Table of Contents
Introduction
In a recent case titled Rehena Khatoon v. Jargis Hossain [1], Calcutta High Court on 24th June 2021 held that even though the divorce was unilaterally initiated, divorced wife which is unable to maintain herself is entitled to maintenance under Section 125 of the Code of Criminal Procedure (CrPC). Maintenance was previously denied by trial court on ground that the petitioner unilaterally initiated the divorce proceedings against respondent. The above ground was based on the assumption that a wife cannot be considered destitute if she willfully neglects her husband and, in such cases, she cannot be entitled to maintenance.
The issue before the High Court was: Should maintenance rights of the wife be category specific subject to who initiated divorce and if it was unilateral? And when can a divorced wife claim maintenance? What can be possible grounds for denying the right to maintenance to a divorced wife? Considering these issues, Right to Maintenance of a divorced wife was recognized by the Calcutta High Court irrespective of who initiated the divorce proceeding, but it was subjected to the condition that wife must be incapable of meeting her needs.
Divorce and maintenance laws in India
Divorce rules in India, like other personal concerns, are linked to religion. The Hindu Marriage Act of 1955 governs Hindus, Buddhists, Sikhs, and Jains, whereas the Dissolution of Muslim Marriages Act of 1939 governs Muslims, the Parsi Marriage and Divorce Act of 1936 governs Parsis, and the Indian Divorce Act of 1869 governs Christians. The Special Marriage Act of 1956 governs all civil and inter-community marriages. Divorce legislation is effective in certain instances but not in all instances.
A couple can seek divorce if both spouses agree, or when any spouse can file petition for divorce without the other’s approval. When it comes to mutual consent – Before divorce procedures may begin, the couple must live separately for at least one year under Section 13 B of the Hindu Marriage Act, 1955, and Section 28 of the Special Marriage Act, 1954. The couple must, however, be apart for at least two years under Section 10A of the Divorce Act of 1869. Whereas, Divorce without mutual consent is based on grounds specified under Section 13 of the Hindu Marriage Act, 1955 for Hindus, under Section 2 of The Dissolution of Muslim Marriages Act, 1939 for Muslim women.
When it comes to maintenance, a woman has the right to seek both interim and permanent maintenance under Section 125 of CrPC. In case of Rohtash Singh v. Smt. Ramendri and Ors.[2]wherein it was clarified that the term wife includes a divorced woman as well until that woman gets remarried. It was held in light of interpretation of Section 125 clause (1) sub clause (d) explanation part(b) which reads as: ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. ” Furthermore, In case ofSunita Kachwaha v. Anil Kachwaha[3], the Supreme Court ruled that a wife’s maintenance should not be rejected just because she had a source of income.
In addition to an order of maintenance under Section 125 of the CrPC or any other legislation in effect, an aggrieved wife is entitled to maintenance under Section 20 of the Protection of Women from Domestic Violence Act, 2005 (“PWDA”). Moreover, In case of Lalita Toppo v. The State of Jharkhand and Anr[4], the Supreme Court held that under the PWDA, a woman in a live-in relationship has the right to seek maintenance from her partner. The decision extended the protection of PWDA to cater to larger numbers.
Maintenance rights of divorced wife under different religions in India
The maintenance law in India reveals that a divorced wife is entitled to maintenance, so as to bring the wife in a position similar to what she was before ‘dissolution of marriage’. The concerned law protects the interest of the divorced wife.
Maintenance under Hindu Laws
A woman has the right to seek support under the Hindu Adoption and Maintenance Act of 1956 and the Hindu Marriage Act of 1955. If the court determines that either the husband or wife has no source of income, the court will enable the petitioner to receive maintenance from the respondent.
Maintenance under Muslim Laws
If the marriage contract includes a provision for special allowances, the wife must be given those allowances. The issue of maintenance for Muslims is governed by the Muslim Women (Protection of Rights on Divorce) Act of 1986. If the wife is pregnant during the period of iddat, she can claim maintenance for two years from the date of birth of a child, or if they had a child at the time of divorce, the woman can claim maintenance until she remarries or the child becomes dependent.
Maintenance under Christian Laws
The legislation governing maintenance in Christians is the Indian Divorce Act of 1869. It states that a woman may be granted support, but that it should not exceed one-fifth of the husband’s salary, and that the wife must stay unmarried and pure. The amount is determined by the wife’s income, the husband’s property and income, as well as a number of other variables.
Maintenance under Parsis Laws
It is on similar lines with that of Christians and the only difference is that in Parsis husband can also claim maintenance. The entitlement to maintenance ends with person’s death (person who was paying maintenance).
Maintenance under Special Marriage Act, 1954
This Act permits the woman to make a maintenance claim against the husband based on his income and property, her income, their behavior, and a variety of other factors. If the court that issued the decree believes the circumstances of the case have changed, it might amend the decree.
Conditions under which women can seek maintenance
For upkeep, a woman has two separate rights as held in Rohtash Singh v. Smt. Ramendri.[5] She is entitled to maintenance as a wife unless she has one of the disabilities listed in section 125 clause (4). Secondly, she has the right to seek maintenance in a different position, namely as a divorced woman from the person she was formerly married to. After a divorce, a woman becomes destitute. If she is unable to support herself or remains unmarried, she is entitled to maintenance by her husband.
When can a woman be deprived of Maintenance?
- When a wife is ‘living in adultery’ during her married life, she can be barred from her right to maintenance. Given, allegations of adultery are proved against her. It is also important to note that Section 125(4) prevents a wife from claiming support from her husband if she is ‘living in adultery’ rather than ‘committing adultery’. The Madras High Court in NarayananNair v. Karthiyayini[6] held that a single incidence of adultery committed by respondent cannot be construed as her ‘living in adultery and thus cannot debar her from seeking maintenance…
- When a wife willfully leaves her matrimonial home and refuses to reside with her husband without any valid reason. She cannot claim maintenance if in such a case she’s unable to provide a valid reason for living separately. In Bhagwan Raoji Dale vs Sushma Alias Nanda Bhagwan Dale[7], it was held that the wife is not entitled to maintenance as she refused to reside with her husband without any reason.
- When divorce between husband and wife was on basis of mutual consent as mentioned in Section 125(4) of criminal procedure code. The above ground of mutual consent to debar divorced wife from right to maintenance was supported by the case V.Sundarraj vs Venmathi[8]. In the said case, by enabling considerable evidence, the revision petitioner/husband has proven that the respondent/wife refused to live without adequate reason, and thereafter splitted by mutual consent and started living in adultery. So, she is not entitled to maintenance. According to Section 125 (4) of the CrPC, if a wife is living in adultery, refuses to live with her husband for no sufficient cause, or they are living separately by mutual consent, she will not be entitled to an allowance from her husband.
Scope of Section 125 of CrPc
Section 125 of the Criminal Procedure Code assures the wife, child, and parents’ entitlement to maintenance. After a party has invoked Section 125 of the Code, the court may order the respondent, that is, the husband, to provide monthly maintenance to the wife unable to maintain herself. Magistrates have to right to alter the amount of maintenance as and when pay scale or other situations regarding financial capacity of either husband or wife changes. This right was laid down in the case of Vikas Yadav Vs. State of U.P. and Ors.[9].
The aim of Section 125 CrPC was explained in the case of K. Vimal v. K. Veeraswamy[10], in which it was determined that Section 125 of the Code was enacted to achieve a societal goal. The purpose of this section is to ensure the wife’s welfare by providing her with the shelter and food following her separation from her husband.
Section 397 of the Code of Criminal Procedure grants the power of revision. The higher courts’ jurisdiction is also limited because they must consider certain factors before proceeding with the case re-examination. One of the restrictions is that the Higher Court cannot intervene when both parties’ testimony is considered. Whereas, in case of Sunil Kumar Sabharwal v. Neelam Sabharwal[11], it was ruled that an order providing interim maintenance under Section 125 is not an interlocutory order, and hence its revision under Section 397(2) is not prohibited.
Series of events which led to different interpretations of associated law:
- In case of Bhagwan Dutt v. Kamla Devi[12], It was decided that the wife’s income must be considered when establishing the amount of maintenance to be paid to her, and that a neglected wife’s right to maintenance is not absolute, nor is a husband’s obligation to maintain her in all situations.
- The meaning of “wife” under Sections 125(1) and 125(4) of the CRPC was determined to be distinct in case of Vanamala v. H.M. Ranganatha Bhatta[13]. The court ruled that Section 125(4) refers to a married woman living separately from her husband with mutual consent, not a wife who seeks a divorce by mutual consent and lives separately, and so maintenance cannot be refused on this basis.
- In case of Shabana Bano v Imran Khan[14], the Supreme Court decided that, under Section 125 of the CrPC, a Muslim woman who is unable to maintain herself can claim maintenance even after the iddat periods have passed.
- In case of Bhuwan Mohan Singh v. Meena[15], it was held that a wife’s ‘sustenance’ does not only imply that she survives as an animal, but rather than that to ensure she lives in the same manner as she would in her husband’s house. Furthermore, the husband owes it to his wife to allow her to live a dignified life in accordance with their social rank and strata.
Conclusion
Maintenance is sometimes viewed as a biased privilege ensured to women, yet given a woman’s vulnerable nature, her dignity and needs must be safeguarded in the best possible way. In order to ensure that protection guaranteed to the wife under Section 125 CrPC is not be misused, we do have a revision provision under Section 397 of Criminal Procedure Code. The scope of review against Section 125 has expanded, and higher courts are increasingly considering Section 397 revision applications to provide adequate remedy to the opposing party. Considering the facts and circumstances of cases, different interpretations are taken into consideration by courts, in allowing a grant of maintenance to either of the wife or husband. The grant of maintenance to wife / Divorced wife (wife not remarried) cannot be denied for the reason being she initiating the divorce proceedings, or having a source of income, or having some unproved allegations on her which could have been grounds of divorce between the couple. The position of women in our society is still vulnerable and they need protection and so we have laws like Section 125 CrPC as discussed above.
This article is authored by Durgeshwari Paliwal, student at Institute of Law Nirma University
References:
- Bhaumik, Aaratrika. Wife Entitled To Maintenance Even If She Unilaterally Divorces Her Husband If She Is Unable to Maintain Herself: Calcutta High Court. 4 July 2021,
- https://www.livelaw.in/news-updates/calcutta-high-court-wife-entitled-to-maintenance-unilaterally-divorces-her-husband-unable-to-maintain-herself-176850.
- https://indiankanoon.org/doc/1056396/
- Athulya. “Know Your Legal Rights – Divorce Law in India.” Vakilsearch, 4 Dec. 2019, https://vakilsearch.com/blog/getting-divorced-you-should-know-about-these-3-legal-rights/.
- Women And Maintenance – Family and Matrimonial – India. https://www.mondaq.com/india/divorce/1034554/women-and-maintenance.
- LIMITED, MYADVO TECHSERVE PRIVATE. “Maintenance Rights of the Divorced Women under the Different Religions in India.” MyAdvo.In, https://www.myadvo.in/blog/maintenance-rights-for-divorced-women-under-different-religions/.
[1] Rehena Khatoon v. Jargis Hossain, CRR 678 of 2018
[2]Rohtash Singh v. Smt. Ramendri and Ors. (2000) 3 SCC 180
[3]Sunita Kachwaha v. Anil Kachwaha, AIR 2015 SC 554
[4]LalitaToppo v. The State of Jharkhand and Anr, 2018 SCC Online SC 2301
[5]Rohtash Singh v. Smt. Ramendri, JT 2000 (2) SC 553
[6]NarayananNair v. Karthiyayini, 1983 MLJ (Crl.) 115
[7]Bhagwan Raoji Dale vs Sushma Alias Nanda Bhagwan Dale, 1999 (5) Bom CR 851, I (1999) DMC 168
[8]V.Sundarraj vs Venmathi,Crl.RC. No.932 of 2017
[9]Vikas Yadav Vs. State of U.P. and Ors 2016 Latest Caselaw 724 SC
[10]Vimala (K.) v. Veeraswamy (K.), (1991) 2 SCC 375 : 1991 SCC (Cri) 442, 20-03-1991
[11]Sunil Kumar Sabharwal vs Neelam Sabharwal, 1991 CriLJ 2056, I (1991) DMC 547, (1991) 99 PLR 307
[12]Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386.
[13]Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299.
[14]Shabana Bano v Imran Khan, AIR 2010 SC 305
[15]Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.
