Right of divorced wife for grant of Maintenance

Divorce

Right of Divorced Wife for Grant of Maintenance under Section 125 of the Code of Criminal Procedure, 1973

Maintenance is granted to wife’s who are unable to maintain themselves. The Supreme Court has said that delay in maintenance to wife is a violation of human rights. The Supreme Court has ruled that family courts cannot delay grant of maintenance to an estranged wife and said there was no escape for a husband from the responsibility of giving sustenance money to his wife despite soured relations.

Dealing with a case where grant of maintenance had been delayed by nine years, a bench of Justices Dipak Misra and V Gopala Gowda said, “This delay in adjudication by the family court is not only against human rights but also against the basic embodiment of dignity of an individual.

  • Nature of Section 125 of Code of Criminal Procedure:

The maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy leading to the commission of crime and starvation by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to support. The provisions of maintenance of the Code of Criminal Procedure are applicable to persons belonging to all religions and have no relationship with the personal laws of the parties.

As per Section 125(l) (a) of the Code, if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Here ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

The wife for the purpose of the section may be of any age—minor or major and means a legally married woman. The legality of the marriage would be governed by the personal laws applicable to the parties. If the fact of legally valid marriage is disputed, the applicant will have to prove marriage.

Under Section 125(l)(a) of the Code, maintenance allowance cannot be granted to every wife who is neglected by husband or whose husband refuses to maintain her, but can only be granted to a wife who is unable to maintain herself but not a wife who is maintaining herself with some difficulty.

The onus is on the wife to establish that she is the person concerned for the right to maintenance under Section 125 of the Code.

Section 125 of the Code gives effect to the fundamental and natural duty of a man to maintain his wife. Section 125 provides a statutory right and cannot be affected by personal law. The right conferred upon the wife by the provisions of Section 125 is independent of personal law. A wife is entitled to maintenance under Section 125, irrespective of the fact that she is not entitled to maintenance under the personal law.

In a landmark judgment, Mohd. Ahmed Khan v. Shah Bano Begum, it is declared that a Muslim husband having sufficient means must provide maintenance to his divorced wife who is unable to maintain herself. Such a wife is entitled to the maintenance even if she refuses to live with the Muslim husband because she has contracted another marriage within the limits of four wives allowed to him by Quran. The Bench of the Supreme Court declared that a Muslim divorced woman who cannot maintain herself is entitled to maintenance from her former husband till the time she gets remarried.

The religion professed by a spouse has no place in the scheme of Section 125 of the Code of Criminal Procedure which is a measure of social justice founded on an individual’s obligation to the society.

The Supreme Court has held that if there is any conflict between personal law and Section 125 of the Code, and then it is clear from the language of Section 125 that it overrules the personal law.

  • Interim maintenance:

As per second proviso to Section 125(1) of the Code of Criminal Procedure, during the pendency of the proceeding regarding monthly allowance for the maintenance under Section 125(1) of the Code, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.

  • Essential conditions for granting maintenance:

(i) Sufficient means to maintain:

According to Section 125(1) of the Code of Criminal Procedure, the person from whom maintenance is claimed must have sufficient means to maintain the person or persons claiming maintenance. Here, the expression ‘means’ does not signify only visible means such as real property or definite employment. The words ‘sufficient means’ should not be confined to the actual pecuniary resources but should have reference to the earning capacity. If a man is healthy and able-bodied, he must be held to possess the means such as real property or definite employment.

(ii) Neglect or refusal to maintain:

As per Section 125(1) of the Code of Criminal Procedure, the person from whom maintenance is claimed must have neglected or refused to maintain the person or persons entitled to claim maintenance.

Neglect means a default or omission in the absence of a demand whereas ‘refuse’ means a failure to maintain or a denial of obligation to maintain after demand. A neglect or refusal to maintain may be by words or by conduct. It may be express or implied. Neglect or refusal may mean something more than mere failure or omission. Burden of proving neglect is on the claimant.

(iii) Wife claiming maintenance must be unable to maintain herself:

As the object of Section 125 of the Code is mainly to prevent vagrancy; the requirement to pay maintenance should be only in respect of persons who are unable to maintain themselves. The inability of the wife to maintain herself is a condition precedent to the maintainability of her application for maintenance.

Maintenance means appropriate food, clothing and lodging. By the phrase ‘unable to maintain herself’, it is not meant that she should be absolute destitute and should be on the street, should beg and be in tattered clothes.

The maintenance has to be determined in the light of the standard of living of the person concerned which she enjoyed at the place of her husband.

  • Grounds on which the wife can be refused maintenance:

(i) The wife must not be living in adultery:

As per Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under Section 125 if she is living in adultery.

(ii) Wife must not refuse without sufficient reasons to live with her husband:

According to’ Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive an allowance for the maintenance from her husband, if she refuses to live with her husband. Wife must not refuse to live with her husband without sufficient reason to get maintenance. What could be considered as a sufficient reason for the wife’s refusal to live with her husband would depend upon the facts and circumstances in each case. As per explanation to Section 125(3) of the Code, if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife’s refusal to live with him.

 (iii) The wife must not be living separately by mutual consent:

As per Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive an allowance for the maintenance from her husband if they are living separately by mutual consent.

A divorced wife cannot be characterized as a wife living separately by mutual consent. A divorced wife is a person who lives separately from her former husband by virtue of a change in status consequent upon the dissolution of the marriage.

A divorce decree by mutual consent to live separately cannot disentitle the wife to claim maintenance. The concept of living separately by mutual consent arises so long as the marriage subsists and the parties agree to live separately by consent. Where the marital relations have been terminated by an agreement, the wife would be entitled to claim maintenance from her ex-husband so long she remains unmarried and is unable to maintain herself.

(iv) The wife must not relinquish her right to maintenance:

In the case of divorce by mutual consent if the wife had relinquished her right to maintenance, she cannot later claim maintenance.

By Shweta Kaushik, Advocate Punjab & Haryana

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