Law of Maintenance for Wife

Under the law, husband is legally bound to maintain to his wife and children provided that the wife has no source of income to maintain herself. Maintenance is paid by the husband either on a monthly basis or in a lump sum so that the wife can avail the basic amenities of life such as food, clothing, shelter, etc.

The concept of maintenance aims at putting the wife back to the same position of comfort and lifestyle as she was at the time when her marriage existed. There is no fixed amount of maintenance that the husband is liable to pay to his wife, and it is upon the discretion of a family court to fix the amount of maintenance that the husband needs to pay either on a monthly basis or in form of a lump sum.

The maintenance rights of a woman are governed by the personal laws applicable to her, and the maintenance rules differ under Hindu, Muslim, Christian and Parsi laws.

In case of divorce, the wife has a right to claim maintenance from her husband when she is unable to maintain herself financially. The fact whether the wife is working and earns some income or not, does not affect her right to claim maintenance from her husband. However, the quantum of maintenance that the husband is required to pay to her wife depends upon the income earned by the wife, the income and property of the husband, his personal expenses and the expenses borne by him from his dependents.

The types of maintenance under Hindu laws are as follows:

1. INTERIM MAINTENANCE:

Section 125 Cr P C, Section 23 Protection of Women against Domestic Violence and Section 24 of the Hindu Marriage Act, 1955 lays down that both the husband and wife can file an application for interim maintenance through their divorce advocate. When the wife files a maintenance petition, the court may award her interim maintenance that the husband must pay from the date on which the application was filed by the wife till the date of dismissal through her divorce law advocate. It is also known as Maintenance Pendente Lite and is paid so that the wife can pay for the legal expenses incurred by her.

Interim maintenance is awarded by the court if the wife has absolutely no source of income to maintain herself. There are no laws that lay down the amount of this type of maintenance and it is completely upon the discretion of the court to determine how much maintenance is sufficient for the wife to sustain during the proceedings.

2. PERMANENT MAINTENANCE:

Permanent maintenance is paid by the husband to his wife in case of divorce, and the amount is determined through a maintenance petition filed through a divorce law lawyer in India. Section 25 of the Act states that the court can order the husband to pay maintenance to his wife in form of a lump sum or monthly amount for her lifetime. However, the wife may not be eligible for maintenance if there are any changes in her circumstances. Under Section 125 Cr PC and Section 23 Protection of Women against Domestic Violence, the court is empowered to grant permanent maintenance to the wife.

Under Section 18 of the Hindu Adoption and Maintenance Act, 1956, a wife has the right to live separately from her husband without affecting her right to claim maintenance. Under the Act, the wife, daughter-in-law, children, elderly parents and other dependents have a right to claim maintenance.

Under this law, a wife can live separately from her husband and entitled for maintenances in the following cases:

Ø  The husband has deserted the wife without any reasonable cause.

Ø  The husband has subjected the wife to cruelty.

Ø  The husband is suffering from leprosy of virulent form.

Ø  The husband has extra-marital affairs.

Ø  The husband has converted to another religion.

However, the wife is not entitled to claim maintenance in the following circumstances:

ü  She has ceased to be a Hindu by converting to another religion.

ü  She is guilty of adultery i.e. she is unchaste and indulged in physical relations with another man.

ü  She has remarried after the divorce.

A wife is required to file a maintenance petition in a family court which has appropriate jurisdiction to deal with the matter. The maintenance petition must be filed with the assistance of a good divorce advocate in India and must contain all the requisite facts and remedy sought from the court. The maintenance petition is filed with some necessary documents like an affidavit, documents relating to the income of both the husband and wife, etc.

Pr-Nuptial Agreement

Nobody wants a prolonged trial. Certainly not the couples seeking a divorce.  As it can take somewhere around one to four years for a divorce settlement to happen in trial courts, couples are exploring the option of a pre-nuptial agreement to save them from the hassle of a dispute, if any arises in future.

Lawyers in the capital are being flooded with queries regarding pre-nuptial agreements from couples who are planning to get married. From wanting to put the terms of marriage on paper to safeguarding themselves from any future monetary in case the marriage fails to work-out, the couples are coming with all kinds of requests.

Soon-to-be married Yogesh (name changed) recently approached a Delhi-based lawyer to draw up an agreement where he wanted to insert the clause that in case of a break-up, the wife would get only the amount pre-decided in the agreement. His request, however, was turned down as the laws governing Hindu marriages do not recognize a pre-nuptial agreement, making it invalid.

Yogesh is not the only one making such requests. In another case, a couple wanted to put down before their marriage the terms of division of property and child custody, in case either of them was found cheating on the other.

Jaswant Singh, a Delhi-based lawyer who deals with matrimonial dispute cases, said that in the past few years, he has been getting a lot of queries on pre-nups. In fact, in the last wedding season, around 34 families came wanting to make an agreement. "Families are very concerned these days. Especially, the groom's family. They want to safeguard themselves from any possible dispute. Since a pre-nup is not valid in our country, I advise them on a lot of things that will help them from getting caught in a legal hassle," said Singh.

One way of safeguarding yourself from a dowry case, he said, is to draft an affidavit in such a way that the boy makes it clear that no dowry was taken. This affidavit is used to register the marriage and can later be used in the court as evidence. "To get the marriage registered, the boy and the girl have to submit affidavits. I tell them to insert all kinds of clauses, like no dowry was taken, how much money was spent and who spent it. Then it is signed by both parties. This affidavit becomes a proof later if a dispute arises," said Singh.

The reason why a pre-nup doesn't hold in India is because a Hindu marriage is not a contract and is considered "sacrosanct", says lawyer Indu Shakher. He has also received many requests for pre-nups but says there is no point as there are various judgments that have held a pre-nup "not valid".

Even in a live-in relationship, a contract between the consenting parties does not hold. "Since the apex court has held that the rules of domestic violence will also be applicable in case of a live-in relationship, a contract won't hold," Shakhar said.

He, however, said it would not be a bad idea to amend the law to include such contracts. "Divorce cases are on the rise. A pre-nup can actually save a lot of time and money for both the parties," he added.

'Marriages are breaking up at an alarming rate'

Dowry law applies to live-in relationship

NEW DELHI: If you thought that being in a live-in relationship would save you from being punished for demanding dowry, think again. In an order that can expand the rights of women in live-in alliances, the Supreme Court has turned down the plea of Koppisetti Subbarao who had disputed the dowry charge pressed by his live-in partner on the ground that they were not married.

The court also brushed aside another argument put forward by Subbarao that the anti-dowry law could not apply to him since he was married to someone else in what should serve as a cautionary tale for those who prefer live-in relationships to dodge responsibilities that come with marriage.

This ruling came from a Supreme Court Bench comprising Justices Arijit Pasayat and A K Ganguly in an interesting case where Subbarao, faced with a dowry harassment case, said that he was not liable to be prosecuted under anti-dowry provisions -- section 498A of the IPC-- since there was no valid marriage between him and the complainant.

The Bench did not agree at all. "Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise," the Bench asked.

It elaborated on the reasoning, saying, "Such legal niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment of a woman over demand of money."

Writing the judgment for the Bench, Justice Pasayat made it clear that the court would not let a narrow interpretation of dowry come in the way of women's rights. "The nomenclature `dowry' does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship."

The Bench gave the example of the law recognising rights of children born out of void and voidable marriages, to explain its stand why it was defining dowry in a broad way. "Can it be said that legislature, which was conscious of the social stigma attached to children of void and voidable marriages, closed its eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into marital relationship," the Bench said.

If such restricted meaning was given, it would not further the legislative intent, the Bench said, adding, "On the contrary, it would be against the concern shown by the legislature for avoiding harassment of a woman over demand of money in relation to marriages."

Divorce

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