Important Judgments on Maintenance

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February 08, 2019

The Law pertaining to maintenance is a very essential piece of legislation protecting the rights of women and advancing justice to estranged wives. The right to claim maintenance can particularly be found in Section 125 of Code of Criminal Procedure, which also confers the right to claim maintenance on parents and minor children. Apart from law enumerated under Section 125 CrPC, an aggrieved wife can also claim maintenance under the relevant provisions of the Hindu Marriage Act, 1955 and the Protection of Women against Domestic Violence Act, 2005.

In this article we have demonstrated some cases which aid in understanding the law and its interpretation by the Indian Judiciary.

Maintenance Case- Strict Proof of Marriage not required u/Section 125 CrPC- Supreme Court

Case name: Kamala and ors. v. M.R. Mohan Kumar

The Supreme Court in this recent case has reiterated the settled principle of law that unlike other matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance under Section 125 CrPC.

The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record allowed the appeal holding that there was a valid marriage between the parties and moreover a strict proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC. The other observations made by the Apex Court in the case are as under:

The Supreme Court also made reference to it’s judgment in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, wherein it was held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. It was also noted in the case that an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance.

The apex Court in the case also remarked that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.

Merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her

Case name: Shailja & Anr. v. Khobanna

In this case, the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.

What should be the Quantum of Maintenance?

The Supreme Court answered this question in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy by holding that 25% of the husband’s net salary would be just and proper as maintenance to wife.

The Supreme Court while deciding the review petition made reference to the case of Dr. Kulbhushan v. Raj Kumari & Anr.[3], wherein it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife.

Other remarkable observations made by the Court in the case were:

  • That the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.
  • That maintenance is always dependant on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors.

A similar observation has been recently made by the High Court of Kerala in the case of Alphonsa Joseph v. Anand Joseph, wherein the Court remarked that Maintenance to Wife can’t be rejected on ground that she is earning

The High Court thus, while making reference to Apex Court’s judgment in Sunita Kachwaha and ors. V. Anil Kachwaha, noted that even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright.

It was also stated by the High Court that as held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity.

That the husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.

The entire case can be accessed here.

Maintenance Order under Domestic Violence Act cannot be substituted by Maintenance under Section 125 CrPC- Bombay HC

Case name: Prakash Babulal Dangi v. The State of Maharashtra

In this case, the wife had initially claimed maintenance under Section 125 CrPC and the Court had awarded maintenance of Rs. 6000 to the wife and Rs. 4000 to her minor daughter. While the case under Section 125 of CrPC was pending, a case was filed and an interim maintenance was sought by the wife under Domestic Violence Act, whereby the husband was directed to pay maintenance of Rs. 8000 and Rs. 5000 to wife and daughter respectively.

In view of the aforesaid context, the Bombay High Court made reference to Section 36 of Domestic Violence Act, 2015 which entails that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law and held that that the amount of maintenance awarded under the Domestic Violence Act cannot be substituted to the order of maintenance under Section 125 of CrPC.

Can Husband Claim Maintenance?

Yes, a husband can claim maintenance, however, the Courts have time and again remarked that maintenance is to be paid to husband only if he is incapable or handicap. In a recent case of Nivya V.M. v. Shivaprasad N.K., the Kerala High Court dismissed husband’s claim for maintenance from his wife holding that maintenance under Section 24 of Hindu Marriage Act, 1955 is to be paid to the husband only when he is able to prove any incapability or handicap.

The Court also observed that in absence of such circumstances as enumerated above, endowing maintenance on the husband would only promote idleness.

The Court also remarked that a husband seeking maintenance from the wife can be treated only as exceptional case as normally he has got the liability or obligation to maintain the wife and vice versa is only exceptional.

Husband’s Foremost Duty is to Maintain Wife & Child- He may Beg, Borrow or Steal- Punjab & Haryana HC

Case name: Rajesh v. Sunita & ors. 

The High Court of Punjab & Haryana has held that if the husband fails to pay maintenance then the defaulter i.e. the husband has to suffer imprisonment on each default to pay the maintenance.

The High Court while pronouncing it’s verdict in the case heavily relied on Supreme Court’s verdict in the case of Shantha v. B.G. Shivnanjappa,  wherein the Apex Court had observed that the arrears of maintenance which is payable to the respondents is for about 45 months. Sentencing a person to jail is a ‘mode of enforcement’. It is not a ‘mode of satisfaction’ of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance, who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic necessities. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to survive. The first and foremost duty of the husband is to maintain the wife and the child. He may beg, borrow or steal.

It was thus concluded by the Court that the maintenance claim has to be construed continuing liability which becomes due at the end of every month. So, the defaulter has to suffer imprisonment on each default to pay the maintenance. On undergoing imprisonment in default of maintenance will not wipe out the liability which shall subsist till the payment is made.

Can a Divorced or Judicially Separated Wife claim Maintenance?

Judicially Separated Wife is also entitled to Maintenance

Case name: Sanju Devi v. State of Bihar

In this the Supreme Court, the Court rejected High Court’s order whereby the Petitioner was disentitled from maintenance under Section 125 of the Code of Criminal Procedure, 1973 on the ground that the husband and wife had already judicially separated. The Court also remarked that that if a divorced wife is entitled for maintenance then there is no reason why a wife who is judicially separated is not entitled for maintenance.

Read more here.

Also read Judicial Separation and Divorce in India

Maintenance under Section 125 CrPC cannot be denied to a Divorced Wife

Case name: Manoj Kumar v. Champa Devi

In the case, the husband had contended that as the decree of divorce had been passed he was under no obligation to pay maintenance to the wife as contemplated under Section 125(4) of CrPC. However, the High Court held that a divorced woman continues to enjoy the status of ‘wife’ for claiming maintenance under Section 125 of CrPC.

Even a Live-in-Partner can Claim Maintenance

Estranged Wife or Live-in-Partner can Claim Maintenance u/Domestic Violence Act- Supreme Court

Case name: Lalita Toppo v. State of Jharkhand & anr.

The Three-Judge Bench of the Supreme Court headed by Chief Justice Ranjan Gogoi, in this recent case has categorically held that maintenance can be claimed under the provisions of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) even if the claimant is not a legally wedded wife and therefore not entitled to claim of maintenance under Section 125 of Code of Criminal Procedure.

The Bench explained that the provisions contained in Section 3(a) of the DVC Act, 2005 which defines the term “domestic violence” also constitutes “economic abuse” as domestic violence. The Court further opined that under the provisions of the Domestic Violence Act, the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the CrPC i.e. to a shared household also.

Wife living separately from Husband without any reason cannot claim maintenance under Section 125 CrPC

Case name: Anil v. Mrs. Sunita

In this case, the wife left her husband’s home and resided at her matrimonial home. In the case, the husband also claimed that he went to bring her wife back but she refused. The wife in the case had claimed maintenance from her husband of Rs. 5000.

The husband in the case claimed that the wife without any sufficient reason was refusing to stay with him and also that she was an advocate and capable of earning and still was demanding maintenance.

In view of the aforesaid facts, the Madhya Pradesh High Court denied maintenance to the wife and observed that in view of the facts of the case, wife resided in her matrimonial home for the first time for 7 days and second time for 12 days and it is alleged that in these 12 days she was harassed. It is practically impossible that she could have been so harassed that it is impossible for her to live in her matrimonial home. After 12 days she had voluntarily gone with her brother with a view to select a girl for marriage of her brother. Thus, it cannot be held that she was thrown with force from her matrimonial home or she was forced to leave her matrimonial home.

Maintenance u/Section 125 of CrPC- Wife can Maintain Petition at any Place she is Residing

Case name: Sachin Gupta v. Rachana Gupta

In the case, the Petitioner has challenged the Trial Court’s order, whereby petitioner’s application objecting Respondent wife’s claim for maintenance under section 125 of CrPC on the ground of territorial jurisdiction has been rejected. Here it would be relevant to mention that the Respondent had instituted application for maintenance in Delhi and the Petitioner opposed the same on the ground that in all proceedings except in these proceedings the Respondent has mentioned her residential address as Aligarh.

The Respondent on the other hand contended that though Aligarh is her parental home, she was residing in Delhi and had filed the petition in Delhi as she is living with her brother in Delhi.

The High Court of Delhi in dismissed the petition and made the following observations in the case:

The High Court of Delhi referred to Section 126 (1) of CrPC which stipulates that the proceedings under 125 CrPC may be filed in any district where the respondent resides or where his wife resides or where the respondent last resided with his wife, or as the case may be, with the mother of the illegitimate child.

In view of the facts of the instant case, the High Court of Delhi noted that keeping in view of the fact that the wife can maintain a petition at any place where she is residing and the fact that the respondent has placed on record copies of her Aadhar Card, Voter ID Card, which reflect the address of Delhi, the Trial Court did not commit any error in rejecting the application of the petitioner holding that the Trial Court has territorial jurisdiction.

The entire case can be accessed here.

Agreement to Waive Right to Maintenance by Wife is Unenforceable- Bombay HC

Case name: Ramchandra Laxman Kamble  vs. Shobha Ramchandra Kamble And Anr.

In an interesting judgment, the Bombay High Court has ruled that an agreement wherein the wife waives her right to claim maintenance under section 125 of Code of Criminal Procedure is opposed to Public Policy and hence in unenforceable.

It was also observed by the Court that the consent decrees made by the courts are in effect of nothing but contracts with the seal of the court super­added to them. Accordingly, if the term of the contract is itself opposed to public policy then, such term, is void and unenforceable. If the term is severable then, only the term can be declared as void. If the term is not severable, then, perhaps, the entire contract may fall.

Also read What is Public Policy?

The Court thus stated that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable.