AUTHORED BY : 

Ishani Chhaudha | BBA LL.B(H)

AMITY LAW SCHOOL, NOIDA

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THE CONCEPT OF MAINTENANCE: AN ESSENCE OF SURVIVAL FOR WOMEN IN HINDU LAW                                                     

ABSTRACT

The topic of my project deals with the few aspects which include the following aspects to be covered these are :

1. What are the sources of the Hindu law and how they were different from the British period and independence period?
2. What basically the institution of marriage is and what are its essentials?
3. Dealing with concept of divorce and maintenance given to the wife and in what cases maintenance is given to husband or it actually happens or not?

These are the aspects on which my topic revolve around where the term maintenance has to be focused with respect of women who are still tag as house wife who are kind of no use to their own families even with miserable conditions they are still living for the adjustments even the husband is least bother about them or not .

I want to take you to all the important aspects of the projects and some recent changes taken during the following years for the women associated in this position  there is one quote:

“A WOMEN IS PHYICALLY STRONG THE MEN TAKE ALL HER COURAGE WITH FULL OF WRONGS , STRAVING HER TO THE FULLEST LEADING TO ALL WAYS TOUGH WITH BOND , ITS WRONG SHE IS ALSO AN INDIVIDUAL BORN”

                       

CHAPTER 1: GENESIS   OF HINDU LAW

The term law refers to the principle whose violation must or should result in a penalty as failure, injury or even loss. It is binding in nature so to maintain law and order in the world full of people.

Where actually the term Hindu law states which is applicable to Hindus, Buddhists , Janis, Sikhs in British India. Where the term refers to the system of personal laws i.e. marriage, adoptions inheritance and is a kind of legal system described in the dharma shastras. it is a kind of modern convince which is known as tradition which is established by the constitution of India.

The development and growth of Hindu law has gone through many periods of growth from dharamshatras’ to colonial appropriation to the establishment of modern personal law system.

BREIF HISTORY OF THE DEVELOPMENT OF PERSONAL LAWS RELATING TO SOCIAL PROBLEM.

PRE INDEPENDENCE PERIOD	POST INDEPENDENCE PERIOD
1.There was as such no kind of separate sphere for personal laws and the issues related to the marriages were left including divorces , remarriages and polygamy where some caste permitted them others were not permitted as they were given in the hands of panchayats .	With the formal independence Anglo Hindu law and other major personal law system were emerged including Islamic law development.
2. During British period which formed a legal system in 1772 where general warren stated his plans for administration of justice	It includes : Hindu marriage act Hindu adoptions and guardianship act Hindu maintenance act

           

                CHAPTER 2: SOURCES OF HINDU LAW

The development and growth of Hindu law had led several sources through which the concept can be easily be understood it includes both the historic period and modern era.

It include 8 most important sources through which Hindu law gets its emergence

1. SRUTI: meaning heard, which stated that what was heard. this stated that they contain the very word of god. And were bases on the 4 Vedas i.e. rig ,yajur ,sama and atharava Veda.

Including 18 Upanishads as although the srutis were believed to be ultimate sources of law where the departure from the Vedic principles had brought several evils in the system of development of Hindu law.

2.SMRITI: which stated as remembered were both srutis and smritis plays an important role and they were written down by the rishis and passed from generation to generation, however it is difficult to provide the exact number of the smriti but earliest was of Manu known to be Manu’s smritis

This source deals with rules of morality and religion.

CASE : SHYAM SUNDER PRASAD VS  ST OF BIHAR

where the supreme court has observed that if there is divergence of opinion among the smritis , the court should consult the prevailing practice among the people while deciding the case ,if there is a clear usage to the contrary , the smriti must yield to such usage.

3.COMMENTATRIES: There were several interpretations were made related to smritis since they were different from one another and known to be nibandhas. .these   interpretations put on the Smritis by various commentators. They introduced modifications in order to bring it into harmony with the current usage where several modification was made according to the changes ups and downing development of modern Hindu law.

In this context, the Allahabad High Court has pointed out that there is a distinction between a law giver and a commentator. A Code enunciated by the former has the force of law, but the opinion of a commentator, howsoever valuable for elucidation of the Code, cannot override the law itself.

Development of different schools took place. Broadly speaking, there are two Schools, the Mitakshara School and the Dayabhaga School. The former prevails throughout India, except in Bengal.

4. Puranas: The other one of the good source is puranas . As observed by the Allahabad High Court in the CASE: GANGA SAHAI v. LEKHRAJ (9 All. 253):

“Somewhere in the order of precedence, either between the Srutis and the Smritis, or more probably after them, come the Puranas, which the celebrated author Cole broke states, are reckoned as a supplement to the scripture, and as such, constitute a fifth Veda”.

5. Judicial Decisions: During the british rule , another element was added to the effective sources of Hindu Law. Administration of new laws were emerged . The decisions of the courts, based on the judicial interpretation of the ancient Hindu texts, began to stake their claim as the most practical source of Hindu Law. But there was no new creation of law only the based upon the exiting laes. But nowadays many reports are considered as to be the good source of hindu .due to several changes  in India, judicial precedents became necessary and useful guides in the application of Hindu Law. Thus law reports are considered to be basic foundation for the hindu law

CASE:  the Supreme Court has in SHRI KRISHANA SINGH VS MATHURA AHIR,

, observed that in applying Hindu law, the Judge should not introduce his own new concepts but should derive from sources of law itself. The progress that Hindu law has made in the 19th and 20th centuries is entirely due to the rulings of the Courts. The decisions of these Courts have often superseded the Commentaries. As precedents, these decisions have a binding force.

CASE DUDH NATH VS SAT NARAIN: not considered as the well settled law in india but its nit a shastric law as well it is based on the changes taken place for the same.

6. Legislation:

The term legislation means the making of law another source of Hindu law where several enactments are made based on the current issues and situation of India

The Hindu Law Committee, appointed in 1941, leading to , the most important enactments were those which came in 1955 and 1956, namely the Hindu Marriage Act, the Hindu Minority and Guardianship Act, the Hindu Succession Act and the Hindu Adoptions and Maintenance Act. which has radically modified the Hindu Marriage Act, as for instance, by introducing the concept of divorce by mutual consent in Hindu matrimonial law.

Yet another recent landmark is the amendment of the Hindu Succession Act in 2005, which has conferred equal rights on a daughter in coparcener property.

7. Justice, Equity and Good Conscience:

The principles of justice, equity and good conscience may also be regarded as a modern source of Hindu Law. Where what to be fair and justice should be considered as one of the principles of natural justice.

The Supreme Court has observed in GURUNATH VS KAMLA BAI, in the absence of any clear Shastric text, the Courts have the authority to decide cases on principles of justice, equity and good conscience.

In a case decided before the passing of the Hindu Succession Act, 1956, (KENCHAVA v. GIRIMALAPPA, the Privy Council held that a murderer was disqualified from succeeding to the property of the victim. Thus, a rule of English law founded on public policy, was applied to a Hindu on grounds of justice, equity and good conscience. Now, this disqualification is statutorily recognized in the Hindu Succession Act, 1956.

8. Customs and Usages:

Custom is one of the most important source and considered to be an habitual activity .  custom in Sanskrit  is sadachara, which means “the approved usage” or “the usage of the virtuous man”.  a rule which, as a result of a very long usage, has obtained the force of law in a particular community or in a particular district. Custom thus plays a very important part in Hindu Law and leading to the modifications and development of Hindu law

               CHAPTER 3: MARRIAGE- A SACRED INSTITUTION

Marriage is the very foundation of a stable and civilized society. Even in uncivilized era it is recognized as explicit way. It is a sacred institution which denotes the preservation of the marriage as a social institution. But with the changing social needs leading to the changes in the social values it might seems to be an sacred institution but its resembles is equal vent to the contract between the parties leading to the essentials of the contract that are offer acceptance consideration promise and competence as well. It is an holy union of both male and female and nowadays changing according to the trends.

Case : Manmohini vs Basant Kumar : marriage was considered more than just a secular form in character however it was observed in the case of ANJONA DASI VS GHOSE(beng.l.r.243)that a suit relating to the marriage deal with that which in the eye of the law must be treated as a civil contract and leading to important civil rights arising out of that contract.

The basic essential of legal marriage are:

1. Neither of the party should have spouse living at the time of marriage.
2. At the time of marriage , neither party

• Is incapable of giving a valid consent with respect to unsoundness of mind
• Not suffering from mental disorder or is unfit for the marriage
• Recurrent attacks of insanity    

3.The bridegroom has completed the age of 21 years and bride age of 18 years at the time of marriage

4.No degrees of prohibited relationship  unless the custom or usage permits such marriage

5.The parties are not sapindas of each other , unless the custom or usage permits such marriage..

The Hindu marriage act 1955, does not specifically provide for any form of marriage but it should be fulfilled according to the ceremonies and other essentials important for the solemnization of the marriage.

TYPES OF MARRIAGES

1. VALID, 2.  VOID , 3. VOIADABLE AND 4.INVALID MARRIAGES

BASIS OF DIFFERENCE	VALID MARRIAGE	VOID MARRIAGE	VIODABLE	INVALID MARRIAGE
SECTIONS AS PER HINDU MARRIAGE ACT	Defined in section 5 0f the act which provides essentials leading to valid marriage.	Defined under section 11 of the act which states it is void ab intio from the very beginning it is invalid.	Defined under section 12 of the act available for pre and post act marriages which is perfectly valid as long as not avoided	No one can innovate the new ceremonies and marriage performed with the innovated rites is in valid in nature.
Legal consequences	Ground for separation among the individuals or the rights associated with it.	No legal consequences because it is already void ab initio but the legitimacy of children is been defined under section 16 of the act	The status of husband and wife and legitimacy of children is been taken into the account where a wife under this can claim the maintance but not in case of void marriage as per section 125 of criminal procedure code Stated in the case of : RAMESHVARI DEVI VS ST.OF BIHAR(AIR2000SC735)	No legal consequence and leading to invalidity of the status of children also.

                   CHAPTER 4: DIVORCE –   WHEN MARRIAGE BECOMES MISERY

   Where the concept of marriage itself is the foundation among the 2 individuals having different thoughts and beliefs leading to together destinations but the changes of society and the needs desires of the being in the marriage would not able lead the satisfaction to of the individuals in the marriage. in most of the cases the women’s are considered as the sufferer .

Prior to the development of the this right there were certain ground on which the marriage can be considered as null in nature. A  women during the previous decades were given the right to declare their marriage to be null it was basically done to protect the rights of the women.

1. RENOUNCE TO THW WORLD: When the husband himself is renounce and had no longer in relation with his wife then she has the authority to declare her marriage to be null.
2. IMPOTENT: The wife even had this ground to declare her marriage to null where there will no furtherance development of her family with the person she is married too.
3. UNSOUNDNESS OF MIND: When the husband himself is not   mentally stable then this can also be a ground to declare the marriage null in nature.

When this sacred institution comes to an end then it would lead to emergence of new rights, claims and remedies. The law of divorce has developed   over the time because it is increasingly considered that no point of entrusting the relationship among the partners for them the marriage is misery not the happiness.

KINDS OF THEORY

TYPES	OFFENCE/GUILT/FORCE THEORY	FREE CONSENT THEORY	IRRETRIEVABLE THEORY
CONCEPUTALITY	OFFENCE: when one of the partner had committed any matrimonial offence. GUILT: when one of the party is guilty and other one is innocent and if the party condones the act of the other party then it cannot be ground of divorce. Only certain ground known as cruelty, desertion and adultery where the recognition like insanity is considered as the fault theory	This is also known as mutual consent theory where the parties are mutually free to dissolve there relationship .it is the freedom given both the partners of the marriage leading to more happiness among them and ensuring the unity and mutually settlement of the parties leading to settlement of the children also.	It is the modern view of the divorce, where there is a fundamental shift in the policy where not to punish the guilty but to protect the innocent. It is based on the concept that either both the parties are guilty of offence or neither the party are at fault. The term of irretrievable means the failure of the relationship where both husband and wife wont be living again. CASE: YOUSAF VS SOWRAMMA The learned judge said that while there are no rose which has no thrones but if way you hold is all thorn and no rose better throw it away, it is not a conjugal guilt but breakdown of marriage

 

GROUNDS OF DIVORCE DEFINED UNDER SECTION 13 

APPLICABLE TO BOTH HUSBAND AND WIFE

1. ADULTRY:  where the person is involve in the sexual relationship with the opposite sex in spite of the fact being married .

CASE  :ANANDI VS RAJA(AIR1973)

Where the married women was absenting herself from the home for past 4 days and has been with more than one stranger which was observed by the court known as adultery.

2. CRUELTY: as such there is no definition of cruelty it can be in any form or in any way be it mental torture or any of the way causing danger to the life of the partner .it is one of the common ground for divorce specially in the developing country and is mostly done by husbands either by beating, scolding or leading to mental torture to their wives but the trends are changing so do the characters of the partners even wives are also good players playing the ground of cruelty towards their husband.

CASE:DASTANE VS DASTANE(AIR 1976,SC 1534)

Where the wife not merely abused the husband but humiliated his father and would lock her husband once he return from office and making home mentally sick by torturing and insulting him in front of friends and students. Where cruelty was established and was considered as the cumulative effect leading to such behavior.

3. Dissertation:  which states the total repudiations of the marriage the marriage is working for the sake of working . it can be actual, constructive or willful neglect.

CASE:ASHOK KUMAR VS SHABNAM(AIR 1989 DEL 121)

Where s wife had to leave the matrimonial home because of the harassment of the dowry and was held that it was not the wife but the husband who was guilty of the desertion.

WIFES SPECIAL GROUNDS OF DIVORCE

1. PRE ACT MARRIAGE: It is  define under section 13(2) (i) under Hindu marriage act. It let to the introduction to monogamy, the wife of pre act marriage may file a petition for divorce on the ground of husband remarriage. On the other hand the second wife of the pre act marriage may file petition for divorce on the ground that his first wife is alive. The ground will be available when the marriages are valid. But today their so longer practical approach of this ground.
2. RAPE, SODOMY AND BESTIALITY: It is define under section 13(2) (ii)of the act where an attempt by the husband is not covered these are the offences committed by the husband give the wife right to divorce him. A man is not guilty of raping his own wife unless she is under the age of 15 years is considered as an acceptation to  section 375 of Indian panel code .Where sodomy is anal intercourse by a man with his wife another woman or with a man. However several amendments have been made with respect to homosexuality by amending section 377 of the Indian penal code. And bestiality refers to intercourse with an animal.
3. ORDER OF MAINTAINANCE / NON RESUMPTION OF COHABITATION :  under this the wife obtained the order of maintianance per section 125 of criminal procedure code or a decree under section 18 of Hindu adoption and maintains act where the parties has not resumed after passing of such order then the wife may sui for divorce. 
4. REPUNDATION OF MARRIAGE: where the term reputation refers to an express written or spoken words or implied from the conduct of wife it is known as an option puberty under which the wife who has married before attained the age of 15 years and who had repudiated the marriage after attaining such age but before attaining age of 18 years .may brings petition for divorce.

DIVORCE BY MUTUAL CONSENT: It is defined under section 13b stating that it is one of the easiest ways to get the freedom of happiness as an individual by the mutual consent of the parties. but the main criticism of this consent issue is

1. Makes the divorce easy while it might too difficult to obtain the consent of the party.
2. Some safeguards are need to be obtained for the divorce.

JUDICIAL SEPRATION: ANOTHER FORM BUT IS DIFFERENT FROM DIVORCE

Where the judicial separation , the marriage is only suspended for a while and the parties are not completely alienated. They reconcile without re marrying . the decree of judicial separation can be rescinded while divorce cannot reunite without marriage ceremony in case of property judicial separation the other will succeed to his or her property but once the divorced took place then the there is no right in the property of the other spouse. Even in the right of conjugal restitution was given to the partners in this sacred institution is given by the court to protect the marriage since the basic purpose of the court is that to protect the relationship ensuring the peace and harmony with this respect .but if the individuals themselves are not interested in taking the relationship further then the court itself as no choice just to grant the decree or the order to end the marriage as there is no use to take the relationship of this  pure and precious institution leading to the disturbances in the life of both, as no marriage can be successful for the people living together forcefully.

                   CHAPTER 5: CONCEPT OF MAINTENANCE

The term maintenance states that aged parents, a wife and an in fact must be maintained by the person who owes the responsibility. The concept is based in order to see if one of the partner is in capable of earning then other should help him/her so that the minimum living standard of that individuals should be maintenance. It refers to an amount which a husband needs to make towards the wife either during the subsistence of marriage or divorce or they are living separately. Where maintence is not only basic elements to survive but also to maintain it with dignity plays an effective role. where the dependent partner should be maintained as it is important because he / she does not have an independent source to survive. It refers to the quantum of the amount it is not specifically defined in the act nor by the court but might be determined on the basis of facts and circumstances .as well as the financial status of independent individuals.

However with the change in the development and social needs there are certain issues raised in the present world today and will be discussed further  in the topic.

There are 3 different provisions that are based on maintenance mainly to wife or in certain cases to husband as well.

1. Provision under code of criminal procedure 1973: according to section 125 of the act the term maintence plays an important role because according to it when the wife is legally divorced and neither remarried again. In such as case the husband is liable to pay the maintenance for the same. but if she herself involve in the adultery or has separated from mutual consent then maintence wouldn’t be granted.
2. Provisions under Hindu marriage act 1955: which defines the kinds or the types maintence and they are been granted. Section 24 of the act tends to provide the interim maintenance.
3. Hindu adoptions and maintenance  act 1956. it deals with the concept of providing the maintence. It includes the provision.

The above mention acts are independent reliefs which states that the right to claim maintence under H.M. Act is an independent right and is not controlled by the

Provision of Hindu adoption and maintence act. The court’s jurisdiction cannot be oust don the plea that the applicant for maintence under H.M.act if the individual getting maintence under the Hindu adoption and maintence act.

It should be taken into consideration.

*WHILE UNDER HINDU MARRIAGE ACT, EITHER SPOUSE(HUSBAND/WIFE)CAN SEEK THE MAINTENANCE WHILE UNDER CRIMINAL PROCEDURE CODE AND HINDU ADOPTION AND MAINTAINANCE ACT THE RIGHT TO CLAIM THE MAINTANANCE IN THE HANDS OF WIFE.

IT IS IMPORTANT TO UNDERSTAND THE DIFFERENCE BETWEEN ALIMONY AND MAINTENCE

There are certain cases which lead to either of spouse to pay the maintence or alimony according to the mutual understanding of couple and even depending upon the facts and circumstances.

since there  are various cases related too divorce because of the incompatibility issue and temperamental issues.

Where both the terms (maintenance and alimony) considered to be same in terms which ascertained the financial support to the party who is dependent on the other partner.

KINDS  OF ALIMONY /MAINTENCE ARE:

1. TEMPORARY ALI,MONY/  MAINTENANCE: Which is given for a certain period till the spouse recovers his/her financial source of income and is been given to the partner to attain the education or the training skills.

2. PERMANENT ALIMONY/MAINTENANCE: Here the allowance is been given for an indefinite period.

3. LUMP SUM ALIMONY/MAINTENANCE:it is a kind of an one time allowance given to the partner.

PROVISIONS UNDER HINDU MARRIAGE ACT 1955

The court can pass an order for the maintence, it can be an interim maintence or the permanent maintence. It is important to understand the difference between the  them.

INTERIM MAINTENCE	PERMANENT MAINTENCE
The concept of the interim maintence is also known as pendalite maintenance. Where the maintenance is given not only to the claimant but also the expenses of the proceeding.	On the application given by the applicant the order may be passed by the court with respect to the grant of the permanent maintence or the alimony at the time of passing the decree.
The important thing for a claimant is to established that it has no source of income to meet the support and not able to meet up for the expenses of the court. Where the court may order the respondent to pay the petitioner the maintence along with the expenses of the proceeding where the income of the respondent seems to be reasonable but if no income and no means court need not to fix the amount of maintenance. And does not limit the jurisdiction as well.	The court may order the permanent gross sum or monthly or periodically sum for the term not exceeding the life of the claimant ,with respect to the income or the property  the respondent had. Certain factors related to it is been provided that no of dependents, conduct of marriage. Where under the Hindu marriage act in section 25 the special right is mentioned which is not absolute or discretionary where the right of maintence is a statuary right and therefore a party cannot contract himself or herself. Thus the wife can cannot bind herself into the agreement. With the husband to for go the right of the maintenance case of the matrimonial proceeding between them.
In the fixing of the maintence the applicant conduct is immaterial. While granting the maintenance the court take into the account the several means like income means, conduct, and numbers of members to be maintained etc. Where the application for it can be made by either before or after filling the written statement. Where the respondent cannot to defeat the application by just withdrawing in matrimonial clause. It is been ascertained at the final disposal and if the petition is dismissed, no application for interim maintenance is maintainable thereafter.	The court has the power to pass the maintence order even the petition is dismissed. Since the decree is been passed for the same which had a great focus on  the divorce, judicial separation, conjugal rights or is void /voidable in nature. that is why the wife under void /voidable marriage has right to seek the maintenance or alimony for the same. The word any decree is been specifically mentioned under section 25 of the Hindu marriage act.
Case law : RITA MAGO VS V.P MAGO, held that the order for the maintenance and expenses could be passed only during the proceeding not once the conclusion of  trial been made and decree with respect to it is been given.	Case law: RAMESH CHANDRADAGA VS RAMESHWARI DAGA, held by the SC that the bigamous marriage is illegal by the law. But the establishment of the marriage of an individual cannot deny the fact that to grant the maintenance to the person who is financial weak and if done so it would be immoral in nature.

 

CHAPTER 6:  PROVISIONS OF HINDU ADOPTION AND MARRIAGE ACT 1956   DEALING WITH THE LEGAL ASPECTS OF MAINTENANCE ENTITLED TO HINDU WIFE.

RIGHT OF HINDU WIFE TO MAINTENANCE UNDER HINDU ADOPTION AND MAINTENCE ACT

“HALF OF INDIAN POPULATIONS TOO ARE WOMEN,THEY ALWAYS BEEN A STATUE OF DISCRIMINATION AND ARE SUFFERING FRO SLIENCE. SELF SACRIFICE AND SELF DENIAL ARE THEIR NOBILITY AND FORTITUDE AND YET THEY  HAVE BEEN SUBJECTED TO ALL INEQUALITIES , INDIGNITIES AND DESCRIMINATION SAID BY JUSTICE K.RAMA IN MADHU KISHWAR VS STATE OF BIHAR.

Section 18 of the HAMA ACT 1956 states the following:

1. Maintenance of wife : Section 18 of  above mention act provides the maintenance and separate residence of wife. It is applicable Weather married before or after the commencement of this act where a Hindu wife is need to be maintained during lifetime by her husband.
2. A Hindu wife shall be in titled to live separately from her husband if he is guilty of any of the grounds mentioned under section 13 of Hindu marriage act. which includes cruelty ,desertion or even by converting himself into an other religion and if there is any other cause justifying for a wife for living.
3. But it shall not be in titled to a Hindu wife to live separately and claimed maintenance if she herself cease to be a Hindu.

SECTION 19 OF HINDU MARRIAGE AND ADOPTIONS ACT: 

A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance from the estate of her husband or her father or mother or from the son or daughter if any or his or her estate. It wouldn’t be applicable on the father in law as an obligation once the daughter in law cease to marriage.

Maintenance of dependents ,children, aged parents :under section 20,21and 22 of the Hindu adoptions and maintenance states that a maintenance would not only be entitled to wife but also the children, aged parents and dependents this acts deals with the rights of the above all mentioned of the individuals to claim the maintenance from the legal representatives of the diseased.

COURT’S CONSIDERATION WHILE PASSING THE DECREE/ ORDER RELATED TO DIVORCE

Before granting the alimony or the maintenance the court will look into the various things such as age, duration of marriage, the partner’s resources and the employment opportunities. Alimony or the maintenance allowance is terminated in the death of either of the partner remarries, and then the maintenance or alimony allowance gets terminated.

AMOUNT OF MAINTAINENCE:

This act provide the amount of maintenance which is person entitled to it is on the discretion of the court to determined weather any and what maintenance shall be awarded under the provision of the act it will depend upon the act of each case and no exception could be taken amount fixed by the trial court. It can be either in the form of property in which a dependent has a right to receive maintenance out of an estate but their shall be no charge on the estate of the disease unless it is been created by the will of the deceased, agreement between the dependent and the owner or can be by a decree of the court.

Case: GOPALAA PATHAR V/S PARVATI AMAL – In this case it was held that it is difficult to find a distinction between the position of widow who has been obliged to enforce her charge for maintence and that of an abundant wife who is obliged to the same it was held that abundant wife should be paid maintenance of husband shares in the joint family property.

CHAPTER 7: PROVISIONS OF CRIMINAL PROCEDURE CODE, DEALING WITH MAINTENANCE GIVEN TO HINDU WIFE

Section 125 of the criminal procedure code states that remedy for the wives , children and parents to be maintained where they are unable to maintain themselves in case of children it can be a legitimate or illegitimate child where the allowance is payable from the date of the order been passed and if not followed the same the fines and other charges might imposed.

The grant of maintenance wouldn’t be applicable to the women involve in adultery or invalid in cause to live with her husband or living separately without even sufficient cause. And even if the order with respect is been passed then also magistrate himself can cancels the order for the same.

As per certain amendments are been made in year 2001 with respect to the fixation of upper limit on maintenance to be paid by the husband to his wife. As it was difficult to continue with the laws providing maintenance at decade old rate, which was difficult for the women to survive as with uneven amount of maintenance after the shah baano case it was important to provide the right of maintenance to the wife. Therefore it led to the deletion of the words “not exceeding five hundred rupees in whole” held in case manoj vs pushpa.

CASE LAW: CHANMUNIYA VS VIRENDRA KUMAR SINGH

The case stated that partners living together for a long duration as husband and wife , a presumption would arise that it is actually a legal wedlock. The trends now days has evolved among unmarried couples to live together as husband and wife with respect that they have attained the majority and since if eventually end up separately while living together both emotionally and financially they later on sought whether they will be given maintenance or not.

This is one such recent case law leading it was held that even if the men is living with the women without been married then also he had to maintained her and give the maintenance to the women if he deserts her otherwise he will keep on enjoying the other means to be part of relationship disturbing the mental peace of the women by living with other women.

These changes are important and play a major role in framing and developing the mindset of the people which takes time but the small changes are giving the wider aspects and leading to the new changes.

A women is need to be maintained, she has no financial aid  and means to survive even she is married or not the main thing is she and her partner should attain the validity of age. Otherwise  it would lead to mental disturbances in the mind set of women as individual beings by investing herself into both emotionally and even financially too .In the upcoming recent years society is giving equal importance to both the individuals it is not only the women’s who can seek the maintenance but the husband can also seek the maintenance it is mentioned under section 24 and 25 of HMA provided he is not getting the job despite of his extra efforts. Since the basic aim of maintenance to provide the survival or existence of individual when he is in capable to maintain himself it can be both in trim or permanent.

CASE LAW: NIVIYA V.M V/S SHIVA PRASAD :

In this case Kerala high court rejected the husbands claim from his wife of maintenance as per section 24 of HMA it can only be paid when a husband proof he is unable, handicap, incapable of maintaining himself  also it was there was absence of any circumstances and would lead to idealness to husband.

CHAPTER 8:- Mainly because the wife is capable of earning, is it a valid ground to reduce or no maintenance   should be awarded to her ….?

Marriage is considered as the foundation  block  of any society. It is sine qua non for  family peace and stability. Certain philosophizers , socialist and law makers all around the world have given certain rights and imposed certain obligation on both husband and wife which is important for the development of any family. Marriage was considered to be in the old era decided by the god and according to Hindu law is a holly union for the performance of religious duty marriage is not a contract but “SANSKAAR OR SACREVANT”.

In the modern era the desires, priorities everything changes in this changing environment were everything cannot be permanent in nature, a change is required whether  it is  good or be it bad, it has to be because dynamic is an essential element for the changes to take place. The golden days were women wasn’t aware about her rights, she accepted the beating, scolding and adultery along with cruelty of her husband as part of her fortune and life is been changed a way more .the world stating that “all are treated equally with equal rights and opportunities ” a little change helped a number of women’s to raise their voices against the social problems faced by them and one such problem is maintenance.

Working on the one such case and critically analyzing it.

                                 CASE: SHAILJA VS KHOBBANNA

On January 18, 2017 the apex court had stated that merely because the wife is capable of earning is not a reason to reduce the maintenance awarded to her.

The petition in the family court was been filed for claiming a maintenance by the plaintiff  .The matters have been called out twice but there is no appearance on the behalf of the respondent  were the family court had pass the order dated 22.11.2012 and directed maintenance amount to be 15,000 rupees to the plaintiff and 10,000 to the son per month. The major issue related to the fact is that the wife itself was working were by this objection the respondent wanted to appeal for the high court ,and while considering the correctness of the order passed wasn’t accepted on a notion that family court hadn’t considered a wife to working and when she is capable of earning therefore reducing the maintenance to be rupees 6,000 from rupees 15,000and same the amount for the son i.e.  rupees 6,000 from rupees 10,000  , in a way instead of giving every month Rs.25,000 it was Rs.12,000 order passed by the high court keeping in mind the sane notion that she is capable of sustaining herself so she didn’t get the extra amount of maintenance.

There was no as such stratification on the basis that the income of the respondent was Rs. 80,000 per month ( a lecturer) in the college and is the owner of the property 26 acres irrigated land stated by the legal litigator of the plaintiff in the case .but the high court contended that the order was been passed keeping in mind the wife is capable of earning as a result the maintenance of the wife was been reduced from the amount given by the family court.

Where by which the appeal was made in the supreme court in the year 2017 , a bench comprising of JUSTICE MADAN B.LOKUR AND JISTICE PRAFULLA C PANT said that whether the wife is capable of earning  or whether she is actually earning is actually the 2 different aspects that cannot be considered at same time in a same situation

Subject to the fact that the son had already attained the age of the , majority as a result the maintenance was only granted till he would have attained the age of the majority itself. That is why the order passed by the family court was affirmed.

FACTORS DECIDING THE QUANTAM OF MAINTENANCE UNDER CRPC 125

1. It was the case were the plaintiff stated that her husband had neglected to maintain the wife as well as the children ( both the son and the daughter) on November 1999 an application was given by the plaintiffs requesting the court to grant them the interim maintenance during the pendency of proceeding . Where the chief judicial magistrate granted the same at the rate of Rs 300 and but was closed on September 3 , 2001 and the case was adjourn for the arguments . And then this case was transferred to the family court.
2. From the facts and circumstances it was cleared that the respondent himself is working and should grant the maintenance for the same.
3. Maintenance was given to both the women, (wives), children or the aged parents,

Where the granting of maintenance should be there or not was depend on thee income of the respondent were the H.C   had taken or had misunderstood the concept that whether the women is earning or is actually earning  is different thinking but the ground had been given by the highest authority were by the order which was given by the high court wasn’t taken into consideration but they should be given to the or resorting back the order which was given by the family court.

As the importance is to keep in mind the contention that had led and made the changed accordingly. Were it was important to change the mind set of the people were the maintenance it self a word stating  person which is incapable of earning itself but the women’s and children aged  considered as the  venerable section of the society and the protections must be there with this aspect.

Thus the order was passed stating that the order given by the family court should be applicable leading to the understanding of the concepts and what all the contentions which weren’t covered and understood by the high court.

Where by stating that on January 18 2017, the apex court has held that: merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her.

This is considered as one of the landmark judgment stating that the wife merely is earning is not a valid reason to reduce the maintence given to her since she herself not only have to maintain her own but also her offspring as a result leading to a lot of expense and any how it is difficult for the her to give the best despite of a lot more emotional imbalance that is why it is important for the court to understand both the pros and the cons of the case depending on the facts and circumstance and including the evidences as well as other aspects.

Thus order of high court was rejected and family court order was given as an awarded by the apex court.

                           CHAPTER 9: CONCLUSION

The marriage is a bond between  the 2 individuals who are perfectly imperfect there are certain adjustment which are need to be made by both the parties and it is not a one man relation where wife is capable for only for the needs and the means of the husband and just to full fil his requirements . it also the duty of the husband to protect the wife for the same . the term institution is not only given by the name that was given it is been given sating the sacraments of adjustments in any form by both the spouses for each other.

In the Hindu traditions there are number of concepts visualizing both the ideal husband to be and a ideal wife to be . One such example to be taken from the state of chit or to protect the outraging  modesty of the women they themselves performed Johor which requires a lot more spirit and courage there might be the implementation of new laws but during the puranic period all these crimes which existed today were there during that time but the difference was the kind of punishments that an individual was liable in today’s world and was liable during that period.

The law makers play an important role , there existence only led to the development of law but still the implementation of it took time . the dynamic world is the term which lead to changes which states that what is there needs to be blown away .

It is the perception of every individual that how they want to treat their wives as their slaves or a respected personality. A women is not a toy once its use is finish its has to be changed they do have the rights in the democratic society we live in where the education to her is important leading the changed in every aspect of the society it is important to lift up them also let the glitters in them glorifies their essence in this world full of male elements.

There are various new provisions related to the women’s had been made , there rights are been given priorities they are treated equally even when the people still outrage them , domestic abuse them and rape them still there is existence of their life do we ever realize that women while making wonders in other person life from being a daughter to the father , a sister to her brother and wife as well as mother to her husband and children requires there importance. Despite of all these efforts we are still lacking behind because the sense of feminisms is somewhat left behind were by leading to the importance of the women into is considered fully a waste.

With the changes that are made with the time she had been given the title of HOME MAKER a person who works for free and without even demanding any kind of holiday , they were not aware about the changes and their rights associated in constitution and even when the changes took place . it took another turning point that even she is capable of earning she doesn’t require any maintenance she is able to maintain herself but in the case of kamla devi vs sita bai she can claim the same.

It is not that we are overlooking the side of the men but the world full of orthodox mentality it keeps in the mind of individual specially the youth to protect the women there are certain instances were women themselves file wrong or any other fake case against the men so to seek maintenance so both side of the boat should be considered equally important not only the one side one aspect but both  it is important as the development of individuality of the individual as him/her own .

“MARRIAGE CAN IMAGINE AS A CYCLE WERE 2 TYRES OF IT DENOTES THE HUSBAND AND WIFE  IF ANY ONE FALLS THEN THE CYCLE IS OF NO USE THAT IS WHY IT IS IMPORTANT TO MAINTAIN THE SAME BALANCE AND SAME TRUST RESPECT JUST BY FILLING THE AIR IN THE CYCLE BUT NOT CHANGING THE TYRE  AND EVEN IF IT DOESN’T WORK OUT NOT TO WORRY JUST CHANGE THE PATHWAYS WITH LAW REMEDIES ASSOCIATED WITH IT ”

“BIRDS HAVE WINGS THEY FLY WOMENS REQUIRE FREEDOM FOR WHICH THEY CRY, BIRDS ARE TRAPPED IN CAGES IN THE WORLD WOMEN IS TRAP FULL OF MEN WHO MOLEST AND OUTRAGES THEY ARE PURCHASE FOR MONEY ,SHE IS MADE TO WORK FOR MONEY  , CONSIDERING HER ONLY A TOOL FOR YOUR PLEASURE  IT IS IMPORTANT TO PROTECT HER ONLY TO PROTECT HER NOT TRAPPING HER IN CAGE BECAUSE SHE IS OUR REAL TREASURE ”

Lets change the world and over come all the changes that are not essentials and leading to the disturbance in the society shall we..

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¹ www.businessdictionary.com

² Defined as per Hindu marriage act  1955 the applicability of act

³ Kinds of Vedas defined during the Vedic period in Vedic puranas

⁴ St is abbreviated as state and case in year 1980,supp.s.c.c 720

⁵ Mitakshara and dayabhagha school were considered as an essence of Hindu law

⁶ www.businessstudies.com

⁷  1981,s.c.c 689

⁸ Air 1966.all 315

⁹ A.I.R 1955 SC 206

¹0 1924  51.I.A 368

¹1 Defined under section 5 Hindu marriage act 1955

¹2 Based on the Hindu marriage act 1955 defined in different sections where invalid marriage is not be defined.

¹3 Ground of divorce section 13 of Hindu marriage act 1955.

¹4 Prior to the development of divorce a right of nullity of marriage

¹5 This right  added in the 1976 amendment act and has conferred with retrospective effect.

¹6 Defined under section 13b of the Hindu marriage act.

¹7 Defined under section 10 of the Hindu marriage act 1955.

¹8 This concept is defined under section 9 of Hindu marriage act 1955

¹9 Defined under section 125 of crpc

²0 Abbreviation for Hindu marriage act 1955

²1 Defined under section 24 of the Hindu marriage act 1955

²2 Defined under section 25 of the Hindu marriage act 1955.

²3 Mention on www.legal services.com

²4 Defined under section 23 of Hama act 1956.

²5 Abbreviation used for Hindu marriage act 1955

²6 Case decided in the year 2017, op(fc) no. 26 of 2015.

²7 Criminal appellate appeal  nos 125 126 of 2017

²8 A senior professor in college

²9 Abbreviation for criminal procedure code

³0 An act of burning themselves I n fire instead of giving them in other persons hand .

³1 http://www.indiankanoon.org  1975 case

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AUTHORED BY : 

Ishani Chhaudha | BBA LL.B(H)

AMITY LAW SCHOOL, NOIDA

 

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