Right to maintainece of a hindu wife

"Marriages are made in heaven"� though sometimes even god does make a mistake and that's why today the courts are flooded with various petitions either for judicial separation or divorce. Marriage which was once considered a life-time commitment between two persons does not hold the same sacred value in today's society. Despite the fact that a Hindu marriage is considered a sacrament it has some contractual elements as well. But the same is based on the concept that when two people enter the institution of marriage they vow upon themselves to take care of each other in any and all circumstances. They take upon themselves the responsibilities to maintain each other.

Keeping the same view in mind the framers of law provided for various laws where the neglected party can seek maintenance from the defaulting one. There are various laws such as the Hindu Marriage Act, 1955 (sec. 25), Hindu Adoption and Maintenance Act, 1956 (sec. 18), Criminal Procedure Code, 1890 (sec 125) The same have been discussed at length here in: Section 25: Hindu Marriage Act Section 25 of the Hindu Marriage Act, 1950 provides for Permanent Alimony and Maintenance. According to the section the court may grant permanent alimony and maintenance to any party that is wife or the husbandapplying for the same if the person so applying cannot maintain herself/himself. The courts while granting the same has to have regard to the respondents own income and property and also the income and property of that of the applicant. Such maintenance cannot be granted if the concerned party has waived his/her right to seek such maintenance under section 13B that is divorce by mutual consent.

Section 25 does no where mentions that the decree should be one that for divorce or judicial separation. It simply says "Any Decree"� and therefore one can conclude that it will include all kinds of decrees passed under this act that is to say that a wife can claim maintenance under this section even if she has applied for a decree for getting her marriage declared Null and Void as under section 11 or 12 or if she has applied for a decree for Judicial Separation under section 10 of the act. The Hon'ble Supreme Court in the case of Ramesh Chandra Ram Pratapji Daga V/s Rameshwari Ramesh Chandra Daga (2005) has held that if a decree is passed under any of the provisions of Hindu Marriage Act then section 25 is applicable if the circumstances so require.

Section 18: Hindu Adoption and Maintenance Act, 1956 A plain reading of section 18 (1) of the HAMA is enough to understand that the present section entitles a "Hindu wife"� to claim maintenance from her husband during her lifetime. Section 18(2) also entitles such a wife to live separately without forfeiting her claim to maintenance provided that the husband is guilty of abandoning her without a reasonable cause and without her consent or against her wish. Another ground for living separately under the current section can be "cruelty"�.

Here we need to understand that cruelty can be either physical or mental. Even a reasonable apprehension in her mind that it will be harmful to live with her husband is also enough. Some other grounds mentioned in the above section are if the husband is suffering from a virulent form of leprosy or has another wife living or he keeps a concubine living in the same house in which the wife generally resides or resides generally with the concubine elsewhere or has ceased to be a Hindu or if there is any justifiable reason for the wife to live separately. Clause (3) of section 18 acts as a proviso which mentions that the wife will not be entitled to live separately or cannot claim maintenance under the current section if she is unchaste or she ceases to be a Hindu. Here we can interpret that the wife should be a lawfully wedded wife. In case she is a minor then she must not have exercised her right to waive the marriage that is to say that she has not got the marriage declared null and void by a court of competent jurisdiction. Also she should be the only wife or the first wife if the marriage was performed after 1956. It is worth mentioning here is that the claim for maintenance under this section and section 125 CrPC are two separate claims. It was held in Aher Mensi Ramsi v/s Aherani Bai Mini Jetha (2001) that any order of maintenance under section 125 of the CrPC cannot foreclose the wife's remedy under sec. 18(2) of the Hindu Adoption and Maintenance Act, 1956 and vice-versa. Section 125 of the Code of Criminal Procedure, 1973 Sections 125-128 of the Criminal Procedure Code provide for speedy, effective and inexpensive remedy against persons who neglect or refuse to maintain their dependant wives, children and parents.

According to section 125(1) a wife is entitled to claim maintenance. A woman to claim maintenance be a legally wedded wife. Here wife may be of any age and the term also includes a divorced wife who has not remarried. In case of a divorced wife it has been held in K.Raza Khan v/s mumtaz khatoon, 1976 that a woman who has been divorced before April 1, 1974 can claim maintenance provided the other conditions are satisfied. A wife under this section can claim maintenance on the ground that the husband neglects or refuses to maintain her. The neglect can either be express or implied. Clause (4) of the section mentions that if the wife is living in adultery or refuses to cohabit with her husband without any justifiable cause or both of them have mutually agreed to live separately. The section leaves the decision of what is justifiable in each case to the discretion of the court depending on the facts and circumstances of every individual case.