Maintenance and its various theories

Maintenance and its various theories By Prakash Pillai A matrimonial lawyer is often flooded with lots of questions by the clients. The most common query being, the quantum of maintenance after a divorce. This particular question is often the cause of worry for most men who are interested in going for a divorce or separation, but thus, feel prevented from doing so. They, in fact, are generally advised by friends and relatives to propel their wife to file for a divorce, with the hope and intention of avoiding to give alimony. The general perception is that the person initiating a divorce shall not be entitled to any financial support from their spouse. This, however, is not entirely true. It all depends on the financial position of the spouse. In the event of the wife not being able to sustain herself financially, or having no source of income for herself, she then is entitled to an allowance as maintenance. On the other hand, if she is earning sufficiently well for herself, she cannot claim any maintenance. Herein, an interesting question arises, ‘ whether a husband has any right to claim maintenance from his wife’. The answer is, surprisingly, in the positive. Under the Hindu Marriage Act, this provision has raised many an eyebrow. To put it simply, depending on the circumstances, a husband also has the right to ask for alimony. As is prevalent in our Indian society, the wife is mostly a homemaker. Thereby, a major part of our female population never ventured out from the cosy comforts of her home to earn for a living. Thus, being, more relevant, the word ‘maintenance’ came to be associated with women, almost to the point of being synonymous with the weaker sex. However, the Indian Judiciary being very fair, came to the rescue of the husband. According to Hindu Law, the husband also has the right to claim maintenance which is subject to certain conditions. In the event of the husband becoming incapacitated due to some disease or accident, and thereby, is rendered incapable of earning for a livelihood, he then has the right to claim alimony. At the same time, one should bear in mind that if the husband is an able person in every sense of the word, and yet does nothing for a living; he cannot be entitled to any maintenance. The Court of Law provides no relief to a wastrel. There are various laws that govern the quantum of maintenance to be decided upon, and awarded by the court. An application for maintenance can be filed in India by the Hindus, under the Hindu Adoption and Maintenance Act, and under the Hindu Marriage Act. There are other personal laws for people following different faiths. Thus, people belonging to other religions are governed by such personal laws. However, irrespective of one’s caste, creed or religion; any person can file an application for maintenance, under section 125 of the Criminal Procedure Code. Besides the wife and husband, the parents and children of the respondent, can also vice versa claim maintenance under this particular section. The Court decides to grant maintenance only when an application is filed before it. It is entirely at the discretion of the Court to decide if at all any maintenance deserves to be awarded to the applicant/ petitioner, and if so, then the amount of main tenance to be granted. Whilst doing so, the Court takes into account various factors that would affect the quantum of maintenance to be decided upon, such as, the status and financial position of the parties concerned, the number of dependants on the respondent, etc. Although the wife who makes the application for maintenance is earning sufficiently well for herself, she can yet be entitled to alimony in case her husband’s income exceeds way beyond her own. This reasoning being on the premise that the wife is entitled to live as per the standard and status of her husband. The order of maintenance is subject to change. In other words, the amount of maintenance once fixed by the Court can be altered if there is a reversal of circumstances. There can be an enhancement or reduction of the same depending on the circumstances at that particular time. Another extremely disturbing query that often crops up is the failure on the part of the husband to pay up the maintenance amount decided upon by the Court. In the event of such an occurrence, the Court dismisses any relief that he is entitled to. For example, his divorce petition can be dismissed; or his right to custody and access of the children too can be affected. Another cause for worry is the refusal of maintenance by the Court, itself. Such illustrations being very few; however, the Court can refuse alimony if proved that the wife has a good source of income; or if found that she has been living in adultery. From recent times, the laws in India have become very strict. The Court has taken a very firm stand as regards the status of the wife. Only the lawfully wedded woman is considered as the wife. Certain recent judgements pronounced by the Court have very clearly indicated that no mistress or second wife is entitled to maintenance. However, children from the second marriage are entitled to maintenance from the father. Hence, the term “maintenance” has varied theories to it, and depends upon the circumstances of each and every single case. Thus, the quantum of maintenance cannot be assumed in advance. It is like a dreaded monster, especially for the one who wants to initiate a divorce, but is apprehensive that he may be asked to pay a huge amount as alimony to his wife; which he may not be in a position to afford. Nevertheless, whatever may be the amount of maintenance asked for, by the wife, the Court is usually very judicious and kind. It takes into consideration all the liabilities of the husband, with due regard to the requirements and necessities of the wife and children. Accordingly, it issues an appropriate maintenance order rendering justice to each of them. Nonetheless, the doors of appeal in the Court of Law are open to one and all, who are dissatisfied with the order passed.

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