CHAPTER I

DIVORCED WOMENS RIGHT TO MAINTENANCE: AN INTRODUCTION

INTRODUCTION

The ultimate object behind this dissertation research is to analyze and to study on the
Divorced Womens right to maintenance under Hindu and Muslim Law in Indian context
where there is question regarding the payment of maintenance to wife during or after the
divorce. For the purpose of maintenance, we need to ascertain the current position of the
maintenance clause related to the wife of the biggest community group in India through
Secular law and the personal law.

The greatest happiness of the greatest number is the basis of judging the social, economic
and political policies of a nation, asserts the principle of Benthemite. All human beings
possess an equal capacity for pleasure and pleasure gets doubled when human care for each
other. Therefore, a more desirable society is one where human beings work for one another
and enjoy the pleasure derived from mutual co-operation and love. The basic social unit
wherein we could observe the pre requisites of a welfare society is family.

Family is described as a natural ethical community.i The family is natural because its bonds
are based on feelings that are intutive and immediate. It has an ethical quality because the
love that it imparts has a universal and spiritual quality. For proper and wholesome
development of both men and women in a family, marriage is a must. Marriage, as an
institution is necessary for the procreation of human race. Marriage as such gives the married
partners, a status and imposes mutual obligations and rights. The prime obligation that arises
out of marriage is maintenance.ii

India is a nation of many religions and patriarchal society exists in the country. The women
have always been under the protective cover of men and have not been able to stand on their
own feet. They have always been dependent on their male counterparts for their basic needs. iii
In the patrilineal family system, the wifes main task has been the management of her
husbands household. The patriarchal society did not consider it to be her function to engage

1
in the earning of wealth. In the modern Hindu society also, most wives are still economically
dependent on their husbands. Most systems of law recognize the direct obligation of the
husband to maintain his wife so long as marriage subsists and the wife remains faithful. In the
modern system of law, the obligation exists even after the dissolution of marriage.iv

The concept of joint family system exists in the Hindu society and the law of maintenance
has a special significance in the Hindu law. Maintenance of wife has been recognized as a
personal obligation of the husband. Hindu sages like Manu declare the aged parents, a
virtuous wife and an infant child must be maintained even by doing hundred misdeeds.v
In the matter of Jayanti v. Alamelu,vi Madras HC held that the obligation to maintain one's
wife is one's personal obligation and it exists independent of any property, personal or
ancestral.

MAINTENANCE AS A MARRIAGE OBLIGATION

The first man of this universe had no obligation as against other members. It arose only when
he founded a family. The urge of sex, the animal instinct united him with woman. vii The
promiscuous sex was then unregulated and much animal like. It was perhaps, a scarcity of
women or admiration of one particular woman that first roused in him the desire to keep her
for permanent possession. When one took possession of a woman, other men followed his
example. He obliged the woman to receive only his caresses and taking in return the
obligation upon himself to regard her as his wife and to protect and bring up her children as
his own. Thus arose marriage and the obligation to care for each other. viii This was a natural
obligation. It got rooted as moral obligation in a social community. The modern welfare
society imposes them as statutory obligation.

MAINTENANCE AS A SOCIAL CONCERNix

Maintenance has been a concern of not only weaker sections but of the society as well. For
weaker sections it is a problem in the sense their very survival rest on the provision made
available as maintenance. The concern of the society starts when one, despite having means,
fails to provide maintenance to his dependents. Such members are forced to fall upon the
state for assistance or else take a career detested or prohibited by the society. Either of them is
not towards promoting the interest of the society and hence its concern. Marriage is the basis
2
of the family and family is the basis of the state. Any disruption at the level of marriage tends
to affect the social interest and its development.

Towards safeguarding the interest of parties at marriage and other members of the family,
maintenance is recognized. Perhaps in realization of this and with an avowed object of
preventing the consequences that may tend to arise out of poverty and destitution a right,
parallel to one provided under personal laws, is made available under the criminal
jurisprudence in India. The centurion old law had its origin from England and withstood
onslaughts of social and legal changes over the period.

The right of a wife is to be maintained by her husband and it has been recognized by all
communities in varying degrees respectively. The personal laws of Hindus, Christians, Jews
and Parsisx make statutory provisions imposing an obligation on the husband to maintain his
wife including a divorced wife till she remarries. A Muslim wife has no such statutory right to
claim maintenance from her husbandxi but the Muslim personal laws provide for the
husband's obligation to maintain her in a limited way.xii The obligation of a husband to
maintain his wife subsists not only during coverture but even upon dissolution of the
marriage by divorce or annulment.

In the language of Family Law, the term maintenance is often used as a synonym for spousal
support or alimony, and the term is in fact replacing alimony. Traditionally, alimony was
solely the right of the wife which is to be supported by the husband. The award of spousal
maintenance is generally determined which is based on all or some of the following
guidelines:
a. the claimant financial needs;
b. the payer's ability to pay;
c. the age and health of the parties;
d. the standard of living the claimant became accustomed to during the marriage;
e. the length of the marriage;
f. ability to earn and be self-supporting by both the parties involved;
g. And the claimants nonmonetary contributions to the marriage.

Maintenance may be temporary or permanent. The parties generally may adjust its amount at
a future date by returning to court and reassessing the relevant criteria at that time. In some
states the parties may forever waive their right to maintenance by written agreement.xiii

3
Hindu sages in most unequivocal and clear terms have provided that maintenance of certain
persons is a personal obligation. Manu declared that the aged parents, a virtuous wife and an
infant child must be maintained even by doing hundred misdeeds. Brihaspati said that a man
may give what remains after the food and clothing of family: the giver or more (who leaves
his family naked and unfed) may taste honey at first but afterwards finds it poison. According
to the Mitakshara, it was observed that where there may be no property but what has been
self-acquired, the only persons whose maintenance out of such property is imperative, are
aged parents, wife and minor children. A person who involves in charity or dan at the cost of
maintenance of his aged parents, infant children and wife is condemned by the sages; it is like
tasting honey which turns out to be poison later. During the British period, it was a well-
established rule that the maintenance of the aforesaid three sets of persons was a personal
obligation of every male Hindu. Maintenance can be split into two, spousal and child.
Maintenance refers to what amount of money one spouse pays to the other either for that
spouse or for dependent children or both. Children are now potentially dependent until they
attained majority.xiv

As it becomes more commonplace for women to continue to work after marriage and
children, spousal support per se becomes less common, notwithstanding disparity in income.
Of course, if the disparity is large then that is a matter for argument before the court or for
agreement as needs be. Maintenance can be the sole issue of a legal application and
application can be made in the District, High Court. Interim Maintenance can be sought in the
context of matrimonial proceedings prior to the hearing by making application to the court by
way of Notice of Motion.xv

Personal laws relating to marriage do not allow bigamy or polygamy except for Muslim law.
Such a marriage is treated as void. The law has made this point quite clear. Nevertheless,
second marriage is a common practice in our Indian society. As a result of the aforesaid
contrast between the law and social practice, second Hindu wives in India are not properly
protected under the law. Whereas, in Muslim law, where polygamy is permitted, the issue that
Muslim women have had to face was regarding the claim to alimony. Thus, the issue which
the present study focuses on is whether a married woman, whose marriage is void, is entitled
to maintenance or not. And it also seeks to determine the position of Muslim women in the
current scenario as compared to the situation before 1986. I will try to presents a look into the

4
present legal regime as well as studies various judicial decisions in order to find out the status
of a divorced wife.xvi
The term maintenance includes all the basic necessities of life which is again very important
and required for the sustenance of person/parties involved. It is not defined in Muslim Law as
such but the reference could be provided of the Hindu Law xvii on the matters related to the
maintenance which defines it in a following manner:
in all cases, provisions for food, clothing, residence, education and medical
attendance and treatment; in the case of an unmarried daughter, also the reasonable
expenses of an incident to her marriage.

The principles of maintenance are determined by the strength of claims and affections and
duties of persons on whom such obligation has been cast. The various jurists did not keep
legal and moral obligations distinct. The moral and legal duties, in case of maintenance, are
connected with each other. Such right of maintenance, apart from being a legal obligation, is
a moral obligation also. It includes all those things which are important for survival and
contains suitable food, raiment and lodging and cost of education.

It also includes expenses for mental and physical well-being of a minor child in accordance to
the status of the family in the society. In some cases there are conditions laid down on the
duty of providing maintenance and the right of receiving maintenance. And also in some
cases the right and duty of providing and receiving maintenance depends on the
circumstances and condition of the persons bound to maintain and the persons who are
entitled to receive respectively.xviii

As per Halsburys Law of Englandxix, the term maintenance is the name given to the weekly
or monthly payments which may be ordered on a decree of divorce, or nullity to be made for
the maintenance and support of the wife during the joint lives of the spouses, maintenance for
the children is a similar provision for their benefit, which may be made in proceedings for
divorce, nullity, judicial separation and restitution of conjugal rights. Maintenance varies
according to the position and status of the persons concerned. So maintenance is a term which
must vary according to the requirement of the time and the status of the persons entitled to
get maintenance and the person liable to maintain.

5
The Non-Muslims often misunderstood its precepts while the Muslim Community sometimes
misuse their personal law more in sheer ignorance than the deliberately selfish ends. Here, the
former one, they are misinformed about the concept and the latter one is unaware about it.
Both the community (Hindus and Muslims) have to be properly educated. This is indeed an
important need of the hour.xx

The basic objective behind the introduction of the concept of maintenance is check whether a
spouse who is not financially independent then the other should help her/him to provide
stability of living along with the independence in terms of finance. Logically, the term
maintenance means that the spouse who is not capable enough to take care of himself/herself
or able to live a life as he/she lived before the marriage in case of divorce and also in case of
where the interested parties are not living together and one of them seek maintenance to live a
life as when he/she has lived. It is the amount which a husband is under a legal obligation to
provide it to his legally wedded wife either during the subsistence of the marriage or after the
separation or on divorce under certain circumstances. However, maintenance does not mean
unreasonable expectations or demands.xxi

At this instance, as per my understanding maintenance not only includes the basic human
necessities such as food, clothing and residence but it also includes the things which is
necessary for the comfort and the status in which the person claiming maintenance and is
entitles in a reasonable manner and expected to live that particular life. Now, coming to the
main intention of providing maintenance to the wife is that the wife should not be left
destitute on separation or after divorce from her husband. If we want to understand this term
in a laymens language which means the things which are indispensible in nature for the
survival of a human being.xxii Also, it should be noted that the term maintenance includes
both the spouse.

One of the most important features of this term is that the party who is claiming maintenance
must not have any independent financial source of income so that he/she is able to support
himself/herself. One has to focus on the independent clause for the operation of maintenance.
In a case where the spouse who is claiming maintenance having the property be it in a
movable or immovable form, if that particular property does not yield or generate any sort of
income then the spouse still can claim the maintenance from the other spouse. The claimant is
not legally disabled in this regard.
6
If we talk about the quantum of maintenance and the other expenses of the proceedings
involved in it has not been specifically provided in any of the laws be it secular law or the
personal law except for the Divorce Act. The court of law has the discretionary power to fix it
at any amount depending upon the situation and the facts of the case. While deciding the
quantum which is to be awarded, the court of law is bound to take into account the income of
both the spouses involved in a maintenance proceeding, the status and other relevant
circumstance as well. The onus of declaring the income is on the husband when the wife
applies for the maintenance in the court of law.

7
i Subrata Mukherjee and Sushila Ramaswamy, August Bebel - Woman in the past, present & future,
Deep & Deep Publications, New Delhi, 1996, p.XXVI.
ii Id., at p. 2
iii http://familylawmavin.blogspot.in/2013/05/rightto-maintenance-of-wife-indiais.html
iv Dr. Paras Diwan, Modern Hindu Law, 449(12th ed. 2009)
v Id. at 448
vi 1904 Madras High Court
vii Id., at p. 2
viii Id., at p. 6
ix https://dyuthi.cusat.ac.in/jspui/bitstream/purl/3586/1/Dyuthi-T1529.pdf
x Reference to Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, the
Indian Divorce Act, 1869, and the Parsi Marriage and Divorce Act, 1936.
xi (apart from the rights conferred under the provisions of the Code of Criminal Procedure, 1973)
xii Non-Failure to provide maintenance for a period of two years by the husband gives to the wife a
ground for dissolution under the Dissolution of Muslim Marriages Act, 1939, See Jaffer Hussain,
Judicial Interpretation of Muslim Matrimonial Law in India, in Tahir Mahmood (ed.) Islamic Law
in Modern India 175 at 182-83, (I.L.I., 1972).
xiii http://www.thedivorcelawfirm.in/pdf/9.pdf
xiv Ibid 4
xv Ibid 9.
xvi https://www.lawctopus.com/academike/right-claim-maintenance-2/
xvii Section 3 (c) Hindu Adoption & Maintenance Act, 1986. Taken from Marriage & Divorce Laws
(Bare Acts), Universal Law Publishing Co. 2011.
xviii http://lawprojectsforfree.blogspot.in/2010/08/family-law-maintenance-under-muslim-law.html
xix Halsburys law of England, 3rd Edn, Vol. 12, p. 290
xx The Muslim of India by Tahir Mahmood 3rd Edition 2002 (New Version), Lexiz Nexis
Butterworths, New Delhi
xxi http://www.legalserviceindia.com/articles/hmcp.htm
xxii https://www.lawteacher.net/free-law-essays/family-law/maintenance-of-wife-under-hindu-law-
essays.php