This article is written by Tanya Manglic, a student at Symbiosis Law School, Noida. In this article, she discusses about Maintenance given to Women Under Hindu Marriage Act, 1955.
Maintenance is covered under section 24 of the Act of 1955 which provides relief and relaxation in terms of money and litigation expenses to the spouse who is parted from the marriage and unable to maintain his living during the tenure of proceedings. It has also been provided that the sum of money and the expenses of the proceeding should be disposed of within sixty days as under the followings of the issued notice on the wife or husband. Maintenance is granted to the spouse as a financial assistance to its litigating parties by order of court if any application has been filed and she does not have any source of income.
Maintenance has certain laws under the accompanying headings and sub-headings: Maintenance of Wife under Hindu, Muslims, Christian and Parsi Laws:
(a) Analysis of the authoritative arrangements.
(b) Evaluation of the legal proclamations.
(c) Recognizable proof of traps.
(d) Advocacy of changes and enhancements.
Under Hindu Law, the maintenance for wife deals with the specific and relevant provisions of Modern Hindu Law. The area of drawback of the case has been found during the procedure of the investigation of the administrative arrangements and the assessment of the legal professions. Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956 contained provisions which therein are required to discuss or to know the legislation position of wife under these Acts. The relevant provisions which are there: Section 24, and Section 25 of the Hindu Marriage Act, 1955, and Section 18 of the Hindu Adoption and Maintenance Act, 1956 which contain the prescribed law. Section 24 of the Hindu Marriage Act, 1955, manages the divorce settlement during the pendent light and the costs of the procedures.
This Section enables the court to arrange the respondent to pay the candidate the expenses incurred at the time of the procedures, by determining that it creates the impression that either spouse or the husband has not free salary for his or her support and to meet out the important or necessary costs of the procedures. If we talk about the Section 25 then it considers the permanent alimony and maintenance, by keeping in view the respondents own income and its property.
Explanation of Maintenance Under Hindu Marriage Act, 1955
The right to claim for the maintenance under the Hindu Marriage Act, 1955 is an independent or absolute right and it is not being governed or maintained by the Hindu Adoption and Maintenance Act, but the main authority i.e. the jurisdiction of the court cannot be ousted on the plea that the applicant whose rights are mentioned under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act, but while fixing the quantum of maintenance that may be taken into consideration. Under the Hindu Marriage Act, it has been determined that either of the spouse can seek maintenance, but there is a special provision under the Code of Criminal Procedure and Hindu Adoption and Maintenance Act, where only the wife can claim maintenance under this Act.
Section 18 – Maintenance of Wife
This provision is especially created to provide a support to the married women. It doesn’t matter that the Hindu wife, whether married before or after the commencement of this Act because every wife will get maintenance by their husband during their life tenure. Section 18(1) is applicable to the wife who is living with her husband. The wife who has ceased to be Hindu cannot claim for the maintenance but an unchaste wife who has been living with her husband under the same roof has the authority to claim for the maintenance by the court.
(2) A Hindu spouse or wife shall be entitled to live their life independently from her better half without relinquishing her to forfeit the maintenance.
- If he is liable of abandonment or of stubbornly dismissing her.
- If he has regarded her with so much cold-bloodedness as to cause a sensible apprehension in her mind that it will be destructive or harmful to live with her husband.
- If he is experiencing a harmful type of infection or leprosy.
- If he has some other spouse living and can be known as extra marital affairs.
- If he keeps a mistress in a similar house wherein his better half is living or routinely lives with a concubine somewhere else.
- If he has stopped to be a Hindu by transformation to another religion.
- If there is some other reason legitimizing living independently.
(3) (Forfeiture of the claim for the maintenance or support). A Hindu spouse will not be qualified for discrete living arrangements and support in the form of maintenance from her husband on the off chance that she is unchaste or stops to be a Hindu by transformation to another religion.
Amount of Maintenance to the Wife
Under section 23, the power to decide whether any or not the compensation should be given to the wife as maintenance to be awarded under this Act lies on the discretion of the court. The court will consider the following:
- The status and position of both parties.
- The wants that are claimed by the claimant are reasonable.
- If the claimant is separated than it is justified to do or not.
- Number of persons who have right to claim maintenance.
Section 25 states that the amount of maintenance which has to be given whether decided by the court decree or by the agreement will be changed only if there is materialistic change in the circumstances. But under Section 24, the spouse cannot claim for the maintenance if they ceased to be Hindu by conversing their religion to another. In the case of Kanchan v. Kamalendra where the husband claimed for the maintenance under section 24 of this Act. However, to claim for the maintenance the husband has to prove something strong like any illness or disability to earn for his livelihood. As the wife in this case was the employee earning Rs. 2000 in which she needs to run her household expenses and to maintain her child.
The court further added that mere closure of the business will not be taken as a valid or strong point for claiming the support from wife. In these matters the court will not solely rely on the facts for the approval of maintenance as the husband was capable enough to promote idleness. This will be opposed to the idea of section 24 of this Act. The trial court after considering all the facts came to the decision without any justification for providing maintenance in favour of the non-applicant husband who claimed for maintenance.
Women Issues and Laws
There are four major entitlements which women own after the divorce or separation from the husband: title; fault; need and contribution. In India we tend to follow the laws of old English system which is the separation of property where rights of person are based on its title or highly upon the economic contribution. Women are expected to be a home keeper and no they were prevented from doing any job. There are instances where women have been penalised by the court for going out for work as they are considered to be a caretaker of the family. Under the common law regime there is a notion that husband property will be treated as exclusive property.
There is only one provision under the matrimonial statute which states the issues relating to property division is section 27 of Hindu Marriage Act “property presented at the time of marriage or after will be acquainted by both the husband and wife”.
The famous case of Kamalakar Ganesh Sambhus V. Master Tejas Kamalakar Sambhus reads out the fact that women established that in the house construction was done with half of the amount invested by her, so the Bombay High Court held that the order of the family court on these grounds should be set aside and the woman should be given the right on the property as it was economically supported by her as well. Further, the court also expanded the provisions given under section 27 of Hindu Marriage Act and ruled by stating that it can be invoked to pass the orders regarding the rights by separating properties of the party and or even the tenanted premises.
These steps have been taken because the provisions of maintenance were more crucial for the divorced and deserted women and the ones who have conflict in their marriage. It is the right of the women to maintenance which need to be mentioned within the citizen claims in the constitution. Despite the several changes, clause 4 and 5 of section 125 give the scope to the husband who engages to destitute and deserted women in protracting and demeaning litigation. These false and harsh interventions grab the women in circuitous legal commotion which cause them problems like emotionally charged, financially drained and very time consuming.
When it comes to matrimony it creates a number of rights and obligations on the spouses to perform against each other where maintenance is one of these obligations. A husband has the obligations towards his wife which he has to maintain during the coverture and even at the time of separation and divorce. The Hindu Marriage Act, 1955 applicable to only Hindus which maintain and create laws or provisions for the maintenance of wife. The wife need to file a complaint against her husband and if found there is no such litigation, than she has no right given to claim any maintenance under the personal laws.
Apart from the personal laws mentioned above, there is section 125 of the code of criminal procedure which also provides the maintenance but irrespective of any religion. There are certain provisions enacted with an idea of some object:
- For the speedier remedy.
- To avoid and prevent from vagabondage and destitution of persons.
The essentials which are needed to prove for the application of section 125 are as follows:
- That the husband has sufficient means.
- Neglects and denies to give maintenance to his wife.
- Wife is unable to manage her living.
On the fulfilment of these grounds the wife has the right to claim for the maintenance under this section. All the laws are independent in nature where they do not have any connection to other laws. The one law under which the wife claims will not bar upon the other law. The women’s low economic status has even restricted the court to create certain provisions for them.
In the case of Rajeshri v. Shantibai, the first wife claim to have the right over the property of her deceased husband but she was denied to do so by his second wife and his brother. After going through the facts, the court declared the first wife as the sole heir of the property. Then the question arose by the second wife who was merely a mistress. She was neither the heir under Hindu Succession Act nor was she dependent on her own under the Hindu Adoption and Maintenance Act, 1956. So after analysing all the given facts, Justice Masodkar declared that woman as an illegitimate wife of her husband. He further interpreted the facts and said that the measures which are given for maintenance by themselves are secular and social in character. But it has been therefore submitted by the prevalent judicial interpretation of section 25 which allows the second wife where she has right to claim for the maintenance applicable to section 125 of the code. At least, when the there should be provision where the second wife is not aware of the first wife and should get maintenance.
It is well said and also being recognised in Hindu law that the right of maintenance provided to the helpless women is substantive and a continuing right and also the amount of maintenance varies from time to time. The court’s responsibility is to keep into account the status of the opposite party who has claimed for maintenance and then its further amount should be decided. This is because of the Section 25 which provides the right to the party in a marriage to support them with the remedy in the form of alimony and maintenance where they pass any decree under the Act or at any time there into.
After the amendment and the changes brought down in the Hindu Marriage Act, 1976, the scope of the Act has been widened up and now this new changes make it mandatory for the court of law to grant full opportunity to the parties to affirm their rival arguments by leading proper arguments given by them. The court should also not neglect to take into consideration the other sides which may affect the grant or payment of maintenance besides the income and their conduct of behaviour during the proceedings.
Section 24 and Section 25 of the said demonstration manages the arrangements of permitting pendente light and perpetual support individually. In Dr. Kulbhushan v/s Raj Kumari and Anr, the court while choosing the measure of support, saw that it is resolved by depending on the realities of each case by following the precedent and announced that on the off chance that the court upgrades or shape the measure of maintenance, at that point such a choice would be legitimized. It was additionally held for this situation that it is reasonable to give the spouse 25% of husband’s net income as compensation for the support.
- Under Section 24 of the demonstrative Act if the court thinks about that fit and is fulfilled that either spouse or husband does not have a free pay, at that point it can arrange the respondent to pay the support to the applicant as per the arrangements of this Section. In this manner, the petitioner can be a spouse too.
- Further, as indicated by the arrangements of Section 25 of the Act, which manages the allowing of divorce settlement on a permanent basis, the court may on the application made by the respondent, request to accommodate the maintenance or alimony either as periodical instalments or a gross whole to be given. Along these lines, for this situation the respondent can either be a spouse or a husband.
- The motivation behind deciphering the arrangement along these lines is to stay away from the separation in light of the fact that both a couple are equivalent according to law.