Landmark Judgements on Maintenance of Wife

Stuti Hasmukh Oswal

Introduction

We have seen and heard various judgements being passed on alimony and maintenance under various enactments. Let us understand the legal meaning of the term maintenance and alimony. To provide “Maintenance and Alimony” in legal terms means to give a financial support to a spouse, parent or children in order that they can maintain themselves. There are two types of maintenance provided:

• Interim Maintenance- A person may ask for interim maintenance while the matter is pending in the court. If the court thinks fit, it shall order the opponent to pay a certain sum to the applicant from the date of application till the pendency of the matter.
• Permanent Maintenance- A person may file for maintenance in the court along with divorce or may file a separate application for maintenance. The court may deliberate on the issues related to the same and may order one party to pay permanent maintenance to the other party. In case of divorce, such a maintenance is paid till the spouse remarries or dies.

Such maintenance shall increase or decrease according to the changes in the circumstances from time to time.

Maintenance claimed under section 125 of Code of Criminal Procedure

The Code of Criminal Procedure (hereinafter as CrP.C) provides section 125 in order to claim maintenance for wife, children and parents. This section “Orders for maintenance of wives, children and parents” that is if a wife, children or parents cannot maintain themselves they can file an application under this section for payment of maintenance. Following people are entitled to make an application under this section:

• A Wife whether divorced or not subject to the conditions that she has not remarried or the divorce is not granted on the grounds of adultery and that she has not willfully deserted the husband for no cause or reason.
• Minor Child whether legitimate or illegitimate.
• Parents can claim maintenance from their daughter/s or son/s.

Maintenance under the Hindu Law:

The Hindu Marriage Act, 1955 provides section 24 and section 25 to claim maintenance by a wife.

• Section 24 of the Hindu Marriage Act, 1955 says that a husband or a wife who does not have an independent source of income or cannot support themselves can make an application for interim maintenance and expenses for proceedings under this section.
• Section 25 of the Hindu Marriage Act, 1955 says that a husband or a wife can claim permanent maintenance or alimony if they are unable to maintain themselves.

Maintenance under the Indian Divorce Act,1869

As per the Indian Divorce Act,1869, a Christian woman can claim maintenance under this enactment. Unlike the Hindu Act, the application for maintenance under the Indian Divorce Act, 1869 can only be made by the wife. There is no provision for a husband to claim maintenance under this enactment.

• Section 36 of the act states that a woman can claim interim maintenance under this section. The court shall upon being satisfied pass an order as it thinks fit.
• Section 37 of the act states that a woman can claim permanent maintenance or alimony from her husband under this section.

Such amount of maintenance shall not exceed one-fifth of the net total income of the husband.

Maintenance under Parsi Law

The Parsi Marriage and Divorce Act, 1936 provides a right to a Parsi to claim maintenance or alimony.

• Section 39 of the act states that a Parsi husband or a wife can claim interim maintenance under this section. If either of the spouse is not financially independent then the court may pass an order of maintenance upon application of such person.
• Section 40 of the act states that a Parsi husband or a wife can claim permanent maintenance or alimony under this section. Upon being satisfied the court shall pass necessary orders as it may think fit.

Monetary Relief under Domestic Violence Act, 2005

Section 20 of the Domestic Violence Act,2005 provides monetary relief to a woman who makes an application under this section before the court. Such monetary relief may include but is not limited to:

• The loss of earnings;
• The medical expenses;
• the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
•  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 or any other law for the time being in force.

Case Laws:

Mohd. Ahmed Khan vs Shah Bano Begum and Ors.^[1]

Facts:

Mohd. Ahmed Khan and Shah Bano Begum got married in the year 1932. They had three sons and two daughters from the said marriage. Mohd. Ahmed Khan was an advocate and practiced in Indore. After a few years to their marriage Mohd. Ahmed Khan got married to a younger woman who now became his second wife. In the year 1975, Shah Bano Begum was forced out of her marital house along with her children. Mohd. Ahmed Khan promised Shah Bano Begum that he would pay Rs. 200/- per month to her as maintenance but from the year 1978, he stopped paying her any kind of maintenance. Shah Bano Begum then filed a petition under section 125 of Cr.PC before the magistrate in Indore stating that she was being denied of maintenance which the Respondent Mohd. Ahmed Khan had promised her. The Petitioner demanded a monthly maintenance of Rs.500 from the Respondent through this petition. During the petition was being heard the Respondent divorce the Petitioner by pronouncing triple talaq on 6^th November,1978 and used as a defense in court. The Magistrate of Indore in the year 1979 granted the Petitioner a monthly maintenance of Rs. 25. In the month of July,1980 she filed an appeal before the High Court of Madhya Pradesh for enhancement of her maintenance to Rs.179 per month. The High Court passed an order in the favour of the Petitioner and enhanced the maintenance amount to Rs. 179/- per month. The Respondent challenged this order in the Supreme Court by filing a special leave petition.

Held:

The Petition was dismissed. The bench composed of five judges held that if there is a conflict between the personal law and section 125, then the section 125 shall prevail. In the present matter there is no conflict as such on the issue of payment of maintenance to a divorced wife who is unable to maintain herself. The rule of maintaining the wife only till the Iddat period and not beyond that is against the humanity for someone who cannot maintain themselves. It is incorrect and immoral on the part of the husband to leave his wife or divorced wife all by herself knowing that she is incapable of maintaining herself. It further held that only the payment of meher is not sufficient enough and this shall not discharge him from the obligation to maintain his wife. The husband’s obligation to pay maintenance to his wife will come to an end only if she remarries or is capable enough to maintain herself.

Kamala & Ors vs. M.R. Mohan Kumar^[2]

Facts: The marriage between the parties was solemnized on 18^th July 1998 and a daughter and a son was born from the said wedlock. The marriage between the parties had taken place against the wishes of the parents of both the parties. The Respondent herein married a colleague of his while he was married to Mrs. Kamala the Petitioner. The Respondent then started neglecting the Petitioner and their children altogether and started harassing her. The Petitioner filed a police complaint against the Respondent. Upon the directions of the police, the Respondent was asked to pay a monthly maintenance of Rs.3000/- to the Petitioner. The said amount was not enough for the Petitioner and hence she filed a petitioner under section 125 of Cr.PC in the family court of Karnataka. She was granted maintenance by the family court. The said order was then challenged by the respondent in the High Court of Karnataka who then passed an order stating that the Petitioner had not produced sufficient evidence to show that the marriage was solemnized as per the rites and rituals and hence she is not the legally wedded wife. Therefore she is not entitled to maintenance. The Petitioner then challenged the said order in the Supreme Court Of India.

Held:

“When the parties live together as husband and wife, there is presumption that they are legally married couple for claim of maintenance of wife under Section 125 Cr.PC. Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under section 125 Cr.PC, such strict standard of proof is not necessary as it is summary in nature meant to prevent vagrancy” From the above statement of the bench it was held that a strict proof of marriage is not required and where the parties have been residing as husband and wife it shall be assumed that they are married. It upheld the maintenance order passed by the family court.

Shabana vs Shahid Beg^[3]

Facts:

The marriage between the parties was solemnized on 7^th August, 2005 as per the Muslim rites and customs. A daughter is born out of the said marriage. Mrs. Shabana was treated with cruelty after the marriage and hence she had filed a domestic violence complaint against MR. Shahid Beg and his family wherein she prayed from maintenance. The trial court upon hearing the matter passed an order for payment of maintenance by Mr. Shahid Beg to his wife a sum of Rs. 10,000/- per month which included maintenance for the child too. Both the parties have filed separate appeals against the order. Mrs. Shabana has filed an appeal asking for enhancement of the maintenance from Rs. 10,000/- per month to Rs. 25,000/- per month whereas Mr. Shahid Beg has filed an appeal stating that the marriage is in the first place not a valid marriage as Mrs. Shabana was still married while she got married to Mr. Shahid Beg and did not disclose the same to him or the trial court. Hence the order for maintenance needs to be set aside.

Held:

Upon hearing both the parties the Delhi High Court Judge was of the opinion that Mrs. Shabana had not disclosed the fact that she was previously married to Noor Mohd. In her cross examination she has accepted that she was married. The mother of Mrs. Shabana firstly denied that her daughter was married to Noor Mohd. but later upon showing the Nikanama stated that she was divorce to him and there was a declaration of such divorce. No such declaration was filed on record proving that the previous marriage was in existence. Hence, Mr. Shabana was declared as not a legally wedded wife. It was further held that the child born out of the said relationship continues to be a legitimate child and hence maintenance of Rs. 5000/- per month was granted toward the child.

Rajnesh vs Neha And Anr.^[4]

In the above case the Supreme Court was of the opinion that the application for maintenance was pending before the courts for seven years. There were a lot of difficulties experienced by the judges in order to pass the maintenance order. Hence, guidelines were framed which would cover all the issues related to maintenance such as the criteria for determining the quantum of maintenance, the date from which the maintenance shall be awarded, etc.

It brought in a significant procedure that if any party makes an application for maintenance in any court of law he or she shall file an affidavit of “Asset and Liability” on record. The person against whom such an application is made shall also file an affidavit of “Asset and Liability”.

Facts:

The parties were married and had one issue from the said wedlock. Soon after the birth of the minor son Mrs. Neha left her matrimonial home. She further filed a petition for maintenance under section 125 of Cr.PC on behalf of herself and her son in the family court. An order of maintenance of Rs. 15,000/- per month for the Petitioner and Rs. 5,000/- per month for the child was passed by the family court. The said order was challenged by the Respondent in the Bombay High Court who dismissed the writ petition and upheld the family court’s order. The Respondent aggrieved by the High Court’s order filed an appeal in the Supreme Court.

Held:

The Supreme Court of India dismissed the Respondent’s appeal asked him to pay a sum of Rs. 15,000/- per month towards maintenance of wife and Rs. 10,000/- per month towards the maintenance of the child. Along with this it also issued guideline on various issues that courts were facing for granting maintenance.

Shome Nikhil Danani v. Tanya Banon Danan^[5]

Facts:

The marriage between the parties was solemnized on 28^th June, 2014. The Respondent left her matrimonial home on the 28^th May, 2015 as she was mentally and physically being tortured. After this the Respondent had filed a petition in the family court under section 125 of CrP.C. The family court upon hearing the matter ordered the Petitioner to pay maintenance of Rs. 1,20,000/- per month to the Respondent. The Respondent then filed a Domestic Violence Complaint under section 18(e), 19(f), 20 and 23. The claim for monetary relief was denied to the Respondent on the basis that an order under section 125 was already granted to her. The Respondent filed an appeal to the trial court’s order in the Appellate Court. The Appellate court was of the opinion that “an order under section 20 of the Domestic Violence Act is not restricted by an order under section 125 of the CrP.C”. An appeal was made by the Petitioner in the High Court.

Held:

The High Court upheld the Appellate Courts order and did not find any infirmity in it. The Petition was dismissed by the High Court.

Divyananda v. Jayarai^[6]

Facts:

The parties were Roman Catholics and entered into a Suyamaryadhai form of marriage. They lived as husband and wife for 5 months after which a child was born from the said wedlock. The wife filed a petition for maintenance in the court.

Held:

The Court held that the marriage was solemnized as per Hindu rites and customs and not as per the Christian customs even though the parties were Christians. Hence the marriage was void-ab-initio. The woman was not a legally wedded wife in the eyes of law. The women could not claim maintenance under section 125 of Cr.PC as well but the children even if they were illegitimate can claim maintenance under section 125 of Cr.PC.

Alphonsa Joseph v. Anand Joseph^[7]

Facts:

The wife had filed a petition for maintenance under section 125 of CrP.C. Upon the submission made by the husband and on producing just a memo showing that the wife is a doctor having a BDS degree, the family court passed an order rejecting her maintenance on the grounds that she is qualified enough and can maintain herself. The wife immediately file an appeal to the said order.

Held:

The Kerala High Court held that the rejection of maintenance on the sole ground of being qualified is not justifiable. Even if the wife is earning some amount shall not be the reason to reject her application. It further held that a wife is entitled to live her life as she would have lived in the house of her husband. Hence, the Family court’s order was set aside and asked to pass a fresh order by going into the merits of the case.

Mr. Mangilal S. Mundada vs Mrs. Mangala M. Mundada^[8]

Facts:

The parties are married but were living separately for the past 30 years. The wife filed a petition in the family court for restitution of conjugal rights and had made an application for interim maintenance. The family court passed an order in the favour of the wife by directly the husband to pay a monthly maintenance of Rs. 1,000/-. The husband being aggrieved by this order challenged the same in the Bombay High Court.

Held:

The Bombay High Court rejected the petition stating that the order is in no way erroneous for it to interfere. Even if the it was assumed that the petition was filed with malafide intentions to only claim maintenance, it was true that the wife did not have any source of income to maintain herself. Hence, the order of paying a monthly maintenance of Rs. 1,000/- to the wife was upheld.

Chandrika vs M. Vijayakumar^[9]

Facts:

The marriage between the petitioner was solemnized on the 3^rd March, 1983. The husband had filed for a decree of divorce on the grounds of desertion. The wife then made written submissions wherein she has asked for maintenance. The Family Court passed a decree of divorce and rejected the claim of the wife for maintenance with a reason of not making a separate application for maintenance.

Held:

Madras High Court in the above case held that mere reason on not making a separate application for maintenance is not enough for rejecting a plea for maintenance. An oral submission to the court is also enough for passing a maintenance order. Hence, an amount of Rs. 500/- per month for wife and Rs.300/- per month for the child was granted.

Smt. Sushila Viresh Chhadva vs Viresh Nagshi Chhadva^[10]

Facts:

The parties were married on 6^th February, 1991. Immediately after the marriage the wife had to undergo an operation for major ovarian tumor. The wife’s right ovary was removed and the left ovary had cancer. The said fact was kept hidden from the husband before the said marriage and hence, the husband filed for nullity of marriage in the family court. The wife appeared in the court and asked for interim maintenance. The same was rejected by the family court stating that the petition was for nullity and therefore he cannot pass an order for maintenance with out going into the merits of the case.

Held:

The Bombay High Court quashed and set aside the family court’s order. It held that when a marriage is not disputed the issue of alimony follows. Interim maintenance under section 24 is a matter of urgency and the purpose of it being interim is to be decided beforehand. It makes no sense to decide an interim maintenance application in the final stage. Hence, an order to pay a maintenance of Rs. 1000/- per month to the wife from the date of such application was passed.

Ratan Lal vs Iind Addl. Sessions Judge And Ors.^[11]

Facts:

The wife had filed a petition for maintenance under section 125 of Cr.PC. The same was contested by the husband stating that the application should be rejected as there was a delay in filing the same and that the parties were residing separately by mutual consent. The lower court was of the opinion that the wife was made to leave the house and immediately after that the husband married another woman and hence, ordered the husband to pay maintenance to the wife. The said order was challenged in the Allahabad High Court.

Held: the Allahabad High Court held that no interference was required to be made in the order passed by the lower court. It further held that delay in filing the petition cannot be strong reason to reject maintenance to the wife. It stated “a wife’s right of claiming maintenance is a continuing one and the legislature has taken care by not providing any period of limitation for making an application under section 125 of Cr. PC”. Hence, the writ petition was dismissed.

Rewati Bai vs Jageshwar^[12]

Facts:

The wife filed a petition for maintenance of Rs. 500/- per month. Even after summoning the husband, he did not pursue the matter and hence the matter was proceeded ex-parte. After the proceedings started and her statement was taken that she was working as a labourer, the magistrate passed an order rejecting her request for maintenance stating that she had a source of income and hence, was not eligible as per the section 125 of Cr.PC to claim maintenance. The revision bench also upheld the same. On being aggrieved by the orders of both the courts the wife challenged the orders in the Madhya Pradesh High Court.

Held:

The Madhya Pradesh High Court was of the opinion that the lower court judge failed to see that a woman of 50 years of age was required to work as a labourer in order to maintain herself and that the income received from it was not enough because of which she had approached the courts for obtaining maintenance. Hence, the court allowed the wife’s appeal by passing an order of maintenance of Rs. 350/- per month and also awarded the cost of application being Rs. 500 in the favour of wife.

Conclusion

It is evident that maintenance plays an extremely important part in matrimonial matters. This has been even more relevant in today’s time when people undergoing divorces who are financially dependent on their spouses have to run from pillar to post amidst a pandemic in order to make ends meet. Therefore, the matrimonial courts in the country hold a position of great responsibility of granting maintenance to aggrieved spouses even in the current covid 19 crises. The law provides various remedies and provisions to women for their right to maintenance. It is every spouse’s duty to maintain the other one who is financially dependent on them. Every law irrespective of whether it may be the Hindu, Parsi or the Christian Law have provisions for the maintenance of wife as well as the children.

References

• https://www.scconline.com/blog/post/2019/04/18/del-hc-wife-can-claim-monetary-relief-under-s-20-of-domestic-violence-act-in-addition-to-maintenance-under-s-125-crpc-trial-court-order-holding-contrary-set-aside/
• https://districts.ecourts.gov.in/sites/default/files/1-Maintenance%20-%20by%20Smt%20YJ%20Padmasree.pdf

1. Mohd. Ahmed Khan vs Shah Bano Begum And Ors. (1985 AIR 945) ↑
2. Kamala & ors vs. M.R. Mohan Kumar. Crl.A. Nos. 2368-2369 of 2009 ↑
3. Shabana vs Shahid Beg, CRL.REV.P.380/2016 ↑
4. Rajnesh vs Neha And Anr. Cri.Appeal No. 730 of 2020, Arising out of SLP(Crl.) No. 9503 of 2018 ↑
5. Shome Nikhil Danani v. Tanya Banon Danan, CRL. REV. PET. 994/2018 ↑