 493.

[6] AIR 2003 Mad 212.

[7] AIR 1988 Cal 98.

[8] AIR 2005 SC 422.

[9] AIR 2014 Pat 147.

[10] 1965 AIR 1564.

[11] Crim. Misc. Petition No. 19530/2013 on 18 Oct. 2013.

[12] 2000 CriLJ 142.

[13] AIR 1982 Bom 231.

[14] AIR 1979 SC 362.

[15] AIR 1980 SC 1730.

[16] AIR 1985 SC 945.

[17] AIR 2001 SC 3958.

[18] (2002) 1 CLJ 186.

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