Maintenance: Gender Neutral or Gender Biased?

Table of Contents

Introduction

Maintenance means money amount given towards the basic necessities of survival for a person in the world where he won’t need to be a vagrant or a destitute.
The basic necessities include food, cloth and shelter, later on more two words were added to this, and they are – education and health.
The entitlement of claiming maintenance is certainly based on the assumption that the claimant doesn’t have the sufficient means to support themselves.
The proceedings for the matter of maintenance are carried on in the Judicial Magistrate of First class[i].
Unable to Maintain does not mean a beggar, but a person who is earning a paltry sum of money.
The procedures of the proceedings in the matter of Maintenance are stated under the Code of Criminal Procedure, 1973, but the proceedings are done according to civil procedure.
An application for maintenance is an interlocutory application made by one of the spouses in the going on proceedings for divorce.

Acts under which Maintenance is awarded

Under The Code of Criminal Procedure, 1973 the maintenance is awarded under section 125 in which the grounds of maintenance are specified. Section 126 of the same is regarding the procedure of the proceedings and as to where the cases of maintenance can be filed. Under section 127 the alteration and the terms of alteration are stated. Person of any religion can apply through this section.
Under Hindu Marriage Act, 1955 under Section 24, 25 and 26 the Provision of maintenance is stated. This is specifically for person married according to Hindu Marriage Act, 1955.
Under Protection of Women from Domestic Violence Act, 2005, Maintenance is stated under section 20. In the case of, Prakash Babulal Dangi v. The State of Maharashtra[ii], according to section 36 of Domestic Violence Act, 2005, the provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law.
Muslim Women (Protection of Rights on Divorce) Act, 1986 there is a provision for availment of permanent maintenance under section 4. The Muslim women can also avail for maintenance under section 125 of the Code of criminal Procedure, 1973, but only after they have tried to get maintenance under section 4 of the MWA, 1986. Before Mohammad Ahmed Khan v. Shah Bano Begum[iii], Muslim women were not treated well, who were being divorced from their husband without any valid reason and with the burden of maintaining their children at an old age.
Parsi Marriage and Divorce Act, 1936 the provision for maintenance is stated under Section 39 – 41. Section 39 is regarding the Alimony Pendente Lite, Section 40 is regarding Permanent Maintenance and Section 41 is regarding the payment of money to wife or to her trustee.

The effects of availing Maintenance Under two acts

The applicant for maintenance can apply maintenance under two acts simultaneously but cannot enjoy the benefits of the both.
If the court in any matter concludes that the wife is not getting enough maintenance through the first decree, they may award maintenance under the second but with a less amount.
These provisions are not made to punish the respondent or so, but to not let the applicant become a destitute or a vagrant.
If the wife has availed for maintenance under domestic violence act then she gets the benefit under it even if she may have already been granted maintenance under any other provisions of any other acts.

Grounds on which Maintenance is awarded

The respondent has done cruelty to the appellant.
The respondent has deserted his/ her spouse without sufficient reason.
If the husband remarries during the subsistence of the first marriage.
If the person is suffering from virulent form of leprosy.
The husband keeps the concubine in the same house as that of the wife resides. Prakash v. Pushpa Vani[iv].

The wife is not entitled to maintenance if[v]

She is living in adultery;
Without sufficient reasons refuses to live with her husband;
They are living separately by mutual consent;
She has remarried someone else.

Grounds on which the Maintenance is for limited time

If the wife leaves her job just to cause the husband trouble of maintaining her. This has been stated in a recent case – Sachinsingh Baldeosingh Chauhan v. Rajeshwari[vi]. In this case the wife was more qualified than her husband, and left the job to claim maintenance from her husband, held that until she gets her job back she is to be maintained by husband, though the wife cannot put the burden on husband and sit idle.

Quantum of Maintenance

The movable and immovable property of the husband along with the salary slip is to be attached with the file of the case. The 1/3^rd part of the husband’s income can be granted to the wife as maintenance if the husband is guilty of cruelty or desertion to the wife or remarried to someone else. The 1/5^th – 1/4^th part of the family income of the husband can be granted to the wife as maintenance if the divorce was of mutual consent and the wife is unable to maintain herself.

Status of the parties.
Reasonable wants of the claimant.
The independent income and property of the claimant.
The number of persons, the non applicant has to maintain.
The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
Non-applicant’s liabilities, if any.
Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
Payment capacity of the non applicant.
The amount awarded Under Section 125 Cr.PC is adjustable against the amount awarded Under Section 24 of the Act.

Grounds on which the Quantum can be altered

If the non-applicant loses his job/ retires the quantum of the maintenance awarded is decreased as per the income of the respondent.
If the applicant loses her job the quantum maybe increased if she is unable to maintain herself or else until she gets placed again.

Maintenance to Parents, children, and second wife

Maintenance to Parents

The duty of maintaining the parents does not only lie on the shoulders of the sons, but also on the daughters. The Landmark case Vijaya Manohar Arbat v. Kashirao Rajaram Sawai[vii], confirms the same, in which the respondent had refused to pay the maintenance to her father. Later it was held that the married daughter having a job has the duty to maintain her parents as she does not cease to be the daughter even after the marriage.
Similarly, in Vasant v. Govindrao Upasrao Naik[viii], it was held that the married daughter was proved to have been working as a software engineer in USA and having sufficient means, so was under an obligation to maintain her infirm parents.
In this the “mother” does not mean a step mother but adoptive mother is included for grant of maintenance. The person does not have a duty to maintain his stepmother, but the stepmother can get a part in the property of her husband.
In Saroj Mukkawar v. Chandrakalabai Polshetwar[ix] the mother in law claimed maintenance from the daughter in law, she was successful as after the death of her son, the daughter in law got the job on compassionate grounds in place of the deceased son and had given an undertaking at the time of taking the job that she would look after the mother in law.
The putative father cannot claim maintenance from the child, though a child incapable of maintaining himself can claim maintenance from the putative (believed to be) father.

Maintenance to Children

The basis for claiming maintenance is paternity and not the legitimacy of the child. – Gopal Gounder v. Kasi Ammal and Ors[x].
Even if the child is living with the mother after the separation of parents, the father’s obligation towards that child does not end. He, the father, even after that, has to maintain his child and provide an amount towards the maintenance of the child. – Sukhjinder Singh Saini v. Harvinder Kaur[xi].

It does not make the person to maintain the child of the husband from his previous wife when the biological mother is alive. –Manjulaben Prakashbhai Sarvaiya v. State of Gujrat[xii].
Mathew Varghese v. Rosamma Varghese and ors.[xiii] – It was held that a Christian father is legally obligated to maintain his children until they are minor and also has to maintain the daughter until they get married.

Maintenance of the second wife

Maintenance cannot be granted to the second wife, if the marriage to the first wife is in subsistence. According to Hindu Marriage act, 1955, second wife is not to be granted maintenance. – Atmaram Tukaram Suradkar v. Trivenibai Atmaram Suradkar[xiv].
Yubaraj Chakma v. Smt. Nilima Debbarama[xv] it was held that the burden of proof that the wife is the second wife lies on the husband, or else the husband will have to pay the maintenance towards the wife.
Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga[xvi], it was held that, though the second wife cannot claim maintenance, she can still claim all her ornaments back from the husband she may have given him at the time of marriage.

Maintenance to the Husband

Section 24 entitles not only the wife but also the husband to claim maintenance pendente lite on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood[xvii].
Kanchan w/o Kamelendra Sawarkar v. Kamalendra and Kamalakar s/o. Rajar[xviii] in this case the husband had filed an application for getting maintenance from the wife as the wife was employed and the husband wasn’t employed. The Bombay High Court held that the husband cannot be totally dependent on the wife’s income. The whole point of Section 24 of the Act was to provide some assistance to those who are unable to pay for the basic necessities and by providing maintenance to the bodily abled husband equipped with skills would promote idleness, which will just dim out the spirit of the provision.
Rani Sethi v. Sunil Sethi[xix] in this case after taking to consideration all the facts, the trial court held that the husband was entitled to get Rs. 20000/- and Rs 10000/- as the litigation expenses and Zen Car for his use by the wife. The same was upheld by the Delhi High Court and dismissed the appeal made by the wife. The facts that led to the decision were that the wife and husband had set up the business together initially by selling the respondent’s ancestral property. However, later on the husband was thrown out of the matrimonial home with few of his articles.

Conclusion

If the special law does not have any provisions for some right, then that right shall be exercised by general law.
The wife, children or the parents are not left to be beggared for their basic necessities.
The second wife cannot claim maintenance from the husband during the subsistence of the first marriage.
The parents can claim maintenance from any one or all of their children, and also from a married daughter. A daughter is also liable to maintain her parents just like the son.
Section 24 does give the right to both husband and wife to file an application for availing maintenance from the spouse, but the husband can get maintenance from the wife only in exceptional cases.
The illegitimate child can claim maintenance from its putative father. As the basis of claiming maintenance is not legitimacy, but paternity.

[i] 19, Halsbury’s laws of India – Family Law 1, Second Edition, Lexis Nexis

[ii] Prakash Babulal Dangi v. The State of Maharashtra, 2017, CRA No. 296/2017 10-10-2017

[iii] Mohammad Ahmed Khan v. Shah Bano Begum, 1985 AIR 945, 1985 SCR (3) 844

[iv] Prakash v. Pushpa Vani, 2004 (3) ALD 858, 2004 (4) ALT 286

[v] Supra (1) p-566

[vi] Sachinsingh Baldeosingh Chauhan v. Rajeshwari, 2016, BOM HC Writ Petition No. 5592 of 2015

[vii] Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, 1987 AIR 1100, 1987 SCR (2) 331

[viii] Vasant v. Govindrao Upasrao Naik, 2016, BOM HC, Cr revn.172.14

[ix] Saroj Mukkawar v. Chandrakalabai Polshetwar, 2009, BOM HC, Cr revn. 86.07

[x] Gopal Gounder v. Kasi Ammal and Ors, 1999, 1 MLJ 250

[xi] Sukhjinder Singh Saini v. Harvinder Kaur, 2017, Crl. M.A. No. 11437/15

[xii] Manjulaben Prakashbhai Sarvaiya v. State of Gujrat, 2015, R/CR.MA/13796/2015

[xiii] Mathew Varghese v. Rosamma Varghese and ors., 2003 131 TAXMAN 646 Ker

[xiv] Atmaram Tukaram Suradkar v. Trivenibai Atmaram Suradkar, 2005 CriLJ 2057, I (2006) DMC 203

[xv] Yubaraj Chakma v. Smt. Nilima Debbarama, 2006 CriLJ 1357, II (2006) DMC 751, (2006) 3 GLR 849

[xvi] Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga, II (2001) DMC 230

[xvii] Section 24 – Husband can also claim maintenance can be found at – https://indiankanoon.org/doc/1449825/

[xviii] Kamelendra Sawarkar v. Kamalendra and Kamalakar s/o. Rajar, AIR 1992 Bom 493, 1992 (3) Bom CR 219

[xix] Rani Sethi v. Sunil Sethi, CM(M) 169/2009

Author: Dhruti Pradhan,
5th Year BBA.LLB. and Navrachana University, Vadodara