This article is written by Monika Bhakta, a 4^th year student of Lloyd Law College. 

Introduction

As per the social concept of Hindu society the Joint Hindu family system looms large, the law of maintenance has a special significance in the Hindu Law. All members of a joint family, whatever be their social status and whatever be their age limit, are entitled to maintenance. Hindu law also recognizes that a Hindu has also a personal obligation to maintain certain near relations, such as wife children and aged parents.

In Hindu law, the term “Maintenance” has been used in a wide sense. Hindu Adoptions and Maintenance Act, 1956, define maintenance as ‘provision for food, clothing, residence, education, and medical attendance and treatment.’

Maintenance as a Personal Obligation:

Hindu sages, in the most unequivocal and clear terms, lay down that maintenance of certain persons is personal obligation.

Manu declared: “The aged parents, virtuous wife, and an infant child must be maintained even by doing hundred misdeeds.”

Brihaspati said, “A man may give what remains after the food and clothing of family: the giver or more (who leaves his family naked and unfed) may taste honey at first but afterwards find its poison.

According to Mitakshara : “Where there may be no property but what has been self acquired, the only persons whose maintenance out of such property is imperative, are aged parents wife and minor children.”

The maintenance of the aged parents, infant children, and wife is considered to be the greatest duty of a person. It is the belief of Hindus that if one faithfully fulfills this duty, the gates of the heaven are wide open for one. One may also attain salvation. On the other hand, a person who indulges in charity or Dan at the cost of the maintenance of his aged parents infant child and wife is condemned by the sages; it is like tasting honey which turns out to be poison later. During the British period, it was a well established rule that the maintenance of the aforesaid three sects of a person was a personal obligation of every male Hindu. Under the Modern Hindu law, in respect of aged parents and minor children, this is an obligation of every Hindu, male or female, thus, a Hindu has a personal obligation to maintain

 (a) His wife,

(b) Children and

(c) aged parents.

Maintenance as a Right of Wife

In most system of law the wife’s special position in her husband’s household is recognized. The obligation of the husband to maintain his wife does not arise out of any contract, express or implied, but out of the status of the jural relationship of the husband and wife created by the performance of the marriage. The obligation of the husband to maintain is wife begins with the marriage. It is irrespective of the fact that whether he has or has no property. Hindu law- givers did not deny maintenance even to an unchaste wife, provided she is continued to live with her husband though in such cases she was entitled to starving maintenance. Under the ancient Hindu law, a wife who did not live with her husband, whatever be the cause was not entitled to maintenance. But gradually law developed and it came to be established that a wife living separate from her husband for some justifiable cause can claim maintenance. In the modern Hindu law a wife is also entitled to maintenance after dissolution of marriage.

Under Hindu law a wife has exclusive right to claim for the maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is codified in the Hindu Adoption and Maintenance Act, 1956(78 of 1956). In assessing the amount of maintenance, the court take into Account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from the husband.

Grounds on which the Order of Maintenance can be refused

• That a wife living in Adultery, or
• That without any sufficient cause or reason she refused to live with the husband, or
• That she and her husband are living apart by mutual consent.

Adultery

Before coming into the force of the Marriage Laws (Amendment) Act, 1976 “Living in adultery” was a ground of divorce. On the other hand, a petitioner could obtain a decree of judicial separation, if he could show that his spouse after solemnization of the marriage had sexual intercourse with any person other than his spouse.

Adultery in Matrimonial and Criminal law: The following is the accepted meaning of the adultery in the matrimonial law:  “Adultery may be defined as consensual sexual intercourse between a married and a person of opposite sex, not the other spouse, during the subsistence of the marriage”.

Under the Indian Law, adultery is also a criminal offence. But the definition is different. Section 497 of the Indian Penal Code defines it thus: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man without the consent or connivance of that man, such intercourse not amounting to the offence of rape, is guilty of adultery”.  Under both the criminal law and matrimonial law, adultery is an offence against marriage and therefore in both the cases it is essential that at the time of the offence a valid marriage was subsisting to constitute the offence of adultery it is also necessary that the respondent (in case of the criminal offence, the wife) was a consenting party. In short, the sexual intercourse must be consensual.

Proof of Adultery and Burden of Proof: The burden of proof is on the petitioner. At the time he was required to prove it beyond all the reasonable doubts, but today it can be proved by ‘preponderance of probability’. “Proofs beyond all reasonable doubts”, means such proofs as precludes every reasonable hypothesis except that which tends to support it. It need not certainty, but must carry a high degree of probability.

There is always the presumption of innocence and it is for the petitioner to prove the allegations relied upon. The respondent, on the other hand bears the burden of establishing the affirmative defences set up in reply.

It was sometimes said that since the adultery is a serious charge, it must be examined on the same footing as a criminal charge. It was also said at times that is was a quasi-criminal offence and must be proved as such. Section 23 of the Hindu Marriage Act requires that the court should decree the relief if it is satisfied that the ground for granting relief exists. It is often said that adultery is a serious matrimonial offence and the court must be satisfied beyond all reasonable doubt that it is established. However, Section 23 itself lays down a standard and puts adultery on the same footing as cruelty, desertion, or unsoundness of mind. What is required is that the court must be satisfied on a preponderance of probability that the charge is established. A logical conclusion from all points cannot be expected nor can a degree of uncertainty be demanded of which the matter under investigation is not reasonably capable. The word ‘strict’ is regarded sufficiently apt to describe the measure and standard of proof. The proceeding is civil and not criminal and analogy of a criminal case can at times be misleading.

In White v. White, AIR 1958 SC 441, the SC had to consider the words ‘satisfied on evidence’ used in Section 14 of Divorce Act, 1869. After referring to the case, Preston Jones (1951)1 AII ER 124, decided by the house of lords in England, the Supreme Court expressed the view that the words ‘satisfied on evidence’ means that the court should be satisfied beyond reasonable doubt as to the commission of the matrimonial offence. The view was also expressed that the evidence must be clear and satisfactory beyond mere balance of probabilities. It was also pointed out that it was not necessary and really possible to prove adultery by any direct evidence.

Maintenance on Adulterous Woman:

In order to constitute a claim of maintenance by the wife can be taken into consideration by the virtue of Section 18 of Hindu Adoption and Maintenance Act, 1956 which states that a wife can ask for maintenance: 1) subject to the provisions of this section, a Hindu wife whether married before or after the commencement of the Act, shall be entitled to be maintained by her husband during her life time.

2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-

(a) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish , or of willfully neglecting her;

(b)If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injunctions to live with her husband;

(c)If he is suffering from a virulent form of leprosy;

(d)If he has any other wife living;

(e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) If he has ceased to be Hindu by conversion to another religion;

(g) If there is any other cause justifying living separately.

3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

 Therefore wife in Order to be entitled for the claim of maintenance must be capable of, by virtue of section 18 clause 1 and 2. Only a wife, who as mentioned above can ask for the maintenance, But the wife who is charged under the allegation of being indulged in the adulterous activity cannot be made liable to enjoy the ripen fruits of the Maintenance. Section 18(3) of the Hindu Adoption and Maintenance Act 1956 clearly states that a wife indulged in the relationships of adultery could not be entitled to ask for maintenance. The word ‘unchaste’ refers to relating to or engaging in sexual intercourse activity or especially of an illicit or extramarital affair. A wife indulged in unchaste activity is denied for the claim of maintenance.

But while considering the concept of the Hindu Marriage Act, 1955

Section 23A ‘Relief for respondent in divorce and other proceeding’–  In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty, or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty, or desertion is proved the court may give to the respondent any relief under the Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

Section 24 ‘Maintenance pendent lite and expenses of proceedings’ – where in any proceeding under this act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may on the application of the wife or husband, order the respondent, to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sums as having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.

None of the above the 2 sections have provisions where a respondent wife as in this case would have been denied maintenance.

But if we look at Code of Criminal Procedure, 1973 under Section 125 (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient cause or reason, she refuses to live with her husband or if they are living separately by mutual consent.

This section would disallow maintenance on the ground of adultery of wife.

Case laws Referred:

Under Vinod Kumar V/s. Kaushalya, I (1996) DMc 603 Raj. – It is true that is suit for the divorced is decreed after the trial on the ground of adultery then the wife will not be entitled to get permanent alimony and maintenance U/sec 25 of the Hindu Marriage Act 1955 because adultery  alleged against her is proved.

On 15^th Nov 2013 a local Mumbai court on Friday rejected a 38yr old south Mumbai woman’s plea for maintenance from her estranged husband after it found out that she was involved in the adulterous relationship.“The wife who engaged herself in (an) adulterous activity cannot be allowed to take advantage of her own wrongdoings,” the court said while accepting the 40yr old husband’s plea seeking divorce on the grounds of cruelty and adultery.

Conclusion

As per the above mentioned sections and the facts and the circumstances referred it states that a husband cannot be made liable to pay alimony if the wife’s adultery is proved under the court of law. Therefore in Order to constitute a claim for the right of maintenance wife must be cleaned handed, she must be pure enough to claim for the maintenance as per the rules and regulations stated in the previously mentioned sections.