Since ancient times, women have been considered as the weaker sex. It was realized by the Governments throughout the world in early 1980s that properly steps are required world-wide to give them equal status and opportunities. There was an international convention following which Indian Govt. also ratified its (then) existing laws. Then came series of laws protecting the rights of women and came an era of “women liberation”.
Although times have changed and even society has come into a new generation altogether, those laws still exist "as is". Even when there is a loud and apparent hue & cry amongst the society, due to rampant misuse of these laws, the Govt. has decided to prolong the agony of victims of pro-women laws by introducing an amendment in the Hindu Marriage Act (1955) and Special Marriage Act (1954) by Marriage Act (2012).
With this recent amendment, the Govt. plans to introduce a compulsory 50% share for the divorcee wife in residential property of her ex-husband. Additionally she can claim her right and share in the remaining movable and immovable property after due consideration and permission of the courts.
Before commenting anything on this amendment we should first go through the existing laws in this context. Relevant provisions, sections and sub-sections have been cited below for reference:
The Hindu Marriage Act,1955
Section 13. Divorce.-
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
1[(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]
1[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]
1[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
2[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
COMMENTS
Consideration of facts
Institution of marriage occupies an important place and role to play in the society in general, therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straight jacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case; Chetan Dass v. Kamla Devi , AIR 2001 SC 1709.
Cruelty
(i) Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty; Maya Devi v. Jagdish Prasad , AIR 2007 SC 1426.
(ii) Making false allegations against husband of having illicit relationship and extramarital affairs by wife in her written statement constitute mental cruelty of such nature that husband cannot be reasonably asked to live with wife. Husband is entitled to decree of divorce; Sadhana Srivastava v. Arvind Kumar Srivastava , AIR 2006 All 7.
(iii) The expression “Cruelty” as envisaged under section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Intention to be cruel is not an essential element of cruelty as envisaged under section 13 (1) (ia) of the Act. It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to live together; Neelu Kohli v. Naveen Kohli , AIR 2004 All 1.
(iv) The levelling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty; Jai Dayal v. Shakuntala Devi , AIR 2004 Del 39.
(vi) Due to the criminal complaint filed by the wife, the husband remained in jail for 63 days and also his father and brother for 20 to 25 days. Therefore, even though the case of cruelty may not have been proved but as the facts emerging from the record clearly indicate that the living of the two as husband and wife would not only be difficult but impossible, the court has no alternative but to grant a decree of divorce; Poonam Gupta v. Ghanshyam Gupta , AIR 2003 All 51.
(vi) Solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce rather the behaviour of the other party has to be persistently and repeatedly treating the other spouse with such cruelty so as to cause a reasonable apprehension in the mind of the husband/wife that it will be harmful or injurious for him or her to live with the other party. The expression “persistently” means continue firmly or obstinately and the expression “repeatedly” means to say or do over again; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261.
Intention to bring cohabitation permanently to an end
Where there is a breakdown of the marriage, this in itself should be a cause for which divorce should be available under law. It would then be immaterial to inquire as to which of the two parties is at fault; Swaraj Garg v. K.M. Garg , AIR 1978 Del 296.
Scope
Section 13 does not envisage luxury. The provisions are meant to preserve the meaning of life. Personal laws may be different from laws of equity nonetheless they are based on equitable judicious perception for appreciation of facts and circumstances in their light; Ram Lakhan v. Prem Kumari , AIR 2003 Raj 115.
The Hindu Marriage Act,1955
23A .Relief for respondent in divorce and other proceedings. -
1[23A. Relief for respondent in divorce and other proceedings. —In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]
The Hindu Marriage Act,1955
24. Maintenance pendente lite and expenses of proceedings.-
Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable:
1[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]
COMMENTS
Consideration for amount of maintenance
The court is required to take into consideration the income of the parties before deciding the quantum of the interim maintenance. The court has to keep in view the need of the applicant and paying capacity of the non-applicant; Padmavathi v. C. Lakshminarayana , AIR 2002 Kant 424.
Consideration for fixing maintenance pendente lite
(i) As far as maintenance pendente lite and expenses of proceedings are concerned, no distinction has been made under section 24 of the Act relating to right of a wife for maintenance preferred under section 12 or 13 of the Act; Sandeep Kumar v. State of Jharkhand , AIR 2004 Jhar 22.
Entitlement for maintenance
(i) During the pendency of the divorce proceedings at any point of time if the wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite; Manokaran v. Devaki , AIR 2003 Mad 212.
(ii) Section 24 entitles not only the wife but also the husband to claim maintenance pendente lite on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood. Held that since the husband was able-bodied and was not mentally ill and only because his business had closed down, he could not be granted any maintenance, it being opposed to spirit of section 24 of the Act; Kanchan v. Kamalendra, AIR 1993 Bom 493.
Maintenance & expenses during pendency of proceedings
Provisions of section 24 of the Hindu Marriage Act provides for support to be given by the earning spouse in favour of non-earning spouse during the pendency of proceedings before the court. Therefore an application seeking for reimbursement of medical expenses incurred by a dependent spouse is definitely one which can be allowed in an application under section 24; R. Suresh v. Chandra M.A. , AIR 2003 Kant 183.
Scope
(iii) The direction by the Civil Court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite under section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioners own income and the income of the respondent, it may seem to the Court to be reasonable; Captain Ramesh Chander v. Veena Kaushal , AIR 1978 SC 1807.
The Hindu Marriage Act,1955
25. Permanent alimony and maintenance.-
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall 1[***] 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 as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant 2[, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, 3[it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].
COMMENTS
Income of husband
While determining the quantum of permanent alimony the income of the husband has to be kept in mind; Ira Das v. Ramesh Ranjan Mallick , AIR 2003 Ori 62.
Second marriage of husband
Once the husband has contracted a second marriage, the first wife is entitled in law to claim for separate residence and maintenance; Ashabi B. Takke v. Bashasab Takke , AIR 2003 Kant 172.
The Special Marriage Act, 1954
36. Alimony pendente lite. -
Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for the r support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as having regard to the husband's income, it may seem to the court to be reasonable.
The Special Marriage Act, 1954
37. Permanent alimony and maintenance. -
(1) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband's property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband's property and ability and the conduct of the parties, it may seem to the court to be just.
(2) If the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the court to be just.
(3) If the district court is satisfied that the wife in whose favour an order has been made under this section has remarried or is not leading a chaste life, it shall rescind the order.
The Code of Criminal Procedure, 1973 (CrPc)
125. Order for maintenance of wives, children and parents.
(1) If any person leaving sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
Explanation. For the purposes of this Chapter.
(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
3[(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]
Explanation.
If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an 4allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
The Constitution Of India
Article 15. Discrimination Restrictions
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]
2[(5) Nothing in this article or in sub-clause ( g ) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]
Now as we have successfully gone through the relevant provisions dealing with the subject, we may now divulge into the question: Who is entitled for alimony/maintenance & why?
Let us first look into the Fundamental Law: Constitution of India.
As per Article 15 of Constitution of India, no one can discriminate anyone based on gender, religion or caste etc. However there is another sub-clause to Article 15 i.e. Article 15(3) which permits States to make special provisions for children & women. This signifies that when the Constitution was drafted, the basic motive was to eradicate discrimination based on gender and also there was intent to uplift children & women. However, there is no such provision, even till date, which permits to discriminate men on the name of upliftment of women. A Sub-Clause in any law book cannot supersede its own Parent Section. Hence, to give facilities or to make special provision, as per sub-section Article 15(3), for upliftment of women, the Parent Article 15 of Constitution cannot be neglected. Any provision or law made as per Article 15(3) has to be first in consonance with Article 15. No provision can be made for women, solely reading Article 15(3) in isolation.
Now we look into the other provision which deal with “Divorce”. After a deliberate and through study of the existing laws, we find that Divorce is an act of legal permanent detachment of husband and wife from each other. This is caused due to various reasons as stated hereinabove (in various sections). The reasons compel the aggrieved spouse to live separate from the other spouse. This has been well established by these laws that any of the spouse i.e., either wife or husband can seek Divorce and both have the right to live peacefully. There is no provision which bars the husband from taking a divorce on the same ground on which wife is entitled to take divorce. This shows that Divorce is a right of the aggrieved spouse so that he/she can live his/her life in peace and harmony.
Cruelty, finds a special mention under Section 13 of HMA, 1955,-
Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
1[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]
Cruelity has been specially explained in the comments section and many successive cases have been dealt with by the Hon’ble Supreme Court of India, which defined this term. For example, in the comments
(iii) The expression “Cruelty” as envisaged under section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Intention to be cruel is not an essential element of cruelty as envisaged under section 13 (1) (ia) of the Act. It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to live together; Neelu Kohli v. Naveen Kohli , AIR 2004 All 1.
This goes to show that while granting a Divorce decree, every court has to be convinced about the cruel acts of the respondent. Without any proof of cruelty or any other proof which could be admitted under other sub-sections of Section 13, a divorce decree cannot be granted. If we read all other sub-sections other than sub-section (ii) of Section 13, HMA(1955) we would find that all other sub-sections are general and are obvious reasons which lead to break-down of marriage. Only sub-section (ii) of Section 13 of HMA(1955) deals with Cruelty and its scope has been widened so much that even mental cruelty has come under its ambit and now over 90% of divorce in India are being granted under this sub-section.
In one of its judgment, Hon’ble Supreme Court observed that, (iv) The levelling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty; Jai Dayal v. Shakuntala Devi , AIR 2004 Del 39.
Also in another case the Hon’ble Court opined that (vi) Due to the criminal complaint filed by the wife, the husband remained in jail for 63 days and also his father and brother for 20 to 25 days. Therefore, even though the case of cruelty may not have been proved but as the facts emerging from the record clearly indicate that the living of the two as husband and wife would not only be difficult but impossible, the court has no alternative but to grant a decree of divorce; Poonam Gupta v. Ghanshyam Gupta , AIR 2003 All 51.
Till now nothing has transpired as such which would show that there exists a misbalance and that any gender has been deprived of their fundamental rights. When we move towards repercussions of divorce, then comes to light - Maintenance OR Alimony. On this aspect the Govt. has taken an orthodox view and considered women as weaker sex and has made special provisions.
Before we articulate the aspect of Maintenance OR Alimony, we should first understand who is entitled for it and why. Let us consider a situation where the husband treats his wife with cruelty and compels her to leave the matrimonial home. Here the wife was forced to leave the matrimonial home without any of her fault. In this condition, the husband is responsible for his wrong doings and wife is entitled for maintenance. On the other hand, if the wife treats the husband with cruelty and then on her own she leaves the matrimonial home or compels the husband to leave the matrimonial home or compels the husband to leave his age old parents, she is not entitled for any maintenance whatsoever. For one’s own wrong doing, we cannot punish the other or say victim.
Interestingly, there exists another angle to this aspect of Maintenance. Suppose the wife is self dependent (being well educated) and she is dealt with cruelty by her husband, and she is driven out of her matrimonial home, then she is entitled to maintenance. But what maintenance would be sufficient for a wife who is totally dependent on her husband? Would the maintenance vary? The answer is unequivocal YES. Maintenance ensures that is the wife is turned out of matrimonial home without her fault then she is entitled to live at the same social and monetary level as she would have been living had she been living at her matrimonial home. Hence to bring her status back to normal and equal to as that of her husband’s, the maintenance required by well-educated girl would be far less than that of a fully dependent wife.
More interestingly, to the ongoing discussion in last para, we missed very important point. If the wife is well-educated she is entitled for lesser maintenance and if she is full dependent then she receives more maintenance. But whose mistake is behind these two? It’s the decision of the father of the girl who decides to let her go to school and college or not. Hence, we can confidently say, that our deduction of ideas in the last para should be altered. The maintenance should not vary in any of the case. The maintenance amount should be assessed by the courts on case to case basis and it should only be treated and articulated as punishment for the erring spouse and not as a right of woman.
Consideration for amount of maintenance
The court is required to take into consideration the income of the parties before deciding the quantum of the interim maintenance. The court has to keep in view the need of the applicant and paying capacity of the non-applicant; Padmavathi v. C. Lakshminarayana , AIR 2002 Kant 424.
Hence, it is very clear that allowing Maintenance OR Alimony as a “Right” would vitiate the fundamental right of men under Article 15 however granting Maintenance as a punishment to the erring spouse. For the coming generation it shall lead by example and shall instill faith. As rightly opined by the Hon'ble Supreme Court in one of its order explaining the scope and ambit of Maintenance:
Section 13 does not envisage luxury. The provisions are meant to preserve the meaning of life. Personal laws may be different from laws of equity nonetheless they are based on equitable judicious perception for appreciation of facts and circumstances in their light; Ram Lakhan v. Prem Kumari , AIR 2003 Raj 115.
Unconditionally entitling a wife of 50% of residential property of her husband would make divorce cases to grow exponentially. Times have changed and needless to mention, the position of woman in the society is not as same (low) as it was 35 years ago. The Govt. should re-consider its decision and should not bow down to bunch of Women Activists whose homes run on the name of being feminists and who are responsible in this country for biased and anti-men laws. Laws in any country should be made with an objective to bring harmony amongst the citizens. No law should empower a citizen to misuse it and harass others. Repercussions to this amendment if passed in its present form are deadly!
For further views on Maintenance you may like to read my other article:
http://www.lawyersclubindia.com/articles/MAINTENANCE-A-Myth-Unveiled-3367.asp
//Peace
Saurabh..V
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Tags :Family Law
