In our social and legal setup, man is still considered the bread-winner though the woman has attained equal footing with him in all sectors. This theoretical supremacy has put greater responsibility on the shoulders of a husband. These obligations of the husband will not end even after breaking the marital tie legally. Here law favors women in the matter of alimony. Husband is ought to give due maintenance to his divorced wife also. It is an amount payable in money by the husband or ex-husband to the woman who is unable to maintain herself. For Hindus there is the Hindu Adoption and Maintenance Act, 1956, for Muslims, the Muslim Women (Protection of Rights on Divorce) Act, 1986, for Christians, the Divorce Act, 1869 and there is the Special Marriage Act, 1954 along with the provisions contained in Criminal Procedure Code(in short “CrPC”) which contains provisions for maintenance.
There are mainly two kinds of maintenance called interim/temporary maintenance which is claimed/granted during the pendency of the proceedings and permanent maintenance which is claimed/granted at the disposal of the proceedings.
There are circumstances in law where a husband is absolved from the liability of giving maintenance to his wife / divorced wife. As per Explanation b to Section 125(1) the “wife” includes a woman who has been divorced by or has obtained a divorced from her husband and has not remarried. The law dealt with in the CrPC details various circumstances in which husbands can make use of for not giving maintenance. Sections 125 to 128 contained in Chapter 9 of the CrPC deals with the law relating to maintenance to wife, parents, and children. In this post, we deal only with maintenance to wife.
Question of “sufficient means”
For becoming liable for giving maintenance a husband should have sufficient means.[1]
Section 125(1) CrPC speaks of “sufficient means” of husband. If the husband having sufficient means neglects or refuses to pay maintenance to his wife, he will be ordered to do so by the Magistrate upon application by the concerned aggrieved party. “Sufficient Means” signifies both visible means such as real tangible property or employment. In various cases, the Courts have laid down that “means” should not be confined to whatever monetary resources the husband actually possess but it should also refer to his earning capacity. If he is healthy enough and able-bodied he must be held to possess the means needed to support his destitute wife. The mere fact that he is unemployed will not help him relieve his statutory obligation to maintain his wife.[2]. Thus it means that he cannot blindly refuse to maintain his wife on the ground that he has no sufficient means. [3] Only when the husband finds loopholes to escape the above findings does he have the chance to escape the mandate of payment of maintenance to his wife.
Please note that filing a petition for declaring as insolvent or being declared insolvent will not absolve husband from the obligation to pay maintenance to his wife if he is physically fit for employment.[4]
Other conditions where the husband can legally avoid payment when marriage subsists
1. The wife is living in adultery
After the latest Supreme Court ruling on adultery, it is no longer a crime. Adultery is considered a civil wrong which forms one of the reasons for the dissolution of marriage. Adultery is a wrong committed during the subsistence of marriage i.e. the marriage should be subsisting. So here the question of divorced wife will not arise. Again, living in adultery means a continuous course of conduct on the part of the wife with the adulterer. A single act of adultery or a few lapses from virtue will not disentitle the wife from claiming maintenance.[5]
Section 125(4) of CrPC makes it clear that a wife living in adultery is not eligible to get maintenance from her husband. If the Magistrate has made such an order of maintenance, it has to be canceled the moment when it is proved that she is living in adultery.[6] Section 127(2) also empowers the Magistrate to vary or cancel the order of maintenance if it is found on the basis of an order of a civil court that the wife was living in adultery.
2. The wife refused to live together without any sufficient reason
A wife who refuses to live together with her husband is not eligible to get maintenance. Sometimes, it may happen that the wife will not join her husband even after so ordered by Family Court in restitution matter filed by the husband. This is a good defense for the husband to deny maintenance to her for the period when the marriage subsists.
A wife may point out several circumstances to justify her action of living separately and also to overcome the legal disability of not becoming eligible for past maintenance. Explanation to Section 125(3) states that if a husband contracts marriage with another woman or if he is keeping a mistress, this would be regarded as just cause for his wife to refuse to live with him. Similarly, the wife can always put forth the grounds for divorce mentioned in the concerned Marriage enactments viz. Hindu Marriage Act, The Divorce Act etc depending upon the religion which she follows.
But if the husband obtains a decree for divorce against his wife on the ground of desertion, the position will change and the ex-husband will be liable to pay maintenance to his ex-wife. This is because the wife’s status changed to ‘divorced wife’ and she can claim maintenance until her remarriage.[7] Here the Supreme Court found on similar terms” the husband cannot urge that he can divorce his wife on the ground that she has deserted him and then deny maintenance which should otherwise be payable to her on the ground that even after divorce she is not willing to live with him.” But the wife could only get future maintenance from her husband from the date of divorce as the order of divorce was on the ground of desertion.
In Dnyaneshwar Eknath Kachre v. Sunita,[8] Bombay High Court ruled on similar lines. Here, the wife left the husband alleging harassment from him. The husband filed a petition for restitution of conjugal rights and the same was allowed by Court. But the wife did not obey the order and thus the husband filed a divorce petition on the grounds of desertion. This petition was allowed. The wife (divorced) filed an application for maintenance which was rejected by Magistrate but allowed in appeal by Sessions Court. The husband filed appeal and ruled that the wife can claim maintenance from the date of the decree of divorce.
3. Living separately by mutual consent
Section 125(4) CrPC makes it clear that a wife who lives separately from her husband by mutual consent is not eligible to get maintenance from him. But if the marriage is dissolved by a decree of mutual consent, she can still claim maintenance from her ex-husband unless consented otherwise in Court by relinquishment.
In Smt.Vanamala vs. Shri H.M.Ranganatha Bhatta[9], the Supreme Court dealt with a surprising contention from the part of the husband. Here wife obtained a divorce by mutual consent under Section 13 B of the Hindu Marriage Act. However, no order regarding maintenance was made. Later wife filed Section 125 application in Magistrate Court which was dismissed on the ground that it was obtained by mutual consent. A revision was filed to Sessions Court and the Sessions Judge remanded the same to the lower Court for determining the quantum of maintenance. The husband filed Revision in High Court and the order of Sessions Judge was set aside. Against this appeal filed in Supreme Court. The Supreme Court found that the meaning of expression ‘wife’ in Section 125(4) cannot be extended to include a divorced wife. If there is a divorce there is no question of living separately by mutual consent. Hence the order of High Court was set aside.
Once the woman is a divorcee, the husband ought to give her maintenance as she becomes destitute. In Rohtash Singh vs. Ramendri and others [10] the Supreme Court clarified that the wife is entitled to maintenance unless she suffers from any of the disabilities included in Section 125(4). If she is divorced, she can claim maintenance from the person of whom she was once the wife. A woman after divorce becomes destitute. If she cannot maintain herself or remains unmarried, the husband is under a statutory obligation to provide her maintenance.
In Manoj Kumar vs. Champa Devi[11] the above view was confirmed by a three-judge bench of the Supreme Court.
So it is clear that the husband can deny his divorced wife maintenance if two conditions are satisfied:
A. Can maintain herself
A woman who is able to maintain herself may not get maintenance from the husband. The burden of proving that the woman is earning for her livelihood rests on the husband. He has to bring in evidence and categorically prove that she is earning.
In Sunitha Kachwaha and others vs. Anil Kuchwaha[12], the Supreme court dealt with this issue. The woman is working as a teacher and is earning. Her plea was that she has great hardships in maintaining herself and she is living with the help of her parents and brothers. The Court found that merely because the wife was earning something, it would not be a ground to reject her claim for maintenance when the husband is in a position to pay the same.
The same dictum was followed by Kerala High Court in Alphonsa Joseph vs Anand Joseph.[13] Here the woman approached the Family Court and filed a petition claiming maintenance stating that her husband is an affluent person with sufficient means and he has neglected and refused to maintain her. The husband’s version is that his wife is a qualified doctor and refused to work and earn for herself and hence he is not willing to provide maintenance. Her prayer for maintenance was dismissed. Apex Court referring to a number of precedents held that the concept of sustenance does not necessarily mean to live in penury and roam around for basic maintenance. The wife is legally entitled to live life in the same manner as she would have lived in the house of her husband with respect and dignity.
Thus it is clear that wife possessing higher educational qualification which is capable of getting high income is not a good defense at all if she remains jobless or earning a meager income.
B. Remarriage
For becoming eligible for getting maintenance the divorced woman should remain unmarried.[14] If she remarries, the situation changes. Once again the male-dominant law comes into ex-husband’s rescue. Here if the woman has married again her ex-husband is absolved from all legal liabilities to give her alimony since the new husband turns into the ‘bread-winner’ for his new family and thus made liable to protect his new wife.
It may be noted that not filing a petition for maintenance during the pendency of the divorce petition is not a bar to claiming it in the future. She can file it at any time after the divorce.[7]
Footnote
- S.125(1) CrPC
- Kandaswami Mooppan vs. Angammal, AIR 1960 Mad 348, Chander Prakash vs. Shila Rani, AIR 1968 Delhi 174
- Shivaji Raghunath Gaikwad vs. Jijabai Raghunath Gaikwad 1985(2) BomCR 394
- Chandra Bhan vs. Sudha Rani 2005 CrLJ 1978 (1979) (All)
- Sandha v. Narayanan, 1999 (1) KLT 688
- Sec.125(5)
- Dr.Swapan Kumar Banerjee vs. The State of West Bengal and another, Criminal Appeal Nos.232-233 of 2015 decided on 19-09-2019
- 2018 SCC OnLine Bom 2243, dated 24-08-2018
- 1995 SCC (5) 299
- (2000) 3 SCC 180)
- (2018) 12 SCC 748
- Criminal Appeal No:2310 of 2014
- OP(Crl.) No:274/2018
- Explanation b to Section 125(1)
Thanks for reading this post. This post is a short summary of the subject of maintenance in the Criminal Procedure Code. There is a large number of cases to describe the topic covered in this post. We may update the post in the near future in our routine revival process. Please stay with us.
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