INTRODUCTION
Divorce rates in India have increased by 50-60% in the last few years as a report by Economic Times suggests[1]. There could be various reasons contributing to this trend which could include the growing independence of women, and increasing awareness about basic human rights or education. Divorce has severe consequences both emotional and financial, for both the husband and the wife. But, the financial burden on men is way more than the women. Division of assets, taking responsibility for alimony and child support is often ascribed to men, because of which they end up giving more than half of their income, which is a huge financial burden on them. The stance of a woman after a divorce is always talked about, but what a man goes through is never thought about.
Maintenance refers to the financial support provided by one spouse to the other spouse, which is aimed at ensuring that the dependent spouse can maintain a standard of living similar to that which he or she enjoyed during the marriage. Out of all the acts and laws governing marriage and maintenance in India, only the Hindu Marriage Act, of 1955 and Parsi Marriage and Divorce Act, of 1936 mentions the husband’s claim of maintenance from the wife after a divorce. All the other legislations give this right of claiming maintenance only to the wife. A detailed analysis has been provided below.
HOW IS THE MAINTENANCE AMOUNT CALCULATED?
Alimony or maintenance is an amount which is a legal obligation of the capable spouse, which is mostly considered to be the men, to pay to the incapable spouse mostly the women, to maintain her after either divorce or judicial separation. There are two types of maintenance- interim and permanent. Interim maintenance is the amount paid for the period of judicial proceedings and final maintenance is paid after the final legal separation. The maintenance amount could be either a lump sum or in instalments.
In Kalyan Dey Chowdhury v. Rita Dey Chowdhury[2], the Supreme Court held that “25% of the husband’s net salary would be just and proper to be awarded as a maintenance to the wife”.
In India, the maintenance amount is typically calculated based on various factors such as the income of both parties, the standard of living, the number of dependents, and the expenses required for the maintenance of the dependent family members.
It is important to note that maintenance is a legal obligation, and failure to pay the maintenance amount can lead to legal consequences such as fines or even imprisonment.
BIASED HOW?
The Hindu Marriage is considered to be sacrosanct. As per various religious texts, the husband and wife are equal in a marriage, their souls are one and there is no difference between them. However, our legislations governing marriages and divorces are biased towards women.
According to Section 25 of the Hindu Marriage Act, of 1955[3] any spouse of a marriage can claim maintenance after a divorce, no distinction is made between the husband and the wife. Thus, any spouse who is incapable to maintain himself/herself after the divorce can claim maintenance from the capable spouse. Similarly, under section 40 of the Parsi Marriage and Divorce Act, 1936[4] , an Act which governs the marriages and divorces between two Parsis, the claim of maintenance is available to both the husband and the wife. However, this provision is not mentioned in other Legislation. Under section 37 of The Divorce Act, 1869[5], an Act which governs Christian matrimonial provisions in India, the wife can demand post-divorce maintenance from the husband, but the husband doesn’t have this right. Similarly, as per section 37 of the Special Marriage Act, 1954[6], maintenance is available only to the wife as long as she doesn’t remarry. Under Muslim law, only the wife has the right to ask for maintenance, the husband cannot do so. Section 125 of the Criminal Procedure Code, 1973[7] gives detailed provisions about maintenance to wives and children. This is a secure provision, thus any woman irrespective of her religion can claim maintenance.
The above-mentioned provisions of the various laws seem to be derogatory and biased against men. As a result of such biased rights, men fear divorce as in the worst scenario they could end up losing a substantial part of their assets and income. Maintenance is many times used as a tool by women to harass their husbands as she is capable of sustaining themselves but intentionally don’t prefer to work. Thus, this could be one of the contributing factors towards the increasing rates of divorce in India.
ANALYSIS
As per Article 15 of the Constitution of India,[8] there should be no discrimination on the grounds of religion, race, caste, sex and place of birth. Thus, all the laws which provide only women with the right to claim maintenance, forbidding the men to ask for maintenance in case they are incapable of maintaining themselves after divorce are violative of Article 15[9]. Constitution is considered to be the supreme law of the country and the rights guaranteed by the Constitution are fundamental to the existence of the citizens, thus it is the responsibility of the State to protect these fundamental rights. The same contended in Vivek Bhatia v. Anju Bhatia [10] where the petitioner’s husband pleaded divorce on the grounds of mental by physical cruelty. He was granted a divorce but was asked to pay maintenance to his wife and minor son. Later the husband lost his job and appealed in the Supreme Court challenging the validity of Section 125[11] of CrPC. He argued that his wife is more qualified than him and could easily maintain herself. Thus, he contended that Section 125[12] of CrPC should be declared unconstitutional as it is violative of Article 15[13] of the Indian Constitution.
In Kusum Sharma v. Mahinder Kumar Sharma,[14] the Delhi High Court ruled that maintenance is not only a constitutional right but also an element of universal human rights. Human Rights are basic rights which are available to all irrespective of their caste, class or gender. Then why is the right to claim maintenance available only to women and not to men? Thus, all the above-mentioned laws which give only women the right to claim maintenance are violative of these basic human rights of the men community. Even if the wife is able but unwilling to work and sustain herself in divorce, the husband will be bound to pay her maintenance.
CONCLUSION
As we have analysed that the status of current marriage and divorce laws are biased towards women, it’s high time to introduce the much-needed changes to make these provisions gender-neutral. Some steps to ensure gender neutrality can be to introduce amendments in the existing laws to make maintenance a right for both the husband and the wife. As Article 15[15] of the Indian Constitution envisages that all people should be treated equally without any discrimination, thus this idea should be carried forward and more gender-neutral laws should be enacted. The Legislation should enact special laws for men concerning their marital rights and duties. There are certain special rights given to women such as the Right to reside in a Marital house, the Right to Streedhan, the right to move out of the marriage, etc, in a similar manner some special rights should be conferred on men also.
Earlier when most of these Acts were enacted, women neither owned properties nor had inheritance rights, but in the present time most of the women are earning, and they have the right to inherit property, thus as per the needs of the current times, these Acts should be amended. Thus, like the Hindu Marriage Act, 1955 and Parsi Marriage and Divorce Act, 1936 all the other Acts like The Divorce Act, 1896, Special Marriage Act, 1954 etc should be amended and give a right to the husband to claim maintenance if the circumstances allow so.
Author(s) Name: Nayna Garg (Hidayatullah National Law University, Raipur)
Reference(s):
[1] “Rica Bhattacharyya, Divorces among professionals zoom amid pandemic gloom, The Economic Times, (Mar.14, 2023, 9 pm), https://economictimes.indiatimes.com/news/india/divorces-among-pros-zoom-amid-pandemic-induced-gloom/articleshow/92777259.cms?from=mdr”
[2] Kalyan Dey Chowdhury v. Rita Dey Chowdhury, (1970) 3 SCC 129.
[3] Hindu Marriage Act, 1955, § 25, No. 25, Acts of Parliament, 1955 (India).
[4] Parsi Marriage and Divorce Act, 1936, § 40, No. 3, Acts of Parliament, 1936 (India).
[5] The Divorce Act, 1869, § 37, No. 4, Acts of Parliament, 1869 (India).
[6] Special Marriage Act, 1956, § 37, No. 43, Acts of Parliament, 1956 (India).
[7] Criminal Procedure Code, 1973, § 125, No. 2, Acts of Parliament, 1973 (India).
[8] India Const. art.15.
[9] India Const. art.15.
[10]Vivek Bhatia v. Anju Bhatia, First Appeal No.82 of 2015.
[11] The Code of Criminal Procedure, 1973, § 125, No. 2, Acts of Parliament.
[12] The Code of Criminal Procedure, 1973, § 125, No. 2, Acts of Parliament.
[13] India Const. art.15.
[14] Kusum Sharma v. Mahinder Kumar Sharma, FAO 369/1996.
[15] India Const. art.15.
