-DR. RAMESHWER DAYAL
Ancient Indian Law, contained in
Manu Smriti, i.e. Manav Dharmshastra, (Law of Humans) ordains that {एक एव अरस:
पुत्रः
पित्र्यस्य
वसुनः प्रभुः, शेषाणम आन्रिशंस्यार्थ प्रधयात तु प्रजीवनम (9-163)} “the
legitimate son of the body alone (shall be) the owner of the paternal estate;
but, in order to avoid harshness, let him allow maintenance to
the rest. (Chapter 9 Para 163)
Similarly, Shukra Nitisaar, sums up that “One
should maintain by all his wealth, his good wife, children and friends as far
as possible” (Shukra niti saar, Chapter 3 para 392).
Manusmriti
explains reason for providing maintenance to wife in chapter 9 Para 74 by
ordaining that “विधाय वृत्तिम
भार्याया प्रवसेत कार्यवान नरः, अवृत्तिकर्शिता हि स्त्री प्रदुष्येत स्थितिमत्यपि ” (9-74), “A man who has business (abroad) may depart after securing maintenance
for his wife; for a wife, even though
virtuous, may be corrupted if she be distressed by want of subsistence.” (9-74)
During
the period of East India Company and when India became a dominion of British
Empire, British Law was made applicable even to Indians. However, in that
exercise, ancient Indian law of maintenance to wife continued to apply to all
Indians and British nationals in India, under various regulations. First
consolidation of this rule became part of the Code of Criminal Procedure, 1861,
in Chapter XXI under Sections 316 and 317, which are reproduced here below:
“Chapter XX1”
“316. If any person having sufficient means, neglects
or refuses to maintain his wife or any legitimate or illegitimate child unable
to maintain himself, it shall be lawful for the Magistrate of the District or other
Officer exercising the powers of a Magistrate, upon due proof thereof, to order
such person to make a monthly allowance for the maintenance of his wife or such
child at such monthly rate, not
exceeding Fifty Rupees in the whole, as to the Magistrate or other
Officer as aforesaid shall seem reasonable; and if such person shall wilfully
neglect to comply with the order, the Magistrate or 'other Officer, as
aforesaid may, for every breach of the order, by Arrant, direct the amount due
to be levied in the manner provided for levying fines; He may order, such person
to be imprisoned with or without hard labor for any term not exceeding one
month. Provided that if such person offer to maintain his wife on condition of
her living with him, and his wife shall refuse to live with him, it shall be
lawful for the Magistrate or other Officer as aforesaid to consider any grounds
of refusal stated by such wife; and he may make the order allowed by
this Section notwithstanding such offer, if he shall be satisfied that such
person is living in adultery, or that he has habitually treated his wtfe with
cruelty. No wife shall be entitled to an al1owance from her husband under this
Section, if she is living in adu1tery, or if without any sufficient reason she
refuses to live with her husband.
317. Any person ordered to pay a .monthly allowance
for the maintenance of
his wife, or child, or both, under the provisions of the last preceding
Section, may. apply to the Magistrate from time to time for the reduction of
allowance, and on proof of an
alteration in the circumstances of such person, his wife or child, justifying
such reduction, such Magistrate may make such reduction in the allowance
ordered as he may deem fit.”
Said provision
continued in the Code of Criminal Procedure, 1898 also, after certain changes.
Present
Criminal Code of Procedure, 1973 also continues the said provision after
certain changes such as inclusion of divorced wife in the definition of wife
till she remarries or obtains her permanent alimony.
After
independence of India in 1947, India framed its own Constitution. Preamble of Indian
Constitution ordains the object to be achieved, by stating the resolve of every
one to the effect that “We, the People of India, having solemnly resolved to constitute India into
a Sovereign Socialist Secular Democratic Republic and to secure to all its
citizens:
JUSTICE,
social, economic and political;
EQUALITY
of status and of opportunity;
and to
promote among them all
FRATERNITY
assuring the dignity of the individual and the unity and integrity of the
Nation…
14. Equality before law.—The
State shall not deny to any person equality before the law or the equal
protection of the laws within the territory
of India
15. Prohibition of discrimination
on grounds of religion, race, caste, sex or place of birth.—
(1) The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.
(2) No citizen shall, on grounds
only of religion, race, caste, sex, place of birth or any of them, be subject
to any disability, liability, restriction or condition with regard to—
(a)
access to shops, public restaurants, hotels and places of public entertainment;
or
(b) the
use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of
general public.
(3) Nothing in this article shall
prevent the State from making any special provision for women and children.
(4) XXXXX
(5)
XXXXXX.
Our Constitution also lays down certain principles
of policy to be followed by the Government:-
39.
Certain principles of policy to be followed by the State.
The State
shall, in particular, direct its policy towards securing—
(a) that the citizens, men and women equally, have
the right to an adequate means of livelihood;
(b) XXXX
(c) XXXX
(d) XXXX
(e) that the health and strength of workers, men
and women, and the tender age of children are not abused and that citizens are
not forced by economic necessity to enter avocations unsuited to their age or
strength;
(f) XXXXX
India, being a signatory to international
conventions has also to follow the same.
Article 23 of the International Covenant on Civil and Political Rights, 1966
(ICCPR) provides that:
1.
The family is the
natural and fundamental group unit of society and is entitled to protection by
society and the State.
2.
The right of men and
women of marriageable age to marry and to found a family shall be recognized.
3.
No marriage shall be
entered into without the free and full consent of the intending spouses.
4.
States Parties to the present Covenant shall take
appropriate steps to ensure equality of rights and responsibilities of spouses
as to marriage, during marriage and at its dissolution. In the case of
dissolution, provision shall be made for the necessary protection of any
children.”
+++++++
In
the above light, here an effort is being made to examine the rights of
maintenance provided to a wife in India so as to avoid multiplicity of maintenance,
multiplicity of maintenance litigation and the expenses thereto on the national
exchequer for maintaining multiple fora/ judicial entities, as the maintenance
under Section 125 Cr.P.C. and under provisions of prevention of domestic
violence are to be decided by the Courts of Magistrate, those under the
provision of the Senior Citizens Act by the Tribunal headed by A.D.M. and those
under marriage and divorce law by the Courts of District Judge/ Family Court
and those under Section 18 of Hindu Adoption & Maintenance Act, 1956 by the
Court of Civil Judge, which follow different procedures.
In
India, the law of maintenance to wife is not only religion based but also, with
other miscellaneous provisions claimed to be of secular nature. To understand the
same better, Indian Law can be classified in three distinct categories, in view
of the stage of marital relationship between the parties, viz.
(1) Maintenance
during the subsistence of marriage;
(2) Maintenance
during the pendency of proceedings of restitution of conjugal rights, judicial
separation and dissolution of marriage;
(3) Maintenance at
the time of dissolution of marriage and thereafter.
To
elaborate further in the matter, it is necessary to cull out the statutory
provisions of Indian Law as per above categorization and as per religion of
litigating parties:
1.
MAINTENANCE LAW FOR THE PERIOD DURING SUBSISTENCE
OF MARRIAGE
1.1.
GENERAL PROVISION:-
1.1.1.
CODE OF CRIMINAL PROCEDURE 1973
125.
Order for maintenance of wives, children and parents. - (1) If any person having
sufficient means neglects or refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being
a married daughter) who has attained majority, where such child is, by reason
of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain
himself or 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 or such child, father or mother, 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 :
Provided that the Magistrate may order the father
of a minor female child referred to in clause (b) to make such allowance, until
she attains her majority, if the Magistrate is satisfied that the husband of
such minor female child, if married, is not possessed of sufficient means.
Provided further that the Magistrate may, during
the pendency of the proceeding regarding monthly allowance for the maintenance
under this sub- section, 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.
Provided also that an application for the monthly
allowance for the interim maintenance and expenses of proceeding under the
second proviso shall, as far as possible, be disposed of within sixty days from
the date of the service of notice of the application to such person.
Explanation. - For the purposes of this
Chapter, -
(a) "minor" means a person who, under the
provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have
attained his majority,
(b) "wife" includes a woman who has been
divorced by, or has obtained a divorce from, her husband and has not
re-married.
(2) Any
such allowance for the maintenance or interim maintenance and expenses for
proceeding shall be payable from the date of the order, or, if so ordered, from
the date of the application for maintenance or interim maintenance and expenses
of proceeding, as the case may be.
(3) If
any person so ordered fails without sufficient cause to comply with the order,
any such Magistrate may, for every breach of the order, issue a warrant for levying
the amount due in the manner provided for levying fines, and may sentence such
person, for the whole or any part of each month's [allowance for the
maintenance or the interim maintenance and expenses of proceeding, as the case
may be,] remaining unpaid after the execution of the warrant, to imprisonment
for a term which may extend to one month or until payment if sooner made :
Provided that no warrant shall be issued for the
recovery of any amount due under this section unless application be made to the
Court to levy such amount within a period of one year from the date on which it
became due:
Provided further that if such person offers to
maintain his wife on condition of her living with him, and she refuses to live
with him, such Magistrate may consider any grounds of refusal stated by her,
and may make an order under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.
Explanation. - If a husband has contracted
marriage with another woman or keeps a mistress, it shall be considered to be
just ground for his wife's refusal to live with him.
(4) 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 this section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her husband, or if they are living
separately by mutual consent.
(5) On proof
that any wife in whose favour an order has been made under this section is
living in adultery, or that without sufficient reason she refuses to live with
her husband, or that they are living separately by mutual consent, the
Magistrate shall cancel the order.”
1.1.2.
THE PROTECTION OF WOMEN
FROM DOMESTIC VIOLENCE ACT, 2005
Section 2 (k) -monetary relief means the compensation which the Magistrate may order
the respondent to pay to the aggrieved person, at any stage during the hearing
of an application seeking any relief under this Act, to meet the expenses
incurred and the losses suffered by the aggrieved person as a result of the
domestic violence;
Section 20. Monetary
reliefs .(1) While disposing of an application under sub-section (1) of section
12, the Magistrate may direct the respondent to pay monetary relief to meet the
expenses incurred and losses suffered by the aggrieved person and any child of
the aggrieved person as a result of the domestic violence and such relief may
include, but not limited to,
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage
or removal of any property from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as
well as her children, if any, including an order under or in addition to an
order of maintenance under section 125 of the Code of Criminal Procedure, 1973
(2 of 1974) or any other law for the time being in force.
(2) The
monetary relief granted under this section shall be adequate, fair and
reasonable and consistent with the standard of living to which the aggrieved
person is accustomed.
(3) The
Magistrate shall have the power to order an appropriate lump sum payment or
monthly payments of maintenance, as the nature and circumstances of the case
may require.
(4) The
Magistrate shall send a copy of the order for monetary relief made under
sub-section (1) to the parties to the application and to the in charge of the
police station within the local limits of whose jurisdiction the respondent
resides.
(5) The
respondent shall pay the monetary relief granted to the aggrieved person within
the period specified in the order under sub-section (1).
(6) Upon
the failure on the part of the respondent to make payment in terms of the order
under sub-section (1), the Magistrate may direct the employer or a debtor of
the respondent, to directly pay to the aggrieved person or to deposit with the
Court a portion of the wages or salaries or debt due to or accrued to the
credit of the respondent, which amount may be adjusted towards the monetary
relief payable by the respondent.
1.1.3.
THE MAINTENANCE AND
WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007 (56 OF 2007)
Section 2 (b)- “maintenance” includes provision for food, clothing, residence and
medical attendance and treatment;
Section 4. Maintenance of parents and
senior citizens .—(1) A senior citizen including parent who is unable to
maintain himself from his own earning or out of the property owned by him,
shall be entitled to make an application under section 5 in case of—
(i) parent or grand-parent,
against one or more of his children not
being a minor;
(ii) a childless senior citizen,
against such of his relative referred to in clause (g) of section 2.
(2) The
obligation of the children or relative, as the case may be, to maintain a
senior citizen extends to the needs of such citizen so that senior citizen may
lead a normal life.
(3) The
obligation of the children to maintain his or her parent extends to the needs
of such parent either father or mother or both, as the case may be, so that
such parent may lead a normal life.
(4) Any
person being a relative of a senior citizen and having sufficient means shall
maintain such senior citizen provided he is in possession of the property of
such senior citizen or he would inherit the property of such senior citizen:
Provided
that where more than one relatives are entitled to inherit the property of a
senior citizen, the maintenance shall be payable by such relative in the
proportion in which they would inherit his property.
1.2.
RELIGION BASED PROVISION:
1.2.1.
FOR HINDU WOMAN:-
1.2.1.1.
THE HINDU ADOPTION & MAINTENANCE
ACT, 1956:
Section18. Maintenance of wife.(1) Subject to the provisions
of this section, a Hindu wife, whether married before or after the commencement
of this Act, shall be entitled to be maintained by her husband during her
lifetime.
(2) A
Hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance,
(a) if he is guilty of desertion, that is to say,
of abandoning her without reasonable cause and without her consent or against
her wish, or of willfully neglecting her;
(b) if he has treated her with such cruelty as to
cause a reasonable apprehension in her mind that it will be harmful or
injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in
which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to
another religion;
(g) if there is any other cause justifying her
living separately.
(3) A Hindu wife shall not be
entitled to separate residence and maintenance from her husband if she is
unchaste or ceases to be a Hindu by conversion to another religion.
1.2.2.
FOR MUSLIM WOMAN:-
NO
STATUTORY PROVISION & PERSONAL LAW APPLIES.
1.2.3.
FOR CHRISTIAN WOMAN:-
NO
STATUTORY PROVISION & PERSONAL LAW APPLIES.
1.2.4.
FOR PARSI WOMAN:-
NO
STATUTORY PROVISION & PERSONAL LAW APPLIES.
2. MAINTENANCE LAW FOR THE PERIOD DURING
PENDENCY OF PROCEEDINGS OF RESTITUTION OF CONJUGAL RIGHTS, JUDICIAL SEPARATION,
DISSOLUTION OF MARRIAGE, ETC.
2.1.
SECULAR PROVISION:- (SPECIAL
MARRIAGE ACT, 1954)
Section
36. Alimony pendente
lite. Where in any proceeding under Chapter V or Chapter VI it appears to
the district Court that the wife has no independent income sufficient for her support and the necessary
expenses of the proceeding, it may, on the application of the wife,
order the husband to pay to her the expenses of the proceeding, and weekly or
monthly during the proceeding such as having regard to the husbands income, it
may seem to the Court to be reasonable:
Provided
that the application for the payment of the expenses of the proceeding and such
weekly or monthly sum during the proceeding under Chapter V or Chapter VI,
shall, as far as possible, be disposed of within sixty days from the date of
service of notice on the husband.
2.2.
RELIGION BASED PROVISION:
2.2.1.
FOR HINDU WOMAN:- (HINDU MARRIAGE
ACT, 1955)
Section 24. Maintenance pendente lite and
expenses of proceedings .Where in any proceeding under this Act it appears to
the Court that either the wife or the husband, as the case may be, has no
independent income sufficient for her or his support and the necessary expenses of the proceeding,
it may, on the application of the wife or the husband, order the respondent to
pay to the petitioner the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioners own income and the
income of the respondent, it may seem to the Court to be reasonable:
Provided
that the application for the payment of the expenses of the proceeding and such
monthly sum during the proceeding, shall, as far as possible, be disposed of
within sixty days from the date of service of notice on the wife or the
husband, as the case may be.
2.2.2. FOR MUSLIM WOMAN:- NO
STATUTORY PROVISION & PERSONAL LAW APPLIES.
Section 36. Alimony pendente lite .In
any suit under this Act, whether it be instituted by a husband or a wife, and
whether or not she has obtained an order of protection, the wife may present a
petition for expenses of
the proceedings and alimony pending the suit .
Such
petition shall be served on the husband; and the Court, on being satisfied of
the truth of the statements therein contained, may make such order on the
husband for payment to the wife of the expenses of the proceedings and alimony
pending the suit as it may deem just:
[* * *]
Provided
that the petition for the expenses of the proceedings and alimony pending the
suit, shall, as far as possible, be disposed of within sixty days of service of
such petition on the husband.
2.2.4.
FOR PARSI WOMAN:- (PARSI MARRIAGE
AND DIVORCE ACT, 1936 )
Section 39. Alimony pendente lite .Where in any suit
under this Act, it appears to the Court that either the wife or the husband, as
the case may be, has no independent income sufficient for her or his support and the
necessary expenses of the suit, it may, on the application of the wife
or the husband, order the defendant to pay to the plaintiff, the expenses of
the suit, and such weekly or monthly sum, during the suit, as having regard to
the plaintiffs own income and the income of the defendant, it may seem to the
Court to be reasonable:
Provided
that the application for the payment of the expenses of the suit and such
weekly or monthly sum during the suit, shall, as far as possible, be disposed
of within sixty days from the date of service of notice on the wife or the
husband, as the case may be.
3.
MAINTENANCE LAW FOR THE PERIOD AT
THE TIME OF DISSOLUTION OF MARRIAGE, AND THEREAFTER.
3.1.
SECULAR PROVISION:- (SPECIAL
MARRIAGE ACT, 1954)
Section
37.
Permanent alimony and maintenance.
(1) Any
Court exercising jurisdiction under Chapter V or Chapter VI may, at the time of
passing any decree or at any time subsequent to the decree, or application made
to it for the purpose, order that the husband shall secure to the wife for her
maintenance and support, if necessary, by a charge on the husbands property,
such gross sum or such monthly or periodical payment of money for a term not
exceeding her life, as, having regard to her own property, if any, her husbands
property and ability [the conduct of the parties and other circumstances of the
case] it may seem to the Court to be just.
(2) If
the district Court is satisfied that there is a change in the circumstances of
either party at any time after it has made an order under sub-section (1), it
may, at the instance of either party, vary, modify or rescind any such order in
such manner as it may seem to the Court to be just.
(3) If the district Court is
satisfied that the wife in whose favour an order has been made under this
section has remarried or is not leading a chaste life, [it may, at the instance
of the husband vary, modify or rescind any such order and in such manner as the
Court may deem just.
3.2.
RELIGION BASED PROVISION:
3.2.1.
FOR HINDU WOMAN:- (HINDU MARRIAGE
ACT, 1955)
Section 25. Permanent alimony and
maintenance .(1) Any Court exercising jurisdiction under this Act may, at the
time of passing any decree or at any time subsequent thereto, on application
made to it for the purpose by either the wife or the husband, as the case may
be, order that the respondent shall [* * *] pay to the applicant for her or his
maintenance and support such gross sum or such monthly or periodical sum for a
term not exceeding the life of the applicant as, having regard to the
respondents own income and other property, if any, the income and other
property of the applicant [,the conduct of the parties and other circumstances
of the case] , it may seem to the Court to be just, and any such payment may be
secured, if necessary, by a charge on the immovable property of the respondent.
(2) If
the Court is satisfied that there is a change in the circumstances of either
party at any time after it has made an order under sub-section (1), it may, at
the instance of either party, vary, modify or rescind any such order in such
manner as the Court may deem just.
(3) If the Court is satisfied
that the party in whose favour an order has been made under this section has
remarried or, if such party is the wife, that she has not remained chaste, or,
if such party is the husband, that he has had sexual intercourse with any woman
outside wedlock, it may at the instance of the other party vary, modify or
rescind any such order in such a manner as the Court may deem just.
3.2.2.
FOR MUSLIM WOMAN:- (MUSLIM
WOMAN (PROTECTION ON DIVORCE) ACT, 1986)
Section 4. Order for payment of maintenance .(1)
Notwithstanding anything contained in the foregoing provisions of this Act or
in any other law for the time being in force, where a Magistrate is satisfied
that a divorced woman has not re-married and is not able to maintain herself
after the iddat period, he may make an order directing such of her
relatives as would be entitled to inherit her property on her death according
to Muslim law to pay such reasonable and fair maintenance to her as he may
determine fit and proper, having regard to the needs of the divorced woman, the
standard of life enjoyed by her during her marriage and the means of such
relatives and such maintenance shall be payable by such relatives in the
proportions in which they would inherit her property and at such periods as he
may specify in his order:
Provided
that where such divorced woman has children, the Magistrate shall order only
such children to pay maintenance to her, and in the event of any such children
being unable to pay such maintenance, the Magistrate shall order the parents of
such divorced woman to pay maintenance to her:
Provided
further that if any of the parents is unable to pay his or her share of the
maintenance ordered by the Magistrate on the ground of his or her not having
the means to pay the same, the Magistrate may, on proof of such inability being
furnished to him, order that the share of such relatives in the maintenance
ordered by him be paid by such of the other relatives as may appear to the
Magistrate to have the means of paying the same in such proportions as the
Magistrate may think fit to order.
(2) Where a divorced woman is
unable to maintain herself and she has no relatives as mentioned in sub-section
(1) or such relatives or any one of them have not enough means to pay the
maintenance ordered by the Magistrate or the other relatives have not the means
to pay the shares of those relatives whose shares have been ordered by the
Magistrate to be paid by such other relatives under the second proviso to
sub-section (1), the Magistrate may, by order, direct the State Wakf Board
established under section 9 of the Wakf Act, 1954 (29 of 1954), or under any
other law for the time being in force in a State, functioning in the area in
which the woman resides, to pay such maintenance as determined by him under
sub-section (1) or, as the case may be, to pay the shares of such of the
relatives who are unable to pay, at such periods as he may specify in his
order.
3.2.3.
FOR CHRISTIAN WOMAN:- (DIVORCE ACT, 1869)
Section 37. Power to order permanent alimony
.[Where a decree of dissolution of the marriage or a decree of judicial
separation is obtained by the wife, the District Court may order that the
husband shall] to the satisfaction of the Court, secure to the wife such gross
sum of money, or such annual sum of money for any term not exceeding her own
life, as, having regard to her fortune (if any), to the ability of the husband,
and to the conduct of the parties, it thinks reasonable; and for that purpose
may cause a proper instrument to be executed by all necessary parties.
Power to
order monthly or weekly payments .In every such case the Court may make an
order on the husband for payment to the wife of such monthly or weekly sums for
her maintenance and support as the Court may think reasonable:
Provided that if the husband
afterwards from any cause becomes unable to make such payments, it shall be
lawful for the Court to discharge or modify the order, or temporarily to
suspend the same as to the whole or any part of the money so ordered to be
paid, and again to revive the same order wholly or in part, as to the Court
seems fit.
3.2.4.
FOR PARSI WOMAN:- (PARSI MARRIAGE
AND DIVORCE ACT, 1936 )
Section 40. Permanent alimony and maintenance .(1) Any Court
exercising jurisdiction under this Act may, at the time of passing any decree
or at any time subsequent thereto, on an application made to it for the purpose
by either the wife or the husband, order that the defendant shall pay to the
plaintiff for her or his maintenance and support, such gross sum or such
monthly or periodical sum, for a term not exceeding the life of the plaintiff
as having regard to the defendants own income and other property, if any, the
income and other property of the plaintiff, the conduct of the parties and
other circumstances of the case, it may seem to the Court to be just, and any
such payment may be secured, if necessary, by a charge on the movable or
immovable property of the defendant.
(2) The
Court if it is satisfied that there is change in the circumstances of either
party at any time after it has made an order under sub-section (1), it may, at
the instance of either party, vary, modify or rescind any such order in such
manner as the Court may deem just.
(3) The
Court if it is satisfied that the party in whose favour an order has been made
under this section has remarried or, if such party is the wife, that she has
not remained chaste, or, if such party is the husband, that he had sexual
intercourse with any woman outside wedlock, it may, at the instance of the
other party, vary, modify or rescind any such order in such manner as the Court
may deem just.
A plain reading of these
divergent provisions would demonstrate that there is no uniformity in the law
of maintenance applicable to woman in India. Hindu woman has been vested
specific right to maintenance for her life
time by Section 18 of the Hindu Adoption and Maintenance Act, 1956, whereas
there is no such enactment for woman belonging to Muslim, Christian, Parsi and
other communities, which is, in itself, a violation of the right of equality
enshrined under Article 14 of the Constitution of India to such woman. All the
Governments in India have failed to fulfill the object of state policy
enshrined under Article 39 (e) of the Constitution of India in this respect.
However, the inclusion of
‘divorced wife’ under the definition of ‘wife’ in Section 125 of the Code of
Criminal Procedure, 1973, has given some succor to the woman belonging to such communities.
It is pertinent to note
that “maintenance” has not been defined by any enactment, except the Maintenance
and Welfare of Parents and Senior Citizens Act, 2007, wherein, as per section 2
(k), maintenance ‘includes provision
for food, clothing, residence and medical attendance and treatment’, though a plethora
of expressions has been used for maintenance in the above said enactments, viz.
·
Section 125 Cr.P.C. employs expression ‘monthly allowance for the maintenance of
his wife”, and ‘monthly allowance for the interim
maintenance and expenses of proceedings” in respect of interim maintenance.
·
The Protection of Woman from Domestic Violence Act,
2005 employs the terms ‘monetary relief’,
whose definition under its Section 2 (k) does not cover at all the maintenance
and caters to an altogether different notion of recovery of expenses incurred
and losses suffered, which requires quantification of expenses/losses and their
direct proximate link with the opposite party. However, Section 20 of the said
Act, provides that monetary relief should not be limited to species enumerated therein,
which include maintenance to wife. Thus, creating a confusion on the one hand
and creating another right of
maintenance in the said provision on the other hand, and such a right is given even
in addition to maintenance under section 125 Cr.P.C.- a departure from the
provisions of CEDAW- in compliance of which obligation said Act was brought on
statute.
·
The Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 employs the term ‘maintenance’, which is defined in
Section 2 (k).
·
Except the Divorce Act, 1869, which uses the
expression ‘expenses of the proceedings
and alimony’, all other enactments relating to divorce, etc use the expression
‘support and expenses of proceeding/suit’
for interim maintenance.
· All enactments of divorce unequivocally employ the expression
‘permanent alimony’ for the
maintenance for the period after dissolution of marriage.
From a plain reading of these
enactments, it would appear that the provisions of maintenance under these
various enactments do not pose any problem to the litigating parties, as there
area of operation/application and conditions of application are different, viz.
(i)
Section 125 of the Code of Criminal Procedure
applies in case of neglect or refusal of husband to maintain his wife,
(ii)
Section 20 of the protection of woman from domestic
violence Act applies in case of domestic violence,
(iii)
Section 4 of the Maintenance
and Welfare of Parents and Senior Citizens Act, applies in case where the
property of such person has been taken but no provision is being made for her
maintenance, etc.
(iv)
All divorce related enactments apply
in case of filing of proceedings under those enactments for Restitution of
conjugal rights, separation and/or dissolution of marriage, either during the
pendency or on the eventuality of dissolution of marriage.
However, it becomes a malady when
the rights of maintenance contained in these different enactments are simultaneously
or consecutively invoked by a woman.
It has been often noticed that
most of the time, such simultaneous or consecutive invoking of right to
maintenance, is for the simple purpose to harass and victimize not only the husband
but also his other family members, in view of definition of ‘respondent’ under
the Protection of Woman from domestic violence Act, 2005 which includes even
the in-laws of the woman and/or the children or relatives, by invoking provisions
of the Maintenance
and Welfare of Parents and Senior Citizens Act, 2007.
It is such types of multiple
claims of maintenance in multiple forum applying different procedure, resulting
in huge expenses thereon to the national exchequer that is the issue here.
A plain reading of the above
mentioned enactments would reveal that to claim a relief of maintenance under
one enactment, a woman has to approach the forum which is empowered to give her
relief of maintenance. The forum applicable in each case is being summed up as
under:-
Multitude of forum to claim
maintenance:-
1.
Court of Magistrate- for applications u/s 125
Cr.P.C. and that u/s 12 of the DV Act;
2.
Tribunal of Additional District Magistrate- for application
u/s 4 of the Maintenance and Welfare of Parents and Senior
Citizens Act;
3.
Court of Civil Judge- for maintenance u/s 18 of
H.A.M.A., 1956;
4.
Court of District Judge/ Family Court-
It is
pertinent to note that the relief under an enactment has to be sought
before
such forum only. In Smt. Chand Dhawan vs. Jawaharlal Dhawan, SCR
(3) 954 = 1993 SCC (3) 406 = JT 1993 (4)
22, the Supreme Court held to such an effect by observing that “When distinctive claims are
covered distinctly under two different statutes and agitable in the courts
conceived of thereunder, it is difficult to sustain the plea that when a claim
is otherwise valid, choosing of one forum or the other should be of no
consequence. These are not mere procedural technicalities or irregularities, as
termed by one line of reasoning by
some of the High Courts. These are matters which go to the root of the jurisdiction.”
Similarly, the above mentioned
enactments provides for the procedure to be followed by each forum and the same
can be summed up as under:
Multitude of procedure to decide
application of maintenance:-
1.
Summary Procedure under Code of Criminal Procedure,
1973 for applications u/s 125 Cr.P.C.
2.
Summon procedure under Code of Criminal Procedure,
1973 for applications u/s 12 of the Protection of Woman from Domestic Violence Act;
3.
Summary procedure as per principle of natural
justice for application u/s 4 of the Maintenance and
Welfare of Parents and Senior Citizens Act;
4.
Procedure under Code of Civil Procedure, 1908 for
application u/s 18 of Hindu Adoption & Maintenance Act;
5.
Procedure under Code of Civil Procedure, 1908 for
applications under enactments relating to divorce.
In addition to above, there are
peculiarities to dispense with any specific provision of the above mentioned
procedural enactments, which are reason of uncalled for litigations between the
litigating parties.
It is a
human nature that once the dispute/ differences between the husband and wife
reaches the court (ancient meaning “prangan”/ Chowk), i.e. the present day, Court
of law/ Tribunals/ forum, the acrimony between the parties leads to levelling
of accusation against each other, which results in filing of proceedings of
maintenance by the wife, proceedings for restitution of conjugal rights,
judicial separation, dissolution of marriage, etc by either party, besides
filing of criminal cases u/s 498-A/406/34 of Indian Penal Code, 1861 and /or
u/s 4 of the Dowry Prohibition Act, 1961 by the wife and other cases by the
husband. Lot of human energy and finances are wasted in such litigation and on
filing of criminal cases against each other, the chances of conciliation
between the parties become remote, in which children and elders are compelled
to suffer for no fault of theirs.
The above
mentioned multitude of right of maintenance provided to wife in India becomes a
toll of harassment in the hands of a litigating wife, who files an application
of maintenance before each forum and on receipt of process, the husband is
bounden by law to contest the same and it causes strain in his earnings as his
working time gets reduced besides his incurring expenses to fight such cases.
Similarly, the Government has to bear the expenses of maintaining these various
forum of adjudication, which results in expenditure from the national exchequer.
It is
therefore necessary to harmonise the situation in such a manner that neither
party is affected. To do so in respect of maintenance to wife, it is better to
rationalize the channel by summing up what is meant by maintenance, its object,
its necessity, measures to avoid its abuse etc.
What is maintenance?
As pointed out hereinabove, maintenance
has not been defined in any enactment except the inclusive definition provided
under Section 2 (k) of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007.
Section 2 (k) of the said Act
defines maintenance to include ‘provision for food, clothing, residence and medical attendance and
treatment’.
Similarly, expression ‘support’ in the above said enactments relating to
divorce, etc can be interpreted to make ‘provision for food, clothing, residence and medical
attendance and treatment’. In addition to provision for the above, certain
fixed sums can be granted to her towards ‘expenses of proceedings’, if the wife
has been dragged to litigation by her husband. She should not be granted
expenses of proceedings, if she has availed free of cost legal aid provided by
the State under the provisions of the Legal Services Authorities Act, 1987.
What is the object of
maintenance?
As pointed out hereinabove, since
ancient times, the object of maintenance
to wife is avoid vagrancy and
destitution to sustain her life.
What is the necessity to claim
maintenance?
A succinct perusal of the above
said provisions contained in various enactments would point out that the basis
for claiming maintenance is that the person invoking the jurisdiction of the
Court is ‘unable to maintain herself’.
Whether
multiple maintenance are permissible?
There is no specific provision in
any of the above mentioned enactments to exclude the right of woman to file an
application for maintenance before another forum, except Section 12 of the Maintenance
and Welfare of Parents and Senior Citizens Act, which provides for an option to
choose a forum out of the two procedures- one under the said Act and another under
Section 125 of the Code of Criminal Procedure, 1973. Section 12 reads as under:
12. Option regarding
maintenance in certain cases- Notwithstanding anything contained in Chapter IX
of the Code of Criminal Procedure, 1973 (2 of 1974), where a senior citizen or
a parent is entitled for maintenance under the said Chapter and also entitled
for maintenance under this Act may, without prejudice to the provisions of
Chapter IX of the said Code, claim such maintenance under either of those Acts but not under both.”
In Paramjit Kumar Saroya vs. Union of India & Another, AIR 2014 P
&H 121, a Division Bench of the Punjab and Haryana High Court, held in Para
8 that:-
“A reading of the aforesaid provision shows
that though the option is available to obtain maintenance under the said Act or
under Chapter IX of the Cr.P.C., there is a clear prohibition not to claim
maintenance under both the aforesaid provisions”.
On the contrary, Section 20 of the protection of
woman from domestic violence Act provides for maintenance under its provisions
to be “in addition to” the maintenance under Section 125 Cr.P.C..
In Renu
Mittal vs Anil Mittal & Ors., (173) DLT 290, Delhi High Court, had the
occasion to consider simultaneous filing of two applications- one u/s 125
Cr.P.C. and another u/s 20 of the protection of woman from domestic violence
Act, and observed that:-
4. It must be considered that for granting
maintenance, a party can either approach the Court of MM under Domestic
Violence Act soon after commission of Domestic Violence or under Section 125
Cr. P.C. claiming maintenance. The Jurisdiction for granting maintenance under
Section 125 Cr.P.C. and Domestic Violence Act is parallel jurisdiction and if
maintenance has been granted under Section 125 Cr. P.C. after taking into
account the entire material placed before the Court and recording evidence, it
is not necessary that another MM under Domestic Violence Act should again
adjudicate the issue of maintenance. The law does not warrant that two parallel courts should adjudicate
same issue separately. If adjudication has already been done by a Court
of MM under Section 125 Cr. P.C., re-adjudication of the issue of maintenance
cannot be done by a Court of MM under Domestic Violence Act. I, therefore, consider
that learned MM was right in allowing maintenance only to the tune of ` 6,000/-
p.m.
Similarly, in B.Prakash vs Deepa and another, (CRL.RC.(MD) No.453 of 2014 and M.P. No. 1 of 2014), decided on 28 July, 2015, Madurai Bench of Madras High Court, had the
occasion to consider simultaneous and consecutive filing of application for
maintenance under section 125 of the Code of Criminal Procedure and that under
Section 20 of the protection of
woman from domestic violence act, and held that:-
“15. For the wife, maintenance paid by way
of maintenance amount payable by the husband is a financial resource for her.
Similarly, the denial of household necessities of the wife is also an economic
abuse. The husband is bound to maintain the wife. If he neglects or fails to
maintain, the wife is deprivation of her financial resources to maintain
herself and to meet her household necessities. Denial of either of these two
would amount to economic abuse. Such economic abuse will amount to domestic
violence. The wife, who is the victim of such domestic violence, is, therefore,
entitled for monetary relief under Section 20 of the Act.
16. The monetary relief to be ordered
under Section 20 of the Act, should be to meet the expenses incurred and the
loss suffered by the aggrieved as a result of the domestic violence. The loss
suffered is nothing but the loss of financial resources to be paid by the
husband towards her maintenance. Thus, if the husband neglects the wife or
refuses to maintain her, the said act of the husband surely amounts to domestic
violence and therefore, the aggrieved wife is entitled for monetary relief and such
monetary relief may include, but not limited to the maintenance for the wife as
well as to her children. The monetary relief paid by way of maintenance can be
an order under Section 125 of the Code, which is evident from a plain reading
of Section 20(1)(d) of the Act. Thus, it is crystal clear that a wife, who has
suffered domestic violence by the act of the husband in neglecting or refusing
to maintain her is entitled to approach the Judicial Magistrate seeking an
order under Section 125 of the Code, which itself is a monetary relief under
Section 20 of the Act. Any such maintenance order made under Section 20 of the
Act is appealable to the Court of Sessions under Section 29 of the Act.
18. ….. An order made under Section 125 of the Code for
maintenance by one Magistrate cannot be varied or modified by a Magistrate
acting under Section 20 of the Act. Therefore, it should be noted that a
monetary relief granted towards maintenance under Section 20 of the Act may be not
in modification of the previous order for maintenance passed under Section 125
of the Code, but it may be in addition to the said order for maintenance passed
under Section 125 of the Code. If an order has already been made under Section
125 of the Code for maintenance, there can be no doubt that the wife had proved
either neglect or refusal on the part of the husband. If the wife wants an order
under Section 20 of the Act, in addition to the order under Section 125 of the
Code, she has to prove fresh acts of the husband constituting the domestic
violence subsequent to the passing of the earlier order under Section 125 of
the Code. She cannot rely on the acts of the husband constituting domestic
violence, which happened prior to the passing of the order under Section 125 of
the Code. For getting an order under Section 20 of the Act, in addition to the
earlier order under Section 125 of the Code, the wife should plead and prove
that subsequent to the said order made under Section 125 of the Code, the
husband had caused domestic violence and on account of the same, she had suffered
loss and thus, she is entitled for additional amount as maintenance. Thus, it
is manifestly clear that a previous order made under Section 125 of the Code is
not a bar for an aggrieved wife to approach a Magistrate under Section 20 of
the Act, for monetary relief as an additional relief of maintenance, provided
subsequent to the passing of the earlier order under under Section 125 of the Code,
the husband has committed domestic violence resulting loss to the wife.
20. In the case on hand, the respondents
filed M.C.No.101 of 2008, on the file of the learned Chief Judicial Magistrate,
Trichirappalli, on 19.06.2009. The revision filed by the petitioner for enhancement
of the maintenance amount was disposed of by the learned Second Additional
District and Sessions Judge, Trichirappalli, on 23.05.2011. Thus, the said
proceedings, under Section 125 of the Code, was under contest from the year
2008 till 23.05.2011. When the same was so pending, the petitioner,
simultaneously, filed M.C.No.158 of 2009, before the learned Judicial
Magistrate, No.II, Trichirappalli, under Section 20 of the Act, on 20.01.2009,
i.e., even before the order of the learned Chief Judicial Magistrate in
M.C.No.101 of 2008. Thus, the respondents had approached two different forums, viz., the learned
Chief Judicial Magistrate, Trichirappalli, as well as the learned Judicial
Magistrate, No.II, Trichirappalli, under Section 125 of the Code as well as
under Section 20 of the Act, on the same set of allegations and cause of
action. This, in my considered view, is not legally permissible and the same
would amount to
clear abuse of process of Court. The order under challenge was not made
on any fresh grounds constituting the domestic violence, which occurred subsequent
to M.C.No.101 of 2008.
21. In such view of the matter, the
impugned order is liable to be set aside. If the respondents have got reasons to seek modification
of the earlier order made under Section 125 of the Code, it is always open for
them to approach the very same Magistrate under Section 127 of the Code for
such modification so as to have the maintenance amount enhanced or if the
respondents have got any fresh grounds, constituting the domestic violence,
which happened subsequent to the passing of the order under Section 125 of the
Code, they are at liberty to approach the Magistrate under Section 20 of the
Act to get an order for maintenance in addition to an order of maintenance
already passed under Section 125 of the Code.
To the
similar effect are the judgments dealing with claims of maintenance through two
separate applications- one under the provisions of general provision and
another under the provisions applicable for proceedings under divorce Acts.
It is
thus clear that despite availability of various provisions for claiming
maintenance, a wife is entitled only to one maintenance at a time.
The
above said judgments are in consonance with the general logic that once a
person is being maintained by virtue of a provision of maintenance, how such a
person could be held to be unable to maintain herself so as to file another
application before another court by invoking another provision and such an
additional filing is an abuse of the process of law, before whom all are equal,
as guaranteed by Article 14 of the Constitution of India.
In
order to avoid multiplicity of applications for maintenance before diverse
forums, it is necessary for the Government and the judiciary to evolve a forum
that could deal all the cases of maintenance and all existing forums must be
merged and to avoid such multiplicity before the forums of another State, as a
woman has been vested right to approach different forums under different
territorial jurisdiction, a comprehensive form of application devised, so that
unnecessary energy and funds of the litigating parties as well as those of
national exchequer avoided.
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