INTRODUCTION TO THE CONCEPT OF MAINTENANCE
The Hindu Marriage Act, 1955[1] (“the HMA”) provides for maintenance to a spouse during divorce, judicial separation, or restitution of conjugal rights proceedings. The right to maintenance is recognized under various personal laws, including the HMA and the Criminal Procedure Code[2] (“the CrPC”). Interim maintenance covers legal expenses and is paid by the husband, while permanent maintenance can be a lump-sum or regular payment ordered by the court. This blog aims to explore the principles used by the judiciary in granting orders of maintenance.
CHANGING GENDER ROLES IN THE SOCIETY
It is widely viewed as a societal expectation for the wife to contribute to the household finances in any way she can[3].
The Indian judicial system has often demonstrated a tendency towards leniency in awarding maintenance to wives while exhibiting a more stringent approach in cases concerning maintenance for husbands. The case of Yashpal Singh Thakur[4] exemplifies this, in which the court held that a husband cannot deliberately refrain from earning and rely on the wife’s income. Conversely, the case of Ajay Bhardwaj[5] highlights the judicial bias towards women, as the wife was granted maintenance without consideration of her ability to earn an income, and solely based on the fact that she had been deserted by the man with whom she was in a live-in relationship.
The High Court for the States of Punjab and Haryana in the case of Ajay Bhardwaj v. Jyotsana[6] granted maintenance to the woman, Jyotsana, from her live-in partner despite receiving maintenance from her ex-husband. The reason for this decision was that the live-in partner had allegedly misused some of the maintenance received from the ex-husband. Now, one of the conditions laid down in the D. Velusamy case[7] was that the persons must not be married when they enter into the live-in relationship which is not fulfilled in this particular case, however, the court has granted maintenance to the woman putting forth that the relationship is akin to the nature of marriage.
In the case of Yashpal Singh Thakur v. Smt. Anjana Rajput[8], the Madhya Pradesh High Court ruled that the husband, who had intentionally chosen to live a leisurely life and not work[9], could not claim maintenance under the HMA. The husband had filed for divorce from his wife on grounds of mental cruelty and adultery. The court noted that the husband was capable of finding private employment and therefore could not claim maintenance from his wife. This decision was based on a previous ruling by the Rajasthan High Court in Govind Singh’s case[10], in which maintenance was denied to the husband for intentionally disabling his means of earning.
In Nivya VM v. Shivaprasad N.K.[11], the Kerala HC followed the decision in Yashpal Singh Thakur and stated that maintenance for a husband after divorce is only exceptional and requires the husband to prove permanent incapacity to earn. The court held that the husband has the obligation to maintain the wife and the wife maintaining the husband is only an exceptional case. The Kerala HC had previously ruled in 1973 that a wife’s income is relevant in granting maintenance[12]. The Calcutta High Court in 1986 discussed whether a husband with little or no visible income is exempt from maintaining his wife under Section 125 of the CrPC[13] if he is able-bodied. The wife argued that the husband should provide evidence of inability to earn, being an able-bodied young man[14].
DELAY IN ACCEPTING THIS REALITY
The concept of both the husband and wife contributing to the family’s financial support is still a relatively new idea for some members of society and the Indian judiciary. The HMA provides maintenance for husbands in certain circumstances, while the CrPC, a secular law, does not have provisions for the maintenance of husbands.
In 2007, the court in Bharat Hegde v. Saroj Hegde[15] established 11 factors to consider in granting maintenance to either spouse. These factors include the parties’ status, reasonable needs of the claimant, their independent income and property, number of people to maintain, lifestyle during the marriage, liabilities, and the non-applicant capacity to pay.
In 2011, the Delhi High Court in Rani Sethi v. Sunil Sethi[16] relied on these guidelines in granting the respondent-husband maintenance of Rs. 20,000 per month and Rs 10,000 in litigation expenses, based on the wife’s business profits and income. The husband must prove permanent incapacity to earn his own income.
In 1992, the court in Smt. Kanchan v. Kamalendra[17] held that maintenance granted to the husband in a lower court was incorrect as it had granted the husband Rs 500 for litigation expenses and Rs 100 per month as maintenance from the wife’s take-home income of Rs 1200. The High Court laid down that since only the business of the husband is shut down the husband is not completely incapacitated and he can still work hence granting such maintenance would promote him to be idle.
CONSEQUENCES OF THE JUDICIAL BIAS
The courts have traditionally held that the husband is responsible for paying maintenance to his wife, regardless of her own income. While this interpretation is based on traditional gender roles where the husband is the main provider and the wife is the homemaker, it is becoming outdated with the rise of double-income households. To address this, the judiciary has started to reevaluate this stance and has taken steps in the right direction, as seen in cases such as Sethi v. Sethi (2011)[18], which set the principle of “permanent incapacity”. However, there is still a need for legislative intervention to solidify this principle and ensure that the judiciary takes into account the increasing number of working women in society when making decisions about maintenance allocation.
In the case of Meenu Chopra v. Deepak Chopra[19], the husband argued that he should not be responsible for paying the maintenance granted to his wife, as she came from a modest background and was demanding an amount that was seven times her father’s income, which he deemed as “excessive.” However, the court ruled in favor of the wife, directing the husband to pay maintenance of Rs 20,000 and stating that a wife has a right to her husband’s affluence if she is suffering as a result of his miseries. The court’s decision could be criticized for basing the maintenance solely on the husband’s income.
In the Ajay Bhardwaj case[20], the husband was also ordered to pay maintenance, despite the couple not being in a legally recognized relationship. The man and woman were living in a live-in relationship while both were married to their respective partners. Despite the woman being financially well-off and receiving maintenance from her previous husband, the Delhi High Court rejected the husband’s request to reduce the maintenance amount and ruled that it is his duty to maintain his wife and children.
In conclusion, the judiciary considers several factors when granting maintenance to a wife, including taking into account the rise of double-income households and the shift away from traditional gender roles. The financial situation of the parties is often the primary consideration, but the court may also look at the type of relationship between the parties and the circumstances surrounding the main petition. The husband is generally considered liable to pay maintenance to the wife. The focus of the judiciary is to ensure that the wife and children are financially supported.
CONCLUSION
Maintenance provisions under Hindu law and CrPC in India provide for both men and women, but with different interpretations of gender neutrality and secularism. Hindu law is considered gender-neutral but not secular, while CrPC is secular but not gender-neutral. Despite provisions for husband’s maintenance, they are often not granted due to societal norms. The principle of permanent incapacity provides guidance for courts in maintenance cases involving husbands but is not universally applied and the judiciary still holds biases against men. Greater awareness and education are needed for law students and the legal community to engage in discussions and push for reforms in maintenance laws.
Author(s) Name: Jahnvi Shah (NMIMS University, Mumbai)
References:
[1] Hindu Marriage Act, 1955
[2]The Criminal Procedure Code, 1973
[3]Monrad G. Paulsen,‘Support Rights and Duties between Husband and Wife’ [1956] 9Vand L Rev 709
[4]AIR 2001 MP 67
[5]Criminal Revision No. (F) 166 of 2015 (O&M)
[6]Criminal Revision No. (F) 166 of 2015 (O&M)
[7]D. Velusamyv D. Patchaiammal, Criminal Appeal Nos. 2028-2029 of 2010
[8]Supra note 4.
[9]Supra note 4.
[10]Govind Singh v. Smt. Vidya, AIR 1999 Raj 304
[11] O.P. (FC) No. 26 of 2015
[12]K.M.P. Kovilamma v. MoopilEradi, 1973 Ker LT 757
[13] Section 125 of the Criminal Procedure Code, 1973: Order for maintenance of wives, children and parents
[14]Dasarathi Ghosh v. Anuradha Ghosh and another, (1986) 2 HLR 165
[15]140 (2007) DLT 16
[16](2011) 179 DLT 414
[17]AIR 1992 Bom 493
[18] Supra note 15
[19] AIR 2002 Del 131
[20] Supra note 6
