Maintenance & Custody

 Learning Aims:

1. By the end of this module the reader should:
2. Be familiar with various laws dealing with maintenance and custody in India.
3. Have a brief knowledge of the impact of judicial decisions on the rights of women claiming maintenance and alimony under various laws.
4. Be familiar with factors which govern custody matters and of the welfare of the child principle.
5. Have some basic knowledge of the judicial decisions related to these areas of family law.

Introduction

Maintenance and custody are two primary issues arising out of a matrimonial dispute. Maintenance under the classical law generally refers to the husband’s obligation to financially support the wife during marriage and also on divorce or separation. Provisions for maintenance arise out of the personal laws as well as the Code of Criminal Procedure, 1973. Such provisions have typically aimed to secure the finances of the wife and to ensure the same standard of living to her, and children she retains custody over, which she had when she was married. Recently courts have started denying maintenance to women who have the capacity to earn independently and are not financially dependent upon their husbands. Challenges have also recently come to courts with men requesting maintenance if the wife was the primary income earner. This module will examine legal rights to maintenance and custody from a woman’s perspective under various personal laws and how these affect her right to life and non-discrimination.

Maintenance

The right of maintenance is recognized as a statutory right that serves a social purpose to prevent women from becoming destitute and impoverished following the breakdown of the marriage. Recognising women’s socio-economic inferiority within society access to maintenance is recognized as a means to secure to all women an adequate means of livelihood (Constitutional provision 39), and, when reading with provision 15(3) of the constitution, it may be awarded to women as a special provision. It’s status as a statutory right has also led courts to state that a wife cannot bind herself by agreement with her husband and give up her right of maintenance. It was held that “The parties, therefore, cannot by an agreement between themselves, agree to oust the jurisdiction of the Court which otherwise Parliament has conferred.”

In the case of Purnananda Banerjee vs. Swapna Banerjee and Anr, in a proceeding for divorce and maintenance filed by the wife, the husband challenged the constitutional validity of Section 36 of the Special Marriage Act, 1954 as it did not provide the husband with the option of claiming maintenance unlike the Hindu Marriage Act, 1956. The Court of Calcutta upheld the constitutional validity of Section 36 in view of Article 15(3) of the Constitution which states that, “Nothing in this article shall prevent the State from making any special provision for women and children.”

Such interpretations by courts demonstrate the level of importance given to maintenance as a right for women and its intent to ensure women are not unfairly and unequally left vulnerable after separation and divorce. In the case of Bhuwan Mohan Singh v. Meena and Others, the Supreme Court held that “The husband cannot take subterfuges to deprive her of the benefit of living with dignity.” This section will examine rights to maintenance as under secular, Hindu, Muslim, Christian, and Parsi laws.

Maintenance under Section 125 CrPC

Section 125 of the Code of Criminal Procedure, 1973 states that if any person has sufficient means refuses or neglects to maintain his wife or legitimate child, then such party may apply to the Magistrate who may order a monthly allowance for the maintenance of such child or wife. In the case of Chanmuniya vs. Virendra Kumar, the Supreme Court held that women in live-in relationships can also claim maintenance under Section 125, CrPC. It was stated by the Supreme Court in this case that, “Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her.” The objective behind granting maintenance in such cases is that the woman should not be led to vagrancy and destitution. In the case of Chaturbhuj vs. Sita Bai, it was held that “the test is whether the wife is in a position to maintain herself in the way she was used to in place of her husband….The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. The court in this case also cited the case of Bhagwan v. Kamla Devi, where it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with the status of the family.

The liability under Section 125 does not absolve on punishment for non-payment, it only absolves when the actual payment of maintenance is made. In the case of Ajith Kumar vs. Shaima, it has been held that “Imprisonment does not, and cannot absolve petitioner of his liability to pay maintenance. Imprisonment is not a mode of satisfaction but is only a mode of enforcement of liability.” In another case decided by the apex court, it was held that, “…The liability can be satisfied only by making actual payment of the arrears.” Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears.

Maintenance under the Hindu Marriage Act, 1956

Section 24 of the Hindu Marriage Act, 1956 (herein HMA) deals with maintenance pendente lite (pending litigation). It states that on the application of the husband or the wife during any proceedings under the Hindu Marriage Act, 1956, where it appears to the court that the applicant has no independent income sufficient for her or his support including the cost of litigation, the court may order the respondent to pay to the applicant such costs and expenses. Maintenance under Section 24 can be granted only when the proceedings are pending, and thus when the case is disposed of, the maintenance under Section 24 also ends. An application for maintenance under Section 24 is not maintainable when the marriage is void. This may be problematic for women who are either unable to prove their married status or whose marriages may be declared void as a previous marriage had not been dissolved prior to their marriage without their knowledge. It may, therefore, lead women who thought themselves to be married to be left financially vulnerable.

Section 24 includes considerations such as the applicant’s own income and income of the respondent. It has been held that “[m]aintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non-applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.” Income affidavit thus has become an efficient tool to help the court in deciding the fair amount of maintenance to be granted. In the Puneet Kaur case, a detailed format of the income affidavit was given and facts such as tax receipts, property ownership, school fees, fuel expenses, total income package and day-to day expenses had to be disclosed. In another case, V. Usha Rao vs. M.L.N Rao, it was held that the term “income sufficient for her support” is not to be narrowly construed and it cannot be held to mean bare subsistence. It means that the spouse should be in as much comfort as the other spouse and to which she was habituated while living with her husband. Maintenance for minor children also can be granted along with maintenance of the spouse under this section. Even though Section 24 does not explicitly refer to children, it has been held in the case of Damodharan vs. Meera, that the court can invoke Section 26 which discusses custody proceedings and grant maintenance if required.

Section 25 deals with permanent alimony and maintenance. It states that any court on an application by the husband or the wife, at the time of the passing of a decree ordering the respondent to 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. The section although entitles both spouses the right to maintenance, most of the cases are decided where it secures the right of the wife to secure support. Even if the decree is in favour of the husband, that does not restrain the court from passing an order of permanent alimony and maintenance in favour of the wife. While one can file an application for maintenance under Section 24 while the proceedings are pending, Section 25 can be used at the time of decree under this Act or thereafter. In the case of Chand Dhawan vs. Jawaharlal Dhawan, it was held that when the main petition has been dismissed or withdrawn, permanent alimony is not payable under this Section. While deciding an application under Section 25, the court has to take into consideration the income of both the parties and even conduct of the parties. The amount of alimony to be granted is the court’s discretion taking into account various factors such as ownership of property, the lifestyle of the parties, day-to day expenses, predictable change in circumstances and the capacity to earn.

The Special Marriage Act, 1954 applies to persons who are married under the Act. Section 36 deals with maintenance pending proceedings and Section 37 of the Act deals with permanent alimony. Unlike the Hindu Marriage Act, a husband cannot claim maintenance under the Special Marriage Act.

Maintenance under Hindu Adoption and Maintenance Act (HAMA), 1956

Section 18 of the Hindu Adoptions and Maintenance Act (herein HAMA), 1956 states that 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. This section reaffirms the Hindu ideology of maintaining your wife. While under the HMA the laws treat both husband and wife equally to claim maintenance and alimony, HAMA specifically talks about the right of a Hindu wife to claim maintenance during her marriage from her husband. The liability of the father-in-law arises only on the death of the husband. Section 18(2) states that “a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.” The case of Bouramma vs. Siddappa Jeevappa, upheld this stating that mere agreement to live separately unless there has been the dissolution of marriage in law cannot be a ground for refusal of maintenance. Maintenance includes everything that fulfills basic necessities such as food, clothing, residence, medical treatment, and education. The court also has the jurisdiction to provide for interim relief of maintenance under this Section and it does not depend on the challenge by the husband questioning the validity of marriage. Such an interpretation by the court is very gender-sensitive; by allowing maintenance even when living separately, it doesn’t force women to live in unhappy or abusive relationships and nor does it, subject women, to have to get divorced if they do not wish to. It, therefore, upholds the privacy and choice of the woman and her right to financial security this maintaining her dignity.