A Comparative Study on Maintenance Under CRPC And Personal Laws

KEY TAKEAWAYS

• Maintenance is an obligation of the spouse in case of matrimonial failure.
• Maintenance obligation exists not only during a marriage but also after its termination.
• The offences which amount to domestic violence under the Code are any one of the following offences: Offences against the person: Murder, attempt to murder, causing grievous injury, causing injury, wrongful restraint, causing hurt, kidnapping, wrongful confinement, assault or use of criminal force against a woman or any other person,
• The Protection of Women from Domestic Violence Act, 2005 is an Act which governs the rights of women who are victims of domestic violence by their spouses or other family members or relatives.
• There are certain general principles that are applicable to maintenance under all personal laws

INTRODUCTION

Maintenance is an obligation of the spouse in case of matrimonial failure. Maintenance is a crucial consideration for the judges while pronouncing the verdict. It has been considered as a sign of love and concern towards the spouse who is unable to take care of his/her own necessities.

Moreover, maintenance obligation exists not only during a marriage but also after its termination. The right to maintenance continues even after divorce or death of either spouse as long as such termination is on unproven grounds and not on proven grounds like adultery, drinking or gambling etc. But since this right cannot be enforced without getting it recorded under Section 27 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’), many a time people face difficulties in enforcing their right to maintenance even after divorce or death of their spouse. Even if there are personal laws for different communities, these often do not provide for a complete code on rights to maintenance even after termination of marriage because they look at each case on its own merits.

In this article, we will be discussing maintenance obligations under The Protection Of Women From Domestic Violence Act, 2005 (hereinafter referred to as ‘The Act’) and The Dissolution Of Marriage Acts (hereinafter referred to as ‘DAMA’).

CRPC

The Code of Criminal Procedure (‘the Code’) is an Act which governs how crimes are investigated, prosecuted, tried and punished. The Code is applicable to both married and unmarried couples if there is an allegation of domestic violence and if the violence amounts to a cognizable offence. The offences which amount to domestic violence under the Code are any one of the following offences: Offences against the person: Murder, attempt to murder, causing grievous injury, causing injury, wrongful restraint, causing hurt, kidnapping, wrongful confinement, assault or use of criminal force against a woman or any other person, whoever commits any offence described above is guilty of an offence which amounts to domestic violence. Offences against the property: Theft, mischief by fire or any explosive substance, or any attempt to burn any property, robbery, or dacoity. Offences against the dignity of a woman: Any act or omission resulting in the damage or destruction of property or the removal of the natural growth of any person, interfering with the mental or physical health of any person, or the disrobing or sexually harassing or sexually exploiting any person, or the wrongfully restraining any person, or the wrongfully confining any person, or the wrongfully exploiting any person, or the wrongfully administering or wrongfully using any drug, or any attempt to do any of the above acts.

DAMA

The Protection of Women from Domestic Violence Act, 2005 is an Act which governs the rights of women who are victims of domestic violence by their spouses or other family members or relatives. It is also applicable to unmarried women and even in cases of divorce. The offences which amount to domestic violence under the Act are any one of the following offences: Offences against the person: Attempt to cause death or any other harm, or wrongful confinement or restraint, or causing mental or physical harassment, or threats or intimidation, or wrongful restraint or wrongfully confining any woman or any other person. Offences against property: Wrongful restraint or confinement, or intimidation, intentionally or knowingly causing damage or destruction of property or removing the natural growth of any person, or interfering in any way with mental or physical health. Offences against the dignity of a woman: Wrongfully restraining any person, wrongfully confining any person, attempting to do any of the above acts, or sexually harassing or sexually exploiting any person, or disrobing, or wrongfully or intentionally administering or wrongfully or intentionally using any drug.

MAINTENANCE UNDER PERSONAL LAWS

After marriage, a husband is expected to take care of his wife’s health and well-being. This includes providing her with all the necessities of life, including food, clothing and shelter. If the husband fails to do so, the wife can approach the court for maintenance under the matrimonial laws of her community, i.e., DAMA or CRPC Moreover, after the termination of the marriage, either by divorce or by the death of the spouse, the former husband is bound to pay maintenance to the former wife and the same is applicable to other relations as well.

However, there are certain general principles that are applicable to maintenance under all personal laws. These include the following: -

I. The court has the discretion to fix the amount of maintenance payable to the wife/husband or any other relations as per the facts and circumstances of the case and the income of the spouse.

II. In case of divorce, the court has the power to direct either spouse to pay maintenance to the other until the decree of divorce is made absolute which usually takes 6 months.

III. In case of the death of the spouse, the court has the discretion to direct the heir/successor of the deceased to pay maintenance to the dependants of the deceased.

RELIEF AGAINST HARASSMENT BY FAMILY AND RELATIVES

Many a times, after the divorce or death of the spouse, the family members of the husband or the wife, or relatives of either party try to harass or pressurize the other person by demanding dowry or maintenance etc.

For such kind of harassment, the Act provides for the following relief: -

• If a person is threatened or harassed by any family member or relative, he/she can get an order from the court for protection. This order is called an order for ‘restoration of peace’.
• The Court can pass an order directing the person who is causing the harassment or threat to desist from doing so.
• If a family member or relative fails to obey the order of the court and continues to harass or threaten the person, the court can impose a fine of up to 10,000/
• and/or imprisonment for a term which may extend to one year.

RELATED CASES

• SavitabenSomabhaiBhatiya v. State of Gujarat – [Appeal (crl.) 399 of 2005]

Despite being secular, this law has a gender-specific element. Only the woman may request maintenance under this statute; the husband is not eligible. It's also important to consider how the word "wife" is to be understood. In accordance with the ruling of the Supreme Court in SavitabenSomabhaiBhatiya v. State of Gujarat, the term "wife" used in Section 125(1) only refers to a wife who is legally wed.

• D. Velusamy v. D. Patchaiammal and Chanmuniya v. Virendra Kumar Singh Kushwaha –[(2010)10 SCC 469]

The Supreme Court ruled in the cases of D. Velusamy v. D. Patchaiammal and Chanmuniya v. Virendra Kumar Singh Kushwaha that a woman who was in a marriage-like relationship could still make a maintenance claim under the Protection of Women from Domestic Violence Act, 2005, even though she was not considered to be a legally wedded wife under Section 125.

• Kanchan v. Kamlendra– [1993 1 CCC 525]

According to the ruling under this case, a husband can only get support from his wife if he is physically or psychologically unable to earn a living on his own.

• Manokaran,v. Devaki– (AIR 2003 Mad 212, I [ (2003) DMC 799, (2003) 1 MLJ 752]

If it becomes apparent at any point throughout the case that the wife does not have enough independent income, she is entitled to maintenance. The wife just needs to demonstrate that she lacks a sufficient and independent source of income. As was evident in the situation cited above, the husband must also demonstrate that he is unable to work.

• Dhruba v. Chitra-[AIR 1988 Cal 98, 92 CWN 54]

According to the ruling in this case, maintenance must also ensure that the claimant is as comfortable as the other spouse, as opposed to only covering basic needs. As a result, the maintenance's quantum must also be set appropriately.

• Rameshwari v. Ramesh Chandra RampratapjiDaga R. Chandra Daga– [Appeal (civil) 1774-1775 of 1775]

It was decided that all orders issued in accordance with Sections 9 to 13 of the Hindu Marriage Act, 1955, fall under the definition of "at the time of passing any decree." As a result, the Court has the authority to order maintenance at the moment of any decision that dissolves a marriage.

CONCLUSION

Maintenance is an obligation and a duty of the spouse. Its importance cannot be overlooked, since it is a sign of love and concern towards the spouse who is unable to take care of his/her own necessities.

Moreover, maintenance obligation exists not only during a marriage but also after its termination. The right to maintenance continues even after divorce or death of either spouse as long as such termination is on unproven grounds and not on proven grounds like adultery, drinking or gambling etc.

Even though maintenance is a crucial consideration for the judges while pronouncing the verdict, many a time people face difficulties in enforcing their right to maintenance even after divorce or the death of their spouse. This is because, even if there are personal laws for different communities, these often do not provide for a complete code on rights to maintenance even after termination of marriage because they look at each case on its own merits.