U/s 36 of the special marriage act, 1954
diganta
(Querist) 20 August 2012
This query is : Resolved
Wife filed a maintenance petition against the husband u/s 36 of the Special Marriage Act, 1954. Wife is unemployed and no source of income. In that situation the husband left his job for not giving any maintenance to her wife. My query:
1. Can the wife get maintenance in that situation and how?
2. Husband have a flat in his name, can the wife claim 50% share of the property?
ajay sethi
(Expert) 20 August 2012
merely because husband is un employed does not mean that he can run away from his responsibilty for maintaining his wife .
however there is a recent judgement of delhi court which holds that un employed husband is not liable to pay maintenance
wife can under DV act claim right to stay in matrimonal home
ajay sethi
(Expert) 20 August 2012
29 Aug 2010
No maintenance by non-working husband: High Court
In a judgment which can bring relief to a number of unemployed husbands from the liability to pay maintenance to their wives, the Delhi High Court recently has declared that the law relating to maintenance to be paid to wives under Section 125 of the Code of Criminal Procedure does not apply in a situation where the husband is unemployed and isn't himself earning. Deciding in Sanjay Bhardwaj v. State, the Justice Shiv Narayan Dhingra reversed the decision of the lower court fixing maintenance in such circumstances.
The High Court inter alia observed;
. ... Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C - a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management from Pondicherry University, the wife was MA (English) & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act
. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, 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 other unless one is employed and other is not employed. As far as dependency on parents is concerned, I consider that once a person is grown up, educated he cannot be asked to beg and borrow from the parents and maintain wife. The parents had done their duty of educating them and now they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves.
6. It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence. Marriages do fail for various other reasons. The difficulty is that real causes of failure of marriage are rarely admitted in Courts. Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts.
