INTRODUCTION:
Marriage is a social institution where the man as ’husband’ and the woman as ‘wife’ live together under a roof based on customary laws. In Hindus, marriage is regarded as the socio-economic duty of an individual that provides it social identity and legitimacy. Marriage is a universal institution and is not simply an expression of love it includes companionship, intimacy, procreation, and parenting. In earlier times marriage does not take place out of love. It was believed that man is only half until he gets united with the woman as mentioned in Hindu mythology. It was to extent that the woman does not even know the man to whom she is getting married. The union was honored publicly and completed with sexual consummation. It was believed as the bond of seven lives thus marriage was highly respected and the practice of divorce a sin.
DIVORCE:
‘Divorce’ literally means ‘severing martial knot’ means the couple no longer be husband and wife to each other. It dissolves all the martial rights and obligations of one spouse towards another. It was widely believed that Hindu Marriage cannot be dissolved in earlier times. As it is the sacred union of man and woman pre-determined by the creator of nature’s will. Divorce could be taken by parties based on their irreconcilable differences, argument, and differences over minimal issues. Adultery, addiction to substances like alcohol and drugs, cruelty towards any spouse, and adjustment are some other reasons for divorce.
Divorce could be demanded on basis of—
- Fault Theory: When one party to marriage commits an offense against another party of marriage. The innocent party has the right to seek divorce from the guilty party.
- Mutual Consent Theory: Two consenting adults get divorced of their own will. This theory could be considered as good and worst. Good in the sense that it may allow both parties to move out of each other lives without any arguments. Worst in the sense that both parties didn’t bother to understand each other’s point of view they just walk away.
- Irretrievable Breakdown Theory: It is the failure of martial ties between both parties up to the extent that they can’t stand each other.
MAINTENANCE:
When any of the parties seeks divorce from others under whichsoever theory of divorce. The only question that is needed to be answered is about the maintenance claimed. Maintenance is defined as a provision for food, clothing, medical assistance, and other expenses. The whole objective of claiming maintenance is based on assumption that the claimant does not have enough means to support herself. While determining maintenance court would look into the assets of both the parties and their ability to earn.
Maintenance can be claimed under various provisions of law i.e.,
- Criminal Procedure Code, 1973 (CrPC)
- Hindu Marriage Act, 1955 (HMA)
- Hindu Adoption & Maintenance Act, 1956 (HAMA)
- Domestic Violence Act, 2005 (DVA)
- Senior Citizens Act, 2007 (SCA)
It compels a person to perform his moral obligations towards his wife, children, and parents. Article 15 (3) of the Indian Constitution provides state power to make special provisions for women and children. Article 39 of the Indian Constitution provides that both men and women have adequate means of livelihood. To claim maintenance certain circumstances must be satisfied—
- Relation of husband & wife should be proved.
- Must be unable to maintain herself.
- Husband must be having sufficient means.
- Proven ignorance of husband towards his wife.
‘Wife’ being married or divorced is entitled to claim maintenance from her husband until she remarried. The maintenance can be claimed by the wife if the husband has deserted her of his own free will. Maintenance claimed if the husband is suffering from venereal disease or any other infectious disease.
Maintenance can be claimed by a Hindu Wife under Section 24 of HMA 1955 if she is unable to maintain herself. As the claimant does not have sufficient means to maintain themselves, therefore, litigation expenses must be dealt with by another spouse. The Quantum of maintenance shall be decided at the discretion of the court. HAMA 1956 provides for maintenance as providing sufficient means for food, clothing, shelter, and medical assistance as needed. It further provides for the maintenance of children as them being minors or unmarried. Parents can also claim maintenance as they are old and medically unfit to maintain themselves.
HUSBAND IS NOT LIABLE TO PAY MAINTENANCE IF:
WOMAN IS INDULGE IN ACT OF ADULTERY: As mentioned in Section 125 (4) of CrPC wife has no right to claim maintenance if she has committed adultery. Various High Courts have different opinions about denying maintenance on grounds being adultery. This differential is based on the fact whether the act of adultery was continuous or in past.
WOMAN MARRIED the SECOND TIME: When the wife enters into a second marriage it ceases her right to claim maintenance from her first husband. If the wife is capable enough to earn herself then no alimony shall be granted. The courts may exercise inherent powers whereas as per the provision the second wife is not entitled to maintenance.
WOMAN DESERTED HERSELF: When a woman herself deserts or refuses to stay with her husband she is not entitled to maintenance. Various instances show that the wife either forces her husband to move out of the matrimonial home or live with her parents.
WOMAN AGAINST WHOM RESTITUTION DECREE ALREADY PASSED: When a decree for Restitution of Conjugal Rights is already passed by the competent court. However, the wife still refuses to stay with her husband but the husband does not allow her to stay.
WHEN WOMAN HERSELF GIVES UP RIGHT OF MAINTENANCE: Wife may relinquish her right of maintenance on receiving lumpsum maintenance or no maintenance at all.
CONCLUSION:
The courts have often refused to grant maintenance to wives on grounds like Adultery, Cruelty, and Desertion. When a wife has herself leave no room to make mend marital life then why claim maintenance from the same person? It was also seen an educated woman has enough means to feed herself. It merely seems like she is just trying to extort money from him.
Also read – https://blog.ipleaders.in/maintenance-cases-in-favour-of-the-husband/
