A controvesy - III Level of defense in Maintenance to Wife !

Arun ji,

Please explain the difference between Desertion and Constructive Desertion?

@ Rao

Your que. is interesting and for the same kindly refer to www.lawcommissionofindia.nic.in/51-100/Report59.pdf

DESERTION: This has been added as a ground for divorce by the Amendment Act, though previously it was a ground for judicial separation. It includes the desertion of the petitioner by the other spouse, without any reasonable cause and without the consent of that other spouse. Without previous cohabitation, there can not be any desertion. It is not merely the withdrawal from a place but also, from the state of things. Under the Hindu Marriage Act, desertion fall under following heads:

- Actual desertion
- Constructive desertion and
- Willful neglec

Some early reference to above three terms:

Actual Desertion - factum of desertion, animus deserdendi, Without reasonable cause, without consent, 2 yrs must have passed.

Re.: Lachman Vs. Meena - 1964 - Wife was from rich family. She was required to live in joint family of husband. She went back to parents. Kept making fake promises of return but never did. Held desertion.

Re.: Jagannath Vs. Krishna  - Wife became brahma kumari and refused to perform marital obligations. Held desertion.

Re.: Bipinchandra Vs. Prabhavati SC 1957 - Husband went to England. Husband's friend came to house in India. Husband came back. Alleged affair, which was refuted by wife. Wife went to her parents for attending marriage. Prevented her from coming back. Held no desertion by wife.

Re.: Sunil Kumar Vs. Usha 1994 - Wife left due to unpalatable atmosphere of torture in husband's house. Held not desertion.

Constructive Desertion - If a spouse creates an environment that forces the other spouse to leave, the spouse who created such an environment is considered deserter.

Re.: Jyotishchandra Vs. Meera 1970 -  Husband was not interested in wife, he was cold, indifferent, s*xually abnormal and perverse. Went to England. Then came back and sent wife to England for PhD. When wife came back, did not treat her well. Abused her and his inlaws physically. Wife was forced to live separately. Held desertion by husband.

Willful Neglect - If a spouse intentionally neglects the other spouse without physically deserting, it is still desertion.

Re.: Balihar Vs. Dhir Das 1979 - Refusing to perform basic marital obligations such as denial of company or intercourse or denial to provide maintenance is willful neglect.

Well, under the Hindu Marriage Act, ‘desertion’ is one of the grounds for seeking divorce. Hon'ble SC had, in certain judgments, held that desertion amounts to cruelty. The Supreme Court (SC) has ruled that a spouse merely living separately does not amount to desertion. The aggrieved other spouse must prove that the estrangement wasn’t due to ill-treatment meted out by him or her.

Desertion, a term which hasn’t been defined in the marriage law, the judges said. “Actually, such a definition is not possible,” the bench said.  “In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed cruelty,” the bench said.

“Cruelty in matrimonial behaviour defies any definition and its category can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any pre-determined rigid formula,” the apex court explained.

“Cruelty in matrimonial cases can be of infinite variety — it may be subtle or even brutal and may be by gestures and words. The categories of cruelty in matrimonial cases are never closed,” the judges observed.

Dear Arun ji, 

Thanks, for the Information on Desertion, Coming to your dissemination of information about Family Law is concerned it is beyond many on this Website and even i go one step ahead and say your knowledge about Family Law is far more than any idiotic & (Dummy) Lower Court Judges.

Coming to your question on "Do in India especially Husbands agree to above three Levels?"

I would endorse the above view about "3 Levels of defense in maintenance"

Rao garu what to say...u all are my real teacher here
 

on lighter note.........


I also endorse Colgate toothpaste that does not mean my teeth are like Orpit ha ha aha

arun ji marraige is a legalised form of subtle  prostitution . in some personal laws its open prostitution also . and maintenance is the professional fees.

@ Ms. Kaur

I agree 100% as wife herself asks for "compensation"...........compensation for what ? to have provided "free service" in happy days and when kicked out they say pay from back date "compensation"....... the day is not far when they will be standing at GT Road and soliciting business from truck drivers......it is already the hapening trend in mushrooming satellite towns........... see it with your wide open eyes...... 

The word used is ‘maintenance’ in the acts, not compensation.

Not all, but those who have no other source of income and dependent financially on her husband are entitled for maintenance.  Maintenance is very different than compensation.

The Multple Maintenance Laws prevailing in India is like a Bengal Tiger, on which Govt. is riding for all these years.


If Govt gets down from the back of the tiger, the tiger will eat it and if it does not get down from its back, it will keep taking losses in passing other laws and implementing other biased policies.


By 2010, Feminists have completely decoded Indian mens initiative to educate larger sections of unfortunate Indian mens and its methods. So, they opened multiple fronts with a large number of bills and flooded the media expecting Indian men activisits members to chase every law they talk about in media and end up spreading thin. Examples, SHB, s*xual Assault laws, review of DV act, punishment to men for lying about income, irretrivable break down of marriage and many more.


The only common thread in all these is money and institutionalising of extortion (calling it compensation, alimony, property rights, financial security to kidnapped child and many mor nomeclature to be presented to media before X-mas '10 etc).


So, once men fully focus on Complete Elimination of all Kind of "Monetary Parasitism," our one stone will hit 10 birds.


Is it not so that today a woman can be a "bus conductor", "post woman", "anganwadi care giver", "money lender", a "panchayat member", "neighbourhood enterpreneur - MLM / Amway kinda", "cab driver, "barber", frontline active duty soldier, a "police woman" and live life with self respect. All these in context to rural women and next gyan will come shortly on urban women kindly have patience......


"The husband can be told by courts to provide a 3 year loan to wife, in case she has no job is a far fetched pragmatic offer by Indian men to Govt. to resolve these contentious issues once for all."


BTW, please grill to feminists that Maintenance and Alimony are eliminated in many western countries if the marriage is just a couple of years old.


The same will happen in India and that will be the best response to feminists from a aam adamai.


Amen..............

Now a que.: Do in India especially Husbands agree to above three Levels?

I think, hardly any one is sure.Right?

@ Dr Jogeshwar ji,

Good to see you come back to LCI forums after a mini gap.

I strongly believe and since you asked so you too strongly believe in these three levels of defense and so do other three ld. readers which is quite encouraging result so far :-)

Rgds.

D. Arun Kumar

Now please add Level- IV,No maintenance to wife if husband is unemployed.

Unemployed man can't be forced to pay maintenance to wife : HC

An unemployed man cannot be forced to pay maintenance to his estranged wife, the Delhi High Court on Friday ruled saying that in an era of equality of s*xes a person cannot be compelled to maintain others if spouses are on an equal footing.

"Under prevelant laws, a husband is supposed to maintain his unearning spouse out of the income he earns. No law provides that a husband has to maintain his wife, living seperately from him, irrespective of the fact whether he earns or not," Justice S.N. Dhingra said.

The court passed the order while setting aside the order of a family court which had directed the husband, who was unemployed, to pay a maintenance of Rs 5,000 to his wife.

The court said the wife, who was equally qualified as her husband and was working in an MNC, cannot ask for maintenance from her husband who lost his job.

"Court cannot tell the husband that he should beg, borrow or steal but give maintenance to his wife, more so when the husband and wife are almost qualified and capable of earning and both of them claimed to be gainfully employed before marriage," the court said while granting relief to the husband who was an NRI working in Angola in Africa.

"We are living in an era of equality of s*xes. The Constitution provides equal treatment to be given irrespective of s*x, caste and creed. An unemployed husband who is holding an MBA degree cannot be treated differently to an unemployed wife who is also holding an MBA degree.

"Since both are on equal footing, one cannot be asked to maintain the other unless one is unemployed and the other is employed," the court said.

An unemployed man cannot be forced to pay maintenance to his estranged wife, the Delhi High Court on Friday ruled saying that in an era of equality of s*xes a person cannot be compelled to maintain others if spouses are on an equal footing.

"Under prevelant laws, a husband is supposed to maintain his unearning spouse out of the income he earns. No law provides that a husband has to maintain his wife, living seperately from him, irrespective of the fact whether he earns or not," Justice S.N. Dhingra said.

The court passed the order while setting aside the order of a family court which had directed the husband, who was unemployed, to pay a maintenance of Rs 5,000 to his wife.

The court said the wife, who was equally qualified as her husband and was working in an MNC, cannot ask for maintenance from her husband who lost his job.

"Court cannot tell the husband that he should beg, borrow or steal but give maintenance to his wife, more so when the husband and wife are almost qualified and capable of earning and both of them claimed to be gainfully employed before marriage," the court said while granting relief to the husband who was an NRI working in Angola in Africa.

"We are living in an era of equality of s*xes. The Constitution provides equal treatment to be given irrespective of s*x, caste and creed. An unemployed husband who is holding an MBA degree cannot be treated differently to an unemployed wife who is also holding an MBA degree.

"Since both are on equal footing, one cannot be asked to maintain the other unless one is unemployed and the other is employed," the court said.

Mr Vyas,

Yes, I could have but with respect to Justice Dhingra I would rather wait 90 days before adding it here. Just today we went to Apex Court and filed "caveat" on this same quoted case (offcourse from husband side). The wordings in Lordship Judgment is generic and "socio-practical" (if there is any such word ha ha ) is my opinion though the husband got 90 days benefit and actually he is un-employed as I know him personally and moreover he already has Delhi HC appointed LC / CC report but still I feel the said Judgment is more or less "generic and philosophical views of a single Bench" and may be not "generic Legal" as we say "binding Legal pan India" is my understnding and I would still wait 90 days more before changing my opinion. Just remind me on this same post of the Apex Court (if any) verdic recall for common consumption if any on your quoting of same issue!

TIMES OF INDIA, DELHI 14.05.2009

‘Woman who can work needs no maintenance’
Smriti Singh | TNN

New Delhi: Can a “well qualified” woman capable of getting a decent job seek maintenance from her “not so qualified” husband? The trial court says no.
Dismissing the concept of women being the “weaker s*x” and urging them to work rather than being dependent on their “pati parmeshwar”, a district court rejected the plea of a woman seeking maintenance from her mentally disturbed and unemployed husband.
“True, an able-bodied person can be expected to maintain himself and family members dependent upon him. The same is equally applicable to his wife. In an advanced society like ours, a woman who is young, healthy and well-versed cannot afford to sit idle, particularly when facing difficult circumstances, as the applicant in this case,” additional district judge Rajender Kumar Shastri said.
“According to Hindu mythology, a woman had to remain dependent her entire life. All such notions have disappeared into oblivion now. Women are not parasites. The concept of “pati parmeshwar” has already been jettisoned and is substituted by equal partner in life. We cannot allow this better half to remain a protege of her male partner for life,” ADJ Shastri added.
Seeking a maintenance of Rs 10,000 per month along with Rs 21,000 as litigation expenses, the woman had knocked on the court’s door after her husband had filed a divorce case in the court alleging that his wife was having an affair with an another man and was treating him cruelly.
In her petition, the woman said she had no independent source of income and was dependent on her father for survival. She also claimed that her husband was employed and was earning Rs 20,000 per month as salary.
Her husband denied all the claims. Filing a reply through his counsel M K Magan, the man claimed that he was earlier working in some shop and earned a meagre salary. After the turbulence in his married life, he lost his job. He alleged that his wife had abandoned her son also and eloped with another man.
He also claimed that he was receiving treatment at the Institute of Human Behaviour and Allied Sciences, Shahadra. During deliberations, the court found out that the applicant was unemployed. The court also noted that the woman was a graduate and her husband had only cleared his senior secondary examination.
Cautious about not “pre judging” the case at the initial stage, the court after hearing the arguments, noted that it could not shut its eyes from the allegations made by the husband which were supported with evidence. “It will be unjust to emburden the husband to pay maintenance to the wife who is equally able bodied and rather more qualified and competent to earn,” ADJ Shastri said while dismissing the application.
‘WIFE EQUALLY ABLE’
What the judge said
It will be unjust to burden the husband to pay an amount of maintenance to wife who is equally able and rather more qualified and competent to earn With development of society, women are not parasites upon male members of their family The vestiges of male chauvinism are being weeded out. We cannot allow this better half (woman) to remain protege of her male partner forever NOT THE FIRST TIME
 

Do you agree with the observations of the learned judge given below?

.“True,an able bodied can be expected to maintain himself and family members dependent upon him. The same is equally applicable to his wife. In an advanced society like ours, a woman who is young, health and well-versed can not afford to sit idle, particularly when facing difficult circumstances, as the applicant in this case.” “According to Hindu mythology,a woman had to remain dependent her entire life. All such notions have disappeared into oblivion now. Women are not parasites.The concept of “pati parameshwar” has already been jettisoned and is substituted by equal partner in life. We can not allow this better half to remain a protégé of her male partner for life.” (The Times of India(DelhiEdition), dated 14/5/2009,page4)
Created by: Jogeshwar
10 votes (83%)
Yes.
2 votes (16%)
No.
12 votes
total.