If The Circumstances Of The Husband Change, The Maintenance Shall Also Change

INTRODUCTION

Maintenance in legal parlance means the act of providing monetary assistance to wife, children and parents. The object behind this concept was to provide a dignified and standard way living which is in correspondence with the standard of living of the party providing such maintenance. This article mainly deals with duty of husband to maintain his wife and the circumstances in which the maintenance can be altered.

The provisions concerning the maintenance of wife differ for people belonging to different faiths and have been provided in their personal laws. However, section125 of Cr.PC lays down a separate provision for maintenance which can be evoked by any person irrespective of their religion. Also, section 127 of Cr.PC lays down the provision for alteration of maintenance.

WHAT IS MAINTENANCE?

In Savitaben Somabhai Bhatiya v. State of Gujarat and Ors, the court viewed that it is the duty of man to pay an amount to those who are dependent on him.

In Mangat Mal v. Punni Devi, the court stated that the purpose of maintenance is to provide the lady with means se that she can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head.

Thus, it can be conferred that maintenance is the monetary aid provided by man to his wife, children and parents in order to ensure socio-economic justice to women, elderly person and children.

MAINTENANCE OF WIFE IN Cr.PC (section 125)

Section 125 of Cr.PC lays down provisions of maintenance under which a wife, unable to maintain herself” can claim maintenance from her husband. The expression unable to maintain clearly implies that if the wife can claim maintenance only when she is not capable to maintain herself.

In Abdulmunaf v. Salima, it was laid down that the wife who is hale and healthy and is sufficiently educated to earn for herself but refuses to earn from own and claim maintenance from her husband will be entitled to claim maintenance but that her refusal to earn under the circumstances would disentitle her to get complete amount of maintenance.

However, in Shailja & Anr. v. Khobanna, the Supreme Court held that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.

The purpose for maintenance is to make sure that the wife on account of a failed marriage is no left to vagrancy and not to punish the husband for ending the marriage. So, if a wife is capable to ensure a standard life for herself, she is not entitled to maintenance.

The term 'wife' under section 125 includes a divorced woman or a woman who seeks divorce and has not remarried.

In Velusamy v. D. Patchaiammal, the court stated that “wife” under section 125 Cr.PC means a legally wedded wife and also includes a divorced wife.

Further, in Chanmuniya v. Virendra Singh, the Supreme Court held that a man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations.

In the recent judgement of Irshad Ali v. State of Uttar Pradesh it was reiterated that strict proof of performance of essential marriage rites should not necessary precondition of maintenance under Section 125 of the Cr.PC and widened the meaning of wife by including those cases where a man and woman live together as husband and wife for a reasonably long period of time. However, the court did not mention what period will be considered a reasonably long period.

According to section 125(4) a wife will not be entitled to maintenance if-:

  • She is living in adultery
  • She refuses to live with her husband without any sufficient reason
  • The husband and wife are living separately by mutual consent

CANCELATION OF MAINTENANCE ORDER(section 125(5)

Section 125(5) states that the magistrate has to power to cancel the order made in favour of a wife if it is proved that she is living in adultery, or without reason refuses to live husband, or if the husband and wife live separately by mutual consent.

The expression 'living in adultery' implies an adulterous course of life and not single act of adultery.

ALTERATION IN MAINTENANCE UNDER CrPC (Section 127)

Section 127 of Cr.PC lays down the provisions for alteration in maintenance.

Section 127(1) provides that if the change in circumstances of any person, either receiving or paying allowance is proved, then the magistrate has the power to make changes in the allowance as he thinks fit.

Deciding the case of Parmeswara Moothar v. Balameenakshi, the Kerala High Court was of the opinion that that magistrate is free to enhance the allowance either from the date of the application for enhancement or from the date of the order.

In the section it has to be noted that the phrase used is change in circumstances of any person, that means, it includes the change in circumstances of both husband and wife.

In T. Kausalya v. T. Narayan Reddy and Anr., it was held that change in circumstances include the changes in circumstances of husband also. Fall and rise in husband's income may be urged as change in circumstances. So, if the husband has retired, the decrease in income is the change in circumstances of husband and the maintenance will be affected accordingly.

In State v. Janakibai, the Bombay High Court held that one of the circumstances that which governs award of maintenance is the cost of living and if the cost of living has gone up it certainly is change of circumstance, which enables the wife to ask for enhancement of maintenance.

In the renowned Shah Bano case, the court held that mahar is not equivalent to allowance. The fact that it is paid on the dissolution of marriage it cannot be considered an alternative to allowance.

However, section 362 of Cr.PC says that by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

Thus, on one hand Cr.PC through sections 125 and 127 are giving power to magistrate to provide allowance and altering them if the situation changes and on the other through section 362 it snatches it.

Answering the issue in Sanjeev Kapoor v. Chandana Kapoor & Ors ., giving a crucial verdict in a matrimonial suit, the Supreme Court of India held that a Magistrate who passes an order on settlement between parties under section 125 of Cr.PC has the power to recall or set aside the Order if terms of the same are violated, and Section 362 of Cr.PC does not function as a bar on the same.

Section 362 was framed to avoid reviewing judgements of criminal court which are thoroughly examined by the law. Since, the aim for providing maintenance was to ensure social justice and section 125 expressly gives power to the magistrate, the provision of section 362 is not applied in the proceedings under section 362.

CONCLUSION

  • It is evident from the cases discussed that approach of the courts have been liberal yet confusing while deciding the matters of maintenance. It depends completely on the discretion of the Court as to when a wife is capable of maintaining herself and when not.
  • However, a very strong contention adopted by the court with changing societal conditions is allowing maintenance to women in cases of live-in relationships like that of a wife. This approach serves the purpose of the provision very well in preventing women from vagrancy, otherwise men would be bestowed with reward for defrauding women.
  • Unlike Hindu Maintenance Act, CrPC puts the liability on men only while under Hindu Law both men and women are liable to pay allowance.
  • Also, the interpretation of the expression 'change in circumstances' is very flexible. It does not let women seeking enhancement of maintenance have undue advantage neither leaves those who are actually in need of it deprived of their right.

 

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Pallavi Singh Online
on 19 February 2021
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