MAINTENANCE - A RIGHT OF THE WIVES

01/08/2020 - Marriage in ancient times was considered to be a sacrament, a bond so pure that could not be severed. With the change in times and rise in financial independence, divorce has become a commonly observed phenomenon.

Subsequent to the dissolution of marriage come certain rights of maintenance. The purpose of providing maintenance is to provide the spouses with general expenses to support themselves so as to put them in comfort by minimizing the loss.

Over the years, the ambit of maintenance has also expanded. Earlier it would include only requirements necessary for bare existence but now it includes support for children, medical expenses, residence and various other components.

In fact the ambit of maintenance has now been expanded and it has been held that the maintenance should be such so as to enable the wife to live with the same standards as she used to before she got separated. Several personal laws in India regulate the matters of maintenance. These laws are applicable to people belonging to those religions.

A provision under Section 125 of the Code of Criminal Procedure, 1973 lays down the concept of maintenance in India and can be filed by anyone irrespective of religion or caste. The Hindu Adoption and Maintenance Act, 1956 lays down the provisions for seeking maintenance by those who have been married under The Hindu Marriage Act, 1955.

Maintenance can be provided to Muslims under The Muslim Women (Protection of Rights on Divorce) Act, 1986. The Supreme Court has recognized that maintenance to a Muslim wife is not to be paid only during the Iddat period and has therefore removed the restriction of obtaining maintenance till a limited time period. Christians can seek maintenance under The Indian Divorce Act, 1869 and Parsis can do the same under The Parsi Marriage and Divorce Act, 1936 while in the case of inter-caste marriage maintenance is governed by the Special Marriage Act, 1954.

There is a fallacy that working women are not entitled to claim maintenance as she is earning however this is just a misconception and Indian courts have recognized the right of maintenance of a working women.

While the wife is entitled to maintenance after the dissolution of marriage, she cannot be entitled to receive maintenance under the following circumstances:

1. If without any specific reason she refuses to reside with her husband
2. If the husband and wife are residing separately with mutual consent
3. If the wife was in an adulterous relationship
4. Upon remarriage of the wife after divorce

The alimony can be provided as a periodical or monthly payment or as a one time payment in the form of a lump-sum amount. There are multiple variables, which affect the amount of maintenance to be received and invariably need to be proved in court of law. Some of the factors that the court takes into account while determining the amount of maintenance to be paid by one party to another are given as under.

• Income of husband and wife and their properties (if any)
• Conduct of the spouses
• Lifestyle of the parties
• Age and health of the parties
• Duration of the marriage
• Remarriage of wife (Husband is not liable to pay maintenance in this case)
• Reason for divorce (with mutual consent or if one spouse has committed adultery, deserted the other, mental disorder, harassment etc)

If the quantum of maintenance decided by the court is based on husband’s financial income, assets, properties etc then a question arises as to how can one verify the assets and properties of the husband?

It is in this case where application of mind and expertise of seasoned family lawyers is required as they have immense knowledge on this subject which helps the clients in seeking appropriate maintenance from the Honourable Court.

Many a times husband conceals his income in order to escape liability to avoid paying maintenance. However, with proper documentary evidence his correct income can be provided in the court. Our seasoned lawyers have expertise and helped numerous clients through this process:

1. Assessing his Income Tax Returns to understand his annual/monthly income
2. The kind of Car driven by him may also help to throw light on his purchasing power
3. Plastic money has undoubtedly paved way in the digital world and is being used for making online transactions. In this pursuit, husband’s monthly credit/ debit card bills can be of use in order to understand his capacity to spend
4. Gone are the days when people used to keep money in lockers or cupboards. The husband’s financial portfolio which includes his investments, mutual funds, shares, government bonds and capital market can show his source of income and surplus wealth
5. The amount reserved by the husband in his bank as savings account along with fixed deposits can also be evaluated
6. Even though there is no property bank in India to verify the properties owned by a person but the wife can provide details of the properties owned by him

If the husband fails to comply with maintenance order, the court can pass arrest warrant against husband. Further upon evaluation, the court can also attach husband’s property and can recover the amount from husband’s property.

A wife is entitled to claim maintenance from an NRI husband under the relevant provisions of Indian Law. The Honourable Court has held that if a person who deserts a wife or child leaving them helpless in a particular district and goes to a distant place (domestic or foreign) and returns to a district or neighbouring one even for a temporary visit, the wife can take advantage of this and file a petition in the district where he is.

The Court can also order the NRI husband to personally appear in the court proceedings and give clarifications. In a situation where the husband has sought to annul the marriage in the country he is residing in, the Supreme Court has made a provision that No marriage between a NRI and an Indian woman whichhas taken place in India may be annulled by a foreign court and the husband may be made to pay for adequate alimony to the wife in the property of the husband both in India and abroad.

It is essential to have knowledge of your rights if you are seeking for a divorce. A wife is not a parasite who is supposed to live off the earnings of her husband rather maintenance is a well-deserved right. If the person is not satisfied with the judgment of the family court they can resort to appealing before a higher court.