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Key Takeaways

  • Proving adultery, second marriage, wilful refusal to live together or decree of restitution comes into play on part of the wife.
  • There are several legislations which have been passed over the course of time regarding maintenance paid to the wife.
  • Special Marriage Act, Hindu Marriage Act, Hindu Adoption and Maintenance Act and Domestic Violence Act are all laws taken into consideration while deciding the maintenance of the wife.
  • Section 125 of Cr.P.C. deals with provision of maintenance and is based on grounds of financial incapacity of the husband and neglect on part of the husband to pay his wife maintenance sum.

Introduction

Civil suits concerning alimony and maintenance are an everyday occurrence in courts. Each of the two parties are likely to have a counter effect on each other and reap a hefty maintenance or alimony while the other pay the least possible maintenance if not nothing. However, women often being victims of jargons and technicalities suffer post separation due to the unwillingness of the husband to pay a decent sum. In order to understand how to avoid paying maintenance to the wife, it is vital to understand in which situations women can be denied maintenance amounts and what legislations protect them with keeping their right to maintenance intact.

Situations Where, If Proven, Maintenance Can Be Avoided

Apart from women whose income suffices their subsistence, following list circumstances of women if proven can work in avoiding maintenance on part of the husband.

1. Where Adultery is involved

As per sub-section 4 of section 125 of CrPc, no wife shall be entitled to receive maintenance allowance from her husband under this section if she is living in adultery. The factor to consider the woman’s income is also discarded if adultery is in the picture.

2. Where second marriage is involved

It obviously follows in cases where the woman enters into a contract of second marriage, she forfeits the right to receive maintenance from the husband of the former marriage.

3. Where wilful refusal is involved

Desertion and wilful refusal on part of the wife, disrupts the obligation of the husband to provide maintenance. It however, needs to be proven so that the wife has put forth unnecessary conditions and constraints to live together or refused out rightly.

4. Where divorce granted on basis of woman’s fault

Even though after divorce, woman are entitled to maintenance amount, its quantity entirely depends on the court to decide which takes into consideration the guilt and fault of the parties which led to end of the marriage

5. Where husband’s job loss is involved

If such a situation arises, the husband can file an application with the family court that issued the initial order, demanding a modification of the maintenance order. If the husband's grounds for not being able to provide support for his separated wife are judged to be genuine, the Court has the power to stop, postpone, or change the maintenance amount as the Court sees fit.

6. Where decree of restitution is involved

In cases where a decree of restitution is passed against the wife, the courts see the conduct of both parties. Whether the wife has challenged the decree or wilfully refused to live with the husband, are considered by the courts in deciding the maintenance.

7. Where civil court order is involved

It is said to be mandatory for a magistrate to abide the ruling of a competent civil court on the aspect of maintenance. This is the crux of section 125 of CrPc. However, this does not apply to ruling under section 24 of the Hindu marriage Act which is in fact maintenance pendentelite only. Since, just final orders are considered, it applies to section 25 of Hindu Marriage Act.

Legislations Regarding Provision Of Maintenance

1. Special Marriage Act, 1954

Section 36 of this secular law, which applies to all people who marry in India, states that if a wife does not have enough independent income to sustain herself and for legal bills, she is entitled to pendentelite maintenance. During the course of the marriage procedures, maintenance may be granted on a weekly or monthly basis. The Court would calculate the amount of maintenance based on the husband's income and award whatever amount seemed acceptable.

Section 37 allows for the award of permanent alimony at the moment of the decree's entry or later. Permanent alimony is a lump-sum payment provided by the husband to the wife for the rest of her life.

2. Hindu Marriage Act, 1955

Sections 24 and 25 provide for maintenance and necessary expenses for a party who does not have sufficient independent income to support himself or herself. This is a gender-neutral provision that allows either the wife or the husband to seek support. During the pendency of the lis, the applicant must not have an independent source of income adequate to support her or himself.

Section 24 of the HMA provides for maintenance pendentelite, in which the Court may order the respondent to pay the proceeding's expenses as well as a reasonable monthly amount that is determined reasonable in light of both parties' income. Act 49 of 2001, which took effect on September 24, 2001, included a proviso to Section 24 requiring the application to be decided within 60 days.

According to Section 26 of the HMA, the Court may issue interim orders for the custody, maintenance, and education of young children from time to time.

3. Hindu Adoptions & Maintenance Act, 1956

HAMA is a unique law that was designed to reform and codify the regulations connected to Hindu adoption and maintenance during the marriage's sustenance.

A Hindu wife is entitled to be maintained by her husband for her lifetime, according to Section 18. She has the right to seek a separate residence without jeopardising her right to maintenance.Section 18 lists the variables that must be considered for determining the amount of maintenance to be paid, which must be read in connection with Section 23. Even though she lives separately, the husband has an obligation to maintain his wife under Section 18 sub-section (2). If the wife has been unchaste or converted to another religion, the right to separate dwelling and maintenance is not attainable.

4. Section 125 of the Cr.P.C

The objective and intent of Section 125 Cr.P.C. is to give an applicant with urgent relief. A Section 125 Cr.P.C. application is premised on two conditions:

a. the husband has ample financial means; and
b. the husband “neglects” to provide for his wife, who is unable to provide for herself.

In such a scenario, the Magistrate may order the husband to pay the wife such a monthly sum as the Magistrate deems appropriate. Maintenance is determined by the husband's financial capabilities and other pertinent circumstances.The Court has the authority under Section 125, sub-section (2), to award maintenance payments either from the date of the order or from the date of the application.

The application for interim maintenance shall be decided within sixty days after the date of serving of notice on the respondent, according to the third proviso of the modified Section 125.

5. Domestic Violence Act, 2005

The D.V. Act grants remedy to a woman who has been the victim of "domestic abuse."

a. Sections 17 and 19 provide an aggrieved woman the right to stay in a "shared household," regardless of whether she has a legal interest in it or not.It is obvious from the definitions of "aggrieved person" and "respondent" that:

I. It is not a legal requirement that the aggrieved person own the premises jointly or singularly, or that the aggrieved person rent the premises jointly or solo;
II. Regardless of whether the respondent or the aggrieved person has any right, title, or interest in the shared household, the household may belong to a joint family of which the respondent is a member;
III. The responder may own or rent the shared dwelling individually or jointly.

b. The right to live in the United States u/S. However, 19 is not an indefensible right, especially when a daughter-in-law is asserting a claim against her ageing in-law parents. While granted relief pursuant to S. 12 of the D.V. The court must weigh the rights of the aggrieved lady and her in-laws under the Act, or in any civil process.

c. Section 20(1)(d) of the D.V.A. specifies that maintenance given under the D.V.A. is subject to the D.V.A. In addition to an order of maintenance issued under Section 125 of the Cr.P.C. or any other law in force, an act to an aggrieved lady and her children would be given effect.

Conclusion

Owing to several jurisdictions and acts in place, it is necessary to prove the wife being involved in a second marriage, in adultery, wilful restraint to live together, husband’s financial incapacity, decree of restitution or civil court order.


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