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Right to seperate residence of the Hindu wife

By : Raghav Singh on 10 July 2009 Report Abuse Print Print this
 



 

 
Introduction:-
According to Merriam-Webster’s dictionary of law, maintenance is the act of providing basic and necessary support or a financial means of providing necessary support.[1] In general, we can say that maintenance are those necessary means which are indispensible for the survival of the human being. It is a right to get necessities which are reasonable. Section 3(b) of the hindu adoption and maintenance act, 1956 defines maintenance. According to it maintenance includes-
(i)                In all cases, provision for food, clothing , residence, education, and medical attendance and treatment.
(ii)              In all cases of an unmarried daughter, also the reasonable expenses of and the reasonable expenses of incident to her marriage.[2]
           
The right of the maintenance arises from the concept of an undivided family. The head of such family is bound to maintain its members, their wives and their children. All members of joint family, whatever be their status and whatever be their age are entitled for maintenance . A text of manu cited in the mitakshara and the parasara madhavya lays down, “it is declared by manu that the aged mother and the father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds.”[3]
 
 
 
Nature and extent of right to maintenance:
 
Under Hindu law the liability of Hindu to maintain others arises in some cases from the mere relationship between the parties, independently of the possession of any property. In other cases, it depends altogether on the possession of the property.[4]The first liability may be called personal liability or absolute liability or liability on account of relationship and second liability limited by the possession of the ancestral or other property.
 
Can Maintenance be claimed in independent Proceedings?
The Criminal Procedure code, 1973 under section 125 provides that any person having sufficient means if neglects or refuses to maintain his wife, children, parents who are not able to sustain themselves, then a Magistrate can pass orders for maintenance of wife, children and parents.
However there is no forum provided under the Hindu Adoption & Maintenance Act to claim maintenance and the necessary implication of the same is that it can be claimed through a regular suit.
Under the Hindu Adoption & Maintenance Act, Maintenance can also be claimed as an additional relief upon filing of a suit seeking divorce, restitution of conjugal rights or judicial separation etc. Under the laws governing the marriage under the Hindu system if the husband is ready to cohabit with the wife, generally, the claim of wife is overthrown. However a Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act provides certain situations when it’s practically impossible for a wife to continue to reside and cohabit with the husband but due to social stigma and pressures she may not be in a position to split holy tie. Consequently, in order to get the relief from court, the Hindu wife must prove that ground(s) as provided under the law really exists.[5]
 
 
Wife’s right to maintenance:
 
Section 18[6] of the Hindu adoption and maintenance act, 1956, deals with the maintenance and separate residence of a wife. Prior to this act the Hindu married women’s right to separate residence and maintenance,1946, was in force but this act has now been repealed by section 29 of the Hindu adoptions and maintenance act,1946.
 
A wife is entitled to be maintained by her husband whether he possesses property or not[7]. When a man knowingly marries a girl, accustomed to certain style of living, he undertakes the obligation of maintaining her in that style.[8] The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship, and quite independent of the possession by the husband of any property, ancestral or self-acquired.[9] The maintenance being the matter of personal obligation, she has no claim for maintenance against her husband’s property in the hands of the transferee from him. Nor has she any claim against the government, if his property has been attached under ss 87 and 88, code of criminal procedure 1898, as the property of an absconder.[10]
A wife is not entitled, during her husband’s lifetime, to be maintained either by her relations or by her husband’s relations, even if she has been deserted by him, unless they have in their possession, property belonging to her husband.[11]
 
Application of section 18 of Hindu adoptions and maintenance act–
 
Under section 18(1) of the act, a Hindu married women, irrespective of the date of the marriage , shall be entitled to be maintained by her husband and this obligation on her husband will continue throught the life of the wife. The right of the wife to claim maintenanace from her husband is her personal right against her husband and it arises irrespective of the fact whether the husband has got any property either ancestral or self-acquired.
The expression ‘Hindu wife’ in section 18 has given rise to controversy and the questions whether the wives under void marriages would also be able to claim the maintenance under section 18 of this act. The question was raised in C. Obula konda redid vs. pedda venkata lakshmma[12], where the courts held that the word Hindu wife section 18 cannot be interpreted to mean only a wife whose marriage is valid according to the provisions of the Hindu marriage act. The Hindu wife contemplated by section 18 mean a wife whose marriage is solemnized, though void under Hindu marriage act. She will therefore be entitled to claim maintenance from the husband.[13]
In Ramchandra behra vs. Smt. Snehalata dei[14], the Orissa Hc has declared that in a suit for the maintenance which is contested, the court has no power to award interim maintenance under section 18 of the Hindu adoptions and maintenance act. Section 18 does not authorize the award of interim maintenance pending decisions on the claim to maintenance in the suit in contest. The right to of the wife too be maintained by the husband should not be confused with the powers of the court to award interim maintenance pending an action for maintenance where such rights are in dispute. But in shivankutty vs. S. Kamala Kumari[15], the kerela HC held that it depends upon the discretion of the court to grant interim maintenance in favor of the wife once the relationship as the husband and the wife is established between them. In Pursuttam Mahakud vs. Annapurna mahakud[16] the Orissa HC held that it is settled law that the civil court had got inherent jurisdiction to award interim maintenance.
 
Effect of husband ceasing to be hindu-
 
The husband would not be absolved from his liability to maintain his wife simply because he ceased to be his hindu. But, sub-section(3) of section 18 take away the right of wife to claim maintenance under this act if she ceases to be hindu by conversion to another religion. The effect of husband ceasing to be a hindu would be that the wife would be entitled to separate residence and to her claim for maintenance.[17]
 How Maintenance is a main relief for wife?

The relief of maintenance is considered an ancillary relief and is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation etc. Further, under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial relief has been recognized in Hindu law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act envisages certain situations in which it may become impossible for a wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial tie for various reasons ranging from growing children to social stigma. Thus, in order to realize her claim, the Hindu wife must prove that one of the situations (in legal parlance 'grounds') as stated in the Act, exists.[18]
Grounds for award of maintenance:

Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of the wife, maintenance is granted. These grounds are provided under section 2[19]of the Hindu married women’s right to separate maintenance and residence act( 19 of 1946). These grounds are as follows:
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion;
g. Any other cause justifying her separate living; These will be discussed further in detail in the section of general exceptions relating to the right to separate residence of the women.
The Hindu married women’s right to separate maintenance and residence act(19 of 1946), which came into force on 23 April 1946, gave a statutory recognition to many of the principles discussed above, and at the same time, liberalized the law in certain respects in favor of married women.
A wife who leaves her home for purpose of adultery , and persists in following a vicious course of life, forfeits her right to maintenance., even though it is secured by the decree.[20] However, it would seem, that if she completely renounces her immoral course of conduct , her husband is liable to furnish her with a ‘bare’( or what is also called ‘starving’) maintenance, i.e. food and raiment just sufficient to support her life.[21] The burden of proving that the erring wife has returned to purity is on the wife herself.
 
 
Right to separate residence of wife:
A wife’s first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection.[22] Thus, as a rule wife is not entitled to separate residence from her husband, unless she proves that by the reason of his misconduct or refusal to maintain her in his own place of residence or other justifying cause, she is compelled to live apart from him.[23]
Exception to the general rule:
Sub section (2) of section 18 of the act enamurates the contingencies in which a wife may live seperateky with her husband without forfeiting her right of maintenance.
(1) Desertion by the husband: there can be desertion by the husband even though the wife and the husband are living in the same house, and that there can be desertion if the husband has no reasonable cause for leaving his wife.
In case of a desertion the wife has to prove the following facts:
(i)    That the husband has abandoned her;
(ii) That he has done so without any reasonable cause, or without her consent
(iii)            That he is guilty of willfully neglecting her.
In Purushottam kewalia vs. Smt. Devki[24], it was laid down that the offence of desertion is committed when the fact of separation and the animus deserendi co-exist but it is not necessary that they should commence at the same time.
(2)Cruelty by husband: cruelty may be said as the conduct of such a magnitude that it endangers the life, limb or health or it causes a reasonable apprehension of such danger.
Here the wife has to prove the following facts:
(i)    That the husband has treated her with cruelty
(ii) That the cruelty was such as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with the husband.
The term cruelty has not been defined. However the conduct complained of should be so grave and weighty that wife cannot reasonably be expected to live with the husband. It must be more serious than the ordinary wear and tear of the married life. A few stray incidents indicating a short tempered nature and somewhat erratic behavior are not sufficient to constitute cruelty.[25]
(3) Husband suffering from virulent form of leprosy. The emphasis has been given on the ‘virulent form’. It would be much better if the leprosy would have been made a ground for the wife to live separately. Whether leprosy is malignant, virulent or merely in its initial stage, there is always danger for wife being infected with it.[26]
(4)Husband having another life living: the intention of the act Is to cure an existing evil and to afford married woman a remedy for separate residence and maintenance against a twice married man, whether such marriage took place before or after the act;
    In Subbe gauda Hommnama,[27] Karnataka HC has held that the expression ‘another wife living’ signifies legally married wife. In case of the voidable marriage under section 12 of the HMA, it is well settled that the marriage is valid until it is set aside by the court f competent jurisdiction. In such cases, there is no doubt that the second wife is also entitled to claim the right under this section.
(5)Husband keeping a concubine: following facts needs to be proved to claim the maintenance:
(i)                That her husband keeps a concubine
(ii)              That the concubine lives in the same house in which the married wife lives; or that the husband habitually resides with the concubine elsewhere.
In kesavabai vs. haribhan[28] , the Bombay HC has held that where the husband keeps the mistress in the same house in which his wife is living or where it is shown that he resides habitually with such concubine, the wife is enabled to have relief.
(6)Where husband is ceased to be Hindu by conversion- in the opinion of the llearned justice A.M.Bhattacharjee, section 18(2)(f), hindu adoptions and maintenance act has classified the hindus into two classes-
(a) Husbands continuing to be a hindu and
(b)Husbands ceasing to be a hindu and has discriminated the latter by subjecting them to the penalty to provide maintenance and separate residence to their wives. Such discrimination is in his opinion based solely on the ground of religion and is therefore, violative of article 15 of the constitution.
(7)Other justifying cause.this is a residual clause and empowers the court to give a hindu wife such relief which she may be entitled to in those cases which do not specially fall under any of the above caluses.
      The question in each case would be whether the conduct of the husband was such , that the wife consistently with her self-respect and with due regard to her position as a wife can live in the house of the husband.[29]
 
Conclusion:
 
According to me, maintenance is the right given to the women in the form of the protection against her husband. The intention of the legislature while drafting the act must be to provide assistance to those women who have submitted themselves to their husband wholly. Now it becomes the duty of the husband to provide her wife with all the basic amenities and in the case where he is not in a position to sustain the marriage therefore he has to provide maintenance to her. The wife is emotionally as well as economically dependent on the husband after the marriage. The law relating to the maintenance provides such rights to the wife but thereby imposing some restrictions. The institution of family holds great importance in our country and women are given the place of goddesses, thus it becomes very important to provide the women with such safeguards.


[1] maintenance. Dictionary.com. Merriam-Webster's Dictionary of Law. Merriam-Webster, Inc. http://dictionary.reference.com/browse/maintenance
[2] Agarwala, A.K., Hindu Law, Central law agency publication,Allahabad at pg116.
[3] Bradhou ch mata pitarau sadhwi bharya suttah shishuh I
 Api shatamkarya kratva bhatrawya manurbravit II manu II
[4] Savitri bai vs. laxmi bai (1978) 2 bom.
[5] Kapoor,pankaj,law of maintenance-an epitome,http://www.corpmen.com/Articles/1.html
(1)           Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2)           A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance -
(a)           If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;                          
(b)           If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;                        
                                (c)           If he is suffering from a virulent from of leprosy;
(d)           If he has any other wife living ;
(e)           If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f)            if he has ceased to be a Hindu by conversion to another religion ;
(g)           if there is any other cause justifying her living separately;
(3)           A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
 
 
[7] Narbadabai vs. mahadeo (1881) 5 bom. 99,103.
[8] Perm pratap singgh vs. jagat pratap kunwari (1944) All 118
[9] Jayati vs. Alamelu (1904) 27 Mad 45, 38.
[10] Secretary of state for india vs. ahalybai narayan (“1938) bom. 454
[11] Ramabai vs. tribbbak (1872) 9 Bom 283.
[12] AIR 1976 AP 43.
[13] Ibid,Supra note,2,pg 121.
[14] AIR 1977 Orissa 96; Suresh khullar vs. Vijay Khullar, AIR 2002 Delhi 373.
[15] AIR 1989 Ker 124.
[16] AIR 1997 Orissa 73.
[17] Manna vs. jiwan,1996 Allahabad 617
[19] Section2. Notwithstanding any custom or law to the contrary, a hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds, namely:
(1)     If he is suffering from some loathsome disiese not contracted from her;
(2)     If he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him;
(3)     If he is guilty of desertion, i.e., of abandoning her without her consent or against her wishes;
(4)     If he marries again;
(5)     If he ceases to be a hindu by conversion to another religion;
(6)     If he keeps a concubine in the house or habitually resides with the concubine
(7)     For any other justifiable cause.
Provided that a hindu married women shall not be entitled to separate residence and maintenance from her husband, if she is unchaste or ceases to be a hindu by change to another religion or fails without sufficient cause to comply with the decree of a competent court for the resolution of conjugal rights.
[20] Ilata vs narayanan(1863) 1 Mad 372.
[21] Parami vs. Madadevi(1910) 34 Bom 278.
[22] Sitnath vs. haimabutty(1875) 24 WR 377,379.
[23] Siddingappa vs. sidava(1878) 2 Mad 684.
[24]AIR 1973 Raj. 3.
[25] Nirmala vs. manohar shivraman AIR 1991 Bom. 259.
[26] Ibid,supra note 2.
[27] AIR 1984 Karnataka 41
[28] AIR 1975 Bom. 115
[29] Mallawa siddappa vs. bhimappa AIR 1937 Bom 112.

Source : Raghav Singh, Dr.Ram Manohar Lohiya National Law University,



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