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Chapter 1

Alimony
SYNOPSIS
Introduction........................................1 Insufficient income ........................... 25
Object .................................................4 Interim order .................................... 26
Adultery ..............................................4 Lawyer wife ...................................... 26
Agreement between parties ................6 Lump-sum payment .......................... 27
Attachment of property ......................7 Maintenance continued as alimony
Cancellation of order .........................7 ......................................................... 27
Christian law......................................8 Meaning of ‘husband’ and ‘wife’..... 28
Claim in appeal ..................................9 Modification of order ....................... 28
Conduct of parties ..............................9 Nullity marriage............................... 29
Consent decree .................................12 Offer of re-union .............................. 32
Considerations for granting alimony13 Powers of Appellate Court ............... 33
Contracting out ................................14 Pregnant wife ................................... 33
Death of husband .............................15 Procedure ........................................ 34
Discretion of Court ..........................16 Quantum .......................................... 34
Disentitlement ..................................17 Remarriage ...................................... 36
Dismissal of proceeding ...................17 Resumption of cohabitation ............. 37
Distinction with maintenance...........20 Right after passing of decree ........... 38
Divorce due to mental disorder .......21 Stage of granting alimony ................ 38
Effect of desertion ............................22 Subsisting marriage ......................... 39
Effective date of modification ..........23 Territorial Jurisdiction .................... 39
Employed wife ..................................23 Withdrawal of petition ..................... 40
Entitlement only after divorce ..........24 Written Application .......................... 40
Formal application ..........................24 Young wife ....................................... 41
Grant of alimony in civil suit ...........25

Introduction
There are various provisions of different statutes dealing with
personal laws which deal with the question of alimony. These statutes
are Hindu Marriage Act, 1955, Special Marriage Act, Parsi Marriage Act,
1936 and Indian Divorce Act. The relevant provision of these statutes are
dealt with in this chapter with reference to the judicial precedents. These
provisions are also being extracted hereafter.
Section 25 of Hindu Marriage Act, 1955 is as under:
2 Law of Maintenance

Permanent alimony and maintenance.— (1) Any Court exercising


jurisdiction under this Act may, at the time of passing any decree
or at any time subsequent thereto, on application made to it for
the purpose by either the wife or the husband, as the case may be,
order that the respondent shall pay to the applicant for her or his
maintenance and support such gross sum or such monthly or
periodical sum for a term not exceeding the life of the applicant
as, having regard to the respondent’s own income and other
property, if any, the income and other property of the applicant,
the conduct of the parties and other circumstances of the case, it
may seem to the Court to be just, and any such payment may be
secured, if necessary, by a charge on the immovable property of
the respondent.
(2) If the Court is satisfied that there is a change in the
circumstances of either party at any time after it has made an
order under sub-section (1), it may at the instance of either party
vary, modify or rescind any such order in such manner as the
Court may deem just.
(3) If the Court is that the party in whose favour an order has
been made under this section has remarried, or, if such party is
the wife, that she has not remained chaste, or, if such party is the
husband, that he has had sexual intercourse with any woman
outside wedlock, it may at the instance of the other party vary,
modify or rescind any such order in such manner as the Court
may deem just.

Section 31 of J&K Hindu Marriage Act, 1980 is also in verbatim


with the above provision. However section 37 of Special Marriage Act,
1954 is as under:
Permanent alimony and maintenance.— (1) Any Court exercising
jurisdiction under Chapter V or Chapter VI may, at the time of
passing any decree or at any time subsequent to the decree on
application made to it for the purpose, order that the husband,
shall secure to the wife for maintenance and support, if necessary,
by a charge on the husband’s property, such gross sum or such
monthly or periodical payment of money for a term not exceeding
her life, as having regard to her own property, if any, her
husband’s property and ability, the conduct of the parties and
other circumstances of the case it may seem to the Court to be
just.
(2) If the District Court is satisfied that there is a change in the
circumstances of either party at any time after it has made an
order under sub-section (1), it may at the instance of either party
vary, modify or rescind any such order in such manner as the
Court may deem just.
(3) If the District Court is satisfied that the wife in whose favour
an order has been made under this section has remarried, or, is
Alimony—Introduction 3

not leading a chaste life, it may, at the instance of the husband


vary, modify or rescind any such order and in such manner as the
Court may deem just.
Section 40 of Parsi Marriage Act, 1936 is as under:
Permanent alimony and maintenance.— (1) Any Court exercising
jurisdiction under this Act may, at the time of passing any decree
or at any time subsequent thereto, on an application made to it for
the purpose by either the wife or the husband, order that the
defendant shall pay to the plaintiff for her or his maintenance and
support, such gross sum or such monthly or periodical sum, for a
term not exceeding the life of the plaintiff as, having regard to
the defendant’s own income and other property, if any, the
income and other property of the plaintiff, the conduct of the
parties and other circumstances of the case, it may seem to the
Court to be just, and any such payment may be secured, if
necessary, by a charge on the movable or immovable property of
the respondent.
(2) The Court if it is satisfied that there is a change in the
circumstances of either party at any time after it has made an
order under sub-section (1), it may at the instance of either party
vary, modify or rescind any such order in such manner as the
Court may deem just.
(3) The Court if it is satisfied that the party in whose favour an
order has been made under this section has remarried or, if such
party is the wife, that she has not remained chaste, or, if such
party is the husband, that he had had sexual intercourse with any
woman outside wedlock, it may at the instance of the other party
vary, modify or rescind any such order in such manner as the
Court may deem just.
Section 37 and 38 of Indian Divorce Act, 1869 are as under:
37. Power to order permanent alimony.— The High Court may, if
it thinks fit, on any decree absolute a marriage to be dissolved, or
on any decree of judicial separation obtained by the wife, and the
District Judge may, if he thinks fit, on the confirmation of any
decree of his declaring a marriage to be dissolved, or on any
decree of judicial separation obtained by the wife,
order that the husband shall, to the satisfaction of the Court,
secure to the wife such gross sum of money, or such annual sum
of money for any term not exceeding her own life, as, having
regard to her fortune (if any), to the ability of the husband, and to
the conduct of the parties, it thinks reasonable; and for that
purpose may cause a proper instrument to be executed by all
necessary parties.
Power to order monthly or weekly payments.— In every such case
the Court may make an order on the husband for payment to the
wife of such monthly or weekly sums for her maintenance and
support as the Court may think reasonable:
4 Law of Maintenance

Provided that if the husband afterwards from any cause becomes


unable to make such payments, it shall be lawful for the Court to
discharge or modify the order, or temporarily to suspend the same
as to the whole or any part of the money so ordered to be paid,
and again to revive the same order wholly or in part as to the
Court seems fit.
38. Court may direct payment of alimony to wife or to her
trustee.— In all cases in which the Court makes any decree or
order for alimony, it may direct the same to be paid either to the
wife herself, or to any trustee on her behalf to be approved by the
Court, and may impose any terms or restrictions which to the
Court seem expedient, and may from time to time appoint a new
trustee, if it appears to the Court expedient so to do.

The above provisions are though not identical except some


discerning features which have been dealt with at appropriate places, but
lay down provisions relating to Alimony.

Object
Alimony is not a consequential order of a decree for divorce, but
is a continuing obligation on the party. It is better to provide for the
maintenance of the other party who is weaker between the two. 1

Adultery
An applicant is entitled to maintenance notwithstanding the kind
of matrimonial decree that is passed and the ground on which it is
passed. A decree passed against the applicant on the ground of unchastity
is no bar to his or her claiming maintenance either at the time of passing
such decree or any time subsequent thereto. 2
The Court has ample discretion to grant or refuse maintenance,
and the extent to which the grant the same, depending on the facts and
circumstances of each case. The legislature did not intend to lay down a
rule that in all cases where the claimant has been proved to be unchaste,
he or she should be denied maintenance. On the contrary, the legislative
approach on the subject appears to be liberal, reformative and
conciliatory. The legislature had to be pragmatic on the subject since all
acts of unchastity cannot be painted with the same brush. In one case, a
single fall from virtue may brand a person unchaste while a persistent
unchaste conduct in other case may remain unnoticed for a long time.
Similarly, a person may become a victim of a helpless or an
uncontrollable situation in one case while another case may reveal a

1 Raj Virendra Singh vs. Virendra Singh (Lt. Col.), 1985 (9) DRJ 288
2 See section 37 of Indian Divorce Act, 1869
Alimony—Adultery 5

defiant debaucherous conduct. There may be cases where the opponent is


directly or indirectly a contributory party to the unchaste conduct of the
applicant. The circumstances in which decrees on the ground of
unchastity are passed may also differ from case to case. No two
situations are comparable much less similar. Life is complex and human
behaviour inscrutable and complicated. What is more, in a country like
ours inhabited by social groups with diverse social modes, customs and
practices ethical norms, moral concepts and cultural patterns, no uniform
standard of personal and social conduct including that a matrimonial
fidelity can be laid down. Much less can such conduct be judged by a
single norm. This consideration appears to have weighed with the
legislature in refraining from being dogmatic on the subject, and in
adopting a realistic approach in the matter. The deliberate change in the
language brought about by the amendment amply proves the said intent.
Hence, however repugnant of repulsive may appear the idea to a mind
traditionally steeped in one set of moral code, the section does not
disentitle a party to maintenance even if a decree is passed against him
or her on the ground of unchastity. 1
This view need not therefore oppress even the orthodox mind. If
according to the old law, even a woman who had left her home expressly
for living an adulterous life and had persistently led it for some time,
was entitled to at least a bare subsistence after she renounced it, there is
much to be said in favour of the view that a decree passed on the ground
of unchastity will not by itself be sufficient to disentitle her to
maintenance under the present provisions. It is common knowledge that
the Act has been placed on the statute book to reform the old law by
removing some of its oppressive, unjust and outworn provisions and
introducing modern and progressive measures. It will therefore be
against both the letter and the spirit of the Act to hold otherwise. 2
In another case it was observed that ‘Court is in a dilemma as to
whether to grant the relief of divorce to the appellant, while his hands
are dirty with matrimonial offence. But the unfortunate respondent, who
has suddenly became fertile and cannot resist another man, should not be
allowed to be tied down with the appellant for life. No doubt, status quo
is not the demand of justice. It is also not the demand of social norm.
Status quo will further stagnate the life of these parties. Both need
release from the religious and legal bondage, and to prevent further
bigotry, falsehood and fornication, it is just and proper to separate them

1 Gulab Jagdusa Kakawane vs. Kamal Gulab Kakwane, I (1985)


DMC 83 Bombay.
2 Gulab Jagdusa ibid
6 Law of Maintenance

now, before further damage is done. The real damage is done to Rajni,
aged 5 years, innocent who does not even know as to who her father is.
My heart bleeds for her. The legendary sexual urge of a female has
burdened this society with Rajni. May God bless this innocent child and
grant her with fortune, intelligence and diving and, thus, to become a
legendary woman of this country. My heart goes out to her predicament.
…. This decree of divorce of divorce is going to cost the appellant
heavily. Keeping in view the appalling condition of inflation, under the
provisions of Section 25 of the Act, it was directed that the appellant
shall pay a permanent alimony to his wife-respondent, Rs. 150/- per
month from the date of this judgment.’ 1

Agreement between parties


Section 25 of the Hindu Marriage Act, 1955 postulates the
exercise of an agreement fixing maintenance. It is by virtue of Section 25
of the Act that the amount of maintenance agreed to in the agreement can
be altered provided there is material change in the circumstances. This is
irrespective of any clause to the contrary in the agreement. When amount
of maintenance has been fixed by the parties in an agreement not only
the parties are entitled to the amount of maintenance but any party to the
agreement can also approach the Court seeking alteration in the amount
of maintenance due to change in circumstances. 2
In another case the parties entered into a compromise with regard
to permanent alimony under Section 125 Criminal Procedure Code, 1973.
Except the bald statement of the wife and the oral rebuttal of the
husband, there was nothing before the Trial Court to infer as to how
much earning the respondent was making. It was in this background that
the Trial Court presumed the income of the respondent husband at
Rs.3,000/- and awarded a sum of Rs.1,000/- as maintenance inspite of
the fact that in her petition under Section 125 Criminal Procedure Code,
1973 she voluntarily accepted the maintenance of Rs.400/- per month.
Therefore, it was held that there was no infirmity in the impugned order. 3
Transfer of property in lieu of maintenance in terms of the deed.
Such document compulsorily requires registration under section 17 and

1 Hargovind Soni vs. Ramdulari, AIR 1986 MP 57: 1986 MPLJ 105:
1986 Mat LR 86: (1986) 1 DMC 457: (1986) 1 Civ LJ 665: (1986) 1
Hindu LR 543: 1986 Cur Civ LJ 228: (1986) 2 Hindu LR 1.
2 Ravi Singhal vs. Manali Singhal, II (2000) DMC 732 Delhi:
2000(87) DLT 658.
3 Asha Alias Darshan vs. Jai Dayal, 1997 (40) DRJ 1
Alimony—Cancellation of order 7

49 of Registration Act, 1908. Such document cannot be looked into for


ascertaining the nature of possession of property. 1

Attachment of property
In one case the petitioner had asked for permanent alimony under
Section 37 of the Act and in case she succeeded in getting the order of
judicial separation under Sections 22 and 23 of the Act in her favour and
against the respondent, she would be entitled to the grant of permanent
alimony. It was held that therefore, there should be left some security in
the form of immoveable properties or otherwise which should be
sufficient and adequate enough for the grant of permanent alimony under
section 37 of the Act and that the house of husband can be adequate
security for the payment of permanent alimony to the petitioner in case it
is granted by the Court because every Court has inherent power to grant
relief during the pendency of the proceedings if the interest of justice so
requires. 2

Cancellation of order
Under Section 25(1) of Hindu Marriage Act, 1955, a gross sum
can be decreed. In terms, sub-s. (3) does not restrict the powers of the
Court to rescind only the payment of monthly and periodical sums. Sub-
section (3) has been widely couched and prima facie it might be made
applicable to rescission of an order awarding a gross sum. Though the
matter is not free from difficulty on account of the inartistic language in
which the section has been worked and the absence of any authority on
the point, on a close scrutiny, the view that a decree awarding gross sum
cannot be rescinded appears to be more reasonable. The difference in
wording in sub-sections (2) and (3) is somewhat significant. Under sub-s.
(2), it the Court is satisfied that there is a change in the circumstances of
either party at any time after the order has been made under sub-s. (1), it
may vary, modify or rescind any such order in such manner as it may
deem just. To illustrate, if the husband had higher income at the time of
the decree, but he becomes indigent later on and is not in a position to
pay the sums towards maintenance, the Court may step in to reduce the
amount. Similarly if the wife gets an employment and earns a substantial
income sufficient to maintain herself, the Court may rescind the order or
decree granting maintenance. Thus in case of change in circumstances,

1 Bhaiya Ramanuj Pratap Deo vs. Lalu Maheshanuj Pratap Deo, AIR
1981 SC 1937: 1981(4) SCC 613: 1982(1) SCR 417: 1981(3) Scale
1425
2 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185
Del.
8 Law of Maintenance

the Court has been given ample power either to vary, modify or rescind
the order. 1
Under sub-section (3), however the Court has been given the
power only to rescind. The word ‘rescind’ means to annual or cancel. If
the conditions prescribed under sub-s. (3) exist, that is, if a party in
whose favour the order has been made remarries, or, if such a party is the
wife and she does not remain chaste, or, if such a party is the husband
and he has had sexual intercourse with any woman outside wedlock, the
Court shall rescind the order. In case of payment of monthly or
periodical sums, the Court can rescind the order as such payments relate
to future payments only. Conferring power on the Court to annul future
payments after accrual of cause of action as prescribed in sub-s. (3)
appears to be reasonable. The same argument does not, however, apply to
rescission of an order granting gross sum, which would amount to
annulment of a past liability and not a future one. Such annulment also
would lead to an absurdity inasmuch as the past dues accruing in favour
of the wife in between decree and the remarriage cannot be rescinded
under the sub-section as such liability constituted an integral part of the
gross sum decreed. The past and future liabilities constituting the gross
sum are not severable. Rescission of such an indivisible liability cannot
therefore be countenanced. 2

Christian law
When the suit filed by the husband was dismissed hence the grant
of maintenance is irregular. Section 36 of the Indian Divorce Act
provides that the wife may present a petition for alimony pending the
suit. The Court on being satisfied on the truth of the statement therein
contained, may such order on the husband for payment to the wife of
alimony pending the suit as it may deem just. Section 15 of the Indian
Divorce Act also provides that in any suit instituted for dissolution of
marriage, if the respondent opposes that relief sought on the ground, in
case of such suit instituted by a husband, of his adultery, cruelty, or
desertion without reasonable excuse, or in case of such suit instituted by
a wife, on the ground of her adultery and cruelty, the Court may in such
give to the respondent on his or her application, the same relief to which
he or she would have been entitled in case he or she had presented a
petition seeking such relief, and the respondent shall be competent to
give evidence of or relating to such cruelty or desertion. Thus, it is seen
that the Court has power to grant maintenance pending suit under Section

1 Nanigopal Chakravarty vs. Renubala Chakravarty, AIR 1965 Orissa


154: 31 Cut LT 205.
2 Nanigopal Chakravarty vs. Renubala Chakravarty ibid.
Alimony—Conduct of parties 9

36 of the Indian Divorce Act and has power to order maintenance under
Section 37 of the Indian Divorce Act only when a decree is made
absolute decelerating the marriage to be dissolved, or on any decree of
judicial separation obtained by the wife. Permanent alimony and
maintenance can only be granted in case divorce is granted and if the
marriage between parties subsists. If the petition by the husband as in the
instant case fails, then no decree is passed, i.e., the decree is denied to
the husband. Alimony, cannot, therefore be granted in a case where a
decree for divorce is reused. Ultimately alimony on a permanent basis as
maintenance is given to an ex-spouse and if a petition fails, then the
marriage still subsist unaltered by the intervention of any decree and the
normal rights of the parties to be found in the legal system under which
they are married has to prevail. Thee is no question of granting alimony
in such cases, because the matrimonial rights of the parties are to be
found in the legal system which operates, requiring one of the parties to
support the other and if there is failure to do so, then the other partner
can seek maintenance by recourse of the civil or criminal Court. There is
no question of granting alimony in such cases. The word “decree” is used
in matrimonial cases in special sense different from that in which it is
used in Civil Procedure Code. 1

Claim in appeal
Merely because a prayer can be made subsequently to the same
court would not defeat the right of appeal of a party. Therefore, it is to
be considered whether this appeal is maintainable. An appeal lies against
an order under Section 25 as provided in Section 28(2). An order under
Section 25 of the Act envisages either refusal of the relief or grant of the
same. Therefore when a Court has power to deal with an application
subsequent to the decree in a proceeding, ignoring the same cannot be
said to be an order. In the circumstances there being no order under
Section 25 of the Act, the appeal is not maintainable. 2

Conduct of parties
Apart from the property or income available to either the husband
or the wife, the relevant factor is the conduct of the parties by which one
may reasonably understand the conduct not merely of a wife who applies

1 Winfred Dhanraj Sameul vs. Betsy Ratnakumari, II (1992) DMC


219 Mad.
2 Jayanti Pradhan vs. Kunjabehari Pradhan, AIR 1987 Orissa 184:
(1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Cut LT 417:
(1987) 1 Hindu LR 222.
10 Law of Maintenance

for or claims alimony but also of the husband in relation to their life
together as husband and wife. 1
In Patel Dharmshi Premji vs. Bai Sakar Kanji, 2 permanent
alimony and maintenance were claimed long after the passing of the
decree of divorce, and the person who claimed maintenance was also
guilty of not obeying the decree for restitution of conjugal rights. When
an objection was taken that Section 25 cannot be invoked by a wife after
a decree of divorce had been passed against her and an erring wife
cannot maintain an application under Section 25 of the Hindu Marriage
Act, the Court held that under Section 25, permanent alimony can be
granted to a wife even after a decree of divorce had been passed against
her as that section specifically use the words “at any time subsequent
threreto” and that maintenance can be granted thereunder even to an
erring spouse and that the mere fact that the wife did not comply with the
decree for restitution of conjugal rights and that was the cause for
passing of a decree against her, cannot by itself disentitle her to claim
permanent alimony under the section. In that case, Bhagwati, J., as he
then was, referred to the following observations of Denning, LJ., in
Sydenbam vs. Sydenbam and Illingworth. 3
“There is nothing in the statute to say that a wife against whom a
decree has been made cannot be awarded maintenance, and there
is nothing in it about discretion being exercised in favour of one
side or the other or about a compassionate allowance. All it says
is that on a decree of divorce the Court may award maintenance
to the wife. This includes a guilty wife as well as an innocent one
but, in awarding maintenance the Court must have regard, of
course, to the conduct of the parties.”
His lordship also referred to the observations of Hodson, LJ in
Clear vs. Clear, 4 wherein a difference has been made in a common law
right to get maintenance and the right to get maintenance arising by
virtue of divorce legislation, and that even it the wife has forfeited her
right to get maintenance under the common law, she is entitled to get
maintenance under a provision of the divorce legislation. After making
reference to the above observations of Denning LJ and Hodson LJ., it
was pointed out in the Gujarat Case that under Section 25 Hindu
Marriage Act, 1955, permanent alimony can be granted to even an erring
spouse and that the fact that the wife was the guilty spouse can only be

1 Latithamma vs. R. Kannan, AIR 1966 Mysore 178 (DB).


2 AIR 1961 Gujarat 150 (DB)
3 (1949) 2 All ER 196.
4 (1938) 2 All ER 353
Alimony—Conduct of parties 11

taken as a relevant factor in assessing the conduct of the parties and in


determining the amount of permanent alimony. 1
It may be noted that the conduct of the parties is otherwise a
relevant criterion under section 37 of Divorce Act, 1869.
In case, the marriage has been dissolved under Section 13(1) (ia)
of Hindu Marriage Act, 1955 on the ground that the wife was living in
adultery or was leading an immoral life, her application for permanent
alimony may be dismissed on the ground that even after the decree of
divorce she continues to lead such a life. 2
In case on non compliance of decree for restitution of conjugal
rights, the wife could show that although she did not comply with the
decree for restitution of conjugal rights she could provide some cause to
live away from the husband by supporting the same by evidence. But she
had not raised any plea whatsoever as to why she is willing to live away
from her husband. In execution proceedings her stand was that she had
danger to her life. In those proceedings, she led no evidence on that
aspect of the matter and if on perusal of that evidence it could be
concluded that there was really some apprehension to her from the side
of the husband of her-in-law, probably, she would have had a good case
but when no evidence having been brought on record, the fact remains
that as a wife, she wants to live away whereas the dicta of law is that she
must go with her husband. In such case of divorce the tie of marriage
ceases to exist between the parties and after divorce, the former husband
cannot say that he is prepared to keep his former wife in his house and
will provide her all necessities of life. After divorce she has to live away
and for that she becomes entitled to maintenance in law except in few
cases like re-marriage, on becoming unchaste or for certain allied
matters. But in the present case the tie of husband and wife still
continues in spite of grant of decree for restitution of conjugal rights and
for that reason the husband is very much right is saying that she should
come and live with him so that he can provide her with all necessities of
life. If in spite of being wife she does not want come and live with the
husband, she is not entitled to claim permanent alimony. 3
Another view has been taken by Madhya Pradesh High Court
holding that for determining the case for grant of application under

1 Rajagopalan vs. Kamalammal, I (1982) DMC 171 Madras: AIR 1987


Mad 187: 94 Mad LW 695: (1981) 2 Mas LJ 359: 1982 Hindu LR
23.
2 Ram Kishan vs. Savitri Devi, AIR 1982 Delhi 458: (1982) 2 DMC 5:
1982 Rajdhani LR 622.
3 Santosh Kumari vs. Dharam Pal, I (1984) DMC 423 P&H.
12 Law of Maintenance

Section 25 of the Act the effect of non-reconciliation on the part of the


parties should not be blown out of all the proportions. In this case, the
wife had deserted the husband and consequently a decree of divorce was
granted. It was held that in a Court of law it would be almost impossible
to find out the true facts regarding the justification of the conduct of
wife. She was required to live with the parents of the husband. She
would not able to prove fact for justifying her conduct. The fact remains
that she was required to live in strange place without the support of the
persons who could adjust with her despite her defects. In that situation
refusal of wife to live with the husband may have some justification
which she was unable to prove in accordance with law. Consequently,
the Court may objectively consider conduct of the husband too along
with that of wife or coming to just conclusion. The Court cannot take one
sided view of the matter. 1
After adopting the above line of reasoning it was further held that
the wife cannot permanently live with her parents for the simple reasons
her parents are likely to out live her in normal circumstances where she
will go. She is, therefore, entitled to maintenance and it is the legal duty
of the husband under Section 25 of the Act to divorcee wife. Considering
the case of the appellant with this circumstances along with other
circumstances of the case it was held that the application of the wife was
not rightly rejected by the Court below. 2

Consent decree
The whole purpose of Section 19(2) of the Act was that if
conciliation between the parties has been arrived at, the parties are
bound by it and cannot wriggle out of it. This is the reason why it has
been provided against a decree passed on the basis of compromise. If the
arguments of learned Counsel for the appellant were to prevail it would
mean that the object of the Act, i.e. conciliation and early settlement of
disputes between the wife and husband would be fraught with danger and
would be completely outside the aims and objects of the Act. We are
accordingly of the considered opinion that in view of the provisions of
Section 19(2) of the Act no appeal would be maintainable against the
judgment decree of divorce based on conciliation between the parties. As
the appeal itself is not maintainable the other submissions need not be
considered. 3

1 Archana Singh vs. Dharampal Singh, I (1999) DMC 113 MP.


2 Archana Singh vs. Dharampal Singh, ibid.
3 Ajay Kapoor vs. Pramila Kapoor, I (1992) DMC 85 All.
Alimony—Considerations for granting alimony 13

Considerations for granting alimony


In the matter of payment of permanent maintenance by the Privy
Council in Ekradeshwari vs. Rameshwar, 1 as under:
“Maintenance depends upon a gathering together of all the facts
of the situation, the amount of free state, the past life of the
married parties, and the families, survey of the condition and
necessities and rights of the members on a reasonable view of
change of circumstances possibly required is the future, regard
being of course had to the scale and mode of living, and to the
age, habits, seats (?) and class of life of the parties. In short, it is
out of a category of circumstances, small in themselves, that a
safe and reasonable induction is to be made by a court of law in
arriving at a fixed sum.” 2
While fixing permanent alimony and maintenance under Section
25 of the Hindu Marriage Act, 1955, the court is expected to make
detailed inquiry and has to take into account not only the income but
other properties of the parties, their conduct and other circumstances of
the case that the court might consider relevant.
The following principles 3 would appear to be relevant for the
purpose:
(1) position and status of the parties;
(2) reasonable want of claimant (towards food, clothing, shelter,
medical attendance and treatment, education and the like);
(3) income of the claimant;
(4) income of the opposite party;
(5) number of persons opposite party is obliged to maintain.
Two corollaries may be added here:
(1) In arriving at the income of a party only involuntary
deductions like income-tax, provident fund contribution, etc. are
to be excluded; and
(2) though under the law opposite party may to be obliged to
maintain brother or sister but if that brother or sister having no
income is living with the opposite party as member of his family
and where either there are no parents or are unable to maintain
themselves, the court may in a given circumstance consider the
expenses to be incurred on the maintenance of brother or sister by
the opposite party.

1 (1929) 56 IA 182
2 Vishnu Shankerdan Adnani vs. Nanisha Vishnu Adnani, II (1984)
DMC 11 Bombay.
3 Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988
(2) DMC 110: 1988 RLR 428
14 Law of Maintenance

After all, court cannot be expected to adopt a mechanical


approach while interpreting the provisions of law incorporating
principles of social justice like Section 24 of the Act. 1
Where the parents were facing problem of life of such daughter in
all matters and ultimately, in the net analysis, the divorced daughter
would be left alone, cursed by the society and a burden on herself both,
socially and economically. She may or may not have any shelter to live
in it and bread to eat. In the instant case, she is illiterate admittedly and
that would add insult to injury because she would not be able to earn
anything. The remarriage is very difficult, for-fetched proposition in
most of the communities amongst Hindus. In view of this, permanent
alimony should be substantially a relief to her at least. 2

Contracting out
The case of Hirabai Bharucha vs. Pirojshah Bharucha 3 stems
from proceeding under Section 40 of the Parsi Marriage and Divorce Act
1936. under this provision, a Court is authorised to award permanent
alimony to a wife either at the time of he passing of any decree under
that Act or subsequently thereto. The wife is granted a decree of divorce.
After the decree is passed, the husband and wife arrive at certain consent
terms. One of the terms of the consent order is:
“This Court both declare that the defendant hereby agree not to
claim any alimony now or at any time in future”.
The wife applied under Section 40 for alimony. It was held that
on grounds of public policy the wife cannot enter into a contract that she
will not claim any alimony in future. The contract was void and the
Court will take notice of that and ignore that part of the order although it
was made by consent. Reliance was placed upon a remark of Lord Atkin:
“The wife’s right to future maintenance is a matter of public
concern which she cannot barter away.”
Accepting this proposition, the court in above case took the view
that the wife can not barter away her right to future maintenance and
enter into a contract to that effect and such a contract will be a void
contract in the eye of law.

1 Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988
(2) DMC 110: 1988 RLR 428
2 Shanti Devi vs. Raghav Prakash, II (1985) DMC 85 Raj: (1985) 1
WLN 437: 1985 Rajasthan LR 536: (1985) 2 Cur CC 305: (1985) 2
Hindu LR 301: AIR 1985 Raj 13
3 AIR 1945 Bombay 537
Alimony—Death of husband 15

In another case arising out of Hindu Marriage Act, 1955 it was


held that assuming a wife gives up her right to claim a higher rate of
maintenance allowance in future, her consent will not bring into
existence a valid contract. Such an agreement will not only defeat the
provisions of Sub-section (2) of Section 25 but will also frustrate the
purpose of giving maintenance. Judicial notice can be taken of rising
prices with the result that the cost of bare existence is regularly rising,
rather mercurially. In principle, it makes no difference between an
agreement by a wife not to claim any alimony at all and an agreement not
to claim any enhancement of the rate of maintenance allowance,
whatever be the change in the circumstances. 1

Death of husband
One view is that the payment of alimony is, by its very nature, a
personal obligation and this being so, it must inevitably come to an end
with the deceased husband no longer being there to fulfil it. Further, it is
equally clear that the amount payable as alimony does not ipso facto
become a charge on the respondent’s property. A plain reading of
Section 25 of the Act would show that such a charge can be created only
by a specific order to that effect in terms of the provisions thereof. In
other words, the section contains en enabling provision regarding
creation of a charge on the immoveable property of the respondent to
secure the payment of alimony, but it nowhere lays down that such a
charge shall be inherent in an order awarding alimony. Admittedly, no
such order had been passed in the present case. Alimony, being at any
rate a right enforceable against the husband in personam, it must be
deemed to have ceased with the death of the husband. 2
However another view is that there is no rationality in the
contention that a decree for maintenance or alimony gets extinguished
with the death of the husband when any other decree even though not
charged on the husband’s property would not get so extinguished. A
decree against the husband is executable against the estate of the
husband in the hands of the heirs and there is no personal liability. In
law a maintenance decree would not make any difference. The decree
indicates that maintenance was payable during the life time of the
widow. To make such a decree contingent upon the life of the husband is
contrary to the terms and the spirit of the decree and the appellant has

1 Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.
2 Mst. Gurdev Kaur vs. Mst. Channo, AIR 1986 P&H 251: (1985) 2
Hindu LR 591: ILT (1986) 1 P&H 208: 1985 Recent Laws 205: 1985
(2) 88 Pun LR 603: 1986 Marri LJ 371.
16 Law of Maintenance

taken a stand that though the widow is alive, the decree obtained by her
would become ineffective with the passing away of the husband. 1
Where maintenance has been made a charge on the husband’s
estate, the death of the husband would not at all affect the decree and not
withstanding such death, the estate can be proceeded against for
realization of the maintenance dues for post-death period. 2
In regard to the Special Marriage Act it was held that it was a
statute of 1954 made by the Indian Parliament after independence. For
the interpretation of a provision of this statute there is no warrant to be
guided by English decisions. There is no ambiguity in Section 37 for the
interpretation of which it is necessary to go beyond the provision itself.
It is one of the settled principles of interpretation that the Court should
lean in favour of sustaining a decree and should not permit the benefit
under a decree to be lost unless there be any special reason for it. In
incorporating a provision like Section 37 in the Act, Parliament intended
to protect the wife at the time of divorce by providing for payment of
maintenance. If the husband has left behind an estate at the time of his
death there can be no justification for the view that the decree is wiped
out and the heirs would succeed to the property without the liability of
satisfying the decree. 3

Discretion of Court
Sub-section (3) provides for varying, modifying or rescinding of
the order of maintenance in two eventualities viz. the beneficiary of the
maintenance order has remarried or has not remained chaste. Even in
such case the maintenance order is not necessarily to be varied, modified
or rescinded but may be varied or modified or rescinded or only varied or
modified instead of being rescinded and that too in such manner as the
court may deem just. The history of the sub-section shows that prior to
its amendment by Act 68 of 1976, for the words “it may at the instance
of the other party vary, modify or rescind any such order in such manner
as the court may deem just” the words were ‘it shall rescind the order”.
The deliberate change which the legislature has made in the language of
the sub-section therefore shows that the Court is given a wife discretion
in the matter depending upon the facts of each case. It is necessary to
emphasize this discretion vested in the Court 4 discussed above, appear to

1 Aruna Basu Mullick vs. Dorothea Mitra, II (1983) DMC 289


Supreme Court.
2 Aruna Basu Mullick vs. Dorothea Mitra, ibid
3 Aruna Basu Mullick vs. Dorothea Mitra, ibid.
4 the decisions in AIR 1967 Kerala 181 and AIR 1970 J&K 150 were
dissented
Alimony—Dismissal of proceeding 17

have proceeded on the assumption that this sub-section vests no


discretion in the Court and the court has to cancel the order of
maintenance once unchastity of the party is proved. It has also to be
remembered that these decision were prior to the amendment of sub-
section (3). 1

Disentitlement
Wife committing act causing miseries to husband and continue to
harass the husband even after the dissolution of marriage. Rarest of rare
case in which wife extracted further sum with the help of police from the
husband, it was held that the amount of alimony cannot be enhanced any
further. 2
The effect of non-reconciliation on the part of the parties should
not be blown out of all the proportions. In this case, the wife had
deserted the husband and consequently a decree of divorce was granted.
In a Court of law it would be almost impossible to find out the true facts
regarding the justification of the conduct of wife. She was required to
live with the parents of the husband. She would not able to prove fact for
justifying her conduct. The fact remains that she was required to live in
strange place without the support of the persons who could adjust with
her despite her defects. In that situation refusal of wife to live with the
husband may have some justification which she was unable to prove in
accordance with law. Consequently, the Court may objectively consider
conduct of the husband too along with that of wife or coming to just
conclusion. The Court cannot take one sided view of the matter. Wife
cannot permanently live with her parents for the simple reasons her
parents are likely to out live her in normal circumstances where she will
go. She is, therefore, entitled to maintenance and it is the legal duty of
the husband under Section 25 of the Hindu Marriage Act, 1955 to
divorcee wife. 3

Dismissal of proceeding
The word ‘decree’ as used in Section 25 cannot be understood in
a sense different from that, in which it is used in other provisions of the
Act. No doubt, the Code of Civil Procedure gives a different definition to
the word ‘decree’ than that in Hindu Marriage Act, 1955. Alimony can
be granted on a proper construction of the Act only when a decree has
been passed of the type mentioned earlier. If a decree has been passed of

1 Gulab Jagdusa Kakawane vs. Kamal Gulab Kakwane, I (1985)


DMC 83 Bombay.
2 Kiran Mandal vs. Mohini Mandal, 1995 (1) DMC 312 P&H (DB)
3 Archana Singh vs. Dharampal Singh, I (1999) DMC 113 MP.
18 Law of Maintenance

the type mentioned earlier. If a decree is refused, then no order for


alimony can be passed. The word ‘decree’ is used in matrimonial cases
in a special sense different from that in which it is used in the Code of
Civil Procedure. There is no doubt that alimony cannot be granted in a
case where a decree is for divorce other decree is refused because in such
a case the marriage still subsists. 1
The fact that the petition of the petitioner spouse was dismissed
would not be a bar to the granting of maintenance to the successful
spouse. Depriving the respondent of the alimony granted to her would be
to leave her destitute, for she certainly does not have the means to live.
The only relation she has in the world is a brother who is not in a
position to give her succour which is inferred from the fact that she was
put up with all manner of humiliation rather than take a refuge with her
brother. Where a woman is so defenceless, it would be a travesty of
justice if technicalities prevail and deprive her of the small consolation
which she has got by way of future alimony. 2
The other view is that when the application filed for divorce is
dismissed, there is no decree within the meaning of “any decree” in
Section 25 of “the Act”. Therefore, the application filed by the wife for
permanent alimony under Section 25 of the “the Act” will not lie. 3
The expression “passing any decree” has been given a meaning of
decree whereby relief has been granted, a decree as contemplated in
Section 9 to 13 and this expression has not been given a meaning so as to
include the dismissal of the petitions contemplated under Section 9 to
13. 4
The language of Section 25 is plain enough to indicate that the
Court is not entitled to pass such an order while dismissing the petition.
The words “at the time of passing any decree” do not include the case of
a dismissal. The passing of an order of dismissal cannot be regarded of
the passing of a decree. 5

1 Sushma vs. Satish Chander, II (1983) DMC 255 Delhi.


2 Sadanand Sahadeo Rawool vs. Sulochanna Sadanand Rawool, AIR
1989 Bombay 220: 1989 Mah LJ 337: (1989) 1 Bom CR 495:
(1989) 1 Hindu LR 708.
3 P. Shankar vs. P. Vasanthi, AIR 1995 AP 155 (DB): 1995 (2) DMC
313 (DB) AP
4 Darshan Singh vs. Mst. Daso, AIR 1980 Raj 102: 1979 WLN 412:
1979 Raj LW 546: 1980 Hindu LR 454: 1980 Mat LR 244: 1979
WLN 695.
5 Akasam Chinna Babu vs. Akasam Parbati, AIR 1967 Orissa 163:
ILR (1967) Cut 439.
Alimony—Dismissal of proceeding 19

The words, ‘at the time of passing any decree or any time
subsequent thereto’ indicate that an order for permanent alimony or
maintenance can only be made when a decree granting substantive relief
is passed. However, the relief of permanent alimony cannot be given
where the main petition for relief under the Act such a divorce judicial
separation, etc. is dismissed or withdrawn. 1
When a Court has power to deal with an application subsequent to
the decree in a proceeding, ignoring the same cannot be said to be an
order. In the circumstances there being no order under Section 25 of the
Act, the appeal is not maintainable. 2
Permanent alimony and maintenance under Section 25 of Hindu
Marriage Act, 1955, can only by granted in case divorce is granted and
not if the marriage subsists. The word ‘decree’ is used in matrimonial
cases in a special sense different from that in which it is used in Civil
Procedure Code, 1908. The passing of the '‘decree'’ in Section 25 means
the passing of the decree of divorce, restitution of conjugal rights, or
judicial separation and not the passing of a decree dismissing the
petition. If the petition fails then no decree is passed, i.e., the decree is
denied to the applicant. Alimony, cannot therefore, be granted in a case
where a decree for divorce or other decree is refused because in such a
case the marriage subsists. 3
The words “at the time of passing any decree or at any time
subsequent thereto” contemplate that the jurisdiction under Section 25 can be
exercised only when the main petition is allowed and a decree as
contemplated by Section 9 to 13 is passed by the Court. For example, had the
application for divorce been allowed, the Court would have been competent
to pass an order under Section 25. The view that when the main petition is
dismissed, the Court has no jurisdiction to pass any order under Section 25 of
Hindu Marriage Act, 1955, is supported by a large number of authorities.4

1 Badri Prasad vs. Urmila Mahobiya, AIR 2001 Madhya Pradesh 106.
2 Jayanti Pradhan vs. Kunjabehari Pradhan, AIR 1987 Orissa 184:
(1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Vut LT 417:
(1987) 1 Hindu LR 222.
3 Ranganatham vs. Shyamala, AIR 1990 Mad 1.
4 Darshan Singh v. Daso, 1 (1981) DMC 210. Gurcharan Kaur v.
Ram Chand, AIR 1979 P&H 206, Hiralal v. Lilavati AIR 1961
Gujarat 202, Shantaram v. Hirabai, AIR 1962 Bom 27, Minarani v.
Dasarath, AIR 1963 Cal. 428 and Akasam Chinna v. Parbati AIR
1967 Orissa 162.
20 Law of Maintenance

The divergence of judicial opinion of different High Courts as


above, however, has been set at rest by the Apex Court in Chand
Dhawan (Smt) vs. Jawaharlal Dhawan 1:
“It is difficult to come to the view that a claim which is ancillary
or incidental in a matrimonial court under the Hindu Marriage
Act could be tried as an original claim in that court; a claim
which may for the moment be assumed as valid, otherwise
agitable in the civil court under the Hindu Adoptions &
Maintenance Act, 1956. As said before, these two enactments
keeping apart, the remaining two i.e., Hindu Succession Act,
1956 and Hindu Minority & Guardianship Act, 1956 are a
package of enactments, being part of one socio-legal scheme
applicable to Hindus. When distinctive claims are covered
distinctly under two different statutes and agitable in the courts
conceived of thereunder, it is difficult to sustain the plea that
when a claim is otherwise valid, choosing of one forum or the
other should be of no consequence. These are not mere procedural
technicalities or irregularities, as termed by one line of reasoning
by some of the High Courts. These are matters which go to the
root of the jurisdiction. The matrimonial court, a court of special
jurisdiction, is not meant to pronounce upon a claim of
maintenance without having to go into the exercise of passing a
decree, which implies that unless it goes onwards, moves or leads
through, to affect or disrupt the marital status between the
parties. By rejecting a claim, the matrimonial court does make an
appealable degree in terms of section 28, but neither affects nor
disrupts the marriage. It certainly does not pass a decree in terms
of section 25 for its decision has not moved or done anything
towards, or led through, to disturb the marriage, or to confer or
take away any legal character or status. Like a surgeon, the
matrimonial court, if operating, assumes the obligation of the
post operatives, and when not, leaves the patient to the
physician.” 2
Therefore in view of above a claim or an order granting alimony
is not permissible if the original proceedings resulted in dismissal of
petition of the plaintiff.

Distinction with maintenance


Section 25 of Hindu Marriage Act, 1955 lays down that at the
time of passing the decree or thereafter the Court is competent to pass an
order for maintenance or support. This is to be on the basis of an
application. Ss. 9 to 13 and 23-A use the word ‘petition’. Ss. 24 and 25

1 (1993) 3 SCC 406: 1993 AIR SCW 2548: 1993 (3) SCR 954: 1993
(2) DMC 110
2 Chand Dhawan vs. Jawaharlal Dhawan, SCR 1993(3) 954.
Alimony—Divorce due to mental disorder 21

use the word ‘application’. Thus, the Legislature made a distinction


between a petition and an application. Section 25 does not envisage
arrears of maintenance. This deals with the future. Moreover, the
Legislature intends that the power under Section 25 to be exercised on
the basis of an application. Application to a Court requires proper fee to
be paid. He mandatory provision of Section 6, Court-fees Act, provides
that no Court shall receive a document which is not supported by proper
fee. Written statement does not require any fee. The assertion is that
court-fee of about Rs. 2,000/- is payable. All these factors indicate that
the claim is not one under Section 25 of the Act. Being a benevolent
provision the prayer could have been considered liberally to convert the
same to one under section 25 of the Act. 1

Divorce due to mental disorder


In one case husband sought to deny the wife, the alimony on the
ground that she was suffering from mental disorder. The husband had
met his wife before the accepted the proposal of marriage with her. This
being so, the husband had the opportunity to meet and talk to his wife
before he accepted the proposal of marriage. In this background it was
observed:
‘It cannot be said that the respondent-wife was guilty of any
matrimonial offence or any blameworthy conduct and the ground
for granting the decree of divorce is also not such. This being so,
the exercise of discretion is granting permanent alimony must
depend on property and moral justice. This is a case in which the
respondent wife cannot be blamed for the marriage ending in a
divorce. The husband himself did not choose to apply for a decree
of nullity on the ground that the marriage was in contravention of
the condition specified in Clauses (ii) of Section 5 of the Act,
because the wife was suffering from mental disorder even prior to
the marriage. This conduct of the husband indicates that the
husband himself did not believe that the wife was suffering from
mental disorder prior to the marriage. He applied for and obtained
divorce on the basis that the marriage was valid. In view even of
this conduct of the husband indicates that the husband himself did
not believe that the wife was suffering from mental disorder prior
to the marriage this position, it would not be just and proper to
take into consideration the alleged earlier mental illness of the
wife as a circumstance for determining the amount of permanent
alimony. We much proceed on the basis that the mental disorder
on which ground decree for divorce has been granted was not in
existence prior to the marriage. In these circumstances, there can

1 Jayanti Pradhan vs. Kunjabehari Pradhan, AIR 1987 Orissa 184:


(1987) 1 DMC: (1987) 1 Orissa LR 350: (1987) 63 Cut LT 417:
(1987) 1 Hindu LR 222.
22 Law of Maintenance

be no occasion to refuse to grant permanent alimony since


exercise of discretion under Section 25 of the Act cannot justify a
total refusal to grant any permanent alimony.’ 1
Effect of desertion
No ‘dry and cut’ solution can be found out for measuring the
conduct of desertion in terms of reduction in quantum of maintenance.
However, when the legislature has introduced an amendment in Section
25 of Hindu Marriage Act, 1955, it cannot be treated as redundant and
should be given effect to logically and legally. It was further held
‘Undoubtedly, the wife in the present case deserted the husband, did not
reconcile and return to the husband during the pendency of the first
litigation of restitution of conjugal rights. She insisted on remaining
separately even when a decree for restitution of conjugal rights was
passed, and forced the husband to file a petition for dissolution of
marriage, and now the marriage has been dissolved, for which she alone
is responsible, she cannot persuade this Court for grant of such
maintenance which should be enough for maintaining her and also
meeting the expenses should be enough for maintaining her, and also
meeting the expenses of the medicines. It is self-invited trouble, for
which none else but she is responsible. The act of desertion which was
done initially and which has been consistently followed by her, in no
case can put premium over her conduct.’ 2
The fact that the wife deserted the husband and that conduct
should be considered while deciding the question of permanent
maintenance now assumes importance, because admittedly the lower
court has not considered this aspect of the matters. It is true that no ‘dry
and cut’ solution can be found out for measuring the conduct of desertion
in terms of the reduction in quantum of maintenance. However, when the
legislature has introduced this amendment in Section 25, it cannot be
treated as redundant and should be given effect to logically and legally.
Undoubtedly, the wife in the present case deserted the husband, did not
reconcile and return to the husband during the pendency of the first
litigation of restitution of conjugal rights. She insisted on remaining
separately even when a decree of restitution of conjugal rights was
passed, and forced the husband to file a petition for dissolution of
marriage, and now the marriage has been dissolved, for which she alone

1 Mukesh Mathur vs. Veena Mathur, II (1989) DMC 525 Raj: (1988)
Raj LW 676: (1988) 1 Rajasthan LR 854: (1988) 2 Civ LJ 718:
(1989) 2 Cur CC 499.
2 Umesh Chand vs. Rameshwari Devi, I (1982) DMC 211 Raj: AIR
1982 Raj 83: 1981 WLN 392: 1982 Raj LW 63: 1982 Hindu LR
172: 1982 Raj LR 21.
Alimony—Entitlement only after divorce 23

is responsible, she cannot persuade this Court for grant of such


maintenance which should be enough for maintaining her, and also
meeting the expenses of the medicines. It is self-invited trouble, for
which none else but she is responsible. The act of desertion which was
done initially and which has been consistently followed by her, in no
case can put premium over her conduct. 1

Effective date of modification


Sub-section (3) of Section 25 of Hindu Marriage Act, 1955
empowers the Court to rescind, vary or modify an order under Section
25(1) in certain conditions mentioned in Sub-section (3) itself at the
instance of the other party i.e. party other than the party to whom
alimony has been granted. That being so, the order varying, modifying or
rescinding the order of alimony cannot go beyond the date of the
application for varying, modifying or rescinding that order because it is
only when such a motion is made that the Court gets jurisdiction to very,
modify or rescind that order. 2

Employed wife
To grant permanent alimony under Section 25 of the Hindu
Marriage Act, 1955 or not, is a discretion of the Court. Permanent
alimony can be granted only when the wife has no sufficient independent
source of income. In one case both the lower Courts, considering the
evidence on record and particularly, the conduct of the wife, refused to
grant permanent alimony to her. It was amply proved that the husband
tried his level best to bring back the wife for leading a peaceful marital
life. Similarly, efforts for reconciliation were made even after a decree
of restitution of conjugal rights was passed by the lower Courts, but it
was found that the wife was not ready to join the society of her husband
though the husband was ready to join the society of his wife. The learned
Counsel for the wife stated that the wife was working as a Laboratory
Assistant in the school at Paratwada and getting more than Rs.2000/- pm.
On these facts it was held that the wife being an earning member, she
was not entitled for the permanent alimony under Section 25 of the
Hindu Marriage Act, 1955. 3

1 Umesh Chand Sharma vs. Rmeshwari Devi, II (1982) DMC 261


Raj: AIR 1982 Raj 83: 1981 WLN 392: 1982 Raj LW 63: 1982
Hindu LR 172: 1982 Raj LR 21.
2 Mohinder Singh vs. Manjeet Kaur, II (1983) DMC 284 Raj.
3 S. Rashmi Pradip Kumar Jian vs. Pradeep Kumar, 1994 (2) DMC
25 Bom
24 Law of Maintenance

Entitlement only after divorce


Permanent alimony and maintenance under Section 25 of the
Hindu Marriage Act can only be granted if divorce is granted but not
during the subsistence of the marriage. The word ‘decree’ used in
matrimonial cases in a special sense different from that in which it is
used in the Code of Civil Procedure. The use of the words ‘decree’ in
Section 25 of the Hindu Marriage Act means the passing of the decree of
divorce, restriction of conjugal rights or judicial separation and not the
passing of a decree through which the petition itself is dismissed because
if the petition fails then no decree is passed. In other words, in such
cases decree is denied to the applicant. Obviously, alimony cannot,
therefore, be granted in a case where a decree for divorce is refusal
because in such a case the marriage will subsist. 1
The power to grant alimony, contained in Section 25 of the Hindu
Marriage Act, has to be exercised when the Court is called upon to settle
the mutual rights of the parties after the marital ties have snapped by
determination or variation by the passing of the decree, or a type
mentioned in Section 10, 11, and 13 of the Act, read with Section 23, 26
and 27 of the Act, a decree can be assumed to have been passed when an
application for divorce or similar other relief is granted but surely not
when the application is dismissed. 2

Formal application
The jurisdiction under Section 25 is attracted “on application
made to it (Court) for that purpose by either the wife or the husband. In
the absence of an application, the Court has no jurisdiction to pass an
order under Section 25. 3
Claim under Section 25 of the Act has to be made on an
application furnishing all details regarding his or her own income or
other property. Further an opportunity to be given to the other side to put
forth his/her defence. Only on application an order has to be passed by
the Court granting, “permanent alimony” and “maintenance” under
Section 25 of the Act. 4
The absence of an application under Section 25 Hindu Marriage
Act, 1955 gave rise to want of essential preliminaries prescribed by the

1 Vinod Chandra Sharma vs. Rajesh Pathak, II (1987) DMC 150 All:
(1987) 1 Hindu LR 558: (1987) 1987 Mad LR 369.
2 Vinod Chandra Sharma vs. Rajesh Pathak ibid
3 Jitabandhan vs. Gulab Devi, I (1983) DMC 210 MP.
4 D. Balakrishnan vs. Pavalamani, I (2001) DMC 640 Madras (DB):
AIR 2001 Madras 147.
Alimony—Insufficient income 25

law for clothing the court with the jurisdiction to act under Section 25.
This defect of jurisdiction made the order a nullity and so non-
executable. Although the executing Court cannot go behind the decree or
order which it is required to execute, it can examine the question whether
the decree or order is a nullity or not for lack of jurisdiction. 1
However another view is that the Section 25 when it speaks of an
application does not specify that the same has to be in writing. An
application can be in writing as also by word of mouth. The fact that the
trial Court passed an order for alimony would imply that an oral
application had been made to it. 2

Grant of alimony in civil suit


If Section 25 of Hindu Marriage Act, 1955 conferred a right that
right could be worked out even in collateral proceedings if it be correct
that the declaration of nullity of such a marriage could be rendered in
such proceedings. Therefore, it will have to be found that widow is
entitled to rely on the principles of Section 25 of the Hindu Marriage Act
and to invoke the powers of the Court for making provisions for just and
fair maintenance. 3
Even apart from Section 25 of the Hindu Marriage Act, in such
matter the Court possesses the inherent power to make such orders in
matter of maintenance as may be necessary so as to meet the ends of
justice. The principles underlying Section 151 of the Civil Procedure
Code are no more in doubt. Where the need and the circumstances to do
justice require, the power to act ex debito justitiae exists and can be
invoked. 4

Insufficient income
It most cases the standard of living of one or both of the parties
will have to suffer because there will be two families to support instead
of one. When this occurs, the court clearly has to decide what the
priorities are to be and where the inevitable loss should fall. The wife is
the financially dependent spouse. She is potentially likely to suffer
greater financial loss from the dissolution or annulment of the marriage

1 Jitabandhan vs. Gulab Devi, I (1983) DMC 210 MP.


2 Sadanand Sahadeo Rawool vs. Sulochanna Sadanand Rawool, AIR
1989 Bombay 220: 1989 Mah LJ 337: (1989) 1 Bom CR 495:
(1989) 1 Hindu LR 708.
3 Rajeshbai vs. Smt. Shantabai, AIR 1982 Bombay 231: (1981) 83
Bom LR 327: 1981 Bom CR 699: 1981 Mah LJ 820: 1981 Mah LR
292: 1982 Mat LR 41: 1982 Hindu LR 445.
4 Rajeshbai vs. Smt. Shantabai ibid
26 Law of Maintenance

than the husband. But her need cannot be denied. Having regard to all the
circumstances of the case the court has to award a reasonable amount. 1
The fact that the salary of Rs. 328/- is insufficient for the
maintenance of the father and his two sons in not a ground which ought
to be taken against wife. 2

Interim order
In one case the petitioner/wife had asked for permanent alimony
under Section 37 of the Divorce Act and in case she succeeds in getting
the order of judicial separation under Sections 22 and 23 of the Act in
her favour and against the respondent, the petitioner will be entitled to
the grant of permanent alimony. Therefore, there should be left some
security in the form of immoveable properties or otherwise which should
be sufficient and adequate enough for the grant of permanent alimony
under section 37 of the Act and that aforementioned house in Green Park
can be adequate security for the payment of permanent alimony to the
petitioner in case it is granted by the Court. Every Court has inherent
power to grant relief during the pendency of the proceedings if the
interest of justice so requires. 3

Lawyer wife
In one case Husband possessed Master Degree in Social Work
and also Law Degree. Wife was an Advocate. However, she had started
her professional career only after dissention arose between the parties. It
is stated that husband was having no employment at present. In these
circumstances it was held as under:
‘Be that as it may, a wife in such circumstances is always to be
protected. In our Society a husband can get easily married but our
Society has not changed far to accept a divorced wife to be
married again in normal circumstances. Legal Profession for the
beginner is very hard. Husband has liability to maintain a wife.
Husband has approached Court for divorce. Therefore, he is to
pay some alimony to the wife. With gradual experience wife will
have her own income from the profession if she proves
successful. She may also get married if a suitable match is
available. Keeping all these circumstances a monthly payment of
Rs. 500/- (five hundred) would be adequate. Monthly payment by
itself is continuing process and may cause difficulty to both the
parties.’

1 Sheela vs. Tungal Singh, I (1984) DMC 182 Delhi.


2 Sheela vs. Tungal ibid
3 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185
Del
Alimony—Maintenance continued as alimony 27

It was also directed that the husband shall pay alimony of a


consolidated sum of Rs. 50,000/- (fifty thousand) to the wife to be paid
in four quarterly instalments of Rs. 12,500/- each quarter. It was also
held that in default of payment of any two instalments, the balance
amount can be realised by execution and if the respondent gets married
during the period of one year, further instalment payable shall not be
paid. 1

Lump-sum payment
In one case wife, with whom the son born out of wedlock was
living, has no income or property of her own has not been disputed. It
appeared from the evidence on record that she has been living in the
house of her brother. The son was aged twelve and was school going.
The father of child and the husband used to serve in the Government of
India Press and he had already retired on attaining the age of
superannuation. It was also found that he made default in payment of
alimony pendente lite. So in these facts and circumstances of the case it
was held that it would be reasonable that a gross sum should be awarded
as permanent alimony. Thus it was held to be reasonable to grant a gross
sum of Rs. 30,000/- as permanent alimony to be paid by the petitioner-
husband to the respondent-wife. 2

Maintenance continued as alimony


In the social reality in the Indian Society a divorced wife would
be materially at a great disadvantage. The Supreme Court in Saroj Rani’s
case 3 directed that even after the final decree for divorce, the appellant-
husband would continue to pay maintenance to the wife. This case was
also followed by Kerala High Court and the amount of maintenance at
the rate of Rs. 250/- per mensem was directed to be paid as alimony until
wife remarries. It was also left open to the parties to file proper
application before the lower Court for variation of the order if
circumstances change necessitating variation. 4
While allowing the appellant’s prayer for granting alimony
pendente lite, the Court below found that she did not earn any income
and did not own and property and, therefore, directed payment to her at

1 Mahir Narayan Mohanty vs. Sadyalaxmi Patnaik, I (1991) DMC


425 Orissa.
2 Amarendranath Sanyal vs. Krishna Sanyal, I (1993) DMC 565 Cal:
1993(2) CCC 195 Cal (DB).
3 Saroj Rani vs. Sudarshan Kumar Chadha, AIR 1984 SC 1562
4 Radhakumari vs. K.M.K. Nair, AIR 1988 Kerala 235 (DB): (1988) 1
Ker LJ 246: (1988) 1 Ker LT 461: (1988) 24 Reports 162: (1988) 2
DMC 166: (1988) 2 Hindu LR 486.
28 Law of Maintenance

the rate of Rs. 300/- per month. During the pendency of the present
appeal, the appellate court had directed that the appellant petitioner will
continue to receive alimony pendente lite at the same rate. Ultimately it
was held that she is entitled to receive permanent alimony from the
respondent husband at the same rate and in case, there is any change of
circumstance, either party was granted liberty to apply to the trial Court
for variation, modification or rescinding the order under Section 25 as
the said Court may deem just. 1

Meaning of ‘husband’ and ‘wife’


The provisions of Section 25 of the Hindu Marriage Act which
relate to permanent alimony and maintenance use the expression “either
the wife or the husband as the case may be” and these expression are
used at the stage when the Court is exercising jurisdiction under the Act
and the occasion arises at the time of passing any decree or at any time
subsequent thereto. It would, therefore, follow that the expression
“husband” or “wife” used in Ss. 24 and 25 are used in a descriptive sense
in order to denote a party to the marriage and not necessarily as one who
in the view of the Court at the time of passing of the order is entitled to
the legal character of wife or husband. It is well settled that the cases of
divorce and annulment of marriage have the effect of snapping the
marriage tie. If these words are literally construed, it may lead
necessarily to the confinement of Section 25 to the cases of restitution of
conjugal rights and judicial separation, which could not have been the
intention of the Legislature. 2
Therefore the terms “Wife” and “Husband” in the section 25 of
Hindu Marriage Act, 1955 are merely terms to refer to parties who have
gone through a ceremony of marriage and they do not signify an existing
relationship as spouses. 3

Modification of order
Statutory provision of Section 25 Hindu Marriage Act is no more
than a codification of the existing provisions of the Hindu Law which

1 Sandhya Bhattacharjee vs. Gopinath Bhattacharjee, AIR 1983


Calcutta 161 (DB): (1982) 1 Cal LJ 318: (1982) 86 Cal WN 665:
(1982) 2 DMC 59: 1982 Hindu LR 430: 1982 Mat LR 237.
2 Hemaraj Shamrao Umredkar vs. Leela, AIR 1989 Bombay 146:
(1988) 2 DMC 325: (1988) 2 Cur CC 488: (1988) 2 Hindu LR 583:
(1988) Mat LR 315.
3 Sister Kumar v. Sabita Rani, AIR 1972 Calcutta 4 and Kuldip
Chand v. Geetha , AIR 1977 Delhi 125 followed in Smritikana Bag
vs. Dilip Kumar Bag, I (1982) DMC 146 Calcutta: II (1982) DMC 73
DB.
Alimony—Nullity marriage 29

always conferred power upon the court to alter the amount of


maintenance where circumstances have altered. The point, however, is as
to the procedure to be adopted in making such alteration. Briefly
speaking the law before the introduction of the said Act was that, where
a decree was passed for maintenance and it contained provisions for
making an application to alter the quantum of the maintenance owing to
change of circumstances, then and then only an application could be
made. Otherwise, the court had no jurisdiction to alter the amount of a
decree by means of an application, and it was always necessary to
institute a suit for that purpose. 1

Nullity marriage
Marriage is both a sacrament and a contract for the Hindus. The
resultant relationship is both as also contractual. The grounds mentioned
in Section 5(2) of the Act as invalidating a Hindu Marriage are
incapacity to enter into a contractual relationship because of the minority
or unsoundness of mind or an inherent incapacity to achieve the very
purpose of the marriage, namely procreation, due to lack of capacity to
consummate the marriage. These are considerations which may vitiate a
contract. Invalidation due to any or all these grounds in virtually an
annulment of the contractual relationship. It is only just and proper that a
person who induced another to enter into a contractual relationship
inspite of the existence and awareness of essentially invalidating
circumstances compensates that other as an incidence of the decree of
annulment which he obtains. It may be that because these jural and
contractual relationships are so inter wined in Hindu Marriages the
former also snaps when the latter is annulled. The obligation flowing out
of the jural relationship which the court disrupts by its decree seems to
be sufficient justification for an order to pay maintenance subject to
reasonable restrictive conditions even after the decree of annulment. 2
Section 25(1) of the Hindu Marriage Act enjoins either on the
husband or the wife even after a decree under the Hindu Marriage Act is
passed, to pay maintenance to the order. In the instant case, it is not in
dispute that a decree for annulment of marriage was passed by this Court
MFA No. 387 of 1973 on 20-2-1976. That being so, it is obvious that the
erstwhile wife in the instant case could maintain an application for
maintenance. The different types of decrees that are contemplated under
the Hindu Marriage Act: decree for judicial separation, decree for

1 Menokabala Dasi vs. Panchanan Seal, AIR 1966 Cal 228 (DB): 69
Cal WN 938.
2 Gopalakrishnan Nair vs. Thembatty Ramani, I (1989) DMC 524
Kerala.
30 Law of Maintenance

restitution of conjugal rights, decree for annulment of marriage and


decree for divorce. Section states in a general way, “at the time of
passing any decree or at any time subsequent thereto”. Hence is obvious
that the parties to a decree for annulment of marriage also are covered
under Section 25(1) of the Hindu Marriage Act. 1 Hence it was therefore
held that the petition of the wife for maintenance under Section 25(1) is
maintainable. 2
In a case where the husband moves for declaration of nullity of
the marriage, due to his own fault, his epilepsy, his impotency, and his
inability to consummate the marriage, it is all the more reason why the
court shall direct him, as incidental to the dispensation whereby he
obtained what he wanted, to ensure that the person against whom the
court passed a decree at his instance should be maintained by him till she
remarried or till the court otherwise ordered. 3
Provisions of Section 25 are ancillary to the main proceedings
under the Act and must be liberally construed and the limitation upon the
exercise of power are contained in the provision itself and need not be
discovered outside the Act. This is clarified by the provisions contained
in sub-section (3) of Section 25 of the Act, where the circumstance in
which the alimony is likely to be withdrawn are specified. In my opinion,
there is no scope for enlarging the circumstances when alimony may not
be granted and I have no doubt that the benefit of the provision is not to
be denied to the parties who have suffered the misfortune to have their
marriage dissolved by the decree or the court, merely on account of the
passing of the decree, if they are otherwise entitled to the maintenance
and it was certainly not the intention of law that the parties to the
dissolved marriage must suffer further misery or starvation without grant
of alimony. Passing of the decree of annulment of marriage, therefore,
does not debar the court from granting alimony to the parties, who be
otherwise entitled to it. 4

1 Kuldip Chand v. Geetha AIR 1977 Delhi 125, Govindarao v.


Anandabai 79 Bom LR 73: AIR 1976 Bombay 433 and Muniswami
Rajoo v. Hamsa Rani (1974) Madras LJ 273: AIR 1975 Madras 15.
2 Smritikana Bag vs. Dilip Kumar Bag, I (1982) DMC 146 Calcutta: II
(1982) DMC 73 DB.
3 Gopalakrishnan Nair vs. Thembatty Ramani, I (1989) DMC 524
Kerala.
4 Kuldip Chand Sharma vs. Geeta Sharma, AIR 1977 Delhi 124:
(1976) 78 Pun LR (D) 168: 1976 Rajdhani LR 419: ILR (1976) 1
Delhi 854: (1976) 12 DLT 175: 1977 Mat LR 73: 79 Pun LR (D)
229.
Alimony—Nullity marriage 31

In regard to the rights of a woman whose marriage is void or


declared void under the provisions of the Hindu Marriage Act it has been
held 1:
‘1. Section 25 of the Hindu Marriage Act confers upon a
woman, whose marriage is void or is declared to be void,
a right to maintenance against her husband.
2. The right of maintenance can be enforced by her not only
in proceedings under Section 25 of Hindu Marriage Act
but also in any other proceedings where the validity of her
marriage is determined
3. This right can be enforced by her not only during the life-
time of her husband but also after his death against the
property of her husband after his death
4. Of course, this right of maintenance is available only
during her life time ceases if remarries.’
Even when marriage dissolved by a decree passed that, was a
nullity, the right to claim maintenance under Section 25 of the Act is not
defeated. 2
Another view to the contrary is that section 25 of the Hindu
Marriage Act, 1955, permits grant of permanent alimony to either the
wife or husband. Thus, to get the alimony for maintenance under Section
25 of the Hindu Marriage Act, 1955, it is necessary that the parties were
husband and wife. When there is a declaration given under Section 11 of
the Hindu Marriage Act, 1955, by the court that the marriage between the
parties was null and void it has effect of saying that there was no
marriage at all. That being so, there was no relationship between the
husband and wife at any time. Under the circumstances Section 25 of the
Hindu Marriage Act, 1955, has no application and the court has no
jurisdiction to grant of maintenance exercising the powers under Section
25 of the Hindu Marriage Act, 1955. 3
Similarly it has been held that the declaration of nullity of
marriage has the effect that the marriage does not exist. Prayer for

1 Shantaram Tukaram Patil vs. Dagubai Tukaram, 1987 (2) AIHLR


343
2 Devinder Singh vs. Jaspal Kaur, 1999(3) CCC 531 (P&H).
3 Bhaiyalal vs. Phoolwati Bai, 1993(3) CCC 10 (MP).
32 Law of Maintenance

alimony after such decree is not permissible which can only be granted
where marriage is dissolved by decree of divorce or judicial separation. 1
A some what middle course has been adopted in a recent case.
According to this case section 25 of Hindu Marriage Act, 1955 confers a
statutory right on the wife and the husband and confers jurisdiction on
the Court to pass an order of maintenance and alimony in proceedings
under Section 9 to 14 of the Hindu Marriage Act. At any time before or
after the decree is passed in such a proceeding, therefore, the wife or
husband could make such a claim and the conditions of Section 25(1)
will have to be satisfied. There must be a matrimonial petition filed
under the Hindu Marriage Act, then, on such a petition, a decree must be
passed by the Court concerning the material status of the wife or
husband. It is only when such a decree is passed that the right accrues to
the wife or the husband and confers jurisdiction on the Court to grant
alimony. Till then, such a right does not take place. Not only that the
Court retains the jurisdiction even subsequent to passing of such a decree
to grant permanent alimony when moved by an application in that behalf
by a party entitled to, the Court further retains the power to change or
alter the order in view of the changed circumstances. Thus, the whole
exercise is within the gamut of a broken marriage. Thus, the Legislature
while codifying the Hindu Marriage Act, reserved the right of permanent
maintenance in favour of the husband or the wife as the case may be
depending on the Court passing of the kind as envisaged under Section
14 of the Act. Thus, Section 25 should not be construed in such a manner
as to hold that notwithstanding the nullity of the marriage, the wife
retains her status for purposes of applying for alimony and maintenance.
In our view, the proper construction of Section 25 would be that where a
marriage admittedly is a nullity, this section will have no application.
But, where the question of nullity is in issue and in contentious, the
Court has to proceed on the assumption until the contrary is proved, that
the applicant is the wife. 2

Offer of re-union
The wife could show that although she did not comply with the
decree for restitution of conjugal rights she could provide some cause to
live away from the husband by supporting the same by evidence. But she
did not raise any plea whatsoever as to why she is willing to live away
from her husband. In execution proceedings her stand was that she had
danger to her life. In those proceedings, she led no evidence on that

1 Lydia Renuka vs. K. Soloman Raju, 1995 (2) DMC 619 AP: 1996(1)
CCC 311 (AP).
2 Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266 AP.
Alimony—Pregnant wife 33

aspect of the matter and if on perusal of that evidence it could be


concluded that there was really some apprehension to her from the side
of the husband of her-in-law, probably, she would have had a good case
but when no evidence having been brought on record, the fact remains
that as a wife, she wants to live away whereas the dicta of law is that she
must go with her husband. In such case of divorce the tie of marriage
ceases to exist between the parties and after divorce, the former husband
cannot say that he is prepared to keep his former wife in his house and
will provide her all necessities of life. After divorce she has to live away
and for that she becomes entitled to maintenance in law except in few
cases like re-marriage, on becoming unchaste or for certain allied
matters. But in the present case the tie of husband and wife still
continues in spite of grant of decree for restitution of conjugal rights and
for that reason the husband is very much right is saying that she should
come and live with him so that he can provide her with all necessities of
life. If in spite of being wife she does not want come and live with the
husband, she is not entitled to claim permanent alimony. 1

Powers of Appellate Court


Court in an appeal in granting the decree for restitution of
conjugal rights has exercised jurisdiction under the Hindu Marriage Act
within the meaning of Section 25 thereof, then the other relevant
provisions of Section 25 would leave no room for doubt that the
appellate Court can entertain the application under that Section for the
grant for permanent alimony. The Section having clearly authorised the
Court to order payment of alimony “at the time of passing any decree”
and “on an application made to it”, unmistakably indicates that it is the
Court, original or appellate, which has granted the decree, that would be
entitled to order grant of alimony under Section 25 of Hindu Marriage
Act, 1955. 2
It is also clear from Section 107 of the Code of Civil Procedure
as well as the language used in Section 25 of the Hindu Marriage Act,
1955, the Appellate Court, has same powers as are conferred on the
original Court. 3

Pregnant wife
In case, the marriage has been dissolved under Section 13(1) (ia)
of the Hindu Marriage Act, 1955 on the ground that the wife was living

1 Santosh Kumari vs. Dharam Pal, I (1984) DMC 423 P&H.


2 Smyamali Sarkar vs. Ashim Kumar Sarkar, I (1989) DMC 40 Cal.
3 D. Balakrishnan vs. Pavalamani, I (2001) DMC 640 Madras (DB):
AIR 2001 Mad 147 DB.
34 Law of Maintenance

in adultery or was leading an immoral life, her application for permanent


alimony may be dismissed on the ground that even after the decree of
divorce she continues to lead such a life. Where, however, the evidence
is, like in the present case, that she had conceived during the period of
desertion and delivered a child, her application for permanent alimony
cannot be thrown out on that ground alone. It is well settled that illicit
conception by itself is not “living in adultery”. It would, however, be
open to a husband whose marriage has been dissolved on the ground that
wife has deserted him to prove while contesting that application that the
wife lives in adultery. 1
Procedure
Under Section 36 of Divorce Act, wife alone has the right to file
an application. Principle of natural justice has been reflected in the
section itself which requires the copy of the application to be served on
the husband. Trial Court is required to consider the truth of the
statements made in the application and thereafter, on its findings shall
make such order on the husband as it may deem just for payment of
alimony to the wife, pending disposal of the suit. In the proviso clear
restriction has been made that such pendente lite alimony shall not
exceed one-fifth of the husband’s average net income for the three years
next preceding the date of the order. Thus, the Court considering such
application is to determine the net income for three years and on the
facts and circumstances of each case shall determine the quantum of
alimony which shall not exceed one-fifth of the average thereof. 2

Quantum
In order to grant permanent alimony to a divorced wife, the
factors such as status of the parties, their sources of income, and
properties, if any, held by them, their employment etc., are to be taken
into consideration. 3
Taking all these factors into consideration, it was held that
instead of directing the respondent to pay monthly to pay monthly
maintenance to the appellant, the respondent could be directed to pay a
lump sum amount towards permanent alimony to the appellant which
could be just and reasonable for her maintenance. The facts of this case
were that the wife was practising as qualified Post-graduate doctor in

1 Ram Kishan vs. Savitri Devi, AIR 1982 Delhi 458: (1982) 2 DMC 5:
1982 Rajdhani LR 622.
2 Jayanti Menjet vs. Asit Kumar Mohanty, AIR 1988 Orissa 195:
(1988) 1 Orissa LR 277: (1988) 1 Cur CC 702: 1988 Mat LR 301
3 Lokeshwari vs. Srinivasa Rao, II (2000) DMC 351 AP.
Alimony—Quantum 35

Gynaecology and as such she was capable of earning substantial income


through her profession. Whereas the respondent who was also a doctor
by profession settled down in London, had to maintain his first daughter
born through the appellant, his second wife and a son born through his
second wife. In these circumstances it was held that, an amount of
Rs. 5.00 lakhs (five lakhs only) could be awarded as permanent alimony
to the appellant. While determining the above amount of permanent
alimony, the amount of Rs. 3,31,500/- already paid by the respondent to
the appellant during the pendency of these appeals was also taken into
consideration and it was directed that the respondent to pay an amount of
Rs. 5.00 lakhs to the appellant through Demand Draft drawn in her
favour within a period of three months from the date of the order in
addition to said amount already paid. It was also held that pending
payment of the permanent alimony of Rs. 5.00 lakhs by the respondent,
the respondent shall pay the maintenance at the rate of Rs. 5,000/- to the
appellant per month which shall be paid on or before 5 th of every months
from the month of January, 2000 onwards. The respondent husband was
also directed to pay an amount of Rs. 5,000/- to the appellant towards her
legal expenses which shall also be paid by him within a period of three
months from to-day, apart from the above amounts. 1
Where the last drawn gross salary of the husband prior to his
suspension was Rs. 6,780/- per month and he was aged 45 years and the
wife was aged about 37 years, it was held that though the wife had
claimed an amount of Rs. 3,00,000/- as permanent alimony, the husband
could only be directed to pay an amount of Rs. 1,50,000/- towards
permanent alimony to the wife. 2
One case had a special feature of its own inasmuch the alimony
pendente lite was not for the wife alone but also for the young male child
who had just started going to school. Even though 1/5 th is the rule
ordinarily laid down for one head the is that wife who is living separate
from the husband, if we calculate for two heads we cannot fix 1/5 th to be
the ultimate ceiling. The legislature in its discretion has not fixed any
guideline in this regard as in the case of Indian Divorce Act or the Paris
Marriage and Divorce Act and here court is always to be guided by the
wide discretion vested by the statute on the Court itself. Therefore the
alimony pendente lite was increased to a sum of Rs. 1,200/- per month,
Rs. 700/- for the wife and Rs. 500/- for the minor child which would be
effective from the date of the application in the Court below. 3

1 Lokeshwari vs. Srinivasa Rao ibid


2 S. Vijayalakshmi vs. Bheem Reddy, 1998(2) CCC 399 (AP).
3 Rina Sen vs. Aloke Kumar Sen, II (1994) DMC 525 Calcutta.
36 Law of Maintenance

Where the parties had agreed that a total consideration of


Rs. 1,80,000/- would be paid to the minor daughter and the wife in
settlement of all their claims with regard to maintenance, permanent
alimony and Istridhan as well as in relation to the property, if any,
owned and possessed by the husband and his family members. Out of this
amount of Rs. 1,80,000/-, Rs. 50,000/- had been paid in cash and for the
remaining amount of Rs. 1,30,000/- a post dated cheque was handed over
and the husband had given an undertaking to the Court, which had been
accepted by the wife, that the cheque would be positively honoured on
presentation. It was held that all the cases filed by the parties against
each other would be dismissed as withdrawn and/or pursued. 1
While allowing the appellant’s prayer for granting alimony
pendente lite, the Court below found that she did not earn any income
and did not own and property and, therefore, directed payment to her at
the rate of Rs. 300/- per month. During the pendency of the present
appeal, the appellate court had directed that the appellant petitioner will
continue to receive alimony pendente lite at the same rate. Ultimately it
was held that she is entitled to receive permanent alimony from the
respondent husband at the same rate and in case, there is any change of
circumstance, either party was granted liberty to apply to the trial Court
for variation, modification or rescinding the order under Section 25 as
the said Court may deem just. Therefore the order under Section 25 shall
be deemed to have been made by the trial Court. 2

Remarriage
The language of the section 25 of Hindu Marriage Act, 1955 is
clumsy, though the clear intendment of the section is that any court
exercising jurisdiction under the Hindu Marriage Act shall have the
power to award maintenance in any proceeding, be it one for judicial
separation or for restitution of conjugal rights or for dissolution of
marriage by divorce or for annulment of marriage by a decree of nullity.
This view is fortified both by the heading of the section and the language
of the principal clause in the section. The heading in Section 25 runs as
follows: ‘Permanent alimony and maintenance’. The heading suggests
that it applies to all cases coming under the Hindu Marriage Act and not

1 Balwinder Singh vs. Raj Rani, I (2001) DMC 427 P&H.


2 Sandhya Bhattacharjee vs. Gopinath Bhattacharjee, AIR 1983
Calcutta 161 (DB): (1982) 1 Cal LJ 318: (1982) 86 Cal WN 665:
(1982) 2 DMC 59: 1982 Hindu LR 430: 1982 Mat LR 237.
Alimony—Right after passing of decree 37

necessarily and exclusively to cases where the marital tie has been
dissolved by an order of court. 1
In fact, the main clause in the section — ‘any court exercising
jurisdiction under this Act may, at the time of passing any decree or at
any time subsequent thereto ………………shall………….pay to the
applicant for her or his maintenance’ etc. — indicates the Legislature
intent to confer upon any court exercising jurisdiction under the Hindu
Marriage Act, the power to award maintenance in any proceeding under
the Act. But unfortunately, later on, in a subordinate clause, the
Legislature uses the words “while the applicant remains unmarried”. This
expression is not intended to cut down or curtail the scope of Section 25.
Nor can it be construed as applying only to a case of a dissolution of
marriage or an annulment of marriage. 2
It, is therefore, wrong to whittle down the scope of Section 25 of
Hindu Marriage Act, 1955 by invoking the clumsy phrase ‘while the
applicant remains unmarried’, a phrase, which has been inadvertently
used by an unimaginative draftsman. The phrase ‘while the applicant
remains unmarried’ was evidently intended to do duty for the expression
‘while the applicant remains without incurring any legal disability
justifying the rescission of the allowance awarded under the decree’. It is
the duty of the court to put a construction upon the section, which does
not attribute absurdity to the legislature and which would advance the
remedy and suppress the mischief. 3

Resumption of cohabitation
The principle is whether there has been resumption of
cohabitation so as to demolish the effect of the decree. Whether there has
been resumption of the cohabitation or not does not depend upon the
duration of the stay. It rather depends on the animus of the parties and
their mental attitude in coming to gather again. When cohabitation is
resumed, there is a waiver on the part of the wife of the cause of action
on which the suit and the decree were founded. Whatever might be the
ground on which the decree has been obtained, the same result follows, if
subsequent to the decree there is a resumption of cohabitation. 4

1 A.R. Munuswamy Rajoo vs. Hamsa Rani, AIR 1975 Madras 15: 87
Mad LW 537: (1974) 2 Mad LJ 237.
2 A.R. Munuswamy Rajoo vs. Hamsa Rani ibid
3 A.R. Munuswamy Rajoo vs. Hamsa Rani ibid.
4 Bussa Ansuya vs. Bussa Rajaiah, AIR 1971 AP 296: (1971) 1 Andh
WR 191.
38 Law of Maintenance

Right after passing of decree


When the language of sub-section (3) of Section 25 is taken along
with the provisions of sub-section (1) of the same section, there can be
no manner of argument that in Section 25 the statute has used the
description of the parties as husband or wife to proceedings under the
Act not only confined to a stage before or by the time of passing of a
decree under the Act, but for the purposes of the grant of permanent
alimony even after that. When there is an order granting permanent
alimony to one of the spouse under sub-section (1), for his or her
conduct referred to in sub-section (3) as husband or wife, as the case
may be, the order can be rescinded. So that the description of the parties
for the matter of Section 25 continues to be exactly the same as it was in
the proceeding originally initiated under the provisions of the Act for
any decree under those provisions. The fact that proceedings for the
grant of permanent alimony are incidental to the main proceedings,
merely lends support to this approach, which is even otherwise made
clear, beyond the pail of controversy or argument, by sub-section (3) of
Section 25 of the Act. 1

Stage of granting alimony


Section 25 of the Hindu Marriage Act, 1955, empowers the Court
to pass a decree for permanent alimony, while passing decree for
divorce. The section, in turn requires an application to be made for this
purpose. The application can be made either at the time of passing the
decree of even thereafter. The decision on the question of alimony will
have to take into consideration the earning of the husband, conduct of the
parties and other facts and circumstances of the case. This cannot be
done, unless both the parties are given opportunity to place material facts
before the Court. Inspite of eagerness and willingness of the appellate
court to grant some amount to the wife, as permanent alimony, it is not
possible to fix the same in the absence of any material on record. But
liberty was granted the appellant to file an application before the trial
Court under Section 25 of the Act; and get an order for permanent
alimony as provided in law. 2
Section 25 of the Hindu Marriage Act, 1955 very clearly states
that any Court exercising jurisdiction under the Act, may at the time of
passing any decree or at the time subsequent thereto, order that the
husband shall pay to the wife maintenance. This clearly shows that an
application u/s 25(1) of the Act can be made and decided at the time of

1 Durga Das vs. Tara Rani, AIR 1971 P&H 141 (FB): 70 Pun LR 923:
ILR (1970) 2 Punj 551.
2 Meerabai vs. Laxminarayan Mishra, I (1984) DMC 120 MP.
Alimony—Territorial Jurisdiction 39

passing of decree or at any time subsequent thereto. There is nothing in


the aforesaid decision which takes away the right of wife to permanent
alimony or maintenance to apply for it subsequent to passing of the
decree. Therefore, a decree of divorce is not vitiated for non-
consideration of grant of permanent alimony. 1

Subsisting marriage
Permanent alimony and maintenance under Section 25 of Hindu
Marriage Act, 1955, can only by granted in case divorce is granted and
not if the marriage subsists. The word ‘decree’ is used in matrimonial
cases in a special sense different from that in which it is used in Civil
Procedure Code, 1908. The passing of the '‘decree'’ in Section 25 means
the passing of the decree of divorce, restitution of conjugal rights, or
judicial separation and not the passing of a decree dismissing the
petition. If the petition fails then no decree is passed, i.e., the decree is
denied to the applicant. Alimony, cannot therefore, be granted in a case
where a decree for divorce or other decree is refused because in such a
case the marriage subsists. 2

Territorial Jurisdiction
Referring to the phraseology of Section 25, stress was laid on the
words “on application made to it for the purpose”. From these words it
was sought to be inferred that ‘it’ is the Court, which passed the decree,
and that court alone is entitled to entertain such application. It was held
that ‘if this interpretation were to be placed on these words, it will lead
to anomalous results as would be clear from the following example.
Suppose, a divorce petition is dismissed by the first Court and the
dismissal is confirmed by the High Court and the matter goes to the
Supreme Court and the Supreme Court grants a decree of divorce. The
interpretation sought to be placed on Section 25 of the Act and on the
word ‘it’, would mean that a petition for grant of permanent alimony
under Section 25 of the Act will have to be filed before the Supreme
Court. Similarly, if the divorce petition was declined by the first Court,
but was granted by this Court, the application for the grant of permanent
alimony will lie to this Court. This is not the scope of either Section 25
or conveyed by Section 19 of the Act. Moreover, the opening part of
Section 25 shows that the proceedings may be taken before ‘any’ Court
exercising jurisdiction under this Act and the jurisdiction under this Act
is exercised in view of Section 19 of the Act on matters arising under the

1 Ramadevi vs. Ashok Kumar Mohanlal Vyas, 1994 (1) DMC 286
(DB) MP.
2 Ranganatham vs. Shyamala, AIR 1990 Mad 1.
40 Law of Maintenance

Act. Therefore, the reasonable interpretation to be placed, would be that


Section 25 or for the matter any other section, should be read subject to
Section 19 so far as the jurisdiction of the Court is concerned unless
there is a specific provision to the contrary in any particular section.
Therefore, on a plain reading of Section 19 and reading it harmoniously
with Section 25 of the Act, the only conclusion to be drawn would be
that even if a petition for divorce, or any other decree, is granted by one
of the Courts having jurisdiction under Section 19 of the Act, it may give
cause to the opposite party to move for the grant of permanent alimony
or any other relief under Section 26 or 27 of the Act, again the
jurisdiction will be governed by Section 19 of the Act and not merely by
the passing of a decree by a particular Court.’ 1

Withdrawal of petition
In a proceeding filed under the Act for divorce judicial separation
or restitution of conjugal rights, the respondent in addition to opposing
the claim made by the petitioners is entitled to make a counter claim for
any relief under the Act on the ground of petitioner’s adultery, cruelty or
desertion. Now the relief claimed by the respondent wife is permanent
alimony for herself and for the minor child. This claim falls under
Section 25 of the Act.
Section 23-A of the Act, clearly provides that in a proceeding for
divorce, judicial separation or restitution of conjugal rights, the
respondent can make a counter claim for any relief under the Act on the
ground of the petitioner’s adultery, cruelty or desertion. The contention
raised in the application is that the petitioner husband has treated her
with cruelty. Therefore the claim satisfies the requirements of Section
23-A of the Act. That being so, when there is a counter claim and that
counter claim falls within the scope of Section 23-A read with Section 25
of the Act, in such a situation, if the petitioner is allowed to withdraw
the main petition it will seriously affect the counter claim made by the
respondent because the counter-claim can be entertained only when there
is a proceeding for divorce or judicial separation or restitution of
conjugal rights. 2

Written Application
Section 25 of the Act contemplates an application for the said
purpose. When the lower Court has not disposed of Section 24
application in time and has disposed of along with the main application,
it should have disposed of the application under Section 25 also.

1 Darshan Kaur vs. Malook Singh, II (1983) DMC 302 P&H.


2 C. Sannath vs. Padma, II (1982) DMC 121 Karnataka.
Alimony—Young wife 41

Therefore, one more litigation could be avoided and on the basis of very
same order, the maintenance could be provided for the wife and child.
From the conduct of the respondent, it is clear that he will not pay the
maintenance which is legally due to the petitioner. Under these
circumstances, asking the petitioner to file another application under
Section 25 or asking to file a separate suit and again seeking indulgence
of the Court below will be harsh. The Act does not say that there should
be a written application. It only says that an application made to it. It can
also be on the basis of oral application. 1
Section 25 of Hindu Marriage Act, 1955 when it speaks of an
application does not specify that the same has to be in writing. An
application can be in writing as also by word of mouth. The fact that the
trial Court passed an order for alimony would imply that an oral
application had been made to it. 2
Section 25 of the Hindu Marriage Act, 1955 gives inherent
jurisdiction to the Court to grant permanent alimony to either spouse, at
the time of passing any decree or at any time subsequent thereto,
directing the respondent to pay to the applicant for her maintenance such
amount as may appear to the Court to be just. Therefore even when no
written application has been filed on behalf of the appellant for seeking
an order of permanent alimony, yet the court can pass an order in respect
thereof on the oral application of the appellant’s learned counsel. 3

Young wife
If the wife is young it does not mean that she should not be
awarded permanent alimony. Only on remarriage she will forfeit her
right. It is general principle of the matrimonial legislation that, if a
former spouse remarries, she (or he) must look to her new partner for
financial provision for herself, and not to the old one. The court cannot
suggest to the wife that she should remarry and that she will not be
awarded maintenance because she is very young. The law now
encourages spouses to avoid bitterness after family break-down and to
settle their money and property problems. 4
The primary consideration under Section 25 of Hindu Marriage
Act, 1955 is to see whether the wife has anything for her support and

1 Umarani vs. D. Vivekannandan, II (2000) DMC 422 Madras.


2 Sadanand Sahadeo Rawool vs. Sulochanna Sadanand Rawool, AIR
1989 Bombay 220: 1989 Mah LJ 337: (1989) 1 Bom CR 495:
(1989) 1 Hindu LR 708.
3 Indu Kumari Pathak vs. S.K. Pathak, II (1983) DMC 64 Raj.
4 Sheela vs. Tungal Singh, I (1984) DMC 182 Delhi.
42 Law of Maintenance

maintenance. If not, she is entitled to a lump sum or a periodical


payment. The consideration which the Court will keep in view are
specified in the section. The court has to have regard to the respondent’s
income and property, the income and property of the applicant, the
conduct of the parties and other circumstances of the case. The sum to be
rewarded to the applicant must be fair and reasonable. It has to be just in
all the circumstances of the case having regard to the income of the
parties, their means etc. 1

1 Sheela vs. Tungal Singh ibid.


Maintenance pendente lite—Young wife 43

Chapter 2
Maintenance pendente lite
SYNOPSIS
Introduction......................................44 Duty of husband............................... 80
Object ...............................................46 Effect of interim maintenance.......... 81
Allegation of adultery ......................49 Effect of non payment on appeal ..... 81
Alternative forums............................50 Effect of operation of Hindu Adoptions
Appeal ..............................................51 & Maintenance Act .......................... 82
Appeal under Family Court Act .......51 Enforcement of order....................... 82
Award to children ............................52 Enhancement of amount of
Burden of proof ................................53 maintenance..................................... 84
Challenge in Appeal.........................54 Entitlement of children .................... 84
Challenge in revision .......................56 Filing of written statement............... 85
Civil Procedure Code is applicable .56 Form of order .................................. 86
Comparison between Hindu Adoptions Forum of appeal .............................. 86
& Maintenance Act & Hindu Marriage Grant in Revision............................. 87
Act, 1955 ..........................................57 Independent income of wife ............. 87
Compliance of order ........................57 Jurisdiction of Family Court ........... 88
Computation.....................................58 Jurisdictional issue .......................... 89
Conclusion of proceedings ...............59 Justification for living separately .... 89
Conditions for granting Letters patent appeal ....................... 89
maintenance .....................................60 Litigation Expenses ......................... 90
Conduct of parties ............................61 Meaning of “Maintenance” ............ 90
Consent order...................................62 Meaning of support ......................... 90
Considerations for granting Modification of order ...................... 90
maintenance .....................................62 Multiple remedies ............................ 91
Date from which amount granted ....65 Necessity of affidavit ....................... 92
Delay in disposal..............................68 Necessity of reconciliation .............. 92
Denial of marriage...........................69 Necessity to grant maintenance ....... 93
Determination of amount .................70 Non working husband ...................... 93
Discretion of Court ..........................71 Non-compliance............................... 93
Dismissal of main petition ...............73 Object of Hindu Adoptions &
Disputed marriage ...........................76 Maintenance Act .............................. 94
Distinction with alimony ..................77 Order under Criminal Procedure Code,
Distinction with Section 125 Criminal 1973 ................................................. 94
Procedure Code ...............................78 Pendency of proceedings ................. 94
Duration of payment ........................78 Postponement of Application ........... 96
44 Law of Maintenance

Power of Appellate Court ................97 Scheme under Hindu Marriage


Power of Court...............................100 Act, 1955........................................ 112
Procedure for disposal of application Scope of enquiry ............................ 115
.......................................................101 Scope of entitlement....................... 116
Proceeding for restitution of conjugal Scope of expenses .......................... 117
rights ..............................................102 Scope of Liability ........................... 117
Procedure of enquiry .....................102 Second Appeal ............................... 118
Proof of marriage ..........................103 Second marriage............................ 118
Quantum of interim maintenance...104 Striking off defence ........................ 119
Quick disposal................................108 Enforcement of order..................... 120
Reasonable amount ........................108 Unchastity...................................... 120
Reduction and enhancement of amount Urgency ......................................... 121
.......................................................108 Waiver ........................................... 121
Refusal of maintenance to pressurise Withdrawal of application ............. 122
.......................................................109 Withdrawal of main petition .......... 122
Resjudicata.....................................109 Working wife.................................. 123
Retrospective effect ........................109 Written statement ........................... 124
Right of Children............................109

Introduction
There are various provisions of different statutes dealing with
personal laws which deal with the question of maintenance pendente lite.
These statutes are Hindu Marriage Act, 1955, Special Marriage Act,
Parsi Marriage Act, 1936 and Indian Divorce Act. The relevant
provisions of these statutes are extracted hereafter.
Section 24 of Hindu Marriage Act, 1955 is as under:
Maintenance pendente lite and expenses of proceedings.— Where
in any proceeding under this Act it appears to the Court that
either the wife or the husband, as the case may be, has no
independent income sufficient for her or his support and the
necessary expenses of the proceeding, it may, on the application
of the wife or the husband, order the respondent to pay to the
petitioner the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner’s own
income and the income of the respondent, it may seem to the
Court to be reasonable.

Section 39 of Parsi Marriage & Divorce Act, 1936 is as under:


Alimony pendente lite.— Where in any suit under this Act, it
appears to the Court that either the wife or the husband, as the
case may be, has no independent income sufficient for her or his
support and the necessary expenses of the suit, it may, on the
application of the wife or the husband, order the defendant to pay
Maintenance pendente lite—Introduction 45

to the plaintiff, the expenses of the suit, and such weekly or


monthly sum, during the suit, as, having regard to the plaintiffs
own income and the income of the defendant, it may seem to the
court to be reasonable.

Section 36 of Indian Divorce Act, 1869 is as under:


Alimony pendente lite.— In any suit under this Act, whether it be
instituted by a husband or a wife, and whether or not she has
obtained an order of protection the wife may present for alimony
pending the suit.
Such petition shall be served on the husband; and the Court, on
being satisfied of the truth of the statements therein contained,
may make such order on the husband for payment to the wife of
alimony pending the suit as it may deem just:
Provided that alimony pending the suit shall in no case exceed
one-fifth of the husband’s average net income for the three years
next preceding the date of the order, and shall continue, in case of
a decree for dissolution of marriage or of nullity of marriage,
until the decree is made absolute or is confirmed, as the case may
be.

Section 36 of Special Marriage Act, 1954 is as under:


Alimony pendente lite.— Where in any proceeding under Chapter
V or Chapter VI it appears to the District Court that the wife has
no independent income sufficient for her support and the
necessary expenses of proceeding, it may, on the application of
the wife, order the husband to pay to her the expenses of the
proceeding, and weekly, or monthly during the proceeding such
sum as having regard to the husband’s income, it may seem to the
Court to be reasonable.

The right of a wife for maintenance is an incident of the status or


estate of matrimony. In general, therefore, the husband is bound to
defray the wife’s costs of any proceeding under the Act and to provide
for her maintenance and support pending the disposal of such
proceeding. The doctrine of alimony, which expression in this strict
sense means allowance due to wife from husband or separation from
certain causes, he its basis in social conditions in England under which a
married woman was economically dependent and almost in a position of
tutelage to the husband and was intended to secure justice to her while
prosecuting or defending proceedings under matrimonial law. In view of
Section 24 of the Hindu Marriage Act and the decision rendered above
that the law relating to matrimonial causes provides for rules for
payment of maintenance pendente lite and express of proceeding by the
husband to the wife. Section 24 of the Hindu Marriage Maintenance Act
46 Law of Maintenance

adopts those principles and goes radical step further when it prescribes
that any such order can be made not only in favour of the wife but also in
favour of the husband. 1
The right of a wife is general for maintenance is an incidences of
the status of matrimony. The husband in general is under an obligation to
defray the wife’s cost to any proceedings and to provide her with
maintenance and support during the pending legal proceedings under
Hindu Marriage Act. Alimony strictly speaking is a maintenance
allowance given to a wife by husband on separation. It is well recognised
in civilised society that a wife having no independent means of
subsistence and maintenance is entitled to alimony pending matrimonial
proceedings and costs thereof. It is this principle which has been
incorporated in Section 24 of the Hindu Marriage Act. As a matter of
fact the section goes beyond the classical concept of the doctrine of
alimony inasmuch as it recognises the right even of a husband who has
no sufficient means for his support to claim alimony pending the
proceedings from a wife having means. 2

Object
The object of this Section is that neither party may suffer by her
or his inability to conduct the proceedings for want of money for
expenses. The real object of the maintenance is to support the party
without means during pendency of proceedings. 3
Very purpose of grant of interim alimony the amount of costs
under Section 24 of the Act is to see that the party who is helpless and
unable to maintain oneself during pendency of the proceedings and who
has no sufficient means for fighting the litigation, is, awarded interim
alimony. Thus this provisions of Section 24 of the Act go to show the
objection is to see that the litigation initiated by the other side could
properly be defended and interim maintenance could be given it’s the
applicant. Having once found by the trial court that the party is entitled
to such fund of alimony and not paid by the party against whom the order
is passed, has no other remedy for recovery of such amount or other
remedy and if the proceedings are not stayed as requested by the party in
whose favour the order is passed and which is not complied by other
party, the very object of Section 24 may be frustrated. The object of
Section 24 is no provide necessary funds to the needy spouse to

1 Jyotiben Samir Pawar vs. Samir Bhaskarrao Pawar, II (2001) DMC


84 Gujarat: AIR 2001 Gujarat 165.
2 Lallubhai v. Nirmalaben, AIR 1972 Gujarat 174.
3 Jagmohan Verma vs. Sunita Verma, I (1983) DMC 176 Delhi.
Maintenance pendente lite—Object 47

prosecute the proceedings as well as to maintain himself or herself


during pendency of the proceedings. The application preferred by the
wife to stay the proceedings initiated by the husband, for non-compliance
of the order of the court, is rejected without proper examination and
appreciation of the facts and Section 24 by trial court is passing the
impugned order. There fore, impugned order has resulted into
miscarriage of justice. 1
The amount made out under section 24 of the Hindu Marriage Act
is reasonable amount to meet the expenses to the Court proceedings and
also of the maintenance regarding food, lodging, travelling expenses and
other necessary expenses during the period of litigation. This is not mere
maintenance allowance as is to be paid under any provision of the Hindu
Adoptions & Maintenance Act, 1956 or under Section 125 of the Code of
Criminal Procedure. Under Section 24 of the Hindu Marriage Act the
allowance which is to be allowed must be reasonable besides the
maintenance, also to meet expenses of the Court proceedings. Therefore,
in these circumstances, this has no relation to the mere maintenance of
the child or the lady. 2
An order under Section 24, Hindu Marriage Act for maintenance
pendente lite and expense of the proceeding in a matrimonial proceeding
is obviously passed to provide the weaker spouse with such fund as may
be reasonably necessary for her or his support and for the carriage of the
litigation and such an order automatically comes to an end with the
termination of the main proceeding in the Court which passed the order.
The proceeding being rather summary in nature, the object of the order.
The proceeding being rather summary in nature, the object of the order
being ad hoc and duration of the order being temporary the approach of
the Court to an order should be ut res magis valeat guam pereat, to
sustain it wherever possible and not to interfere unless intervention is
irresistible in law. 3
Whatever previously might have been the right of the wife to
claim maintenance as an incident of the status of matrimony on the
establishment of the relationship of wife and husband, now, under
Section 18 (1) of the Hindu Adoptions & Maintenance Act, which came
into operation on 21.12.1956, a Hindu wife, whether married before or
after the commencement of that Act, shall be entitled to be maintained by

1 Shivilaben vs. Prahladbhai, 1995(3) CCC 466 Gujarat.


2 Sangeeta Sexena vs. Gyanendra Saxena, II (1995) DMC 78 MP:
1996(3) CCC 178 (MP).
3 Utpal Kumar Banerjee vs. Manjula Debi Banerjee, I (1989) DMC
276 Calcutta.
48 Law of Maintenance

her husband during her lifetime. Section 18 (2) of that Act enumerates
the circumstances, under which, a Hindu wife is entitled to live
separately from her husband, without forfeiting her claim to
maintenance. Thus, the right of the wife to claim maintenance from the
husband, even in those cases falling under Section 18 (2) of the Hindu
Adoptions and Maintenance Act, when she is obliged to live separately
from her husband, is a statutory one. The method and manner of
enforcing this right, would necessarily depend upon the circumstances
obtaining in any particular case. It may be that in a given case, the wife
may resort to proceedings under Section 125. Cr.P.C. in the hope and
with the expectation that she would get quicker and speedier relief in
those proceedings. Equally, it may well be that a wife may resort to
proceedings before a Civil Court for the enforcement of such right.
Those, however, may at best be characterized as the adoption of different
methods for the enforcement of the right to maintenance. It is necessary
in this connection to remember that the right conferred under Section 24
of Hindu Marriage Act, is in the nature of a special right, arising on
initiation and during the pendency of the proceedings by one or the other
of the parties to the marriage, under the provisions of that Act. Under
Section 24 of the Hindu Marriage Act, the pendency of proceedings
under that Act, is an essential condition for the exercise of the right
either by the wife or the husband, as the case may be seek an order for
payment of the expenses of the proceeding and a monthly sum sufficient
for his or her support. It is thus clear that the right to claim maintenance
or litigation expenses under Section 24 of Hindu Marriage Act, is not
made available generally to the parties to a marriage, but only when a
proceeding between the spouses is pending under that Act, and in that
respect, the right conferred under Section 24 of that Act, is in the nature
of a special statutory right not in any manner outside the provisions
Section 24 of Hindu Marriage Act. The purpose behind Section 24 of
Hindu Marriage Act is that parties to a matrimonial cause should not take
undue and unfair advantage of a superior financial capacity to defeat the
rightful claims of a weaker party and the proceedings under Section 24
of that Act serve a limited purpose, i.e., during the pendency of
proceedings under that Act, to enable the weaker party to establish rights
without being in any manner hindered by lack of financial support. If the
special nature of the statutory right under Section 24 of that Act and its
purpose and borne in mind, it is at once clear that the enforcement of that
right, cannot in any manner be hedged in by a consideration of
proceedings otherwise initiated, either under Section 125, Cr.P.C. or
under the ordinary law. 1

1 Vanaja vs. Gopu, I (1992) DMC 347 Mad.


Maintenance pendente lite—Allegation of adultery 49

Section 24, Hindu Marriage Act deals with maintenance pending


in proceedings under this Act and expenses as such proceeding. This
section enables the court on the application of either spouse to order that
the expenses of the proceeding be paid to the applicant and likewise a
monthly sum during the proceeding, having regard to the applicant’s own
income and the income of the respondent. The object is to ensure that a
party to a proceeding does not suffer during the pendency of the
proceedings by reason of poverty and such party may be either the
petitioner or the respondent in the petition in which the application is
made. The grant of maintenance pendente lite and expenses under
Section 24 is discretionary with the court though such discretion has to
be judicially exercised. The guiding principle would appear to be that if
the applicant has no independent means he or she is entitled to
maintenance and expenses, unless good cause to shown to deprive the
applicant of it. The order exhausts itself with the conclusion of the main
proceedings including the appeal filed if any. 1

Allegation of adultery
There is nothing in Section 24 to prevent a Court from taking into
consideration the conduct of the parties. But that is too spacious a
contention since at least in the original proceedings if this point is
conceded, it would require the Court to judge the merits of the rival
contentions of the parties when deciding an application for interim
alimony and if such an exercise is permitted the Court’s discretion would
be fettered merely by the nature of the allegations made in the petition
and would be compelled to examine the merits of the same at least prima
facie. 2
Simply because a suit for divorce is filed on the allegations of
adultery the wife will not be deprived off her right to get maintenance
pendente lite and expenses of proceeding to defend herself. It is true that
it suit for divorce is decreed after trial on the ground of adultery then
wife will not be entitled to get permanent alimony and maintenance
under Section 25 of the Hindu Marriage Act because adultery alleged
against her is proved. But at the stage of the proceeding under Section 24
of the Hindu Marriage Act, 1955 adultery is only alleged. There is large

1 Shrichand vs. IV Additional Dist Judge, Allahabad, Santosh


Kumari, I (1986) DMC 91 All: Narendra Kumar Mehta vs. Suraj
Mehta, I (1982) DMC 242 AP: AIR 1982 AP 100: (1982) 1 APLJ
(HC)113L (1982) 1 Andh WR 452L 1982 Hindu LR 387: Ivan vs.
Zena Eramus, I (1982) DMC 295 All: AIR 1982 All 194: 1982 All
WC 163: 1982 (8) All LR 142: 1982 All CJ 193: 1982 Mat LR 174.
2 Dwarkadas Gurumukhdas Agrawal vs. Bhanuben, I (1987) DMC
46 Gujarat.
50 Law of Maintenance

gap between “adultery alleged” at the stage of proceeding under Section


24 of the aforesaid Act and “adultery found to be proved by Court trial”
at the stage of proceeding under Section 25 of the said. Act. 1
The opening words of Section 24 invests a spouse lacking
sufficient means for his or her support to claim maintenance pendente
lite and the costs and expenses of the proceedings under the Act which
includes, inter alia, for divorce or nullity of void or voidable marriage.
On the plain regarding of Section 24, alimony is a concomitant of a
marriage in fact. On an admission or proof of a factum of marriage,
alimony is a right of either of the spouses lacking means of his or her
support. It would be no answer to such claim that the marriage is void or
voidable. It would be imprudent on the part of the Court to ignore the
principle that a de facto marriage necessarily carries a right carries a
right to alimony pendente lite for an incapacitated spouse and the
ultimate outcome of substantive proceedings cannot have a back-fire so
as to negative such a right. If the allegation, or for that matter the
conduct of the party claiming maintenance or expenses pending the
proceedings is allowed to have such an over-bearing effect so as to
negative such a claim it would be tantamount to prejudging the issues
which is to be tried in the substantive proceedings. 2 If the conduct of a
spouse claiming such a right is to be considered so relevant in the
original proceedings as to negative the right which the law has invested
in a spouse lacking the capacity for his or her maintenance, the
Legislature would have certainly provided to that effect as it has done in
Section 25 of the Hindu Marriage Act. It can be urged with force that the
conduct of a spouse claiming such a right is entirely irrelevant since
otherwise the Legislature would have made an appropriate provision in
Section 24 as it has done in Section 24. 3

Alternative forums
The application filed under Section 24 of the Hindu Marriage Act
cannot be rejected merely on the ground that an application earlier filed
under Section 125 Criminal Procedure Code for maintenance was
rejected. When the proceedings under Section 9 of the Hindu Marriage
Act are pending in trial Court, the wife, under Section 24 of the above
Act, is entitled to file an application for grant of maintenance of
pendente lite. 4

1 Vinod Kumar vs. Kaushalya, I (1996) DMC 603 Raj.


2 Gangu . Pundlik, AIR 1979 Bombay 264.
3 Lallubhai v. Nirmalaben, AIR 1972 Gujarat 174.
4 Virender Kumar vs. Santosh Devi, I (1988) DMC 485 Raj.
Maintenance pendente lite—Appeal under Family Court Act 51

The cause of action for awarding maintenance in the original suit


filed by the wife is altogether different from the right accrued to her to
claim maintenance pending the proceeding instituted by the husband for
restitution of conjugal rights. Her right to seek for interim maintenance
and for costs of the proceeding arises under Section 24 of the Act, the
provisions of which are altogether different from those of Section 18 of
the Hindu Adoptions & Maintenance Act. There is nothing in the Hindu
Marriage Act or in the Hindu Adoptions & Maintenance Act which bars
the wife from claiming maintenance under Section 24 of the former Act,
if she had preferred a suit for regular maintenance under the latter
enactment. Where two different statutes provide specifically for two
different claims if the conditions specified therein are satisfied, either of
them cannot be denied to the claimant simply on the ground that two
relief have been claimed at one and the same time. The intendment and
object of granting maintenance under Section 18 of the Hindu Adoptions
& Maintenance Act is different from that of awarding interim
maintenance under Section 24 of the Act. The maintenance that can be
granted under Section 24 of the Act is for the period during which the
proceeding is pending before the Court. That apart, the right to claim
expenses of the proceeding under Section 24 is an independent right
given to the party. The very object and purpose of Section 24 appears to
be to provide immediate relief for the respondent under the Act, to claim
maintenance and expenses of the proceeding irrespective of other
circumstances, as the regular maintenance suit may take considerable
time for adjudication. 1

Appeal
An appeal will lie, against an interlocutory order if it is a
judgement. Clearly the order passed under Section 24 of the Hindu
Marriage Act is a judgment as it decides the question of maintenance
during the pendency of the suit and therefore, there is final adjudication
so far this question is concerned and an appeal lies against such an
order. 2

Appeal under Family Court Act


A conjoint reading of sub-section (1) and sub-section (5) of
Section 19 of Family Court Act makes crystal clear that only one appeal
lies to the High Court; that no appeal or revision lies except as provided
under sub-section (1) from any judgment, order or decree of a Family

1 Adigarla Simhachalam vs. Adigarla Papamma, AIR 1973 AP 31


(DB): (1972) 1 Andh LT 242: (1972) 2 Andh Pra LJ 216.
2 Raghvendra Singh Choudhary vs. Seema Bai, I (1989) DMC 89 MP.
52 Law of Maintenance

Court; and further that no appeal lies against such judgment or order
which is interlocutory. It cannot be said that the Legislature has created
an appellate from in 1984 against the orders passed under Section 24 of
the Hindu Marriage Act nullifying Section 28 of that Act contrary to the
object of enactment of the Act as stated in the Bill. Thus the objection of
the Stamp Reporter that the appeal is not maintainable under Section
19(1) of the Family Court Act, 1984 was upheld and appeal was
dismissed as not maintainable. 1

Award to children
The requirement of the husband or the wife would also include
expenses required for the maintenance of the child. The interpretation of
the provisions should not be too literal; but purposive and functional. As
the provisions contained in Section 26 would go to indicate, the court is
empowered to pass interim as it may deem just and proper with respect
to maintenance of minor children. Section 26 operates also during the
pendency of the proceeding under the Hindu Marriage Act. So, assuming
that the provisions contained in Section 24 stricto sensu do not authorize
grant of maintenance to child, Section 26 authorizes the grant of
pendente lite maintenance by way of interim order during the pendency
of the proceeding. , if the petition contains the averments, the court is
empowered to grant maintenance under Section 24 or under Section 24
read with Section 26 of the Act 2 which is as under:
‘Custody of children.— In any proceeding under this Act, the
Court may, from time to time, pass such interim orders and make
such provision in the decree as it may deem just and proper with
respect to the custody, maintenance and education of minor
children, consistently with their wishes, wherever possible, and
may, after the decree, upon application by petition for the
purpose, make from time to time, all such orders and provisions
with respect to the custody, maintenance and education of such
children as might have been made by such decree or interim
orders in case the proceeding for obtaining such decree were still
pending, and the Court may also from time to time revoke,
suspend or vary any such orders and provisions previously made.’

Therefore the power of court to award maintenance for children


flows from the power of the court to give directions for the welfare of
the children and court can give necessary directions in this regard if the
circumstances of the court warrant it necessary.

1 Ravi Saran Prasad @ Kishore vs. Rashmi Singh, AIR 2001 All 227
(DB).
2 Mehendra Kumar Mishra vs. Snehlata Kar, I (1983) DMC 219
Orissa: 1982 East LR 437: 1982 Mat LR 354: (1982) 1 Civ LJ 254.
Maintenance pendente lite—Burden of proof 53

Burden of proof
In proceeding under Section 24 of the Hindu Marriage Act the
Court is not obliged to press for burden of proof. The Court in the case
of Ravinder Kaur v. Makhan Singh, 1 following the principles laid down
in the previous cases held that there is an implied obligation in law upon
a party to produce the best evidence in its power and possession for
proper determination of the matter in issue before the Court. The Court
held as under:
It is a settled principle of law that a person who approaches the
Court has primary onus to prove the facts averred for the grant of the
relief prayed for. But it is equally true that the parties have to discharge
their respective onus in the proceedings under Section 24 of the Hindu
Marriage Act. Such proceedings are kind of summary proceedings and
are normally never put to regular trial. In these circumstances, it
becomes necessary that the parties to these proceedings must come
before the Court with clean hands and must discharge their respective
onus. Merely vague denial or their being no affidavit in support of the
case of either of the parties, cannot give advantage to that party in the
event any party withhold the best evidence which in normal course
he/she ought to have in power and possession the Court would be well
within its jurisdiction to draw adverse inference against that party. In
this regard, reference can be made to the case of. 2
It is expected from every litigant irrespective of the fact whether
he is seeking relief from the Court or not that he would state true and
correct facts. These is only implied but specific obligation upon every
party who approaches the Court to verify the facts true to the knowledge
and belief of the party specially in the cases of present kind where the
Court has to take prima facie view keeping in mind the urgency of the
matter regarding grant or refusal of maintenance. Primarily the onus has
to be discharged by respective parties in support of the averments made
in the application or reply as the case may be. Concept of heavy burden
of proof would be applicable during the trial where the parties have the
liberty to lead oral and documentary evidence in support of their case.
The Court would be well within its jurisdiction to draw adverse inference
against a party who actually or attempt to withhold the best evidence and
true facts from the Court with intention to frustration the claim of others
at this preliminary state of proceedings. 3

1 (1999) 1 PLR 389


2 Sangeeta vs. Ved Parkash, I (2000) DMC 470 P&H.
3 Gurvinder Singh v. Harjit Kaur, (1998-2) 119 PLR 422.
54 Law of Maintenance

For determining the claim for maintenance pendente lite and the
expenses of proceedings as contemplated under Section 24 of the Act,
what ought to be kept in mind is that in case the applicant has no
independent means he or she is always entitled to the maintenance and
expenses, unless good cause is shown to deprive him or her of it. The
good cause for depriving an applicant for the maintenance and expenses
of the proceedings could be the availability of the an assured
independent income derived from the property, service, occupation, or
other sources which may satisfy the genuine needs providing support to
him or her keeping in view the status of the family to which he or she
belongs and not the income of the wife’s parents or other relations which
cannot be taken into account so as to constitute good cause for not
granting interim maintenance and expenses of the proceedings.
There may be cases where the character and gravity of the
conduct is such which may be found repugnant to the concept and the
institution of marriage and it may be wholly unjust to ignore them while
considering the question of releasing or withholding the benefit
contemplated under Section 24 of the Act, but it all depends on the facts
of each case and cogent reasons have to be recorded for withholding the
grant of the benefit secured under Section 24 of the Act. 1

Challenge in Appeal
Section 24 of Hindu Marriage Act, 1955 is a provision for
temporary alimony and does not entitle a Court to pass a decree and a
decision given under Section 24 has been described as an order. Similar
phraseology has been used in the language given in Ss. 25 and 26. There
is, however, a difference between Section 24 and Ss. 25 and 26. An order
passed under Section 24 is of a temporary nature and binds the parties so
long as the matter is pending at the trial. Section 25 provide for
permanent alimony and maintenance whereas Section 26 deals with
custody of children. The Parliament having thought that orders provided
for in Ss. 25 and 26 were of a more serious nature than that contemplated
by Section 24, conferred rights of appeal against orders passed under
them. It did not make any provision of appeal against an order passed
under Section 24 of the Act. 2
No appeal lies from an order under Section 24 of the Hindu
Marriage Act. An appeal is a creature of statute. This appeal is

1 Munnibai vs. Jagdish Rathore, 1999(2) CCC 6 (MP).


2 Ram Narain Pathak vs. Urmila Devi, AIR 1980 All 344: 1980 All
WC 281.
Maintenance pendente lite—Challenge in revision 55

accordingly dismissed. There will be no order as to costs as the


respondent was not represented in this Court. 1
An appeal is provided against decrees passed under the Hindu
Marriage Act and against those orders only which are made under
Section 25 and Section 26 of the Hindu Marriage Act, 1955 (provided
they are not interim orders). A comparison of the new Section 28 with
the original Section 28 shows that no appeal is contemplated under the
amended law against an order under Section 24. What has not been
expressly included in the new Section 28 must be implied to have been
excluded. Therefore, having regard to the new Section 28, no appeal lies
now against an order under Section 24. 2
In one case the application under Section 24 was made before the
amendment was brought in. But Section 39(1)(i) of the Marriage Laws
(Amendment) Act, 1976 declares that all petitions and proceedings in
causes and matters matrimonial which are pending in any court at the
commencement of the Amendment Act shall be dealt with and decided by
such court, if it is a petition or proceeding under the Hindu Marriage
Act, then, so far as may be, as if it had been originally instituted therein
under the Hindu Marriage Act, as amended under this Act, Accordingly,
the appeal against the order must now be considered in the light of the
amendment Section 28 of the Hindu Marriage Act. 3
In another case the District Judge consigned the record and
ordered that unless the amount of maintenance is deposited by the
appellant, no further proceedings shall be taken. In appeal against this
order, it was held that according to provisions of Section 28(2) of the
Hindu Marriage Act, 1955 orders made by the Court in any proceedings
under this Act, under Section 25 or Section 26, shall subject to the
provision of sub-section (3), be appealable if they are not interim orders,
and every such appeal shall lie to the Court to which appeals ordinarily
lie from the decisions of the Court given in the exercise or its original
Civil Jurisdiction. It is thus apparent that though the appeal shall lie to
this Court only if the impugned orders are passed under Section 25 or
under Section 26 of the Act. When the appeal is not against the orders
passed under Section 25 and 26 of the Act, this appeal is not
maintainable. 4

1 Rajpal vs. Dharamavati, AIR 1980 All 350.


2 Narain Singh vs. Rukmani, AIR 1977 AP 93.
3 Narain Singh vs. Rukmani ibid
4 Hari Ram vs. Mahila Pista Bai, I (1985) DMC 471 MP.
56 Law of Maintenance

Challenge in revision
The expression, or the word, ‘proceeding’ as used in Section 115
of Civil Procedure Code, 1908 has to be given the same meaning as in
the opening part of Sub-section (1). It follows that ‘the other proceeding’
must be an original proceeding and not merely a proceeding in a suit or
any other original proceeding. 1 The proceeding commenced with an
application under Section 24 was a proceeding in the matrimonial
proceeding or the matrimonial suit for divorce. The proceeding under
Section 24 was not by itself an original proceeding. It was accordingly
contended, and I think rightly, that this Court is precluded from varying
or revising the order sought to be revised in the present case unless it
could be shown under clauses (b) of the proviso that the order, if allowed
to stand, would occasion a failure of justice or cause irreparable injury to
the party against whom it was made. 2
An order granting interim maintenance is not an interlocutory
order and revision there against is not barred under Section 397(2) of the
Code. 3

Civil Procedure Code is applicable


In terms of Section 21 of the Act, the proceeding under Section
24 shall be regulated as far as may be by the Code of Civil Procedure
subject of course to the other provisions contained in the Act or the
Rules framed by the High Court. There is no provision either in the Act
or in the Rule that Order 11, Civil Procedure Code shall have no
application to a proceeding under Section 24 of the Act. 4
Even assuming that Section 141, C.P.C. is also to be taken into
consideration, it must be read subject to the special procedure prescribed
under Section 21 of the Act. The maxim generalia specialibus non
derogant (general provisions will not abrogate special provisions) or
generalibus specialia derogant (Special things derogate from general)
applies to matters of procedural law. Section 21 of the Act, which is a
special provision, would therefore prevail over Section 141. C.P.C.
which is a general provision. Moreover all proceedings under the Act
shall be regulated, as far as may be, by the Code of Civil Procedure, and
Section 141 would stand excluded as it would not be practicable to apply

1 Madhvi Sirothia vs. Narendra Nath, 1980 AWC 45.


2 Iqbal Singh Cheema vs. Adarsh Cheema, I (1982) DMC 282 All.
3 Sunil Kumar Sabharwal vs. Neelam Sabharwal, I (1991) DMC 547
P&H.
4 Ganga Devi vs. Krushna Prasad Sharma, AIR 1967 Orissa 19: 31
Cut LT 294: ILR (1964) Cut 958: (1965) 7 OJD 322.
Maintenance pendente lite—Compliance of order 57

it to the proceedings under the Act in view of Section 21. However Order
11 has full application to the proceedings under Section 24 of the Act. 1

Comparison between Hindu Adoptions & Maintenance Act &


Hindu Marriage Act, 1955
There is no inconsistency between the provisions of sub-section
(1) of Section 25 of the Hindu Marriage Act and those Section 18 of the
Act 1956. Assuming that on a true construction of Section 18 of the Act
of 1956 a right is conferred only on a lawfully married Hindu wife to
claim maintenance, it does not follow that the provisions of another
statute whereby parties to a Hindu marriage even other than a lawfully
wedded Hindu wife are granted rights of maintenance would be
inconsistent therewith. Moreover, it is not as if a wider construction of
Section 25(1) of the said Act of 1955 would render the provision of
Section 18 of the Act of 1956 redundant. Under sub-section (1) of
Section 18 of the Act of 1956 a Hindu wife is entitled to claim
maintenance from her husband even without filing any petition for
nullity or divorce or judicial separation or restitution of conjugal rights,
whereas there is nothing either in the provisions of Section 24 of Section
25 of the said Act of 1955 which confers any such right. 2

Compliance of order
To get the order complied with the inherent power can be
exercised by stay of the proceeding initiated by the defaulter or by
striking out his defence where the proceeding has been initiated by the
party in whose favour the order is passed or to dismiss the application of
the defaulter initiating the proceeding. The normal rule of restraint to
exercise inherent power in cases of availability of alternative forum
would not be attracted to realise the money as per the order for pendente
lite maintenance and litigation expenses, since the same is to be paid to a
person having no sufficient means. Execution of the order for the same
takes time in view of the procedure provided under O. 21, C.P.C. and
without the maintenance and litigation expenses, the party in whose
favour the order is passed does not get a fair chance to prosecute or
defend the proceeding as the case may. Where a party does not get
adequate opportunity natural justice is violated. Therefore, the court
comes to the rescue of that person in exercise of the inherent power.
However, the wider the power, the greater should be the restraint. Court
having wide power, therefore, should carefully consider the facts and

1 Ganga Devi vs. Krushna Prasad Sharma ibid


2 Govindrao Tanoji Musale vs. Sou. Anandibai, AIR 1976 Bombay
433.
58 Law of Maintenance

circumstances to use only that much of power which would be sufficient


for getting the order complied with and not beyond. It should be
remembered that in absence of specific provision, the order should not be
penal in nature. A just balance is to be struck. 1
Contumacious, conduct or deliberate act not to comply with the
order can be dealt with stiffly by dismissing the application or striking of
the defence of the defaulter as the case may be. Before exercising the
said power, court is to give a clear finding based on reasons and material
to that effect. 2
Since the Court has the power to stay the proceeding or dismiss
the same, the power should be exercised by doses. It should first stay the
proceeding and give opportunity to the defaulter to pay the same. In spite
of it where the default continues it might dismiss the application initiated
by the defaulter in case, it comes to the conclusion that the non-payment
was deliberate and contumacious. However, the power should not be
allowed to be utilised by a party to harass the other party to whom
direction is given merely on account of non-payment where the
circumstances would indicate that the non-payment was on account of
reasonable cause. In such cases, the party entitled to receive pendente
lite maintenance and expenses of the proceeding can be allowed to
execute the order and till then the proceeding can be stayed. 3

Computation
Maintenance depends “upon a gathering together of all the facts
of the situation. The amount of free estate, the past life of the married
parties and the families. A survey of the condition and necessities and
rights of the members. On a reasonable view of change of circumstances
possibly required in the future — Regard being of course had to the scale
and mode of living and the age, habits and wants and class of life of the
parties. 4

1 Binayak Chandra Pady vs. Kamala Padhy @ Padhiani, AIR 1987


Orissa 167: (1986) 2 Orissa LR 63: (1987) 63 Cut LT 245.
2 Binayak Chandra Pady vs. Kamala Padhy ibid.
3 Binayak Chandra Pady vs. Kamala Padhy ibid.
4 Ekradeshwari vs. Homeshwar, AIR 1929 PC 128
Maintenance pendente lite—Conclusion of proceedings 59

Conclusion of proceedings
The interim order passed under Section 24 could be passed in
pending proceedings and once the proceedings come to an end, the order
under Section 24 can no longer be passed. 1
The proceedings for maintenance pendente lite have to be
concluded before the main petition is decided. However, the husband can
snap the main proceedings while the application for fixation of
maintenance pendente lite and litigation expenses is still pending either
by absenting from the proceeding in case he is the applicant in the main
case and by getting the same dismissed in default or where the main
petitioner is filed by the wife, by making a statement confessing
judgment in favour of the wife. In he first case, when the husband absent
in the petition, where he is the applicant, the Court will have no option
but to dismiss the petition in default but that would not mean that he can
take away the right of the wife and the child given under Ss. 24 and 26 of
the Act to continue with those applications and to have the amount
determined. Similarly, if the husband is respondent in the main petition
and he confesses judgment in favour of the wife, then two courses can be
open to the Courts. One would be to dispose of the main petition on the
consent of the husband and grant the decree to the wife but to continue to
proceed with the petition under Ss. 24 and 26 of the Act for fixing
maintenance pendente lite. The other would be if it the Court comes to
the conclusion that the petition under Ss. 24 and 26 of the Act cannot
continue if the main petition stand disposed of, then to keep the main
petition in abeyance and first to decide the petition under Ss. 24 and 26
of the Act for granting maintenance pendente lite and litigation expenses
and thereafter to decide the main petition on the concession of the
husband. If the second course is open to the Court to follow, it would
clearly mean that the liability of the husband to pay maintenance
pendente lite continue so long as the petition under Ss. 24 and 26 of the
Act is pending . It has been held that following the first course is neither
illegal nor against any provision of the statute and if that course is
followed by the Courts then there is no justification for not awarding
maintenance pendente lite to the wife even beyond the conclusion of the
main petition till proceeding under Ss. 24 and 26 of the Act are
finalized. 2

1 Rajendra Singh vs. Patwant Kaur, II (1982) DMC 169 Raj; Nand
Kishore Kapoor vs. Shanti Kapoor, II (1982) DMC 181 All.
2 Sudershan Kumar Khurana vs. Deepak, AIR 1981 P&H 305: 1981
Hindu LR 345: ILR (1981) 2 P&H 400.
60 Law of Maintenance

The necessity for passing any interim orders would come to an


end with the termination of the main proceedings and there would be no
question of the appellant trying to defend any proceedings after her
adversary had withdrawn from the contest. There would hardly be any
occasion for making an interim provision for the defence of a case that
had already concluded. 1
The procedure of law or the course of justice can be moulded at
the sweet will of the husband in his favour and to the detriment of the
wife. 2

Conditions for granting maintenance


Expression ‘any proceedings under this Act’ appearing in Section
24 of Hindu Marriage Act, 1955 covers the proceedings under Section
25 thereof. Section 25 contemplates that an order for permanent alimony
can be made at the time of the passing of any decree under the Act or any
time thereafter. Now, if a spouse has to make an application after any
decree under the Act has been passed and has no sufficient means of
his/her own, such spouse has to be provided for prosecuting the
application for permanent alimony when the other spouse opposes any
grant thereof. Any other construction will be narrow and will lead to
frustration of the provision. Section 25 is a continuation of the main
proceedings. Placement or numbering of the Section or the description of
one set of documents as petitions and the other set as applications does
not alter this position. The purpose or using the words ‘husband’ or
‘wife’ is to identify the position occupied by the parties in the main
proceedings, and not to exclude ex spouses. 3
For considering the application for grant of interim maintenance,
only independent income of wife can be taken into account or the
conduct of the applicant, who claims interim maintenance so as to debar
her from getting the interim maintenance. The petitioner has placed
nothing before the Trial Court or before this Court that the respondent
has got an independent source of earning except the bare and vague
affidavit filed before the Trial Court, which was not believed by the Trial
Court. Nothing against the conduct of the respondent has also been
pointed out so as to disentitle her from the interim maintenance. While
hearing on an application for grant of interim maintenance, the law does
not require holding of regular trial or recording of evidence, though in

1 Nirmala Devi vs. Ram Dass, AIR 1973 P&H 48: 1972 Cur LJ 34.
2 Sudershan Kumar Khurana vs. Deepak, AIR 1981 P&H 305: 1981
Hindu LR 345: ILR (1981) 2 P&H 400.
3 Dashrath vs. Saroj, I (1989) DMC 222 MP.
Maintenance pendente lite—Conduct of parties 61

some cases it may be necessary to record evidence, but it depends on the


facts of each case. 1

Conduct of parties
The Court normally consider it prudent to adhere to the principle
that a marriage de facto carries the right to alimony pendente lite; but
this principle of matrimonial law has necessarily to be considered in the
light of the attending circumstances, when the Court exercise its
discretion as to whether the wife should be granted or not alimony
pendente lite and expenses for litigation. The conduct of the parties
cannot be ignored by the Court while passing the orders under Section 24
of the Hindu Marriage Act. In a case where the wife has brought
cohabitation to an end by such misconduct for which the husband is not
be blamed, the Court may well refuse to grant alimony and expenses for
litigation pendente lite. 2
In the above case it was found that the wife’s claim for restitution
of conjugal rights has already been dismissed by the trial Court and the
appeal against the same has also been dismissed, after upholding the trial
Court’s finding that the wife is leading a life of adultery by having
regular illicit connections with Dhanraj Hirkane. In these circumstances
it was held that the misconduct on the part of the wife, having thus been
established, she has obviously no case for her claim for alimony and
litigation expenses pendente lite. 3
It is within the discretion of the Court to make an order for
pendente lite maintenance, and merely because two of the conditions,
namely, the wife or the husband, as the case may be, has no independent
income sufficient for her or his support and necessary expenses of the
proceedings, and the other spouse has sufficient means, are satisfied,
then it is not necessary for the Court to order payment of maintenance
pendente lite and expenses of the proceedings. Therefore, though it is not
specifically provided that the conduct of the applicant for maintenance
pendente lite and expenses of the proceedings is also to be taken into
consideration, but the fact that the discretion of the Court to make an
order or not to make an order goes to show that the Court has to take the
conduct and the other circumstances also into consideration while
disposing of the application under Section 24 of the Act. 4

1 Dashrath vs. Saroj, I (1989) DMC 222 MP.


2 Sulochana Bai vs. Tikaram, I (1986) DMC 351 MP.
3 Sulochana Bai vs. Tikaram ibid.
4 Balbir Singh vs. Swaran Kanta, AIR 1981 Raj 266:
1980 Raj LW 654.
62 Law of Maintenance

Consent order
When the order clearly speaks that it was passed on the basis of
the statement given by the parties at the time of hearing and it was found
that the learned Trial Court rightly exercised its discretion in awarding
the interim maintenance from the date of the order, interference was
declined. 1

Considerations for granting maintenance


While fixing permanent alimony and maintenance under Section
25 of the Hindu Marriage Act, 1955, the court is expected to make
detailed inquiry and has to take into account not only the income but
other properties of the parties, their conduct and other circumstances of
the case that the court might consider relevant. But that would not be so
for the decision of the application under section 24 of the Act as in its
very nature, the inquiry under section 24 has necessarily to be summary.
The court cannot be bogged down to intricacies of a protracted trial for
fixing maintenance pendente lite and expenses of the proceedings.
Otherwise, the very object of the section would be frustrated which is
that a party is not handicapped in prosecuting his or her case. But, then
in deciding the application under Section 24 of the Act, the court has to
act in accordance with sound judicial principles and cannot act in an
arbitrary fashion to the prejudice of either of the parties. 2
The following principles 3 would appear to be relevant for the
purpose:
(1) position and status of the parties;
(2) reasonable want of claimant (towards food, clothing, shelter,
medical attendance and treatment, education and the like);
(3) income of the claimant;
(4) income of the opposite party;
(5) number of persons opposite party is obliged to maintain.
Two corollaries may be added here:
(1) In arriving at the income of a party only involuntary
deductions like income-tax, provident fund contribution, etc. are
to be excluded; and
(2) though under the law opposite party may to be obliged to
maintain brother or sister but if that brother or sister having no
income is living with the opposite party as member of his family

1 Lata Saluke vs. Shivaji Rao Saluke, I (1995) DMC 42 Gwalior.


2 Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988
(2) DMC 110: 1988 RLR 428
3 Pradeep Kumar Kapoor vs. Shailja Kapoor ibid
Maintenance pendente lite—Considerations for granting maintenance 63

and where either there are no parents or are unable to maintain


themselves, the court may in a given circumstance consider the
expenses to be incurred on the maintenance of brother or sister by
the opposite party.
After all, court cannot be expected to adopt a mechanical
approach while interpreting the provisions of law incorporating
principles of social justice like Section 24 of the Act. 1
Whilst deciding the case of maintenance under the Act, Courts do
not apportion blame to the parties. What is to be seen is whether there
has been a breakdown of marriage. If the parties do not find it feasible to
live together then the wife would be entitled to maintenance unless her
behaviour is such which would even disentitle her from claiming the
relief of divorce. I am unable to hold that the behaviour of the wife is
such that she would be wholly unjustified in leaving the matrimonial
home. In any event, these are matters to be decided on the basis of
evidence at the final decision of the suit. What is important in these
proceedings is to see as to what is the status enjoyed by the parties and
what is the relative income of the parties for the purpose of grant of
maintenance. The husband has admitted that his income is Rs. 40,000/-.
From a perusal of the accounts of the credit card produced by the
husband it was apparent that he had quite expensive tastes. The
restaurants frequented and the scope visited for the purchase left no
manner of doubt that the husband is living a lavish life. Therefore, there
may be some justification in the submission that the assessment of
income by the husband at Rs. 40,000/- is not realistic. On the other hand
it was seen that wife is also admittedly earning Rs. 12,000/- per month.
She had also admitted that she is paying to a chauffeur a sum of
Rs. 2,500/- per month. Certain medical bills which have been attached
with the rejoinder indicated that perhaps the medical expenses are also
being reimbursed. She was also holding a very high ranking position.
Therefore, it would also not be possible to hold that the income of the
wife has been correctly reflected. If the perquisites are included in the
income it would perhaps be much higher than Rs. 12,500/-. Therefore it
was held that wife was better off living with the parents in a bungalow at
Juhu than in a cramped flat at Worli. In these circumstances the amount
of maintenance was fixed as under:
‘The amount of maintenance would have to be fixed by taking a
rational and balanced view of various factors. The Court has to be
guided by the relevant provisions of the Act and the object of
Section 18 and 23. Thus the Court has to bear in mind the status

1 Pradeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Del 10: 1988
(2) DMC 110: 1988 RLR 428
64 Law of Maintenance

of the parties, reasonable wants of the claimant, the income and


property of the claimant and the number of persons whom the
husband has to maintain. Whilst it is important to ensure that the
maintenance amount is sufficient to enable the wife to live in
somewhat the same degree of comfort, as in the matrimonial
home, the amount of maintenance should not be so exorbitant that
the husband is unable to pay. By adoption of such a course, no
purpose would be served. In other words, the amount of
maintenance should be punitive in nature. It should aid the wife
to live in a similar style as she enjoyed in the matrimonial home.
It should not expose the husband to unjustified contempt or other
coercive proceedings. On the other hand, the amount of
maintenance should not be so low, as to make the order
meaningless. Naturally, there can be no mathematical exactitude,
in these matters. The Court has to take a general view, and try to
fix an amount which would be by and large acceptable to both the
husband and the wife. A perusal of the order passed by Justice
Kapadia at the ad-interim stage would show that a maintenance of
Rs. 7,500/- at ad-interim stage was granted on the allegation that
the income of the husband was Rs. 2 lakhs. At the same time it is
to be noticed that the various factors which have been now
brought out on affidavit were not before this Court at the ad-
interim stage. , income depicted by both the sides is very much on
the lower side. The husband could not be enjoying such a high
standard of living unless he was earning extremely well. On the
other hand the wife could not possibly afford to keep a chauffeur
if her income was only Rs. 12,500/-. It would however be
difficult to put a figure on the income of both the parties. There
appears to be hardly any change in the style of life enjoyed by the
wife. She continues to live with her parents in a bungalow at
Juhu. Parents of both the husband and the wife enjoy independent
income. None is dependent on the husband or the wife.
Keeping the aforesaid facts in view I am of the considered
opinion that it would be just and proper that the husband be
directed to pay a sum of Rs. 7,500/- per month as ordered in the
ad-interim order. This would on the admitted fact give the wife
an income of Rs. 20,000/- per month which should be sufficient
to keep her in the style and status enjoyed by her, whilst living
with the husband.’ 1
Actually according to Section 24 of the Hindu Marriage Acts
Court has first to determine the income of the spouses and then in view
of the income of the husband and wife coupled with the other facts and
circumstances the alimony has to be passed. What the learned lower
Court has done in the instant case is that the income of the joint family
has been taken into consideration and from that income inferences have

1 Rekha Deepak Malhotra vs. Deepak Jagmohan Malhotra, II (1999)


DMC 453 Bombay.
Maintenance pendente lite—Date from which amount granted 65

been drawn and thereafter on the basis of the expenditure which


according to the Court was incurred by members of the family, the order
has been passed. The Court has not taken into consideration the material
portions of the evidence and the documents on record showing the
ownership of the watch-shop and the packaging. Unit of incense sticks.
Although it is not necessary for the Court to critically examine the
evidence on record while passing an order of maintenance pendente lite,
however, the mandate of Section 24 of the Hindu Marriage Act should
not be lost sight of and the Court is bound to arrive at a conclusion that
the husband has a particular amount of income from which he can meet
the expenses to a particular extent of his wife. In view of the aforesaid,
in my opinion, the order impugned has been passed without taking into
consideration the relevant circumstances as enumerated in Section 24 of
the Hindu Marriage Act, the order is, therefore, against the provisions of
law. It is accordingly quashed. The case is remanded to the lower Court
for deciding the application afresh after determining the income of the
applicant-husband and thereafter to determine the extent of maintenance
amount which the non-applicant is entitled to get. 1

Date from which amount granted


Ordinarily direction to pay interim maintenance is to take effect
from the date of filling of application for the same unless the Court in
exercise of its discretion for good reasons decided differently. 2
Even in England, law is that on petition for divorce, the Court
may make an order for maintenance pending suit, that is to say, an order
requiring either party to the marriage to make other such periodical
payments for his or her maintenance and for such term, being a term
beginning not earlier than the date of presentation of the petition and up
to the date of determination of the suit as the Court thinks reasonable. In
this case, the petitioner had claimed the alimony pendente lite from the
date she made the application and it was held that the District Judge
ought to have allowed the alimony pendente lite from the date the
petitioner made the application for the said purpose and should not have
allowed it from the date he passed the order, which order was passed
after 10 months of the making of the application. 3

1 Rajendrakumar Jain vs. Sudha Jain, I (1992) DMC 240 MP.


2 Sarojini Sarangi vs. Biswanath Sarangi, I (1989) DMC 53: Radha
Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: : AIR 1983 Ker
139: 1982 Ker LT 417: (1982) 2 Civ LJ 217: Kaushalya Singha vs.
A.K. Singha, II (1983) DMC 323 Delhi.
3 Saroj Devi vs. Ashok Puri Goswami, AIR 1988 Rajasthan 84.
66 Law of Maintenance

Ordinarily, the amount of maintenance is required to be awarded


from the date of the application but is not from the date of receipt of
summons of the suit against the wife, by the respondent. In absence of
any reasons whatsoever for not awarding amount of interim maintenance
from the date of the application, the order can not be upheld. 1
While the discretion is conferred on the Court to fix a date for
award of maintenance other than the one from the date of the filing of
the petition for divorce, such discretion should be exercised reasonably,
fairly and consistent with the right guaranteed to the wife to be
maintained by her husband and the obligation cast on the husband to
maintain his wife under Section 24 of the Act. Section 24 of the Act
provides for grant of interim maintenance during the pendency of the
proceedings initiated under the Act. Therefore, when the Court on the
basis of the materials on record, finds that the wife is entitled for grant
of maintenance, the maintenance awarded cannot be denied to the wife
from the date of application filed by her seeking maintenance unless her
conduct or the evidence on record discloses that the wife had sufficient
financial capacity to maintain herself till the date of the order and she
deserves to be awarded maintenance only from the date of the order. 2
Provision of Section 24 of the Act applies to both, the wife or the
husband, as the case may be provided the spouse has no independent
income sufficient to support and meet the necessary expenses of the
proceedings. This being so, applied u/Sec 24 of the Act may be filed
along with the suit by the plaintiff or even subsequently therefrom by the
plaintiff. Similarly, the defendant may also avail of this provision by
making application.
Spouse who is claiming decree in his/her favour, if by some
reason or the other, could not file such application along with the suit,
may file application subsequently claiming maintenance pendente lite
from the date of institution of the and the Court in its discretion may
grant maintenance pendente lite payable from the date of the institution
of the suit. But, the respondent cannot enjoy the same benefit claiming
maintenance pendente lite from the date of institution of the suit.
However, in the exercise of judicial discretion, Court may grant
maintenance pendente lite in favour of the respondent from the date of
his/her first appearance in the suit, if prayer is made specifically to this
effect in the application or from the date of the application.

1 Padma Vishnu Pathak vs. Vishnu Vishwanath Pathak, 1995(1)


CCC 235 Gujarat.
2 Lakshmi Sharan vs. Anurag Sharan, I (2001) DMC 767 Kar.
Maintenance pendente lite—Date from which amount granted 67

Therefore, normally the point of time for granting maintenance


pendente lite would be from the date of application. But, if specific
prayer is made in the application then the order may be made operative
in consonance with the prayer made in the application i.e., either from
the institution of the suit in favour of the plaintiff or first appearance
made by the respondent.
However, it is expected of the Matrimonial Court to decide such
application on priority basis at its earliest opportunity on the basis of the
affidavits and counter affidavits as far of possible so as to cut short the
time. However, exception to above rule cannot be ignored where parties
found guilty of protracting the proceedings by any manner and delay
caused in deciding application on account of such a party, in such a case
Court can certainly order for payment of maintenance amount from the
date of prior. 1
However, where the application is kept pending and the party
making application is not responsible for protracting the proceedings, in
such cases Court has to bear in mind two maxims of equity which are
well settled, namely, “Actus Curiae Neminem Gravabit” An act of the
Court shall prejudice no one. In Broom’s Legal Maxims, 2 this maxim is
explained that this maxim was founded upon justice and good sense; and
afforded a safe and certain guide for the administration of the law. The
above maxim should, however, be applied with caution. The other maxim
is “Flat Justitia”, justice be done and that justice should be fair causing
prejudice to no one. 3
Another view is taken by Madhya Pradesh High Court. According
to it the maintenance allowance is normally granted from the date of the
order. A special reason is, however, required to be recorded for granting
maintenance allowance from the date of the filling of the application.
When no special reason has been assigned by the Trial Judge for granting
the interim maintenance allowance from the date of the filing of the
application under Section 24 of the Hindu Marriage Act, it was held that
the order was not sustainable. 4 Even though in an earlier case the same
court had frowned upon the delay which takes place in disposal of
application for maintenance and held to the contrary in following words:
Spouse who is claiming decree in his/her favour, if by some
reasons or the other, could not file such application along with

1 Indira Gangele vs. Shailendra Kumar Gangele, II (1994) DMC 417


MP.
2 10th Edition, 1939 at page 73
3 Indira Gangele vs. Shailendra Kumar Gangele ibid
4 Vinay Kumar vs. Muthileshbai, 1996(1) CCC 307 MP.
68 Law of Maintenance

the suit, may file application subsequently claiming maintenance


pendente lite from the date of institution of the suit and the Court
in its discretion may grant maintenance pendente lite payable
from the date of the institution of the suit. But, the respondent
cannot enjoy the same benefit claiming maintenance pendente lite
from the date of institution of the suit. However, in the exercise
of judicial discretion, Court may grant maintenance pendente lite
in favour of the respondent from the date of his/her first
appearance in the suit, if prayer is made specially to this effect in
the application or from the date of the application. 1
Yet another view of Punjab and Haryana High Court is that the
section 24 of the Hindu Marriage Act was enacted with a view to provide
necessary funds to the needy spouse to prosecute the matrimonial
proceedings as also to maintain herself or during the pendency of the
proceedings. If an application is filed under Section 24 of the Act
maintenance pendente lite can be granted from the date of application or
from the date of notice in a proceeding initiated by the husband or wife
for divorce. 2
An application under Section 24 of the Act is not a suit by the
wife for maintenance under the Hindu Adoptions & Maintenance Act,
1956. Therefore, the maintenance could not have been granted prior to
the date of application under Section 24 of the Act. 3

Delay in disposal
It is expected of the Matrimonial Court to decide such application
on priority basis at its earliest opportunity on the basis of the affidavits
and counter affidavits as far of possible so as to cut short the time.
However, exception to above rule cannot be ignored where parties found
guilty of protracting the proceedings by any manner and delay caused in
deciding application on account of such a party, in such a case Court can
certainly order for payment of maintenance amount from the date of
order. 4
However, where the application is kept pending and the party
making application is not responsible for protracting the proceedings. In
such cases Court has to bear in mind two maxims of equity which are
well settled, namely. “Actus Curiae Neminem Gravabit” An act of the
Court shall prejudice no one. In Broom’s 5 this maxim is explained that

1 Indira Gangele vs. Shailendra Kumar Gangele, II (1994) DMC 417


MP.
2 Paramjit Kaur vs. Kashmir Singh, I (1994) DMC 504 P&H.
3 Samru Singh vs. Dhanamani Singh, II (1986) DMC 152 Orissa.
4 Indira Gangele vs. Shailendra Kumar Gangele, ibid.
5 Broom’s Legal Maxims, 10th Edition, 1939 at page 73
Maintenance pendente lite—Denial of marriage 69

this maxim was founded upon justice and good sense; and afforded a safe
and certain guide for the administration of the law. The other maxim is
“Flat Justitia”, justice be done and that justice should be fair causing
prejudice to no one. 1
Where a litigation is prolonged unduly, either on account of the
conduct of the Opposite Party, on account of the heavy docket in Court
or for other unavoidable reasons, it would be just and contrary to the
very purpose of the provision to postpone the effectuation of the order to
the date of the order. Such postponement deprives the claimant of the
benefit of the fruits of a decree which he or she could have obtained
through a Civil Court. Looking at the matter from this perspective also,
there is justification to say that ordinarily the claimant who seeks an
order for maintenance under Section 125 of the Code shall obtain the
relief from the date when she or he approached the Court i.e. the date of
application and only where there are circumstances justifying a contrary
view, it can be postponed to the date of the order. 2
When inspite of delay, the learned Magistrate did not pass and
order for interim maintenance. This is a mockery of the legislative
intention to provide a summary, quick and comparatively cheap remedy. 3

Denial of marriage
The object of this Section is that neither party may suffer by her
or his inability to conduct the proceedings for want of money for
expenses. The real object of the maintenance is to support the party
without means during pendency of proceedings. Exercise of power under
this section does not appear to be dependent on the defence raised by the
opposite party. Even in cases where the factum of marriage is denied by
the opposite party the court has jurisdiction to determine prima facie the
factum of marriage on the basis of documents and affidavits that may be
placed before the Court. The passing of an order under this Section
further cannot be postponed till the final determination of the
relationship of husband and wife. If it be so the purpose of this section
would be frustrated. In a petition for restitution of conjugal rights if the
defence taken is that there was no marriage between the parties, and the
petitioner-wife had no means to support her or to conduct the legal
proceedings she would be without any remedy. In proceedings for
restitution of conjugal rights the factum and validity of marriage is

1 Indira Gangele vs. Shailendra Kumar Gangele, II (1994) DMC 417


MP.
2 Saroj Bai vs. Jai Kumar, 1994 JLJ 725 FB.
3 Rafikunbai vs. Liyakat Khan, I (1996) DMC 317 MP.
70 Law of Maintenance

generally denied so that the party approaching the Court for relief may
be harassed and on account of harassment, such party may not pursue the
remedy. I am therefore, of the opinion that even if the factum or validity
of the marriage is denied, the Court exercising jurisdiction under the Act
has power to award maintenance and litigation expenses to the applicant
i.e. the wife or the husband after prima facie determining whether there
was marriage age or not. 1
To allow a defendant the bald plea of denial of status in the face
of letters written by the defendant, in the face photograph showing the
plaintiff and the defendant in intimate relationship would be to allow a
prima facie case to be thwarted at the hands of a designing defendant.
The device of a denial for the sake of suggesting that the Court has no
jurisdiction to grant interim maintenance is to strike at the root of
administration of justice and more so in a case where the plaintiff who
claims to have lived with the defendant as husband and wife for years is
now deserted by the defendant and is treated by the defendant as a
woman without any status. It would allow injustice to be perpetrated by
mere deliberate act of denial by the defendant. 2

Determination of amount
The wife moved an application under Section 24 of the Act for
fixation of maintenance pendente lite on the ground that she had no
source of income whereas the husband was earning more than Rs. 1500/-
per mensem. She claimed maintenance allowance pendente lite at the rate
of Rs. 500/- per mensem and litigation expenses of Rs. 2,000/-. The
husband also moved an application under Section 24, of the Act against
the wife on the ground that the wife was doing embroidery and tailoring
work and was earning Rs. 2,000/- per mensem. He was unemployed and
was dependent upon his poor parents. He claimed maintenance allowance
pendante lite at the rate of Rs. 500/- per mensem and Rs. 2500/- as
litigation expenses. The Matrimonial Court, on appraisal of the material
placed before it, came to the conclusion that the wife had no source of
income, whereas the husband was doing the business of radio and T.V.
technician and was earning Rs. 1000/- per month. He fixed the
maintenance pendente lite for the wife at rate of Rs. 300/- per mensem
and also directed the husband to pay Rs. 1100/- as litigation expenses to
her. The order was affirmed. 3

1 Jagmohan Verma vs. Sunita Verma, I (1983) DMC 176 Delhi.


2 Nemai Chand vs. Lila Jain, AIR 1968 Cal 405 (DB).
3 Baljore Singh vs. Alka, I (1991) DMC 318 P&H.
Maintenance pendente lite—Discretion of Court 71

Discretion of Court
Wide discretion is conferred on the Court to pass order for
maintenance pendente lite and costs of the proceeding. But the discretion
is judicial and not arbitrary or capricious. The initial words of the
Section “in any proceeding under this Act” and the words “such sum as,
income of the respondent, it may seem to the Court to be reasonable” are
clearly suggestive of the wide amplitude of the discretionary power
conferred on the Court. It is also clear from the Section 24 that the
amount of maintenance that one spouse may be ordered to pay to the
other must be such as appears to be reasonable to the Court in exercise of
that discretion and the Court in doing so must have regard to the
petitioner’s own income and the income of the respondent. Any decision
on the subject of alimony under the Section must necessarily turn on the
facts and circumstances of each case and no fixed rules can be expected
on the question. While determining the quantum of maintenance the
Court has not only to take into consideration the income of the applicant
and the respondent as provided in the Section, but also relevant facts and
circumstances in the case including the conduct of the parties. In its very
nature the quantum of interim maintenance cannot be taken to be a fixed
amount which. If determined once, can in no circumstance be altered.
The change in the circumstances relevance to the matter may call for a
revision of the order. No doubt Section 24 unlike Section 26 does not
expressly provide that the Court may pass orders for interim
maintenance/expenses of the proceeding from time to time. But there is
no express or implied bar in the provision for exercise of such
jurisdiction in a deserving case. Therefore, it will neither be legal nor
just and proper to limit the wide discretionary power conferred on the
Court by holding that the Court has no power to modify or vary its order
awarding interim maintenance even on proof of changed circumstances. 1
Spouse who is claiming decree in his/her favour, if by some
reasons or the other, could not file such application along with the suit,
may file application subsequently claiming maintenance pendente lite
from the date of institution of the suit and the Court in its discretion may
grant maintenance pendente lite payable from the date of the institution
of the suit. But, the respondent cannot enjoy the same benefit claiming
maintenance pendente lite from the date of institution of the suit.
However, in the exercise of judicial discretion, Court may grant
maintenance pendente lite in favour of the respondent from the date of

1 Laxmi Priya Rout vs. Kama Prasad Rout, II (1991) DMC 491
Orissa.
72 Law of Maintenance

his/her first appearance in the suit, if prayer is made specially to this


effect in the application or from the date of the application. 1
Normally the point of time for granting maintenance pendente lite
would be from the date of application. But, if specific prayer is made in
the application, then the order may be made operative in consonance
with the prayer made in the application i.e., either from the institution of
the suit in favour of the plaintiff or first appearance made by the
respondent. 2
A bare look to the provision of Section 24 of the Act demonstrate
that it has been enacted exclusively for the benefit of the poor spouse
who is unable to maintain and contest the case. therefore, it is always for
such a poor spouse to avail this statutory benefit. 3
It is expected of the Matrimonial Court to decide such application
on priority basis at its earliest opportunity on the basis of the affidavits
and counter affidavits as far as possible so as to cut short the time.
However, exception to above rule cannot be ignored where parties found
guilty of protracting the proceedings by any manner and delay caused in
deciding application on account of such a party, in such a case Court can
certainly order for payment of maintenance amount from the date of
order. 4
Where the application is kept pending and the party making
application is not responsible for protracting the proceedings, in such
cases Court has to bear in mind two maxims of equity which are well
settled, namely, “Actus Curiae Neminem Gravabit” An act of the Court
shall prejudice no one. In maxims Broom’s Legal maxims, 5 the maxim is
explained that this maxim was founded upon justice and good sense; and
afforded safe and certain guide for the administration of the law. The
above maxim should, however, be applied with caution. The other maxim
is “Flat Justitia”, Justice, be done and that justice should be fair causing
prejudice to no one. 6
No doubt, there is no specific provisions in Section 24 of the Act
relating to the issuance of such direction in fixing the point of time from
which date maintenance pendente lite be made operative i.e., either from

1 Indira Gangele vs. Shailendra Kumar Gangele, II (1991) DMC 401


MP.
2 Indira Gangele vs. Shailendra Kumar Gangele ibid
3 Indira Gangele ibid
4 Indira Gangele ibid
5 10th Edition, 1939 to page 73
6 Indira Gangele ibid
Maintenance pendente lite—Dismissal of main petition 73

the date of application, from the date of order or from the date of
institution of the suit. It however, leaves to the discretion of the Court. 1

Dismissal of main petition


The main object of the Section is to provide some amount for the
sustenance of parties who are unable to support themselves. Under Sub-
section (1) the provision can be made at the time of passing of this
decree or at any time subsequent thereto.
As seen from Section 25 of Hindu Marriage Act, 1955 the
expression used is “at the time of passing of any decree”. The word
“decree” is not defined under the Hindu Marriage Act. Therefore, we can
borrow the definition under the Civil Procedure Code. In fact, under
Section 25-A of the Act, the provisions of the Civil Procedure Code are
made application for enforcement of decrees and order under the Hindu
Marriage Act, Section 2(2) of Civil Procedure Code defines a “decree” as
a formal expression of an adjudication which conclusively determine the
rights of parties with regard to all or any of the matters is controversy in
the suit and may be either preliminary of final.” Thus a decree means the
expression of an adjudication. The suit or petition may either be
dismissed or allowed. A relief may be given or refused. In either case, it
is a decree. There is no reason to give a restricted meaning to the
expression “decree”. In this connection the word “any” is also
significant. It indicates either allowing or rejecting. Under Section 28 of
the Act all decrees are made appeal-able. If the contention of the learned
Counsel that a decree means only granting a relief, then no appeal would
lie against an order dismissing the petition as the word used in Section
28, the appeal section, is decree. But it is submitted that Section 28 used
the words “decree made” as distinguished from “passing of the decree”
used in Section 25. In our view it is a distinction without any difference.
The expression “ at the time of passing any decree” used in Section 25
only means “that at the time of disposal of the case”. The emphasis is on
the time and this is evident from the later expression “or at any time
subsequent thereto.” The further expression that “any court exercising
jurisdiction under this Act” also lends support the this conclusion.
This Section from its express language empowers every Court
dealing a matrimonial matter to give the relief of maintenance to either
party irrespective of the fact whether the petition for any of the relief
mentioned in Section 9 to 13 is dismissed or allowed, whether the relief
are granted or declined.

1 Indira Gangele vs. Shailendra Kumar Gangele, II (1991) DMC 401


MP.
74 Law of Maintenance

Section 23-A of the Hindu Marriage Act was introduced in 1976.


This Section enables the opposite party not only to oppose the relief of
divorce, judicial separation or restitution of conjugal rights, but also
make a counter claim for any relief under the Act and proves that it was
the petitioner who was guilty of adultery, cruelty or desertion he or she
is entitled to that relief.
The words used are “any relief” which includes a relief under
Section 25 and if the opposite party makes a counter claim for the relief
under Section 25 while opposing the petitioner’s claim for divorce this
Section empowers the Court to grant such relief. The word “any relief”
occurring in Section 23-A has been held to include not only the reliefs
mentioned in Section 9 to 13, but also a relief under Section 25 of the
Hindu Marriage Act. 1
The Court, during the pendency of the proceedings under the Act
viz. for restitution of conjugal rights, judicial separation, divorce or
nullity or marriage, can grant to a spouse having no sufficient income of
maintain himself/herself and to meet the necessary expenses of the
proceeding maintenance pendente lite and litigation expenses. The object
of enacting the section is that an indigent spouse should not suffer during
the pendency of the proceedings because of his/her poverty. It is the duty
of the Court to decide such an application expeditiously so that the
indigent spouse is not handicapped because of want of funds. However,
if the application under section 24 is not decided during the pendency of
the main petition on account of dilatory tactics of the other spouse or for
some unforeseen circumstances, the whole purpose of the section stands
frustrated in case it is dismissed on the ground that after the decision of
main petition it does not survive. Therefore even if the main petition is
decided finally, the application under Section 24 which is pending
decision can continue. Similarly, a revision petition filed against an
order under section 24 can continue in spite of disposal of the main
petition. 2
The following observations of D.S. Tewatia, J. in Amrik Singh vs.
Smt. Narinder Kaur 3 are worth referring in this regard:
“If the view is that the provisions of section 24 of the Act were
intended by the legislature to enable the indigent spouse to secure
wherewithal to defend the proceedings against oneself and to

1 Silla Jagannadha Prasad @ Ramu vs. Silla Lalitha Kumari, I (1988)


DMC 319 AP.
2 Sohan Lal vs. Kamlesh, I (1985) DMC 215 P&H: ILR (1984) 2 P&H
298: (1984) 86 Pun LR 485: AIR 1984 P&H 332.
3 AIR 1979 (P&H) 211.
Maintenance pendente lite—Dismissal of main petition 75

maintain oneself during the pendency of the proceedings, then it


is incumbent upon the Courts to take an immediate decision upon
the petition under section 24 of the Act, otherwise the delay
would defeat the very purpose. Otherwise in a case where the
Court delays the decision on the application till the fag end of the
trial of the main case, right to maintenance and litigation
expenses would be denied to the applicant on the specious that
she had been able to prosecute the litigation for all that long
period and had survived and so she was not entitled to favourable
order on her application, for the litigation expenses and the
interim maintenance under Section 24 of the Act was intended
merely to meet the contingency of an indigent spouse not being
able to prosecute the case and survive during the pendency of the
proceedings which contingency would no longer exist when the
proceedings had reached the stage of conclusion though not
finally concluded.
I do not thing that the interim maintenance and litigation
expenses could be denied to the applicant on such a ground when
the applicant had been filed during the pendency of the main
proceedings and it is the court which delayed its decision thereon.
If the relief could not be denied in the above situation then surely
the applicant would not be denied the same relief even after the
conclusion of the main petition”.
This judgment was followed in Sundershan Kumar Khurana vs.
Smt. Deepak, 1 and Bhanwar Lal vs. Smt. Kamla Devi. 2 Gokul Chand
Mital, J. in Sudershan Kumar Khuran’s case (supra) observed that
section 24 and 26 were enacted to provide maintenance to wife and child
pendente lite Generally, the petitions under these sections are decided
first and should as a matter of fact be decided before conclusion of main
petition.
The word “proceeding” in the section appears at three places and
it connotes the main proceedings, that is, proceedings other than
proceedings under Section 24. The words “monthly during the
proceedings such sum” are very important. These words show the
intention of the legislature that it intended to give maintenance to the
indigent spouse till disposal of the main petition. If the application under
Section 24 is taken to be included in the word “proceeding”, anomalous
results would follow. Therefore if the application under Section 24

1 AIR 1981 P&H 305.


2 AIR 1983 Raj 229.
76 Law of Maintenance

continues after dismissal of the main petition, the applicant is entitled to


the maintenance till the date of the decision of the main petition. 1
Section 24 only mandates that if it appears to the court that either
the wife or the husband, as the case may be, has no independent income
sufficient for her or his support and for necessary expenses of the
proceedings the court may order the respondent to pay to the petitioner
the expenses of the proceeding. Implicitly or explicitly the section did
not say at what point of time a party who has got the entitlement to claim
for an order for the expenses of the proceedings should apply. The
language of the section may indicate that the application should be filed
as an interlocutory application in the main proceedings. Certainly
Section 24 does not contemplate the initiation of an independent
proceedings. But it shall not be treated as an independent proceeding on
the mere happening of an accident that such an application remained
undisposed of when the main proceedings ended. Notwithstanding the
disposal of the main proceedings the court should dispose of the petition
under Section 24 on merits, if circumstances do require it. The Court has
power to do so. 2

Disputed marriage
The same expression “wife” and “husband” have been used in
Section 24 of the Act and it is apparent that those expressions in that
section on a parity of reasoning cannot be said to have been used in any
difference sense than in section 25(1) of the Act. The expressions are
wide enough to include any wife or husband who has brought a
proceeding in the Court under the Act. In such case though the husband
claimed that the wife had been divorced by writing made in May 1974,
the wife denied the factum and validity of the divorce and that obviously
would be an issue to be tried in the proceeding which the wife has
brought before the relief can be granted to her. That, however, is a
matter to be decided upon the merits of the case and as long as it is not
decided, the proceeding cannot be terminated. Section 24 of the Hindu
Marriage Act, makes provision for the interim alimony obviously in
respect of such cases where pending the decision some provision has to
be made for maintenance pendente lite and expenses of the proceedings. 3

1 Sohan Lal vs. Kamlesh, I (1985) DMC 215 P&H: ILR (1984) 2 P&H
298: (1984) 86 Pun LR 485: AIR 1984 P&H 332.
2 Ellikkal Kuniyil Raghavan vs. K.K. Saroja, AIR 1987 Kerala 151:
1986 Ker LJ 1127: (1987) Ker LT 376: 1987 Mat LR 185: (1987) 2
DMC 408.
3 Sou Nirmala vs. Gangadhar, I (1985) DMC 172 Bombay.
Maintenance pendente lite—Distinction with alimony 77

Distinction with alimony


Under Section 24 of the ‘Act’ maintenance ‘pendente lite’ is to be
granted while under Section 25 of the ‘Act’, provision has been made for
grant of permanent alimony for a period after the passing of the decree.
The above provisions are, therefore, distinct and independent of each
other. 1
The object behind Section 24 of the Act providing for
maintenance pendente lite to a party in matrimonial proceedings is
obviously to provide financial assistance to the indigent spouse to
maintain herself or himself during the pendency of the proceedings and
also to have sufficient funds to carry on the litigation so that the spouse
does not unduly suffer in the conduct of the case for want of funds.
When considering such a piece of legislation, it would not be right to
adopt a narrow pedantic approach. On the other hand if the Court desires
to gather the legislative intention from the provisions of such an Act, it
must adopt a liberal and progressive approach keeping in mind that it
was the liberal and progressive approach of the Legislature which led to
the enactment being passed. It may be seen from the above mentioned
provisions of the Act that even in a case of bigamous marriage one of the
parties can seek a decree of nullity of marriage by way of petitioner or
respondent which is permissible under Section 23-A of the Act. It may
also be seen that in pending proceedings even at the instance of the
second wife is a void bigamous marriage, the Court is empowered to
make an attempt for re-conciliation, to pass necessary orders with regard
to the custody of the children and disposal of the property exchanged at
the time of marriage. The Court has also power in such proceedings to
make an order of permanent alimony or maintenance under Section 25 of
the Act. The Act confers wide powers on the matrimonial Court so as to
regulate matrimonial relationship between the parties and such powers
are to be exercised by the Court even in a case of alleged or proved
bigamous marriage. In enacting Section 24 a special provision is made
for ordering interim maintenance and the expenses of litigation to be
provided for the contesting husband or wife if he or she had no
independent sufficient income. I therefore, see no reason why the words
“wife” or “husband” used in Section 24 should not be interpreted so as to
include a man and woman who have gone through a ceremony of a Hindu
Marriage which would have been valid but for the provisions of Section
11 read with Clauses (i) of Section 5 of the Hindu Marriage Act. These
words have been used as convenient terms to refer the parties who have
gone through a ceremony of marriage whether or not that marriage is

1 Ajay Ahuja vs. Manju Ahuja, II (2000) DMC 267 MP.


78 Law of Maintenance

valid or subsisting, just as the word “marriage” has been used in the Act
to include a purported marriage which is void ab initio. 1

Distinction with Section 125 Criminal Procedure Code


The proceedings under Section 125 Cr.P.C. are quite independent
proceedings, even if she has been allowed maintenance pendente lite
under Section 24 of Hindu Marriage Act. The maintenance allowance
under Section 24 is for a temporary period. It is true that the Magistrate
while passing an order may give such direction so that the amount
warded by the Civil Court under Section 24 of the Hindu Marriage Act
may be adjusted, during such period for which the maintenance
allowance so awarded under Section 24 subsists. The provisions of
Section 24 of the Hindu Marriage Act cannot override the provisions of
Section 125, Cr.P.C. Section 24 of Hindu Marriage Act is for a period
during which the matrimonial proceedings are pending in the Civil
Court, whereas the allowance which is awarded by the Judicial
Magistrate under Section 125, Cr.P.C. is not for a limited period, but is
for a period during which the wife or other dependents of the husband
are neglected by him and the wife refuses to live with her husband. 2

Duration of payment
The marginal note of the section is very significant. It is
“maintenance pendente lite and expenses of proceedings”. The section
expressly says that the order of maintenance which the Judge makes
under Section 24 of the Act is to last only for the period of the
proceedings. The words “where in any proceedings under this Act” and
the phrase “during the proceedings” clearly show that it is a temporary
order the lite or which is coterminous with the proceedings. If there is no
proceeding before the Judge, Section 24 cannot be invoked. The question
is what is the meaning of term “proceedings” as used in Section 24. 3
Section 30 of J&K Hindu Marriage Act is a facsimile of Section
24 of the 1955 Act. This section makes maintenance payable to the wife
or the husband as the case may be, during the proceeding, without further
specifying the point of time during such proceeding from which the same
is payable. Obviously, therefore, it does not empower the Court to grant
maintenance either before the commencement of the proceeding, or after
the same has ended. There is no warrant for the proposition that

1 Krishnakant Mulashankar vs. Reena Krisha Vyas, II (1999) DMC


221 Bombay.
2 Pushpa Devi vs. Anup Singh, I (1985) DMC 175 All.
3 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984
Marriage LJ 316: AIR 1984 Delhi 320.
Maintenance pendente lite—Duration of payment 79

proceeding in a suit commences only from the stage contemplated by


Order 13. On the other hand, it commences with the filing of the plaint.
On the plaint being filed, summons is issued to the defendant, who on its
service appears in the Court and files his written statement. After the
parties have filed their pleadings, the Court for the first time proceeds to
apply its mind to the controversy raised in the suit. This controversy is
then reduced to the form of distinct issues, which are framed by the
Court, not only from the allegations made by them in their pleadings, but
also from the allegations made by the parties on oath, and the contents of
the documents produced by them. That is one of the reasons why
production of documents is terms of Order 13 is insisted on or before this
stage, which is called first hearing; the other reason being preventing
production of fabricated documents. Then comes the next stage in the
proceeding. The parties are asked to lead evidence in support of their
respective cases. After they have let it, the Court proceeds to hear
arguments and give its judgment in the case. This is the last stage in the
proceedings, and last hearing in the suit. It is, therefore, obvious that
proceeding in a suit does not commence on the first hearing, rather the
first hearing is one of the various stages in that proceeding, which starts
as soon as the plaint is filed in the Court. That apart, the word
proceeding in Section 30 has to be given the same meaning, even
keeping in view its intent and scope. The object behind the enactment is
obviously two fold; firstly, to prevent vagrancy resulting from strained
relations between the husband and wife; and secondly, to ensure that the
indigent litigating spouse is not handicapped in defending or prosecuting
the case due to want of money. That is why Courts have always insisted
that whenever an application is made under Section 30, it must be
disposed of before any further steps are taken in the main case. They
have been gone to the extent of holding that the Court in exercise of its
inherent powers should stay further proceedings in the main petition till
the order passed by it granting maintenance pendente lite or litigation
expenses is complied with by the opposite party. 1
The words “During the proceedings” in Section 24 of Hindu
Marriage Act, 1955 may in the first flush show that the party is entitled
to claim maintenance only during the pendency of the proceedings, but
on a close scrutiny these words clearly apply not only to the proceedings
before the trial court but also during the pendency of proceedings in
appeal as well as during the period between the termination of
proceedings in the trial court and filing of appeal. The appeal is only
continuation of the suit of proceedings in the trial court, without there

1 Amrti Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K.
80 Law of Maintenance

being a suit or proceedings in the trial court there cannot be an appeal,


therefore the proceedings in the appeal being continuation of the
proceedings, the party is entitled to claim maintenance during the period
between the date of the decree and the date of filling of the appeal.
Merely because the party is unable to file an appeal within a particular
period and that too after deducting the time for obtaining the copies, it
does not mean that the party is not entitled to claim maintenance during
that period. If this interpretation is accepted, it would be defeating the
purpose of the provisions enabling a party to claim interim maintenance
pending proceedings under this Act. ‘Proceedings’ means proceedings
under the Act and it is referable to the Act only. 1
It is the legal obligation of the husband to maintain his wife.
When the law provides for pendente lite maintenance it does not mean
that the maintenance amount is to be paid only during the continuation of
the proceeding. The general duty of maintaining wife, particularly when
she has no means of her livelihood is merely re-emphasized by such a
provision by pendente lite maintenance. Therefore, even for the period of
pendency of appeal the husband is bound to pay the maintenance. Even
otherwise the appeal is a continuation of the original proceeding and
hence the husband is liable to pay the maintenance for the period. 2

Duty of husband
A person is bound to maintain his wife is she if unable to
maintain herself. In cases of desertion or abandonment a wife may seek
maintenance allowance from the Court, but so long as that has not been
granted she will definitely try to earn livelihood for her sustenance. It
appears that Vidhyabai was forced to work as she was not being
maintained by her husband. It also appears that learned Sessions Judge
has taken into consideration this fact also and that is why lesser amount
has been granted in her favour. This is also not but of place to mention
here that while granting maintenance allowance if it is found that a
person seeking such allowance is having some income & that is not
sufficient, the person who is liable to maintain can be directed to
compensate to the extent of insufficiency. 3

1 M. Vijayalakshmi vs. M.V.S.R. Prasad, 1999(1) CCC 351 (AP).


2 Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP:
AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L
1982 Hindu LR 387: Mukul Kumar Chaturvedi vs. Neelam
Chaturvedi, II (1984) DMC 53 Delhi.
3 Kailash vs. Vidhyabai, I (1993) DMC 594 MP.
Maintenance pendente lite—Effect of non payment on appeal 81

Effect of interim maintenance


The fact that the non-applicant wife did not take any step against
the impugned order cannot by itself lead to a conclusion that Rs. 100/-
per month was a sufficient amount for her maintenance. There can be
many reason for her not taking any step in that behalf. The question of
determination of maintenance pendente lite apart from evidence is not
wholly but to a greater expend depend upon some fair approximation. 1

Effect of non payment on appeal


In case the defaulting party happen to be the petitioner or the
appellant the court may pass an order staying further proceedings till the
order passed under Section 24 is complied and if the default is persistent
it may dismiss the petition or appeal. In cases where the defaulting party
is the respondent the court may refuse to hear it till the order passed
under Section 24 of the Act is duly complied and may strike off the
defence of the defaulting party. But the appellate court would not be
justified in allowing the appeal on the ground that the respondent has
failed to comply with the order passed under Section 24 of the Act. For
the purpose of allowing the appeal the appellate court has to set aside the
judgment of the court below and this can be done only if the appellate
court reverses the findings recorded by the trial court. In view of the
non-compliance of the order passed under Section 24 of the Act by the
respondent the appellate court may refuse to hear the respondent and
may proceed to hear the appeal ex parte and allow the appeal if the
appellate court is satisfied that the judgment of the lower court cannot be
sustained. But the appellant cannot ask for the appeal being allowed only
because the respondent has failed to comply with the order passed under
Section 24 of the Act. 2
In one case the original petition for the grant of a decree for
divorce was filed by the wife herself which was dismissed by the trial
Court on merits. In the appeal filed by her, she moved the application
under Section 24 of the Act, which was allowed, but the husband did not
pay the maintenance as ordered. It was held that even if his defence is
struck off the appeal could not be allowed on that ground alone unless
the Court is satisfied on merits of the claim made by the wife in her
divorce petition. It was further held that the position would have been
different if the original petition was filed by the husband and the same
was either allowed or dismissed and the appeal was filed by either party
who was not complying with court order therein. In case, court order

1 Mangli Lal vs. Mangibai, II (1987) DMC 172 MP.


2 Kanta Choudhary vs. Rajendra Choudhary, I (1983) DMC 313 Raj.
82 Law of Maintenance

under Section 24 of the Act, was not complied with, by the husband, the
appeal filed by him could be dismissed by the court, but since the
original petition was filed by the wife and the same was dismissed by the
trial court, in appeal it could not be allowed simply on the ground that no
maintenance was paid by the husband. 1

Effect of operation of Hindu Adoptions & Maintenance Act


The Hindu Adoptions & Maintenance Act, 1956 is retrospective
is operation to the extent that it applies to pending litigations. It was
consequently held that the plaintiff is entitled to maintenance, though she
is living separately, and separate residence from the date on which the
Hindu Adoptions & Maintenance Act, 1956 came into force, that is w.e.f.
25-12-1956. 2

Enforcement of order
No doubt, wife can file a petition under O. 21, R. 37, Civil
Procedure Code, 1908 for the recovery of this amount and the husband
can be hauled up under the Contempt of Court also for disobedience of
the aforesaid Court’s order, but Section 24 of the Act empowers the
matrimonial Court to make an order for maintenance pendente lite and
for expenses of proceedings to a needy and indigent spouse. If this
amount is not made available to the applicant, then the object and
purpose of this provision stand defeated. Wife cannot be forced to take
time-consuming execution proceedings for realising this amount. The
conduct of the husband amounts to contumacy. Law is not that powerless
as to not to bring the husband to book. If the husband has failed to make
the payment of maintenance and litigation expenses to the wife, his
defence can be struck out. 3
In order to obtain the enforcement of the order passed under
Section 24 of the Act through the process of execution, the parties would
be required to wait, in certain cases, till a number of years. The question

1 Sukhwinder Kaur vs. Harnek Singh, AIR 1988 P&H 208: (1988) 24
Reports 51: (1988) 1 Hindu LR 432: (1988) 1 DMC 476: (1988) 1
Cur LJ (C & Cri) 151: 1988 Marriage LJ 424.
2 K.A. Singh vs. A. Ningoi, AIR 1965 Manipur 10.
3 Bani W/o Parkash Singh vs. Parkash Singh, AIR 1996 P&H 175:
See also Swarno Devi vs. Piara Ram, 1975 Hindu LR 15: Gurdev
Kaur vs. Dalip Singh, 1980 Hindu LR 240: Smt. Surinder Kaur vs.
Baldev Singh, 1980 Hindu LR 514: Sheela Devi vs. Madan Lal
1981 Hindu LR 126: Sumarti Devi vs. Jai Parkash, 1985 (1) Hindu
LR 84: 1996 (2) Civil Court C 26: 1996 (1) Hindu LR 698: 1996
Marri LJ 549: ILR 1997 (1) P&H 118: 1996 (113) Pun LR 219: 1996
(2) RRR 120: 1996 (2) LJR 416: 1996 (3) ICC 114.
Maintenance pendente lite—Enforcement of order 83

is whether this particular procedure would enhance the object of the Act.
Matrimonial proceedings by their very nature are expected to the
expeditious because there would be absolutely no point in giving redress
to a party in matrimonial proceedings after a number of years which
would not stop the parties ageing. Asking a party to the matrimonial
proceeding, to take resort to execution proceedings under Section 28 for
the enforcement of order of interim alimony or expenses pendente lite,
would be obviously resulting in frustration of justice. 1
The same can be said as regards the starting of contempt
proceedings, because, contempt proceedings also are likely to take
sufficiently long time for their culmination and during that time the
original petition would be required to be stayed. Even thereafter it is
doubtful whether in contempt proceedings the amount ordered to be paid
under Section 24 of the Act would be paid or not. 2
Section 24 of the Act enables the court to pass an order directing
payment of maintenance pendente lite and expenses of proceedings by
one spouse to the other. Such an order is enforceable as a decree under
Section 28-A of the Act. Since the aforesaid mode of enforcement may
not, prove effective so as to enable the party in whose favour the order
has been passed to avail the benefits of the said order during the
pendency of the proceedings, the court in exercise of its inherent powers,
can pass an appropriate order for securing the compliance with an order
passed under Section 24 by the defaulting party. In case the defaulting
party happen to be the petitioner or the appellant the court may pass an
order staying further proceedings till the order passed under Section 24
is complied and if the default is persistent it may dismiss the petition or
appeal. In cases where the defaulting party is the respondent the court
may refuse to hear it till the order passed under Section 24 of the Act is
duly complied and may strike off the defence of the defaulting party. But
the appellate court would not be justified in allowing the appeal on the
ground that the respondent has failed to comply with the order passed
under Section 24 of the Act. For the purpose of allowing the appeal the
appellate court has to set aside the judgment of the court below and this
can be done only if the appellate court reverses the findings recorded by
the trial court. In view of the non-compliance of the order passed under
Section 24 of the Act by the respondent the appellate court may refuse to
hear the respondent and may proceed to hear the appeal ex parte and
allow the appeal if the appellate court is satisfied that the judgment of

1 Jai Singh vs. Khimi Bhiklu, AIR 1978 HP 45 (FB): 1978 Sim LC
227: ILR (1978) Him Pra 83.
2 Jai Singh vs. Khimi Bhiklu, ibid.
84 Law of Maintenance

the lower court cannot be sustained. But the appellant cannot ask for the
appeal being allowed only because the respondent has failed to comply
with the order passed under Section 24 of the Act. 1

Enhancement of amount of maintenance


When the husband was getting just about Rs. 675/-per month by
way of salary, she had been allowed a maintenance amounting to a little
less than 1/4 th of his salary. Later he was getting a salary of more than
Rs. 2,000/-per month. Thus the amount if maintenance fixed at the rate
of Rs. 350/-by the learned Additional Session Judge was considerably
less than the 1/4 th of the salary, It was held that there could not be any
dispute that cost of living had increased considerably over the past few
years and it would be impossible for wife to survive with a meagre sum
of Rs. 350/- per month by way of maintenance. Viewed in this
perspective, the amount of maintenance viz., Rs. 350/- fixed by the
Additional Session Judge was held to be inadequate. Accordingly the
amount was enhanced to Rs.500/- per month. 2

Entitlement of children
A bare perusal of Section 24 of the Act reveals that it does not
envisage the grant of interim maintenance allowance of the minor
children. Section 26 of the Act specifically deals with the custody of
children, their maintenance and education. The ambit and scope of
Section 24 and 26 of the Hindu Marriage Act are quite different. Section
26 specifically provide determination by the Court with regard to the
custody, maintenance and education of minor children, consistently with
their wishes. When admittedly no such enquiry was conducted by the
Court, the grant of maintenance for the upkeep of children under Section
24 of the Hindu Marriage Act is wholly unwarranted. 3
Similarly the view of Orissa High Court is also that the award of
maintenance for a child is not within the purview of S. 24 of the Hindu
Marriage Act, 1955. 4
However the Madhya Pradesh High Court has held that the need
of the child is as much the need of the mother, because a mother is not
expected to neglect the need of the child and is on the contrary expected
to meet the need of the child even at the expenses of her own
maintenance. Therefore while granting maintenance under Section 24 of

1 Kanta Choudhary vs. Rajendra Choudhary, I (1983) DMC 313 Raj.


2 Gurcharan Singh vs. Hardev Kaur, I (1993) DMC 213 P&H.
3 Satya Pal vs. Sona Devi, II (1992) DMC 630 P&H.
4 Purusottam Das Agarwala vs Puspa Devi, AIR 1982 Orissa 270.
Maintenance pendente lite—Filing of written statement 85

the Hindu Marriage Act, 1955 to a wife not only her own need for
maintenance of herself would be considered but if she had a child to look
after, need of the child shall also be taken into account. 1
Simply because the child is also living with the mother, it cannot
be said that she has to be deprived of the maintenance. The father is
bound to maintain his daughter wherever she is. 2
Section 24 of Hindu Marriage Act, 1955 makes provision for
granting maintenance pendente lite to a party who has no independent
income sufficient for his or her support. This section does not provide
for granting maintenance for the children. Section 26 of the said Act
provided for interim orders from time to time as also for making
provision in the decree with regard to custody, maintenance and
education of minor children consistently with their wishes. Section 26,
therefore, empowered the Court to provide for the maintenance of minor
children. It provided for maintenance both pendente lite as also after the
passing of the decree. Therefore the order granting separate maintenance
to each of the three adult children had clearly traversed beyond the scope
of Section 24 and Section 26 of the said Act. 3

Filing of written statement


The proceeding under Section 24 of the Act have an important
bearing with regard to the rights of the defending spouse. Not only the
provisions of Section 24 of the Act permit grant of maintenance pendente
lite, but also it permits the Court to make an order with regard to
necessary expenses of the proceedings. In a given case without provision
for the necessary expenses of the proceedings, it would be impracticable
to insist upon the defending spouses even a file a written statement. The
trial Court, which is moved by filing the application is bound to decide
the application with regard the maintenance and the expenses. 4
The wife is not bound to file the written statement before moving
the court for grant of maintenance pendente lite and expenses of the
proceedings. The whole object of awarding expenses of proceedings is to
enable the party to fight the case. 5

1 Rajendra Kumar vs. Savitribai, I (1992) DMC 567 MP.


2 Sulaxmi Bai vs. Karre Sridhar, I (1993) DMC 473 AP.
3 Kartarchand Dulliram Jain vs. Taravati Kartarchand Jai, I (1982)
DMC 97 Bombay.
4 Meena @ Pratibha Deshpande vs. Prakash Shriniwas Deshpande,
II (1983) DMC 227 Bombay: AIR 1983 Bom 409: 1983 Mah LJ 821:
1983 Hindu LR 692.
5 Jagdish vs. Hari Singh, II (1984) DMC 366 Delhi.
86 Law of Maintenance

The Calcutta High Court has also held that it is not open to the
learned Judge under the statute, as it stands, or, under the relevant law,
to impose a condition on an applicant for alimony that her said
application will not be heard unless she files her written statement. The
statute nowhere permits such a course, which would be opposed to the
equities of the instant case. 1

Form of order
An order which does not contain either the facts or the grounds
on which it is based is no order in the eye of law. 2
When the order is not supported by any reason and does not
discuss the pros and cons of the rival versions of the parties relating to
the quantum of income of the husband, the same is liable to be set aside. 3

Forum of appeal
In respect of Madras City Civil Court it has been held that under
section 4 of the Madras City Civil Court Act, the City Civil Court shall
consist of the Principal Judge and such number of Additional or
Assistant Judges as the State Government may from time to time appoint,
and subject to the provisions of Section 15, each of the Judges may
exercise all or any of the powers conferred on the court by this Act or
any other law for the time being in force. By virtue of this provision,
even without a notification by the Government, any Judge of the City
Civil Court, whether he be the Principal Judge or the Additional Judges
or the Assistant Judge, would be competent to entertain an application
under the Hindu Marriage Act. But the right of appeal from the order
passed by a Judge of the City Civil Court would be governed by Section
15 of the Act. Had the petition been disposed of either by the Principles
Judge of the City Civil Court, or by the Additional Judge there of, an
appeal would lie straightway to the High Court. if, on the other hand, it
is disposed of in this case, by an Assistant Judge of the City Civil Court
an appeal shall lie only to the Principles Judge, especially in a
proceeding where the amount or value of the subject-matter does not
exceed Rs. 5000. 4

1 Latika Ghosh vs. Nirmal Kumar Ghosh, AIR 1968 Calcutta 68:.
2 Shakuntala vs. Amar Nath, AIR 1978 P&H 32: 79 Pun LR 405(1):
1977 Hindu LR 658.
3 Satish Bindra vs. Surjit Bindra, AIR 1977 P&H 383.
4 B. Balaji Singh vs. B. Raj Kumari, AIR 1972 Madras 278: 85 Mad
LW 16: (1972) 2 Mad LJ 53.
Maintenance pendente lite—Jurisdiction of Family Court 87

Grant in Revision
The Hindu Marriage Act, 1955 does not directly provide for an
appeal or a revision from orders passed in proceedings under it. Section
21 of the Act provides that subject to the other provisions contained in
the Act and of the rules made by the High Court all proceedings under
the Act shall be regulated, as far as may be, by the Code of Criminal
Procedure, 1908. Section 28 provides that all decrees and orders made by
the Court in any proceeding under this Act shall be enforced in like
manner as the decrees and orders of the Court made in the exercise of its
original civil jurisdiction are enforced, and may be appealed from under
any law for the time being in force. Appeals from decrees and orders
made under the Act lie under the Code of Civil Procedure. Likewise,
revisions also lie against orders made in proceedings under the Act under
the Code of Civil Procedure. It is not disputed and there is good
authority for the same that relief under Section 24 can be granted in an
appeal from a decrees or order passed under the Act. I can see no reason
why then relief under Section 24 cannot be granted in a revision against
an order passed in a proceeding under the Act. The words “in any
proceeding under this Act” have been used in a wider sense to include all
proceedings arising out of orders passed in petitioner filed under the Act.
To hold otherwise would defeat the very purpose of Section 24.
Therefore, it is competent for High Court to grant relief on an
application under Section 24 even in a revision filed under Section 115,
Civil Procedure Code, against an order passed in proceedings under the
Act. 1

Independent income of wife


The jurisdiction to pass an order under Section 24 of the Hindu
Marriage Act, 1955 arises as soon as any proceedings are instituted
under the Act. The condition for the exercise of jurisdiction under this
section is that the applicant should not have any independent income
sufficient for her or his support or necessary expenses of the
proceedings. If the said condition is satisfied, the court has jurisdiction
and power to order the opposite party to pay expenses of the proceedings
and/or monthly maintenance of such sum as may be found reasonable.
Under the provision the sufficiency of independent income is the basis
for holding whether it is sufficient for her maintenance and expenses. 2

1 Surendra Kumar Asthana vs. Kamlesh Asthana, AIR 1974 All 110.
2 Arjun Dev vs. Jai Kumar, II (1983) DMC 387 Delhi.
88 Law of Maintenance

Jurisdiction of Family Court


The jurisdiction exercised by the Family Court under Section
7(2)(a) of the Family Court Act is the one exercisable by a Judicial
Magistrate I Class under Criminal Procedure Code. Wherever a Family
Court is established for any area, the jurisdiction of Judicial Magistrate I
Class having territorial jurisdiction over that area ceases and the Family
Court is entitled to exercise the said jurisdiction. No doubt under-Section
7(2)(a) of the Family Court Act, what is exercised by the Family Court is
the jurisdiction exercisable by the Magistrate under Chapter IX of the
Code of Criminal Procedure, 1973. Nevertheless it is not a Criminal
Court. It is a Civil Court. There is an inherent jurisdiction in a Civil
Court to pass ex parte orders and ex parte interim orders in aid of the
main relief in order to protect the interest of the party who approaches
the Court and/or to protect the subject matter of the suit, in order to
ensure that the relief, which the party will be granted in the suit or a
proceeding in not rendered infructuous. Thus in aid of the final relief, an
interim ex parte order can granted. That it is so cannot at all be doubted.
In the absence of such power the very jurisdiction to pass final order in
many cases would be rendered ineffective. When the Court has
jurisdiction to pass final order, the power to pass interim order stems
from the very power to pass final order. Such a power is necessarily
concomitant of the power to order maintenance. In the absence of such a
power jurisdiction will not be meaningful and effective. A person
approaches the Court for maintenance because he or she as the case may
be is not in a position to maintain himself or herself. If such a person is
required or made to wait for a considerable time and he has to be told
only after a lapse of considerable period that he or she is entitled to
certain amount of maintenance, how such a person could carry and live
to know the decision of the Court which may take place in some cases
several years. Such a situation would either result in miscarriage of
justice of failure of justice. An interim order can also be modified,
dissolved or vacated after hearing the respondent. Even the final order
can be altered in the circumstances stated in Section 127 of the Criminal
Procedure Code. It is not possible to hold that the Court has no power to
revise the interim order. That being the position, the fact that Section
125 of the Criminal Procedure Code does not specifically provide for
revision of the interim order, cannot be of any relevance. Further when it
is the Court, whether Criminal or Civil, that exercises the jurisdiction,
every details of the procedure need not be provided. The procedure
consistent with justice and actuated by exigencies of the situation can he
adopted even if there is no specific provision is provided in the statute
governing or conferring the jurisdiction to award maintenance. In
addition to this it is not the Criminal Court that exercises the
Maintenance pendente lite—Letters patent appeal 89

jurisdiction. It is a Civil Court that exercise the jurisdiction exercisable


by the Court of the Judicial Magistrate I Class. As a matter of fact,
Chapter IX of the Criminal Procedure Code does not relate to any
criminal matter and it is certainly not punitive. It deals with civil
liabilities only. In order to ensure expeditious decision so that a person
in need of maintenance is able to get it within a short period, the subject
of maintenance of wives, children and parents in included in the
Criminal Procedure Code. The Judicial Magistrate I Class and the Family
Court exercising jurisdiction under Section 125 of the Criminal
Procedure Code in the light of the provisions contained in Section
7(2)(a) of the Family Court Act have jurisdiction to pass an order
directing payment of maintenance pending final disposal of the petition
filed under Section 125 of Criminal Procedure Code. 1

Jurisdictional issue
The wife is entitled to have her application under Section 24 for
award of expenses to be considered before the issue of jurisdiction is
decided. She is entitled to have her expenses for the hearing on the
question of jurisdiction. 2

Justification for living separately


Whether the conduct of the husband in entering into an agreement
with the purchasers of the house directing them to get his wife evicted
from the house would amount to “a cause justifying her living separate.”
The husband ought not to have exposed his wife to an action by third
parties. His thoughtless action has inflicted a deep, wound in her. That is
a justifying cause for the wife to live separately from him. She had also
expressed before the court an apprehension that she would be physically
harmed if she lives with her husband. Hence, on the facts of this case, it
was held that the wife is entitled to live separately and claim
maintenance from her husband. 3

Letters patent appeal


The view taken by the Bombay High Court is that the
maintenance pendente lite under Section 24 of the Hindu Marriage Act,
1955, raises controversy independently of the suit and decision thereon
concludes controversy finally between parties and as such letters patent
appeal is maintainable. 4

1 G.L. Jagadish vs. Shamantha Kumari, I (1990) DMC 552 Kar.


2 Surendra Kumar Asthana vs. Kamlesh Asthana, AIR 1974 All 110.
3 Meera Nireshwalia vs. Nireshwalia, AIR 1994 Madras 168 (DB).
4 Dinesh vs. Usha, AIR 1979 Bom. 173
90 Law of Maintenance

Litigation Expenses
Normally, expenses of the proceeding would include
remuneration to the Lawyer, court-fees, stamp and paper, clerical
expenses, cost of stationeries, expenses to be incurred for journey from
the place of residence for instructing the lawyer and attending the court
for summoning the witnesses to depose in court and their expenses and
for obtaining and proceeding and documents in support. Besides these
normal expenses, there may be special nature of expenses which can also
be considered on the availability of materials on record. But when no
material is available on record, there is no scope for the trial court to
arbitrarily fix the expenses of the proceeding. 1

Meaning of “Maintenance”
Heading of Section 24 of the Hindu Marriage Act, 1955 is
“Maintenance pendente lite and expenses of proceedings”. The section,
however, does not use the word “maintenance”, but it appears that the
words “support” and “maintenance” are synonymous. “Support” means
“to provide money for a person to live on”, like “he supports a family” or
“he supports his old mother”. Maintenance is “an act of meaning”, i.e. to
support with money. For example, “he is too poor to maintain his
family”. 2

Meaning of support
Section 24 of Hindu Marriage Act, 1955 uses both terms,
“Maintenance” in the margin and “Support” in the body of the section.
The word “support” is doubtless one of the most elastic in the language.
“Maintenance” means the act of maintaining, and denotes the regular
supply of food, clothing and lodging, the provisions of the necessaries
and the conveniences of life. These will in each case depend in part on
the standing of the parties, their wealth and the environment to which
they in their married state have been accustomed, as every case will be
different and no case may be decided except upon its particular facts. 3

Modification of order
Section 24 of the Hindu Marriage Act, 1955 vests a wide
discretion in a Court in the matter of fixation of pendente lite

1 Samru Singh vs. Dhanamani Singh, II (1986) DMC 152 Orissa;


Vishnu Shankerdan Adnani vs. Nanisha Vishnu Adnani, II (1984)
DMC 11 Bombay; V. Chandra vs. S. Venugopal, II (1984) DMC 72
Kerala.
2 Pardeep Kumar Kapoor vs. shaailja Kapoor, AIR 1989 Delhi 10.
3 Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: 1984
Marriage LJ 316: AIR 1984 Delhi 320.
Maintenance pendente lite—Multiple remedies 91

maintenance and costs of the proceedings. The discretion, however, has


to be exercised judicially. If there is no enabling provision in the Act for
changing such an order by the Court, there is at the same time no
disabling provisions either and, therefore, the Court can in appropriate
case exercise its inherent powers to vary an order of maintenance
provided there is a change in circumstances justifying variation of the
order. If that were not so, it may lead to manifest injustice in some cases,
for example, at the time of granting of maintenance the other spouse may
be having a substantial income and after sometime if that income were to
be lost by change of fortune or on account of some accidental causes
then the continuance of the same maintenance may result in hardship to
the other spouse who is to pay the maintenance. Therefore in an
appropriate case the Court should be able to exercise its inherent powers
under Section 151 Civil Procedure Code. 1
An application under Section 24 of the Hindu Marriage Act for
maintenance pendente lite and litigation expenses was ordered to be
listed for hearing alongwith the main case. When there is no averment,
least the proof, in the application made by her that the income of the
husband-respondent increased after she was allowed maintenance by the
Trial Court, she cannot get beyond what was granted to her and the
children by the Trial Court. 2

Multiple remedies
An order under Section 125 of the Code for maintenance and an
order under Section 24 of the Hindu Marriage Act, are distinct orders in
separate proceedings. It is not open for Court under Section 125 to grant
set off any amount paid by the husband to the wife or deposited in any
Court against the substantive order passed under Section 125 of the
Code. Order under Section 24 of the Hindu Marriage Act is for interim
alimony which would terminate on termination of the proceedings. Order
under Section 125 of the Code is substantive order which can be
terminated or altered only in the light of the provisions under Section
125(3) or under Section 127 of the Code. Mere passing of an order under
Section 24 of the Hindu Marriage Act for interim alimony would not
operate as set off against the order of maintenance under Section 125 of
the Code. There can be no difficulty on the part of the wife for pursuing
remedies under both the provision simultaneously.

1 Devki vs. Purshotam Kewalia, AIR 1973 Rajasthan 2: 1972 WLN


750.
2 Parveen Bala @ Veena vs. Jagdish Rai, I (1994) DMC 319 P&H.
92 Law of Maintenance

The nature of the respective case in both these proceedings are


different. Under Section 24 of the Hindu Marriage Act, the concerned
spouse has only to show that or she has no independent source of income
sufficient for his or her maintenance. Once this is shown, interim
alimony can be awarded, keeping in mind the economic status and
conditions of the respective parties. While in so far as the provision
under Section 125 of the Code are concerned only one spouse, namely,
the wife would be entitled to maintenance. She can be awarded
maintenance if she can show that she no independent sources of income
of her own. Of course, she has to show that she is refused and neglected
maintenance by her husband and her husband has sufficient means to
maintain her. In the facts and circumstances both the proceedings could
be pursued by the wife and there is no ban or bar in any one of the
provisions unlike provision under Section 10 of the Civil Procedure
Code, whereby, subsequent proceedings can be stayed if conditions
under Section 10 are established. 1

Necessity of affidavit
Omission to comply with the requirements of rules provided for
presentation of plaints like absence of verification, does not affect
jurisdiction of the Court. Therefore, absence of affidavit of the applicant
in her application for interim maintenance does not affect the initial
jurisdiction of the Court. With these observations the wife was grant
further opportunity to regularize the matter by giving an affidavit in
support of her application. 2

Necessity of reconciliation
An order passed under Section 24 of the Hindu Marriage Act,
1955, could not be termed as illegal only because the court did not make
any endeavour to bring about a reconciliation between the parties. The
provision of Section 23(2) are not absolute in nature. While casting a
duty upon the court to make every endeavour to bring about
reconciliation between the parties a discretion is left to the Court, by the
use of the qualifying phrase, ‘where it is possible to do consistently with
the nature and circumstances of the case’. Similar provision is made in
Order XXXII-A of Code of Civil Procedure for the suits relating to
matters concerning family. An attempt to bring about a reconciliation is
always laudable but failure to do so, before granting maintenance
pendente lite, will not vitiate the order, passed under Section 24 of the

1 Hansaben Rameshkumar Patani vs. Rameshkumar Ratilal Patani, I


(1993) DMC 544 Guj.
2 Bhalu Naik vs. Hemo Naikant, AIR 1969 Orissa 236: 35 Cut LT
532.
Maintenance pendente lite—Object of Hindu Adoptions & Maintenance
Act 93

Act. To say the least, Section 24 is independent of other provisions of


the Act, and is not controlled by Section 23. The order passed under
Section 24 is interim in nature and does not amount to final
determination of the right or of the case. This incidental and interim
direction to pay maintenance pendente lite is not a final and
comprehensive adjudication of the rights of the parties within the
contemplation of Section 23 of the Act. 1

Necessity to grant maintenance


The dismissal of the wife’s application under Section 24 is not
justified and so long as that application was not decided, the suit could
not proceed. The matrimonial jurisdiction is in certain matters different
from ordinary civil jurisdiction. 2

Non working husband


In one case where husband claimed maintenance from wife and
it was pleaded that the husband was not working it was held that the
husband was mentally and physically well bodied person. He also had a
skill of a particular business. There was no handicap for him to earn
bare minimum to support his livelihood. Merely because his business is
closed, it cannot be held that he has no source to earn. Since the wife is
in the employment, the husband cannot make himself wholly dependent
on her income through a device of Section 24 of the Act. In absence of
any handicap or impediment to earn, to grant maintenance to such able
bodied person equipped with skill would promote idleness. It is
opposed to spirit of Section 24 of the Act. The trial Court was wholly
without justification in awarding maintenance in favour of the non-
working husband. 3

Non-compliance
The effect of non-compliance of the order passed on the
application under Section 24 of the Hindu Marriage Act for the grant of
maintenance pendente lite is that the defence is to be struck off. 4

1 Dilipbhai Chhanganlal Patel vs. State of Maharashtra, AIR 1983


Bombay 128: 1983 ACJ 192.
2 Ram Rati vs. Mata Prasad, I (1983) DMC 376 All.
3 Kanchan vs. Kamalendra Kamalakar, I (1993) DMC 288 Bom.
4 Sadhana Deepak Naik vs. Deepak Laxman Naik, I (1993) DMC 112
Bom.
94 Law of Maintenance

Object of Hindu Adoptions & Maintenance Act


These provisions have purported to give effect to trends of what
is claimed to be progressive thought in this country of placing woman or
a par with men in the matter of their marital rights. But divorce is not
always an efficacious remedy, for the right to obtain it may be lost by
laches, delay or condonation. The Legislature, evidently thought that it
should be open to the wife to claim to live separately from her husband,
in case he has got another wife living. Where, therefore, the wife does
not want to seek divorce or, where she could not, by reason of some
conduct on her part, obtain such divorce or where she only desires to live
separately from her husband, she could by applying under Section 18(2)
of Act 78 of 1958, claim from him maintenance and provision for
separate residence. If that be the true principle behind Section 18(2) as
indeed we conceive it to be, its operation cannot be restricted to marriage
which took place subsequent to the year 1946. 1

Order under Criminal Procedure Code, 1973


In such case keeping in view the status of the parties, the income
of the husband and the standard of life to which parties are used to it was
held that the fixation of maintenance under the Code of Code Criminal
Procedure, can be taken note of, for assessing the maintenance pendente
lite under Section 24 but the same cannot be the sole basis as under the
Criminal Procedure Code, maximum maintenance which can be allowed
is Rs. 500/-. So the criminal Courts grant maintenance keeping in view
the maximum limit of maintenance which can be granted in proceedings
under Section 125 of the Code of Criminal Procedure can be treated as
bar for granting higher amount. 2

Pendency of proceedings
A proceeding under Order 9 Rule 13 of the Civil Procedure Code
is a proceeding under the provisions of the Hindu Marriage Act if the
proceeding is initiated for setting aside a decree obtained ex parte in a
proceeding under the said Act. Accordingly, an application under Section
24 of the Hindu Marriage Act is maintainable in such a proceeding. If
such an application is filed it is open to the Court to decide the same on
merit but it cannot be held that such application cannot be disposed of

1 A. Annamai Mudaliar vs. Perumayee Ammal, AIR 1965 Madras 139


(DB): ILR (1964) 1 Mad 845: 77 Mad LW 548: (1965) 1 Mad LJ 122.
2 Savita Aggarwal vs. R.C. Aggarwal, I (1991) DMC 18 P&H.
Maintenance pendente lite—Pendency of proceedings 95

till the proceedings under Order 9 Rule 13 terminates and the decree is
set aside. 1
This question was also considered with slightly different line of
reasoning by Punjab and Haryana High Court 2 with following
observations:
‘The challenge to the impugned order was founded upon the
wholly untenable premises that an application under O. 9, R. 13
of the Code of Civil Procedure for setting aside an ex parte
decree for divorce, could not be taken to be proceedings under the
Act so as to extend to it the applicability of the provisions of
Section 24 of the Act. The argument being that while seeking and
obtaining a decree for divorce, be it ex parte or after contest,
would be “proceedings” under the Act, an application for setting
aside such a decree would be one under the Code of Civil
Procedure and thus not one under the Act, and therefore, the
provisions of Section 24 of the Act, would not be available in
respect thereof. There is a patent fallacy in this contention
inasmuch as, the provisions of the Code of Civil Procedure, in the
Hindu Marriage Act, 1955, are there merely to regulate the
proceedings therein and not as substantive law separate and
distinct from it, as would be apparent from a plain reading of
Section 21 of the Act.
Further, the object and rationale of Section 24 of the Hindu
Marriage Act, 1955 is to provide against lack of financial means
operating to the detriment of a party to proceedings under the
Act. In other words, to obviate against the financial handicap of a
party to the litigation. Seen from his angle too, the provisions of
Section 24 of the Act cannot be construed to take an application
for setting aside of an ex parte decree under the Act as outside
the purview thereof. To hold otherwise, could mean grave
prejudice to an innocent party against whom an ex parte decree
has been wrongly passed inasmuch as lacking the financial means
to challenge such an ex parte decree, it may be constrained to
suffer it. Nothing could have been further from the intention of
the legislature in this behalf.’
Section 21 of the Hindu Marriage Act, engrafts the relevant
provisions of Code of Civil Procedure into the Act for regulating the
procedure, and independently of Section 21 of the Civil Procedure Code
would have no application. Therefore, though the procedure for setting
aside the ex parte decree would be regulated by the Civil Procedure

1 Dipti Ghosh vs. Swapan Kumar Ghosh, I (1991) DMC 135


Calcutta.
2 Madan lal vs. Meena, AIR 1988 P&H 31: (1986) 90 Pun LR 601:
(1986) 2 Hindu LR 344: (1987) 3 Cur LJ (Civ & Cri) 505: ILR (1987)
2 P&H 102: 1988 Marriage LJ 341.
96 Law of Maintenance

Code it would only be a proceeding under the Act by virtue of Section 21


of the Act. 1
The court can grant maintenance pendente lite and litigation
expenses in any proceedings under the Act. The proceedings in an
application under Section 25 are proceedings under the Act. The object
of enacting Section 24 is that an indigent spouse not suffer during the
pendency of the proceedings because of his/her poverty. In case it is held
that a spouse cannot make an application under Section 24 in
proceedings under Section 25 of the Act, he/she may not be able to
prosecute the proceedings under the latter section. The consequence may
be that he/she may have to starve throughout the life. That could not be
the intention of the Legislature. Therefore, a spouse can file application
under Section 24 in proceedings under Section 25. 2
In view of the fact that the provision for permanent alimony is
incidental to the granting of a decree for divorce etc. and the proceedings
under Section 25 are in the nature of continuation of the main
proceedings, it would be just to hold that proceedings under Section 25
are ‘proceedings under the Act’ in the context of the application of
Section 24 thereto. 3
Any proceeding under this Act’ appearing in Section 24 will
cover the proceedings under Section 25 thereof. Section 25
contemplates that an order for permanent alimony can be made at the
time of the passing of any decree under the Act or any time thereafter.
Now, if a spouse has to make an application after any decree under the
Act has been passed and has no sufficient means of his own. Such
spouse has to be provided for prosecuting the application for
permanent alimony when the other spouse opposes any grant thereof.
Any other construction will be narrow and will lead to frustration of
the provision. 4

Postponement of Application
The jurisdiction to pass an order under Section 24 of the Hindu
Marriage Act, 1955 arises as soon as any proceedings are instituted

1 Hemaraj Shamrao Umredkar vs. Leela, AIR 1989 Bombay 146:


(1988) 2 DMC 325: (1988) 2 Cur CC 488: (1988) 2 Hindu LR 583:
(1988) Mat LR 315.
2 Krishan Lal vs. Kamlesh Rani, AIR 1989 NOC 154 (P&H):
93 Pun LR 361.
3 Chuni Lal Gulati vs. Krishana Rani, AIR 1983 P&H 241: 1983
Hindu LR 24.
4 Yogeshwar Prasad vs. Jyoti Rani, AIR 1981 Delhi 99.
Maintenance pendente lite—Power of Appellate Court 97

under the Act in the court and lasts so long as the proceedings are
pending. The conditions circumscribing the exercise of jurisdiction are
that the applicant should not have any independent income sufficient for
her or his support or necessary expenses of the proceedings. If the said
condition are satisfied, the Court has jurisdiction and power to order the
opposite party to pay expenses of the proceedings and monthly
maintenance of such sum as may be found reasonable by the court. This
provision is wider and different from the provisions contained in Section
25 of the Act, which deals with permanent alimony and maintenance.
The object of Section 24 of the Act is to provide a monthly income and
expenses of the litigation to an indigent spouse to enable it to prosecute
or defend the proceedings under the Act and the law sees that nobody is
disabled from prosecuting or defending the matrimonial case by
starvation or lacks of funds. 1
Therefore when the question of facts between the parties are
seriously disputed and it will take some time to be decided and in fact,
this is a major issue disputing the marriage had been raised by the
respondent which could, be decided along with the whole petition and
the trial cannot take place piecemeal, it was held that even to fight out
the aforesaid issue, the appellant is entitled to a decision of her
application under Section 24 of the Act and the Court below had acted
with material irregularity in postponing the orders on this application till
the decision of the issue of the legality of the marriage which will
virtually terminate the proceedings. 2

Power of Appellate Court


A reading of Section 25 and 26 of the Hindu Marriage Act makes
it abundantly clear that pending appeal, the Court has got power to make
such interim orders and also make such provisions in the decree, with
regard to the maintenance of the wife and children as well as for the
education of the children and their expenses, without insisting on
separate application. After the appeal is disposed of, at times on
application by the party, similar directions or provisions in the decree
can also me made. Thus, the maintenance granted earlier pending the
appeal can be directed to be paid even after the disposal of the appeal,
depending on the circumstances of the case, and the said direction can
even form a part of the decree. 3

1 Arti Singh vs. Lt. Co. Kanwar Pal, AIR 1977 Delhi 76: 1976 Hindu
LR 646: (1976) 12 Delhi LT 169: (1976) 78 Pun LR (D) 268.
2 Arti Singh vs. Lt. Co. Kanwar Pal, ibid.
3 Chigurupati Sambasiva Rao vs. Chigurupati Vijayalakshmi,
1994(1) CCC 458 (AP).
98 Law of Maintenance

On the question of maintainability of application for maintenance


during the appeal it was held that whatever way the problem is
approached, the answer to the question must be in the affirmative.
Firstly, in the words of the relevant sections of the Act, there is not only
no bar of the maintainability of such an application but there are
sufficient indications in support of it. Secondly, in the interest of broad
justice between the parties, the Court has a discretion to continue the
payment of the maintenance, during the pendency of the cause in appeal.
When the appeal does not appear to be a vexatious one. Thirdly, the
cause becomes pending as the husband appellant does not only not obey
the decree of the Court below but seeks to stay the operation of the
judgment and decree appealed against, as well as of all further
proceedings for permanent alimony in the Court below. Fourthly, the
relief in the nature of alimony is really a relief which is incidental to the
passing of the decree. Fifthly, for the present purpose a decree for nullity
stands on the same footing as a decree for dissolution of marriage.
Sixthly and lastly, the respondent does not become a maiden or another
man’s wife so long the appeal remains pending. 1
The words “During the proceedings” in Section 24 of Hindu
Marriage Act, 1955 may in the first flush show that the party is entitled
to claim maintenance only during the pendency of the proceedings, but
on a close scrutiny these words clearly apply not only to the proceedings
before the trial court but also during the pendency of proceedings in
appeal as well as during the period between the termination of
proceedings in the trial court and filing of appeal. The appeal is only
continuation of the suit of proceedings in the trial court, without there
being a suit or proceedings in the trial court there cannot be an appeal,
therefore the proceedings in the appeal being continuation of the
proceedings, the party is entitled to claim maintenance during the period
between the date of the decree and the date of filling of the appeal.
Merely because the party is unable to file an appeal within a particular
period and that too after deducting the time for obtaining the copies, it
does not mean that the party is not entitled to claim maintenance during
that period. If this interpretation is accepted, it would be defeating the
purpose of the provisions enabling a party to claim interim maintenance
pending proceedings under this Act. ‘Proceedings’ means proceedings
under the Act and it is referable to the Act only. 2
It is the legal obligation of the husband to maintain his wife.
When the law provides for pendente lite maintenance it does not mean

1 Arya Kumar Bal vs. Ila Bal, AIR 1968 Calcutta 276.
2 M. Vijayalakshmi vs. M.V.S.R. Prasad, 1999(1) CCC 351 (AP).
Maintenance pendente lite—Power of Appellate Court 99

that the maintenance amount is to be paid only during the continuation of


the proceeding. The general duty of maintaining wife, particularly when
she has no means of her livelihood is merely re-emphasized by such a
provision by pendente lite maintenance. Therefore, even for the period of
pendency of appeal the husband is bound to pay the maintenance. Even
otherwise the appeal is a continuation of the original proceeding and
hence the husband is liable to pay the maintenance for the period. 1
The terms ‘proceeding’ and ‘court’ are not defined in the section.
Those terms, would, having regard to the object of the enactment and the
setting in which they are employed, take in respectively the appeal and
the appellate court. That a petition for interim maintenance could be
filed in the appellate court was the view taken by the Rajasthan High
Court in Mukan Kanwar vs. Ajit Chand. 2 Another decision of the
Himachal Pradesh High Court adopting that view is reported as Smt.
Sarve Devi vs. Lakashmi 3 wherein the court had granted interim
maintenance during the pendency of appeal before Court. Thus section
24 would permit the appellate Court to award maintenance to a wife or
minor children during the pendente lite of the appeal from an order in
proceedings initiated under the Act. 4
Section 30, as its language suggests, empowers the Court to grant
maintenance and litigation expenses during the pendency of the
proceeding in that Court. It does not restrict its application to the
proceeding before the trial Court alone, but applies with equal force to
the proceeding before the appellate Court as well. It, however, leaves no
room for doubt that the Court empowered to grant maintenance is
empowered to do so for that period only during which proceedings in the
main case remain pending before it, and not for the period subsequent
thereto. The order of the trial Court passed by it under Section 30 cannot,
therefore, remain effective, after the main proceeding before it comes to
an end. If the aggrieved party to the main petition challenges the trial
Court’s decree or order in appeal, a fresh application under Section 30 by
the party seeking relief under that Section, has to be made by it to the
appellate Court. The order passed by the trial Court under this Section
cannot survive the decision of the main petition by it on the principle
that an appeal is merely a continuation of the original lis, meant for its

1 Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP:
AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452L
1982 Hindu LR 387: Mukul Kumar Chaturvedi vs. Neelam
Chaturvedi, II (1984) DMC 53 Delhi.
2 AIR 1961 Rajasthan 51.
3 AIR 1984 NOC 138 (HP).
4 Thankamma vs. Kuttan, II (1984) DMC 440, Kerala.
100 Law of Maintenance

rehearing. The object behind the aforesaid principle is two fold: firstly,
to see whether the judgment given by the trial court was right when it
was given: and secondly, to mould the relief by taking into account the
events that have happened after the judgment came to be passed by the
trial Court. A proceeding under Section 30 is an independent proceeding,
which has nothing to do with the merits of the main case. Correctness of
the judgment of the trial Court in the main case with reference to the
point of time when it was passed cannot be, therefore, determined in
appeal in the light of the findings recorded by it in the application under
Section 30. Nor has any subsequent change in the financial position of
the parties anything to do with the moulding of the relief in the main
petition come to an end, right of the party to enforce the order passed in
its favour under S. 30 also ceases, in the sense, that it cannot claim
maintenance for a period posterior to the decision of the main petition.
This, however, does not mean that even if proceedings in the main
petition have come to an end, the party in whose favour an order under
Section 30 have been passed, cannot execute the same for recovery of the
amount due till the date of the final decision of the main petition. Nor
does the decision of the main petition take away the power of the Court
to dispose of on merits the application made to it under Section 30
during the pendency of the main proceeding. 1 There is amply authority
for the aforesaid view. 2

Power of Court
The ground of maintenance pendente lite and expenses of the
proceeding does not depend on merits of the case nor the jurisdiction of the
Court is controlled by the defences raised by the respondent which is the
substantive matter before the Court. It is, however, circumscribed only of
the condition laid down in Section 24 of Hindu Marriage Act, 1955 itself as
regards the sufficiency or otherwise, of the income of the party applying for
the benefit of Section 24. In a case where the factum of marriage is
acknowledgement or proved the allowance necessarily follows subject to the
discretion of the Court in the matter having regard to the means of the
parties. The subsequent dismissal of the substantive or main petition does
not absolve a party from the liability already incurred under an order made
under Section 24. Normally, the Court would not be in a position to judge
the merits of the rival contentions of the parties when deciding an
application for maintenance pendente lite and would not allow its discretion

1 Amrti Lal Nehru vs. Usha Nehru, II (1982) DMC 354 J&K.
2 Mukan Kanwar vs. Ajit Chand, AIR 1961 Raj 51; Tarlochan Singh
vs. Smt. Mohinder Kaur; AIR 1963 Pun. 249 Amrik Singh vs. Smt.
Narinder Kaur; AIR 1979 Punj & Har. 211. and B.M. Muniratnam
Naidu vs. Shantamma, AIR 1971 Mys. 25.
Maintenance pendente lite—Procedure for disposal of application 101

to be fettered by the nature of the allegations made by the parties in their


respective pleading and, therefore, the Court is not supposed to examine the
merits and demerits of the main petition while deciding the application
under Section 24. The question, therefore, that the petition under Section 9
of the Act is maintainable or not or the question, whether the Court has
jurisdiction to entertain and try the same, would not be a determining factor
in passing an order under Section 24. If the wife is made to defend herself
in any proceedings under the Act, for example, restitution of conjugal
rights, judicial separation, divorce or nullity of void and voidable marriage,
the benefit of provisions of Section 24 may be extended if the wife had no
independent income sufficient for her support and the necessary expenses of
the proceedings, irrespective of the fact that the Court ultimately found that
it had no jurisdiction to entertain and try the substantive petition which may
ultimately result a dismissal on that Court.1
In one case the proceedings started on an application under
Section 25 of the Act and not by a suit where under maintenance could
be claimed in accordance with the provisions of the Hindu Adoptions &
Maintenance Act, 1956. It was held that nevertheless the discretion under
Section 25 of the Act vested in a Court which has awarded a decree of
conjugal rights or any other decree under the Act is wider. Such a
discretion is not controlled by the provisions of the Hindu Adoptions &
Maintenance Act, 1956. Nonetheless the principles governing the award
of maintenance enshrined in Section 23 of the Hindu Adoptions &
Maintenance Act, 1956 could usefully be kept in mind by the Court in
dealing with an application under Section 25 of the Act. 2

Procedure for disposal of application


It is noteworthy that the main petition under Section 10 of the
Indian Divorce Act is not required to be supported by an affidavit.
Therefore it was held that the idea in enacting the Rule 801 (b) requiring
the affidavit seems to be that the matter arising under Section 24 of the
Act has, by and large to be decided on the basis of affidavits. This is,
however, not to say that no evidence ever should be recorded. In an
appropriate case where the courts finds that the matter cannot be
disposed of properly on the basis of affidavits alone then it may proceed
to record evidence and then decide the matter. The section vests and the
Court with the widest discretion regarding the award of pendente lite
maintenance and costs of the proceedings, but the discretion has to be
exercised judicially. One may draw an analogy from the way the Courts

1 Kamlesh vs. Virendra Kumar Uiks, I (1992) DMC 67 MP.


2 Seeta Ram vs. Phooli, AIR 1972 Raj 313: 1972 WLN 390: 1972 Raj
LW 398: 1972 Ren CR 865.
102 Law of Maintenance

decide the applications for grant of temporary injunctions and the like.
Such matters too are normally decided on affidavits. The Section lays
down when an order for maintenance pendente lite and the expenses can
be passed. Firstly, the spouse concerned should have no independent
income sufficient for her or his support and the necessary expenses of
the proceedings and then secondly for passing an appropriate order the
Court should have regard; (1) to the petitioner’s own income, and (2) to
the income of the respondent, and then it should award such sum as may
seem to the Court reasonable. A passing of an order under this section
will necessarily turn on the circumstances of each case and no fixed rules
can be expected on the subject. In cases of ordinary income a rough
working rule has been adopted by some courts on the analogy of other
enactments, such as the Indian Divorce Act, but that is not a hidebound
formula though the working rule may be of some use in fixing the
amount of interim maintenance. In cases of substantial income the court
need not have regard to any notional rule in exercising its discretion in
the matter regarding what proportion of the income of one spouse has to
be awarded by way of maintenance to be other. 1
In another case arising out of Hindu Marriage Act, 1955 it was
held that if the averments of the petitioner contained in her affidavit are
not considered enough, she should be afforded an opportunity to give
supplementary affidavit or affidavits on any point required by the Court or
if the Court so required even to lead evidence in the course of a summary
inquiry, at the end of which proper order should have been passed. 2

Proceeding for restitution of conjugal rights


The terms of Section 24 do not lend support of the claim of the
revision petitioner that no order for interim maintenance could be passed
when the husband has filed an application for restitution of conjugal
right. Further it is significant to note that the amount of interim
maintenance that one spouse may be ordered to pay the other must be
such as appears reasonable to the Court in the exercise of its discretion
and when this discretion has been exercised not arbitrarily but properly,
the husband cannot have any grievance. 3

Procedure of enquiry
The Matrimonial Court is to follow the provisions of Section 21
of Hindu Marriage Act, 1955 which requires the Matrimonial Court to
adhere to the provisions of Code of Civil Procedure as far as may be

1 Vinay Kumar vs. Purnima Devi, AIR 1973 Raj 32: 1972 WLN 698.
2 Satish Bindra vs. Surjit Bindra, AIR 1977 P&H 383.
3 Gansan vs. Rasammal, AIR 1994 Madras 366.
Maintenance pendente lite—Proof of marriage 103

possible and in the interest of justice. The payment of maintenance


pendente lite and litigation expenses could, therefore, have been decided
by the Matrimonial Court on the affidavits of the parties. There is, thus,
no error of procedure. 1
The enquiry contemplated under Section 24 of the Hindu Marriage
Act, 1955 is of a summary nature and the dispute between the parties in
this regard can be resolved on the basis of affidavits filed by the parties to
the proceedings. In this case the petitioner has filed no affidavit in support
of his reply and there was nothing on record to show that he was prevented
to do so or to lead evidence in support of his case. Hence, it was held that
his grievance in this regard had no force. However, since the case had to
be remanded for fresh decision on the wife’s application under Section 24
of the Act, liberty was granted to the husband to submit counter affidavit
or to lead evidence in support of his case. 2

Proof of marriage
The object of this section is that neither party may suffer by her
or his inability to conduct the proceedings for want of money for
expenses. The real object of the maintenance is to support the party
without means during pendency of proceedings. Exercise of power under
this section does not appear to be dependent on the defence raised by the
opposite party. Even in cases where the factum of marriage is denied by
the opposite party the Court has jurisdiction to determine prima facie the
factum of marriage on the basis of documents and affidavits that may be
placed before the Court. The passing of an order under this section
further cannot be postponed till the final determination of the
relationship of husband and wife. If it be so the purpose of this section
would be frustrated. In a petition for restitution of conjugal rights if the
defence taken is that there was no marriage between the parties, and the
petitioner-wife has no means to support her or to conduct the legal
proceedings she would be without any remedy. In proceedings for
restitution of conjugal rights the factum and validity of marriage is
generally denied so that the party approaching the Court for relief may
be harassed and on account of harassment, such party may not pursue the
remedy. I am therefore, of the opinion that even if the factum or validity
of the marriage is denied, the Court exercising jurisdiction under the Act
has power to award maintenance and litigation expenses to the applicant
i.e. the wife or the husband after prima facie determining whether there
was marriage or not. The Court however has to be very careful and
cautious in considering the affidavits, the documents and other material

1 Siremal Burad vs.Shakuntala Devi Burad, II (1994) DMC 9 MP.


2 Nishan Singh vs. Bhupendra Kaur, II (1985) DMC 124 MP.
104 Law of Maintenance

brought to its notice while determining the factum of marriage even


prima facie, otherwise the provision is liable to be misused. 1
In one case the non-applicant had sexual relation with claimant
and had also begotten a daughter from her. In such a situation, when
there is no answer given to the plea that the applicant was minor at the
time she was given away in marriage by her father to the non-applicant
on certain conditions, the applicant can not be deprived of maintenance
only on the ground that she is not legally wedded wife of the non-
applicant. In these circumstances of the case the applicant who alleged
that at the time of giving away in marriage to the non-applicant she was
a minor cannot be blamed for the situation and the non-applicant cannot
be allowed to take advantage of his own wrong in taking the applicant as
second wife or a concubine. The non-applicant’s acceptance of the fact
that he had relations with the applicant and a daughter was born out of
these relations should be enough at this stage of the case to ask him to
pay maintenance to the applicant. 2
It was also held that the question of enforcement of an agreement
contrary to law or opposed to public would also not arise in the case
because the applicant has alleged that when she was given away in
marriage by her father to the non-applicant she was a minor. She can not
therefore, be punished by depriving her of maintenance on the ground that
she was trying to enforce an agreement which is opposed to public policy. 3

Quantum of interim maintenance


While fixing quantum of maintenance the Court has to take into
account not only the needs of person who claim maintenance but also the
capacity, status, commitments and the obligations of person who has to
pay it. If the husband has to maintain other persons like his parents, his
own children etc. reasonable allowance for their maintenance shall have
to be made. It would be unjust to grant maintenance in an arbitrary
manner. The party who has to pay maintenance is also not to be virtually
rendered a destitute. A fair balancing all the relevant factors is to be
done by the Courts without the making an emotional approach to the
problem. The Court shall have to keep in the mind that what is to be
provided is the maintenance and it cannot have saving element in it nor
is it the purpose of the legislature to put the claimant in a luxurious

1 Jagmohan Verma (Lt.Cdr.) vs. Sunita Verma, 1983 (1) DMC 176:
1983 (4) DRJ 144: 1983 RLR 140.
2 Durga Bai vs. Mangi Lal, I (1993) DMC 174 MP.
3 Durga Bai vs. Mangi Lal, ibid.
Maintenance pendente lite—Quantum of interim maintenance 105

position. The definition of “maintenance” given by the Act makes this


position amply clear. 1
Similarly if the claimant is residing in a village where the cost of
living is comparatively cheaper than in the cities and towns, the Court
shall have to take that facts also into account. In such case it also had to
be accepted that the wife is required to stay with her parent and that she
had to undergo medical treatment as she was suffering from psychic
disease which may recur. She may have to resort to sedatives. From the
history of her ailment as narrated by the husband in his reply, it became
clear that the wife required medical treatment spread over a long period
and therefore, reasonable provision shall have to be made for her medical
treatment also. At the same time, it was also to be kept in mind that the
husband is required to maintain himself, his aged mother and two grown
up children. It was therefore held that, the income of the husband was
required to be divided into five units, and reasonable provision is
required to be made for all those who are dependent upon the husband.
Taking all the aforesaid factors into consideration the amount of
Rs. 1500/-p.m. for the wife who was residing in a village was held to be
slightly on the higher side inasmuch as the husband who resides in the
City shall have also to make provision for his aged mother and two
grown up children besides himself. Since the purpose of maintenance is
not to make the wife, in any way, richer or to put her in luxurious
condition and since the actual amount being spent by her towards
medical treatment could not be determined at this stage it was held that
the amount of Rs. 1,250/-p.m. towards maintenance would be just and
proper to the wife. 2
Courts have to steer clear of two extremes, namely, they should
not give maintenance to the wife which would keep her in luxury and
would make judicial separation profitable and also impede any future
chances of reconciliation. They should also steer clear of the other
extreme, namely penuriousness. 3
Where it is a stage of grant of interim maintenance, a reasonable
sum to be awarded towards interim maintenance pending the final
decision of the suit for maintenance. In this case it was held that the
learned trial Court had not considered that Rs. 300/- p.m. was hardly

1 Kailashchandra Guptra vs. Chamanlal Gupta, 1985 (1) Hindu Law


Reporter 411
2 Dharamsi Dahyabhai Patel vs. Devyani Dharamsi Patel, I (1993)
DMC 605 Guj.
3 Kashinath Sahu vs. Devi, AIR 1971 Orissa 295: (1971) 1 Cut WR
543.
106 Law of Maintenance

sufficient in these days of high price of essential commodities to meet


out even one time meal expenses. Food, clothes and house are the three
basic needs of a man/woman. While arriving at a reasonable figure of
interim maintenance, the Court should have taken care of all these
requirements. In addition to this, medical expenses may also be
necessary. The amount of Rs. 300/- p.m. is not even sufficient to make it
easy for the lady, the petitioner herein to have three times tea. Normal
living cost in these days is very high. Taking into consideration the
totality of the facts of this case, it is in the interest of justice and to
provide a reasonable sum of interim maintenance to the petitioner the
respondent is directed to pay Rs. 2,000/- p.m. as interim maintenance to
the petitioner. 1
Sub-sec. (2) read with Sub-sec. (1) of Section 23 leaves the
matter of fixation of amount of maintenance to the discretion of the
Court while stressing that the position and status of the parties,
reasonable wants of the claimant, the income and the property of the
claimant and the number of person when the husband is bound to
maintain are among the factor and circumstances which must be takes
into consideration by the Court. In fixing the quantum of maintenance it
would be necessary and of primary importance to consider the overall
financial position of the husband. The words “position and status of the
parties” in Sub-sec (2) are wide enough to include the financial position
of both the parties as a matter of vital consideration in the matter. 2
While considering the aforesaid factors, and mainly question as to
what is required by the wife to maintain herself, the Court have to steer
clear of the two extremes, namely, they should not give maintenance to
the wife which would keep her in luxury and would make judicial
separation profitable and also impede any future chances of
reconciliation. They should also steer clear of the other extreme, namely,
penurious-ness, i.e., not to drive the wife in penury. 3
In another case testimony of the wife was that when she filed the
application for maintenance husband was village pradhan. He carries on
trade of grain and has monthly income of Rs. 5000/-. In her cross-
examination it was elicited that the husband has 33 bighas of land; the
three brothers have 100 bighas of land. There was no cross-examination
on the point of trade carried on by the husband. Testimony of the
husband was that he has only two acres of land yielding meagre income.

1 Prafullaben Dhirubhai Kanjiya vs. Dhirubhai Kachrabhai Kanjiya,


AIR 2001 Gujarat 157.
2 Chandrapal vs. Harpyari, I (1993) DMC 346 All.
3 Kasind Sahu vs. Smt. Devi, AIR 1971 Orissa 295.
Maintenance pendente lite—Quantum of interim maintenance 107

He had no other sources of income. Suggestion put in his cross-


examination that he can pay maintenance of Rs.500/-per month to his
wife was denied by the husband. This was all the evidence about the
sources of income of the husband. Then there was one very important
circumstance related to the means of the husband. It was consistent
finding of the two lower Court that he married with another woman from
whom he has a child. In face of this circumstance testimony of the
husband that he has only two acres of land and has meagre income is
suppression of his tangible means of income. His status has been that of
village pradhan. He has capacity to keep another woman and beget a
child from her whom he is liable to maintain. He did not specifically
denied his trade of grain. Considering all these circumstances, testimony
of the wife that the husband has income of Rs. 5000/-per month may be
exaggeration, it was held that excluding the exaggeration the husband
cannot be expected to have income of less than Rs. 500/-per month
therefore, it was not proper to interfere in the enhancement of the
maintenance allowance of the wife to Rs. 200/-per months. 1
In one case the Court below came to the conclusion that the
husband gets Rs. 2,500 per month as income. Further, admittedly apart
from the petitioner-husband being a salaried employee, he is also owning
lands, where several crops are cultivated and income is earned therefrom.
The Court below pointed out the evidence given by P.W. 2, the Village
Administrative Office regarding the extent of the land owned by him and
the crops raised therein. He has also given details of his earnings from
the abovesaid lands and he has also produced Exs. A-1 to A-4. Onitta
and Adangal extract relating to the lands owned by the petitioner. All
these were mentioned in details in the Order of the Court below. It was
held that the Court below rightly rejected Ex. P-1 filed by the petitioner-
husband to contend that his salary was only Rs. 250/- per month, and
came the conclusion that he was earning at least Rs. 2,500/- per month.
So, taking all these into consideration, the Court held that he would be
entitled to Rs. 30,000 per year, in other words, Rs. 2,500 per month. 2
In one case the appellant had stated that he was holding the post
of Revenue Inspector and was getting a salary of Rs.. 2000/-per month.
The wife claimed maintenance pendente lite of Rs. 800/-for her self and
her daughter and in addition litigation expenses of Rs. 1000/-. On a just
and fair consideration, commensurate with the earning of the appellant it
was deemed fit to order that the husband shall pay to the wife through
Court a monthly amount of Rs. 600/- as maintenance during the

1 Chandrapal vs. Harpyari, I (1993) DMC 346 All.


2 C. Krishnan vs. Ponmudi, I (1993) DMC 502 Mad.
108 Law of Maintenance

proceedings in the appeal i.e., from the date from which the wife
contested this appeal after service of notice of this appeal till the date of
the order and in addition a sum of Rs. 600/-as litigation expenses for
defending this appeal. 1

Quick disposal
An application under section 24 is to be quickly decided as a
summary proceeding and that it could not be made to wait until an issue
on merits was taken up for consideration. The proceeding will not cease
to be a proceeding for the purpose of section 24 of the Hindu Marriage
Act, if the proceeding was for the relief which could be granted under
the Hindu Marriage Act. 2

Reasonable amount
What Section 30 of J&K Hindu Marriage Act requires is that the
amount awarded by way of compensation should be reasonable. The
expression “reasonable” is a relative term. What may be reasonable in
one case may not be necessarily reasonable in another case.
Reasonableness of the quantum of compensation has not to be
determined by merely having regard to the petitioner’s own income and
the income of the respondent but also by having regard, as far as may be,
to the standard of life maintained by the family to which the parties
belong. The rule that is no case maintenance should be granted at a rate
or more than one-fifth of the husband’s income is not only unreasonable,
but also irrational which may some time defeat the very object of
avoiding vagrancy; the reason d’etre of Section 30 of the Act. 3

Reduction and enhancement of amount


In the changed circumstances, the power has to be implied in the
Court to reduce or change the rate of maintenance, because maintenance
to be paid is only during the proceedings. Such a power of variation of
the rate of maintenance pendente lite is to be inferred in the Court, is the
view of High Courts of Orissa and Delhi. 4

1 Ramesh Chandra vs. Padmabai, I (1992) DMC 24 MP.


2 Nirmala vs. Gangadhar, I (1985) DMC 172 Bombay.
3 Rakesh Chandok vs. Vinod, II (1982) DMC 325 J&K.: AIR 1982
J&K 95: 1982 Srinagar LJ 127.
4 Laxmi Priya Rout v. Kama Prasad Rout, AIR 1992 Orissa 88;
Anuradha v. Santosh Nath Khanna, AIR 1976 Delhi 246: 1976
Rajdhani LR 74: (1976) 78 Pun LR (D) 53: (1976) 12 DLT 26.
Maintenance pendente lite—Right of Children 109

In case the suspension of the husband from service is revoked, it


was held that it would be open to the wife to approach the Court for
restoring the earlier rate of maintenance. 1

Refusal of maintenance to pressurise


To refuse maintenance pendente lite and expenses of litigation to
the wife and her minor child, merely to pressurise the wife to reconcile
her differences with her husband cannot, but be branded as a patent
misuse of the provision of Section 24 of the Hindu Marriage Act, 1955. 2

Resjudicata
The application filed under Section 24 of the Hindu Marriage Act
cannot be rejected merely on the ground that an application earlier filed
under Section 125, Cr.P.C. for maintenance was rejected. When the
proceedings under Section 9 of the Hindu Marriage Act are pending in
the trial Court, the wife, under Section 24 of the above Act, is entitled to
file an application for grant of maintenance of pendente lite. Therefore it
was held that the trial Court had rightly heard the matter and decided the
same on merits as the earlier decision under Section 125, Cr.P.C. is no
bar in deciding the application under Section 24 filed by the wife in the
trial Court. It was also be pointed out that the denial of factum of the
marriage by the husband was yet to be proved by him in the trial court
and merely because he has denied the factum of marriage, the right of
wife to get maintenance of pendente lite cannot come to end till the same
is finally decided by the trial court. 3

Retrospective effect
An application under Section 24 of the Act is not a suit by the
wife for maintenance under the Hindu Adoptions & Maintenance Act,
1956. Therefore, the maintenance could not have been granted prior to
the date of application under Section 24 of the Act. 4

Right of Children
In one case the trial court had before it an application only under
Section 24 of the Act for pendente lite maintenance both for the wife and
the minor child. After referring to the decisions of the other High Courts
and while upholding the grant of maintenance to minors it has been held
as under

1 Neelam vs. Kailash Bajpai, II (1994) DMC 188 MP.


2 Gurmeet Kaur vs. Gur Raj Singh, AIR 1989 P&H 223.
3 Virendra Kumar vs. Santoshi Devi, AIR 1988 Rajasthan 127 (DB).
4 Samru Singh vs. Dhanamani Singh, II (1986) DMC 152 Orissa.
110 Law of Maintenance

‘It is also true that Section 24, in terms, provide for pendente lite
maintenance for the spouse only and not for the children of
marriage. But Section 26 invests the Courts with full jurisdiction
to pass, from time to time, such interim order for maintenance of
minor children as the Court may deem just and proper. It should
also be noted that while Section 24 requires for its operation on
application from the spouse concerned, the provision of Section
26, so far it relates to interim maintenance may be invoked even
without any application in writing and a formal application in
writing is necessary under Section 26 only for awarding
maintenance and other reliefs after the decree. The learned Judge,
therefore, had perfect jurisdiction to grant pendente lite
maintenance to the minor child even without a formal application
and, therefore, his granting such interim maintenance even when
moved by an application labelled as one under Section 24 only,
can not be branded as without jurisdiction or to involve any
jurisdiction question even though Section 24 does not provide for
maintenance for children. As already indicated, when the Court
had jurisdiction under Section 26 to grant pendente lite
maintenance to the minor child the court could exercise its
jurisdiction even without any formal application, it would be
putting too much premium on technicalities to strike down an
order for maintenance for the child solely on the ground that the
application invoking such jurisdiction quoted a wrong section or
did not quote the right section. The tendency of the courts, as
pointed out by the Supreme Court in Pratap Singh vs. Shri
Krishna Gupta, 1 towards technicalities is to be deprecated
because it is the substance that counts and must take precedence
over mere form. If in substance the wife has applied for
maintenance of the child also and the materials on record also
justify such a grant, then the application being labelled as one
under Section 24 only is only a matter of form and the application
could very well be treated as an application for the purpose of
Section 26 also, even if an application was necessary for
pendente lite maintenance of children under Section 26.
It is true that some High Court have taken the view that while
allowing an application under Section 24 of the Hindu Marriage
Act, the Court has no power to grant pendente lite maintenance
for the minor children and reference in this connection may be
made, among others, to a Division Bench decision of the Orissa
High Court Akasam Chinna v. Akasam Parbati, 2 and to a single-
Judge decision of the Patna High Court in Bankin Chandras v.
Anjali. 3 We have examined those decisions and we have felt, and
this we have felt, and this we say with great respect, that these

1 Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC 140 at page
141
2 AIR 1967 Orissa 163 at 164.
3 AIR 1972 Patna 80 at 81.
Maintenance pendente lite—Right of Children 111

decisions have adopted a rather technical and literal approach and


the effect and impact of Section 26 of the Hindu Marriage Act
have not at all been considered in these decisions. The Single-
Judge decision of the Karnataka High Court in D. Thimmappa v.
R. Nagaveni 1 is, however, in full accord with our view where it
has been held (at 217) that when the wife makes an application
under Section 24 of the Act to the Court for the grant of interim
maintenance for the children also, the Court can grant the relief
to the children also in exercise of its power under Section 26
wherever it considers it to be just and proper. The Single-Judge
decision of the Rajasthan High Court in Babolal v. Prem Lata, 2 is
also to the same effect where it has been held that if a case is
made out to that effect, interim maintenance can be granted to the
minor children while considering an application under Section 24
by the wife even in the absence of separate application under
Section 26 of the Act. We are, therefore, of the view that in
granting maintenance to the minor daughter, while disposing of
and allowing the application under Section 24 by the wife, the
learned Judge has not made any illegal assumption or illegal
exercise of jurisdiction to warrant our intervention in revision. 3
In order to claim maintenance for children as contemplated under
Section 26, no separate application is required to be made and on the
application of the wife moved under Section 24 in the proceeding for
dissolution of marriage under Section 13 of the Act, interim maintenance
may be granted for the children also. 4
The requirement of the husband or the wife would also include
the expenses required for the maintenance of the child. The interpretation
of the provisions should not be too literal; but purposive and functional.
As the provisions contained in Section 26 would go to indicate, the court
is empowered to pass interim orders as it may deem just and proper with
respect to maintenance of minor children. Section 26 operates also
during the pendency of the proceeding under the Hindu Marriage Act.
So, assuming that the provisions contained in Section 24 stricto sensu do
not authorise grant of maintenance to child. Section 26 authorises the
grant of pendente lite maintenance by way of interim orders during the
pendency of the proceedings. If the petition contains the averments,
notwithstanding the fact that the petition for maintenance pendente lite is
not made under Section 26, but only under Section 24, the court is

1 AIR 1976 Karnataka 215.


2 AIR 1974 Rajasthan 93.
3 Purshottam Das Aggarwala vs. Pushpa Devi, I (1983) DMC 100
Orissa; Manjo KR. Jaiswal vs. Lila Jaiswal, II (1986) DMC 269
Calcutta.
4 Harpal Singh vs. Additional Session Judge, 1999(3) CCC 232 All.
112 Law of Maintenance

empowered to grant maintenance under Section 24 or under Section 24


read with Section 26 of the Act. Being of the view that the provisions
contained in Section 24 and 26 are beneficial provisions and literal
interpretation would be unsound, it was held that on an application
claiming maintenance for the husband or the wife, as the case may be
and for the child, maintenance can be granted to the child howsoever
labelled the petition may be. The substance matters, not the form. If
there be authority under the provisions, there is end of the matter. 1
Where an application is filed under Section 24 and there is an
averment of existence of minor child, the Court having regard to the
provisions of Section 26 can make an order awarding maintenance
pendente lite in respect of minor of child as well as the applicant. 2
The jurisdiction to pass orders with respect to the custody
maintenance and education of minor children continues even after the
main proceeding, initiated under the Act, has come to an end. The
expression that “the court may, after the decree, upon application by
petition for the purpose, make from time to time, all such orders and
provisions with respect to the custody, maintenance and education of
such children etc:” and “that the court may also from time to time
revoke, suspend of vary any such orders” would show that the decree in
the main proceeding does not terminate the power of the court to pass
suitable orders relating to the custody, maintenance and education of the
minor children. These orders are essentially in the nature of interim
orders and are liable to be modified, revoked or suspended if there be a
change in the relevant circumstances of the parties. 3

Scheme under Hindu Marriage Act, 1955


S 24 of Hindu Marriage Act, 1955 is as under:
“24. Maintenance, pendente lite and expenses of proceedings—
Where in any proceeding under this Act it appears to the Court
that either the wife or the husband, as the case may be, has no
independent income sufficient for her or his support and the
necessary expenses of the proceeding, it may, on the application
of the wife or the husband, order the respondent to pay the
petitioner the expenses for the proceeding such sum as, having

1 Mahendra Kumar Mishra vs. Snehalat Kar, AIR 1983 Orissa 74:
1982 East LR 437: 1982 Mat LR 354: (1982) 1 Civ LJ 254: (1983) 1
DMC 219.
2 Subhasini vs. B.R.Umakanth AIR 1981 Kant 115 (DB): ILR (1980)
1 Kant LJ 734.
3 A.R. Munuswamy Rajoo vs. Hamsa Rani, AIR 1975 Madras 15: 87
Mad LW 537: (1974) 2 Mad LJ 237.
Maintenance pendente lite—Scheme under Hindu Marriage Act, 1955 113

regard to the petitioner’s own income and the income of the


respondent. It may seen to the Court to be reasonable”
The Section 24 is in two parts. The first part of the Section
provides for enquiry to be held by the Court in regard to the income of
the wife or husband (applying under Section 24), as the case may be, as
to whether her or his income is sufficient for her or his support. Once
after such an enquiry it is held that the wife or the husband, as the case
may be, has no sufficient income to support herself or himself, the Court
will proceed to make an order directing the other side to pay
maintenance pendente lite as well as expenses of the proceeding. At that
stage, which will constitute the second stage of enquiry, the Court will,
for the purpose of determining the sum of the maintenance or the
expenses, take into consideration the own income of the wife or husband,
as the case may be, as well as the income of the other side. In my
opinion, the expression “having regard to’ occurring in the second part
of Section 24 refers to and is relevant only for the purpose of
quantification of the sum, which is to be paid by the husband or the wife.
In a case where there is no dispute that the petitioner of the application
under Section 24, in the instant case the wife-opposite party, has no
income of her own, the order in terms of Section 24 directing payment of
maintenance pendente lite and the expenses of the proceeding should
ordinarily be made. 1
In this connection it would not be put of place to mention that the
history of law of alimony or maintenance can/be traced back to the
conditions then prevailing in England where the wife was considered to
be a tutelage to and economically dependent on her husband and was
thus to be maintained so long she was the wife. The conditions
prevailing in India even now, by and large, are no better. In many
English decision it has been held that the wife is the privileged suitor.
Therefore, having regard to the conditions prevailing in India the
provisions of Section 24 have to be liberally constructed as to make them
vibrant rather then dormant. In the instant case, there is no dispute that
the wife has no income of her own. The factum of marriage is also not in
dispute. It was accordingly, held that there was no infirmity in the order
granting interim maintenance and expenses of the proceedings. 2
Depending in the eligibility as visualised under the Section to the
benefits under it, either the wife or the husband can be directed to pay
the other side: (1) the expenses of the proceeding; and (2) reasonable
sum to be paid monthly during the pendency of the proceeding, for his or

1 Manoj Kumar Thakur vs. Shibani Devi, I (1995) DMC 452 Patna.
2 Manoj Kumar Thakur vs. Shibani Devi, I (1995) DMC 452 Patna.
114 Law of Maintenance

her support. The monthly sum so paid is obviously towards maintenance


during the proceeding. The Court adjudicates the amount necessary and
allowable to the respondent as the maintenance and support and directs
the respondent to pay the same. Hence what is determined by the Court is
actually the amount which becomes payable to the applicant for his or
her support. The words “during the proceeding” only indicates the period
till which the payment is to be directed. The right to get the sum, as is
directed, is independent of the continuance or otherwise of the
proceeding itself. But the monthly sum so fixed would not continue to be
chargeable beyond the conclusion of the proceeding, but the liability to
pay, as determined, is independent of the continuance of the proceeding.
The word do not have any other meaning except that. Hence the
responsibility to pay the maintenance fixed independently survives the
closer or lapse of the proceeding and can be proceeded with for
enforcement by the party in whose favour the order has been made. This
conclusion is irresistible since the event for payment of interim
maintenance is the initiation of the proceeding against the other side in
which he or she is made to appear and defend himself which necessarily
involves incurring expenditure for the purpose, and if he or she has no
independent source of income sufficient for support, the law casts
responsibility on the other side having regard to the respective income of
the parties, to pay the maintenance. The provision is independent of the
provisions of Section 25 of the Act or the provisions of Hindu Adoptions
& Maintenance Act or Section 125 of the Code of Criminal Procedure. 1
The right of a wife for maintenance is an incident of the status or
estate of matrimony. In general, therefore, the husband is bound to
defray the wife’s costs of any proceeding under the Act and to provide
for her maintenance and support pending the disposal of such
proceeding. The doctrine of alimony, which expression in its strict sense
means allowance due to wife from husband on separation from certain
causes, has its basis in social conditions in England under which a
married woman was economically dependent and almost in a position of
tutelage to the husband and was intended to secure justice to her while
prosecuting or defending proceeding under matrimonial law. It is also
recognised that when the wife has separate means sufficient for her
defence and subsistence she should not be entitled to alimony nor costs
during the proceeding and if the husband has neither property nor
earning capacity, the courts would not award any interim alimony. It is
on these principles that the law relating to matrimonial causes provides

1 Parchuri Rajya Lakshmi vs. Parchuri Viswa Sankara Parasad, I


(1995) DMC 630 AP: 1995(2) CCC 487.
Maintenance pendente lite—Scope of enquiry 115

for rules for payment of maintenance pendente lite and expenses of


proceedings by the husband to the wife. Section 24, Hindu Marriage Act,
1955 adopts the above principles and goes one radical step further when
it lays down that any such order can be made not only in favour of the
wife but also in favour of the husband. The expression ‘respondent’ and
‘petitioner’ in the section obviously refer to the respondent and
petitioner to the interlocutory application for pendente lite and for
provision for cost and not to the petitioner and respondent to the
substantive petition. 1

Scope of enquiry
While fixing permanent alimony and maintenance under Section
25 of the Act, the court is expected to make detailed inquiry and has to
take into account not only the income but other properties of the parties,
their conduct and other circumstances of the case that the court might
consider relevant. But that would not be so for the decision of the
application under Section 24 of the Act as in its very nature, the inquiry
under Section 24 has necessarily to be summary. The court cannot be
bogged down to intricacies of a protracted trial for fixing maintenance
pendente lite and expenses of the proceedings. Otherwise, the very object
of the section would be frustrated which is that a party is not
handicapped in prosecuting his or her case. But, then in deciding the
application under Section 24 of the Act, the court has to act in
accordance with sound judicial principles and cannot act in an arbitrary
fashion to the prejudice of either of the parties. 2 The following principles
would appear to be relevant for the purpose:
(1) position and status of the parties;
(2) reasonable wants of the claimant (towards food, clothing,
shelter, medical attendance and treatment, education and the
like);
(3) income of the claimant;
(4) income of opposite party;
(5) number of persons opposite party is obliged to maintain.
Two corollaries may be added here: (1) In arriving at the income
of a party only involuntary deductions like income-tax, provident fund
contribution, etc., are to be excluded; and (2) though under the law
opposite party may be obliged to maintain brother or sister but if that
brother or sister having no income is living with the opposite party as
member of his family and where either there are no parents or are unable

1 Rajambal vs. Murugappan, I (1986) DMC 59 Madras; Amrik Singh


@ Bhalla vs. Lakhwinder Kaur, II (1985) DMC 143 P&H.
2 Pardeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Delhi 10.
116 Law of Maintenance

to maintain themselves, the court may in a given circumstances consider


the expenses to be incurred on the maintenance of brother or sister by the
opposite party. After all, court cannot be expected to adopt a mechanical
approach while interpreting the provisions of law incorporating
principles of social justice like Section 24 of the Act. 1

Scope of entitlement
An order of maintenance pendente lite and costs of the
proceedings can be made only in a proceeding under the Hindu Marriage
Act and only for the period “during the proceedings”. The term “during
the proceedings” would cover the proceedings from the start till the end
or at least from the date of the application under Section 24 till the
termination of the proceedings in the Court. Section 24 of Civil
Procedure Code confers general power of transfer and withdrawal of
suits and proceedings up on the High Court and the District Court. There
is no substance in the contention raised on behalf of the applicant that
this application under Section 24 of C.P.C. is part of the proceedings
initiated by the opposite party for the annulment of the marriage under
the provision of Hindu Marriage Act but assuming without deciding that
it is part of the proceedings so initiated under the provisions of the
Hindu Marriage Act, the applicant cannot claim expenses for the
application and monthly allowance independent of the initial
proceedings. Under Section 24 of the Hindu Marriage Act one can claim
maintenance pendente lite and expenses for the entire proceedings and
not for each and every application and step taken in those proceedings. 2
So even if it is assumed that this transfer application is a step
taken in the initial proceedings or is a part of the initial proceedings
which are pending in the court below, then the applicant cannot claim
separate expenses for this application. In this view of the matter, the
applicant was held to be not entitled for maintenance pendente lite and
expenses of proceedings for this transfer application even if it is assumed
that it is a part of the proceedings initiated against her by the opposite
party under the Hindu Marriage Act. 3
A wife cannot be held to be entitled to maintenance pendente lite
under Section 24, Hindu Marriage Act solely or simply on the ground
that she is running in deficit in running her separate household. The trial
court would have jurisdiction to award maintenance under that section

1 Pardeep Kumar Kapoor vs. Shailja Kapoor, AIR 1989 Delhi 10.
2 Rachna Sharma vs. Chandra Mohan Sharma, AIR 1984 All 302:
1984 All CJ 340: 1984 All WC 462: (1984) 10 All LR 450.
3 Rachna Sharma vs. Chandra Mohan Sharma, AIR 1984 All 302:
1984 All CJ 340: 1984 All WC 462: (1984) 10 All LR 450.
Maintenance pendente lite—Scope of Liability 117

only on the finding that the applicant-wife has no independent income


sufficient for her support and what amount would be sufficient for the
support of the wife must be determined on the basis of the income of the
husband. Where the trial court did not determine as to what amount the
wife-applicant can reasonably claim for her support as the wife of the
husband-opposite party and not having found that she does not earn that
income, the absence of the jurisdictional fact to invest the Court with the
jurisdiction to invoke Section 24 is apparent on the face of the record. 1

Scope of expenses
In so far as the word “expenses” is a word of wider connotation
and includes “costs”, but is not limited to the costs that would be payable
on a party-and-party taxation under the rules of the Court. This view of
the word “expenses” used in Section 36 is supported by the very object
of the provision that is to be found in that section which is to enable the
wife to contest the proceeding without being at the disadvantage of
suffering from want of means. That object would not be served if the
word “expenses” in Section 36 is construed as limited to the amount that
would be payable by way of costs on a party-and-party taxation. In my
opinion, having regard both to the language of the section as well as its
object, the Court has power under Section 36 to order payment pendente
lite of all or such part of the attorney and client costs incurred by the
wife as it may consider to be reasonable. 2

Scope of Liability
Any one who claims himself to be a married man should be able
to pay that much for the support of his wife and if the husband is not in a
position to pay even that much to the wife he has no right to the society
of wife even if the marriage between them was valid in law. When it is
the case of the husband that the wife was over 18 years of age when the
marriage took place and the marriage was right and proper he should
have instead of filing this application against the order under Section 24,
tried to have the main petition for divorce decided as early as possible
because his liability for maintenance will continue only up to the date of
the decision of the main petition. 3

1 Utpal Kumar Banerjee vs. Manjula Debi Banerjee, I (1989) DMC


276 Calcutta.
2 Louise Dinshaw Cambata vs. Dinshaw S. Cambata, AIR 1974
Bombay 82: 75 Bom LR 532; 1973 Mah LH 1051.
3 Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC 242 AP:
AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh WR 452:
1982 Hindu LR 387; Ram Babu vs. Second Additional Civil Judge,
Kanpur, I (1983) DMC 196 All.
118 Law of Maintenance

Second Appeal
Any proceeding under the Act is a proceeding in respect of a right
conferred under the Act and touches, in most cases, the marital status of
the party to the marriage. Such a proceeding starts in the Trial Court and
continues till the rights status of the parties is finally adjudicated. Thus,
an appeal, and for that matter even a Second Appeal would obviously
relate to the adjudication of the rights of the parties to the main petition
and it can hardly be said that a first appeal or even a second appeal is not
a proceeding under the Act. 1

The right of second appeal conferred by Section 28 is limited to


the grounds set out in Section 100 of the Code of Civil Procedure and
can, therefore, be exercised only on questions of law and not on question
of fact. What should be the quantum of the amount of permanent alimony
on a consideration of the factors set out in Section 25 is essentially a
question of fact and no Second Appeal can lie to challenge the
determination of the amount of permanent alimony made by the lower
appellate Court unless the complaint be that the lower appellate Court
has failed to take into account any factors set out Section 25 or taken
into account any extraneous or irrelevant factors. 2

Second marriage
The respondent is primarily liable for the maintenance of the
petitioner so long as she does not re-marry. The respondent is claimed to
be supporting his sister and mother. But the mother has no ration card
with the respondent and the sister is also married. Therefore, there is no
other liability resting on the shoulders of the respondent. Taking into
consideration the total income of the respondent, it was held that
maintenance at the rate of Rs. 450/-would be just and reasonable. The
fixation of the maintenance allowance at the rate of Rs. 150/- per month
from the date of the application seems to be justified in the totality of the
circumstances of the case. 3
The object behind Section 24 of the Act providing for
maintenance pendente lite to a party in matrimonial proceedings is
obviously to provide financial assistance to the indigent spouse to

1 Sunita Anilkumar Agrawal vs. Anilkumar Balmukund Agrawal,


1998(2) CCC 479 Gujarat.
2 Patel Dharamshi Premji vs. Bai Sakar Kanji, AIR 1968 Gujarat 150
(DB): ILR (1967) Guj 866: 8 Guj LR 888.
3 Surinder Kaur vs. Manohar Singh, II (1991) DMC 84 Delhi.
Maintenance pendente lite—Striking off defence 119

maintain herself or himself during the pendency of the proceedings and


also to have sufficient funds to carry on the litigation so that the spouse
does not unduly suffer in the conduct of the case for want of funds.
When considering such a piece of legislation, it would not be right to
adopt a narrow pedantic approach. On the other hand if the Court desires
to gather the legislative intention from the provisions of such an Act, it
must adopt a liberal and progressive approach keeping in mind that it
was the liberal and progressive approach of the Legislature which led to
the enactment being passed. 1
Even in a case of bigamous marriage one of the parties can seek a
decree of nullity of marriage by way of petitioner or respondent which is
permissible under Section 23-A of the Act. It may also be seen that in
pending proceedings even at the instance of the second wife is a void
bigamous marriage, the Court is empowered to make an attempt for re-
conciliation, to pass necessary orders with regard to the custody of the
children and disposal of the property exchanged at the time of marriage.
The Court has also power in such proceedings to make an order of
permanent alimony or maintenance under Section 25 of the Act. The Act
confers wide powers on the matrimonial Court so as to regulate
matrimonial relationship between the parties and such powers are to be
exercised by the Court even in a case of alleged or proved bigamous
marriage. In enacting Section 24 a special provision is made for ordering
interim maintenance and the expenses of litigation to be provided for the
contesting husband or wife if he or she had no independent sufficient
income. There is no reason why the words “wife” or “husband” used in
Section 24 should not be interpreted so as to include a man and woman
who have gone through a ceremony of a Hindu Marriage which would
have been valid but for the provisions of Section 11 read with Clauses (i)
of Section 5 of the Hindu Marriage Act. These words have been used as
convenient terms to refer the parties who have gone through a ceremony
of marriage whether or not that marriage is valid or subsisting, just as the
word “marriage” has been used in the Act to include a purported
marriage which is void ab initio. 2

Striking off defence


“He who seeks equity, must do equity”, is another maxim of
equity. Still another maxim “Equity imparts an intent to fulfil an
obligation”. And a person who is not equitable in discharging his family

1 Krishnakant Mulashankar vs. Reena Krisha Vyas, II (1999) DMC


221 Bombay.
2 Krishnakant Mulashankar vs. Reena Krisha Vyas, II (1999) DMC
221 Bombay.
120 Law of Maintenance

obligation is not entitled to any relief from a matrimonial court. All these
maxims of equity are invoked while exercising inherent powers of the
court, for staying the proceedings, striking off the defence or dismissing
the suit. By just passing the said orders, only the dignity of the Court is
ensured, while by enforcing the order obligations to the family, wife and
children are saved from vagrancy. These are two sets of obligations and
they obviously require two remedies. As such, two sets of civil remedies
should not be equated with double penalty. 1
Where the husband was afforded more than ample opportunities
for making the payment but he did not pay the maintenance pendente lite
allowed to the wife under Section 24 of the Act, it was held that the
Judge, Family Court thereupon rightly struck off the defence of the
appellant who was respondent in the divorce petition. 2

Enforcement of order
Maintenance pendente lite and expenses of the proceedings are
ordered to be paid under Section 24 of the ground that the spouse in
whose favour the order has been made is without necessary means to
maintain herself and bear the expenses defending herself. Section 28-A
of the Hindu Marriage Act provides that all decrees and orders made by
the Court in any proceeding under this Act shall be enforced in the like
manner as the decrees and orders of the Court made in the exercise of its
original civil jurisdiction for the time being enforced. It cannot be
disputed that order under Section 24 is passed during the pendency of the
proceeding under the Act. Therefore, it is executable as decree passed by
Civil Court in exercise of original civil jurisdiction. 3
The Bombay High Court in Sarla Devi vs. Bharat Kumar 4 went to
the extent of holding that wilful disobedience by the husband to pay the
maintenance pendente lite and expenses of the proceedings would be
guilty of contempt and proceedings for contempt is not vitiated by
parallel proceeding under Order 21 Rule 37.

Unchastity
If a subsequent conduct of the wife who has become unchaste can
form the basis for cancellation of an order passed under Section 25(1), a
finding recorded during the judicial separation proceedings, regarding
the unchastity of the wife must and should be taken into account even in

1 Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66) DLT
460.
2 Om Prakash vs. Babli, II (1999) DMC 619 Rajasthan.
3 Kishan Lal vs. Longa Bai, I (1993) DMC 93 MP.
4 Sarla Devi vs. Bharat Kumar, I (1988) DMC 487
Maintenance pendente lite—Waiver 121

the first instance, when an order is being passed under Section 25(1) of
the Act. Otherwise it will lead to a very incongruous situation namely,
that it is only when a wife becomes unchaste after the award of
maintenance she is disabled from continuing to receive that maintenance,
whereas a wife who has been held guilty by the Court of unchastity even
in the main proceedings, will nevertheless be entitled to get maintenance,
in the first instance, under Section 25(1) of the Act. 1

Urgency
The object of Section 24 is to provide a monthly income and
expenses of the litigation to an indigent spouse to enable it to prosecute
or defend the proceeding under the Act and the law sees that nobody is
disabled from prosecuting or defending the matrimonial case by
starvation or lack of funds. It is true that the Court exercises wide
discretion in the matter of granting maintenance pendente lite, but the
discretion is judicial and not arbitrary and capricious. 2
In enacting Section 24, a special provision is made for ordering
interim maintenance and the expenses of litigation to be provided for
the contesting husband or wife if he or she had no independent
sufficient income. The very purpose of an order under Section 24 would
be frustrated if the manner of granting interim maintenance and of
providing the requisite expenses for the conduct of the proceedings
itself is deferred till the final stage of the proceeding. The direction for
interim alimony and expenses of litigation under Section 24 is one of
urgency and it must be decided as soon as it is raised and then only the
other matters in controversy can be gone into. 3

Waiver
The wife got a lump sum amount of Rupees 9000/- in execution
of the order passed in her favour under Section 125, Cr.P.C. At the time
when this amount was paid to her, only a sum of Rs. 6450/- was due to
her, but the husband in order to settle the matter finally paid a sum of
Rs. 9000/- and got an undertaking from the wife that no she would not

1 Raja Gopalan vs. Rajamma, AIR 1967 Ker 181: ILR (1966) 2 Ker
291: 1966 Ker LJ 856: 1966 Ker LT 891: 1966 Ker LR 518.
2 Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, AIR 1996
Bombay 94: 1996 (2) Bom CR 531: 1996 (1) Civil Court C 700:
1996(1) Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996
(1) All Mah LR 136.
3 Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, AIR 1996
Bombay 94: 1996 (2) Bom CR 531: 1996 (1) CCC 700: 1996(1)
Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996 (1)
All Mah LR 136.
122 Law of Maintenance

claim any type of maintenance etc. against him i.e. her husband. It was
on account of this undertaking that the amount which was not been even
due at that time, was paid to the wife. In view of that undertaking, it was
held that the wife could not claim separate maintenance under Section 24
of the Act, though, she may be entitled to the litigation expenses. 1

Withdrawal of application
Dismissal of the earlier application as withdrawn without
permission to file a fresh application would be deemed to have been
dismissed on merits. The underlying idea of order 23, Rule 1 of the
C.P.C. is that unless specific permission is sought from the Court to
file a fresh suit on the same cause of action, second suit would not be
maintainable to avoid multiplicity of proceedings and harassment to the
opposite party. But those principles are not applicable when the
application of the husband for the grant of restitution of conjugal rights
is still pending and Section 24 of the Act clearly allow the wife to
claim maintenance pendente lite as also the litigation expenses. It was
held that unless her claim under Section 24 of the Act is declined on
merits by a speaking order, she cannot be denied the benefit of Section
24 of the Act. 2

Withdrawal of main petition


The Trial Court gave a detailed order considering the income tax
returns and the fact that the petitioner was in business and had some
rental income and the wife was living in one room of her matrimonial
home. The main plea of the petitioner in the revision petition was that
the impugned order could not have been passed against him after the
withdrawal of the main petition filed by him under Section 13(1) of the
Hindu Marriage Act. It was held that this plea was without substance as
it is not stated at all whether after the withdrawal of the petition the wife
and the daughter were being maintained by him. It was further held that
irrespective of the withdrawal of the main petition by the husband, his
liability towards maintenance of his wife subsists and her right cannot be
defeated by this hyper-technical plea. 3
Normally the plaintiff of a suit has absolute and unqualified right
to withdraw from the suit. His liability is two-fold liability, i.e.,

1 Pritam Singh vs. Rajinder Kaur, AIR 1983 P&H 239: 1983 Hindu
LR 264: 1983 Marri LJ 300: 1983 Cur LT (Civ & Cri) 570: 1983
Mat LR 218.
2 Devinder Kaur vs. Gurcharan Singh, II (1983) DMC 63 P&H.
3 Kamal Seth vs. Saroj Seth, 1999(1) HLR 513 Delhi: 1999(1) DMC
267.
Maintenance pendente lite—Working wife 123

(i) to pay such costs as the Court may award and


(ii) he becomes precluded from instituting any fresh suit in
respect of that subject-matter under Sub-rule (3) of Rule 1.
Excepting the above twin liabilities, the right of the plaintiff to
withdraw from a suit is absolute and unqualified. However, there are
certain circumstances were different considerations may arise. As for
example, where a set off is claimed under Order 8 of Civil Procedure
Code or where a counter-claim is filed or where in a suit for partition a
preliminary decree is passed declaring and defining shares of several
parties or where and a partnership suit and suit for accounts defendants
too may be entitled to some relief’s in their favour as a result of
settlement of accounts. 1
Similarly it has been held that when during the pendency of the
proceedings under Section 9 of Hindu Marriage Act, application made by
the wife under Section 24 of Hindu Marriage Act, 1955, and by virtue of
statutory right recognised by Section 24 of the Act a right has accrued to
the wife to receive maintenance pendente lite least from the date of her
application and the costs of litigation, it shall have to be decided as to
whether the right of plaintiff (petitioner) to withdraw from the suit or
petition for restitution of conjugal rights remains uncontrolled and
absolute or it gets settled by the right of the other spouse to get
maintenance pendente lite at least upto the date of application for
withdrawal of suit/petition. 2

Working wife
All the High Courts in India have generally held that wife is
entitled to maintenance pendente lite to the extent of 1/3rd to 1/5th of the
income of the husband under Section 24 of the Act. The word
“sufficient” is a relative term and has to be considered on the facts of
each case. In this case it was held that if the wife was not employed she
would have been entitled to at least Rs. 1500/- to Rs. 2000/- per month
as maintenance pendente lite because the income of the petitioner has
been assessed at Rs. 8000/- per month. It was held that merely because
the respondent had chosen to work it does not mean that she is to be put
at a disadvantage and the husband is entitled to the benefit. It was further
held that he may be entitled to the benefit to the extent of her

1 Pratapbhai V. Trivedi vs. Priyamvada Ghamu Pratapbhai Trivedi, II


(1993) DMC 25 Gujarat.
2 Pratapbhai V. Trivedi vs. Priyamvada Ghamu Pratapbhai Trivedi, II
(1993) DMC 25 Gujarat.
124 Law of Maintenance

independent income but that does not mean that the income of husband
become irrelevant. 1

Written statement
The wife was not bound to file the written statement before
moving the court for grant of maintenance pendente lite and expenses of
the proceedings. The whole object of awarding expenses of proceedings
is to enable the party to fight the case. 2

1 Ashok Kumar vs. Satwant Kuar, I (1983) DMC 27 Delhi.


2 Jagdish w/o Hari Singh vs. Hari Singh, I (1985) DMC 100 Delhi.
Interim maintenance—Object 125

Chapter 3
Interim maintenance
SYNOPSIS
Introduction....................................125 Powers under Criminal Procedure
Object .............................................125 Code, 1973..................................... 131
Appropriate forum .........................127 Pauper wife.................................... 134
Conditions for granting maintenance Power under Section 151 Civil
.......................................................127 Procedure Code ............................. 134
Effective date..................................128 Power under Hindu Marriage Act,
Hardship ........................................128 1955 ............................................... 134
Inherent powers .............................128 Quantum ........................................ 134
Necessity of detailed enquiry .........130 Scope of adjudication .................... 135
Need for liberal approach ..............131

Introduction
Various enactments provide different provisions for maintenance
of wife by her husband. Some of these provisions provide for
maintenance during pendency of litigation between the parties while
other during the subsistence of marriage. Very often the application
seeking fixation for maintenance itself takes considerable time.
Therefore in order to do justice to the parties especially to the weaker
party it has been held by the courts that the matrimonial court is also
empowered to grant ad interim maintenance to the wife. This chapter
deals with such cases.

Object
Provisions under Sections 24, 25, 26 of the Hindu Marriage Act,
1955; Sections 18, 19, 20 and 22 of the Hindu Adoptions & Maintenance
Act, 1956; and Section 125 Criminal Procedure Code, 1973 as well as
similar provisions in other enactments, indicate a definite intention of
the Legislature to project and pursue a public policy against vagrancy. 1
Neither by forced separation, nor by staying the proceedings
under the Hindu Marriage Act, 1955 or any other similar provision,

1 Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66)
DLT 460
126 Law of Maintenance

hunger is stopped. Hunger does not breed reform, it breeds madness and
all the ugly distempers that make an ordered life impossible. Similarly
nor the needs of clothing and shelter are suspended during the stay.
Consequently, complementary moral and legal obligation on the husband
to support his wife does not cease to exist, by staying the proceedings.
Section 24 and other similar provisions just recognize and enforce this
obligation. Court dealing with matrimonial matters while staying
proceedings and while refusing to allow defence, are not enforcing this
obligation. They are just enforcing rules of equity. Equity acts on the
conscience and conduct of a person who is guilty of neglecting his
family, wife and children, is so unconscionable that the court feels that
he should not be allowed to pursue his case. 1
Hindu Marriage Act, 1955 is a socio-welfare legislation and is
intended to protect the women and children whose very existence is
threatened because of non-availability of requisite means. Extent of their
destitution compels them to take recourse to process of law founded on
dis-reformative legislative. To deny an interim protection which the
applicant may be intended to as a final relief in the petition would be a
approach which would decimate the very legislative purpose behind this
legislation. The legislative intend to protect the right of maintenance is
unambiguously codified in the language of Section 18 and 20 of the Act.
Absence of a specific provision for grant of maintenance pendente lite
would no way exclude the power of the Court to grant such a relief
depending on the facts and circumstances of each case. It would amount
to frustrate the very legislative intent behind these provisions if the
interim maintenance is to be declined to the wife or the children in face
of the provisions of Section 18 and 20 of the Act. It will not only be
unfortunate but even with respect illogical to hold that the grant of
maintenance pendente lite is not permissible under the provisions of this
Act. A child who approaches the Court for grant of maintenance under
the provisions of this Act would not be even able to contest and take
the suit instituted to its final culmination if he or she was not granted
interim maintenance, particularly when the application satisfied the
basic ingredients spelt out by the Legislature for the grant of such
relief finally. 2
It is a settled principle of law that a relief which cannot be
granted while passing the final decree cannot be granted by way of
interim relief in those proceedings, but converse thereof is not true.

1 Suman Bala vs. O.P. Arora, 1997 (2) AD 775 (Del): 1997 (66)
DLT 460.
2 Kulwant Singh vs. Balwinder Kaur, I (2000) DMC 245 P&H.
Interim maintenance—Conditions for granting maintenance 127

Depending on the facts and circumstances of given case, the Court would
grant interim order if such relief can be granted to the applicant upon
final determination of the matter in issue. The provisions of Section 18
and 20 Hindu Adoptions & Maintenance Act, 1956 have to be given a
wider meaning so as to provide interim maintenance pendente lite by
necessary implication. These provisions do not prohibit or exclude or
any settled principle the jurisdiction of the Court to entertain and decide
an application for interim or maintenance pendente lite. The Court would
normally exercise its inherent powers to aid the ends of justice and to
achieve the object of legislation. The exception being exercise of such
inherent powers, it should not be in conflict with or destroy the intents
behind the substantive provisions of the law or code, which governs and
control the matter under adjudication. 1

Appropriate forum
A petition seeking interim maintenance has to be filed by the wife
or the children under Section 18 of Hindu Adoptions & Maintenance Act.
If a divorce petition or any other petition contemplated under the Hindu
Marriage Act is filed, then the interim maintenance can only be granted
under Section 24 of the Hindu Marriage Act and if a decree is finally
passed in that event the party who is entitled to claim maintenance can
file a petition under Section 25 of the Hindu Marriage Act. There is no
provision is law enabling the claim of maintenance under Section 151,
Civil Procedure Code. 2 However another view is that power to grant
interim maintenance is incidental and ancillary to the substantive relief
of maintenance envisaged in section 18 of the Act and if the ends of
justice so warrant the court is competent to grant it in a suit for
maintenance. 3 For more cases see under Inherent Powers.

Conditions for granting maintenance


Expression ‘any proceedings under this Act’ appearing in Section
24 of Hindu Marriage Act, 1955 covers the proceedings under Section 25
thereof. Section 25 contemplates that an order for permanent alimony
can be made at the time of the passing of any decree under the Act or any
time thereafter. Now, if a spouse has to make an application after any
decree under the Act has been passed and has no sufficient means of
his/her own, such spouse has to be provided for prosecuting the

1 Kulwant Singh vs. Balwinder Kaur, I (2000) DMC 245 P&H.


2 Avula Subrahmanyam vs. Avula Rama Devi, II (2000) DMC 71 AP.
3 Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234: 1993
(3) AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547: 1993 RLR
69 (N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993 (3) RRR
577.
128 Law of Maintenance

application for permanent alimony when the other spouse opposes any
grant thereof. Any other construction will be narrow and will lead to
frustration of the provision. Section 25 is a continuation of the main
proceedings. Placement or numbering of the Section or the description of
one set of documents as petitions and the other set as applications does
not alter this position. The purpose or using the words ‘husband’ or
‘wife’ is to identify the position occupied by the parties in the main
proceedings, and not to exclude ex spouses. 1

Effective date
In one case the learned Magistrate had not given any specific
reason for his direction for payment of interim maintenance from the
date of filing of the application under Section 125 Criminal Procedure
Code and not from the date of the application for interim maintenance or
from the date of the order. Though the position was not disputed that the
Magistrate had the competence to direct payment of interim maintenance
from the date of filing of the application under Section 125, Criminal
Procedure Code it was held that ordinarily the direction for payment of
interim maintenance is either from the date of the order or from the date
of application for interim maintenance. If the Magistrate considering the
facts and circumstances of the case before him deems it just and proper
to direct that interim maintenance should be paid not from the date of the
order or from the date of application for interim maintenance but from
the anterior date of filing of the application under Section 125 Criminal
Procedure Code he should discuss the reasons for such direction. This
will not only convince the parties that the jurisdiction vested in him has
been exercised properly and on sound judicial principles but it will also
avoid criticism of arbitrariness against his order. While deciding a case it
is important to determine whether the Court has the power/jurisdiction to
grant the prayer of the applicant and it is equally important to exercise
such power legally and properly. 2

Hardship
The order for payment of interim maintenance allowance can be
passed only in the case of great hardship. 3

Inherent powers
There is no separate provision in the Hindu Adoptions and
Maintenance Act, 1956 (for short the ‘Act’), for grant of maintenance

1 Dashrath vs. Saroj, I (1989) DMC 222 MP.


2 Sabita Sahoo vs. Captain Khirod Kumar Sahoo, I (1991) DMC 307
Orissa.
3 Hukum Singh vs. Satya Bhama, II (1995) DMC 502 MP.
Interim maintenance—Inherent powers 129

pendente lite. Section 18 of the Act, under which the case of the plaintiff
in essence is based, only provides for maintenance to a Hindu wife,
subject however to the two exceptions, carved out in sub-section (3) of
section 18 of the Act, which extinguish the right of a Hindu wife to a
separate residence and maintenance. Provisions of Sub-section (1) of the
said section make it obligatory for the husband to maintain the wife
during her lifetime. Her claim to maintenance is not forfeited even if she
resides separately on account of any of the grounds mentioned in Sub-
section (2) of the said Section. In other words, the obligation to maintain
the wife would still remain on the husband even though the wife might
be living separately from the husband until it is proved that the wife is
residing separately from the husband not under any of the circumstances
enumerated under Sub-section (2) of the said Section or is unchaste or
has ceased to be a Hindu by conversion to another religion. 1
That being the position in law, when it is imperative for the
husband to maintain his wife, it does not stand to any reason that during
the pendency of the suit for grant of maintenance, which may take
decades to attain finality, the wife in the first instance be forced to face
starvation and then subsequently is granted maintenance from the date of
the filing of the suit, if she is fortunate enough to survive till then. I feel
that such a view will be against the very intent and spirit of section 18 of
the Act. Even though there is no specific provision in the Act for grant of
maintenance pendente lite, the Court is amply empowered to make such
orders as may be necessary in the ends of justice. It is a trite proposition
of law that a court empowered to grant a substantive relief is competent
to award it on interim basis as well, even though there is no express
provision in the Statute to grant it. Power to grant interim maintenance is
incidental and ancillary to the substantive relief of maintenance
envisaged in section 18 of the Act and if the ends of justice so warrant
the court is competent to grant it in a suit for maintenance. 2
In one case the petitioner had asked for permanent alimony under
Section 37 of the Act and in case she succeeded in getting the order of
judicial separation under Sections 22 and 23 of the Act in her favour and
against the respondent, she would be entitled to the grant of permanent
alimony. It was held that therefore, there should be left some security in
the form of immoveable properties or otherwise which should be

1 Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234:


1993 (3) AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547:
1993 RLR 69 (N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993
(3) RRR 577.
2 Neelam Malhotra vs. Rajinder Malhotra, ibid.
130 Law of Maintenance

sufficient and adequate enough for the grant of permanent alimony under
section 37 of the Act and that the house of husband can be adequate
security for the payment of permanent alimony to the petitioner in case it
is granted by the Court because every Court has inherent power to grant
relief during the pendency of the proceedings if the interest of justice so
requires. 1
In the case of Rama Chandra Behera and others v. Smt.
Snehalata Dei, 2 Orissa High Court held as under:
“……..We agree that there may be cases where taking the extra
ordinary aspects into consideration, the Court may proceed to
exercise inherent powers to grant interim relief. It is not
appropriate to set limitation on count’s inherent powers by
interim relief. It is not appropriate to set limitations on court’s
inherent power by indicating circumstances where it can be and
where it cannot be exercised……”
The power to make an interim order for maintenance pending an
application under Section 18 of the Act is implicit in the section. Such a
relief must be held to be ancillary and the power would be necessary
corollary to the power of the Court to entertain the application for
substantive relief. There have been a series of decision of this Court
taking the aforesaid view which in my opinion is also in consonance with
the spirit of the law. 3
However in a case involving Muslim Law it has been held that
the nature of the suit for restitution of conjugal rights is different from
the suit for maintenance which a Mohammedan is entitled to file under
the Mohammedan Law. There is also remedy to the wife to claim
maintenance under Section 125 of the Code of Criminal Procedure which
in fact the non-applicant/wife has resorted to. Therefore the Civil Court
had no jurisdiction to grant any interim relief by way of maintenance
pending the decision of the case. 4

Necessity of detailed enquiry


A detailed inquiry is not contemplated while deciding an
application for interim maintenance. Where the trial Court had gone into
details about the dispute between the parties and about the source of
income of both the parties, It was held that it had adopted a hyper-

1 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC 185
Del.
2 AIR 1977 Orissa 96.
3 Krushna Chandra Nanda vs. Manorama Devi, II (1986) DMC 114
Orissa.
4 Shabbir Ahmed Sheikh vs. Shakilabanu, II (1985) DMC 13.
Interim maintenance—Powers under Criminal Procedure Code, 1973 131

technical attitude by stating that the affidavit filed in support of the


interim application was not in first person but was in third person. It was
held further that the learned Additional Session Judge had, therefore,
rightly in interfered with the order and has assessed the grant of interim
maintenance by adopting the correct approach. The learned Additional
Session Judge had also observed that the application for interim
maintenance was supported by an affidavit though the affidavit was in
third person and not in first person but the husband has neither gives his
own affidavit not has filed affidavit of any other person to support his
contentions. Further It was held that in any case, it was not a fit case for
interference by the High Court. In the very nature of things an order of
interim maintenance has to be based on best judgment assessment and
the High Court cannot substituted its own assessment in place of the
assessment of the lower Courts unless such assessment is shown to be
perverse or based on no material at-all. 1

Need for liberal approach


Wife without paying any Court-fees or bearing out any expenses
of the litigation only on a simple application could have been granted the
maintenance under Section 125 of the Criminal Procedure Code by the
Criminal Court. It is also no more in dispute that pending decision of the
substantial application under Section 125 of Criminal Procedure Code,
the Court has all power to grant the interim maintenance to the wife also.
In the context of this legal position and keeping in view the benevolent
provisions of the maintenance to be granted to the wife, it was held that
the Court should have been liberal in their approach while dealing with
the application for grant of interim maintenance and should have made
justice-oriented efforts and the technicalities if any comes in their way to
grant interim maintenance, as it is sought to be raised by the husband
than those should have been excluded or given go-by in view of the
provisions as contained Article 21, Article 39-A of the Constitution as
well as the provisions as contained in the Act and Order 3 of the Civil
Procedure Code. 2

Powers under Criminal Procedure Code, 1973


There is no express provision in the Code which authorises a
Magistrate to make an interim order directing payment of maintenance
pending disposal of an application for maintenance. The Code does not
also expressly prohibit the making of such an order. In order to enjoy the

1 Purushottan vs. Jayanti Bai, I (1992) DMC 266 MP.


2 Amankumar Latibhai Parekh vs. Pritiben Amankumar Parekh, II
(2000) DMC 433 Gujarat.
132 Law of Maintenance

fruits of the proceedings under Section 125, the applicant should be alive
till the date of the final order and that the applicant can do in a large
number of cases only if an order for payment of interim maintenance is
passed by the Court. Every Court must be deemed to possess by
necessary intendment all such powers as are necessary to make its orders
effective. This principle is embodied in the maxim ‘ubi aliquid
conceditur, concidetur et id sine quo res ipsa esse non potest (Where
anything is conceded, there is conceded also anything without which the
thing itself cannot exist.) A contrary view is likely to result in grave
hardship to the applicant, who may have no means to subsist until the
final order is passed. There is no room for the apprehension that the
recognition of such implied power would lead to the passing of interim
orders in a large number of cases where the liability to pay maintenance
may not exist. It is quite possible that such contingency may arise in a
few cases but the prejudice caused thereby to the person against whom it
is made is minimal as it can be set right quickly after hearing both the
parties. The Magistrate may, however, insist upon an affidavit being
filed by or on behalf of the applicant concerned stating the grounds in
support of the claim for interim maintenance to satisfy himself that there
is a prima facie case for making such an order. If the allegations in the
application or the affidavit are not true, it is always open to the person
against whom such an order is made to show that the order is
unsustainable. Having regard to the nature of the jurisdiction exercised
by a Magistrate under Section 125 of the Code, it was held that the said
provision should be interpreted as conferring power by necessary
implication on the Magistrate to pass an order directing a person against
whom an application is made under it to pay a reasonable sum by way of
interim maintenance subject to the other conditions referred to the
pending final disposal of the application. 1
It is the duty of the Court to interpret the provisions in Chapter
IX of the Code in such a way that the construction placed on them would
not defeat the very object of the legislation. In the absence of any
express prohibition, it is appropriate to construe the provisions in
Chapter IX as conferring an implied power on the Magistrate to direct
the person against whom an application is made under Section 125 of the
Code to pay some reasonable sum by way of maintenance to the
applicant pending final disposal of the application. It is quite common

1 Savitri vs. Govind Singh Rawat, 1986 CrLJ 41: AIR 1986 SC 984:
1985(4) SCC 337: 1985 Supp (3) SCR 615: 1986 CAR 1: 1986 CrLR
(SC) 1: 1985 SCC (Cr) 556: 1986(1) Rec Cr R 83: 1985 BBCJ 160:
1985 Guj LJ 1184: 1 (1986) DMC 1: 1985 Mah. LJ 976: 1985(2)
Scale 697: 1986 Pat LJR (SC) 6.
Interim maintenance—Powers under Criminal Procedure Code, 1973 133

that applications made under Section 125 of the Code also take several
months for being disposed of finally. In order to enjoy the fruits of the
proceedings under Section 125, the applicant should be alive till the date
of the final order and that the applicant can do in a large number of cases
only if an order for payment of interim maintenance is passed by the
Court. Every Court must be deemed to possess by necessary intendment
all such powers as are necessary to make its orders effective. This
principle is embodied in the maxim ‘ubi aliquid conceditur, concediture
et id sine quo res ipsa esse non potest (Where anything is conceded,
there is conceded also anything without which the thing itself cannot
exist. A contrary view is likely to result in grave hardship to the
applicant, who may have no means to subsist until the final order is
passed. There is no room for the apprehension that the recognition of
such implied power would lead to the passing of interim orders in a large
number of cases where the liability to pay maintenance may not exist. It
is quite possible that such contingency may arise in a few cases but the
prejudice caused thereby to the person against whom it is made is
minimal as it can be set right quickly after hearing both the parties. The
Magistrate may, however, insist upon an affidavit being filed by or on
behalf of the applicant concerned stating the grounds in support of the
claim for interim maintenance to satisfy himself that there is a prima
facie case for making such an order. Such an order may also be made in
an appropriate case ex parte pending service of notice of the application
subject to any modification or even an order of cancellation that may be
passed after the respondent is heard. If a civil court can pass such interim
orders on affidavits, there is no reason why a Magistrate should not rely
on them for the purpose of issuing directions regarding payment of
interim maintenance. The affidavit may be treated as supplying prima
facie proof of the case of the applicant. If the allegations in the
application or the affidavit are not true, it is always open to the person
against whom such an order is made to show that the order is
unsustainable. 1
A bare perusal of the provision of Section 125 Criminal
Procedure Code spells out that there is no specific provision for
awarding interim maintenance pendente lite. However, the Court, under
the facts and circumstances of the case, is not lagging behind in suitable
cases to pass such an order keeping in view the object of Section 125

1 Savitri vs. Govind Singh Rawat, 1986 CrLJ 41: AIR 1986 SC 984:
1985(4) SCC 337: 1985 Supp (3) SCR 615: 1986 CAR 1: 1986 CrLR
(SC) 1: 1985 SCC (Cr) 556: 1986(1) Rec Cr R 83: 1985 BBCJ 160:
1985 Guj LJ 1184: 1 (1986) DMC 1: 1985 Mah. LJ 976: 1985(2)
Scale 697: 1986 Pat LJR (SC) 6.
134 Law of Maintenance

Criminal Procedure Code that the proceedings for maintenance under


Section 125 Criminal Procedure Code are to prevent vagrancy by
compelling a person to support his wife, children or parents as the case
may be. 1

Pauper wife
When wife is declared to be pauper by the court but maintenance
denied, such order is patently inconsistent and wife entitled to
maintenance. 2

Power under Section 151 Civil Procedure Code


The nature of the suit for restitution of conjugal rights is different
from the suit for maintenance which a Mohammedan is entitled to file
under the Mohammedan Law. There is also remedy to the wife to claim
maintenance under Section 125 of the Code of Criminal Procedure which
in fact the non-applicant/wife has resorted to. Therefore the Civil Court
had no jurisdiction to grant any interim relief by way of maintenance
pending the decision of the case. 3

Power under Hindu Marriage Act, 1955


No doubt Section 24 unlike Section 26 does not expressly provide
that the Court may pass orders for interim maintenance/expenses of the
proceeding from time to time. But there is no express or implied bar in
the provision for exercise of such jurisdiction in a deserving case.
Therefore, it will neither be legal nor just and proper to limit the wide
discretionary power conferred on the Court by holding that the Court has
no power to modify or vary its order awarding interim maintenance even
on proof of changed circumstances. 4

Quantum
Where the High Court fixed up a sum of Rs. 3,500/- and It was
held that that it is far too low. The wife had claimed that at least a sum
of Rs. 10,000/- should be granted by way of interim maintenance as she
had not only to maintain herself but to bring up the only child in the
standard in which child of a D.I.G. has to be brought up. The husband
submitted that the entire amount which he gets is by way of salary only
and the take of amount cannot exceed Rs. 16,000/-. This was disputed by

1 Hemlata vs. Ram Nihore, I (1991) DMC 546 MP.


2 Lata alias Hemlata vs. Civil Judge, Bulandshahr, AIR 1993 All 133:
1993 All LJ 510: 1992 All CJ 933: 1992 All WC 1878.
3 Shabbir Ahmed Sheikh vs. Shakilabanu, II (1985) DMC 13.
4 Laxmi Priya Rout vs. Kama Prasad Rout, II (1991) DMC 491
Orissa.
Interim maintenance—Scope of adjudication 135

saying that the respondent is getting other income by way of house rent,
etc. In this background the Supreme Court permitted the wife to prove
all such facts for a decision at the final stage when the Court will be in a
position to fix the sum which in the circumstances be reasonable to be
given by way of maintenance to the wife/appellant and the child. But at
this stage the Supreme Court deemed it sufficient to fix a sum of
Rs. 6,000/- as interim maintenance in place of Rs. 3,500/-. This
enhancement will work from 1 st July, 2000. It was however made clear
that the High Court shall not in any way be influenced by that amount in
fixation in the sum at the final stage as the Supreme court was not fully
in possession of the materials and the documents to ascertain the exact
amount of income of the respondent. Hence, when final amount is fixed
the High Court will certainly look into the other aspects of the matter. 1

Scope of adjudication
The appellant filed a petition for judicial separation and other
reliefs. In the said petition, the appellant claimed interim maintenance.
The Family Court partly allowed the application to the extent of the
claim of interim maintenance in respect of the two minors daughter. As a
counter-blast the respondent filed a petition in the Family Court for
declaration that the marriage with the appellant was nullity. Both the
petitions— one filed by the appellant and the other by the respondent
were yet to be decided on merits by the Family Court. Under the
circumstances, it was held that it was not appropriate for the High Court
to record any concluded opinion about the legal position of the marriage
between both the parties. 2
In a case under Section 125, Criminal Procedure Code it was held
that the Trial Court is to take prima facie views of the mater and it is not
necessary for the Court to go into the matrimonial dispute between the
parties in detail. 3

1 Shivani Chattopadhyaya vs. Siddarth Chattopadhyaya, I (2001)


DMC 57 Supreme Court.
2 Madhavi Ramesh Dudani vs. Ramesh Dudani, I (2000) DMC 692
Supreme Court.
3 Jagdish Kuar @ Rama vs. Vijay Kumar, I (2000) DMC 703 P&H.
136 Law of Maintenance

Chapter 4
Disabilities depriving
maintenance
SYNOPSIS
Introduction....................................136 Legitimacy of child ........................ 163
Abandonment of claim ...................137 Living in adultery .......................... 165
Adultery ..........................................137 Living separate by mutual consent 166
Agreement to live separately ..........142 Living with father .......................... 167
Annulment of marriage ..................142 Maintenance by others .................. 167
Cancellation ...................................143 Necessity of consummation of marriage
Co-habitation by divorced wife ......143 ....................................................... 168
Conduct of wife ..............................144 Nullity marriage ............................ 168
Consent to live separately ..............147 Ornaments ..................................... 169
Decree for restitution of conjugal rights Ownership of property................... 169
.......................................................147 Paternity of child ........................... 170
Demand of separate residence .......150 Pre-existing order.......................... 170
Dependence on parents ..................150 Prior marriage .............................. 170
Dependence on parties ...................150 Proof of divorce ............................. 170
Dispute about validity of marriage 151 Proof of marriage .......................... 171
Divorced wife .................................152 Refusal to co-habit......................... 174
Earning wife ...................................154 Restitution of conjugar rights ........ 147
Effect of caste .................................154 Right over property ....................... 184
Explanation for living separately...155 Second marriage............................ 184
Fixed properties .............................155 Second wife .................................... 190
Illegitimate child ............................156 Sufficient income ........................... 191
Illegitimate wife .............................156 Temporary Employment ................ 191
Independent income of wife ...........157 Unproved illicit relation ................ 192
Inherited fixed assets......................159 Unreasonably attitude ................... 193
Invalid marriage ............................160 Validity of marriage ...................... 193
Justification to live separately .......161 Working wife.................................. 200

Introduction
Different provisions of the various Acts governing personal laws
provide for maintenance pendente lite as also permanent maintenance or
alimony. These provisions refer to various factors, which have to be
Disabilities depriving maintenance—Adultery 137

considered by the courts. Some of these factors are the income, status
and conduct of the parties. These factors as interpreted by court as also
section 18 of Hindu Adoptions & Maintenance Act, 1956 lays down the
circumstances in which the spouse shall not be entitled to maintenance.
This chapter deals with such disabilities, which affect the grant of
maintenance.

Abandonment of claim
Simply because the wife has not claimed maintenance for a long
period, it does not mean that she has completely abandoned her right or
voluntarily given up her right to claim maintenance. In her application
she pleaded that she has no other source of income and she is unable to
maintain herself. She might be living with her parents to the utter
humiliation of other ladies and without any courtesy and respect which a
daughter is entitled to in her parental house if she is living quite happily
and peacefully with the husband, with the only fond of reunion. But
when all her hopes are shattered away, and when there is no other source
of income and when she feels herself burdensome to her parents or
brothers, she has approached the Court claiming maintenance. Apart
from that, Section 125 Criminal Procedure Code has not restricted the
period of limitation to claim maintenance. When the statute has not
prohibited any wife to claim maintenance with any period of limitation,
the petitioner is not entitled to plead that she has waived her right to
claim maintenance due to the long lapse of 10 or 12 years after she left
his house. Due to the changed circumstances in her parents house, her
parents may not be willing to maintain her and they may not be in a
position to maintain her since other children have grown up and some
other problems might have cropped up in her family. Under these
circumstances, the petitioner is not entitled to raise the plea that the
respondent has waived her right to claim maintenance after a long lapse
of 12 years. 1

Adultery
The word “adultery” has been considered in many decisions since
a century. The words “is living in adultery” in Sub-section (4) of Section
125 Criminal Procedure Code would not take into their fold stray
instance of lapses from virtue, it would not also mean that the wife
should be living in adultery on the date of the petition. The proper
interpretation would be that there should be proof of adulterous living
shortly before or after the petition, shortly being interpreted in a
reasonable manner viewing it in the light of the face of the case.

1 Golla Seetharamulu vs. Golla Rathanamma, II (1990) DMC 257 AP.


138 Law of Maintenance

Kanaasami Pillai v. Murugamal, 1 suit was filed in 1887 by a


Hindu wife against her husband and a decree for maintenance was
obtained and the judgment-debtor sued to have the decree set aside,
alleging that his wife had since committed adultery and given birth to an
illegitimate child. The wife denied adultery and stated that her husband
had become reconciled to her and that the child was legitimate. But is
was found that the case of the judgment-debtor was established and that
defendant’s misconduct had been recent, open and continuous. In those
circumstances the court set aside the decree passed in the previous suit
granting maintenance and held that the defendant was not entitled even
to a bare maintenance.
In Kista Pilia v. Amirthammal, 2 Panduranga Row, J., observed
thus:
“Emphasis no doubt to be laid on the words ‘living in adultery’.
in other words, as was pointed out by the Bombay high court in re
Fulchand Maganlal AIR 1928 (52) Bombay. 160 the clear
implication from the words used by the legislature in this section
(section 488 of the old criminal procedure code) is that, unless
the wife is actually living in adultery at or about the time of the
application, she is not disentitled to obtain maintenance. it is
nowhere said in the section, and there is no need to introduce
additional words therein, that living in adultery must be in the
house of adulterer. the words “living in adultery” are, in my
opinion, merely indicative of the principle that occasional lapses
from virtue are not a sufficient reason for refusing maintenance.
continued adulterous conduct is what is meant by “living in
adultery”. the question, therefore, for the magistrate to decide in
this case was whether there had been such adulterous conduct on
the part of the petitioner at or about the time of the application,
that is to say, shortly before or shortly after the application was
made, interpreting the word ‘shortly’ in a reasonable
manner……… my opinion is that in a case of claim for
maintenance like this, the “respondent (husband)” who puts
forward a charge of “living in adultery” against the petitioner
(wife) as his only defence to the claim for maintenance, ought to
begin his case, and the petitioner against whom the charge is
made ought to have been an opportunity of adducing rebutting
evidence.”
In M.A. Mya Khin v. N.N. Godenho, 3 it was held that words
“living in adultery” in Section 488(5) denoted a continuous course of
conduct and not isolated acts of immorality. One or two lapses from

1 1896 ILR 19 Madras 6.


2 1938 Madras Weekly Notes (Crl.) 145
3 AIR 1936 Rangon 446.
Disabilities depriving maintenance—Adultery 139

virtue could be acts of adultery, but would be quite insufficient to show


that the woman was living in adultery, which means that she must be
living in the state of quasi-permanent union with the man with whom she
is committing adultery. Further, it has been pointed out that there is a
great distinction between the words ‘committing adultery’ and ‘living in
adultery’ and that the ratio is that a solitary lapse from virtue, as
distinguished from contumacious immoral conduct, should not be a
ground for denying maintenance. The same court in M.A. Thein v. Maung
Mya Khin, 1 observed that the phrase “living in adultery” refers to course
of guilty conduct and not a single lapse from virtue. It was held that the
fact(herein) that a child was begotten when the husband could not get
access to the wife showed that the wife must have been guilty of adultery
on more than one occasion and therefore she was not entitled to
maintenance, apparently on the presumption that it is extremely rare that
conception happens after one solitary intercourse.
Ramaswami, J. in M. Kanniappan v. Akilandammal, 2 observed
that occasional lapses from virtue are not a sufficient reason for refusing
maintenance and that the continuous adulterous conduct at or about the
time of the application is what is meant by “living in adultery” and the
court may in its discretion refuse to grant the allowance in cases where,
apart from the fact that living in adultery in the sense of a course of
continuous adulterous conduct has not been proved, there may exist
circumstances which would justify such refusal. Regarding the
interpretation of the term “living in adultery”, after referring to the
various decisions, the learned Judge observed as follows:
“On as analysis of the case-law and the proposition deducible
there from, the conclusion of the learned Chief Presidency
Magistrate granting maintenance on the ground that though and
adulterous conduct on the part of the petitioner has been proved,
it has not been further proved that she was living in adultery at
the time of the petition, cannot be upheld.”
Pursuant to the above observation, the learned Judge set aside the
finding of the Magistrate and ordered for a further enquiry since the
parties in that case had not come to grips on the point which should not
be proved and rebutted in regard to the award of and withholding of
maintenance and since they might also like to adduce further evidence in
support of their respective contentions. 3

1 AIR 1937 Rangoon 67.


2 1953 Madras Weekly Notes (Crl). 48.
3 M. Kanniappan v. Akilandammal, 1953 Madras Weekly Notes (Crl).
48.
140 Law of Maintenance

In S.S. Manickam v. Arputha Bhavani Rajan, 1 the facts were: the


wife was living in adultery with her husband’s brother. Many letters
written by the wife to her paramour were marked. One of the letters
disclosed that she conceived through R.W.2 which had resulted in the
birth of her second child, now alive. The learned Judge observed that the
temporary cessation of relationship between the respondent and her
paramour cannot be said to be due to the fact that the respondent has
returned to a life of purity or that she has turned a new virtuous life……
Further more, there was no evidence that she ever repented or attempted
to obtain any pardon from her husband. It was finally concluded by
observing that the petitioner had established that the respondent was
leading a continuous adulterous life and also was living in such adultery
even at or about the filing of the application for maintenance. It is not
necessary that the wife should live in adultery as on the date of the
petition. It is the evidence as a whole that has to be taken into
consideration.
In Mariyumma v. Mohd. Ibrahim, 2 it was observed:
“Section 125(1) of the new Code obliges a person who refuses or
neglects to maintain a woman who has his wife and who had been
divorced to maintain her if she is unable to maintain herself. Such
obligation is to last unless she remarries. The scope of the term
“wife” is enlarged to take in the case of such a woman and this is
by Explanation (b) to Section 125(1). Explanation (b) to that Sub-
section reads thus:
“Explanation:— For the purposes of this Chapter:—
(a) ……………………
(b) “wife” includes a woman who has been divorced by, has
or obtained a divorce from , her husband and has not
remarried.
The effect of the Explanation is evidently to read the term ‘wife’
in Chapter IX of the Code as meaning not only the wife as
generally understood but also a woman who has been divorced
but who has not remarried. In may be noticed that Section 125(1)
deals with the obligation of a “person” and not of a husband or of
a father or of a son. The scope of the Explanation is not to create
a jural relationship between the divorced woman and the
erstwhile husband. No new obligation outside the scope of the
Code is sought to be imposed either on the divorced woman or
her erstwhile husband by reason of the Explanation. The object of
the Explanation is only to enable such a divorced woman to claim
maintenance from her erstwhile husband until her re-marriage.
The very object of the provision in Section 125 of the Code is to

1 1980 Crl.LJ. 354.


2 AIR 1978 Ker. 231.
Disabilities depriving maintenance—Adultery 141

provide for a minimum obligation on the part of a person to


maintain his wife, children, parents and his divorced wife who is
not remarried under certain circumstances.”
A woman whose martial tie does not subsist cannot be guilty of
adultery much less can she be said to be living in adultery. She may live
a promiscuous life, but that would not render her guilty of adultery, for
‘adultery’ is a term that denotes an offences against the institution of
marriage. It is only under the inclusive definition of “wife” in Section
125(4) the divorce is entitled to claim. When the “wife” includes
“woman” who has been divorced, the incidents that accrued to the term
“wife” also must follow. A divorcee cannot take advantage of the
inclusive definition of “wife” and can claim maintenance even though
she was living in adulteries after the divorce to the knowledge of on and
all. The other incidents and the liabilities that have to be attached to the
term “wife” shall also follow in the event of claiming maintenance from
her former husband. A divorcee cannot commit an offence of adultery as
such, but if we take into consideration the inclusive definition and if we
give her the status of wife for the limited purpose of claim. There is no
difficulty to extend the same analogy to the offence that has been
committed by her which may attract the ingredients of adultery, if she
was not divorced. If the divorcee has to be treated as a wife, her living in
adultery after the divorce also has to be taken into account. There need
not be a specific provision that the divorcee is not entitled for
maintenance, is she lives in adultery. What considerations have to be
taken into account by applying Section 125, 126 and 127, Criminal
Procedure Code with regard to wife also, have to be applied in the case
of a wife who claims the benefit or the advantage that accrued to her
after the divorce, by virtue of Explanation (b) to Section 125, Criminal
Procedure Code. When the inclusive definition is there and the right to
claim arose under the inclusive definition and the wife claimed right on
that basis, the offences which she committed will generally fall if she
was treated as a wife also have to be taken into consideration. 1
If the wife was living in adultery and continues to live in adultery
even after the divorce, she is not entitled to claim maintenance on the
ground that she has not remarried. The legislature never contemplated
that what normally a wife is not entitled, would be given to the divorce
the benefit under the provision of Section 125, Criminal Procedure Code.
If a divorcee who is leading a promiscuous life approaches the court for
maintenance, she is not entitled for maintenance on the basis of the
inclusive definition of “wife”. What normally could not have been

1 Y. Mqanagtayru vs. Y. Seshawataram, I (1989) DMC 407 AP.


142 Law of Maintenance

granted in the normal course to a wife, could not be expected to be


granted to a divorced wife in whose favour a limited benefit has been
conferred under the inclusive definition of Section 125 Explanation (1)
(b) of the Criminal Procedure Code. 1

Agreement to live separately


In one case the wife had launched the criminal prosecution
against the husband for the offence of bigamy. That case was dismissed
as she could not produce evidence. Thereafter the husband filed a
petition for dissolution of marriage alleging unchastely to the wife shows
that she was subjected to cruelty. Having alleged unchastely to the wife,
he failed to substantiate that ground. It was held that even assuming that
the finding of the Civil Court is binding, the finding is that the wife had
deserted the husband for more than three years prior to the presentation
of the petition in pursuance of an agreement, with her consent, that may
be a ground for dissolution of marriage, but does not afford a ground for
refusing award of payment of maintenance to the wife from the date of
the petition. The act of living separately is not by mutual consent when
as per agreement, the mutual consent is only for taking divorce. In the
absence of any allegation that the wife had means to maintain herself, it
was held that the liability of the husband to maintain the wife is not
discharged. 2
Refusal by the Courts to entertain the application of the applicant
on the ground that she had accepted a sum of Rs. 1500/- as full and final
settlement of her claims cannot be upheld. 3

Annulment of marriage
The right of the wife to maintenance depends upon the
continuance of her marriage status and once the status of husband and
wife is declared to be null and void, the effect would be the same as in
the case of void marriage under Section 11 of the Act. The legislature
has given the benefit of the provisions of Section 125 Cr. P.C. to a
divorced woman as long as she did not remarry by including Clause (b)
of the Explanation, but, not such provision has been brought in so as to
apply in the case where the marriage is declared null and void. The
legislature decided to bestow the benefit of the section on a illegitimate
child by express words, but, none are found to apply to a de facto wife
where the marriage is void, ab initio or voidable and declared void by a
decree of nullity. The benefit of maintenance under Sub-section (1)(a) is

1 Y. Mqanagtayru vs. Y. Seshawataram, I (1989) DMC 407 AP.


2 K. Ramakrishna Reddy vs. T. Jayamma, I (1992) DMC 146 AP.
3 Molyabai vs. Vishram Singh, II (1992) DMC 33 MP.
Disabilities depriving maintenance—Co-habitation by divorced wife 143

available only if the applicant is the wife of the person concerned.


Therefore It was held that the distinction drawn by the learned
Magistrate that the marriage in the instant case being voidable, the wife
was entitled to get the maintenance even after the decree of nullity was
wholly erroneous in law. He should have given the effect to the decision
of the Civil Court and on the basis of that, the proper course was to
cancel the order of maintenance. 1

Cancellation
The order of cancellation under Sub-section (2) of the Section
127 Cr. P.C. normally is effective prospectively. The language of Sub-
section (2) of Section 127 empowers the Magistrate to cancel or vary the
order according to the decision of the competent Civil Court and till then
the order passed by him remains effective. So far the language used in
the provision, was stated that the order that may be passed under Sub-
section (2) of Section 127 shall be prospective in operation. 2

Co-habitation by divorced wife


The normal rule for a wife is to live with the husband. It is the
husband’s right to have her company and, therefore, a corresponding
liability of the wife to fulfil that obligation. This also is confined to a
wife properly so-called, but in the case of a divorced wife, this normal
assumption can never be invoked. She, from the very nature of severance
of the bonds of marriage, expected to live separately and the question of
consent or no consent in the matter of separate residence does not stand
envisaged or conceived. 3
While making provision for this third part of sub-section (4), the
Legislature was carving out an exception to the normal situation. It,
therefore, provides that a wife who is normally expected to stay with the
husband under the common roof and thereafter claim maintenance will
not be entitled to claim maintenance if the common roof is not shared by
them because of their mutual under standing or contract or consent. To
me it appears that like the second part of sub-sec. (4), this third part is
also confined to the wife proper and not to a divorced wife. The third
part pre-supposes as a necessary condition the normal situation of
cohabitation between the male and the female, who are tied together by
marital bonds. While dealing with an exceptional special situation the
Legislature provides that if this normal cohabitation is avoided by
mutual consent, then that mutual consent will go to rob the woman of her

1 Madan vs. State of Rajasthan, I (1993) DMC 71 Raj.


2 Madan vs. State of Rajasthan, ibid.
3 Natvarlal Jekisandas vs. Bai Girja, I (1984) DMC 160
144 Law of Maintenance

normal right of maintenance provided for and protected by sub-sec. (1)


of Section 125 of the Code. This is the inevitable interpretation of the
third part of sub-section (4) of Section 125. 1
Part 3 of sub-sec. (4) of Section 125, namely, “if they are living
separately by mutual consent” is confined to the case of a wife proper,
and her husband and it has no application to the case of a divorced wife
vis-à-vis her ex-husband. 2
The Code is complete on the topic and any defence against an
order passed under Section 125, Cr.P.C. must be founded on a provision
in the Code. Section 125 is a provision to protect the weaker of the two
parties, namely, the neglected wife. If an order for maintenance has been
made against the deserter it will operate until vacated or altered in terms
of the provisions of the Code itself. If the husband has a case under
Section 125(4), (5) or Section 127 of the Code it is open to him to
initiate appropriate proceedings. But until the original order for
maintenance is modified or cancelled by a higher court or is varied or
vacated in terms of Sections 125(4) or (5) or Section 127, its validity
survives. It is enforceable and no plea that there has been cohabitation in
the interregnum or that there has been a compromise between the parties
can hold good as a valid defence. A statutory order can ordinarily be
demolished only in terms of the statute. That being absent in the present
case the Magistrate will execute the order for maintenance. 3

Conduct of wife
In England in one case a question arose in regard to section
3(1)(g) of the Domestic Proceedings and Magistrates’ Court Act 1978
which contained a provision which, although differently worded was of
the same effect. This provision provided the following as one of the
matters to be taken into consideration:
‘any other matter which in the circumstances of the case the court
may consider relevant, including, so far as it is just to take it into
account, the conduct of each of the parties in relation to the
marriage’.
In Wachtel v. Wachtel, 4 Ormord, J. said:

1 Natvarlal Jekisandas vs. Bai Girja, I (1984) DMC 160


2 Natvarlal Jekisandas vs. Bai Girja, ibid.
3 Bhupinder Singh vs. Daljit Kaur, 1979 CrLJ 198: AIR 1979 SC
442: 1979 SCC (Cr) 302: 1979 CAR 55: 1979 CrLR (SC) 377:
1979(1) APLJ 31
4 (1973) 1 All ER 113 at 119.
Disabilities depriving maintenance—Conduct of wife 145

“The court can only approach this issue in a broad way. It


should bear in mind the new basis of divorce which recognises
that, generally speaking, the cause of breakdown are complex
and rarely to be found wholly or mainly on one side, and that
the forensic process is not well adapted to fine assessments or
evaluations of behaviour, and that it is not only conduct in
relation to the breakdown which may have to be considered.
Conduct subsequent to the separation by either spouse may
affect the discretion of the court in many ways, e.g. the
appearance of signs of financial recklessness in the husband or
of some form of socially unacceptable behaviour by the wife
which would suggest to a reasonable person that in justice some
modification to the order ought to be made. In my experience,
however, conduct in these cases usually proves to be marginal
issue which exerts little effect on the ultimate result unless it is
such both obvious and gross.”
In delivering the judgment of the Court of Appeal in the same
case Lord Denning MR, picking up the words of Ormord J. 1, said:
‘There will be many cases in which a wife (although once
considered guilty or blameworthy) will have cared for the home
and looked after the family for very many years. is she to be
deprived of the benefit otherwise to be accorded to her by Section
5(1)(f) because she may share responsibility for the breakdown
with her husband ? There will no doubt be a residue of cases
where the conduct of one of the parties is in the judge’s words
(1973) 1 All ER 113 at 119, “both obvious and gross”, so much
so that to order one party to support another whose conduct falls
into this category is repugnant to anyone’s sense of justice. In
such a case the court remains free to decline to afford financial
support or to reduce the support which it would otherwise have
ordered. But, short of cases falling into this category, the court
should not reduce its order for financial provisions merely
because of what was formerly regarded as guilt or blame.’
In Armstrong v. Armstrong,2 a decision of the Court of Appeal, which
was cited by Wood J in Kohosinski v. Kokosinski,3 Buckley LJ said:
‘The expression “obvious and gross”, as I ventured to say in the
course of the argument, obviously is not a definitive expression.
The Court of Appeal there, I think, indicated clearly what they
had in mind by the use of those words, which they borrowed from
the judgment of Ormrod (in Wachtel) which was there under
appeal. They said in the judgment of the court that it was not
right for a court before whom an application came under Section
4 of the Matrimonial Proceedings and Property Act, 1970 to

1 (1973) 1 All ER 829 at 835-836


2 (1974) 118 SJ 579.
3 (1980) 1 All ER 1106 at 1116.
146 Law of Maintenance

conduct a post-mortem into the matrimonial affairs of the parties;


but that, if the conduct known to the court was such that it would
be repugnant to anyone’s sense of justice to say that it ought not
to be taken into account in considering what financial provision
should be made by one party for another, it was proper that it
should be taken into account.’
Stephenson LJ., in the course of is judgement said:
‘On the first point as to the wife’s conduct, bearing in mind what
was said by Ormrod J and by Lord Denning MR in giving the
judgment of this court in Wachtel v. Wachtel, 1 and what was said
by Cairns and Roskill JJ in Harnett v. Harnett, 2 the question we
have to ask ourselves seems to me to be: Would it offend a
reasonable man’s sense of justice that this wife’s conduct should
be left out of account in awarding her maintenance by a lump sum
out of the proceeds of this sale and that it should have no effect
on the financial provision which the husband ought to be ordered
to pay her ? Would it be inequitable or unjust to disregard her
conduct?”
The trial Judge had found that by far the greater burden of
responsibility for the failure to start the marriage was on the wife, but
decided that the conduct did not quite reach the pitch which would
render it within the description in Wachtel v. Wachtel. On appeal Sir
John Pennycuick 3 held:
‘I do not think the Judge was right when he held that the wife’s
conduct in this matter, as he found it as a fact, was not obvious
and gross misconduct in relation to this marriage. I find it
difficult to think of any conduct more gross than totally to fail to
set up any married life at all where it is not fault of anyone else,
but for the reasons which the judge held to be predominantly her
own fault. It seems to me that that was a gross and obvious
misconduct and once that is accepted then the whole attack on the
judge’s conclusion goes, though he may not have reached that
conclusion be quite the right route. I suspect that the word
“gross” has given rise to some misunderstanding in this
connection, and that the word “gross” has been given an
imputation of moral blame. In fact, I do not think the word
“gross” really carries any sort of moral judgment. It means I think
no more than “of the greatest importance.”
Section 3 of the 1978 Act was concerned with the exercise of
discretion, and once it is established that the facts are such that the case
is capable of coming within the test set out in the cases above, the

1 (1973) 1 All ER 829.


2 (1974) 1 All ER 764.
3 Seee (1977) 2 All ER 705 at 711
Disabilities depriving maintenance—Restitution of conjugal rights 147

appellate court should not interfere with the discretion of the magistrate
unless it is clearly satisfied that they were wrong. 1

Consent to live separately


Right granted to the wife and children for maintenance under
Section 125, Criminal Procedure Code is very serious and valuable right.
There must be cogent evidence to show that this right had been given up
by the wife or the child’s mother as the case may be. Husband has not
stated about the differences between them which had made their living
together impossible and therefore, document cannot be viewed as
operating as mutual consent between them for their living separate. 2

Restitution of conjugal rights


It is not expected, either by construction of the decree or
according to custom generally prevalent among the Hindu that the wife
herself would go and report to her husband at his house for restitution of
conjugal right. The was, therefore, under legal obligation to take back
the plaintiff as he was guilty of the withdrawing himself from the society
of the plaintiff for which a decree for restitution of conjugal rights has
been passed against him. 3 In this case instead of making any effect to
obey the decree it appeared that the advocate for the defendant filed
hazira in Court and on that date the Court passed an order that the
present plaintiff did not turn up and therefore, she may execute a decree
if she so likes. It was held that the oral evidence adduced on behalf of
the defendant does not prove that there was any bona fide attempt by the
defendant to bring the plaintiff to his house. The conduct of the
defendant, therefore, amounts to abandoning the plaintiff without
reasonable cause and against her will. In this view of the matter the wife
is entitled to claim maintenance from the defendant. 4
The conduct of the parties would always be relevant in such cases
because the rights and obligations of the parties to a marriage are mutual
and reciprocal and where a party claims the right of maintenance, it is
expected to discharge his or her martial obligations in a proper manner.
A decree for restitution of conjugal rights against the petitioner may be a
circumstance enabling the Court to judge the conduct of the parties, but
there is no authority for the proposition that such a decree against the

1 Robinson vs. Robinson, 1 All ER 391 (CA): (1983) II DMC (BJ) 33.
2 Harvinder Kaur vs. Paramjit Singh, 1999(1) HLR 260 P&H.
3 Laxmi Sahunai vs. Maheswar Sahu, AIR 1985 Orissa 11: (1984) 1
Orissa LR 518: (1985) 2 DMC 176.
4 Laxmi Sahunai vs. Maheswar Sahu, ibid.
148 Law of Maintenance

petitioner would be a complete bar to his or her claim for permanent


alimony or maintenance. 1
The matter was considered by Balraj Tuli, J. as far back as 1974
in Atma Ram Sharma v. Manjit Rani alias Ram Murti 2 and it was held
that when there was a decree for restitution of conjugal rights passed by
a Civil Court in favour of a person against his wife which was not being
complied with, the wife could not apply to the Magistrate for the grant of
maintenance under Section 488 of Criminal Procedure Code (old Code).
The Magistrate was not justified in granting maintenance allowance.
Similar view was taken by K.S. Tiwana, J. in Surjit Singh v. Gurmel
Kaur and others, 3 and Joginder Singh v. Dalbir Kaur alias Balbir Kaur. 4
Therefore ihas been held that the wife could not be allowed maintenance
under Section 125 of the Code of Criminal Procedure for the simple
reason that a decree for conjugal rights was passed against her which was
not being complied with. 5
A wife, who during subsistence of marriage is disentitled to claim
maintenance because of a decree for restitution of conjugal right on the
ground of desertion against her, commits a wrong if she refuses to
comply with the decree and, therefore, if after the dissolution of
marriage because of her not complying with the decree for restitution of
conjugal rights, she is allowed to claim maintenance, it would
tantamount to allowing her to take advantage of her own wrong which
law has always viewed with disfavour. It is no doubt true that the benign
provisions of Section 125 Criminal Procedure Code was enacted to
ameliorate the economic condition of neglected and discarded wives and
the object was to prevent destitution and vagrancy. But if in spite of such
statutory object, the claim of the wife for maintenance during subsistence
of marriage can be defeated on the basis of a decree for restitution of
conjugal rights on the ground of desertion, it does not stand to reason
that she should be allowed to claim maintenance after the marriage is
dissolved because of her flouting the decree for restitution of conjugal
rights passed against her. 6
Another view is that even if decree for restitution of conjugal
rights is not obeyed wife cannot be deprived of the maintenance

1 Ram Piari vs. Piara Lal P.C.S. Divisional Agriculture Officer,


Patiala, AIR 1970 P&H 341: 1969 Cur LJ 959.
2 1974 Chandigrah Law Reporter 217
3 1977 PLJ 293.
4 1980 PLR 665.
5 Piara Singh vs. Satwant Kaur, I (1989) DMC 472 P&H.
6 Rabindra Nath Roy; In re:, II (1995) DMC 91 Calcutta.
Disabilities depriving maintenance—Demand of separate residence 149

allowance. When these points were not considered such decision 1 is


distinguishable. In this case it was not apparent from the material placed
on record that after obtaining decree of restitution of conjugal rights, the
revisionist moved any execution application for getting it executed. The
appeal was dismissed and more than 20 months had passed but it did not
appear that any step had been taken for getting it executed. In these
circumstances it was held that it may be that decree for restitution of
conjugal rights was obtained only with a view to deprive the wife from
maintenance allowance to which she may be entitled. 2
In Sharadchandra Satbhal vs. Indubal Satbhal, 3 a Division Bench
held that where on a petition by the husband for judicial separation under
Section 10 of the Hindu Marriage Act on the ground that the wife had
deserted the petitioner a decree for judicial separation is passed, the wife
is not entitled to claim maintenance under Section 125 of the Criminal
Procedure Code. When the Civil Court has determined the issue of
desertion and held that the wife has left her husband without reasonable
cause and against his wish and without his consent, it is plain and simple
that she has refused to live with her husband without any sufficient
reason, and therefore, the wife is not entitled to receive maintenance
under Section 125. The fact that a decree for judicial separation has been
passed in favour of the husband on the ground of desertion means that
the wife is guilty of refusing to live with her husband.
In another case the decree of divorce was obtained by the
husband during the pendency of proceedings. On the date on which the
application under Section 125 of the Criminal Procedure Code was made,
the position that there was no refusal and neglect to maintain the wife on
account of wife’s deserting the husband has been concluded by the
decree for restitution of conjugal rights. Once one of the essential
ingredients to be established under Section 125(1) was not shown to
exist, the respondent could not have continued these proceedings. 4

Demand of separate residence


In this case the submission was that a wife is entitled to demand
her husband to provide a separate residence where both of them (and

1 1986 A.W.C. 398


2 Charan Singh vs. Jaya Wati, I (1996) DMC 169 All.
3 1978 Mh. LJ 123.
4 Kalidas vs. Parvatibai, I (1985) DMC 511 Bombay; Rahimbi vs.
Mohammed Rahimkhan, II (1985) DMC 56 Bombay: Ramesh
Chandra Mishra vs. Kanchan Bala Mishra, II (1986) DMC 362
Orissa: Sukhminder Kaur vs. Sadhu Singh, I (1984) DMC 354
P&H.
150 Law of Maintenance

they alone) could live together and bring up a family of their own. No
doubt that may be an ideal condition, but is one not always feasible and
very often impossible, especially when the husband is not financially
well off and has to look after his aged parents. Times are yet to come in
our country when aged parents could be shoved off to infirmaries, be it
that such days are signs of progress as some claim to be of retrogression
as some other view it. In proceedings for the restitution conjugal rights,
courts are to be guided by the fundamental and basic rule of matrimonial
law that it is the right of each spouse to have the society and comfort,
consortium of the other. The husband is entitled to it; equally so, the
wife. So long as the residence of the aged parents of the husband under
the same roof with him is not provocative of creating circumstances
grave enough to subvert, the wife’s right to consortium of her husband,
the court cannot accept the arguments regarding her right to separate
residence with her husband away from his parents. 1

Dependence on parents
In one case the wife was forced to life as parasite with her
parents. She was forced to do agriculture work for her father. This was
considered by trial court to be sufficient means of earning livelihood.
This sort of reasoning and conclusion is nothing but the result of pervert
way of looking at the life. It was held that the learned Magistrate ought
to have realised that one does not live the life of parasite out of volition.
The fact that she is required to live her life as destitute and if she helps
in the agriculture work of her father, it can never be said that she had
sufficient means to earn her livelihood. The fact that she is forced to go
to her parents’ place and live there as parasite itself should be considered
sufficient to hold that she was unable to maintain herself. 2

Dependence on parties
The wife is required to aver that (i) she is the wife of the non-
applicant; (ii) that the non-applicant has sufficient means, yet he is
refusing or neglecting to maintain her; and (iii) that she herself is unable
to maintain herself. However, the Revisional Court completely
misdirected itself in considering the recitals in the application for
maintenance filed by the wife under Section 125 of Criminal Procedure
Code as well as the statements made by her in her deposition. The
applicant in her deposition had stated that “she was not doing any work
and she was completely dependent upon her parents”. It was held that

1 K. Kanthimathi vs. S. Parameswara Iyer, AIR 1974 Kerala 124


(DB): (1974) 1 Ker LJ 22.
2 Bai Laxmiben vs. Bharatbhai Vechatbhai Patel, I (1986) DMC 129
Gujarat.
Disabilities depriving maintenance—Dispute about validity of marriage 151

this statement clearly demonstrates that the applicant in no uncertain


terms deposed that she does not have any means to maintain herself and
is totally depending upon her parents for her maintenance. It was further
held that the Revisional Court completely misread the deposition of the
applicant and further came to a wrong conclusion that the applicant has
not specifically complied with mandatory requirement of Section 125 of
Criminal Procedure Code. Therefore the impugned order was held to be
misconceived and unsustainable in law. 1

Dispute about validity of marriage


In this case the Public records including voters’ lists described
them as husband and wife. The competent witnesses of the village of the
wife as also the husband had supported the factum of marriage.
Witnesses had also spoken about the reputation of the appellant being
known in the locality as the wife of the respondent. It was held that these
facts should not have been totally overlooked while considering the case
of marriage. It is possible that on account of the lawyer’s mistake the
appellant’s witnesses have not referred to the religious rites which might
have been performed at the time of marriage. It is equally possible that
the learned Magistrate while recording the evidence has not specifically
recorded the details and has only indicated that witnesses have spoken to
the fact of marriage. Since the form of marriage has not been found that
traditional marriage according to Hindu law requires performance of
certain religious rites, it was considered proper in the peculiar facts of
the case to remit the matter to the learned Magistrate for a fresh inquiry
at which apart from the evidence already on record both sides should be
entitled to lead further evidence particularly in support of their
respective stands relating to the factum of marriage. 2
It was further held that the role of the Court is not that of silent
spectator or of a passive agency, when a dispute is brought before the
Court, particularly of this type, where maintenance of a neglected wife or
a minor child is in issue, the Court must take genuine interest to find out
the truth of the matter. If the learned Magistrate had asked proper
questions to the witnesses when they were before him and deposing
about the marriage, the relevant evidence would have come one way or
the other. It was also held that the duty of the lawyer appearing for the
appellant also to have played his role properly at the right time. A lot of

1 Bhagirathibai @ Bhagwati vs. Ashok, II (1999) DMC 429 Bombay.


2 Sumitra Devi vs. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC
765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985
Pat LJR 11: 1985(2) Rec Cr R 61
152 Law of Maintenance

time had been lost and if the wife was entitled to maintenance she had
been deprived of it for all these years. 1

Divorced wife
The disqualification attempted to put forward against wife was
that after the order for restitution of conjugal rights she filed a petition
and obtained an order for divorce from the husband. Such an argument is
not available to the husband in view of the extended definition of ‘wife’
mentioned above. It is immaterial as to who moved for divorce. The
extended definition includes within its ambit a lady, who has divorced by
her husband as well as one who obtained a divorce from her husband on
her own violation in spite of the opposition from the husband. If so, a
divorce by mutual consent must also come within the provision and a
wife who joined with the husband in effecting divorce also will come
within that definition. In order to put forward a claim for maintenance as
a divorced wife, it is immaterial how the divorce came into being. If she
has no disability in claiming maintenance under any other provision, her
claim must stand. 2
Originally, the Hindu marriage, succession, minority
guardianship, adoption and maintenance were part of the Hindu Code
Bill and later on they took statutory form by different Acts, but
Legislative intention to provide maintenance to spouse even after divorce
which is contained in Section 25 of the Hindu Marriage Act, has to be
read into both the sections and provisions in both the Acts. Same
Legislature cannot be imputed with two different intentions in respect of
the same couple on the same question. Under Section 25 of the Hindu
Marriage Act, if the provision regarding maintenance is to be applicable,
both to a wife and a divorced wife, there is no reason why the same word
“wife” which is used in Section 18 should not be read in the same
manner because both these provisions deal with the question of
maintenance between a husband and wife. Under Section 25 of the Hindu
Marriage Act, there cannot be any doubt or dispute that the wife would
necessarily include a divorced wife for the purpose of maintenance and
alimony even through the section uses the word “wife” or “husband” and
not “divorced wife” or “divorced husband” and it also provides for
maintenance not exceeding the life of the applicant. Similarly, in Section
18 of the Hindu Adoptions & Maintenance Act, 1956, though the words

1 Sumitra Devi vs. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC
765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985
PatLJR 11: 1985(2) Rec Cr R 61
2 Mampekkattu Nanu vs. Mampekkat Vasantha, II (1986) DMC 109
Kerala.
Disabilities depriving maintenance—Divorced wife 153

used are “wife and husband” the maintenance is provided by the husband
during the lifetime of the wife. Thus, the scheme of both these sections is
the same; the purpose is the same; the words used are the same.
Therefore, when the word “wife” in Section 25 of the Hindu Marriage
Act includes a divorced wife, so also in Section 18 of the Hindu
Adoptions & Maintenance Act, the word “wife” has to be interpreted to
mean a divorced wife. Any other construction would lead to anomalous
and contradictory situations and orders. If the wife makes an application
under Section 25 of the Hindu Marriage Act for maintenance even after
divorce, that would be maintainable, but if she makes an application for
the same purpose under Section 18 of the Hindu Adoptions &
Maintenance Act, it would not be maintainable even though both the
provisions have same purpose in mind and the same intention to provide
maintenance to the wife. Therefore, it was held reasonable to hold that
the words “wife” and “husband” are used to describe the relationship to
provide for maintenance during the life-time of the wife and it includes a
divorced wife and by doing so, there is no violation done of the language
or the meaning because the meaning is always to be taken from the
context and intention. For example, a married woman living happily with
her husband with her husband can be held to be a widow on the question
of succession to the property of her former deceased husband and by
describing her as widow, there is no evidence done to her present marital
status of having a husband and happily living with the husband because
the meaning has to be given in the context of the purpose and the
intention. Similarly, when a question of maintenance arises between a
husband and a wife, it arises only in a situation where there are serious
disputes between the husband and a wife and which may arise before
divorce or thereafter and the Legislature makes the provision for the time.1
It is not every divorced wife who can claim maintenance under
Section 125(1) of the Code. A woman who has been divorced by her
husband is included in the first part of Explanation (b) to Section 125(1).
She can claim maintenance under Section 125(1). It this category would,
normally, fall the case of a Muslim women who has been unilaterally
divorced by her husband in accordance with the Muslim Personal Law.
This category may also include a woman who, under the customary law
applicable to some Hindus, has been unilaterally divorced by her
husband. The second category falling under Explanation (b) to Section
125(1), who can claim maintenance under the said section, consists
of a woman who has obtained divorce from her husband meaning

1 Vihalal Mangaldas Patel vs. Maiben Vihalal Patel, I (1996) DMC


432 Gujarat.
154 Law of Maintenance

thereby that the wife has initiated proceedings for obtaining divorce
from the husband. 1

Earning wife
There is social and moral obligation of the husband to maintain
his wife and child and not to leave them at the mercy of her parent.
Where the wife is a qualified lady and even if she is making an attempt
to earn some money to bring up her child in a better way, this would not
be a factor which would disentitle her from claiming maintenance for
herself as well as for her child from the husband because she is entitled
to live the same lie in terms of social and financial status in which she
would have enjoyed if the continued to live with her husband. Whether
he was forced to leave the matrimonial home because of the cruelties of
husband or was it her act of desertion is the matter which has to be
decided by the Court at the time of final decision of the main petition. 2
In another case the wife filed the revision petition praying for
enhancement of maintenance pendente lite as well as litigation expenses.
It was not denied by the wife even in the revision that the husband was
maintaining the minor child. She had also not disputed the fact that she
was M.A. in Economics. In these circumstances, it was held that it is
difficult to believe that the wife is not having any income whatsoever.
Presumption of reasonable conduct and capacity to earn reasonably are
equally applicable to either of the spouses to the marriage. There is an
obligation on the part of the husband to maintain his wife but he
certainly cannot ignore his other obligations and such maintenance
cannot be at the cost of every other moral and legal duty which the
husband may owe towards his minor child and his parents. 3

Effect of caste
The claim of maintenance cannot be defeated on account of caste
of the woman. This position remained unaffected by provisions of Hindu
Adoptions and Maintenance Act, 1956. Concubine has a right to seek
maintenance. A Brahmin woman and her illegitimate son of Sudra father
are entitled to maintenance from the Estate after the death of father. 4

1 Bhagwan Raoji Dale vs. Sushma @ Nanda Bhawan Dale, 1999(1)


HLR 579 Bombay.
2 Prem Kumari vs. Om Parkash, I (2001) DMC 399 P&H.
3 Kuldip Kaur @ Charanjit Kaur vs. Karam Singh, II (2000) DMC 691
P&H.
4 Amireddy Raja Gopala Rao vs. Amireddi Sitharamamma, AIR 1965
SC 1970: 1965(2) SCWR 889: 1965(3) SCR 122
Disabilities depriving maintenance—Fixed properties 155

Explanation for living separately


In the face of explanation and the admission by the husband that
he had contracted second marriage, the Judicial Magistrate was held to
be legally in error in holding that the wife was living separately from the
husband without sufficient reason. 1

Fixed properties
In the normal course the Court should have granted maintenance
to the wife also having regard to the earning capacity of the husband but
what weighed in the mind of the Court was that there is a house in the
name of the wife which has been sold for Rs. 2 Lacs and, therefore,
according to the trial Court she is not without any income. The flat in
was purchased in her name on the basis of the power of attorney but it
does not show that it belongs to her. It is also not shown as to from
where the assets have come to the wife for the purchase of the flat. It is
admitted by the husband that he gave Rs. 20,000/- and the balance
amount was spent by the father of the petitioner’s wife. Which money
appeared to have been returned. It was held that at any rate the wife is
without any income and it is the duty of the husband to provide
maintenance to her in addition to the child. The wife had asked for
Rs. 1,000/- per month for herself and the child Rs. 2,000/- for litigation
expenses. Having regard to the fact that the respondent husband is also
only drawing Rs. 2300/- it was held to be expedient in the interest of
justice to direct the husband to pay to the wife Rs. 400/- as maintenance
and Rs. 300/- as maintenance of the child already granted by the trial
Court i.e. Rs. 700/- in all with Rs. 1,000/- towards litigation expenses. 2
Section 24 states that where in any proceedings under the Act, it
appears to the court that either the wife or the husband, as the case may
be, has no independent income sufficient for her or his support and the
necessary expenses of the proceedings, it may, on the application of the
wife or the husband order the respondent to pay to the petitioner the
expenses of the proceeding and monthly, during the proceeding such sum
as having regard to the petitioner’s own income and the income of the
respondent, it may seem to the Court to be reasonable. If the wife or the
husband, as the case may be, has no independent income sufficient for
her or his support and necessary expenses of the proceeding, the court
can pass appropriate order having regard to the income of the spouses. It
would be worthwhile to compare the provision in Section 24 with that in
Section 25 dealing with permanent alimony and maintenance. That

1 Islam Bi vs. Nawab Khan, I (1992) DMC 270 MP.


2 Indu Gupta vs. Sanjay Kumar Gupta, I (1992) DMC 164 Del.
156 Law of Maintenance

section requires the court to have regard to the income and other
property of the spouses. It is significant to note that Section 24 refers
only to income and not other property. Therefore, in considering a case
arising under Section 24 of the Act, it is only the income and not other
property which requires to the considered. 1

Illegitimate child
The questions whether the one claimant was the married wife of
the respondent and whether the other claimant was the legitimate or
illegitimate child of the respondent, are pre-eminently questions of fact.
The learned Magistrate after considering the evidence, as adduced by the
parties, held that the appellant No. 1 was not the wife of the respondent.
He further held on the basis of the evidence on record that the appellant
No. 2 was the illegitimate child of the respondent. After considering the
evidence on record it was held that the learned Judge of the High Court
committed an error in making a re-assessment of the evidence and
coming to a finding that the appellant No. 2 was not the illegitimate
child of the respondent. The High Court in its revisional jurisdiction was
not justified in substituting its own view for that of the learned
Magistrate on a question of fact. 2

Illegitimate wife
For a woman claiming maintenance under Section 488, Criminal
Procedure Code it is essential for her to establish that she was the wife of
the opposite party in accordance with the provisions of the personal or
the Civil law applicable regarding the marriage between the parties. It
follows, therefore, that what is contemplated by the term ‘wife’ referred
to in Section 488, Criminal Procedure Code is legally wedded wife in
accordance with the Personal Law of the parties or the Civil Law
governing the marriage between the parties. It would not, therefore,
cover the case of a women whose marriage with the respondent is void
ab initio being in contravention of the personal or the Civil Law
governing their marriage. A woman would be deemed to be a wife for the
purpose of this section to be that woman who is a legitimate wife by
reason of a valid marriage according to the law governing the parties. It
the legislature had intended to give the benefit of this section for the
grant of maintenance to all such woman who were not legally wedded
wives but otherwise married to the respondent, then no distinction could

1 Hema vs. S. Lakshmana Bhat, II (1986) DMC 235 Kerala: 1985


Ker LJ 681: ILR (1986) 1 Ker 288: (1986) 2 Hindu LR 14: AIR 1986
Ker 130.
2 Pathumma vs. Muhammad, AIR 1986 SC 1436: 1986(1) Scale 603:
1986(2) SCR 731: 1986(2) SCC 585: 1986 Guj LJ 788.
Disabilities depriving maintenance—Independent income of wife 157

have been made between the wife and the child, held entitled to claim
maintenance by making a reference of entitlement to “legitimate or
illegitimate child.” It becomes very clear from the expression used in the
second part thereof were a reference is made to “legitimate or
illegitimate child” who can claim maintenance under Section 488(1) of
the Code. The legislature was clear in its mind to apply this provision in
respect of child either legitimate or illegitimate born of a woman
neglected or refused to be maintained by his or her father. If it was
intended to include any illegitimate wife, the legislature could have said
so, just as it said in respect of children. It follows therefore, that no
illegitimate wife or a woman claiming to be the wife whose marriage is
ex facie illegal can claim any maintenance under this section. 1
If it is held that any woman who has solemnized the marriage
with the respondent would be deemed to be a wife for the purposes of
this section, the same would amount to doing violence to the provisions
of Section 488, Criminal Procedure Code and would also lead to
disastrous results which would be against the public interest and the
social object sought to be achieved by making a provision attaching
sanctity to the institution of marriage. Law cannot be interpreted in a
manner which leads to immorality by permitting the woman to lead
immoral life with the hope that if subsequently deserted, they would be
entitled to claim maintenance for leading immoral life with the man. 2

Independent income of wife


Where income of wife is not proved to be less then the husband,
the wife is not entitled to maintenance. 3
Where it was stated that the wife had completed her Law
education and had started practice, it was held that no case was made out
for interference with the quantum fixed either for the maintenance or for
the expenses of the proceedings. It was further held that this was a clear
case where the wife had no independent income sufficient for her support
and the necessary expenses of the proceedings as contemplated by the
provision of Section 24 of the Hindu Marriage Act. The husband has not
come out with a definite case about his income and has merely tried to
find fault with the finding of the learned trial Judge. Indeed, it is not
even suggested that the wife, who had joined the legal profession last
year, has independent income sufficient for her support and for the
necessary expenses of the proceedings. Thus, having regard to the

1 Titroo vs. Mst. Morni, II (1988) DMC 162 J&K.


2 Titroo vs. Mst. Morni, ibid
3 Suresh Kumar vs. Kamaljit Kaur, 1985 (9) DRJ 68.
158 Law of Maintenance

income of the husband and the position of the wife, it was held that there
is no reason to interfere with the findings of the learned trial Judge. 1
Normally, application under Section 24 of the Hindu Marriage
Act, 1955 should be decided only on the bass of the affidavits but in the
peculiar facts and circumstances of this case where both the parties have
not placed the material on record for the just determination of the income
of the wife and the husband, the matter required fresh determination and
was therefore remanded. 2
The claim of the petitioner-wife for maintenance pendente lite
was declined, primarily on the ground that she is earning a sum of
Rs. 1500/-per month and, therefore, was not entitled to any maintenance.
But it was held that the wife is entitled to maintenance pendente lite for
maintenance of her two minor children, who were admittedly living with
her. The husband is bound in law to maintain his minor children. He has
sufficient means and, therefore, is liable to pay some amount for
maintenance of the two minor children, but the wife is not entitled to any
maintenance pendente lite as she was already earning a sum of
Rs. 1500/-per month. 3
In another case, except the ipse dixit of the revision petitioner
there was no proof forthcoming to show that the respondent is drawing
salary of Rs. 1687.50 from her employment in a school. The wife denied
the said payment of Rs. 1,687.50 by the school but she has stated that she
is paid a sum of Rs. 20.- per day if she went to the said school to attend
to the duties of an “Aya”. Therefore the contention of the revision
petitioner that the respondent herein is living in affluent circumstances
drawing a monthly salary of Rs. 1,687.50 is not entitled to any
acceptance in this case was not accepted and it was held that the
maintenance payable to the respondent by the revision petitioner and the
order of maintenance passed against the revision petitioner cannot be
cancelled under Section 127 of Criminal Procedure Code. 4
If a wife is being paid social security benefit or supplementary
benefit, as the case may be, the amount could be recovered from the
husband if he was in that country because after all it was the duty of the
husband to maintain his wife and the child if they had no independent

1 Vinod Kumar Kehriwal vs. Usha Vinod Kejriwal, I (1993) DMC 32


Bom: 1992 (2) Bom CR 648: 1993 (1) Civ LJ 854: 1993 (1) Cur CC
69: 1993 (1) Hindu LR 51: 1993 Mat LR 123: AIR 1994 Bombay
160.
2 Sushma Bawa vs. Ravinder Nath, I (1992) DMC 455 P&H.
3 Arti Chopra vs. Sudhir Chopra, I (1993) DMC 58 P&H.
4 Saleem Basha vs. Mumtaz Begum, II (1999) DMC 206 Madras.
Disabilities depriving maintenance—Inherited fixed assets 159

income sufficient for their support and the necessary expenses of the
proceedings. State funding of social security programme is at the cost of
taxpayers’ money. If the husband is in that country where the wife is also
living he can be burdened with expenses which the State is incurring for
payment of social security benefit to his wife and child. Merely because
husband is living in this country and the Government of a foreign
country does not or is unable to enforce a claim against the husband,
which it could have done in its own country, there is no reason why the
husband living in this country should escape his responsibility and
obligation imposed upon him under the law. Therefore the supplementary
benefit or social security benefit conferred on a spouse in a foreign
country should not be taken into consideration while deciding the
application under Section 24 of the Act. Whatever amount is awarded to
the spouse under this section, to that extent the social security benefit or
supplementary benefit would abate, subject, however, to the condition
that the balance of the income of the spouse in this country should not be
less than the standard laid (not the amount) for grant of social security
benefit or supplementary benefit allowable to the spouse in the foreign
country. This would also be further subject to the condition that the
claim of the spouse in this country as regards his expenses, is taken into
account. 1
In another case it was claimed by the husband that the wife
derives income from tuition and some knitting work which she does in
addition. The mere fact that the income from the father’s shop is taken
into account for deciding the means of the wife is sufficient to show that
the finding on this question is vitiated. It was therefore held that that in
these circumstance it is unnecessary to examine the other meagre sources
mentioned by the husband which may have been adopted for the time
being by the wife to save herself from starvation. This part of the order
was therefore set aside. 2

Inherited fixed assets


The property and income of the wife which can be taken into
account under the Hindu Marriage Act is the property and income which
is exclusively that of the wife. It is not proper to take into account the
possibility of the wife inheriting property from her relation like
the father. 3

1 Vijaylaxmi vs. Majit Singh Bhalla, I (1989) DMC 495 Delhi.


2 Gayatri Devi vs. Laxmikant, II (1986) DMC 214 MP.
3 Latithamma vs. R. Kannan, AIR 1966 Mysore 178 (DB).
160 Law of Maintenance

But in another case when the wife did not deny specifically the
property inherited by her from her father, the allegation of the husband
was taken as correct. It was held that it was within the special knowledge
of the wife regarding the actual income received from the house. In the
revision petition filed by the husband an effort was made to produce
material that from the said house there was income of about Rs. 1,650
per mensem, but it was not considered appropriate at that stage to make
any enquiry regarding the actual income from the said house which is
stated to be with the tenants. It is the wife who is to suffer on that
account as she did not disclose about the house owned by her and the
income derived by her there from. She was supposed to approach the
Court with clean hands and when she had concealed the source of
income, and particularly in view of the broad facts on which the petition
has been filed i.e. concealment of her previous marriage by obtaining
consent of the present petitioner for marriage, she disentitled herself for
the interim maintenance during pendency of the proceedings. 1

Invalid marriage
The attempt to exclude altogether the personal law applicable to
the parties from consideration should be repelled. The section 125 of
Criminal Procedure Code, 1973 has been enacted in the interest of a
wife, and one who intends to take benefit under sub-section (1)(a) has to
establish the necessary condition, namely, that she is the wife of the
person concerned. This issue can be decided only by a reference to the
law applicable to the parties. It is only where applicant establishes her
status on (or) relationship with reference to the personal law that an
application for maintenance can be maintained. The appellant cannot rely
on the principle of estoppel so as to defeat the provisions of the Act. So
far as the respondent treating her as his wife is concerned, it is again of
no avail as the issue has to be settled under the law. It is the intention of
the legislature which is relevant and not the attitude of the party. The
marriage of a woman in accordance with the Hindu rites with a man
having a living spouse is a complete nullity in the eye of law and she is
not entitled to the benefit of Section 125 of the Code. 2

Justification to live separately


The husband deposed that only with the consent of the first wife
he married again. The first wife stoutly denied the suggestion that she

1 Brijinder Bir Singh vs. Mst. Vinod @ Parminder, I (1992) DMC 591
P&H.
2 Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR
1988 SC 644: 1988(1) SCC 530: 1988 SCR 809: 1988(1) Scale 184:
1988(1) JT 193.
Disabilities depriving maintenance—Justification to live separately 161

gave consent to the respondent. The evidence on record clearly showed


that either under cl. (d) or cl. (e) of sub-sec. (2) of Section 18, the first
wife had a right to live separately without forfeiting her claim
for maintenance. 1
The fact that a wife puts up with violence from her husband for
over a period of a year is no reason to justify a finding that on the last
occasion when she decided that she could tolerate it no longer, she was
not entitled to pray in aid this section to indicate that her husband’s
behaviour was such that she should not reasonably by expected to live
with him. 2
For awarding maintenance to a wife living separately, the Court
has to come to the conclusion that she is justified in living separately. 3
In a case of maintenance under Section 125 Cr.P.C. the husband
deposed in such a manner as if it were a case of divorce. He said in his
depositions that his marital relation with wife remains now only as his
ceremonial wife. He further deposed that he lived as husband and wife
minus conjugal life and that there was no free and fair marriage between
him and his wife. He explained what he means by “free and fair
marriage” as that the wife was not given to him as a wife as she lacked
certain feminine qualities. To a query put by the trial Court he had stated
that his wife was disabled for being a wife and according to his personal
opinion the marriage was not free and fair as she failed to respond to his
conjugal demands. Like a Hindu marriage, a Christian Marriage is also a
sacrament. If there by any, diriment impediment it will render a person
incapable of validly contracting a marriage and, therefore, before the
celebration of a marriage they are bound to reveal to the parish priest or
the local Ordinary such impediments as they may know about. In the
case in hand a valid Christian marriage has been solemnised. Both the
spouses had the occasion of knowing each other before the marriage and
there is admission from the side of the husband that before the
celebration of the marriage they had been to the church on 3 occasions.
Monika has forcefully asserted that she had conceived to co-habitation
with Issac. In her cross-examination had stated that she informed her
husband in the last part of April 1988 about the fact that she had
conceived and that the baby in her womb was two months old when she
suffered the abortion. Dr. P.R. Sarkar was not examined as a witness on

1 A. Bhagavathi Ammal vs. Sethu, AIR 1987 Madras 224: (1987) 100
Mad LW 419: (1987) 18 Lawyer 25: (1987) 2 DMC 292: (1987) 2
Cur CC 871.
2 Bergin vs. Bergin (1983) I All ER 905: (1983) II DMC (BJ) 28.
3 N.P. Abu vs. Vellan Thotti Asma, 1999(1) HLR 32 Kerala.
162 Law of Maintenance

the side of Monika to prove that he gave some medicine which aborted
the foetus in the womb of Monika. As such it was difficult to come to a
definite conclusion as to whether such an abortion really took place.
There is of course, admission on the part of the Monika that she was
under the treatment of a doctor and that her husband also had borne some
medical expenses. However, she had stated in her cross-examination that
she had no objection to be examined by a medical expert. In this back
ground it was held as under:
‘As such the ball is now in Issac’s Court. Inspite of all evidence
on record, the Court is in the dark as to the real state of affairs
that stands like the Berlin Wall between the newly married
couple. Even the Berlin’s wall is now broken. If the allegation of
the husband regarding Monika’s lacking femininity is true then
surely there is a way out as Monika herself is prepared to undergo
medical examination under an expert physician. If there be any
cosmetic unpleasantness, modern medical science is so advanced
that such an unpleasantness may be set right by use of proper
medicine or by plastic surgery or by any, method known to
modern medical science. Then a day will come when this unhappy
couple may find the true meaning of conjugal life. Having
overcome their traumatic experiences, they may emerge as a
couple rejuvenated. They must not forget that the marriage
according to their faith is a sacrament. There is incontrovertible
proof that without any just cause the husband. having sufficient
means, has neglected and refused to maintain his wife. 1
On the question of drunkenness it was observed that drunkenness
of the husband, particularly of a chronic and excessive character, can
lead to repeated acts of cruelty towards the wife. It is not to be expected
that the wife should be a silent sufferer for ever of such a cruel
treatment. It is true that wife beating had been prevalent from early times
among all classes without distinction. Following reference was made to
the picture portrayed by Frederick Rogers in his book ‘Labour, Life and
Literature’ ‘Memories of 60 years’, holding that it may be a familiar one
irrespective of time or clime:
“wife beating was never a monopoly of working classes and it has
all but disappeared from every form of social life that I know. it
is quite an ancient custom, dating probably from primitive times,
and all classes have indulged in it. there is an entry in the church
books of john bunyan’s chapel at bedford which tells how a
member of the congregation was reprimanded at a church meeting
for beating his wife when she did not deserve it. in the street
where I lived as boy and young man we were is an atmosphere of

1 Issac Harold Gomes vs. Monika Sylvia Gomes, II (1992) DMC 62


Cal.
Disabilities depriving maintenance—Legitimacy of child 163

wife-beating, and yet it was a street that prided itself on its


respectability. at a house next door to so a man flung his wife out
of a ground-floor window, and one man I know, in a good
position if life, intellectual and educated, who was kind to us as a
boy, was in the habit of giving his wife periodical thrashings. nor
female neighbours used to say she richly deserved them and she
certainly was a confirmed divorce. people seldom interfered
between a man his wife, it was a dangerous thing to do as the
contending parties usually joined forces and turned on the person
who interfered with. “and pray, what business is it of yours ?”
Repetitive acts of battering by an alcoholic would justify a wife
entertaining a reasonable apprehension of harm or injury in living with
the husband. Social conditions are such that even after repeated
agonizing situations the woman puts up a façade that everything is
normal in her home. She even builds up an appearance of a happy home,
even while carrying sorrow’s. It is only when even the last straw is
broken, she parts company with the husband and leaves the matrimonial
home. The court while enquiring into the requirement of Section 18(2)(b)
of Hindu Adoptions & Maintenance Act, 1956, should therefore insist
only on such proof as would show that the apprehension entertained by
the complaining spouse is not illusory or imaginary, and that the proved
events objectively viewed, are such as to cause apprehension about a
harm or injury in living with the husband. It is not reasonable to expect
that neighbours would be available, and be ready and willing, to give
useful evidence about such sensitive domestic incidents. Where a
pregnant wife gives evidence about her husband being a drunkard, and
about the repeated sufferings she had at his hands almost regularly, and
when there is corroboration of the ill treatment by her husband, the
requirement of Section 18(2)(b) is satisfied. 1

Legitimacy of child
On the sole ground that the child had been born in about 7
months’ time after the marriage it cannot be concluded that the child
should have been conceived even before the respondent had
consummated the marriage. Giving birth to a viable child after 28 weeks’
duration of pregnancy is not biologically an improbable or impossible
event. It was held that the learned Judge had completely lost sight of
Section 112 of the Evidence Act, lays down that if a person was born
during the continuance of a valid marriage between his mother and any
man or within two hundred and eighty days after its dissolution and the

1 See Siva Raman Rajendran vs. Janaky Sumathy, I (1985) DMC 220
Kerala; Riyasatbi Shaikh Jani vs. Shaikh Jani Shaikh Kasam, I
(1984) DMC 225 Bombay; Satish Kumar Arora vs. Varsha Arora, II
(1983) DMC 445 All.
164 Law of Maintenance

mother remains unmarried, it shall be taken as conclusive proof that he is


the legitimate son of that man, unless it can be shown that the parties to
the marriage had no access to each other at any time when he could have
been begotten. This rule of law based on the dictates of justice has
always made the Courts incline towards upholding the legitimacy of a
child unless the facts are so compulsive and clinching as to necessarily
warrant a finding that the child could not at all have been begotten to the
father and as such a legitimation of the child would result in rank
injustice to the father. Courts have always desisted from lightly or
hastily rendering a verdict and that too, on the basis of slender materials,
which will have the effect of branding a child as a bastard and its mother
an unchaste woman. 1
If the wife was pregnant even at the time of the marriage she
could not have concealed that fact for long and in any event the husband
would have come to know of it within two or three months of the
marriage and thereupon he would have immediately protested and either
discarded the wife or reported the matter to the village elders and
relatives and sought for a divorce. On the contrary the respondent had
continued to lead life with the appellant in a normal manner till the birth
of the child. Even the confinement appears to have taken place in his
house as otherwise the child’s birth would not have been registered in his
village. The husband had not disowned the child immediately after its
birth or sent away the wife to her parents’ house. Such would not have
been his conduct if he had any doubt about the paternity of the child.
Moreover, there is an entry in the birth register setting out the
respondent as the father of the child. Though the husband attempted to
neutralise this entry by examining a witness and making it appear that
the entry had been made on the basis of information given by a third
party, the lower Courts refused to give credence to the vague and
uncorroborated testimony of this witness. It is also significant to note
that the husband had allowed eleven months to pass before effecting a
divorce. It was held that by his inaction for such a long period the
husband had given room for inference that the divorce may have been
effected for other reasons and not on account of the wife giving birth to a
child conceived through some one else. It was also held that even if the
child had been born after a full-term pregnancy it has to be borne in
mind that the possibility of the respondent having had access to the
appellant before marriage cannot be ruled out because they were closely
related and would therefore have been moving in close terms. All these

1 Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR
SC 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237:
1987 All WC 627.
Disabilities depriving maintenance—Living in adultery 165

factors negate the plea of the respondent that the minor child was not
fathered by him. The proper course for the High Court, even if entitled to
interfere with the concurrent findings of the Courts below in exercise of
its powers under Section 482, Cr.P.C., should have been to sustain the
order of maintenance and direct the respondent to seek an appropriate
declaration in the Civil Court, after a full-fledged trial, that the child was
not born to him and as such he is not legally liable to maintain it.
Proceedings under Section 125, Cr.P.C. are of a summary nature and are
intended to enable destitute wives and children, the latter whether they
are legitimate or illegitimate, to get maintenance in a speedy manner. 1

Living in adultery
Assuming for the sake or argument that the wife committed a
lapse in her life and became pregnant which would not mean that she was
living in adultery. A village woman, if she lives in adultery, would never
go unnoticed by the villagers unlike what happens in an urban area. If
the wife was really living in adultery with someone it would have been
definitely come to the noticed of the husband and/or his relatives and in
that case it would not have been at all difficult for the husband to adduce
evidence in that regard. That being the case, the husband miserably
failed to prove that his wife was living in adultery. And it is only when
the husband proves it satisfactorily that the wife was living in adultery
the wife would disentitle herself to maintenance under Section 125 of the
Criminal Procedure Code. 2
In Hiraman Laxman Jadhav vs. Sou. Balubai Hiraman Jadhav 3 it
was observed as under:
‘In order to show that the decision arrived at by the learned
Session Judge, with reference to the evidence relating to the wife
“living in adultery”, has been correctly taken, it is quite
appropriate to refer to some of the decisions rendered by High
Court are:
(1) Pattayee Amma vs. Manickam Gounder 4;
(2) Papammal vs. Dharman; 5
(3) S.S. Manickam vs. Arputha Bhavani Rajam. 6

1 Dukhtar Jahan vs. Mohammed Farooq, 1987 CrLJ 849: 1987 AIR
SC 1049: 1987 CAR 124: 1987 CrLR (SC) 237: 1987 SCC (Cr) 237:
1987 All WC 627.
2 K.Verriah vs. Muthulakshmi, 1999(1) HLR 181 Madras.
3 I (1987) DMC 226 Bombay.
4 AIR 1967 Madras 254.
5 1970 (2) MLJ 81.
6 1979 Madras Law Weakly (Cri) 143.
166 Law of Maintenance

(4) S. Gulam Mohindeen vs. Rasheeda Fatima Niga Begam; 1


(5) Mathein vs. Maung Myakhin. 2
The essence of judicial pronouncements is to the effect that when
the husband challenges the claim for maintenance of his wife
alleging that his wife is “living in adultery”, the husband should
prove that there is continued adulterous conduct. The phrase
‘living in adultery’ refers to course of guilty conduct and not a
single lapse from virtue.
The term “adultery” is to be understood in the light of the social
ideas of the community as being a serious breach of the
matrimonial tie. “Living in adultery” — mere friendship with a
man does not amount to adultery within the meaning of Section
125(4), Criminal Procedure Code. “Living in adultery” means the
following of a course of continuous adulterous conduct.
While determining the factum of “living in adultery” the Court
must consider evidence on record to ascertain as to whether the
wife was living in quasi-permanent union with a man with whom
she was allegedly committing adultery. It is for the husband to
prove that the wife is continuously committing violation of the
married bed, indulging in adulterous life, by living in quasi
permanent union with her paramour. In other words, “living in
adultery” means an outright adulterous conduct where the wife
lives in a quasi permanent union with a man with whom she is
committing adultery, ‘shortly’ before or after the petition for
maintenance.’
It is only when the husband proves satisfactorily beyond
reasonable doubt that his wife was living in adultery, she will not be
entitled to maintenance and not otherwise. When an allegation of
adultery is made against the wife, the Court is bound to enquire into her
conduct. In the said enquiry, the husband has to begin his case and the
wife must be given an opportunity for adducing evidence to rebut the
allegation of “living in adultery”. 3

Living separate by mutual consent


The concept of living separately by mutual consent arises so long
as the marriage subsists and the parties agree to live separately by
consent. In other words, during the subsistence of the marriage, if the
parties agree to live separately by mutual consent, no party is entitled to
lay any claim for maintenance from the other party. In this case on the
basis of the divorce agreement, it was held that the marital relation’s had
come to terminus. By virtue thereof, the husband had already contracted
the second marriage. In other words, the first marriage has been put to an

1 1981 TLNJ 7.
2 AIR 1937 Rangoon 67.
3 K.Verriah vs. Muthulakshmi, 1999(1) HLR 181 Madras.
Disabilities depriving maintenance—Necessity of consummation of
marriage 167

end. The wife was therefore held to have become entitled to claim
maintenance and will continue to do so, so long as she remains
unmarried and she is unable to maintain herself. 1

Living with father


It is not the law that an indigent wife when turned out of the
house by the husband must starve on the streets. In such a situation she
could certainly go and live with her father but that does not mean that
she cannot claim maintenance against the husband. Moreover the
language of Section 24 of the Hindu Marriage Act is clear. It speaks of
the “wife having no independent income sufficient for her support”. The
income has to be independent and must be sufficient for her support.
This language shows that the income must be the wife’s own. 2
A wife has a right to be maintained by her husband and the fact
that her father is supporting her could never be a ground for depriving
her of maintenance as contemplated under Section 24 of the Act, which
clearly stipulates that where the wife has no independent income
sufficient for her support and to meet the necessary expenses of the
proceedings, she may maintain an application under this provision. If the
object of the Legislature had been to deprive the wives who were being
maintained by their parents for the maintenance and expenses the word
‘independent’ would not have been used in the aforesaid provision. 3

Maintenance by others
Considering the fact that when in the course of the evidence it
was made clear that the wife had absolutely no means to maintain herself
and as she being maintained by others from the day she was neglected by
the husband the Courts are justified in recording the finding that she is
unable to maintain herself and then awarding maintenance. On a mere
technical ground High Court will not interfere under Section 482 Cr.P.C.
to set aside the order of maintenance. 4

Necessity of consummation of marriage


In one case the learned Judge held that ‘valid marriage should be
a condition precedent’, and this invalidity of marriage was sought to be
supported by the fact that there was no consummation of marriage

1 Gurmit Kaur vs. Surjit Singh @ Jeet Singh, 1996 (1) SCC 39: I
(1996) DMC 354 SC.
2 C.B. Joshi vs. Ganga Devi, AIR 1980 All 130: 1980 Mat LR 217:
1994(2) Cur CC 279.
3 Munnibai vs. Jagdish Rathore, 1999(2) CCC 6 MP.
4 P. Lakshminarayana vs. P. Lalithamma, I (1992) DMC 308 AP.
168 Law of Maintenance

between the parties. It was held that one fails to see how could this
factor go to affect the validity of marriage; although it may be a ground
for other relief’s under the law. 1 Therefore non-consummation of
marriage does not affect claim of maintenance.

Nullity marriage
The right of a wife for maintenance is an incident of the status or
state of matrimony. Section 24 of the Hindu Marriage Act, which
provides for maintenance pendente lite and expenses of proceedings,
clearly applies to all proceeding under the Act. An order for maintenance
pendente lite and costs of the proceedings can, as the initial words of the
section clearly state, be made in any proceeding under the Act, viz. for
restitution of conjugal rights, judicial separation, divorce or nullity of
void and voidable marriage. 2
It was therefore held that the Family Court was not right in taking
into consideration the allegation of fraud and deception made in the
petition for the purpose of deciding the prayer of interim alimony. The
fact that there is a strong possibility of the marriage being declared as a
nullity is no ground for declining even the basic right to claim interim
alimony and expenses of the litigation. It was also held that the Family
Court was clearly wrong in postponing the determination of interim
alimony till the trial of the main petition. The trial Court cannot
postpone its decision on the application for interim maintenance and
costs till the disposal of the main issue in the substantive matter. 3
Section 11 of the Hindu Marriage Act specifically declares any
marriage contravening any one of the conditions specified in Clauses (i)
(iv) and (v) of Section 5 to be null and void and on a petition presented
by either party to the marriage against the other will be declared by a
decree of nullity. Clause (i) of Section 5 of the Hindu Marriage Act lays
down that for a lawful marriage, the necessary condition is that neither
party should have a spouse living at the time of marriage. Obviously,
therefore, a marriage in contravention of this condition is null and void.
If, therefore, the finding of the Subordinate Judge on the ex parte
evidence of the petitioner is sustained, then the marriage between the
petitioner and opposite party be held to be null and void. There is no
doubt that the expression “wife” used in Section 125 of the Code means

1 Kamla Bai vs. Amritram, I (1992) DMC 283 MP.


2 Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, AIR 1996
Bombay 94: 1996 (2) Bom CR 531: 1996 (1) Civil Court C 700:
1996(1) Mah LJ 288: 1996 Marri LJ 378: 1996 (2) LJR 312: 1996
(1) All Mah LR 136.
3 Sushila Viresh Chhadva vs. Viresh Nagshi Chhadva, ibid.
Disabilities depriving maintenance—Paternity of child 169

a legally married wife not covered by Section 11 of the Hindu Marriage


Act. In this view of the matter, where a decree of annulment of marriage
has been obtained, a Magistrate would be entitled to cancel an earlier
order passed under Section 125 in exercise of his powers under Sub-
section (2) of Section 127 of the Code. 1
Under Criminal Procedure Code wife or divorced wife is entitled
to claim maintenance. When the marriage between the first petitioner and
the respondent is null and void as it has contravened Section 5(i) of the
Hindu Marriage Act ex-wife is not entitled to claim maintenance from
the respondent. Section 11 of the Hindu Marriage Act provides that any
marriage solemnised after the commencement of the Act shall be null
and void if it contravenes any one of the conditions specified in Clauses
(i), (iv) and (v) of Section 5 of the Act. A void marriage does not create
any right and obligation which normally arise from a valid marriage. A
reading of Section 125 Criminal Procedure Code, shows that a legally
wedded wife or legitimate or illegitimate child could claim maintenance
from the husband or the father when he having sufficient means neglects
or refuses to maintain them. 2

Ornaments
Section 24 does not envisage the substitution of the customary
ornaments for the income nor can the Court refuse to make a grant
maintenance for support simply because the wife can pull on for some
time by selling the ornaments. 3

Ownership of property
Mere possession of land by the father of wife does not mean that
the daughter by virtue of a right for share in the property can be
presumed to have sufficient means to maintain herself. A mere existence
of a share in some property and the contingency of securing that is not
conclusive of the question whether she had means to maintain herself. 4

Paternity of child
There is presumption against bastardy. When dispute about
paternity raised without displacing the presumption by proving that the
father had no access during the period in question, it was held that there

1 Purna Chandra Digal vs. Sila Digal, II (1989) DMC 12 Orissa.


2 Moni vs. State, II (1987) DMC 133 Kerala.
3 Radhikabai vs. Sadhuram Awatrai, AIR 1970 MP 14: 1969 Jab LJ
537: 1969 MPLJ 565: 1979 MPWR 1004.
4 Vemulapalli Rajanikumar vs. Vemulapalli Sarath Babu, II (2000)
DMC 199 AP.
170 Law of Maintenance

is no provision in Indian law for such test and therefore paternity test
could not be directed. 1

Pre-existing order
A mere pre-existing order under the Criminal Procedure Code for
payment of maintenance does not oust the jurisdiction of the Civil Court
to allow maintenance pendente lite under Section 24 of the Act. 2

Prior marriage
Only legally wedded wife is entitled to get maintenance
allowance under Section 125 of the Code from her husband. When apart
from the pleadings of the petitioner herself that her husband was earlier
married to some other woman, there was positive evidence of the
judgement of divorce showing that husband was earlier married to
another woman and that this marriage was subsisting when he allegedly
married the petitioner, it was held that under these circumstances, the
withdrawal of this allegation by the petitioner, even if allowed, would be
no consequence. 3

Proof of divorce
Where in proceeding started under Section 488(old): 125(new),
Cr.P.C. by a Mohammedan wife against her husband for her
maintenance, the husband states in the written statement that he had
already divorced his wife and the Court comes to the conclusion that
divorce pleaded is not proved, then such a statement in the written
statement itself operates as an expression or declaration of divorce by
talak, and the divorce would be held to take effect at least from the date
on which the written statement was filed by the husband. The reason for
the decision is that the statement made by the husband orally in the
deposition or in his written statement that he had divorced his wife in an
acknowledgement of talak alleged to have effected by him already and,
therefore, the divorce would be held to have effect at least from the date
upon which the acknowledgement in made. 4 Another view is as under:

1 Goutam Kundu vs. State of West Bengal, AIR 1993 SC 2295:


1993(3) SCC 418: 1993(3) SCR 917: 1993(3) JT 443: 1993(2)
SCR 253.
2 Surjit Kaur vs. Tirath Singh, AIR 1979 P&H 112: 1977 Cur LJ
(Civil) 490: 79 Pun LR 621: 1977 Rev LR 606: 1977 Mat LR 154:
1977 Hindu LR 793: 80 Pun LR 371: 1978 Marr LJ 47.
3 Veena Kumari vs. Kashmir Singh, I (1991) DMC 538 P&H.
4 Asmat Ullah v. Mst. Khatun Unnisa, AIR 1939 All 592; Wahab Ali
v. Qamro Bi, AIR 1951 Hyderabad 117, Chand Bi v. Bandesha, AIR
Disabilities depriving maintenance—Proof of marriage 171

‘Written statement is a pleading. Pleading is one thing and proof


is another. Pleading is formal allegations by the parties of their
respective claims and defences to provide notice of what is to be
expected at trial. Proof is establishment of a fact by evidence or
matter before the Court or legal Tribunal . Where the parties are
in dispute as regards a material fact, in averment in the pleading
does not constitute evidence, as what is stated in the pleading is
recital of past even which is required to be proved. Under the
Evidence Act, if a material fact pleaded is not proved, it follows
that the Court considers or believes that the fact does not exist.
Therefore averment in the pleading cannot be used in favour of
the maker. This being the position, statement made by the
husband in his pleading or deposition that he has divorced his
wife is recital of past event, and, if talak pleaded is not proved
such statement shall be of no consequence. In that view of matter,
if statement made by the husband that he had divorced his wife in
his pleading or deposition is considered as an acknowledgement
of divorce by talak, it will be against the policy of law, and it
would also amount to furnishing or providing evidence to talak,
which is against the rule of pleading and proof.’ 1
Therefore divorce must be for a reasonable cause and it must be
preceded by a pre-divorce conference, if the statement made orally in
evidence or in the written statement that the husband his divorced his
wife in a proceeding under Section 125 Criminal Procedure Code, 1973
will be valid talak from the date of making statement cannot be sustained
as it would be contrary to above conclusion. 2

Proof of marriage
In order to succeed in her claim for maintenance from the
opposite party the petitioner/wife has to establish that she is legally
married wife. Where the factum of marriage is denied, it must be proved
satisfactorily that there was a valid marriage the onus being on the wife,
applying for an order under Section 125 Criminal Procedure Code. It is
also an accepted position that in a proceeding under Section 125
Criminal Procedure Code the Magistrate is not expected to go into the
question relating to the validity of the marriage. Living as husband and
wife and being treated by other as such, is quite sufficient for award of
maintenance under the section. In other words, strict proof of marriage is
not necessary in a proceeding under Section 125 of the Criminal
Procedure Code. The Standard of proof of marriage need not be so high
as in a proceeding under Section 494, Indian Penal Code for bigamy or a

1961 Bombay 121; Abdul Shakoor v. Kulsum, 1962(I) CrLJ 247;


and Mohammad Ali v. Fareedunisa, AIR 1970 AP 199.
1 Zeenat Fatema Rashid vs. Iqbal Anwar, II (1993) DMC 49 Gauhati.
2 Zeenat Fatema Rashid vs. Iqbal Anwar, II (1993) DMC 49 Gauhati.
172 Law of Maintenance

proceeding for divorce, Court have also accepted that even the opinion
expressed by conduct of persons having special means of knowledge is
sufficient for the purpose of satisfying the requirement of Section 125,
Criminal Procedure Code. 1
The standard of proof required to establish a valid marriage for
claiming maintenance under Section 125 of the Criminal Procedure Code
cannot be the same as required in matrimonial cases on in criminal cases
where the matter involves punishment of the accused on proof of
marriage. In a claim for maintenance the applicant has to make out a
prima facie case to support that claim. If sufficient material is brought
into indicate the factum of marriage the power under section 125 of the
Criminal Procedure Code can be exercised. 2
The question of appreciation of evidence in this regard and the
defence of invalid marriage on account of prior marriage, was dealt with
as under:
‘Leaving aside the minor discrepancies in the statement of
Shrimati Surjit Kaur which have been highlighted by the Counsel
for the appellant with a view to distract the Court from evaluating
the entries with regard to the birth of a son Ex.P-1, voters lists
Ex.P-3 and photograph of the plaintiff defendant and a child
Ex.P-4, no material evidence has been referred to by which it
could be deducted that factum of marriage as set up by the
plaintiff did not take place. One cannot lose sight of the fact that
entry with regard to the birth of a son (plaintiff No. 3 Azad
Singh) is duly recorded in the register of Municipal Committee,
Ropar, on 31.1.1967 as entry long before the filing of the suit or
even before Shrimati Surjit Kaur was alleged to have been turned
out from the house of the defendant. Even entry in the voters list
Ex.P-2 for the year 1970 record plaintiff No.1 and defendant as
wife and husband. Not only this, photograph Ex.P-4 shows
plaintiff No.1, and defendant along with a child who is stated to
be plaintiff No. 3. Defendant when appeared as a witness has
admitted the correctness of this photograph. Defendant has also
admitted that plaintiff No. 1 appears along with him in this
photograph. This evidence itself belies the stand of the defendant
that they were never married and so never lived as husband and
wife. Even the case set-up by the defendant that in fact he was
married to one Champa who hailed from Chhalware in Madya
Pradesh was found without any substance by the trial Court. on
re-appraisal of this evidence, I also find no infirmity in the same.
In fact the trial Court has threadbare discussed the testimony of

1 Ratna Pradhan vs. Abhi Pradhan, II (1987) DMC 1 Orissa.


2 Shobha vs. Bhaiya Lal, II (1987) DMC 85 Bombay.
Disabilities depriving maintenance—Proof of marriage 173

witnesses examined by defendant and found the some un-worthy


of credence.’ 1
In regard to the claim of husband that marriage was not
solemnised it was held that no marriage by affidavits can take place and
the marriage must have been solemnised as alleged by the wife. The
husband has, therefore, put up a totally false case. When he himself has
admitted that the wife lived with him after marriage, it is difficult to
believe that a girl will live in her husband’s house for such a long time
without any marriage having taken place. He has further admitted that
she has been holding out that she was his wife. If she were not he would
not allow her to do so. He cannot be asked to take advantage of his own
fraud. In such a case, even after the passing of the Hindu Marriage Act,
1955, the doctrine of factum violet should be invoked. If the parties are
recognised as man and wife, there is a strong presumption in favour of
the validity of marriage, form and ceremony of the marriage and the
legitimacy of its offspring. Where a man and woman had lived together
as man and wife, the law will presume, until the contrary is proved that
they were living together by virtue of a legal marriage and not in
concubinage. Such presumption can be rebutted only by showing that the
marriage was most highly improbable and not reasonable possible,
marriage can be proved by repute and intention to enter into wedlock.
After all rites and ceremonies only serve to provide proof of marriage as
registration does. It is otherwise very difficult after some lapse of time to
lead a Pandit to the witness box to prove that the marriage had been
solemnised. No documentary evidence is even possible to find. Many of
the witnesses die in the meanwhile. No evidence except the hard fact of
living together survives. 2
A custom which has been recognised and affirmed in a series of
decisions each of them based on evidence adduced in a particular case
may become incorporated in the general law and without proof in each
case. This principle will be equally applicable even where the
community is very small and limited within a small area. At the same
time the Court cannot ignore the well-established principle that before a
custom can be held as having been proved merely on the basis of earlier
decisions, those should have been based on evidence adduced in respect
of the cases. When their Lordships of Supreme Court discussed about the
text books and other materials to hold that such a custom was prevalent
in that community, it was held that in view of the definite finding of the

1 Mohinder Singh vs. Surjit Kaur, I (1994) DMC 163 P&H.


2 Ashok Kumar vs. Usha Kumari, AIR 1984 Del 347: 1984 (26) DLT
199: 1984 (2) DMC 210: 1984 (2) ILR 429 (Del): 1984 RLR 663.
174 Law of Maintenance

Apex Court, it has become a law of the country and it can always be
relied on by the Courts without much evidence. 1
Once the marriage procedure and paternity of child was admitted,
it does not lie in the mouth of husband/father to contend that no valid
marriage came into existence as essential rites were not performed. 2

Refusal to co-habit
The husband had a liability to maintain his lawfully married wife
and children under Section 125 of Criminal Procedure Code. The
husband cannot escape that liability to maintain by alleging that he was
harassed by his wife and by resorting to the subterfuge of filling Hindu
Marriage Petition for restitution of conjugal right in a Civil Court. In the
facts and circumstances of the case, it is found that the petition for
restitution of conjugal rights was filed with ulterior motive to avoid the
liability to pay maintenance to the wife under Section 125 Criminal
Procedure Code. It was observed that looking at the record of the
husband, it is quite possible that to avoid paying maintenance to the wife
under this order, he may agree to take the wife for some time and torture
or drive her out later. Further the wife would be fully justified in
refusing to live with the husband in view of the allegations that he is
living with another woman and has an issue by her. In law, the position
is absolutely clear that a wife can refuse to live with the husband and yet
claim maintenance under Section 125 of Criminal Procedure Code, if he
has re-married or is living in adultery with another woman. A wife has a
right to exclusive association of her husband under filed and unpolluted
by any other woman. 3
If there was a reasonable apprehension of physical ill-treatment in
the mind of the wife was a just ground on her part for refusal to live with
her husband despite the offer made by him now. She could not be
deprived of the maintenance by reasons of such refusal. Under such
circumstances, it must be held that the husband had neglected to
maintain his wife. 4

1 Gurubasawwa vs. Irawwa w/o Chinnappa Barashetti, AIR 1997


Kant 87.
2 Dwarika Prasad Satpathy vs. Bidyut Prava Dixit, 1999 (7) SCC 675
3 Dharmishthaben Hasmukhbai vs. Hasmukhbhai Pradhandas
Ranpur, I (1990) DMC 202 Gujrat.
4 Sundarmmal v. Palaniandi Mudali, AIR 1940 Mad 292 and Samuel
Stephen Richard v. Stella Richard, AIR 1955 Mad 451.
Disabilities depriving maintenance—Refusal to co-habit 175

Thus, the husband’s cruelty towards the wife was a sufficient


ground which justified her separate residence and could not prejudice her
claim for maintenance. 1
In fact in another case the act of mental cruelty was also held to
be sufficient for wife to refuse co-habitation with her husband:
‘Taking a snap in the nude by itself may not constitute an
immoral act. Surrounding circumstances and the intention of the
photographer must be taken together to come to a correct finding.
Here the photographer is his husband and the photographed is his
wife. I searched the records in vain to locate the place where the
snap was taken. If may be the hotel where the newly married
couple stayed or it may be the sea beach which provided an
idyllic background. Even if the second possibility is presumed
there is no evidence that the photograph was taken in full view of
other people who might be present at the sea beach at that
particular time and place. There is no evidence that the husband
wanted to keep these photographs at conspicuous places in his
residence for public view. There is no evidence that the husband
wanted to make clandestine business by selling nude picture. It is
a matter between the husband and the wife and there is no
evidence that the husband had done this with some evil design or
that he is a man of perverse taste. This reminds me of a world
famous painting under the title “The Birth of Venus drawn by
Bottichelli, the favour 15 th Centaury Italian Painter. The Venus
was born and was rising from the sea with all her naked grandeur.
The background was probably the Mediterranean sea. I do not
know whether in the instant case before me the husband was
imbued with the spirit of Bottichelli and whether he wanted to
immortalise his wife in her naked beauty. From the facts and
circumstances of the instant case I find no reason to hold that the
taking of photograph of the wife in her nude by her husband
amounted to mental cruelty. So I am left with the other aspect of
the question, i.e., whether the respondent’s addressing his wife as
‘Kept’ amounted to mental cruelty. Nowhere it is denied by the
respondent that he had not called her as his ‘Kept’. The petitioner
examining herself as P.W.1 has deposed that her husband used to
call her ‘Kept’. The statement of the petitioner on oath was never
challenged in her cross-examination. It is really a very serious
matter for a legally married wife to be called ‘Kept’ by her own
husband. It hurts the sentiments and the wifely pride of any
woman. In my opinion this amounts to mental cruelty which in
turn give rise to a just cause to the wife to live separately from
her husband.’ 2

1 Sumer Singh Parihar vs. Kalpna, II (1990) DMC 266 All.


2 Chitra Lekha Banerjee vs. Rana Banerjee, II (1991) DMC 377 Cal.
176 Law of Maintenance

Once, there is a clear finding of the Civil Court on the point of desertion,
neglect and cruelty which is answered in the negative, it is not open for the
Criminal Court to give different finding on the same issue. The findings recorded
by the Civil Court are binding on the Criminal Court for the purpose of deciding
application for maintenance under Section 125 of Criminal Procedure Code.1
It has been held that T.B. is contagious disease. It might have created a
sort of apprehension in the mind of the wife, by living together under the same
roof as husband and wife and subjecting to conjugal rights she may also contract
the disease. Even if no obligation of conjugal rights is complied with by the wife,
living under the same roof is not free from the danger of contracting the
contagious disease.2
When evidence is available that the wife was not only ill-treated by her
husband but dowry demand was also made, his inhuman behaviour is so patent.
Further, the case of the wife through her father, that she was sent away from the
matrimonial home, only on that score, has also been accepted. There is no
gainsaying of the fact that only because of the conduct of the husband the wife
had become mentally deranged and became incapacitated. It was held that the
behaviour of the husband is nothing short of wilful neglect and the wife and the
minor daughter have a right to be maintained by the husband, who is under a
legal as well as moral obligation to do so.3
In another case it was seen that, the main problem of the husband was the
failure on his part in respect of sexual life. The wife however did not
immediately rushed to severe her marital relations but had waited for sufficiently
long time to see whether there would be any improvement in the potency of the
husband. Having found no hope, she chose to live separately from the husband.
Therefore, it was concluded that the wife having tried all means the marital
relations but having found that it was impossible for the husband to gain potency,
she had chosen to live apart from him. In these circumstances it was held that
there was sufficient ground for the wife to live separately.4
In one case the learned Magistrate in his order found that the
petitioner left her matrimonial home without any sufficient reason and
she refused to live with her husband, the opposite party. In coming to
such a finding he considered the evidence of the wife in its proper
perspective and also noted from her deposition that she was willing to

1 Tulsidas Madhavdas Sharma vs. Shantiben Tulsidas Sharma, II


(1991) DMC 397 Gujarat.
2 Veeranna vs. Sumitrabai, I (1990) DMC 49 Kar.
3 Palanivel vs. B. Saraswathi & 2 Minors, I (1994) DMC 120 Madras.
4 Major Ashok Kumar Singh vs. Additional Session Judge, Varanasi,
1996 CrLJ 392: AIR 1996 SC 333: 1996 SCC (Cr) 161: 1995 (4)
CCR 68: I (1996) DMC 115 SC: 1996 (1) SCC 554.
Disabilities depriving maintenance—Refusal to co-habit 177

live with her husband if the opposite party stay at Calcutta with her. The
learned Magistrate also observed that the factum of torture on her by the
opposite party and his family members was disclosed to the neighbouring
Bengali families who reside within the same campus. The appraisal of
evidence by the learned Magistrate was not interfered with in revision by
learned Session Judge as he found that there was no perversity in such
appreciation of the evidence by the learned Magistrate and as there was
no other illegality in the matter. It was held that in revision reappraisal
of the evidence as recorded by the learned Magistrate is not permissible
under the law unless such appraisal is perverse and illegal. The
Revisional Court below did not find any perversity or illegality in
appraisal of the evidence or any illegality in the judgment of the learned
Magistrate, therefore the order was affirmed. 1
Even if there be custom of second marriage in the community of
the petitioner and opposite party and that has been performed in
accordance with the customary law but the fact remains that the second
marriage has taken place and the first wife is justified in refusing to live
with her husband who had taken second wife as living with second wife
itself amount to cruelty. Therefore, the question of validity of marriage
is not relevant for the purpose of correct justification of separate living. 2
In one case the husband admitted the status of the opposite party
as his wife. He also admitted that after going to her father’s house in
‘Dasahara’ 1990 (i.e. about eight months after the marriage) she was
staying there all along. But he has not stated that he has provided any
maintenance to her during all those years. Husband had not produced any
convincing evidence that he made any sincere effort to restore the
conjugal life. Contention of the husband that wife refused to join him
because his sister rebuked her (petitioner) by saying ‘Kala Jivi’ held to
be highly improbable. In that context, if petitioner’s evidence will be
assessed then the factum of ill-treatment and cruelty on account of dowry
demands held to be true and believable. 3
Normally a pregnant wife will not leave the house of the husband
on her own and more so when the husband is Professor, having good
income and sufficient means to maintain her and child. She delivered a
female child as said earlier and there is no material that the respondent
after the birth of the child at all went to Ajmer to see the child atleast
once. The wife filed an application for restitution of conjugal rights. A

1 Rina Sarkar vs. Paritosh Sarkar, II (1994) DMC 392 Calcutta.


2 Hari Rajwar vs. State of Bihar, 1999(1) HLR 460 Patna.
3 Jadumani Sahu vs. Brundabati Sahu, 1999(1) HLR 628 Orissa.
178 Law of Maintenance

decree for restitution of conjugal rights in her favour was made and even
than no efforts have been made by the husband to see that his wife
returns to him. In these circumstances it was observed as under:
‘If the husband does not care for his wife, does not care to
maintain his minor daughter, it is a case of neglect or refusal to
maintain his wife and child. A look at the reply to the application
under Section 125 Cr.P.C. will show that the respondent has even
gone to the extent of levelling the allegations of unchastity
against the appellant. A look at the additional pleas of the reply
will show that it is clearly mentioned therein that three letters by
same unnamed lover of the appellant were received at the address
of the father of the respondent, two of them have been destroyed
and third was produced, but was not proved. Though the name of
the lover is not named in the letter was received, it was read in
the presence of the respondent and the appellant had admitted that
she was having illicit relation with that man. The allegations of
this nature, there can be no dispute amount to mental cruelty.
Thus, even if during the proceedings under-Section 125 Cr.P.C.
the respondent would have offered that he is willing to maintain
the appellant his life in case she lives with him. All that was
required by law was that the offer should have been considered
and still an order for maintenance can be made. The learned
Judge, Family Court surprisingly did not take into consideration
this aspect to the matter merely on the ground that allegations of
cruelty as contained in the application are not proved and arrived
at a conclusion that is no proof of neglect or refusal to maintain
the appellant by the respondent and, therefore, dismissed the
application u/Sec. 125 Cr.P.C. as for as the appellant is
concerned. This approach of the learned Judge to us does not
appear to be correct. As said earlier, a Hindu wife, more so
pregnant one and more so one who belongs to poor family having
no income of her does not dessert her husband who is of better
status in the society, is well placed and there must be some
reason for her to leave the house of the husband. From the facts
on record, we are satisfied that it is a case of refusal or neglect by
the respondent to maintain his wife and, therefore, the learned
Judge, Family Court was wrong in rejecting the application of the
appellant so far as maintenance to her is concerned.’ 1
When the plaintiff has satisfactorily proved that during the
relevant period, the defendant/husband was having sexual relationship
with another lady Padmavati in the same house, under Section 18(2) of
the Hindu Adoptions & Maintenance Act, the plaintiff was entitled to

1 Jaspal Kaur vs. Manjeet Singh, I (1992) DMC 439 Raj.


Disabilities depriving maintenance—Refusal to co-habit 179

live separately from the husband without forfeiting her claim to


maintenance and provision for separate residence. 1
The woman would go to the marital home of her husband, with a
fond hope and expectation that she would have not only a happy but also
peaceful conjugal society with her husband. When she found that her
husband is unable to perform sexual obligation, while is one of the
important factors to cement bondage of affection and cordial relationship
in marital home, it would be perpetual agony for the wife to continue to
live in peace in the conjugal home. Cruelty is a ground for divorce or
judicial separation in civil law. Under these circumstances, she would be
well justified live separately with the husband and at the same time keep
maintaining married status. 2
In respect of same question arising under Muslim law it was held
as under:
‘If the husband was impotent and unable to discharge his marital
obligations, how could be fulfil the main object of marriage, more
particularly, under the Mohammedan law where marriage is a
sacrosanct contract and not a purely religious ceremony as in the
case of Hindu Law. This would certainly be a very just and
reasonable ground on the part of the wife for refusing to live with
her husband, as also in cases under the Hindu Law or other laws.
A clear perusal of this provision manifestly shows that it was
meant to give a clear instance of circumstances which may be
treated as a just ground for refusal of the wife to live with her
husband. As already indicated by virtue of this provision, the
proviso takes within its sweep all other circumstances similar to
the contingencies contemplated in the Amending Provision as
also other instances of physical, mental or legal cruelty not
excluding the impotence of the husband. These circumstances,
therefore, clearly show that the grounds on which the wife refuses
to live with her husband should be just and reasonable as
contemplated by the proviso. Similarly, where the wife has a
reasonable apprehension arising from the conduct of the husband
that she is likely to be physically harmed due to persistent
demands of dowry from her husband’s parents or relations, such
apprehension also would be manifestly a reasonable justification
for the wife’s refusal to live with her husband. Instances of this
nature may be multiplied but was have mentioned some of the
circumstances to show the real scope and ambit of the proviso

1 Purna Chandra @ Purnananda Mohapatra vs. Malati Mohapatra, I


(1991) DMC 555 Orissa.
2 Ashok Kumar Singh vs. VIth Addl. Sessions Judge, Varanasi, AIR
1996 SC 333: 1996 CrLJ 392: 1996 SCC (Cr) 161: 1995 (4) CCR
68: I (1996) DMC 115 SC: 1996 (1) SCC 554.
180 Law of Maintenance

and the Amending provision which is, as already indicated, by no


means exhaustive. In other words, where a husband contracts a
marriage with another woman or keeps a mistress this would be
deemed to be a just ground within the meaning of the second
proviso so as to make the refusal of the wife to live with her
husband fully justified and entitled to maintenance. The matter
deserves serious attention from the point of view of the wife.
Here is a wife who is forced or compelled to live a life of
celibacy while staying with her husband who is unable to have
sexual relationship with her. Such a life is one of perpetual
torture which is not only mentally or psychologically injurious
but even from the medical point of view is detrimental to the
health of the woman. Surely, the concept of mental cruelty cannot
be different in a civil case and in a criminal case when the
attributes of such a cruelty are the same.’ 1
Same question was considered by Supreme Court again and it was
reiterated as under:
‘Can it be said by any stretch of imagination that where a wife
refuses to live with her husband, if he is impotent and unable to
discharge his marital obligation, this would not be a just ground
for refusing to live with her husband when it seems to us that the
ground of impotence which had been held by a number of
authorities under the civil law to be a good ground not only for
restitution of conjugal rights but also for divorce. Indeed, if this
could be a ground for divorce or for an action for restitution of
conjugal rights, could it be said with any show of force that it
would not be a just ground for the wife to refuse to live with her
husband. The matter deserves serious attention from the point of
view of the wife. Here is a wife who is forced or compelled to
live a life of celibacy while staying with her husband who is
unable to have sexual relationship with her. Such a life is one of
the perpetual torture, which is not only mentally or
psychologically injurious but even from the medical point of
view, is detrimental to the health of the woman. Surely, the
concept of mental cruelty cannot be different in a civil case and
in a criminal case when the attributes of such a cruelty are the
same. The wife would be entitled to maintenance under Section
125(1) of the Code. The woman would go to the marital home of
her husband, with a fond hope and expectation that she would
have not only a happy but also peaceful conjugal society with her
husband. When she found that her husband is unable to perform
sexual obligation, which is one of the important factors to cement
bondage of affection and cordial relationship in marital home, it
would be perpetual agony for the wife to continue to live in peace

1 Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa Yasinkhan,


AIR 1981 SC 1972: 1981 CrLJ 1430: 1981 CrLR (SC) 554: 1981
CAR 399: 1981 SCC (Cr) 829.
Disabilities depriving maintenance—Refusal to co-habit 181

in the conjugal home. Cruelty is a ground for divorce or judicial


separation in civil law. Under these circumstances, she would be
well justified to live separately with the husband and at the same
time keep maintaining married status.’ 1
In case of remarriage by the husband, the wife has justification to
refuse to live with husband and the wife is entitled to maintenance from
the husband. 2 In another case wife alleged that her husband had
contracted a second marriage. She filed a complaint for an offence under
Section 494 of the Indian Penal Code. The complaint was dismissed and
husband was acquitted. High Court took this circumstance against the
wife and adversely commented on her refusal to live with her husband. It
was held as under:
‘High Court, it would appear, lost sight of the fact how it would
be difficult for the wife to prove the second marriage. This Court
has held that to prove the second marriage as a fact essential
ceremonies constituting it must be proved and if second marriage
is not proved to have been validly performed by observing
essential ceremonies and customs in the community conviction
under Section 494 IPC ought not to be made. The fact, however,
remains in the present case that the husband is living with another
woman. Proviso to sub-section (3) would squarely apply and
justify refusal of the wife to live with her husband. There can be
however, other grounds for the wife to refuse to live with her
husband, e.g., if she is subjected to cruelty by him. It was a case
where the husband neglected or refused to main his wife. High
Court did not consider the question if husband was having
sufficient means. It rather unnecessarily put the burden on the
wife to prove that she was unable to maintain herself. The words
‘unable to maintain herself’ would mean that means available to
the deserted wife while she was living with her husband and
would not take within itself the efforts made by the wife after the
desertion to survive somehow. Section 125 is enacted on the
premise that it is obligation of the husband to maintain his wife,
children and parents. It will, therefore, be for him to show that he
has no sufficient means to discharge his obligation and that he
did not neglect or refuse to maintain them or any one of them.
High Court also observed that the wife did not plead as to since
when she was living separately. This is not quite a relevant
consideration. Even though wife was unable to prove that
husband has remarried, yet the fact remained that the husband
was living with another woman. That would entitle the wife to

1 Ashok Kumar Singh vs. VIth Addl. Sessions Judge, Varanasi, 1996
CrLJ 392: AIR 1996 SC 333: 1996 SCC (Cr) 161: 1995 (4) CCR 68:
I (1996) DMC 115 SC: 1996 (1) SCC 554.
2 Deochand vs. State of Maharashtra, AIR 1974 SC 1488: 1974 CrLJ
1089: 1974 CAR 400: 1974 Cr LR (SC) 408.
182 Law of Maintenance

live separately and would amount to neglect or refusal by the


husband to maintain her. Statement of the wife that she is unable
to maintain herself would be enough and it would be for the
husband to prove otherwise. We may also have a look at the
provisions of the Hindu Adoptions and Maintenance Act 1956,
which provides for maintenance to a Hindu wife. Under Section
18 of this Act a Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to be maintained by
her husband during her life-time. Under sub-section (2) she will
be entitled to live separate 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 wilfully 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 form
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; and (g) if
there is any other cause justifying her living separately. Under
sub-section (3) a Hindu wife is not entitled to separate residence
and maintenance from her husband if she is unchaste or ceases to
be Hindu by conversion to another religion. It will be apposite to
keep these provisions in view while considering the petition
under Section 125 of the Code.’ 1
In a case relating to ill-treatment of wife it was held that the non-
applicant/husband was annoyed with his wife for various reasons and,
therefore, it cannot be said that the applicant/wife has come out with a
false case that she was being ill-treated by her husband, and the question
is the extent of ill-treatment and whether the applicant/wife was justified
in leaving the house of the non-applicant/husband in such a situation. It
was also held that when there is no other evidence on record, there is no
reason to disbelieve the applicant/wife when she has made specific
allegations of ill-treatment at the hands of the non-applicant/husband
which made her take such an important decision so as to leave her
husband’s house. It was also found that after the applicant lodged a
complaint with the police, the non-applicant did not go to take her back
or made any other efforts so as to resume the marital life. In the
circumstances, It was held that the non-applicant/husband cannot take an
advantage of the situation and blame the applicant/wife, for which there
is no material on record that the wife is guilty of desertion without any

1 Rajathi vs. C. Ganesan, AIR 1999 SC 2374: 1999 CrLJ 3668: 1999
CrLR (SC) 451: 1999 SCC (Cr) 1118: 1999(3) Crimes 189: 1999(2)
Raj LW 313.
Disabilities depriving maintenance—Refusal to co-habit 183

justification. It was also held that the fact remains that even after filing
of the application for maintenance, the non-applicant/husband took the
plea that the applicant/wife is able to maintain herself as she is taking
tuitions and also doing job work in typing, rather than offering to
maintain her. Thus It was held that this, itself indicates that the non-
applicant/husband chose to refuse and neglect to maintain the
applicant/wife. 1 The treatment with cruelty is itself a sufficient ground
for the wife to decline to live with the husband even if he offered to keep
her and to maintain her. 2
The right to be maintained by the husband stems from
performance of marital duty. It is only when the Court inter alia comes
to the finding that the wife claiming maintenance had been prevented
from performing the marital duty by the husband that she could be
awarded maintenance. When it is found that the wife declines to live
with husband without any just cause and there is no evidence of ill-
treatment by the husband, wife is not entitled to maintenance. In this
case the husband even sent a registered notice to the wife asking her to
say with him but she refused to accept the notice. Wife was not able to
establish that she had been neglected by her husband. As a matter of fact
she was living with her parents of her own accord, therefore she was held
to be not entitled for maintenance allowance for herself. 3
The effect of non-reconciliation on the part of the parties should
not be blown out of all the proportions. In this case, the wife had
deserted the husband and consequently a decree of divorce was granted.
In a Court of law it would be almost impossible to find out the true facts
regarding the justification of the conduct of wife. She was required to
live with the parents of the husband. She would not able to prove fact for
justifying her conduct. The fact remains that she was required to live in
strange place without the support of the persons who could adjust with
her despite her defects. In that situation refusal of wife to live with the
husband may have some justification which she was unable to prove in
accordance with law. Consequently, the Court may objectively consider
conduct of the husband too along with that of wife or coming to just
conclusion. The Court cannot take one sided view of the matter. Wife
cannot permanently live with her parents for the simple reasons her
parents are likely to out live her in normal circumstances where she will
go. She is, therefore, entitled to maintenance and it is the legal duty of

1 Babinanda vs. Vijay Kumar, I (2000) DMC 549 Bombay.


2 Rajmati vs. Mithai, II (2000) DMC 694 Allahabad.
3 Bheekha Ram vs. Goma Devi, I (2000) DMC 76: 1999(1) HLR 543
Rajasthan.
184 Law of Maintenance

the husband under Section 25 of the Hindu Marriage Act, 1955 to


divorcee wife. 1
Allegation against the character of lady by itself is cruelty and is
a sufficient ground for her to refuse staying in company of husband.
However in another case, inspite of that, the wife did not deny to stay in
company of the husband. All that she asserted was that she would stay in
the quarter allotted to respondent No. 2 which was in her occupation. She
even showed readiness to snap relations with her maternal cousin, if the
husband was ready to stay in the quarter. In this case reliance was placed
upon the previous decision 2 of the Court, and the ratio was followed. 3

Right over property


The husband of the plaintiff had properties. If the husband would
have been alive, plaintiff could have been maintained by him. In absence
of the husband, a widow is entitled to be maintained from out of the
properties of her husband. In absence of person having statutory or pious
obligation to maintain her persons who are in possession of the
properties of her husband are liable to maintain the widow, if the
circumstances so call for. 4

Second marriage
Instances are not infrequent when the wife’s application for
maintenance under Section 125, Criminal Procedure Code is contested on
the plea that her marriage being the second marriage of the opposite party
and took place during subsistence of the earlier marriage it is null and void
and she is not eligible to get any maintenance under the provision. In such a
case it is incumbent on the part of the Magistrate to consider the question
carefully and record a finding whether the first marriage of the opposite
party was a valid marriage and was subsisting by the date of the second
marriage. On the finding depends the maintainability of the application
under Section 125, Criminal Procedure Code and the competence of the
Magistrate to award compensation to the applicant wife.5
The attempt to exclude altogether the personal law applicable to
the parties from consideration has to be repelled. The section has been
enacted in the interest of a wife, and one who intends to take benefit
under sub-section (1)(a) has to establish the necessary condition, namely,

1 Archana Singh vs. Dharampal Singh, I (1999) DMC 113 MP.


2 Khadijabibi v. Husen Yusuf Umar Aliya, 1993 (1) GLR 437.
3 Safiyaben Mohamed Sahid Ansari vs. State of Gujarat, II (2000)
DMC 494 Gujarat.
4 Kapila Pradhan vs. Parcha Pradhan, II (1992) DMC 393 Orissa.
5 Tankadhar Nath vs. Prabhahati Nath, I (1991) DMC 336 Orissa.
Disabilities depriving maintenance—Second marriage 185

that she is the wife of the person concerned. This issue can be decided
only by a reference to the law applicable to the parties. While the
legislature has considered it advisable to uphold the legitimacy of the
paternity of a child born out of a void marriage, it has not extended a
similar protection in respect of the mother of the child. The marriage of
the appellant must, therefore, be treated as null and void from its very
inception. It was urged that the appellant was not informed about the
husband’s prior marriage when she married him who treated her as his
wife, and, therefore, her prayer for maintenance should be allowed. But
it was held that the wife cannot rely on the principle of estoppel so as to
defeat the provisions of the Act. So far as the respondent treating her as
his wife is concerned, it was held that it is of no avail as the issue has to
be settled under the law. It is the intention of the legislature which is
relevant and not the attitude of the party. 1
Merely by reason of the fact that the first wife is living, the
second marriage will not be null and void; because the expression
‘spouse’ as used in Section 5(i) of the Hindu Marriage Act means
lawfully married wife or husband. Therefore, it necessarily follows,
before deciding the validity of otherwise of the second marriage. The
solemnization of the first marriage in due form has also to be
established. If the first marriage itself is void, either because of the
violation of the conditions in Clauses (iv) and (v) of Section 5 of the
Act, the parties to the marriage being within the prohibited degrees of
relationship or being sapindas of each other; or because of the non-
performance of the marriage in due form with essential customary rites,
the second marriage will not be null and void. Therefore, before the
second marriage was held to be null and void, the performance of the
first marriage with requisite conditions and essential customary rites and
ceremonies has to be established. 2
In another case it was found that the husband suppressed the fact
of the first wife living and on misrepresentation that she was dead, the
husband got married with the present wife and only, of late, just five
days prior to filing of the petition before the Court of Enquiry, the wife
came to know about the first wife of her husband living. On the basis of
material on record it was held that this had to be accepted since
absolutely no iota of evidence is made available from any quarter contra

1 Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR


1988 SC 644: 1988 CrLJ 793: 1988 SCC (Cr) 182: 1988 CAR 93:
1988 CrLR (SC) 182: 1988(1) Crimes 594: 1988(1) Ker LT 416.
2 Rudramma vs. H.R. Puttaveerabhadrappa, II (1986) DMC 272
Karnataka and Mohammed Sharif vs. Raisa Begum, II (1986) DMC
456 Bombay.
186 Law of Maintenance

to the effect that the first wife of the respondent was also living with
them, nor any attempt had been made on the part of the respondent in
proof of the same. Hence, It was held that the reason attributed for the
wife consenting to get married with the respondent has to be believed
and accepted under such circumstances. After all, the marriage held
between the parties could only be treated as a valid marriage, since the
fact of the subsistence of the first marriage and her suppressed on
representation that she was dead. Under these circumstances, the
marriage could only be treated void-able one, and the option of getting
the same declared void was left with the wife.
However, for the purpose of Section 125 of Criminal Procedure
Code, the law is settled long back that the marriage in between the
parties though plays an integral part in deciding the question of
maintenance, even if the marriage strictly does not come to be proved, it
is sufficient if evidence is available to the effect that the parties have
lived together for a considerable time. As such, when it was established
that the wife had been living with the respondent for a considerable
period and continuously so as to give way for a child to be born, this
status of the wife itself was sufficient for the grant of maintenance not
only for her but also for her child the second petitioner. Therefore it was
held that the petitioner was the wife of the respondent and the other
petitioner was their legitimate child and the respondent was duty bound
to maintenance them. 1
In the decision of Vimala v. Veeraswamy, 2 the Supreme Court had
specifically observed that it was for the husband to prove that the
marriage was void due to subsistence of an earlier marriage and the
burden of proof of the earlier marriage shall be entirely upon the
husband. The relevant portion of the observation is as follows:
“Section 125 of the Code of Criminal Procedure is meant to
achieve a social purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply of food,
clothing and shelter to the deserted wife. When an attempt is
made by the husband to negative the claim of the neglected wife
depicting her a kept-mistress on the specious plea that he was
already married, the Court would insist on strict proof of the
earlier marriage. The term ‘wife’ in Section 125 of the Code of
Criminal Procedure, includes a woman who has been divorced by
a husband or who has obtained a divorce from her husband and
has not remarried. The woman not having the legal status of a

1 Mallika vs. P. Kulandai, I (2001) DMC 354 Mad; See also Manulal
vs. Kunti Behera, I (1986) DMC 22 Orissa.
2 1991 (2) SCC. 375.
Disabilities depriving maintenance—Second marriage 187

wife is thus brought within the inclusive definition of the term


‘wife’ consistent with the objective. However, under the law a
second wife those marriage is void on account of the survival of
the first marriage is not a legally wedded wife and is, therefore,
not entitled to maintenance under this provision. Therefore, the
law which disentitles the second wife from receiving maintenance
from her husband under Section 125, Criminal Procedure Code,
for the sole reason that the marriage ceremony though performed
in the customary form lack legal sanctity can be applied only
when the husband satisfactorily proves the subsistence of a legal
and valid marriage particularly when the provision in the Code is
a measure of social justice intended to protect women and
children. We are unable to find that the respondent herein has
discharged the heavy burden by tendering strict proof of the fact
in issue.”
In the light of these principles propounded by the Apex Court, the
Madras High Court in another case concluded that the petitioner/husband
failed to discharge the burden by proving subsistence of the earlier legal
and valid marriage. 1
In another case the second marriage of husband was sought to be
justified by claiming that the claimant wife was suffering from T.B. It
was held that in the absence of any evidence and proof on record it
cannot be held that the non-applicant was suffering from T.B. In fact it
appears that the applicant has taken this plea to find excuse for
performing ‘Natra’ and keeping the non-applicant away from the home.
It was also observed that it is a known fact that T.B. is curable ailment
and, therefore, this cannot be a ground for the husband to desert the wife
instead of maintaining and providing medical help. Law permits to the
non-applicant to refuse to live with the husband on the ground of “Natra”
second marriage and under such circumstances the husband cannot
compel the wife to live with him and cannot refuse to maintain her and
cannot avoid the liability. 2
The Explanation to Section 125 of Criminal Procedure Code,
1973 places a second wife and a mistress on the same footing and does
not make any differentiation between them on the basis of their status
under matrimonial law. If we ponder over the matter we can clearly
visualise the reason for a second wife and a mistress being treated alike.
The purpose of the Explanation is not to affect the rights of a Muslim
husband to take more than one wife or to denigrate in any manner the
legal and social status of a second wife to which she is entitled to as a
legally married wife, as compared to a mistress but to place on an equal

1 Samidurai vs. Rajalakshmi, I (2000) DMC 252 Madras.


2 Chandarsingh vs. Nanibai, II (2000) DMC 660 MP.
188 Law of Maintenance

footing the matrimonial injury suffered by the first wife on account of


the husband marrying against or taking a mistress during the substance
of the marriage with her. From the point of view of the neglected wife,
for whose benefit the Explanation has been provided, it will make no
difference whether the woman intruding into her matrimonial life and
taking her place in the matrimonial bed is another wife permitted under
law to be married and not a mistress. The legal status of the woman to
whom a husband has transferred his affections cannot lessen her distress
or her feelings of neglect. In fact from one point of view the taking of
another wife portends a more permanent destruction of her matrimonial
life than the taking of a mistress by the husband. It can be said that a
second wife would be more tolerant and sympathetic than a mistress so
as to persuade the wife to rejoin her husband and lead life with him and
his second wife in one and the same house. It will undoubtedly lead to a
strange situation if it were to be held that a wife will be entitled to refuse
to live with her husband if he has taken a mistress but she cannot refuse
likewise if he has married a second wife. The Explanation has to be
construed from the point of view of the injury to the matrimonial rights
of the wife and not with reference to the husband’s right to marry again. 1
The Explanation has, therefore, to be seen in its full perspective
and not disjunctively. Otherwise it will lead to discriminatory treatment
between wives whose husbands have lawfully married again and wives
whose husbands have taken mistresses. Approaching the matter from this
angle, comparison of Muslim wives with Hindu wives or Christian wives
was held to be not necessary to restrict the comparison to Muslim wives
themselves who stand affected under one or the other of the two
contingencies envisaged in the Explanation and notice the
discrimination. A right has been conferred on the wife under the
Explanation to live separately and claim maintenance from the husband
if he breaks his vows of fidelity and marries another woman or takes a
mistress. The Explanation is of uniform application to all wives
including Muslim wives whose husbands have either married another
wife or taken a mistress. 2
Section 488(2) of the old Code also provided to the extent that if
a husband has contracted marriage with another woman, it shall be
considered to be a just ground for his wife’s refusal to live with him. In

1 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987
SC 1103: 1987 CrLJ 980: 1987 SCC (Cr) 300: 1987 Jab LJ 543:
1987 Mah LJ 399: 1987 CrLR (SC): 1987 CAR 246.
2 Begum Subanu alias Saira Banu vs. A.M. Abdul Gafoor, AIR 1987
SC 1103: 1987 CrLJ 980: 1987 SCC (Cr) 300: 1987 Jab LJ 543:
1987 Mah LJ 399: 1987 CrLR (SC): 1987 CAR 246.
Disabilities depriving maintenance—Second marriage 189

one case it was, however, urged that there was no legal evidence of the
second marriage and therefore the wife was not entitled to maintenance
on the ground that her husband had contracted a second marriage. It was
held that the evidence of the wife, her father and of a neighbour was
enough to prove that a lawful marriage had taken place between the
husband and the second wife. It was further held that as the wife was
justified in refusing to live with the husband, the latter was under a legal
obligation to maintain her. When he neglected to maintain her the High
Court was justified in passing the order for maintenance. 1
In order to be eligible to receive maintenance under Section 125,
Criminal Procedure Code the wife must establish that she is the legally
married wife of the opposite party or that after her marriage she has been
divorced and has not re-married. Under the provision in Section 11 of the
Hindu Marriage Act, 1955 read with those in Section 5 of the Act any
marriage solemnized after commencement of the Act shall be null and
void if either party has a spouse living at the time of the marriage. The
Calcutta High Court in the case of Kalyani Sen vs. Radhakant Sen, 2
taking a different view held that a second marriage is a voidable one, it
is valid and can be relied upon for the purpose of grant of maintenance
under Section 125, Criminal Procedure Code till it is annulled by a
decree in an appropriate proceeding under the Hindu Marriage Act.
The position has now has been settled by the Apex Court in the
case of Yamunabai Anantroa Adhav vs. Anantrao Shivram Adhav, 3
wherein the Court in categorical and unequivocal terms held that the
second marriage in such circumstances is null and void and cannot be
treated as voidable under Section 12 of the Hindu Marriage Act
notwithstanding the fact that the wife was not informed about the
husband’s earlier marriage when she got married him. A similar view has
been taken in the case of Manulal alias Manulal Behera vS. Kunti
Behera, 4 and in the case of Sri Ram Prasanna Dash v. Bhabani Devi. 5
Section 125 of the code of Criminal Procedure is meant to
achieve a social purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply remedy for the
supply of food, clothing and shelter to the deserted wife. When an
attempt is made by the husband to negative the claim of the neglected

1 Deochand vs. State of Maharashtra, AIR 1974 SC 1488: 1974 Mah


LJ 437: 1974 MPLJ 470: 1974(4) SCC 610.
2 (1987) 2 Reports (Cal.) 615.
3 AIR 1988 SC 644.
4 1985 (II) OLR 262.
5 1990 (I) OLR 548.
190 Law of Maintenance

wife depicting her as a kept-mistress on the specious plea that he was


already married, the court would insist on strict proof of the earlier
marriage. The term ‘wife’ in Section 125 of the Code of Criminal
Procedure, includes a woman who has been divorced by a husband or
who has obtained a divorce from her husband and has nor remarried. The
woman not having the legal status of a wife is thus brought within the
inclusive definition of the term ‘wife’ consistent with the objective.
However, under the law a second wife whose marriage is void on account
of the survival of the first marriage is not a legally wedded wife and is,
therefore, not entitled to maintenance under this provision. Therefore,
the law which disentitles the second wife from receiving maintenance
from her husband under Section 125 Cr.P.C. for the sole reason that the
marriage ceremony though performed in the customary form lacks legal
sanctity can be applied only when the husband satisfactorily proves the
subsistence of a legal and valid marriage particularly when the provision
in the Code is a measure of social justice intended to protect woman and
children. 1
In one case plaintiff stated in application that the right to claim
separate maintenance from her husband accrued to her by reason of the
second marriage of her husband. It was held that the right would not
have accrued to her as the marriage was a void marriage since under the
provision of Hindu Adoptions & Maintenance Act that right to separate
maintenance would accrue only if the second marriage was a good
marriage, and there was a clear recognition of the validity of that
marriage from the pleading. 2

Second wife
The entire section 125 of Criminal Procedure Code, 1973 either
with reference to wife or children or father or mother is couched in
singular form. If the interpretation of the learned Magistrate is
considered in its setting, then only one child is entitled to maintenance,
and such interpretation of Section 125 Criminal Procedure Code, leads to
absurdity. Section 13(2) of the General Clauses Act, 1897 is as
follows:—“Words in the singular shall include the Plural, and Vice
Versa”. Therefore, the ‘wife’ occurring in Clauses (1) of sub-section (1)
of Section 125 Criminal Procedure Code, includes wives as also minor
‘child’ in Clauses (b) includes children. Therefore, it was held that the
order of the Magistrate in holding that the second wife is not entitled to
maintenance is clearly contrary to the provisions of Section 125 Criminal

1 K. Vimla vs. K. Veeraswamy, I (1991) DMC 518 SC.


2 Saraswathamma vs. Bhadrama, AIR 1970 Mysore 157.
Disabilities depriving maintenance—Temporary Employment 191

Procedure Code. 1 The Supreme Court however without adverting to this


decision or its reasoning, has held that the second marriage being null
and void, the second wife is not entitled to maintenance. 2

Sufficient income
Where the wife in her examination admitted that she was working
as Anganwadi Teacher and was getting a monthly income of Rs. 735/-, it
was held that the object of Section 125, Criminal Procedure Code is to
prevent vagrancy, by compelling a person to support his wife or child, or
father or mother, unable to support itself. The maximum amount payable
under this Section is Rs. 500/- p.m. This amount is not intended for
leading a luxurious life. The powers of the Criminal Court under Chapter
IX are limited in scope and orders passed thereunder are subject to any
final adjudication that may be made by a Civil Court between the parties
respecting their civil rights and status. Since the wife is getting Rs. 735/-
p.m. which is sufficient to keep her from starvation. She is not entitled to
claim maintenance from the husband. 3

Temporary Employment
In regard to the interim maintenance provided in Section 24 of
the Hindu Marriage Act, 1955, the Court’s approach to the problem
should be that a marriage do facto carries with it the right to interim
maintenance in matrimonial proceeding. The only consideration which
should weigh with the judicial mind is whether the applicant is possessed
of sufficient means for his or her support and necessary expenses of the
proceeding. The word ‘sufficient’ is of some significance and it connotes
that the income of the applicant must be such which would be sufficient
for a normal person for his or her sustenance as well as to meet the
necessary expenses of the proceeding. It does not contemplate ‘some
income’ by the applicant howsoever meagre it may be, would disentitle
the application from getting relief under Section 24 of the Act. At the
same time, the Court should also bear in mind another principle, namely,
that the order should not work out as a penalty crippling the party from
prosecuting the proceeding. The Court undoubtedly exercises a wide
discretion in these matters but the discretion is judicial and not an
arbitrary or capricious one. It is to be guided on sound principles of
matrimonial law and should be exercised within the ambit of the
provisions in the section and having regard to the object of the Act.
Keeping the aforesaid principles in view, it was held that a temporary

1 Mala Balakistaiah vs. Peeda Moulalamma, I (1987) DMC 245 AP.


2 Khemchand Om Prakash Sharma vs. State of Gujarat, 2000 (3)
SCC 753: 2000 SCC (Cr) 748
3 Manikkuttan Nair vs. Girija Amma, I (2001) DMC 117 Kerala.
192 Law of Maintenance

appointment of the wife as a teacher which is of very shaky tenure would


not disentitle her to receive maintenance under Section 24 of Hindu
Marriage Act, 1955 Act. 1

Unproved illicit relation


In one case in the additional pleas it was mentioned that three
letters by some unnamed lover of the wife were received at the address
of the father of the husband, two of them had been destroyed and third
was produced, but was not proved. Though the name of the lover is not
named in the letter was received, it was read in the presence of the
respondent the appellant had admitted that she was having illicit relation
with that man. The allegations of this nature, there can be no dispute
amount to mental cruelty. Thus, even if during the proceedings u/Sec.
125 Cr.P.C. the respondent would have offered that he is willing to
maintain the appellant his wife in case she lives with him. All that was
required by law was that the offer should have been considered and still
an order for maintenance can be made. The learned Judge, Family Court
surprisingly did not take into consideration this aspect of the matter
merely on the ground that allegations of cruelty as contained in the
application are not proved and arrived at a conclusion that is no proof of
neglect or refusal to maintain the appellant by the respondent and,
therefore, dismissed the application under section. 125 Cr.P.C. as far as
the appellant is concerned. The approach of the learned Judge to us does
not appear to be correct. As said earlier a Hindu wife, more so pregnant
one and more so one who belongs to poor family have no income of her
does not desert her husband who is of better status in the society, is well
placed and there must be some reason for her to leave the house of the
husband. From the facts on record, we are satisfied that it is a case of
refusal or neglect by the respondent to maintain his wife and, therefore,
the learned Judge, Family Court was wrong in rejecting the application
of the appellant so far as maintenance to her is concerned. 2

Unreasonably attitude
Taking Rs. 760/- to be the monthly income of the petitioner, it
was held that it will be in the fitness of the things if the wife and the two
children together receive Rs. 300/- for their monthly maintenance. It was
also held that the attitude of the wife in such case cannot be said to be
quite reasonable. She had made serious allegations against the husband
alleging the acts of criminality against him. Probably she is justified in

1 Krishnapriya Mohapatra vs. Birakishore Mohapatra, II (1986) DMC


96 Orissa.
2 Jaspal Kaur vs. Manjeet Singh, II (1992) DMC 17 Raj.
Disabilities depriving maintenance—Validity of marriage 193

making those allegations. But the point noted by the court was that
inspite of her conviction relating to criminal tendencies of the husband,
she wants to keep herself wedded to him for all his life. The husband had
made a clear statement before the court that he was prepared to make
sufficient provision for the maintenance of his wife and children if the
wife was prepared to separate herself from the husband by a decree of
divorce by consent and to start a fresh life, thus allowing him to lead a
free life of his own. The wife did not accept this suggestion, whereupon
it was held that there was no reason, logic or rationale, for this conduct
of the wife. If she did not want to stay with the husband, she could not
be blamed for that. She wanted maintenance from the husband. She could
not be blamed even for that. But when the husband had made a
reasonable suggestion that she could get the same thing by allowing him
and her to live a life of their own by taking a divorce, it would have
resulted in freedom and consequent happiness for both of them. It was
held that just with a view that the husband should not be happy in his
future life, the wife wanted to continue to be unhappy herself. There was
no justification for this attitude of the wife at all. It was also held that
the wife had not shown that she was unable to maintain herself. No effort
is made by her to satisfy the Court in this behalf. Therefore a sum of
Rs. 100/- was held to be the maximum sum that should be awarded to the
wife by way of monthly maintenance. 1

Validity of marriage
The Kerala High Court in a case where the claim for maintenance
of the wife was disputed on the ground that there was no valid marriage
between the parties because the husband had earlier married and that
marriage was subsisting on the date of his marriage with the applicant-
wife in that case. After considering the observations of the Supreme
Court in the case of Yamunabai (supra), the Kerala High Court in the
case of Raman Pillai v. Subhadra Amma, 2 has held:
“This means, a lady who wants to claim maintenance from the
man should establish that she has lawfully married him in
conformity with the provisions contained in Section 5(1) of the
Act as well. In other words, in the absence of proof that the
marriage between the parties was not void on account of the
contravention of the provisions contained in Section 5, the lady
will not be entitled to claim maintenance Marriage of a woman,
even if it in accordance with Hindu rites, with a man, having a
spouse living at the time of the marriage, is a nullity in the eye of

1 Ashok Yashwant Mate vs. Sou. Amita Ashok Mate, I (1984) DMC
26 Bombay.
2 1989 Cri.LJ 1274.
194 Law of Maintenance

law. The lady will not get the status of a legally wedded wife.
She is accordingly not entitled to the benefit of Section 125 of the
Code of Criminal Procedure.”
It would thus means that the spouse approaching the Court under
Section 125 of the Cr.P.C. will have to establish at trial that there was a
lawful marriage between the spouses and that there was no impediment
existing at the relevant time which would invalidate their marriage. 1
It is not necessary for the wife that the she must prove that she
was legally wedded. Strict and literal construction should not be
preferred. 2
There is no rule of Hindu Law sanctioning early marriage of male
children and there is no duty upon parents or guardians to marry their
sons or male wards before they attain majority. The practice of early
marriage of Hindu minors may be sanctioned by usage; but it has been
disapproved by the passing of the Child Marriage Restraint Act of 1929. 3
The child marriage has not been invalidated by the provisions of
the Hindu Marriage Act. Section 11 of the Act deals with void marriages.
That section relates only to marriages held in contravention of Clauses
(I), (iv) and (v) of Section 5. That section does not refer to Clause (iii) of
Section 5. Section 12 refers to voidable marriage. That sections deals
only with marriages in contravention of the conditions specified in
clause (ii) of Section 5. The section does not also deal with clause (iii) of
section 5. Thus the marriage in contravention of Clause (iii) of Section 5
is neither void nor voidable under the provisions of the Hindu Marriage
Act. The only other relevant provision is Section 18 of the Act, which
provides for punishment for contravention of the conditions specified in
Section 5(iii) also. The punishment will be imprisonment, which may
extend to 15 days or with fine, which may extend to Rs.1,000/- or both.
Thus, the only provision which will come into play in the event of
contravention of Section 5(iii) is Section 18 of the Hindu Marriage Act,
1955 and nowhere does the Act declare the marriage to be illegal or
invalid or void. 4
The only provision attracted in Sub-section 5(iii) of the Hindu
Marriage Act, 1955, which by virtue of Section 18 thereof at best can

1 Kantilal Punjaji Chavda vs. Nanubhai Kantilal Chavda, II (1993)


DMC 551 Gujarat.
2 Laxmibai vs. Ayodhya Prasad alias Ramadhar, AIR 1991 MP 47.
3 Ram Jash Agarwalla vs. Chand Mandal, ILR (1937) 2 Cal 764: 41
CWN 1176.
4 Seema Devi alias Sirmaran Kaur vs. State of H.P., 1998 (2) Crime
168 (H.P).
Disabilities depriving maintenance—Validity of marriage 195

lead to imprisonment of upto 15 days and/or fine which may extend to


Rs.1,000/- or both. 1
Wife can not seek divorce or judicial separation on the ground of
child marriage. The plea of child marriage can also not be raised as a
defence to seek relief of restitution of conjugal rights. 2
A marriage solemnised in contravention of the age mentioned in
Clause (iii) of Section 5 of the Hindu Marriage Act, 1955 can neither be
declared ab initio void nor voidable. The consequences, if any, which
flow from that contravention are given in Section 18 and that is that a
person who procures a marriage of himself or herself in such
contravention shall be punishable with imprisonment which may extend
to fifteen days, or with fine which may extend to one thousand rupees, or
with both. No other result is stated in the Act to flow from the
contravention. 3
The minority of the wife or of her guardian in marriage was by
itself not a ground for getting it declared null and void under Section
11 or its annulment under Section 12. 4 However there is a different
view also.
A marriage between the bridegroom and the bride, if their ages do
not satisfy the requirements of clause (iii) of Section 5, cannot be
solemnised as it is prohibited under clause (iii) of Section 5, and that it
is not necessary that, in the event of contravention of clause (iii) of
Section 5, either party to the marriage should rush to the Court for
declaring that marriage as null and void and that such a marriage is void
ab initio and is no marriage in the eye of law. 5
The marriage under the Hindu Law is a sacrament and not a
contract. The minority of an individual may operate as a bar to his or her
incurring contractual obligations. But it cannot be impediment in the
matter of performing a necessary ‘samskars’. A minor’s marriage without
the consent of the guardian can be held to be valid also on the
application of the doctrine of factum valet. Consequently the marriage of
Hindu minor cannot be held to be invalid for want of proof that his
guardian consented to it. 6

1 Neetu Singh vs. State, 1999 (49) DRJ 70.


2 Mohinder Kaur vs. Major Singh, AIR 1972 P&H 184.
3 Gindan vs. Barelal, AIR 1976 MP 83.
4 Naumi vs. Narotam, AIR 1963 HP 15.
5 P.A. Saramma vs. G. Ganapatulu, AIR 1975 AP 193: (1975) 1 APLJ
37.
6 Sivanandy vs. Bhagvathyamma, AIR 1962 Mad 400.
196 Law of Maintenance

There can be no doubt that a Hindu marriage is a religious


ceremony. According to all the tests it is a samskaram or sacrament, the
only one prescribed for a woman and one of the principal religious rites
prescribed for purification of the soul. It is binding for life because the
marriage rite completed by saptapadi or the waling of seven steps before
the consecrated fire creates a religious tie, and a religious tie when once
created, cannot be united. It is not a mere contract in which a consenting
mind is indispensable. The person marrying may be a minor or even of
unsound mind, and yet, if the marriage rite is duly solemnised, there is a
valid marriage. 1
In regard to customary marriage it has been held that upon the
proof of custom such marriage can not be disputed after a long time. 2 But
where custom is set up to prove that it is at variance with the ordinary
law, it has to be proved that it is not opposed to public policy and that it
is ancient invariable, continuous, notorious, not expressly forbidden by
the legislature and not opposed to morality or public policy. 3
The doctrine of factum valet was quite well known to Hindu Law
test writers and the relevant Sanskrit quotation is — ‘a fact cannot be
altered by a hundred texts’. The doctrine in the case of the marriage of a
minor was that the factum of marriage, which was solemnised, could not
be undone by reason of a large number of legal prohibitions to the
contrary. Under Section 4 of the Hindu Marriage Act, it is only when
there is a clear provision in the Hindu Marriage Act that any text, rule or
interpretation of Hindu Law or any custom or usage as part of that law in
force immediately before the commencement of the Hindu Marriage Act
shall cease to have effect in so far as it is inconsistent with any of the
provisions of the Act. 4
Threat of physical violence or death will constitute “force”.
The force may be physical or moral and not as defined under Section
349 IPC. Therefore, in the facts and circumstances of the case what
the court has to see, whether any threat was held out to the wife, may
be prior to the date of marriage. It was her case that her objectionable
photographs were taken by the respondent after intoxicating her.
Under fear that her objectionable photographs would be made public,

1 Venkatacharyulu vs. Rangacharyulu 1891 ILR 14 Mad 316: 1 Mad


LJ 85.
2 Shakuntalabai vs. L.V. Kulkarni, AIR 1989 SC 1359: 1989(2) SCC
526: 1989(2) SCR 70: 1989(1) Scale 737: 1989(1) JT 607: 1989(1)
DMC 536
3 Mookka Kone vs. Ammakutti Ammal, AIR 1928 Mad 299 (FB)
4 Pinninti Venkataramna vs. State, AIR 1977 AP 43.
Disabilities depriving maintenance—Validity of marriage 197

the respondent started blackmailing her. He also extended threat of


kidnapping her younger sister. Under fear and threat, she involuntarily
and under pressure agreed to perform marriage ceremonies at the
Mandir as well as before the Registrar of marriage. Therefore, in view
of this statement of the appellant, it was held that the Court below
erroneously presumed that since she appeared before the Registrar of
Marriage and did not complaint to him about the threat, therefore, her
marriage was performed with her consent. This presumption, it was
held, was based on the imagination of the Trial Court himself and was
not borne from the record. 1
Section 5 lays down, for a lawful marriage, the necessary
condition that neither party should have a spouse living at the time of the
marriage. A marriage in contravention of this condition, therefore, is null
and void. It was urged on behalf of the appellant that a marriage should
not be treated as void because such a marriage was earlier recognised in
law and custom. A reference was made to Section 12 of the Act and it
was said that in any event the marriage would be voidable. There is no
merit in this contention. By reason of the overriding effect of the Act as
mentioned in Section 4, no aid can be taken of the earlier Hindu Law or
any custom or usage as a part of that Law inconsistent with any
provision of the Act. So far as Section 12 is concerned, it is confined to
other categories of marriages and is not applicable to one solemnised in
violation of Section 5(i) of the Act. Sub-section (2) of Section 12 puts
further restrictions on such a right. The cases covered by this section are
not void ab initio, and unless all the conditions mentioned therein are
fulfilled and the aggrieved party exercises the right to avoid it, the same
continues to be effective. The marriages covered by Section 11 are void
ipso jure, that is, void from the very inception, and have to be ignored as
not existing in law at all if and when such a question arises. Although the
section permits a formal declaration to be made on the presentation of a
petition, it is not essential to obtain in advance such a formal declaration
from a court in a proceeding specifically commenced for the purpose. It
is also to be seen that while the legislature has considered it advisable to
uphold the legitimacy of the paternity of a child born out of a void
marriage, it has not extended a similar protection in respect of the
mother of the child. The marriage of the appellant must, therefore, be
treated as null and void from its very inception. The attempt to exclude
altogether the personal law applicable to the parties from consideration
also has to be repelled. The section has been enacted in the interest of a

1 Anuj Sharma vs. Suresh Kumar, AIR 1998 Del 47: 1997 (3) AD 504
(Del): 1997 (67) DLT 127.
198 Law of Maintenance

wife, and one who intends to take benefit under sub-section (1)(a) has to
establish the necessary condition, namely, that she is the wife of the
person concerned. This issue can be decided only a reference to the law
applicable to the parties. It is only where an applicant establishes her
status or relationship with reference to the personal law that an
application for maintenance can be maintained. 1
The Court arrived at a finding that the marriage of the plaintiff
with the defendant as null and void. It was held that the judgment, order
or decree in exercise of matrimonial jurisdiction which confers upon or
takes away from any person any legal character or which declares any
person to be entitled to any such character not as against any specified
person but absolutely could be rendered only by a competent Court
having jurisdiction and it is a decision in rem and not in personem alone.
Both the Courts adverted to the contentions raised by the husband to the
factum of his marriage with the plaintiff as being null and void and in
view of the contravention of clauses (i) of Section 5 of the Hindu
Marriage Act. But the findings of the Courts that the petition under
Section 18 of the Hindu Adoptions & Maintenance Act as being
maintainable was held to be not legally sustainable. In view of the fact
that the plaintiff whose marriage was a nullity, she cannot be construed
as a wife under Section 18 of the Hindu Adoptions & Maintenance Act
for the purpose of seeking maintenance. Section 18 contemplates a valid
marriage solemnized under the Act and not a marriage of nullity as
envisaged under Section 11 of the Hindu Marriage Act. In view that, the
precondition for the plaintiff to claim maintenance under Section 18 of
the Hindu Adoptions & Maintenance Act is that her marriage should be a
marriage de hors Section 11 of the Hindu Marriage Act. The question of
any further declaration by the plaintiff that her marriage as being null
and void would not arise since her marriage is non est as in the eye of
law and she could not be characterized as a wife for the purpose of
entitlement to the maintenance under Section 18 of the Hindu Adoptions
& Maintenance Act, 1956. 2
If the consent of the spouse was obtained by fraud as to the nature
of the ceremony as to the nature of the material fact or circumstance
concerning the respondent, the marriage can be annulled. It is not
necessary that consent is obtained by practicing fraud at the time of
solemnization of the marriage. It is enough if it was obtained even at an

1 Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav, AIR


1988 SC 644: 1988 CrLJ 793: 1988 SCC (Cr) 182: 1988 CAR 93:
1988 CrLR (SC) 182: 1988(1) Crimes 594: 1988(1) Ker LT 416.
2 Basappa vs. Siddagangamma, II (1992) DMC 167 Kar.
Disabilities depriving maintenance—Working wife 199

earlier stage. In these circumstances It was held that the consent of the
husband was obtained by fraud and misrepresentation as to material facts
concerning the respondent and that he is entitled to a decree for
annulment under Section 12(1)(c) of the Act. 1
In view of the specific finding that the question of marriage of
plaintiff with defendant as being null and void the Civil Court’s power to
adjudicate factum of maintenance under Section 18 of Hindu Adoptions
& Maintenance Act, 1956 cannot be legally sustained. Therefore it was
held that in all cases, where marriage is a nullity as envisaged under
clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act the
question of a wife claiming maintenance under Section 18 of the Hindu
Adoptions & Maintenance Act, 1956 would not arise. 2
A voidable marriage has to be regarded as good for all purpose
until annulled by a decree of nullity the Court. It is the option of the
parties to the marriage whether they want to declare the marriage a
nullity or not. A voidable marriage means that it was valid at the time it
takes place but subsequently, it becomes a nullity on certain facts
coming to the notice of one of the parties to the marriage and then that
party can get a declaration to the effect that the marriage is an nullity. It
cannot be said that the marriage was a nullity from the very inception so
as to say that the relationship of husband and wife did not come into
existence. When once the relationship of husband and wife is to be
accepted then either party can be granted maintenance in accordance
with provisions of Section 25 of the Hindu Marriage Act. 3
In one case it was held that assuming that the non-applicant was
below 15 years of age, the married was not void under Section 11 of the
Hindu Marriage Act. It may be that the marriage was voidable at the
instance of the applicant. Therefore if was held that if the marriage was
voidable at the instance of the applicant the marriage would continue to
be valid unless it was declared to be void by the appropriate court by
initiation of proceedings under the relevant provisions of the Hindu
Marriage Act. 4

Working wife
In one case the opposite party admitted to be working as an
Anganbadi worker and getting salary of Rs. 500/-, but learned Magistrate
after taking into consideration her circumstances as well as the

1 Brijinder Bir Singh vs. Vinod alias Parminder, AIR 1995 P&H 42.
2 Basappa vs. Siddagangamma, ibid.
3 Hashish Sharma vs. Sushma Sharma, I (1996) DMC 303 Raj.
4 Babarao vs. Shobhatai, II (1985) DMC 161 Bombay.
200 Law of Maintenance

necessities has granted a sum of Rs. 300/-. Petitioner has not led any
evidence to prove that income of Rs. 500/- of the opposite party was
sufficient to sustain her livelihood. On the other hand, opposite party has
stated in her evidence that due to insufficiency of income she is unable
to sustain her livelihood. In that respect, she was not at all cross-
examined. It was therefore held that, learned Magistrate was justified in
granting the monthly maintenance @ of Rs. 300/- in favour of the
opposite party. 1
An applicant is not entitled to maintenance if she is a working
lady, even if, she is not attending the office for one reason or the other.
However, she was held to be entitled to litigation expenses to the tune of
Rs. 1000/-. It was further observed that the wife may either apply for her
transfer to the concerned authorities on compassionate grounds and the
Court expressed hope that if a good case for transfer is made out, she
would be accommodated because according to her, the husband was not
permitting her to attend the office. 2

1 Sarat Chandra Pattnaik vs. Binodini Pattnaik, II (1999) DMC 356


Orissa.
2 Pushplata Sharma vs. Yash Paul Sharma, I (1990) DMC 517 P&H.
Duty to maintain—Introduction 201

Chapter 5
Duty to maintain
SYNOPSIS
Introduction....................................201 Duty of son..................................... 209
General ..........................................203 Duty to maintain children.............. 210
Burden of proof ..............................205 Effect of support of relatives.......... 211
Daughter in law .............................206 Nature of obligation ...................... 212
Determination of neglect................207 Refusal to join................................ 212
Duty of married daughter ..............207 Scope of obligation of husband ..... 213

Introduction
The ancient Hindu Society has always placed the wife on a high
pedestal. It is said that, ‘the house (building) is not the house. The
mistress of the house is said to be the house. A house without the lady of
the house is worse than a dreary forest’.
Manava Dharma Sastra or the Institutes of Manu with the Gloss
of Kulluka, comprising the Indian system of duties, religious and civil,
translated by Sir Willian Jones and collated with the Sanskrit Text by
Grayes Chammey Hughten, Esq. Third Edition, Chapter 3 verses 55 to 60
read as follows:—
55. Married women must be honoured and adorned by their
fathers and brethren, by their husbands, and by the brethren of
their husbands, if they seek abundant prosperity.
56. Where females are honoured there the deities are pleased; but
where they are dishonoured, there, all religious acts become
fruitless.
57. Where female relations are made miserable, the family of him
who makes them so, very soon wholly perishes; but, where they
are not unhappy, the family always increases.
58. On whatever houses the women of a family, not being duly
honoured, pronounce an imprecation, those houses, with all that
belong to them, utterly perish, as if destroyed by a sacrifice for
the death of an enemy.
59. Let those women, therefore be continually supplied with
ornaments, apparel and food at festivals and at jubilees, by men
desirous of wealth.
202 Law of Maintenance

60. In whatever family the Husband is contented with his wife,


and the wife with her husband, in that house will fortune be
assuredly permanent.
It was in the background of above Hindu shastric Law that
sections 18 to 21 of Hindu Adoptions & Maintenance Act, 1956 were
enacted. These sections are as under:
18. Maintenance of wife.—(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 wilfully 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 form 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.
19. Maintenance of widowed daughter-in-law.— (1)A Hindu
wife, whether married before or after the commencement of this
Act, shall be entitled to be maintained after the death of her
husband by her father-in-law:
Provided and to the extent that she is unable to maintain herself
out of her own earnings or other property or, where she has no
property of her own, is unable to obtain maintenance—
(a) from the estate of her husband or her father or mother, or
(b) from her son or daughter, if any, or his or her estate.
(2) Any obligation under sub-section (1) shall not be enforceable
if the father-in-law has not the means to do so from any
coparcenary property in his possession out of which the daughter-
in-law has not obtained any share, and any such obligation shall
cease on the re-marriage of the daughter-in-law.
Duty to maintain—General 203

20. Maintenance of children and aged parents.— (1) Subject to


the provisions of this section a Hindu is bound, during his or her
lifetime, to maintain his or her legitimate or illegitimate children
and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from
his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or
infirm parent or a daughter who is unmarried extends insofar as
the parent or the unmarried daughter, as the case may be, is
unable to maintain himself or herself out of his or her own
earnings or other property.
Explanation: In this section “parent” includes a childless step-
mother.
21. Dependants defined— For the purposes of this Chapter
"dependants" mean the following relatives of the deceased:—
(i) his or her father;
(ii) his or her mother;
(iii) his widow, so long as she does not re-marry;
(iv) his or her son or the son of his predeceased son or the son
of a predeceased son of his predeceased son, so long as he is a
minor: provided and to the extent that he is unable to obtain
maintenance, in the case of a grandson from his father's or
mother's estate, and in the case of a great-grandson, from the
estate of his father or mother or father's father or father's mother;
(v) his or her unmarried daughter, or the unmarried daughter
of his predeceased son or the unmarried daughter of a
predeceased son of his predeceased
……………………………………
Similarly section 125 of Criminal Procedure Code, 1973 also cast
a duty to maintain to prevent vagrancy and destitution. This has been
dealt with in more detail in the chapter relating to ‘Summery Remedy’.
This chapter relates to the duty of various persons to maintain the
dependants especially the husband to maintain the wife.

General
It is the duty of husband especially under Hindu law to maintain
his wife. A matrimonial alliance which is nurtured and sustained through
love and affection is like a tender plant which withers away in the
absence of sun and water for its growth. In the words of Sprat.
“A great proportion of the wretchedness which has embittered
married life, has originated in a negligence of trifles. Connubial
happiness is a thing of too fine a texture to be handled roughly. It
is a sensitive plant. Which will not bear even the touch of
unkindness; a delicate flower, which indifference will chill and
suspicion blast. It must be watered by the showers of tender
204 Law of Maintenance

affection, expanded by the cheering glow of kindness, and


guarded by the impregnable barrier of unshaken confidence. Thus
matured it will bloom with fragrance in every season of life, and
sweeten even the loneliness of declining years”. 1
The ancient Hindu Society has always placed the wife on a high
pedestal. It is said that , “, ‘the house (building) is not the house’. The
mistress of the house is said to be the house. A house without the lady of
the house is worse than a dreary forest”.
Manava Dharma Sastra or the Institutes of Manu with the Gloss
of Kulluka, comprising the Indian system of duties, religious and civil 2,
read as follows:—
55. Married women must be honoured and adorned by their
fathers and brethren, by their husbands, and by the brethren
of their husbands, if they seek abundant prosperity.
56. Where females are honoured there the deities are pleased;
but where they are dishonoured, there, all religious acts
become fruitless.
57. Where female relations are made miserable, the family of
him who makes them so, very soon wholly perishes; but,
where they are not unhappy, the family always increases.
58. On whatever houses the women of a family, not being
duly honoured, pronounce an imprecation, those houses, with
all that belong to them, utterly perish, as if destroyed by a
sacrifice for the death of an enemy.
59. Let those women, therefore be continually supplied with
ornaments, apparel and food at festivals and at jubilees, by
men desirous of wealth.
60. In whatever family the Husband is contented with his
wife, and the wife with her husband, in that house will
fortune be assuredly permanent. 3
Under the old Hindu Law a person was under personal obligation
to maintain the wife from the moment of marriage, whether he is
possessed of any property or not. Though under the Hindu Women’s

1 Manali Singhal vs. Ravi Singhal, 1998 (6) AD 749: 1999 (77) DLT
700: AIR 1999 Del 156: 1998(6) AD(Delhi) 749: 1999(77) DLT 693:
1999(1) DMC 355: 1999 RLR 133: 1999(1) RCR(Civil) 436.
2 translated by Sir Willian Jones and collated with the Sanskrit Text
by Grayes Chammey Hughten, Esq. Third Edition, Chapter 3
verses 55 to 60
3 Meera Nireshwalia vs. Sukumar Nireshwalia, AIR 1994 Mad
168 (DB).
Duty to maintain—Burden of proof 205

Rights to Property Act of 1937, women were conferred with rights of


succession, their rights of maintenance were not affected. But option was
given to the Hindu widow to claim a share in the property or
maintenance, whichever was more favourable to her. After the Hindu
Married Women’s Rights to Separate Residence and Maintenance Act,
1946, which came into force on 23.4.1996, every married woman
becomes entitled to separate residence and maintenance against her
husband on one or more of the seven grounds mentioned therein.
Thereafter, in 1956, the Hindu Adoptions & Maintenance Act was
enacted. 1
Similar duty has been cast on dependents of a Muslim women
under the provisions of Muslim Women (Protection of Rights on
Divorce) Act, 1986.

Burden of proof
It is not possible to take a view that to constitute desertion under
Clause (a) of Sub-section (2) of Section 18 of the Maintenance Act, not
only desertion but desertion with the animus to do so has to be
established by the plaintiffs in a suit for maintenance. It has to be
noticed that Section 18 of the Maintenance Act has been enacted
exclusively for the benefit of the Hindu wife, who might be required to
live separately from her husband; and Clauses (a) of Sub-section (2)
thereof provides that if a Hindu wife lives separately from her husband,
for that reasons alone she would not forfeit her right to claim
maintenance in case her husband is guilty of desertion without
reasonable cause and without her consent or against her wish or wilfully
neglecting her. The Parliament has taken care to make clear what in the
context the expression ‘desertion’ means. The expression ‘that is to say’
of abandoning her after the word ‘desertion is of great significance. 2
The expression ‘desertion’ as a ground for divorce between the
parties to the marriage, need not be identical to that of the expression
‘desertion’ in the context of the claim for maintenance by the wife,
deserted or neglected. For the purpose of ‘divorce’ under Section 13 of
the Marriage Act, the petition could be either by the husband or wife;
and the desertion could be either by the husband or the wife. Divorce
cuts away the matrimonial tie completely; and the desertion to be used
as a ground for such a relief should be of a higher degree; naturally it
has to be desertion coupled with the animus to do so. That appears to

1 Neelakanta Muthuraja vs. Chinnammal, II (1999) DMC 176.


2 Raghavan Radhakrishnan vs. Satyabhama Jayakumari, I (1986)
DMC 87 Kerala.
206 Law of Maintenance

have been the legislative policy behind the rigidity in the matter of
proof in regard to the expression ‘desertion’ as used in Section 13 of
the Marriage Act in contrast to the expression used in Clauses (a) of
Sub-section (2) of Section 18 of the Maintenance Act. If that rigidity by
reading into the clause the word ‘animus’, which the Legislature has
not chosen to incorporate, is insisted upon, it would defeat the very
purpose of the legislation for protecting the interests of the abandoned
and neglected wives. 1

Daughter in law
Under Section 19 of the Hindu Adoptions & Maintenance Act,
1956, the liability of the father-in-law to maintain the widowed
daughter-in-law arises only if he is in possession of coparcenary
property. No liability arises when the father-in-law is not in possession
of coparcenary property. The statutory liability of the father-in-law to
maintain the widowed daughter-in-law in the event of his having
coparcenary property passed on his death to the heirs inheriting his
property. This is what is provided under Section 22. If there is no
statutory liability for the father-in-law to maintain his widowed
daughter-in-law the heirs taking his property cannot be saddled with
any such obligation. Section 22 does not create any independent
statutory obligation for the father-in-law to maintain the widowed
daughter-in-law. The statutory obligation is created only under Section
19 and if he dies leaving no coparcenary property his heirs inheriting
his property are under no legal obligation to maintain the widowed
daughter-in-law. A harmonious construction of Section 19 to 22 can
only lead to such interpretation. Otherwise we see the anomaly of a
father-in-law having no coparcenary property and having no legal
obligation to maintain his widowed daughter-in-law during the lifetime
and yet, after his death, his heirs taking his property are statutorily
made liable to maintain the daughter-in-law. The legislature would not
have intended such an anomalous situation and an interpretation leading
to an illogical conclusion should not be favoured. It follows that as the
father-in-law died without leaving any coparcenary property, his heirs
inheriting his self-acquired property, namely, the appellant is under no
obligation to maintain the widowed daughter-in-law. 2

1 Raghavan Radhakrishnan vs. Satyabhama Jayakumari, I (1986)


DMC 87 Kerala.
2 M. Janakiraman vs. Meenakshi Ammal, II (1986) DMC 45 Madras.
Duty to maintain—Duty of married daughter 207

Determination of neglect
When husband failed to examine himself to prove that divorced
wife was duly maintained, neglect by husband can be inferred and claim
of maintenance can not be denied on the ground of divorce. 1

Duty of married daughter


Clause (a) deals with the right of the wife who is unable to
maintain herself to claim maintenance from her husband. Clause (b)
deals with the right of the children, who are minor, to get maintenance
from their parents. Within the import of Clauses (b) even a married
daughter is included. Clause (c) deals with a disabled child who has
attained majority. The bracketed portion “not being a married daughter”
covers only Clause (c) and not the other sub-clauses of Section 125(1) of
the Code. This is obvious from the use of specific expression “whether
married or not” in Sub-clauses (b) of Section 125(1). Then comes Sub-
clause (d) which confers a right upon a father or mother unable to
maintain himself or herself to claim maintenance. The word “person” he
not defined in the Code, nor the expression “his” is defined. However, by
Section 2(y) it is laid down that the words and expression used therein
and not defined but defined in the Penal Code have the meaning
respectively assigned to them in that Code Section 8 of the Penal Code
have the meanings respectively assigned to them in that Code. Section 8
of the Penal Code reads as under:—
“Gender. The pronoun ‘he’ and its derivatives are used of any
person, whether male or female.
Section 11 of General Clauses Act, 1897 defines the word
“person”, which includes any Company or Association, or body of
persons, whether incorporated or not. The definition of the word
“person” is inclusive and, therefore, obviously not exhaustive. Section
13(1) of the General Clauses Act lays down that in all Central Acts and
Regulations, unless there is anything repugnant in the subject or context,
words importing the masculine gender shall be taken to include females.
The word “person” is defined in Section 3(42) of the General Clauses
Act and the definition is akin to the definition in Section 11 of the Penal
Code. Further, by Section 2(y) of the Cr.P.C. it is provided that the
words and expression used in the Code are to be understood as defined
by the Penal Code. Therefore, it is quite clear that the pronoun “he” and
its derivatives as used in Section 125 of the Cr.P.C. would include in its
import, both a male or a female. Section 125(1)(d) contains no words of

1 Bai Tahira vs. Ali Hussain Fissalli Chothia, AIR 1979 SC 362: 1979
CrLJ 151: 1979 SCC (Cr) 473: 1978 CAR 418: 1978 CrLR (SC) 616.
208 Law of Maintenance

limitation to justify the exclusion of a married daughter from the scope


of the said section. 1
“Section 125, Cr.P.C. does not contain any provision prohibiting
a father from claiming maintenance from a married daughter. The
submission that once a daughter is married, she belongs to a
different family and has, therefore, no liability to maintain her
father, has no merit in it. The daughter does not cease to be the
daughter after she is married into another family. If she has
sufficient means of her own, the obligation is cast on her to took
after her parents who are otherwise unable to maintain
themselves.”
Further, the Andhra Pradesh High Court has also observed:
“It cannot be that if there are no sons but daughters, the parents
have to remain destitute though the married daughters have
sufficient means of their own to provide for maintenance of their
destitute parents.”
A similar view is taken by the Kerala High Court in M. Areefa
Beevi v. Dr. K.M. Sahib. 2 In that case the Kerala High Court has
considered the decision of the Punjab and Haryana High Court in Raj
Kumari v. Yashodha Devi.
The decision of the Punjab and Haryana High Court is based on a
passage from the report of the Joint Committee of the Parliament. The
said report reads as under:—
“The Committee considers that the right of the parents not
possessed or sufficient means, to be maintained by their son
should be recognized by making a provision that where the father
or mother is unable to maintain himself or herself an order for
payment of maintenance may be directed to a son who is
possessed of sufficient means if there are two or more children
the parents may seek the remedy against any one or more of
them.”
After quoting this part of the report, the Kerala High Court
observed:—
“Here instead of using the expression ‘sons’, the expression used
is ‘children’. This is indicative of the intention of the legislature
that no distinction was intended to be made between son and
daughter. The cumulative effect of all these leads me to the
conclusion that under Section 125 of the Cr.P.C. a daughter also
has the liability to maintain her parents who have no ostensible
means of livelihood.”

1 As observed by the Andhra Pradesh High Court in Repalli


Masthanamma’s case (1982) 1 Andh WR 393.
2 1983 Crl. LJ 412.
Duty to maintain—Duty of son 209

Therefore no distinction can be made between a married on an


unmarried daughter in that behalf, since even after the marriage the
daughter continues to be the daughter and her obligation to maintain her
infirm parents, who are unable to maintain themselves, does not come to
an end. 1
It is true that Cl. (d) of section 125 of Criminal Procedure Code,
1973 has used the expression ‘his father or mother’ but the use of the
word ‘his’ does not exclude the parents claiming maintenance from their
daughter. Section 2(y), Cr. P.C. provides that words and expressions
used herein and not defined in the Indian Penal Code have the meanings
respectively assigned to them in that Code. Section 8 of the Indian Penal
Code lays down that the pronoun ‘he’ and its derivatives are used for any
person whether male or female. Thus, in view of Section 8, IPC read
with Section 2(y), Cr. P.C. the pronoun ‘his’ in Cl. (d) of Section 125(1),
Cr. P.C. also indicates a female. Section 13(1) of the General Clauses
Act lays down that in all Central Acts and Regulations, unless there is
anything repugnant in the subject or context, words importing the
masculine gender shall be taken to include females. Therefore, the
pronoun ‘his’ as used in Cl. (d) of Section 125(1), Cr. P.C. includes both
a male and a female. In other words, the parents will be entitled to claim
maintenance against their daughter provided, however, the other
conditions as mentioned in the section are fulfilled. Before ordering
maintenance in favour of a father or a mother against their married
daughter, the Court must be satisfied that the daughter has sufficient
means of her own independently of the means or income of her husband,
and that the father or the mother, as the case may be, is unable to
maintain himself or herself. 2 Thus with this caveat the Supreme Court
affirmed the above decision of High Court.

Duty of son
Whether a son is liable to maintain his mother during the life time
of his father, the law appears to be in complete agreement with the Hindu
social morality. Now both our statutory law and case law on this point
fully recognize the obligation of the son to maintain both during the life
time of the father and even thereafter his mother. In Mulla’s Principles
of Hindu Law (Paragraph 548) it is stated:

1 Vijaya Manohar Arbat vs. Kashirao Rajaram Sawai, II (1986) DMC


370 Bombay.
2 Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, AIR
1987 SC 1100: 1987(2) SCC 278: 1987(2) SCR 331: 1987(1) Scale
379: 1987(3) J.T. 46: 1987 Mat. L.R. 139.
210 Law of Maintenance

“A son is under a personal obligation to maintain his aged father.


He is also under a similar obligation to maintain her, whether or
not he has inherited property from his father.”
Subbarayana vs. Subbakka 1 and Satyanarayana Murthy vs. Ram
Subbamma 2 are cited by Mulla for this Principle of Hindu Law.
Section 20(1) of the Hindu Adoptions & Maintenance Act gives a
statutory recognition to this obligation of son to maintain his mother.
According to this section ‘a Hindu is bound during his or her life time to
maintain his or her legitimate or illegitimate children and his or her aged
or infirm parents.’
The language of this section is clear in casting an immediate and
unalterable duty on the son to maintain his aged or infirm parents. The
section casts an obligation on a son to maintain his mother without
reference to the fact whether the father is alive or dead. The obligation of
the son to maintain his aged or infirm parents extends even when both
parents are alive. Enforcement of that obligation cannot be postponed till
the death of one of the parents. 3

Duty to maintain children


Section 3(1) of Muslim Women (Protection of Rights on Divorce)
Act, 1986, deals with “Mahr” or other properties of a Muslim woman to
be given to her at the time of divorce. It lays down that a reasonable and
fair provision has to be made for payment of maintenance to her during
the period of Iddat by her former husband. Clause (b) of Section 3(1)
(supra) provides for grant of additional maintenance to her for the
fosterage period of two years from the date of birth of the child of
marriage for maintaining that child during the fosterage. Maintenance for
the prescribed period referred to in Clause (b) of Section 3(1) is granted
on the claim of the divorced mother on her own behalf for maintaining
the infant/infants for a period of two years from the date of the birth of
the child concerned who is/are living with her and presumably is aimed
at providing some extra amount to the mother for her nourishment for
nursing or taking care of the infant/infants upto a period of two years. It
has nothing to do with the right of the child/children to claim
maintenance under Section 125, Cr. P.C. So long as the conditions for
the grant of maintenance under Section 125, Cr. P.C. are satisfied, the
rights of the minor children, unable to maintain themselves, are not
affected by Section 3(1)(b) of the 1986 Act. Under Section 125, Cr. P.C.

1 1885 Mad. 236.


2 AIR 1964 AP 105.
3 Vishnuvajhula Venkata vs. Subrahmanyam, II (1985) DMC 201
Hyderabad.
Duty to maintain—Effect of support of relatives 211

the maintenance of the children is obligatory on the father (irrespective


of his religion) and as long as he is in a position to do so and the
children have no independent means of their own, it remains his absolute
obligation to provide for them. Insofar as children born of Muslim
parents are concerned there is nothing in Section 125, Cr. P.C. which
exempts a Muslim father from his obligation to maintain the children.
These provisions are not affected by clause (b) of Section 3(1) of the
1986 Act and indeed it would be unreasonable, unfair, inequitable and
even preposterous to deny the benefit of Section 125, Cr. P.C. to the
children only on the ground that they are born of Muslim parents. The
effect of a beneficial legislation like Section 125, Cr. P.C., cannot be
allowed to be defeated except through clear provisions of a statute. We
do not find manifestation of any such intention in the 1986 Act to take
away the independent rights of the children to claim maintenance under
Section 125, Cr. P.C. where they are minor and are unable to maintain
themselves. Muslim father’s obligation, like that of a Hindu father, to
maintain his minor children as contained in Section 125, Cr.P.C. is
absolute and is not at all affected by Section 3(1)(b) of the 1986 Act.
Indeed a Muslim father can claim custody of the children born through
the divorced wife to fulfil his obligation to maintain them and if he
succeeds, he need not suffer an order or direction under Section 125,
Cr.P.C. but where such custody has not been claimed by him, he cannot
refuse and neglect to maintain his minor children on the ground that he
has divorced their mother. The right of the children to claim maintenance
under Section 125, Cr.P.C. is separate, distinct and independent of the
right of their divorcee mother to claim maintenance for herself for
maintaining the infant children upto the age of 2 years from the date of
birth of the concerned child under Section 3(1) of the Act. There is
nothing in the 1986 Act which in any manner affects the application of
the provisions of Sections 125-128 of the Cr.P.C. relating to grant of
maintenance insofar as minor children of Muslim parents, unable to
maintain themselves, are concerned. 1
While it is both possible and desirable to bring about a clean
break as between husband and wife, it is neither possible nor desirable to
bring about a clean break between father and son.

Effect of support of relatives


In one case the wife had candidly stated that she had been solely
depending on her parents for her livelihood. The fact that even after the

1 Noor Sabba Khatoon v. Mohd. Quasim, 1997 CrLJ 3972: 1997 AIR
(SC) 3280: 1997 CrLR (SC) 536: 1997 SCC (Cr) 924: 1997(3)
Crimes 106: 1997(2) Ker LT 363: 1997(2) Pat LJR 110.
212 Law of Maintenance

impact of modern life, familial nexus is cherished and nurtured in this


country, and consequently a helpless daughter and grandchildren happen
to be cared for and looked after, by the parents or grandparents, as the
case may be, is no ground for the husband to disown his own legal
responsibility in the matter. 1

Nature of obligation
Under the Hindu law the liability to maintain others arises in a
two-fold manner:
(a) from the existence of a particular relationship independent of
the possession of any property,
(b) on possession of property.
In the first category fall the cases of the liability to maintain a
person’s wife, minor sons, and unmarried daughters and aged parents.
Here the obligation is personal and is brought into existence by the
relationship. In the other category are those where the liability is
dependent on the possession of coparcenary property. Assuredly the
liability to provide for the maintenance of the disqualified heir under the
Hindu law would fall under the latter category also, i.e., it is not
confined to the particular relationships which cast the obligation to
maintain. Thus a brother would have to be maintained out of the joint
property where he is disqualified from claiming partition. No doubt, the
texts deny him the right to partition but that is not the subject matter of
the discussion here. If the right to be maintained is traceable to his right
to the property in which he is excluded from participating in full, it
would not be a violent inference to hold that he has an incipient and
vestigial interest in that property which is not capable of being asserted
against other coparceners, but when there is none entitled to enjoy it as
coparcener, blossoms into a full right. 2

Refusal to join
The right to be maintained by the husband stems from
performance of marital duty. It is only when the Court inter alia comes
to the finding that the wife claiming maintenance had been prevented
from performing the marital duty by the husband that she could be
awarded maintenance. When it is found that the wife declines to live

1 Radha Kumari vs. K.M.K. Nair, I (1983) DMC 432 Kerala: AIR 1983
Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217.
2 Kamalammal vs. Venkatalakshmi Ammal, AIR 1965 SC 1349:
1965(2) MadLJ (SC) 122: 1965(2) SCJ 638.
Duty to maintain—Scope of obligation of husband 213

with husband without any just cause and there is no evidence of ill-
treatment by the husband, wife is not entitled to maintenance. 1
In this case, it was noticed that the husband had even sent a
registered notice to the wife asking her to stay with him but she refused
to accept the notice. She was therefore held to be not entitled to
maintenance. 2

Scope of obligation of husband


The Hindu Law Texts and the important commentaries impose a
legal personal obligation on a husband to maintain his wife irrespective
of his possession of any property, whether joint or self-acquired. They
recognize the subordinate interest of the wife in her married status. They
also prohibit the alienation of properties by the husband which has the
effect of depriving her and other dependents of their maintenance. They
further treat her as a member of a Hindu joint family entitled to be
maintained out of joint funds. The decisions of the various High Courts
to the same line, recognize her subordinate interest in her husband’s
property, and enforce his personal obligation by creating a charge on his
properties either self-acquired or ancestral. A wife, therefore, is entitled
to be maintained out of the profits of her husband’s property and, if so,
under the express terms of Section 39 of the T.P. Act, she can enforce
her right against the properties in the hands of the alienee with notice of
her claim. 3
When the husband is alive, he is personally liable for the wife’s
maintenance, which is also a legal charge upon his property, this charge
being a legal incident of her marital co-ownership in all her husband’s
property. But after his death, his widow’s right of maintenance becomes
limited to his estate, which when it passes to any other heir, is charged
with the same. There cannot be any doubt that under Hindu Law, the
wife’s or widow’s maintenance is a legal charge on the husband’s estate,
but the Courts appear to hold, in consequence of the proper materials not
being placed before them, that it is not so by itself, but is merely, a claim
against the husband’s heir, or an equitable charge on his estate; hence the
husband’s debts are held to have priority, unless it is made a charge on
the property on the property by a decree. 4

1 Bheekha Ram vs. Goma Devi, 1999(1) HLR 543 Rajasthan.


2 Bheekha Ram vs. Goma Devi, ibid.
3 Banda Manikyam vs. Banda Venkayamma, AIR 1957 AP 710.
4 Vaddeboyina Tulasamma vs. V. Sesha Reddi, 1977 (3) SCR 261;
AIR 1977 SC 1944; 1977 (3) SCC 99.
214 Law of Maintenance

Therefore, according to Sastri’s interpretation of Shastric Hindu


Law the right to maintenance possessed by a Hindu Widow is a very
important right which amounts to a charge on the property of her husband
which continues to the successor of the property and the wife is regarded
as a sort of co-owner of the husband’s property though in a subordinate
sense i.e. the wife has no dominion over the property. The Hindu female’s
right to maintenance is not an empty formality or an illusory claim being
conceded as a matter of grace and generosity, but is a tangible right
against property which flows from the spiritual relationship between the
husband and the wife and is recognized and enjoined by pure Shastric
Hindu Law and has been strongly stressed even by the earlier Hindu jurists
starting from Yajnavalkaya to Manu. Such a right may not be a right to
property but it is a right against property and the husband has a personal
obligation to maintain his wife and if he or the family has property, the
female has the legal right to be maintained therefrom. If a charge is
created for the maintenance of a female, the said right becomes a legally
enforceable one. At any rate, even without a charge the claim for
maintenance is doubtless a pre-existing right. 1
Under the Hindu law the liability to maintain others arises in a two-
fold manner: (a) from the existence of a particular relationship independent
of the possession of any property, (b) on possession of property. In the first
category fall the cases of the liability to maintain a person’s wife, minor
sons, and unmarried daughters and aged parents. Here the obligation is
personal and is brought into existence by the relationship. In the other
category are those where the liability is dependent on the possession of
coparcenary property. Assuredly the liability to provide for the maintenance
of the disqualified heir under the Hindu law would fall under the latter
category also, i.e., it is not confined to the particular relationships which
cast the obligation to maintain. Thus a brother would have to be maintained
out of the joint property where he is disqualified from claiming partition.
No doubt, the texts deny him the right to partition but that is not the subject
matter of the discussion here. If the right to be maintained is traceable to his
right to the property in which he is excluded from participating in full, it
would not be a violent inference to hold that he has an incipient and
vestigial interest in that property which is not capable of being asserted
against other coparceners, but when there is none entitled to enjoy it as
coparcener, blossoms into a full right.2

1 Vaddeboyina Tulasamma vs. V. Sesha Reddi, 1977 (3) SCR 261;


AIR 1977 SC 1944; 1977 (3) SCC 99.
2 Kamalammal vs. Venkatalakshmi Ammal, AIR 1965 SC 1349:
1965(2) Mad LJ (SC) 122: 1965(2) SCJ 638.
Persons entitled to maintenance—Aspiring wife 215

Chapter 6
Persons entitled to maintenance
SYNOPSIS
Introduction....................................215 Non working husband .................... 229
Aspiring wife ..................................215 Parents of married daughter ......... 230
Children .........................................216 Right of divorced wife.................... 231
Concubine ......................................216 Right of Hindu widow .................... 231
Coparcener ....................................217 Right of husband ............................ 232
Daughter-in-law.............................218 Right of illegitimate son ................ 232
Divorced wife .................................219 Right of unmarried daughter ......... 233
Father of illegitimate child ............221 Siblings .......................................... 233
Finding of legitimacy .....................221 Statutory right................................ 233
Husband .........................................222 Unborn child.................................. 234
Illegitimate child ............................223 Unmarried daughter ...................... 234
Major children ...............................225 Widowed daughter ......................... 235
Masculine includes feminine ..........226 Widowed daughter-in-law ............. 235
Minor children ...............................228 Wife................................................ 236
Mother ............................................228 Wife from void marriage ............... 238

Introduction
Every person is not entitled to maintenance. It only certain class
of persons who have been considered socially and economically weaker
and therefore been provided maintenance from different sources. The
source of this legislation is generally custom, shastric law, as also social
practices etc. as prevail in the country.

Aspiring wife
The non-applicant did not claim to be the legally wedded wife of
the applicant Suresh and claimed relief of prohibitory injunction against
non-applicantthat he should not marry elsewhere. In view of the
aforesaid fact, it was held that the non-applicant is not entitled to get any
maintenance under any law for the time being in force during the
pendency of the suit filed by the non-applicant. As such, the impugned
order of the Trial Court awarding maintenance pendente lite is prima
216 Law of Maintenance

facie illegal and in excess of the jurisdiction vested in the Court and
deserves to be set aside. 1

Children
It is the duty of father to maintain the children. Where wife is
carrying on business, she is prima facie not entitled to maintenance but
children are entitled to maintenance. 2
The need of the child is as much the need of the mother, because a
mother is not expected to neglect the need of the child and is on the contrary
expected to meet the need of the child even at the expenses of her own
maintenance. It was therefore held that there is no doubt that while granting
maintenance under Section 24 of the Act to a wife not only her own need
for maintenance of herself would be considered but if she had a child to
look after, need of the child shall also be taken into account.3
The word ‘wife’ or the ‘husband’ should not be interpreted in
such a strict and literal sense so as to rule out grant of maintenance to
the children who live with the wife and are dependent upon her. When
the children live with the wife and in the very nature of the
circumstances, the requirement of wife will include the requirement of
minor children dependent on her and living with her. That is borne out
from the reading of Section 24 of the Hindu Marriage Act, 1955. 4

Concubine
If a man and a woman choose to live together and indulge into
sex no such married status can be conferred automatically by their so
living upon such a woman. No legal status of a wife she is entitled to
in the eyes of law and society. Both law and society treat such woman
either a concubine or a mistress of that person with whom she is so
living. The two may also agree to live together to satisfy their animal
needs. But such a union is never called a married nor a woman leading
such life is bestowed with the sacrosanct honour of a wife. No marital
obligations accrue to such a woman against her husband. Secondly
such a life is called adultery. The applicant has to prove her status
under personal law before she can legally be entitled to maintenance
from her spouse. 5

1 Suresh vs. Nanubai, I (2001) DMC 426 MP.


2 Pushpa Kathju vs. Amit Mohan S. Dahiya Badshad, 1996 (62) DLT
525: 1996 MLR 258: 1996(3) AD(Delhi) 353.
3 Rajendra Kumar vs. Savitribai, I (1992) DMC 567 MP.
4 Pushpa Devi vs. Om Prakash, II (1985) DMC 107 Raj.
5 Malti vs. State of Uttar Pradesh, I (2001) DMC 204 All.
Persons entitled to maintenance—Coparcener 217

In one case the alleged husband claimed that he was not married
to her at all. She was working in his house as a cook and in the process
an illicit intimacy developed between them. They started living together
as husband and wife due to the aforesaid illicit relationship. It was held
that it was not enough to declare that they are married person or
applicant was married to the opposite party. While denying the
maintenance, it was observed as under:
‘The applicant has proved, by evidence, that she initially was
married to one Devi Das and from his house she had eloped and
lived, in between with several persons before becoming intimate
with the applicant. This in law is not enough to declare any
woman a legally wedded wife. Wife means a legally wedded wife
according to Section 125, Criminal Procedure Code. There ought
to be married according to religion or customs prevalent amongst
their community. A marriage carries a legal social or religious
sanction behind it. It can be broken only in the manner prescribed
either by law, religion or custom prevalent amongst the parties to
any such marriage. It provides a guarantee and also a sense of
security to the woman why enters into such nuptial bondage
especially. In the present case there is evidence on record, as
admitted by her, that she was turned out of the applicant’s house
by his wife after the administration of beating to her. 1
A Brahmin woman and her illegitimate son of Sudra father are
entitled to maintenance from the Estate after the death of father. The
claim of maintenance cannot be defeated on account of caste of the
woman. This position has remained unaffected by provisions of Hindu
Adoptions and Maintenance Act, 1956. 2

Coparcener
In the case of an ordinary joint family property, the members of
the family can claim four rights:
(1) the right of partition;
(2) the right to restrain alienations by the head of the family
except for necessity;
(3) the right of maintenance;
(4) the right of survivorship. 3

1 Malti vs. State of Uttar Pradesh, I (2001) DMC 204 All.


2 Amireddy Raja Gopala Rao v. Amireddi Sitharamamma, AIR 1965
SC 1970: 1965(2) SCWR 889: 1965(3) SCR 122.
3 Mirza Raja Pushpavathi Vijayaram vs. Sri Pushavathi Visweswar,
AIR 1964 SC 118: 1964(2) SCR 403; Shiba Prasad Singh vs. Rani
Prayag Kumari Debi, AIR 1932 PC 216.
218 Law of Maintenance

The characteristic feature of ancestral coparcenary property is


that members of the family acquire an interest in the property by birth or
adoption and by virtue of such interest they can claim for right: (1) the
right of partition; (2) the right to restrain alienations by the head of the
family except for necessity; (3) the right of maintenance; and (4) the
right of survivorship. 1 Though a coparcener has a right to seek
maintenance. The member is entitled to maintenance so long as the
family remains joint. 2

Daughter-in-law
Under the Hindu law there is a moral obligation on the father-in-
law to maintain the daughter-in-law and the heirs who inherit the
property are liable to maintain the dependants. It is the duty of the Hindu
heirs to provide for the bodily and mental or spiritual needs of their
immediate and nearer ancestors to relieve them from bodily and mental
discomfort and to protect their souls from the consequences of sin. They
should maintain the dependants of the persons of property they
succeeded. Merely because the property is transferred by gift or by will
in favour of the heirs the obligation is not extinct. When there is property
in the hands of the heirs belonging to the deceased who had a moral duty
to provide maintenance, it becomes a legal duty on the heirs. It makes no
difference whether the property is received either by way of succession
or by way of gift or will, the principle being common in either case. The
moral obligation of a father-in-law possessed of separate or self-acquired
property to maintain the widowed daughter-in-law ripens into a legal
obligation in the hands of persons to whom he has either bequeathed or
made a gift of his property. 3
Under section 19 of Hindu Adoptions and Maintenance Act one
of the conditions for the father-in-law to maintain the daughter-in-law is
that the daughter-in-law is not able to maintain herself from the estate of
her parents. A clear finding is necessary whether her parents have estate
sufficient to maintain her and on what circumstances, she is unable to
maintain herself or by her parents. For this purpose parents of plaintiff
are required to be heard. This is possible if they are made parties to the
suit. In their absence any finding will not bind them. Where, from the
estate of the parents, the daughter-in-law can maintain herself, question
of obligation of father-in-law does not arise. It is also to be found out

1 Maharaja Pratap Singh vs. Maharani Sarojini Devi, 1993 Supp(1)


SCR 607: 1994 Supp (1) SCC 734: 1993 (2) HLR 272.
2 Parbati Devi (Mt.) vs. Bansi Dhar, AIR 1943 All 360.
3 T. A. Lakshmi Narasamba vs. T. Sundaramma, AIR 1981 AP
88 (FB).
Persons entitled to maintenance—Divorced wife 219

whether there is any coparcenary property in the hands of the father-in-


law from which daughter-in-law is deprived of her share. 1

Divorced wife
Right of divorced wife to seek maintenance is not affected under
the new Code wherein dissolution of marriage makes no difference on
right to seek maintenance. 2
The word ‘wife’ in the sub-section does not have the extended
meaning including a woman who has been divorced. In other words, the
wordings contained in the said sub-section “if they are living separately
on mutual consent” would apply to the wife who is not divorced. After
divorce there is no question “mutual consent to live separately”.
Therefore, Section 125(4), Criminal Procedure Code, does not operate. 3
After divorce the concept of living together being not enforceable
under law, custom or practice, the factum of separate living does not by
itself disentitle the divorce to claim for maintenance under Section 125
of the Code. Thus on a logical corollary it can well be recorded that the
fact of desertion on which a decree of divorce was granted against the
wife i.e., the divorced wife, the fact cannot be extended to post decree
period. The factum of divorce and the change of the status from wife to
divorced wife is a supervening circumstance which the Court,
adjudicating the claim of maintenance under Section 125 of the Code,
should not ignore. In this case it was held that no doubt, learned
Magistrate did not specifically record about the supervening
circumstance, but it is apparent from the impugned order the
notwithstanding the separate living of the opposite party, her claim for
maintenance was allowed because she is a divorced wife. 4
Even accepting that an agreement was executed by both the
parties willingly, that would only show that there is a divorce on mutual
consent. Section 125(4), Criminal Procedure Code will be applicable to
the parties only when they decide to live separately by mutual consent
temporarily. Once the marriage is dissolved, mutual consent for living

1 Raj Kishore Mishra vs. Meena Mishra, AIR 1995 All 70 (DB).
2 Bai Tahira v. Ali Hussain Fissalli Chothia and another, 1979 CrLJ
151: AIR 1979 SC 362: 1979 SCC (Cr) 473: 1978 CAR 418: 1978
CrLR (SC) 616.
3 K. Pandian vs. A. Savithiri, I (2000) DMC 514 Madras:
1999(1) HLR 3.
4 Jashelal Agrawal @ Jain vs. Puspabati Agarwala, I (2000) DMC 592
Orissa: 1999(1) HLR 175.
220 Law of Maintenance

separately as contemplated under Section 125(4), Criminal Procedure


Code would not come into play at all. 1
The legal position so far as the right of divorced wife to get
maintenance under Section 125 of Criminal Procedure Code has
practically been crystallised. The Hindu Marriage Act speaks of a decree
in connection with a Hindu Marriage on a number of circumstances. As a
matter of fact, there may be a decree for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act. There can also be a decree
for judicial separation in terms of Section 10 of the Hindu Marriage Act.
There may be decree passed in accordance with Section 11 of the Hindu
Marriage Act declaring a marriage as null and void. There may be a
decree under Section 12 of the Hindu Marriage Act where the marriage
was otherwise valid but due to the presence of the ground mentioned in
the said section it could be declared as void at the instance of one of the
parties to the marriage. There may also be a decree of divorce under
Section 13 of the Hindu Marriage Act at the instance of either of the
parties for contravention of the different provisions mentioned in the
said section. While an application under Section 25(1) maintainable by
either party to the marriage and the Court having jurisdiction can pass an
order under the section either at the time of passing the decree or at any
time subsequent thereto, the scope of an application under Section 125 of
Criminal Procedure Code is not so wide. Such an application is
obviously guided by Section 125(1) of the Criminal Procedure Code
since in case of husband and wife it can be preferred by the wife which
includes a woman who has been divorced by or has obtained a divorce
from her husband and has no re-married. Thus a wife during the
continuance of a valid marriage as also a divorcee in terms of the
explanation given in Clauses (b) to Section 125(1) of the Criminal
Procedure Code are eligible to maintain an application under Section 125
of the Criminal Procedure Code. By implication in the event of a
marriage being declared null and void under Section 11 of the Hindu
Marriage Act or in the event of a marriage having been annulled in terms
of Section 12 of the Hindu Marriage Act an application under Section
125 of the Criminal Procedure Code at the instance of the wife is not
maintainable. 2

1 K. Pandian vs. A. Savithiri, I (2000) DMC 514 Madras:


1999(1) HLR 3.
2 Rampada Biswas vs. Dolly Mitra, II (1999) DMC 689 Calcutta; See
also Babulal vs. Sunita I (1986) DMC 256
Persons entitled to maintenance—Finding of legitimacy 221

Father of illegitimate child


In one case it was held that assuming that the petitioner was
fathered by the respondent, even the admission of the petitioner’s mother
that she was married as a second wife, the marriage is a nullity. Nowhere
Section 125 Criminal Procedure Code contemplates that a person is
entitled to claim maintenance against his illegitimate daughter or son. 1

Finding of legitimacy
In one case the admitted facts were that the appellant and the
respondent were close relations and not strangers before marriage. They
were married on 11-5-1973 and the girl child was born on 5-12-1973.
The respondent did not divorce the. appellant immediately after the child
birth or even two or three months later but he divorced her only on 16-
10-1974. The child birth took place in the house of the respondent
himself and hence there is no question of the birth of the child not being
known to the respondent immediately. It was held that if the appellant
was pregnant even at the time of the marriage she could not have
concealed that fact for long and in any event the respondent would have
come to know of it within two or three months of the marriage and
thereupon he would have immediately protested and either discarded the
appellant or reported the matter to the village elders and relatives and
sought for a divorce. On the contrary the respondent had continued to
lead life with the appellant in a normal manner till the birth of the child.
Even the confinement appears to have taken place in his house as
otherwise the child’s birth would not have been registered in his village.
The respondent had not disowned the child immediately after its birth or
sent away the appellant to her parents’ house. Such would not have been
his conduct if he had any doubt about the paternity of the child. On the
sole ground that the child had been born in about 7 months’ time after
the marriage it cannot be concluded that the child should have been
conceived even before the respondent had consummated the marriage.
Giving birth to a viable child after 28 weeks’ duration of pregnancy is
not biologically an improbable or impossible event. 2
In “Combined Textbook of Obstetrics and Gynaecology” by Sir
Gugald Baird 3 it is reported as under:—
“In the case of Clark v. Clark (1939) 2 All ER 59 an extremely
small baby, born alive 174 days after last possible date when
intercourse with the husband could have taken place, and which

1 K. Kamaldevi vs. Kammala Kumara Sekhar, I (1994) DMC 183 AP.


2 Dukhtar Jahan vs. Mohammed Farooq, AIR 1987 SC 1049: 1987
(1) SCR 1086: 1987 (2) DMC 225 SC.
3 7th Edition at page 162
222 Law of Maintenance

survived, was held to be legitimate. While it is most unusual for


babies of this weight or gestation period to survive it does
occasionally happen”.
It was held that the learned Judge ought not, therefore, to have
rushed to the conclusion that a child born in about 7 months’ time after
the marriage of the parents should have necessarily been conceived even
before the marriage took place. Section 112 of the Indian Evidence Act
lays down that if a person was born during the continuance of a valid
marriage between his mother and any man or within two hundred and
eighty days after its dissolution and the mother remains unmarried, it
shall be taken as conclusive proof that he is the legitimate son of that
man, unless it can be shown that the parties to the marriage had no
access to each other at any time when he could have been begotten. This
rule of law based on the dictates of justice has always made the Courts
incline towards upholding the legitimacy of a child unless the facts are
so compulsive and clinching as to necessarily warrant a finding that the
child could not at all have been begotten to the father and as such a
legitimation of the child would result in rank injustice to the father.
Courts have always desisted from lightly or hastily rendering a verdict
and that too, on the basis of slender materials, which will have the effect
of branding a child as a bastard and its mother an unchaste woman. 1
Lastly It was held that even if the child had been born after a full-
term pregnancy it has to be borne in mind that the possibility of the
respondent having had access to the appellant before marriage cannot be
ruled out because they were closely related and would therefore have
been moving in close terms. All these factors negate the plea of the
respondent that the minor child was not fathered by him. 2

Husband
Section 125 of the Code gives effect to the natural and
fundamental duty of a man to maintain his wife, children and parents so
long as they are unable to maintain themselves. In this context, it may be
stated that a married daughter is also not excluded from her moral
obligation to maintain her parents. The very object this Section is to
provide a speedy remedy against starvation for the persons named
therein. The remedy as provided in Section 125(1) of the Code is,
however, open only to a wife or child either legitimate or illegitimate or
to the parents of male of female, as the case may be, who are unable to
maintain themselves. But by no stretch of imagination, it can be said that

1 Dukhtar Jahan vs. Mohammed Farooq, AIR 1987 SC 1049: 1987


(1) SCR 1086: 1987 (2) DMC 225 SC.
2 Dukhtar Jahan vs. Mohammed Farooq ibid
Persons entitled to maintenance—Illegitimate child 223

that remedy is also open to a husband who is unable to maintain himself.


The husband may, under certain circumstances, seek maintenance from
his wife under-Section 24 and 25 of the Hindu Marriage Act, 1955 but
not under Section 125 of the Code. On plain reading of Section 125(1) of
the Code, right to seek maintenance is available only to the persons
named therein. 1
When there is a legal bar to claim maintenance under Section 125
of the Code by the husband against his wife, his application purported to
be an application under Section 125 of the Code is certainly not
maintainable under the Code. He may go to Civil Court for establishing
his right to claim maintenance, but the Magistrate in exercising his
power under Section 125 of the Code cannot pass an order for
maintenance in his favour. That means the Magistrate who entertains
such an application from husband under Section 125 of the Code is not
competent to pass an order for maintenance. 2

Illegitimate child
In view of the conclusive proof of legitimacy of a child born
during the continuance of a marriage in the absence of proof of no
access, the petitioner was entitled to the benefit of Section 112 of the
Evidence Act. Wisely enough and in view of the gynaecological science,
Section 112 of the Evidence Act contemplated the duration of pregnancy
of 280 days or 9 months and 10 days. On this understanding it was
observed, in view of the facts and circumstances of the case, as under:
‘Therefore, the maximum outer period of the pregnancy or
gestation in case of the petitioner should have been till 21 st June,
1988. In such a situation it was possible for the respondent No. 1
to inquire and produce evidence to show that the petitioner was
born after June, 1988 to put him out of the period of gestation and
the evidence under Section 112 of the Evidence Act. Even then
both the science and law in regard to period of gestation appears
to be something different. Two hundred and eighty days as the
possible duration of pregnancy appears to be not an invariable
rule. Actually it may be more and in several cases, the birth could
be beyond that period. Although fertilization generally takes
place at the time of coitus, there will be some interval between
insemination and fertilization when the sperm during its journey
meets the ovum. The medical evidence appear to be that such
interval may be as long as 21 days. The child born after 305 to
346 days after the last sexual intercourse or the access for sexual

1 Jayashri vs.Vibhas, I (1995) DMC 5.


2 Jayashri vs.Vibhas, ibid.
224 Law of Maintenance

intercourse has been held to be legitimate, having due regard to


the facts and circumstances of particular cases.’ 1
In another case it was held that even assuming that the child born
was an illegitimate child, unless and until a finding to that effect is given
by the Court, the claim for maintenance is liable to be entertained. 2
The object of Section 125 of the Code is to provide a summary
remedy to save dependants fro destitution and vagrancy and this is to
serve a social purpose, apart from independent of the obligation of the
parties under their personal law. The right of the child legitimate or
illegitimate under the Code is an individual right of the child in his or on
her own right, independent of the mother. When a woman claims
maintenance on behalf of a minor child out of wedlock against his
alleged putative father, the on us is on her to show that the child could
only have been born through the alleged father under the circumstances
of an exclusive relationship. 3 In such a case the woman being a highly
interested person, the Court has a duty to see that her statement gets
some independent corroboration, direct or circumstantial, that the
claimant could have conceived the child when she and the alleged father
had access to each other.
Section 125 aims not to punish for the past, but to prevent future
vagrancy by compelling those who are capable, to support those who are
unable to support themselves and have a moral claim to support. 4 While
deciding the case of entitlement of a child paternity and not legitimacy
has to be seen. Where maintenance is claimed for an illegitimate child
from an alleged father, it is not enough that the defendant would have
been the father, but the Court has to find out that in all reasonability no
one else could have been the father. 5
It is true that the courts should spare no pains to obviate a
situation where a child is likely to suffer in respect of its reputation. It
will, however, be cruel and unjust to an innocent person toiling hard in
the desert regions, to be undeservedly attributed the paternity of a child,
for whose birth he had no part to play nor any responsibility to shoulder.
Difficult indeed is the life of many a wife who eagerly awaits the return

1 Abdul Khadar Munwar vs. Mohd. Iqbal Pasha, II (1995) DMC


250 AP.
2 Vijay Motiram Awarkar vs. Pushpa, I (1990) DMC 592 Bombay.
3 B. Mahdeva Roa vs. Yasoda Bai, AIR 1962 Mad. 141 and Durairaju
vs. Neela, 1976 Crl. LJ. 1507.
4 Jagir Kaur (Mst.) vs. Jaswant Singh, AIR 1963 SC 1521
5 Ahalya Bariha @ Barihani vs. Chhelia Padhan, I (1992) DMC
158 Ori.
Persons entitled to maintenance—Major children 225

of the dear ones after long periods of separation from home. The
psychological and sociological problems which sometimes lead to
domestic disturbances, have been, in recent times, the subject-matter of
studies by researchers in the respective disciplines. Woman, whose
intrinsic virtue and normal fidelity could be beyond question, may,
occasionally though extremely rarely, have a fatal fall along the steep
and slippery slopes of temptation. While one may sympathise with the
victim, it will, at the same time, be unjust to make an innocent person
pay for such a lapse of the other spouse. 1
In one case it was held that the perusal of the evidence led by the
husband itself shows that he was only harbouring suspicion against the
wife on the basis of some anonymous letters received by him. In his
written statement, he had not alleged any facts or circumstances which
led him to believe that suspicion either. For the first time in his
deposition, he has stated that on a particular day, he returned home
suddenly and had seen his wife with a stranger. Firstly, he has not seen
anything incriminating. Only a person was sitting. But this fact is not
alleged in his written statement. Then, he has adduced evidence to show
that she was moving out and attending cinema with one Rokde. This
specific fact is also not stated in his written statement. Moreover, no
questions to that effect were asked to the applicant during her cross-
examination on his behalf. In view of this fact it was held that it was
more than obvious that the husband had started doubting the chastity of
the wife on the basis of these anonymous letters received by him and had
therefore, driven her out of the house and had not cared for the
maintenance of the wife and children. The reasoning’s of the trial Judge
was held to be sound and rational and the view taken by the trial Court
that presumption which arises for the legitimacy of the children under
section 112 of the Evidence Act has not been rebutted by the husband
was held to be justifiable. 2

Major children
The rule of law must run close to rule of life. The idea of granting
maintenance is to see that the wife and children get a standard of living
on par with the husband. Whether it is a full meal or half a meal, each
one is entitled to a share. If a son reaches the age of eighteen, it does not
mean that as from that date he has to starve. That is not the law. It only
means that as from the age of eighteen the law takes note of the fact that
he has capacity to earn. But if he still depends on his mother either for

1 Kathichal Puthyapurayil Pathumma vs. Thundakachi Abdulla,


I (1985) DMC 231 Kerala.
2 Chakor vs. Prerna, I (1985) DMC 249 Bombay.
226 Law of Maintenance

study or for shelter, that fact will have to be taken into account, when a
mother (of wife) is given maintenance. He is not given any maintenance.
But the one who looks after him gets it. 1
Another view is that a child is entitled to maintenance as long as
it is minor. Exception has been carved out in Sub-section (3) which
covers an unmarried daughter, but as far as a major son is concerned
there is no exception. A major son will not come within the purview of
Section 24 of the Act, to be entitled to maintenance from the father. 2
Under the new Code only minor children unable to maintain
themselves would come under this section and in the case of major
children only those who are suffering from some mental or physical
defect or injury and are unable to maintain themselves are eligible to get
the benefit under Section 125, Criminal Procedure Code. 3
As per Section 125 Criminal Procedure Code, it is clear that the
maintenance can be awarded only to minor children under Section 125
Criminal Procedure Code, whether married or not, when they are not able to
maintain themselves. Only in special circumstances the maintenance can be
awarded even after attaining the majority where such child is, by reason of
any physical or mental abnormality or injury unable to maintain herself.4

Masculine includes feminine


The definition of “person” is distinguished from “man” and
“women” “Person” may include a natural person, may be “male or
“female”, it will also include a juristic person as given in the General
Clauses Act. But where Legislature specifically intends to refer to male
human being, it may use as “man” or “women”. Taking into view these
definition and explanation in the I.P.C as well as the General Clauses
Act for the purpose of Section 125 when Section 125 uses the word
“person”, it has to be taken to include both “male” and “female”. It
means that if any “male” or “female” having sufficient means neglects or
refuses to accept “his” or “her” liability to maintain then if other
conditions of either Clauses (a), (b) or (c) of Section 125 are shown to
exist, liability may be fastened to maintain. 5
As regards child, legitimate or illegitimate child, male or female,
unable to maintain itself has got the right to be maintained by his parents

1 Gitanjali Gajanan Tendulkar vs. Gajanan Dinkar Tendulkar,


I (1990) DMC 59 Bombay.
2 Avnish Pawar vs. Sunita Pawar, II (2000) DMC 283 MP.
3 Ashan Ali vs. Musstt. Junagar Begum, I (2000) DMC 680 Gauhati.
4 K. Sivaram vs. K. Mangalamba, II (1989) DMC 452 AP.
5 S.K. Chandrika vs. Byamma, I (2000) DMC 185 Karnataka
Persons entitled to maintenance—Masculine includes feminine 227

male and female, and expression “his” has to be read as “her” also. In the
same way, under Clauses (c) expression used in legitimate or illegitimate
child, exception has no doubt been made to it clearly, by expression not
being a married daughter which is clearly indicative of the fact that the
person who has sufficient means if he has got legitimate or illegitimate
child, male or female, who has attend majority, who has physical or
mental abnormality and is unable to maintain himself or herself, liability
is of the person concerned to maintain with exception to the case of a
married daughter who has attained majority. But, in case of minor
children, no exception has been provided. In view of Section 8, when
“he” or “his” is used, it has to be read including in itself “she” or “her”.
If we look to Sub-section (3) as well, the Legislature has used the word,
“if any person so ordered” means where a person having sufficient means
be a father or mother neglects to maintain his or her children, legitimate
or illegitimate, minor or major, with exception to Clauses (c) and he has
been ordered to maintain them without any sufficient cause, fails to
comply with the order, the Magistrate has been given power to issue
warrant. When Legislature has not used the expression of “man” but used
“person”, it includes “male” or “female” and it cannot be read to be
referring to “man” only. The provisions of Section 125 are social welfare
legislation. The object of such a provision has been considered to be that
such persons who are not able to maintain themselves, they should not be
left to the agony of starvation, frustration or of destitution and in case of
female destitution, which may lead to prostitution. To avoid such a
situation, the Legislature has enacted this provision. A social welfare
legislation has to be interpreted keeping in view the object of the
provision. If a female person is earning and she has got minor children to
maintain and she refuses to maintain the minor children, be it be male or
female then definitely she is liable to maintain them as the Legislature
has not used the expression “man” or “woman”, but “person”, it has to be
taken that person includes both male or female, “his” may also be
interpreted as “her” in view of the above provisions of the General
Clauses Act as well as provision of he I.P.C referred to above. In sub-
section, the legislature has used the expression “any person”. So a
petition for maintenance under Section 125 is maintainable against again
the mother irrespective of the fact that mother belongs to feminine
gender. Here “person” includes both “male” and “female” and “his” is to
be read as “her” also. 1

1 S.K. Chandrika vs. Byamma, I (2000) DMC 185 Karnataka; → →


→See also Repalli Masthanamma v. Thota Sriramuu., 1982
Madras LJR (Cri) 313 (AP)
228 Law of Maintenance

Minor children
The obligation of father or mother of unmarried daughter or
minor son to maintain them is not joint but several. If they are not
maintained adequately by either of them, they can certainly make good
the deficit by seeking maintenance from the other. The question of
double maintenance does not arise in such a situation. Further if the
minors sue either of the parents for maintenance it is open to either of
them to contend that they cannot sue him or her seeking maintenance
since they were maintained by the other till then. That is so because, the
liability of each of the parents to maintain their unmarried daughters or
minor sons is not joint but several. 1

Mother
If the sons effect a partition between themselves, the mother is
entitled at the time of partition to a share equal to the share of a son
which she receives in lieu of maintenance. The joint family in the instant
case has been severed by the filing of the suit. The applicant is entitled
to her share in lieu of the maintenance which she is otherwise
entitled to. 2
Right of maintenance against the property does not entitle a share
to the wife/mother in the joint family property in lieu of maintenance.
The fact that she had, as on 15.2.1970, a right to maintenance against
this property which later crystallised into the allotment of this property
in her favour on 24.9.1970 is not sufficient. Neither under the customary
Hindu law, nor under the Hindu Marriage Act, 1955 nor under the Hindu
Succession Act, 1956 nor under the Hindu Adoptions & Maintenance
Act, 1956 is there any provision which gives a share to a wife in the joint
family property held by her husband nor to a mother in the joint family
property allotted to her son in a partition. 3
Bearing in mind the general social purpose of Section 125
Cr.P.C., it was reasonable to construe the different word used in it as per
their natural meaning and there existed no justification for construing
them in any special sense in which they were understood under any
particular personal law. The natural meaning of the word ‘mother’ as
contained in any standard dictionary was a female parent i.e. a woman
who has given birth to a child. But, then, it was significant that the

1 Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka; relying


upon Kaniki Subraya Gowda’s case 1964 Mysore LJ Supp 375
2 Parbati Devi (Mt.) vs. Bansi Dhar, AIR 1943 All 360.
3 A.G. Vardarajulu vs. State of Tamil Nadu, 1998(4) SCC 231: AIR
1998 SC 1388: 1998 (2) Scale 441.
Persons entitled to maintenance—Non working husband 229

words ‘father’ and ‘mother’ have been used in the same context in the
particular part of the Section. In the case of the word ‘father’, there
being nothing repugnant in the ‘subject’ or ‘context’, there was no
reason to think that the word did not have the same meaning as it had as
per its definition contained in Clauses (20) of Section 3 of the General
Clauses Act. As per its definition in the said Clauses, ‘father in case of
anyone whose personal law permits adoptions shall include an adoptive
father’. It was true that there was no similar definition of the word
‘mother’ contained in the General Clauses Act. But, then, again, there
was no reason to think that the word ‘mother’ as used in the particular
part of the Section did not have as wide a meaning as the word ‘father’
used in the said part of the Section had. There was no reason to think
that when an ‘adoptive father’ is entitled to claim maintenance from his
‘adoptive son’ under the provision an ‘adoptive mother’ should not be
similarly entitled to do so. However, the case of a ‘step mother’ was
altogether different. As already mentioned above, as per its natural
meaning, the word ‘mother’ meant a female parent i.e. a woman who has
given birth to a child. As per the said meaning it did not include a ‘step
mother’. 1 Again, as in the particular context the word ‘mother’ received
colour from the word ‘father’, its natural meaning got extended so as to
include an adoptive mother’. But, then, there was nothing in the
particular context which could provide a reason for extending the
abovesaid extended meaning of the word ‘mother’ any further so as to
include a ‘step mother’ also within its compass. 2
When Section 125, Cr.P.C. provided that a ‘mother’ unable to
maintain herself was entitled to claim maintenance under the said
section it meant that a ‘natural’ ‘mother’ i.e. the woman who had
given birth to the child and an ‘adoptive mother’ i.e. the woman who
had taken the child in adoption were alone entitled to make such a
claim against the ‘natural son’ and the ‘adopted son’ respectively. A
‘step mother’ was not entitled to make any such claim against her
‘step son’ under the said Section. 3

Non working husband


It is true that Section 24 of the Hindu Marriage Act, 1955 entitles
either party to move an application for maintenance provided such party
has no means of subsistence and the other party is in a position to
provide maintenance. But it does not mean that the husband who is

1 Ramabai vs. Dinesh, 1976 Mah LJ 565


2 Rewalal vs. Kamla, II (1986) DMC 53 MP.
3 Rewalal vs. Kamla ibid affirmed in Kirtikant D. Vadodaria vs. State
of Gujarat, 1996 (4) SCC 479
230 Law of Maintenance

otherwise capable of earning his living should stop earning the living and
start depending on earning of his wife. 1
In One case if was found that the husband had incapacitated
himself by stopping the running the auto-rickshaw on hire. It was
observed that it was a well-established maxim of Anglo-Saxon
jurisprudence that no person can be allowed to incapacitate himself. The
maxim is applicable to the case of earning husband. A person who
voluntarily incapacitates himself from earning is not entitled to claim
maintenance from the other spouse. 2

Parents of married daughter


There can be no doubt that it is the moral obligation of a son or a
daughter to maintain his or her parents. It is not desirable that even
though a son or a daughter has sufficient means, his or her parents would
starve. Apart from any law, the Indian Society casts a duty on the
children of a person to maintain their parents if they are not in a position
to maintain themselves. It is also their duty to look after their parents
when they become old and infirm. It is true that Clause (d) has used the
expression “his father or mother” but the use of the word ‘his’ does not
exclude the parents claiming maintenance from their daughter. Section
2(y), Cr.P.C. provides that words and expressions used herein and not
defined but defined in the Indian Penal Code have the meanings
respectively assigned to them in that Code. Section 8 of the Indian Penal
Code lays down that the pronoun ‘he’ and its derivatives are used for any
person whether male or female. Thus, in view of Section 8, IPC read
with Section 2(y), Cr.P.C. the pronoun ‘his’ in Clause (d) of Section
125(1), Cr.P.C. also indicates a female. Section 13(1) of the General
Clauses Act lays down that in all Central Acts and Regulations, unless
there is anything repugnant in the subject or context, words importing
the masculine gender shall be taken to include females. Therefore, the
pronoun ‘his’ as used in Clause (d) of Section 125(1), Cr.P.C. includes
both a male and a female. In other words, the parents will be entitled to
claim maintenance against their daughter provided, however, the other
conditions as mentioned in the section are fulfilled. The father or mother,
unable to maintain himself or herself, can claim maintenance from their
son or daughter. The expression “his father or mother” is not confined
only to the father or mother of the son but also to the father or mother of

1 Govind Singh vs. Vidya, II (2000) DMC 693 Rajasthan.


2 Govind Singh vs. Vidya ibid
Persons entitled to maintenance—Right of Hindu widow 231

the daughter. In other words, the expression “his father or mother”


should also be construed as “her father or mother”. 1

Right of divorced wife


Section 125 Criminal Procedure Code is a salutary provision
intended to granting maintenance for wives, children and parents. For the
purpose of the provisions of this Chapter, it is explained that ‘wife’
includes a woman who been divorced by or has obtained a divorce from,
her husband and has not remarried. So under Section 125 Criminal
Procedure Code a divorced wife also can maintain an application. Under
Section 125(4) it is stated that “no wife shall be entitled to receive an
allowance from her husband under this Section if she is living in
adultery, of if, without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual consent”. 2
Section 125(4) itself has no application to a woman who has
already been divorced by her husband for the simple reason that a
divorced woman can never be said to be committing adultery even if she
has got promiscuous sexual relationship with other person. In Oxford
English Dictionary the word ‘adultery’ is defined as “violation of the
marriage bed. Voluntary sexual intercourse of a married person with one
of opposite sex, whether unmarried or married to another”. Violation of
marriage bed is not only the ordinary meaning of the word ‘adultery’ but
it is also the legal meaning of that word. The cardinal points for
consideration is whether woman has “defied her marriage” bed and if she
is no longer a wife there cannot be any defilement or disowning of her
marriage bed as she is a single woman then and has no marriage bed and
married home. So, the term ‘wife’ used under Section 125(4) Criminal
Procedure Code would only mean a woman whose marriage relationship
is in existence. A divorced woman will not come within the amplitude of
Section 125(4). 3

Right of Hindu widow


The coparceners of her deceased husband who have taken his
properties by survivorship, have no right to prescribe and arbitrary
standard as regards the comforts the widow is entitled to have or the
style in which she should live. It is not open to them to say that even
though they are getting a large income from family properties, as they

1 Vijaya Manohar Arbat (Dr. Mrs.) vs. Kashirao Rajaram Sawai, 1987
CrLJ 977: AIR 1987 SC 1100: 1987 CAR 87: 1987 (2) SCC 278:
1987 CrLR (SC) 281: 1987 (2) Crimes 348: 1987 All LJ 553.
2 Alavi vs. Safia, II (1992) DMC 311 Kerala.
3 Alavi vs. Safia, ibid.
232 Law of Maintenance

are living frugally widow also must be content with the barest necessities
of life. The Shastraic Injunction that the widow’s life should be one
austerity and semi starvation is not a legal injunction and ought not to be
considered at all. 1
Hindu widow is not bound to reside with the same relatives of her
husband, the relatives of her husband have no right to compel her to live
with them and she does not forfeit her right to property or maintenance
merely on account of her going and residing with the family or
separately or leaving her husband’s residence from any other cause than
unchaste and improper purposes. Unless there is waiver or abandonment
of her right to maintenance by the widow she is entitled to maintenance
from the death of her husband. As rule, widow cannot claim arrears of
maintenance for the period her husband’s family unless she was kept
under circumstances of extreme penury and oppression. However, she is
entitled to arrears from the time, she change her residence, and under no
circumstances can the right be post-dated from the institution of suit for
maintenance. The amount of maintenance is liable to be increased with
the increase in the value of the estate or the cost of living or decreased
with the reduction in the value of the estate or its income due to cause
beyond the holder’s control. 2

Right of husband
The husband was mentally and physically well bodied person.
He had a skill of a particular business. There was no handicap for him
to earn bare minimum to support his livelihood. Merely because his
business is closed, it cannot be held that the he has no source to earn.
Since his wife was in the employment, the husband cannot make
himself wholly dependent on her income through a device of Section
24 of the Hindu Marriage Act, 1955. In absence of any handicap or
impediment to earn, to grant maintenance to such able bodied person
equipped with skill would promote idleness. It is opposed to spirit of
Section 24 of the Act. 3

Right of illegitimate son


As per Mitakshara Law an illegitimate son is entitled to
maintenance as long as he lives in recognition of the status as a member
of family and by reason of his exclusion from inheritance among the

1 R.B. Gurubasvaiah vs. M.G. Preme, II (1992) DMC 191 Kar.


2 R.B. Gurubasvaiah vs. M.G. Preme, ibid.
3 Kanchan vs. Kamalendra, I (1992) DMC 619 Bombay.
Persons entitled to maintenance—Statutory right 233

regenerate classes. 1 But irrespective of validity of marriage an


illegitimate minor child is entitled to maintenance. 2

Right of unmarried daughter


Under the Hindu Adoption & Maintenance Act, 1956 it is the
obligation of a parent to maintain his unmarried daughter if she is unable
to maintain herself. Where the wife has no income of her own, it was the
obligation of the husband to maintain her and her two unmarried
daughters one of whom is living with wife and one with him. Section 24
of the Hindu Marriage Act, 1955 no doubt talks of maintenance of wife
during the pendency of the proceedings but this section, it was held that,
cannot be read in isolation and cannot be given restricted meaning to
hold that it is the maintenance of the wife alone and no one else. Since
wife is maintaining the eldest unmarried daughter, her right to claim
maintenance would include her own maintenance and that of her
daughter. This fact has to be kept in view while fixing the maintenance
pendente lite for the wife. 3

Siblings
The father or mother unable to maintain himself or herself can
claim maintenance from the son or daughter, as the case may be. None of
the Clauses (a) to (b) of Sub-section (1) relate to claim by a brother or a
sister. Therefore, claim of maintenance by brothers and sister has no leg
to stand. 4

Statutory right
In order to constitute a joint family, it is not always necessary
that there should be two male coparceners. Even prior to the Hindu
Succession Act, 1956, in a joint family property a wife or other female
members were entitled to maintenance under the Hindu Women’s Right
to Property Act, 1937. This Act introduced an important change in law
relating to the rights of women succession, which came into force from
April 14, 1937. This Act gave at least a limited right to property to
certain classes of the women members of the joint family. This limited

1 Mothey Anja Ratna Raja Kumar vs. Koney Narayana Rao, AIR 1953
SC 433: 1952 SCJ 507
2 Sumitra Devi v. Bhikan Choudhary, 1985 CrLJ 528: AIR 1985 SC
765: 1985 CrLR (SC) 146: 1985 SCC (Cr) 145: 1985 CAR 93: 1985
PatLJR 11: 1985(2) Rec Cr R 61.
3 Jasbir Kaur Sehgal vs. District Judge, Dehradun, AIR 1997 SC
3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2)
Orissa LR 379.
4 Saudamini Tripathy vs. Pramila Dibya, II (1995) DMC 492 Orissa.
234 Law of Maintenance

right has been converted to a full right as per section 14 of the Hindu
Succession Act. 1

Unborn child
Application on behalf of an unborn child is not maintainable
because no refusal or neglect on the part of father to maintain such child
can be proved or proved or inferred. Moreover, due to natural or
unforeseen circumstances, the birth of a child alive cannot be taken for
granted. Thus, due to such like contingencies the filling of application on
behalf of the child still in the womb of the mother would introduce
vagueness in such like proceedings and such was not the intention of the
legislature in enacting this provision providing for speedy maintenance
allowance in order to save the wives, children or parents from becoming
destitute. It was further held that no doubt, it will result in hardship to
the minor child if the order of cancellation of his maintenance allowance
is upheld, yet all the same there is no option but to do so because the
application on his behalf was not maintainable till he was born, although
the mother had claimed maintenance allowance on behalf of the unborn
child in the original application. It was however held that the mother can
file a fresh application on behalf of the minor child. 2

Unmarried daughter
Under the Hindu Adoption & Maintenance Act, 1956 it is the
obligation of a person to maintain his unmarried daughter if she is unable
to maintain herself. In one case, the wife had no income of her own, it
was held that it was the obligation of the husband to maintain her and her
two unmarried daughters one of whom is living with wife and one with
him. Section 24 of the Hindu Marriage Act, 1955 no doubt talks of
maintenance of wife during the pendency of the proceedings but this
section cannot be read in isolation and cannot be given restricted
meaning to hold that it is the maintenance of the wife alone and no one
else. Since wife is maintaining the eldest unmarried daughter, her right
to claim maintenance would include her own maintenance and that of her
daughter. This fact has to be kept in view while fixing the maintenance
pendente lite for the wife. 3

1 CIT vs. Arun Kumar Jhunjhunwalla and Sons, 1997(223) ITR 45


(Gau).
2 Pushpinder Kaur vs. Balbir Singh, II (1992) DMC 483 P&H.
3 Jasbir Kaur Sehgal vs. District Judge, Dehradun, AIR 1997 SC
3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2)
Orissa LR 379.
Persons entitled to maintenance—Widowed daughter-in-law 235

Widowed daughter
Maintenance by a man of his dependants is, with the Hindus, a
primary duty. They hold that he must be just, before he is generous, his
charity beginning at home; and that even sacrifice is mockery, if to the
injury of those whom he is bound to maintain. Nor of his duty in this
respect are his children the only objects, co-extensive as it is with the
family whatever be its composition, as consisting of other relations and
connections, including (it may be) illegitimate offspring. It extends
according to Manu and Yajnavalkya to the outcast, if not to the
adulterous wife; not to mention such as are excluded from the
inheritance, whether through their fault, or their misfortune; all being
entitled to be maintained with food and raiment. 1
A destitute widowed daughter has a right of maintenance against
her brothers after the death of her father when she could not get
sufficient provision from her deceased husband’s family for her
maintenance. The case law mostly relates to matters pertaining to the
rights of the daughter-in-law against her father-in-law and his estate.
The reason, still, for their reference is the unusual paucity of case-law
governing the rights of daughter against her father, brothers, etc. for
her maintenance. This scantiness of case law is more due to the
devotional character and spiritual belief of the Hindu population and
also due to the fact that the law-abiding nature of the Hindus have
precluded brothers from disputing the right of maintenance of their
widowed sister. More over, the analogy in the case-law with reference
to the daughter-in-law can be and in fact has been also extended to the
destitute widowed daughter. 2

Widowed daughter-in-law
The widowed daughter-in-law can claim maintenance from her
father-in-law only where she is unable to maintain herself out of her
property or our of estate of her husband, father, mother, son or daughter.
It is also provided that father-in-law shall be under no obligation to
maintain his daughter-in-law except in cases where there is some
ancestral or coparcenary property in his possession from which daughter-
in-law has not obtained any share. 3
In one case the father in law was in possession of co-parcenary
property in which daughter-in-law not obtained any share. Proviso (a) to

1 Kota Varaprasada Rao vs. Kota China Venkaiah, AIR 1992


AP 1 (DB).
2 Kota Varaprasada Rao vs. Kota China Venkaiah, ibid.
3 Jit Singh vs. Gurmeet Kaur, II (1999) DMC 671 P&H.
236 Law of Maintenance

Section 19 of the Act came up for consideration before a Division Bench


of the Court 1 and it was ruled therein that expression ‘obtain
maintenance from her father or mother’ does not merely mean that the
widow is somehow managing to live with or is being maintained by her
father or mother. There must be a legal right in the widowed daughter to
demand maintenance from her father or mother or from their estate, as
the case may be, and she must in assertion of that right be able to obtain
maintenance. It is only when she can obtain maintenance in pursuance of
a lawful right that the operation of the proviso can be said to be
attracted. 2

Wife
The Hindu Law as well as the common law caste a duty on the
husband to maintain the wife. In India, long before 1955, when the
Hindu Marriage Act was brought into force, such a duty of the husband
was given statutory recognition in the Indian Divorce Act, the Parsi
Marriage and Divorce Act and the Special Marriage Act. 3
Section 18 of the Hindu Adoptions & Maintenance Act, 1956 puts
an obligation on the husband to maintain the wife during her life-time. In
a case as given out in Sub-section (2) of Section 18, the wife shall during
her life-time. In a case as given out in Sub-section (2) of Section 18, the
wife shall be entitled to live separately from her husband and can claim
the maintenance. So the first and primary duty and obligation to maintain
the wife is on husband. Section 20 of the Act carves out an exception and
it will apply only in case where the husband is not alive or otherwise he
is not capable of or not having the source of income to maintain his wife,
then the obligation to maintain the mother may fall on the shoulder of the
son. Section 20 of the Act makes a provision for maintenance of children
and aged parents.
In this case the Trial Court mechanically read this provision and
was influenced by the fact that the mother is aged and the son who is
earning member has an obligation or pious duty to maintain her. Sub-
section (3) of Section 20 of the Act, 1956 was not taken into
consideration and looked into. Sub-section (3) of Section 20 of the Act,
1957 puts obligation on son to maintain his aged or infirm parents where
the parents are unable to maintain himself or herself or have not their
own source or properties. When it was not in dispute that the husband is

1 in Jai Kaur vs. Pala Singh, AIR 1961 Punjab 391


2 Jai Kaur vs. Pala Singh, AIR 1961 Punjab 391 as relied in Jit
Singh vs. Gurmeet Kaur, II (1999) DMC 671 P&H.
3 Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.
Persons entitled to maintenance—Wife 237

able to maintain his wife, it was held that section 18 and 20 of the Act,
1956 are to be read together and if are read so, Section 20 will come into
picture or can be put into service or applied only where the husband i.e.,
the father is unable to maintain his wife. Though these are socio-
economic provisions and same are to be read to extend the benefits to the
beneficiaries as provided, but where the husband is an earning member
having sufficient means to maintain his wife the liability to maintain the
mother under Section 20 of the Act cannot be fasten on son. 1
The Hindu Law recognised that the right of maintenance is a
substantive and continuing right and the quantum and maintenance is
variable from time to time. 2

The amount of maintenance, whether it is fixed by a decree or


agreement is liable to be increased or diminished whenever there is a
change of circumstances as would justify a change in the rate…..It may
be asked why it is that the rate of maintenance, though fixed by
agreement may be varied by the Court in a suit brought for that purpose.
The answer is that the right to maintenance does not rest on contract, but
on the provisions of the Hindu Law which expressly govern the rights
and duties of different members of the Hindu family. 3 In one case the
suit was filed by wife during life-time of husband and not as his widow.
Therefore it was held that on the death of the husband, her status as wife
and right to receive maintenance could not be affected for the purposes
of deciding this suit. 4

In a suit for maintenance the written statement was filed only by


one of the defendants-respondents which was later on adopted by other
defendants. In this written statement there was no pleading that they had
no notice of the right of maintenance of the plaintiff. In the absence of
such a pleading it was held that the Court below, on the basis of the
evidence on record, rightly held that the defendants had notice of the
right of the plaintiff to receive maintenance from her husband. In the
facts and circumstances of the case, the transfer can only be treated as
gratuitous when the evidence of passing consideration is not of any

1 Merubhai Mandanbhai odedara vs. Raniben Merubhai Odedara, I


(2001) DMC 164 Gujarat.
2 Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.
3 Mulla Hindu Law Thirteenth Edition Para 568.
4 Hari Lal vs. Balvantia, AIR 1998 All 211: 1998 (2) CCC 277
All (DB).
238 Law of Maintenance

definite nature. Thus, the suit of the plaintiff was rightly been decreed
for maintenance. 1

Wife from void marriage


It is no doubt true that Maintenance Act is a piece of beneficial
legislation conferring additional rights on women and children. But, it
cannot be construed as conferring maintenance rights on a woman whose
marriage is void under Hindu Marriage Act. While a legislative
enactment may be liberally construed, the liberality cannot over-step the
legislative limits of interpretation, putting to the legislation something
which is not there. If it is felt that a particular enactment causes hardship
or inconvenience, it is for the Legislature to redress it, but, it is not open
to the Court to ignore the legislative injunction. By codifying the
personal laws prevailing and application to Hindus, the Parliament
intended to have monogamy among the Hindus and therefore, Hindu
Marriage Act was passed to prevent Bigamous marriage and for that
purpose, it is enacted that a Bigamous marriage is void and also
constituted such a marriage as crime for which punishment has been
provided. Therefore, it does not appear to be the intention of the
Parliament that while such a Bigamous marriage is rendered void, the
Bigamous relationship should be recognised for purpose of maintenance. 2
A Hindu is under an obligation to maintain his wife, his minor
sons, unmarried daughters and aged parents. The obligation is personal.
It arises from the very nature of the relationship and exists whether he
possesses any property or not. The Maintenance Act gives statutory
form to that obligation. The right of a Hindu wife for maintenance is an
incident of the status of matrimony. Sub-section (1) of Section 18 of
the Act substantially reiterates that right and lays down the general rule
that a Hindu wife whether married either before or after the
commencement of the Act is entitled to be maintained by her husband
during her life-time. 3
The rule laid down in this section is subject to the exceptions
stated in Sub-section (3) which lays down that she cannot claim separate
residence and maintenance if she is unchaste or ceases to be Hindu by
conversion to another religion. Under Sub-section (2) of Section 18, wife
is entitled to live separately from her husband without forfeiting her
claim for maintenance, in the circumstances stated in Clauses (a) to (g)

1 Hari Lal vs. Balvantia ibid


2 Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266:
1999(1) HLR 68 AP.
3 Abbayolla M. Subba Reddy vs. Padmamma, ibid.
Persons entitled to maintenance—Wife from void marriage 239

mentioned in that sub-section. Under Clause (d), wife is entitled for


separate residence without forfeiting her claim for maintenance if her
husband has any other wife living. The claim for maintenance is
maintainable under this section irrespective of the fact that the marriage
had taken place after or before the marriage of the applicant-wife,
provided the other wife is living. The ground laid down in this section
can, obviously, exist only in case of any marriage solemnised before the
Hindu Marriage Act came into operation. It is obviously for the reason
that the Hindu Marriage Act, 1955 laid down monogamy as a rule of law
and Hindu husband cannot marry another wife after the commencement
of that Act. A Bigamous marriage contracted after the coming into force
of that Act, would be null and void and no question of having another
wife can arise. Therefore, the word “Hindu wife” in Section 18(1)
connotes only a legally wedded wife of a Hindu and such wife alone is
entitled to claim maintenance from her husband under this section. If her
marriage is void ab initio, she is not entitled to claim maintenance under
this section. “Hindu wife” in this section only means a wife whose
marriage is valid under the provisions of the Hindu Marriage Act, 1955.
The wife whose marriage has been solemnised, but is void on the ground
that the first wife of the husband is living at the time of marriage, is not
entitled to claim maintenance under this provision. 1

1 Abbayolla M. Subba Reddy vs. Padmamma, I (2000) DMC 266 AP:


1999(1) HLR 68 AP.
240 Law of Maintenance

Chapter 7
Determination of income
SYNOPSIS
Introduction....................................240 Necessity of evidence ..................... 252
Absence of evidence .......................241 Necessity of finding about income . 253
Adverse inference ...........................241 Necessity of income ....................... 253
Appreciation of evidence................242 Non working husband .................... 254
Carry home salary .........................243 Ownership of land ......................... 254
Considerations ...............................243 Potential income ............................ 254
Cross Examination .........................245 Power under Hindu Adoptions &
Deductions from income ................245 Maintenance Act ............................ 255
Deduction for maintenance for parents Power under Section 151 Civil
.......................................................247 Procedure Code ............................. 257
Determination of income................247 Presumption of income .................. 258
Determination of resources............248 Prima facie case ............................ 259
Fixed assets ....................................248 Proof of employment ..................... 259
Income of wife ................................248 Renunciation of world ................... 259
Income from immovable property ..249 Step son.......................................... 260
Income of second wife ....................249 Suppression of income ................... 261
Income tax return ...........................250 Uncorroborated testimony of wife . 263
Joint family.....................................250 Unnatural conduct ......................... 263
Labourer ........................................252 Unskilled Labourer........................ 264
Medical Officer ..............................252 Vague denial .................................. 264

Introduction
While claim of maintenance is based on requirement of claimant
the quantum of maintenance depends upon various factors. The Income
of the person being saddled with the liability of maintenance is the single
most important factor because it is not the object of the law providing for
maintenance to create new class of paupers while taking care of the
earlier. Therefore the amount of maintenance has to be fixed in
proportion to the income. This chapter deals with the principles of
determining the income.
Determination of income—Adverse inference 241

Absence of evidence
In one case there was no evidence on record about the income of
the husband. According to the wife, the husband was working as a
mechanic, but no attempt had been made to lead any evidence about the
earnings of the husband. It was held that even if it is assumed that the
husband is working only as a labourer he would at least earn Rs. 12/- per
day and taking 25 days in moths as working days, he would be able to
earn near about Rs. 300/- per month. Under these circumstances, the
quantum of maintenance awarded to the wife at the rate of Rs. 125/ p.m.
was held to be a bit on higher side as if the husband has to pay Rs. 125/-
per month to the wife and Rs. 75 per month to the child only Rs. 100/-
would be left for himself. That definitely would not be sufficient to
maintain himself. Under these circumstances, it was held to be proper to
reduce the quantum of maintenance to Rs. 100/- per month. 1

Adverse inference
In one case the husband examined himself as a witness before the
Court below but did not depose a single word about his income.
According Section 106 of the Indian Evidence Act the amount of income
of the petitioner is a fact which is within his special knowledge and when
he himself does not tell about his income, it means that he is hiding the
truth. The wife stated in her examination-in-chief in that the income of
the petitioner was Rs. 3,000/- per month. A suggestion was given to her
in the cross-examination that the petitioner was getting only Rs. 1,500/-
per month as his salary. The husband was a railway employee and the
best evidence could be the document from his department. It was held
that he has withheld such a documentary evidence which he could have
obtained from his department and produced before the Court. Therefore,
his plea that he has getting a salary of Rs. 1,500/- per month was not
accepted. Secondly, even if the income of Rs. 1,500/- is accepted, there
is no evidence as to how many people he had to feed. The Court had
granted a sum of Rs. 350/- to each of the children which was held to be
not excessive. 2
In another case apart from the income of the disclosed house
properties the admitted fact which also appeared from the evidence was
that the husband built a residential house after the decision was given by
the High Court in earlier appeal granting interim alimony to the wife. On
behalf of husband, it was however contended that this house was not
tenanted and is used for residential purpose and the husband acquired

1 Sairabanu Mudassar Sayyed vs. Mudassar Salar Sayyed, I (1991)


DMC 342 Bom.
2 Shamlal vs. Mansha Bai, 1999(1) HLR 571 Rajasthan.
242 Law of Maintenance

this properly after incurring loan of heavy amount from Life Insurance
Corporation of India. In this background it was held as under:
‘Even if it is so, the appellant did not disclose this properly nor
any papers or documents in support of the statement now made
before us. The appellant has also not produced the income-tax
return relating to his income from his properties and assets at the
material time. It is, however, contended that income-tax papers
are no longer confidential documents and the respondent could
have caused those papers to be produced from the authorities
concerned. We think, in the facts and circumstances revealed in
this case, it is not for the respondent but for the appellant to
produce the relevant paper including the income-tax assessment
of relevant periods to show his income. The appellant has also
failed to produce as noticed by the trial Court, his Bank accounts
or books of accounts and other material documents relating to all
his properties and income thereof. So, from the conduct of the
appellant it would be perfectly legitimate to draw an adverse
inference against him for his failure to produce the above papers
from his custody.’ 1
Appreciation of evidence
The affidavit of the wife stated that the income of the husband
during the year was Rs. 30,000/- out of which Rs.15,000/- was his share
of profits from the partnership business, while 15,000/- was the income
from the other business. It has also been stated on behalf of the wife
that there are houses and shops belonging to the husband, which were
fetching rental income but no details in respect thereof have been
supplied. In this case, however the court refused to rely on the
statement of the wife instead relied upon the Income Tax returns by
observing 2 as under:
‘The affidavit to the wife about the income of the husband being
Rs. 30,000/- per year cannot be accepted in view of the fact that
the husband has produced the income-tax authorities accepted the
income of the husband from the partnerships business and from
the other business as Rs. 9,134/- during the assessment year
1980-81. The husband filed an affidavit in the trial Court in
which he has admitted that his income was Rs. 9,000/- to 10,000/-
per year. The income-tax assessment order relating to the
assessment year 1980-81 has been produced, while we are
concerned with the subsequent assessment year 1980-81. It may
be considered that there might be slight increase in the income of

1 Jagdish vs. Manjula, AIR 1975 Calcutta 64 (DB).


2 Bhanwar Lal vs. Kamla Devi, II (1983) DMC 144 Raj: AIR 1986 Raj
229: 1983 Raj LW 314: 1983 Rajasthan LR 640: 1983 ELN 322:
1983 Mah LR 268: 1983 (2) Civ LJ 220.
Determination of income—Considerations 243

the husband during the next following year, but it cannot be


presumed in the absence of any cogent material that there was a
steep rise in the husband’s income in the next following year,
after the year for which income tax assessment order has been
produced. In the face of the affidavits of the parties and the
income-tax assessment order produced by the husband it appears
that the income of the husband could be fairly considered to be
about Rs. 12,000/- per year. We have held in similar cases that
1/5 th of the income of the husband should be considered as
reasonable for fixation of interim maintenance. As such the wife
is entitled to get 1/5 th of the sum of Rs. 12,000/- i.e. Rs. 2400/-
per year by way of interim maintenance. Thus, the interim
maintenance which the wife is entitled to get in the present case,
is determined as Rs. 200/- per month.’

Carry home salary


For determination of the amount of maintenance it should be
determined what is the carry home salary of the person concerned so that
a reasonable amount for payment may be determined. At the time of
determining the carry home salary the amounts of deduction or expenses
incurred by the opposite spouse which are optional may also be taken
into consideration. Further it must also be seem whether the optional
expenses or deductions were made as a result of the litigation between
the parties with a view to deprive the applicant under Section 24 of the
Act. The bona fides of the parties are taken into consideration. There
cannot be any hard and fast rule that the Provident Fund and life
insurance premium should not be taken into consideration while
determining the disposable income. The contribution to Provident Fund
may be optional or compulsory. Similarly if the amount of life insurance
premium was being paid prior to the disputes between the parties,
payment of premium should be taken into consideration and deducted
from the gross income to determine the disposable income unless some
male fides are alleged. 1

Considerations
In the case of Chameli vs. Gajraj Bahadur, 2 the Court held that in
fixing the maintenance under Section 488 the Court has to take into
consideration not only the needs of the applicant but also the paying
capacity and the circumstances of the person liable to pay maintenance.

1 Sushma Khanna vs. Suresh Khanna, AIR 1982 Delhi 176: 1982
Rajdhani LR 47.
2 1954 (55) CrLJ 19.
244 Law of Maintenance

In another case 1 It was observed.—


“It was necessary for the learned Magistrate before determining
what maintenance should be allowed to have determined the
actual means of the husband of Parwatibai an allocate proper part
of it for maintenance. It is true that a person taking on the
responsibility of marriage has to maintain his wife and mere
minority or the fact that the husband does not work cannot come
in the way of the maintenance of the wife, but it is in all cases
necessary to ascertain the feasible means and the earning capacity
of the husband if he is compelled to work.”
In the case of Ashish v. D.C. Tewari, 2 it was held by Delhi High
Court that in awarding maintenance under Section 488 Criminal
Procedure Code all the circumstances of the case including the standard
of the person liable to maintain should be taken into consideration. It is
wrong to presume that unless the father can spare some money after
maintenance himself, his old mother and the brother, he has legal
obligation to maintain his own minor son, of course in accordance/with
status and standard.
In the case of Mohammad Ayyub v. Zaibul Nissa, 3 the Allahabad
High Court held that the quantum of allowance directed to be paid by the
husband to the wife has relevance to his means. Where the Magistrate
does not give any thought to the question as to what are the means
existing or potential of the husband justifying an order for payment of
allowance to his wife, the order is liable to be set aside.
Again in the case of Smt. Alimunissa vs. State of U.P., 4 the Court
emphasised the status and income of the husband as the criteria for
allowing maintenance to the wife.
These cases show the principles that maintenance allowable to the
wife must have relevance to the means of the husband; that under Section
125 Criminal Procedure Code the amount of maintenance allowable to
the wife should not exceed Rs. 500/-; that the Magistrate must discuss
the evidence and determine the means of the husband for fixing the
amount of maintenance; means not only mean the tangible property or
sources of income of the husband but also mean his capacity, potentiality
and status. 5

1 Prabhulal vs. Parwatibai, 1952 (53) Cr LJ 868.


2 1970 Cr LJ 670 Del.
3 1974 Cr LJ 1237 All
4 1987(24) All Cr Cases 304.
5 Chanderpal vs. Harpyari, II (1991) DMC 481 All.
Determination of income—Deductions from income 245

Cross Examination
For the grant of maintenance under Section 24 of the Hindu
Marriage Act, 1955, apart from other thing, the income of the husband is
one of the very material consideration. In one case, the wife had alleged
that the husband was running his own business and was earning
Rs. 40,000/- to Rs. 50,000/- per year whereas the husband had denied
these facts and had alleged that he was only serving with a private firm
earning Rs. 400/- p.m. Thus there was a big gap between the income of
the husband alleged by the wife and stated by the husband alleged by the
wife and stated by the husband and in the circumstances, in order to
arrive at a correct decision about the income of the husband, the cross-
examination of the husband on the affidavit filed by him, was held to be
necessary. The learned District Judge had declined to do so on the
ground that such a course should be discouraged in miscellaneous
petition and that the prayer for cross examination was not bonafide but
High Court did not find force in either of these two grounds. It was held
that when there was such a divergence, there was no ground for refusing
cross examination on the affidavit merely on the ground that such a
course should be discouraged. On the other hand, this court has been
allowing the cross examination of affidavits in proceeding under Section
24 of the Act as would be clear from Bhanwarlal vs. Smt. Kamal Devi. 1
The other ground that the application was not bonafide was also held to
be not acceptable because it did not appear that as a matter of fact, that
the wife was trying to prolong the proceedings. What she was trying to
do was to arrange for the expenses which were payable to her under
Section 24 of the Act in order to contest the application filed by the
husband for divorce against her and if with that intention, she made
applications from time to time, even before filing her reply, she cannot
be held guilty of any malafides. 2

Deductions from income


What has been taken in advance cannot be considered to be a
liability. After giving proper deductions for the mandatory and necessary
cuts in the salary it was held that the husband’s carry home salary would
be around Rs. 10,200/- per month. Taking into consideration the carry
home salary and the requirement of the wife who was living with her
parents and brothers and also taking into consideration that she had
nowhere stated that she would leave the custody and company of her

1 1981 R.L.W. 464.


2 Shobha vs. Dharmi Chand, I (1986) DMC 369 Raj.
246 Law of Maintenance

parents and brother, it was held that if the maintenance amount is fixed
at Rs. 2,500/- per month, the same would meet the ends of justice. 1
The husband had produced his salary certificate which showed
that he was drawing of salary of Rs. 8,868/-, from which he was getting
deductions to the extent of Rs. 6,107/- towards various saving and return
of house building loan. The wife was also looking after a minor son and
a minor daughter in additional to maintaining herself in the high prices.
It was held that the husband could not take advantage of the heavy
deduction from his salary as almost all these deductions were voluntary
and were primarily on account of savings or house construction loan
taken by the husband. 2
In another case the gross salary of the husband was Rs. 7228 and
after deductions, the take-home salary was Rs. 4169. The relevant
document also suggested that the deduction against advance was to the
tune of Rs. 936 and odd while there was a further deduction to the extent
of Rs. 2000/- towards ad hoc salary recovery. The circumstances under
which this particular deduction of Rs. 2000 was made from the gross
salary due for the month in question had not been explained by the
husband. Going by the particulars appearing in the role, it seemed that
this deduction of Rs. 2000/- was meant only for that month perhaps
against some excess drawl of pay and allowance made earlier. The Trial
Court, however, did not consider this respect of the matter and relied on
the figure mentioned in the column meant for net amount as the real
income of the husband in determining the quantum of enhancement. It
was undisputed that the husband was also a licensed draughtsman
holding some engineering degree or certificate. According to the wife,
the husband’s income from the professional service that he renders
towards his clients on account of this engineering degree or certificate is
Rs. 7000 to 10,000. The husband, however, denied the fact that he had
such income. According to the wife, the husband has another income by
running tutorial home. However the husband was not required to
maintain anybody else. Regard being had to the status of the wife and her
needs as revealed from the materials on record and upon consideration of
all the facts and circumstances which are relevant for the purpose of
determining the income of the husband, especially the fact that there was
a deduction of Rs. 2000 from the gross salary of the husband for the
particular month was towards the ad hoc salary recovery. 3

1 Sanjay Kumar Jain vs. Maya Jain, II (2000) DMC 768 MP.
2 Sawinderjit Singh vs. Kuldip Kaur, I (2001) DMC 39 P&H.
3 Dibyendy Mukherjee vs. Sudipta Mukherjee, 1999(1) HLR 216
Calcutta.
Determination of income—Determination of income 247

It has been held that when there was no evidence to the effect that
opponent-husband was contributing anything towards provident fund,
even assuming for a moment that the husband was contributing an
amount of Rs. 80/- per month towards provided fund, then also this
amount cannot be deducted. 1

Deduction for maintenance for parents


Whether any maintenance is paid or not to the parents is
immaterial, but husband as a son is under an obligation to maintain them
if they are unable to maintain themselves. Considering the facts of the
case it was held that the trial court rightly determined the monthly
maintenance of Rs. 450 out of the disposable income of Rs. 1,537 of
the husband. 2

Determination of income
The husband was healthy person of 26 years of age, therefore, a
young and healthy person, who claimed in his statement that he was
earning with his parents in the field and was also tending the animals. It
clearly shows, that he had joint earning with his parents. He was putting
in his labour. In that sense, the wife has right to claim maintenance from
those earnings. What would be the extent of those earnings should have
been decided by trial Magistrate or at least by the Session Court. Some
fair estimate on day to day expenses of life, could be made. The Session
Court dealt with the matter in a non-serious manner by merely referring
to the fact that no specific amount of earning has been stated. The legal
position has to be that, a person who is capable of earning has to earn for
his dependents i.e. for his wife and child. The evidence of the wife and
her witnesses was that the husband works on land and tends milk animal
with his parents. This was admitted by the husband also. It was held that
‘the Trial Magistrate should have assessed, what would be considered as
fair earning out of labour put in by this respondent. In such type of case,
a wife can hardly be expected to produce specific evidence of earning of
husband not it can be said that the labour of the husband is producing no
earning. In fact, an able person is expected to work for his wife. The
respondent is, after all living, eating and clothing himself. … … … The
matter is remanded back to the trial Magistrate to reach a conclusion of

1 Sakinabibi Gulabbhai Chauhan vs. Hasamkhan Rahimkhan, II


(1985) DMC 489 Gujarat, See also Vinaben Jivanlal Suthar vs.
Yaswant Kumar Pannalal Suthar, II (1983) DMC 234 Gujarat.;
Saryuben vs. Bharat Kumar Mukundrai Vyas, II (1985) DMC 193
Gujarat.
2 Sushma Khanna vs. Suresh Khanna, AIR 1982 Delhi 176: 1982
Rajdhani LR 47.
248 Law of Maintenance

the extent of the earnings of the husband, on the basis of the evidence
existing on this record and then to fix maintenance payable to the
petitioner-wife by the husband.’ 1

Determination of resources
Where a man or a woman is on supplementary benefit, then it
must be assumed that he is not working. That assumption cannot be made
in realistic terms in modern conditions. There are many persons who can
be shown to be working and earning money albeit they are on
supplementary benefit, and it is for the justice to make inquiry to see
whether that is the case or not. For those reasons, the appeal was allowed
to this limited extent and the matter remitted to the justices for further
inquiry in relation to the resources of husband. 2

Fixed assets
In one case the husband is not in possession of any of the
properties. No evidence whatsoever was adduced by the wife to show
that the husband in fact got any income either from his brother or his
other relatives who were in possession of those landed-properties. It was
held that it will be unfair to assume that the husband must have been
enjoying enough income from these landed properties, when the property
did not stand in his name nor there was any evidence to show that any
income was received by him from persons who were in possession of the
property. There was no evidence to show that there is any litigation
instituted against them by the husband to get income from the share of
the property. It was necessary for the wife to adduce evidence in the first
instance to show as to how much was the income that he was entitled to
receive from the property and further that he was in fact receiving such
income. There is a well recognized difference between the fact of receipt
of income and the right to receive the same. Merely proving that a person
has got the right to receive the income does not means that he is receipt
of the same. 3

Income of wife
Except making the allegations against the wife in regard to her
income etc. the petitioner had not placed any document or affidavit of
any other person to show that the wife was actually earning what had
been averred against her. It was held that even if it was so, the obligation

1 Shyamkali d/o Vidyathi Ram vs. Bhaiyalal @ Ganesh s/o Yamuna


Prasad, 1999(1) HLR 300 MP.
2 Burridge vs. Burridge, (1983) II DMC (BJ) 42.
3 Ashok Yashwant Mate vs. Sou. Amita Ashok Mate, I (1984) DMC
26 Bombay.
Determination of income—Income of second wife 249

of the petitioner-husband to maintain his minor children would always be


there. It was further held that even for the sake of arguments it is
assumed that wife has some source of income, that per say would not
disentitle the wife from claiming maintenance for herself and more
particularly for her children from the marriage. Meagre income of the
wife cannot be treated as an absolute bar for claiming maintenance from
her husband. 1

Income from immovable property


The plea that the immovable property or the assets could not be
taken into account is misconceived in as much as in one case, the said
asset had been liquidated and the amount was available to the petitioner.
It was held that the finding and observations of the learned Additional
District that ‘having regard to the prevailing prices of property in Delhi,
the actual value of the property could have been much higher as against
the disclosed sale consideration of only Rs.1,90,000/-, for a DDA flat in
Rohini, cannot be faulted with. It was further held that in any case, upon
liquidation of the said asset, the sale proceeds of Rs.1,90,000/- or Rs.10
lacs as claimed by wife, were available and can safely be presumed to be
yielding returns in the absence of anything to the contrary. The sale of
the flat after receipt of notice of application for maintenance and alleged
payment of the sale consideration to petitioner’s father can be viewed as
a machination to avoid the liability for payment of maintenance.
Considering the attendant circumstances, viz. petitioner staying with his
parents in the same house, petitioner claiming to have paid Rs.1,75,000/-
to his father, the withdrawals from the firm for house expenses, it would
appear that the income is being pooled in for the benefit of the family.
The impugned order awarding Rs.1,500/- per month as maintenance in
such circumstances cannot be said to be unreasonable or vitiated with
material irregularity. 2

Income of second wife


The one third approach is always taken on the husband’s or ex-
husband’s gross earnings, without having regard in the calculation to the
new wife’s earnings, either gross or net. But of course of the new wife’s
earnings can be taken into account to this extent that he has a person, a
new wife, a woman, who is either keeping herself or contributing

1 Sawinderjit Singh vs. Kuldip Kaur, I (2001) DMC 39 P&H.


2 Pominder Kumar Chhabra vs. Asha Devi, 1997 (6) AD 846 Del:
1997 (43) DRJ 790: 1998(1) CCC 3 : 1997 (70) DLT 764.
250 Law of Maintenance

towards her own keep. It is something to which one should have regard
in the overall picture. 1

Income tax return


Whether to accept or not to accept the income of a dependant as
given in income tax assessment order, for purposes of determining the
financial position of a dependant will also depend on facts and
circumstances of each case. On this aspect also no broad proposition or
hard and fast rule can be laid down. In one case income given in Income-
tax assessment order may be accepted and in another case, it may not be
accepted. No rigid formula about what percentage of income should be
fixed as maintenance can be laid down. In one case it may be 25% in
another it may be 50% or even less or more. The quantum of
maintenance depends upon the position and status of the parties
including financial position of the defendant as also on the reasonable
demands of the claimants or any other relevant factor. 2
In one case the court took into consideration the household
expenses for some earlier months, the maintenance charges of the flat
occupied by the wife and the tuition fees of the son. The learned Judge
therefore come to the conclusion that the income-tax returns filed by the
husband were not conclusive of the true income of the husband and his
income has to be assessed in the light of the said other consideration as
well. It was held that there was nothing wrong in this approach, and as is
common knowledge, income-tax returns do not reflect the true position
of the income of a party for several reasons, and cannot be taken as the
sole guide for determining it in proceedings. 3

Joint family
In one case the husband was working in a Primary School and
was earning Rs. 400/- per month by way of salary. However, it appeared
that his salary is not the only source of livelihood for the husband. It had
come on record that there was a family business of printing press, which
is run by the family. The husband failed to prove that he had separated
from his family or there was any partition effected. He was the only son
of his parents. Therefore, it was held that the income from the printing
press will have to be taken into account, though the husband is on his

1 Campbell vs. Campbell, 1 (1977) All ER 1: (1982) 2 DMC (BJ) 31.


2 Baby Rashmi Mehra vs. Sunil Mehra, AIR 1991 Del 44: 1989 (4)
DL 65: 1990 (40) DLT 152: 1990 (1) DMC 94: 1989 (2) ILR (Del)
304: 1989 RLR 449.
3 Vinod Dulerai Mehta vs. Kanak Vinod Mehta, AIR 1990 Bombay
120 (DB): (1989) 2 Bom CR 217: 1989 Mah LJ 600: 1989 Mah LR
1522.
Determination of income—Joint family 251

salary which he is getting from the Saraswati School. In fact, it has to be


stated that the main income is from the printing press and the salary of
Rs. 400/- per month, which the husband is getting, is an
additional income. 1
The husband left the wife and went and stayed with the parents in
the Tagore Garden House. He never cared for the wife and did not pay
any maintenance to her. He withheld the FDR and the savings bank pass-
book and falsely alleged that she had the income of her own. He had not
paid the maintenance amount as directed by the Court in spite of the fact
that the Court had permitted him to make the payments in instalments.
On his own he was contributing only Rs. 250/- as the mess charges to the
joint family and was not paying anything for his accommodation. It was
held that if the husband was claiming his joint family connection for
showing that the business and the properties did not belong to him, he
cannot deny that most of his expenses are borne by the joint family. His
child was about four years old. The child also required to join some
school. His school expenses, expenses on clothing, medicine, toys, etc.
for the children of this age are very large. It was held that the rising
prices and the high cost of maintenance would show that a sum of
Rs. 750/- is not even sufficient for bare maintenance and the wife and the
child are entitled to live according to the status of the husband. It was
further observed that ‘considering the past experience the respondent-
husband is warned that if the amount of maintenance of Rs. 1,500/- per
month is not paid punctually before 10 th day of each month, the Court
will be constrained to take strong action for compliance of its order.’ 2
It can not be laid down as a rule of law that if a person is working
with his father, he has no income. In that context, it may be a relevant
consideration that a person is an able bodied one and is capable of
working even as an ordinary labourer or otherwise. It cannot be argued
on behalf of the husband in such case that simply because he is working
with his father, he has no independent income and it is itself sufficient to
deprive his wife to claim maintenance under Section 24 of Hindu
Marriage Act, 1955. It is all the more so in the case when the Court has

1 Prashant Mallikarjun Mendhapoorkar vs. Sou. Pragati Prahsant


Mendhapoorkar, II (2000) DMC 696 Bombay.
2 Renu Jain vs. Mahavir Prasad Jain, AIR 1987 Delhi 43: (1986) 2
Hindu LR 148: 1987 Marri LJ 34: (1987) 2 Cur LJ (Civ & Cri) 386:
(1987) 92 Pun LR (D) 1.
252 Law of Maintenance

come to the conclusion that there is nothing on the file to hold that the
husband has got no independent source of income. 1

Labourer
The allegations made by the wife in her application under Section
24 of the Hindu Marriage Act, 1955 went unrebutted. Taking the facts
stated in the application under Section 24 of the Hindu Marriage Act,
1955 to be correct, it was found that husband was a man of substantial
means. Trial Court has erred in taking his monthly income to be
Rs. 1,000 only. Statutorily minimum wages payable to a labourer in
Punjab have been fixed at more than Rs. 800. under the circumstances,
Trial Court erred in fixing the income of the husband-respondent at
Rs. 1,000 per month. 2

Medical Officer
Any medical practitioner around the age of 37 and actually
having private practice, must be in receipt of income from that source
also. That such income would be substantial, (even when he is on leave;
during the leave period he can devote more time for private practice) is a
fair inference in the circumstances. It may also be noted that even in the
main petition, he had expressed his willingness to put the two children in
a boarding house. This was also taken as indicative of the financial
capacity of the husband even on his own showing. It was held that he
cannot grudge a payment direct to the wife, when he was prepared to pay
a boarding house, for their stay and other expenses. Regard being had to
the fact that the husband was in the medical profession and was having
private practice and was in receipt of income from immovable property,
which thus remain uncontradicted, it will be safe and reasonable to come
to the conclusion that he in receipt of a sufficiently high income. It was
therefore held that the capacity of the husband to maintain the wife and
children cannot be disputed. 3

Necessity of evidence
Mere fact that the wife has not been able to lead any evidence
with regard to the means of her husband, could furnish no justification
for the Session court to remand the case. The Session Court ought to

1 Gurmail Singh vs. Bhuchari, AIR 1980 P&H 120 (DB): 1980 Rev LR
171: 1980 Marriage LJ 367: 1980 Cur LJ (Civil) 193.
2 Surita Singh vs. Mahabir Singh, II (1991) DMC 409 P&H.
3 Radha Kumari vs. K.M.K. Nari, I (1983) DMC 432 Kerala: AIR 1983
Ker 139: 1982 Ker LT 417: (1982) 2 Civ LJ 217.
Determination of income—Necessity of income 253

have decided the case on the basis of the evidence led and already
on record. 1

Necessity of finding about income


Where the family Court, having taken into consideration the facts
and evidence, fixed the quantum of monthly maintenance after being
satisfied about the source of income of the husband, it was held that the
order of maintenance is not liable to be set aside only because of non-
recording a specific finding about the monthly annual income of the
petitioner. However, it was observed that justice must only be done, but
it should appear to have been done. In that sense it was observed that if
the Trial Court would have recorded a specific finding regarding the
quantum of income, then the impugned order of maintenance would have
been a better speaking order, conveying the manner in which the Court
has satisfied the sufficiency of means with the petitioner and the reason
why the impugned quantum of maintenance was granted in favour of the
opposite party members. But for want of this there is nothing to interfere
with the impugned judgment by exercising revisional jurisdiction. 2

Necessity of income
Under law, the burden initially lies in the first place upon the
wife to show that the means of the husband are sufficient. But, if the
initial onus is discharged, the husband is not relieved of the obligation to
maintain his wife on the ground that the wife is having means to support
herself by her own labour or that the wife is having able and willing
relatives to maintain her. Merely because she refuses to earn does not
mean that she is not entitled to maintenance. So far as the wife is
concerned, her potential earning to capacity is not a relevant
consideration. The word ‘means’ in the section does not signify only
means such as real property or definite employment. It a man is healthy
and able bodied, he must be considered to have the means to support his
wife and he cannot be relieved of the obligation on the ground that he is
unemployed. The words “sufficient means” includes the capacity to earn
money and if a man is capable of earning money, he has to earn the
means to maintain his wife, child or parents. The possession of property
is not at all a criterion for awarding maintenance. It is independent of
possession of property. It a person is capable of doing labour, the fact
that he is not earning anything is not at all the criterion for not
awarding maintenance. 3

1 Bharat vs. Suhana bai, I (1991) DMC 289 MP.


2 Ramesh CH. Ojha vs. Rangalata Ojha, I (2000) DMC 588 Orissa.
3 T. Buvaneshwari vs. V. Ramakrishnan, I (1989) DMC 269 Madras.
254 Law of Maintenance

Non working husband


In one case the wife was not ready to live with her husband as he
was not doing any service and was having no independent income. The
court below held that the opposite party husband has no independent
source of income and is still prosecuting his study and is dependent on
his father. The High Court however observed that it is true that even the
husband has no independent source of income or earning, but is capable
of earning being an able-bodied person fit enough to work is liable to
maintain his wife and cannot deny payment of maintenance pendente lite.
It was also observed that the opposite party husband was prosecuting his
study, the marriage was solemnized, but the petitioner refused to live in
the matrimonial house on the ground that the opposite party husband is
not doing any service. It is also evidence that the opposite party
repeatedly requested the petitioner to live with him in his parents house,
but she refused to do so. Ultimately, the opposite party instituted the suit
for restitution of conjugal right and the suit was decreed, but even then
the petitioner did not resume conjugal right. Therefore in these
circumstances the order denying the maintenance, was affirmed. 1

Ownership of land
A poultry farm was being run in the land of the husband himself
and, therefore, he cannot simply withdraw from the partnership unless it
was discontinued. Secondly the husband was owning land which would
show that the husband was having sufficient income from other sources
to be able to purchase the said land. The possible sources of other
income were not at all consider or even touched in the judgment of the
Session Court. The Sessions Court has simply considered the source of
income from the salary which the husband was getting. In that view of it
was held that the learned Additional Session Judge was justified in
reducing the amount of maintenance granted by the Trial Court from
Rs. 500/- to Rs. 400/- per month. 2

Potential income
In Mohammed Ayub vs. Jaibul Nissa, 3 the learned Judge of the
Allahabad High Court has observed as followed:—
“It may be mentioned here that is assessing the means of a
husband the court is not confined to taking into account his actual
earning for the time being. There may be cases where an able

1 Sadhana Devi vs. Bijendra Kumar, 1998(4) CCC 319 (Patna).


2 Drakshayanu Balkrishna Patil vs. Balrishna Virupakasha Patil, I
(2001) DMC 430 Bombay.
3 1974 Crl LJ 1237.
Determination of income—Power under Hindu A & M Act 255

bodied and qualified person may not earn anything merely


because he is either too lazy to put to use his resources or because
he has indulgent relations to provide for his requirements. In such
cases, the court must also take into account the potential earning
capacity of the husband.
In Kandasami Moopan vs. Anjammal, 1 Ramaswami, J., has
observed as follows:—
“So long as a man is able bodied and can work and can work and
earn his livelihood, if it his duty to support his wife. Therefore,
our courts have gone to the extent of laying down that
notwithstanding the fact that a husband may be an insolvent or a
professional beggar or a minor or is a sadhu or a monk, he must
support his wife so long as he is able bodied and can eke out his
livelihood and support his wife.
These observation made with reference to the wife would apply
with greater force to minor children unable to maintain themselves.
Husband cannot contend that he is unfit to take up any employment. His
potential capacity to earn has to be taken as the basis. 2

Power under Hindu A & M Act


Section 18 of Hindu Adoptions & Maintenance Act, does not
authorize the award of interim maintenance pending decision on the
claim to maintenance in contest in the suit. The right of the wife to be
maintained by the husband should not be confused with the power of the
court to award interim maintenance pending an action for maintenance
where such right is in dispute. The court has no power unless statute
expressly confers such a power on it. For example a power to award
maintenance pendente lite is expressly conferred by Section 24 of the
Hindu Marriage Act. The Hindu Adoptions & Maintenance Act does not
contain a similar provision. 3
Thus there is no separate provision in the Hindu Adoptions and
Maintenance Act, 1956, for grant of maintenance pendente lite. Section
18 of the Act only provides for maintenance to a Hindu wife, subject
however to the two exceptions, carved out in sub-section (3) of section
18 of the Act, which extinguish the right of a Hindu wife to a separate
residence and maintenance.
That being the position in law, when it is imperative for the
husband to maintain his wife, it does not stand to any reason that during

1 1960 MLJ Crl 839.


2 Jagannathan vs. Sundari, II (1987) DMC 168 Madras.
3 Gorivelli Appanna vs. Goriveli Seethamma, AIR 1972 AP 62: (1971)
2 Andh Pra LJ 330: (1972) 1 Andh WR 195.
256 Law of Maintenance

the pendency of the suit for grant of maintenance, which may take
decades to attain finality, the wife in the first instance be forced to face
starvation and then subsequently is granted maintenance from the date of
the filing of the suit, if she is fortunate enough to survive till then. I feel
that such a view will be against the very intent and spirit of section 18 of
the Act. Even though there is no specific provision in the Act for grant of
maintenance pendente lite, the Court is amply empowered to make such
orders as may be necessary in the ends of justice. It is a trite proposition
of law that a court empowered to grant a substantive relief is competent
to award it on interim basis as well, even though there is no express
provision in the Statute to grant it. Power to grant interim maintenance is
incidental and ancillary to the substantive relief of maintenance
envisaged in section 18 of the Act and if the ends of justice so warrant
the court is competent to grant it in a suit for maintenance. 1
In the case of Rama Chandra Behera vs. Smt. Snehalata Dei, 2 a
Bench of Orissa High Court held:
“We agree that there may be cases where taking the extra
ordinary aspects into consideration, the Court may proceed to
exercise inherent powers to grant interim relief. It is not
appropriate to set limitation on count’s inherent powers by
interim relief. It is not appropriate to set limitations on court’s
inherent power by indicating circumstances where it can be and
where it cannot be exercised”
The power to make an interim order for maintenance pending an
application under Section 18 of the Act is implicit in the section. Such a relief
must be held to be ancillary and the power would be necessary corollary to
the power of the Court to entertain the application for substantive relief.
There have been a series of decision of this Court taking the aforesaid view
which was held to be in consonance with the spirit of the law.3
The absence of a specific provision in the Hindu Adoptions &
Maintenance Act, 1956, is immaterial and that the civil Court has
jurisdiction to grant interim maintenance. 4
However in a case involving Muslim Law it has been held that
the nature of the suit for restitution of conjugal rights is different from

1 Neelam Malhotra vs. Rajinder Malhotra, AIR 1994 Del 234: 1993 (3)
AD 118 (Del): 1993 (51) DLT 588: 1993 (2) DMC 547: 1993 RLR 69
(N): 1994 (1) Civ LJ 755: 1994 (1) Hindu LR 66: 1993 (3) RRR 577.
2 AIR 1977 Orissa 96.
3 Krushna Chandra Nanda vs. Manorama Devi, II (1986) DMC 114
Orissa.
4 Deivasigamani Udayar vs. Rajarani Ammal, AIR 1973 Madras 369:
(1973) 1 Mad LJ 383: 86 Mad LW 209.
Determination of income—Power under Section 151 Civil Procedure Code257

the suit for maintenance which a Mohammedan is entitled to file under


the Mohammedan Law. There is also remedy to the wife to claim
maintenance under Section 125 of the Code of Criminal Procedure which
in fact the non-applicant/wife has resorted to. Therefore the Civil Court
had no jurisdiction to grant any interim relief by way of maintenance
pending the decision of the case. 1
In another case the petitioner had asked for permanent alimony
under Section 37 of the Act and in case she succeeded in getting the
order of judicial separation under Sections 22 and 23 of the Act in her
favour and against the respondent, she would be entitled to the grant of
permanent alimony. It was held that therefore, there should be left some
security in the form of immoveable properties or otherwise which should
be sufficient and adequate enough for the grant of permanent alimony
under section 37 of the Act and that the house of husband can be
adequate security for the payment of permanent alimony to the petitioner
in case it is granted by the Court because every Court has inherent power
to grant relief during the pendency of the proceedings if the interest of
justice so requires. 2

Power under Section 151 Civil Procedure Code


The inherent powers recognised by the Section 151 cannot extend
to matters other than procedural. The Court cannot resort to the
provisions of Section 151 to encroach upon substantive rights of parties
or, in an Interlocutory Application, upon matters which await
adjudication in the suit. No order under Section 151, Civil Procedure
Code can be made except ‘in aid of the suit.’ Such an order may be a step
towards obtaining a final adjudication in the suit or it may be with a
view to ‘rendering the judgement effective, if obtained’ 3
The award of interim maintenance pending decision of suit in
which the right to maintenance is in contest cannot certainly be called a
procedural matter. An order awarding interim maintenance can neither be
said to be a step towards final judgment nor intended to render such
judgment effective. It can not be said to be “in aid of the suit” at all.
Such an order cannot be made under Section 151, Civil Procedure Code.
It can no more be made in exercise of the inherent powers under Section
151, Civil Procedure Code than a defendant can be directed to pay
straightway to the plaintiff in a suit for money the amount admitted by

1 Shabbir Ahmed Sheikh vs. Shakilabanu, II (1985) DMC 13.


2 Hilda Basant Lal vs. Lt.. Col. Basant Lal (Retd.), 1994 (1) DMC
185 Del.
3 Gorivelli Appanna vs. Goriveli Seethamma, AIR 1972 AP 62: (1971)
2 Andh Pra LJ 330: (1972) 1 Andh WR 195.
258 Law of Maintenance

him to be due to the plaintiff or which the Court may prima facie find the
plaintiff to be entitled, or a defendant can be directed to deliver
straightway to the plaintiff in a suit for possession of several properties,
the items admitted by him to belong to the plaintiff or which the court
may find him to be prima facie entitled. In cases where the defendant
admits part of the claim of the claim of the plaintiff, the latter may ask
the court to pronounce judgement and pass a decree to the extent of the
admitted claim while postponing adjudication in regard to the rest of
the claim. 1

Presumption of income
A person having his own independent business, belonging to an
affluent business family, which resides at a prima locality in Bombay,
maintain a car and has other luxuries of life, can hardly be heard to say
that he is in no position to meet the order of maintenance of Rs. 4,000/-
per month for his minor child and Rs. 2,000/- per month for his
estranged spouse. If at all there was any truth in this contention, he
should have availed of the opportunity given to him by producing his
books of account, so that the veracity of this defence could have been
tested. Therefore it was held that prima facie, at least at this juncture,
financial stringency was a bogey being put forward only to bolster the
contumacious conduct and stand adopted by the husband. 2
If a person is an able-bodied person capable of working, then, he
is supposed to maintain his wife and to pay the maintenance as required
under Section 24 of Hindu Marriage Act, 1955. It is for the purposes of
fixing the amount under Section 24 that the applicant’s own income and
that of the respondent is to be taken into consideration. In the absence of
any income as such of either party, the husband being an able-bodied
person and capable of maintaining his wife is liable to pay the interim
maintenance under Section 24 of the Act. 3
When there is no evidence that the petitioner is not capable of
earning more, if an able-bodied man capable of earning more without any
lawful excuse does not earn enough as in expected of him, it is not a

1 Gorivelli Appanna vs. Goriveli Seethamma, AIR 1972 AP 62: (1971)


2 Andh Pra LJ 330: (1972) 1 Andh WR 195.
2 Vinodchandra Gajanan Deokar vs. Anupama Vinodchandra, AIR
1993 Bombay 232: 1992 (3) Bom CR 129: 1993 (2) Civ LJ 608:
1993 (1) Cur CC 166: 1993 (1) Hindu LR 67.
3 Urmila Devi vs. Hari Parkash Bansal, AIR 1988 P&H 84: (1987) 91
Pun LR 553: (1987) 6 Reports 217: (1987) 1 Hindu LR 458: (1987)
2 Cur LJ (C & Cri) 221: (1987) 2 Cur CC 803: ILR (1987) 2
P&H 495.
Determination of income—Renunciation of world 259

ground for reduction of the quantum of maintenance payable to the wife.


However it was also observed that in these days, a sum of Rs. 75/- per
month is grossly inadequate as a maintenance amount for any standard
of living. 1

Prima facie case


In one case the husband did not dispute that the opposite party
was his wife. It was held that once this fact stands admitted, then under
sub-section (1) of Section 18 of Hindu Adoptions & Maintenance Act,
1956, itself she became entitled to be maintained by her husband during
her lifetime”. Sub-section (2) however gives further right to a wife to
live separately from her husband without forfeiting her claim to
maintenance on any of the grounds enumerated therein. One of them
being where the husband keeps a concubine, as alleged by the plaintiffs
in the present case. The scheme of Section 18, therefore, confers a
general right on the wife to claim maintenance. This right continues and
is enforceable even during the pendency of the suit as she has got to be
maintained by the husband even during the pendency of the suit and in
that view of the matter the court not only can pass an order for interim
maintenance but, should pass such an order where the relationship of
husband and wife between the parties is undisputed, as that by itself
established a prima facie case for grant of interim maintenance. 2

Proof of employment
The applicant, in one case, stated that her husband had previously
taken training and that he was now working an Engineer and, hence, she
was entitled to Rs. 500/- per month as maintenance allowance from her
husband. It was held that it cannot be imagined that an Engineer would
be without any employment and would even then going for the second
marriage, if he was unemployed. It appears that the stand taken by
husband that he was unemployed was only taken to avoid his liability to
pay maintenance allowance to his first wife who was living with her
father and brother. On taking a conspicuous view it was held that the
order granting maintenance is not illegal. 3

Renunciation of world
In one case the contention was that the husband had renounced
the world and he become a Sadhu and therefore, he was not liable to pay

1 Lalit Amonatya vs. Dimabati Amonatya, I (1990) DMC 100 Orissa.


2 Bailiram Ram vs. Radhika Devi, AIR 1980 Patna 67: 1979 BBCJ
(HC) 510: 1979 BLJR 583: 1979 BLJ 546: 1980 Mat LR 161.
3 Shiv Narain vs. Dasodiya, II (1994) DMC 554.
260 Law of Maintenance

any maintenance to his wife. The wife had stated that her husband
sometimes puts on the traditional dress of Sadhus and sometime he is
dressed in Dhoti-Kurta. In the same paragraph the wife had stated that
her husband is having illicit relations with several woman and spends
Rs. 1000/- on those women. She had also stated that in order to throw
dust in the eyes of the police her husband puts on the robes of a ‘Babaji’.
In these circumstances it was held that it cannot be said by any stretch of
imagination that wife has admitted that her husband has renounced the
world and has become a Sahdu. In this connection the attention of court
was also invited to a police report on the back of the summon in which
the learned Magistrate had recorded that the warrant of arrest for the
recovery of the amount had been returned by the police unexecuted with
a note that Hardev Singh has become a Saint and has transferred his
entire property. It was held that, the report on the warrant was not
sufficient to prove that Husband had become a Sadhu and further that
even if it is assumed for the sake of argument that he had become a
Sadhu that does not absolve him from the duty to maintain his wife
and children. 1
Reliance was placed on a rather old case 2 that a man is not, and
ought not to be, permitted by his own voluntary act to free himself from
the elementary duty of maintaining his wife and children and he is
amenable to the provisions of Section 488 of Criminal Procedure Code,
notwithstanding the fact that he has adopted the yellow robe and had
become a member of the ‘Sangha’.

Step son
A step son is not bound to maintain his step mother, as long as he
has not taken or asking for the share of her husband who is alive. It is
also well settled that a son has to maintain his mother irrespective of the
fact whether he inherits any property or not from his father, as he has, on
the basis of relationship, the obligation to maintain his mother who has
given life to him; where as the position of a step-son is altogether
different. Equally so, there can be no dispute with the proposition that
the obligation to maintain the Hindu widow depends on the taking of the
deceased husband’s share in the family estate and to whomsoever her
husband’s share is allotted, that person will have to maintain her. 3

1 Hardev Singh vs. State of U.P., II (1995) DMC 624 All.


2 Maungtin v. Madmin, 34 Crl.LJ. 815, decided in 1942
3 Pokuru Rangaiah vs. Pokur Chinnaiah, AIR 1970 AP 33.
Determination of income—Suppression of income 261

Suppression of income
Privy Council 1 has observed as hereunder:
“A practice has grown up in Indian procedure of those in
possession of important documents or information lying by,
trusting to the abstract doctrine of the onus of proof, and failing
accordingly to furnish to the Courts the best material for its
decision. With regard to third parties, this may be right enough:
they have no responsibility for the conduct of the suit: but with
regard to the parties to the suit it is, in their Lordship’s opinion,
an inversion of sound practice for those desiring to rely upon a
certain state of facts to withhold from the Court the written
evidence in their possession which would throw light upon the
proposition.”
These observations were endorsed by the Privy Council again in
Rameshwar Singh vs. Bajit Lal Pathak, 2 and have now been quoted with
the approval by the Supreme Court in Hiralal vs. Badkulal, 3 and relied
by Calcutta High Court in the following case:
‘Monthly income of a husband may not very often be within the
knowledge of the wife, particularly in a case like this where the
relation is considerably strained and the spouses are living a part
for a considerably long period, the wife staying in India and the
husband in the United Kingdom. In a case like this, the amount of
the husband’s income would be within the special knowledge of
the husband and when the issue before the Court is the amount of
such income, the onus, under S. 106, Evidence Act, would be on
the husband to disclose the same and if the fails to do so without
any good reasons, the Court would be entitled to presume against
him and to accept the allegations of the wife as to the amount of
income derived from such reasonable sources as would be
available to her. More so, where, as here, the husband does not
even deny on oath the correctness of the amount alleged by the
wife to be his income but only seeks to take shelter behind legal
technicalities.’ 4
It is well known that in a case of this nature diverse claims are
always made when one inflates the income and other suppresses. An
element of conjectures and guess work has to be done by Court. The
Court should keep in mind that an order under Section 24 of the Act does
not become a windfall for one of the applicants and nor does it become a

1 in Murugesam Pillai vs. Gnana Sambandha Pandana, AIR 1917


PC 8.
2 AIR 1929 PC 99.
3 AIR 1953 SC 225 at p. 227.
4 Chirta Sengupta vs. Dhruba Jyoti Sengupta, AIR 1988 Calcutta 98
(DB): (1987) 1 Cal HN 450: (1987) 2 DMC 163: 187 Mat LR 306:
(1988) 92 Cal WN 54.
262 Law of Maintenance

harsh penalty for the other. A golden balance has to be struck while
expressing discretion in the matter. 1
In one case the wife had stated the income of husband to be
Rs. 10,000/- p.m. from the auto advisory service and Rs. 14,000/- per
year as agricultural income. On behalf of respondent it was submitted
that for this income of the respondent, the wife had not produced
evidence. It was held that the husband was the person who was in
possession of best evidence, but had not produced any evidence and felt
contended and satisfied by stating that his earning from the work of auto
advisor was only Rs. 2000/- p.m. So far as the agricultural income is
concerned, he denied the same. So this was a case where there is word
against word. But the husband who is the person in possession of best
evidence of his income, has not produced the same. The income as given
by the petitioner should have been taken as the income of the respondent.
In a matter where wife is claiming maintenance, the husband makes all
the efforts to see that she gets a meagre amount of maintenance by
concealing true income. 2
Where the husband is a medical practitioner, the quantum of
income in absence of any definite evidence, has to be determined by this
Court on some guess work. A skilled labour even earns more than
Rs. 1,500/- per month today. Therefore, it is not possible to believe that
a doctor cannot earn an amount an amount more than a skilled labourer.
Therefore the court would have no hesitation in drawing somewhat
adverse inference against the husband for not disclosing the correct
income and placing on record the relevant documents. Thus, it was
concluded that the income of the husband is not less than Rs. 2,000/- per
month even if he is practising in a remote place. 3
In another case it was held there was blissful non-disclosure of
his true assets and his real income. In certain respects, there has been a
modus operandi of Suppessin veri and Suggestio falsi and the approach
generally is one of evasion and avoidance to place the truth before
the Court. 4

1 Raghubir Yadav vs. Purnima Kharga (Yadav), II (2001) DMC 79 MP.


2 Prafullaben Dhirubhai Kanjiya vs. Dhirubhai Kachrabhai Kanjiya,
AIR 2001 Gujarat 157.
3 Sangeeta vs. Ved Parkash, I (2000) DMC 470 P&H.
4 Gunvnati C. Patel vs. Meena G. Patel, I (1984) DMC 92 Bombay;
see also Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi:
1984 Marriage LJ 316: AIR 1984 Delhi 320.
Determination of income—Unnatural conduct 263

Uncorroborated testimony of wife


In one case it was observed that it is not understandable as to how
a house-wife would prove that her husband was often going for Mujras,
that he was travelling by Air, that he was drinking and serving costly
liquor to his friends, that he was smoking 555 cigarettes, that he was
throwing lavish parties, that he was visiting race-courses and was
gambling with very heavy stakes. These are some of the activities of a
husband which a wife would naturally know and if one gives evidence
from her personal knowledge, why should the same be not relied upon.
Why should there be insistence upon substantiating much evidence ?
Why should her evidence be taken with a pinch of salt ? In Indian set up,
a woman very much belongs to weaker section. She needs protection
especially in a litigation like the present one. She has to fight a legal
battle against a mighty husband. It is a fight between two unequals. She
may not be able to substantiate many facts which she personally knows.
In a given case, woman may be more than a match for a man but
generally she is suffers, oppressed and suppressed. There is no necessity
to suspect her veracity unless the Court is convinced that her evidence is
false and there are reasons for her to harass her husband. Of course, there
is no universal standard or yard stick to measure the truth-fullness of the
evidence of a particular woman — witness in a matrimonial litigation
like the present one as everything depends upon the facts and
circumstances of each individual case but in the case in question it was
categorically held that there was no evidence on record that the wife was
interested in harassing her husband for any oblique purpose. 1

Unnatural conduct
The husband, in one case contended that that he had been running
a business in the name of Avinash Hana & Co. in parental premises A
731, Prem Nagar. Since he was suffering losses he sold it to his brother
Subhash for Rs. 2000/- but the deed of transfer shows Rs. 5500/-. He
joined the service with M/s. Naveen Industries, a firm owned by his
brother Subhash at Rs. 300/- p.m. They both were living at A-732, Prem
Nagar. But he deposed against his written statement that Brij Mohan
Sethi was the sole proprietor of that firm Naveen Industries which
manufactures cash boxes and safe. He produced Brij Mohan Sethi (RW7)
who deposed that he was the owner of Naveen Industries and he had
employed Avinash Handa (husband) on Rs. 300/- p.m. raised now to
Rs. 350/- p.m. His job is to sell and purchase goods, but he does not say
which goods. He is yet maintaining a telephone which he got in the

1 Vishnu Shankerdan Adnani vs. Nansiha Vishnu Adnani, II (1984)


DMC 11 Bombay.
264 Law of Maintenance

category of social workers. It was held that if he was believed then


apparently he could not maintain a phone in his merger salary. It shows
that he earns much more. He had a scooter which he sold to his brother-
in-law for Rs. 5000/-. He had a refrigerator which he sold to his sister for
Rs. 1500/-. It was held that all this evidence shows that he had sold out
everything to show that he no more has any disposable income. He
denied that he had a television set, tape-recorder, etc. The wife alleged
that he had an insurance of Rs. 50,000/-. Which was not denied by the
husband. The family had extensive properties at prime places. The wife
alleged that her husband had a share in all of them, but the husband
denied it all. The learned trial Judge doubted the husband and remarked
that there was truth in the allegations of the wife. Considering all the
evidence, he fixed the income of the husband at Rs. 2000/- p.m. Upon a
survey of the evidence, one is struck with the amount of lies which the
husband has spoken. In order to defeat the claim of the wife for
maintenance of herself and the child, he has taken care to divest himself
of all his possession in favour of his close relatives. His whole case
stands demolished because he has recently contracted a second marriage
which he would not have done if he were just earning what he says he
does. All his evidence is phoney and the amount of income fixed by the
Judge was held to be rather on the low side and extremely moderate. 1

Unskilled Labourer
The wife had stated in the affidavit that the husband was engaged
in the business of bardona and was earning therefrom Rs. 3,000/- per
mensem. The husband had denied this fact and stated in his affidavit that
he is a daily wage worker. It was held that even an unskilled labourer
earns Rs. 50/- per day and the monthly income of the husband will not be
less than Rs. 1,500/-. It was also not denied that he is not able-bodied
person and could not work as an unskilled labourer. Under these
circumstances, It was held that it will meet the ends of justice if the
husband is directed to pay Rs. 750/- per month as maintenance pendente
lite to the wife with Rs. 1,000/- as litigation expenses. 2

Vague denial
In case of Gurvinder Singh vs. Harjit Kaur: 3, it was held
as under:

1 Veena Handa vs. Avinash Handa, AIR 1984 Delhi 445.


2 Seema W/o Devinder Vohra vs. Devinder Vohra s/o Late Dharam
Chand Vohra, I (1992) DMC 264.
3 (1998-2) 119 PLR 422.
Determination of income—Vague denial 265

“…….It is expected from every litigant irrespective of the fact


whether he is seeking relief from the Court no not that he would
state true and correct facts. There is not fully only implied but
specific obligation upon every party who approaches the Court to
verify the fact true to the knowledge and belief of the party
specially in the cases of present kind where the Court has to take
prima facie view keeping in mind the urgency of the matter
regarding grant or refusal of maintenance. Primarily the onus has
to be discharge by respective parties in support of the averments
made in the application or reply as the case may be. Concept of
heavy burden of proof would be applicable during the trial where
the parties have the liberty to lead oral and documentary evidence
in support of their case. The Court would be well within its
jurisdiction to draw adverse inference against a party who
actually or attempt to withhold the best evidence and true facts
from the Court with intention to frustrate the claim of others at
this preliminary stage of proceedings………”
In one case it was observed that the husband was definitely
attempting to withhold correct facts from the Court. He cleverly stated
the he was not the sole proprietor of the business or sole owner of the
house. He also stated that he used to do cycle work but said nothing
about the present. It was held that the vague averments in fact amounted
to an implied admission on the part of the husband, who apparently had
interest and rights in the properties mentioned but the nature of the
interest may not have been definitely established on record. It was held
that this clever attempt on the part of the husband was rightly frustrated
by the learned Trial Court in coming to a reasonable conclusion that the
income had to be taken at least at the rate of Rs. 3,500/- per month and
may not be at Rs. 8,000/- per month, as averred by the wife. 1
It has been held that it is settled principle of regulating the
construction of pleadings that every averment must be specifically admitted
or denied and dealt with. The vague denial cannot come to the rescue of the
non-applicant to avoid liability. Even if it is expected that the husband is a
daily wager, still it cannot be believed that he earns only Rs. 30-40 per day.
It was pointed out by the Counsel for the wife the husband is a Carpenter
and was so working when they were living together. Even if it is assumed
for the sake of consideration that the husband is a simply unskilled labourer
even then in the present day of high prices, no skilled or unskilled labour is
available to work at the amount quoted by the husband. This is matter of
fact and common knowledge, of which the Court would not hesitate to take
judicial notice of. In these proceedings stringent proof of income may not
be insisted at this stage of proceedings. Prima facie view have to be taken

1 Ashok Kumar vs. Santosh Kumari, I (2000) DMC 129 P&H.


266 Law of Maintenance

by the Courts on the basis of the pleadings, facts, documents, if any,


produced on record and the well enunciated principles of law governing the
subject matter with some accepted canon of common behaviour and living
conditions.1
Even if, the Court proceeds on the accepted premises that the
wife with the help of her family is trying to make her both ends meet can
no way be construed as disqualification of her right to seek relief of
maintenance from her husband at best it would affect the quantum of
maintenance and cannot be a bar specific or implied to the
maintainability of such application. There are serious allegations made
by the wife regard to the manner in which husband behave. She has
pleaded danger to her life. In any case this is not the appropriate stage
when the, Court should appreciate his contention in one way or the other
as the main appeals itself is pending hearing. The husband owes a duty
and responsibility to maintain his wife specially when she is in a
destitute condition, obligation to maintain arises at the very outset. If the
wife is staying with the husband, she is entitled to be maintained and
looked after by her husband keeping in view the economic and the social
status which the husband enjoys. These are the factors which are of great
relevancy and carrying significant meaning in fixation of quantum of
maintenance, even when the wife is living separately from the husband.
The only exception to such claim would be where claim of maintenance
is barred by law or the compelling facts and circumstances of a given
case which justifies denial of maintenance. 2
A mere vague denial and vague allegations cannot ever make
foundation for denial of claim of maintenance. The averment of the wife
that the husband owns land cannot be brushed aside in the entirely. Some
element of acceptance has to be attached to the same as the parties have
lived together for a consideration time and normally they would be
knowing the source of income of each other. The allegations of the
husband that the wife is able to earn from the land owned by her family
itself shows that she is entirely dependent upon her family and at
their discretion. 3

1 Surjit Kumar vs. Amarjit Singh, 1999(1) CCC 642 P&H.


2 Surjit Kumar vs. Amarjit Singh, ibid
3 Surjit Kumar vs. Amarjit Singh, ibid.
Quantum of maintenance—Alternative sources of income 267

Chapter 8
Quantum of maintenance
SYNOPSIS
Introduction....................................267 Lump sum payment ........................ 286
Alternative sources of income ........267 Maintenance of children ................ 286
Bare minimum requirements ..........268 Maintenance of parents ................. 288
Benefit of doubt ..............................268 Maximum amount .......................... 289
Compromise ...................................268 Minor children............................... 289
Conduct & status of parties ...........269 Nominal amount ............................ 290
Consideration for determining quantum Number of dependents ................... 290
.......................................................270 One fifth of pay .............................. 290
Date from which payment is to be made One fourth of pay ........................... 292
.......................................................279 One third of pay ............................. 292
Dependents.....................................279 One third or one fifth of income .... 295
Earning spouse...............................279 Persons of royal descent................ 296
Enhancement ..................................279 Precedents ..................................... 296
Excessive amount ...........................280 Principle for computation.............. 297
Half share .....................................281 Proper proportion ......................... 298
Income of claimant/wife .................282 Provisions for rent ......................... 298
Increase or decrease ......................283 Requirement of other relatives ...... 299
Interference in Revision .................283 Right of minors .............................. 299
Irregular income ............................284 Standard of living .......................... 300
Joint family.....................................284 Status ............................................. 300
Judicial notice of inflation .............285 Working wife.................................. 300

Introduction
The amount which is fixed for payment as maintenance is arrived
at with reference to various considerations. One important consideration
is of course, the income of the paying party. This factor has already been
dealt with in the previous chapter. This chapter deals with other
considerations which prevails upon the court while fixing the amount of
maintenance.

Alternative sources of income


Mere existence of Fixed Deposit Receipt or immovably property
will not be sufficient to deny the claim of the spouse for maintenance
pendente lite. It was not the intention of the Legislature that the
268 Law of Maintenance

applicant should be penniless person to ask for maintenance. What


Section 24 of Hindu Marriage Act, 1955 requires is that there should be
independent source of income. Therefore when the wife had filed an
affidavit that she had spent the sum of Rs. 35,000 and the only other
evidence of income which had been produced was a sum of Rs. 292 per
months, interest on some amount which may also belying to her credit. It
was held that it is only the interest which can be treated as source of
income available to her month. 1

Bare minimum requirements


It cannot be said that the Court has only to consider the bare
minimum requirements of the wife and the children but they have to be
put almost at the same position as they would have enjoyed had there
been no separation between the spouses. It need hardly be said that the
wife and the children have to be put on the same position as the
petitioner/husband/father and the amount of maintenance to be awarded
under Section 24 & 26 of the Act has to be in tune with their status and
the mode of living to which they were used to before separation between
the spouses and the wife and the children accorded the same standard of
living which they enjoyed till the date of separation. 2

Benefit of doubt
In one case the Court below accepted the income of the
respondent to be Rs. 3,000/- to Rs. 5,000/- p.m. It was held that the
benefit of doubt has to go in favour of the wife it was considered to be a
fit case where the income of the husband has to be taken to be
Rs. 5,000/- p.m. and out of this amount he had to part with a reasonable
sum for his wife and child. Normal rule is to award 1/3 rd of this amount
to the wife as interim maintenance per month. Similarly, a reasonable
sum is also to be awarded to the child. In this case, it was considered to
be appropriate and reasonable that the mother and child be given
Rs. 3,000/- p.m. as interim maintenance, from the date of application 3
Compromise
Where parties compromised on payment of lump-sum amount to wife
for maintenance of child, the order was passed in terms of settlement.4

1 Gurveen Kuar vs. Ranjit Singh Sandhu, I (1992) DMC 49 P&H.


2 K. Lalchandani vs. Meenu Lalchandani, 1998(1) CCC 383 (Delhi):
1997(68) DLT 712: 1997(6) AD(Delhi) 44: 1997(2) DMC 363.
3 Kaliben Kalbhai Desai vs. Alabhai Karamshibhai Desai, I (2001)
DMC 295 Gujarat.
4 Boomi vs. Leela Rajan, 1977 CrLJ 342: 1977 AIR (SC) 700: 1977
(4) SCC 596 (3).
Quantum of maintenance—Conduct & status of parties 269

Conduct & status of parties


In each case, the conduct of the husband must be looked into. In
one case he went abroad for the purpose of further studies leaving the
wife and two minor daughters who were only a year and two old. There
he sought divorce from the Supreme Court of Nova Scotia on a ground
contrary to the provisions of the Act in this country and then got
remarried. He had no consideration for the wife and two small daughter
and never bothered to pay any maintenance to them. It was only when the
wife wrote to the Court in Canada that maintenance of Rs. 1000/- was
fixed. That too was not paid regularly and for years it was not paid at all.
He did not tell this Court of his true income or the assets. He was living
in the United States. The second respondent with whom he claimed to
have married was also a doctor. It was held that it was a matter of
common knowledge that doctors in United State are quite well and
effluent people. During course of proceedings when the wife moved
application for enhancement of interim maintenance he withdrew from
the proceedings as otherwise he would have to tell the Court his true
income and assets. This, it was concluded that he never wanted to tell.
Calamity fell on the wife when one of her two daughters died in an
accident. Her second daughter was of marriageable age. The wife had
demanded permanent alimony and expenses of the marriage of her
daughter at US dollars two lakhs. It was held that if one converts this
amount into Indian rupees it would appear to be a large figure, but then
considering the status of the husband his conduct it should not be too
great a figure for him to pay and the wife is also entitled to live in
comfort as does the husband. Considering all the relevant circumstances
like the status of the parties, their financial condition, their means, their
way of life, their future necessities, the claim of maintenance by the wife
for herself and daughter at the rate of Rs. 10,000/- per month was held to
be fully justified. 1 As regard the spreading of the amount as interim
maintenance and alimony it was observed as under:
‘I will award this maintenance first as an interim maintenance
under Section 24 of the Act as from the date of the application
which is 1 November, 1986, and then convert the same into
permanent alimony under Section 25 of the Act. This
maintenance shall stand enhanced at the rate of 12% per annum
taking into account the inflation element which is double figure
these days. If, however, the first respondent pays US dollars
33,000 to the appellant in lump sum towards permanent alimony

1 Veena Kalia vs. Jatinder Nath Kalia, AIR 1996 Delhi 54: 1996
Marri LJ 423: 1995(3) AD(Delhi) 1: 1995(59) DLT 635: 1995 RLR
102(N): 1995 MLR 385.
270 Law of Maintenance

her claim for increase in monthly maintenance will stand


waived.’ 1

Consideration for determining quantum


There are several factor which would influence the mind of the
Court while fixing the quantum of maintenance under Section 125 of the
Code. These considerations have been described 2 as under:
(1) The earnings of the person bound to provide maintenance or
his capacity to earn.
(2) The status of the parties.
(3) The basic requirement of the person entitled to maintenance.
(4) The liabilities on the part of the person to provide
maintenance.
(5) Independent source of earning of the person entitled to
maintenance and its quantum.
(6) Inflationary trends prevalent in the market and the value of
rupee. The aforesaid points are required to be considered
seriously while fixing the quantum of maintenance. It is true that
the amount of maintenance should not be luxurious so as to
prompt the wife to remain away from the husband not it should be
penurious so as to deprive the wife or children the basic
necessities of life. The Court is obliged to address itself to all
these important aspect while determining the quantum of
maintenance. In the background of the parties and the objects for
which provisions of Section 125 of the Code are incorporated. It
may be noted that the provisions of Section 125 of the Code are
benevolent provisions designed to prevent vagrancy and
destitution. It is found from the evidence on record that the
educational expenses for the minors per month came to almost to
Rs. 40/- for each at the relevant time. Needless to repeat that
minor son was studying in 6 th Standard and minor daughter was
studying in 4 th Standard at the relevant time. Receipts for the
educational expenses were also produced. Apart from the
expenses pertaining to term fees, tuition fees, the expenses for
uniform, books, for better private tuition, for transport charges
for residence to school and back, etc., are also to be considered.
The amount of Rs. 50/- to each child, practically, would be wiped
out by the education expenses. What about the food, clothing,
medical and other expenses of life which are basic necessities of
life? Similarly, a rejected and dejected wife who is at the mercy
of her brother staying at his residence, cannot get her two ends

1 Veena Kalia vs. Jatinder Nath Kalia, AIR 1996 Delhi 54: 1996
Marri LJ 423: 1995(3) AD(Delhi) 1: 1995(59) DLT 635: 1995 RLR
102(N): 1996 AIR(Del) 54: 1995 MLR 385.
2 in Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II
(1991) DMC 485 Guj.
Quantum of maintenance—Consideration for determining quantum 271

meet within a paltry amount of Rs. 100/-. In fact she is entitled to


reasonable expenses for residence, for her food, clothing and
other such expenses of day-to-day life so as to prevent vagrancy
and Section 125 of the Code is, in reality, intended for ensuring
reasonably supply of food, clothing and shelter to such deserted
wife and children. That is the reason why the Parliament in its
wisdom incorporated these provisions in Section 125 of the Code
so as to provide speedy and summary remedy against vagrancy
and starvation for a deserted wife, child or indigent parents.
These are the important questions to which the Court while
dealing with an application for maintenance should invariably be
looked into. Unfortunately, in the present case, the Courts below
have failed to properly examine and appreciate the
aforesaid points.
The expression “means” in Section 125 of the Code does not
signify only the visible income, such as, real property or regular source
of income or a definite employment. A person who is able-bodied and
who does not suffer from any physical or mental incapacity can be
considered as a person who has the capacity to earn sufficient income
because his physical and mental capacity provide him the capacity to
earn. Therefore, even if a person who has no definite source of income or
a regular source of income, he cannot escape his liability to pay
maintenance. It cannot be contended, even for a moment, that the person
who is not earning or who is not sufficiently earning, cannot be fasten
with the liability for providing maintenance to his wife or children. He is
liable to pay reasonable maintenance to the wife and children so as to see
that they get their two ends meet. 1
A person, who has the capacity to earn, is liable under Section
125 of the Code, even if he is an insolvent, unemployed, a professional
beggar, highly, a Sadhu or a Monk. It is for the husband to show that he
has incurred capacity or he has no sufficient means and he has no
capacity to earn.
In a Division Bench decision of the Bombay High Court in the
case of Muni Kantivijayaji vs. Emperor 2 it was held that a ground by
merely becoming a Sadhu (Jain Sadhu) is not an excuse for not
maintaining his wife. It was further held in the said case that it is for the
husband to show that is not an able bodied minor that he has incurred
incapacity to earn. Therefore, the rightful claim for maintenance cannot
be refused on the ground that the person who is liable for payment of
maintenance is not earning. What is required to be considered is the

1 Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II


(1991) DMC 485 Guj.
2 AIR 1932 Bombay 285.
272 Law of Maintenance

capacity to earn. The quantum of maintenance is required to be fixed in


the light of the aforesaid all relevant facts and circumstances. 1
Where it is a stage of grant of interim maintenance, a reasonable
sum to be awarded towards interim maintenance pending the final
decision of the suit for maintenance. It was held that the learned trial
Court has not considered that Rs. 300/- p.m. is hardly sufficient in these
days of high price of essential commodities to meet out even one time
meal expenses. Food, clothes and house are the three basic needs of a
man/woman. While arriving at a reasonable figure of interim
maintenance, the Court should have taken care of all these requirements.
In addition to this, medical expenses may also be necessary. The amount
of Rs. 300/- p.m. is not even sufficient to make it easy for the lady, to
have three times tea. Normal living cost in these days is very high. It was
held that it is in the interest of justice and to provide a reasonable sum of
interim maintenance and the husband directed to pay Rs. 2,000/- p.m. as
interim maintenance. 2
In another case the carry home salary of the husband was
Rs. 1,300/- and he had to support aged parents. It was held that it is on a
consideration of the totality of facts and circumstances of each case that
a fair and reasonable amount of maintenance has to be fixed. By initial
order, the learned Magistrate fixed Rs. 300/- per mensem for the wife
and yet at the time of final determination the amount was hiked to
Rs. 400/- without there being any additional material on record such as
that in the interregnum period the salary of the husband had increased.
This was held to be arbitrary as there was hardly any justification for
increasing the amount. It was clarified that technically, no doubt, interim
maintenance in the nature of things was only tentative, but a perusal of
the order recorded in this behalf by the learned Magistrate shows that the
he had taken into consideration the relevant facts and material on the file
at the time of fixing the interim maintenance. Therefore keeping in view
the carry home salary and the liability of the husband, an allowance of
Rs. 200/- per mensem for the minor in addition to the allowance fixed for
the wife was held to be on the higher side. The maintenance allowance
for the wife is fixed at the rate of Rs. 300/- per mensem and that for the
child at the rate of Rs. 100/- per mensem. 3

1 Vanitaben Naranbhai vs. Naranbhai Raghavbhai Makwana, II


(1991) DMC 485 Guj.
2 Prafullaben Dhirubhai Kanjiya vs. Dhirubhai Kachrabhai Kanjiya,
AIR 2001 Gujarat 157.
3 Ramesh Kumar vs. Shushma Ram, I (1992) DMC 200 P&H.
Quantum of maintenance—Consideration for determining quantum 273

The amount of which a widow is entitled to recover for


maintenance includes not only that which is sufficient for her food,
clothing and residence but also an amount necessary for the comfort and
maintenance of her position as her husband surviving half. In fixing rate
of maintenance to be paid to a widow in joint family the income of the
family at the time institution of the suit and not on the date of husband’s
death is to taken into consideration as the date. Maintenance awardable
to a Hindu widow depends upon gathering together of all the facts of the
situation, the amount of free estate, the past life of married parties and
families, a survey of the condition and necessities and rights of member
on a reasonable view of change of circumstances, possibly required in
the future regard being had to the scale and mode of living and to age,
habit, wants and class of life of the parties. It is out of great category of
circumstances, small in themselves that a safe and reasonable induction
is to be made by a Court of law in arriving at any fixed sum. The test in
determining the allowance is whether the scale is suited to her husbands
position in life. 1
The sum awarded must enable the lady to live consistently with
the position of a widow in something like the same degree of comfort
and with the same reasonable luxury of the life as she had in her husband
life time provided that sum awarded does not exceed the annual profits
on the share to which the husband would have been entitled on portion
of living. 2
While fixing the amount of maintenance it is necessary to take
into consideration (1) status of the parties (2) wife who was then living
with her husband and luxurious and necessary amenities provided to her
during that period, (3) Necessities of life, though some of the items
might be luxurious, but, now a days they have become necessities of life,
and lastly, (4) her social status. On these considerations it was held that
no doubt that the non-applicant enjoyed all these facilities when the
relations between the parties were cordial. However, one cannot bank
upon and insist that despite unfortunate separation she is entitled to take
same such treatment which she enjoyed previously. At the same time one
will have to give some latitude to the earning of the applicant and the
contingent unforeseen expenses in his profession. Simply because the
wife was moving in car before the proceedings that does not mean that
the husband should provide car to her. In view of the changing
circumstances, certainly the non-applicant will have to adjust herself to

1 R.B. Gurubasvaiah vs. M.G. Preme, II (1992) DMC 191 Kar.


2 R.B. Gurubasvaiah vs. M.G. Preme, ibid.
274 Law of Maintenance

the situation and the amount that will be received by her under Section
24 of the Hindu Marriage Act. 1
Thereafter it was held that even after giving some latitude to the
income of the applicant, certainly, the amount of Rs. 7,000/- per month
claimed by the non-applicant is ordinarily heavy and even beyond her
requirement. It cannot be forgotten that the applicant is to maintain
himself, his residence, his clinic, pay for education of his two children.
So called luxurious items as stated by the non-applicant cannot be treated
so because even for the medical profession of the applicant these are the
necessary amenities. There may be VCR, Television, cooking range at
the residence, air-conditioner, cooler etc; some times in the past these
items might have been treated as luxurious but in present days they have
become necessities of life. 2
In another case it was held that the quantum of maintenance at the
rate of Rs. 8000/- per month is certainly not on the high side. The instant
proceedings are after all for interim maintenance pending the hearing and
final disposal of the main matrimonial proceedings. The amount, to
which the wife would be entitled pending the main proceedings, should
be a fair and reasonable amount satisfactory enough to maintain herself
as the wife of her husband and in a manner and style in consonance with
their status. Interim maintenance proceedings cannot be equal with
proceedings akin to partition and possession of a share in the family
properties. All that the Court has to consider is what, in the facts and
circumstances of each case, would be an amount fair and just which
should be awarded by way of interim maintenance to the wife in
consonance with the status of her matrimonial home and of course, in
consonance with the life style of her own husband whose wife she
continues to be. It was observed as under:
‘One is unhappy to see the extent to which the husband is wiling
to go in order to avoid in a reasonable manner his liabilities to
maintain his wife. One who has been continuously over the years
exclusively enjoying large benefits of very valuable properties in
Bombay and Ahmedabad as also the large benefits of a running
cinema theatre and one who is a managing director of a private
limited company in which he hold over 90% interest and one who
has been paying as such as Rs. 2,40,000/- on salary, can as well
afford to pay a fair, just and reasonable sum by way of
maintenance to his own wife. It is also worth noting that for the
last ten years the husband has been staying separately from his
wife. All these long years, the husband has been staying

1 Narendra Vidyadhar Sardesai vs. Shaila, II (1992) DMC 598 Bom.


2 Narendra Vidyadhar Sardesai vs. Shaila, ibid.
Quantum of maintenance—Consideration for determining quantum 275

separately from his wife. All these long years, the husband did
not even bother to help her. And like every other estranged Hindu
wife, the wife here also has somehow managed to live perhaps
under heavy obligations of her relations. She even faithfully and
devotedly looked after and brought up her son born of this
matrimonial tie. It is only now when the husband has chosen to a
drag his wife to a Court of law by way of the present matrimonial
petition — which was literarily the last straw on the camel’s back
— that she, perhaps unable to hear the sufferings any longer, has
chosen to take out the present notice of motion for maintenance.
Even in these proceedings, she has expressed her willingness to
go back and stay with her husband if only he gives up, according
to her, his adulterous life with one Rita, a former employee in an
Attorney’s firms.
An amount of Rs. 5000/- per month would be a fair, just and
reasonable award in favour of the wife by way of maintenance.
Indeed, the husband himself seems to suggest maintenance of
Rs. 4500/- per month vide ground (aj) of the memorandum of
appeal.’ 1
In another case a question was posed by the High Court in these
words: ‘Having regard to the necessities of life given the walk of life of
these people, with him working in an insurance office as a salaried
employee, with the wife living at home with the onerous duty of bringing
up these three young children, does the order produce a result in which
the husband on the one hand in his home, the bed sitter, has a
comparable standard of living to the wife and children in their home?’
Then the court went on to answer this question as under:
‘One starts from the position that on this sort of salary scale the
family is going to have a significant drop in the standard of living
as a result of divorce because the income, which is really only
enough to keep the family comfortably in one house, has to be
split up so that the family can live in two places. There is a
difficulty in the presentation of the facts, that on the figures that
we were given first it looked as if the wife had a surplus of
income over expenditure of ₤ 6 a week or so, but when her
affidavit was scrutinised it appears that the figure given as her
expenditure does not, with any accuracy, disclose the breakdown
of her overhead expenses on rates, water rates, telephone, ground
rent, heating, lighting and a thing called ‘maintenance contract’.
These were items that were covered by the original voluntary
payment of ₤ 40 a month for those purposes, and there is not
anything before us, nor have we received any information about

1 Gunvnati C. Patel vs. Meena G. Patel, I (1984) DMC 92 Bombay;


Dev Dutt Singh vs. Rajni Gandhi, I (1984) DMC 141 Delhi: i: 1984
Marriage LJ 316: AIR 1984 Delhi 320.
276 Law of Maintenance

the evidence below, sufficient to enable us to know what the real


outgoings on those important expenses is and ought to be. For
myself, I would say that the family cannot afford a telephone any
longer, given the realities of their difficulties. Whether the can
afford the amenity of very much gas central heating to be seen. I
would approach those elements which are not precisely quantified
by saying that, taking the factors of weekly expenditure which are
disclosed in the wife’s affidavit, obviously some pounds a week
must be added for those items that were not precisely
quantified.’ 1
In another it was observed from the pleadings and the evidence
adduced during trial it was patently clear that the respondent runs a
business in plywood and furniture as a partner. Besides, the respondent’s
parents have two separate establishments in their respective names
dealing with furniture’s. Record further showed that the family of the
husband had a flat of their own. The husband, however, sought to assert
that his monthly income was only Rs. 700/- to Rs. 800/- per month but it
was observed that he was not detailing the correct facts about his income
and even though he had in his written statement carved leave to refer to
and rely upon the profit and loss account of his business, the same was
not produced before the Court. In these circumstances it was held
as under:
‘Considering the nature of the business the petitioner has had
been carrying on, we find no hesitation in concluding that the
income, as stated by the petitioner, is absolutely incorrect and he
earns a much larger income than what he was claimed.
Admittedly, the appellant who lives in Bombay has no
independent source of income. It would, therefore, be difficult, if
not impossible, for her to make both ends meet with the meagre
sum of Rs. 400/- per month. Considering this aspect of the matter
and considering the income which the respondent is earning from
his own business and that of his parents with whom he is living,
we feel that he should pay a sum of Rs. 1,200/- per month to the
appellant.’ 2
In another case husband was serving the Central Government in
the pay scale of Rs. 2200-4000 since before 1986 and the learned Judges
has also took into consideration that at the time of hearing the
proceedings, he was getting 80 per cent dearness allowance in addition to
the basic pay in that scale and consequently he has determined the
monthly maintenance allowance. It was held that on an income of
Rs. 4000/- per month, he could very well pay Rs. 500/- per month to his

1 Scott vs. Scott, (1978) 3 All ER 65 (CA): (1982) 2 DMC (BJ) 80.
2 Pushpa Anil Sharma vs. Anil Shivmurthy Sharma, I (1994) DMC
583 Bombay.
Quantum of maintenance—Consideration for determining quantum 277

divorced wife until she remarries. Liberty was granted to the husband to
approach the Family Court for modification or cancellation of the
maintenance allowance in the event of the lady entering into remarriage. 1
In another case the gross salary of husband was Rs. 2,733/-. The
net pay available to him was Rs. 2,163/-. Thereafter, he has made certain
deductions and the take home pay is found to be Rs. 1,039/-. It was held
that for computing income in such cases, the deductions made by the
husband by way of contribution towards benevolent funds, contribution
towards GPF, repayment of advance, etc. cannot be taken into
consideration. Therefore, his gross salary can be taken into consideration
as Rs. 2,733/. It also transpires from the pay slip produced on record that
he is paying a rent of Rs. 45/- per month for the quarter he is occupying.
Therefore it was held that even if the gross salary that was earned by the
husband is taken into consideration, deduction of Rs. 1,200/- from that
amount would leave behind an amount of Rs. 1,500/-. Therefore it was
held that an amount of Rs. 500/-, by way of maintenance, would meet the
ends of justice. 2
In another case the husband was getting Rs. 4,000/- per month as
salary. The wife was also receiving a salary of Rs. 879/- per month, as a
teacher. Considering the huge income which the husband is receiving and
considering the paltry sum of the salary which the wife is receiving as a
teacher, it was held just and proper that alimony pendente lite of
Rs. 500/- per month, should be granted and she should also be granted
the litigation expenses of Rs. 5,000/- considering the fact that the
husband dragged her to Court not only in the matrimonial proceedings,
but also in other proceedings. 3
In another case the husband was a Driver in the Roadways and his
monthly income was Rs. 1500/- per month, according to the wife, while
according to the husband it was only Rs. 1090.90 per month. That apart,
there was also evidence that he also owned a Bus from which he had
income of Rs. 2000/- per month. However, considering the income of
Rs. 1090.90 per monthly only, the court below in view of the fact that
the husband was neither maintaining his wife nor his two minor children
awarded Rs. 300/- per month to the wife and Rs. 100/- each to the two

1 Ram Ashrey Prasad vs. Pawan, II (1995) DMC 121 All.


2 Safiyaben Mohamed Sahid Ansari vs. State of Gujarat, II (2000)
DMC 494 Gujarat.
3 Joykutty Mathew vs. Valsamma Kuruvilla, I (1991) DMC 479 Ker.
278 Law of Maintenance

minor children, total Rs. 500/- which amount was held to be not
erroneous or suffering from any illegality. 1
In one case evidence showed that the husband and his second
wife were living in a large and sumptuously furnished house, and that in
each of the last two years the husband had spent, from one spouse or
another over ₤ 60,000 on himself, his second wife and her children. It
was observed as under:
‘In order to enable the wife to enjoy during her lifetime the same sort of
standard of living as MRs. L. enjoys now is likely to enjoy in the future,
she should in addition to having transferred to her the husband’s half
share in Pilgrim’s Wood, be awarded a lump sum of such an amount as
will meet two requirements: firs, a sum sufficient to put Pilgrim’s Wood
into proper condition, and to furnish its interior in a reasonably
sumptuous way; and, secondly, a further sum sufficient, if she chooses to
apply it in that way, to purchase for her an annuity of ₤ 30,000.
As regards the first sum, I should regard ₤ 75,000 as a fair figure on the
evidence available. As regard the second sum, actuarial tables indicate
that the capital cost of providing an annuity of ₤ 30,000 after deduction
of tax on the taxable part of the annual sum provided, is of the order
of ₤ 310,000.
On these figures it seems that the proper lumps sum to award is
₤ 385,000. neither of the constituent figures is exact, however, and in all
the circumstances of the case, including, in particular, the indebtedness
of the wife, and the fact that the sum is being paid by instalments, I think
it would be fair to round off the figure at ₤ 400,00. I would not, however,
regard that sum as including in it any amount in respect of the future
maintenance of Simon, which should for the reasons which I gave
earlier, be dealt with by an appropriate order for periodical payments
payable directly to him.’2
In yet another case materials were brought to record to prove that
husband was sufficient means. What is sufficient in a particular case
would depend upon the social and economic status of persons. Petitioner
ought to have brought to record materials to show how his other family
members are maintained so that Court could have considered the equal
scope for maintenance of wife. In absence of any material, finding of the
trial Court that Rs. 200/- per month would be just allowance cannot be
said to be unreasonable even keeping the minimum standard of 1985
in view. 3

1 Dinesh Kumar Singh Rathore vs. State of U.P., I (1991) DMC 638
All.
2 Preston vs. Preston, (1982) LR Fam. 19 (CA): (1986) I DMC (BJ) 25.
3 Neheru Bag vs. Tapaswini Bag, I (1992) DMC 197 Orissa.
Quantum of maintenance—Enhancement 279

Date from which payment is to be made


There is no legal impediment in directing that maintenance
should be paid, to be effective from the date of service of summons of
the main petition for restitution of conjugal rights, on the wife.
Accordingly it was held:
‘The petitioner was awarded future maintenance at the rate of
Rs. 200/- per mensem as per orders of this Court dated 17-2-
1984. She has claimed maintenance at the same rate for the entire
period from the date of filing of the main petition 3-3-1980. As
stated earlier, the quantum can be fixed only on the basis of the
averments contained in the affidavits filed by the parties in his
court. In all the circumstances of the case, and in the light of the
fact brought out in the various affidavits filed by the parties. I am
of opinion, that a sum of Rs. 100/- per mensem is a fair and
reasonable amount to be awarded towards maintenance for the
period, 13-3-1980 to 17-2-1984. Accordingly I fix a sum of
Rs. 4,700/- towards maintenance for the said period plus a sum of
Rs. 500/- towards expenses for contesting the proceedings in the
court below, totalling to Rs. 5,200/-’ 1
Dependents
In one case the wife has four grown up children who were
receiving education and a sum of Rs. 1700/- which was being paid to the
wife and her four children was held to be not sufficient. Therefore it was
directed that the husband shall pay a total sum of Rs. 3,000/- per month
as maintenance to the wife and her four children. 2

Earning spouse
In one case the claimant’s mother was earning a monthly income
of Rs. 8,000/- out of which Rs. 4,000/- was being paid as rent and
considering the fact that the plaintiffs are two unmarried daughters who
stay with their mother who had to incur expenses for their upkeep and
education, it was held that the interest of justice would warrant that an
interim maintenance of Rs. 1,500/- per month should be granted to each
of the plaintiffs payable from the date of filing of application besides a
sum of Rs. 5,000/- towards litigation expenses. 3

Enhancement
A perusal of sub-section (1) of Section 127 of the Criminal
Procedure Code, 1973 leaves no manner of doubt that on proof of a

1 Nalini vs. Velu, II (1984) DMC 434 Kerala: 1984 Ker LJ 438: 1984
Ker LT 790: AIR 1984 Ker 214.
2 Sheela vs. Rajveer Singh, I (2000) DMC 733 (SC).
3 Radhika vs. LT. Col. J.C. Dhir (Retd), II (2000) DMC 232 Delhi.
280 Law of Maintenance

change in circumstances of any person receiving under Section 125 of


the Code the monthly allowance or ordered under the same section to pay
a monthly allowance to his wife the Magistrate may make such an
alteration in the allowance as he deems fit. It is thus quite apparent that
there would be no legal bar for alteration in the maintenance allowance
already fixed in favour of the wife under Section 125 of the Code merely
because the said order was passed on the basis of compromise between
the parties. Nor it would be obligatory for the wife to first get the order
under Section 125 of the Code set aside in her favour and then apply for
alteration of the maintenance allowance under Section 127 of the Code. 1
The Hindu Law recognised that the right of maintenance was a
substantive and continuing right and the quantum of maintenance was
variable from time to time. Neither the provisions of Section 11 of the
Code of Civil Procedure nor the principles of res judicata will bar a suit
for maintenance on an enhanced rate for a different period under altered
circumstances even though on an earlier occasion a maintenance decree
had been passed and a certain rate of maintenance had been fixed
thereunder. The reason being that such a decree as to the rate of
maintenance is not final. 2

Excessive amount
Maintenance allowance granted at the rate of Rs. 500/- per month
cannot in anyway be said to be excessive. 3
Where income of husband was only Rs. 360/ p.m., grant of
Rs. 200/- as maintenance was held to be excessive and amount was
reduced to Rs.150/- p.m. 4
In another case the husband was a Medical Officer getting a
salary @ Rs. 5000/- per mensem as determined by the Matrimonial
Court. The maintenance pendente lite @ Rs. 1000/- fixed by the
Matrimonial Court was held to be excessive. It was held that the
Matrimonial Court did not take into consideration the fact that the
progenies from the wedlock were being maintained by the husband. 5

Half share

1 Jaswant Singh vs. Ranjit Kaur, I (1991) DMC 528 P&H.


2 Ram Shanker Rastogi vs. Vinay Rastogi, AIR 1991 All 255 (DB)
3 Mahesh Babu Saxena vs. Additional Chief Judicial Magistrate,
Bareily, I (1996) DMC 594 All.
4 Ganeshbhai Keshavabhai vaghari vs. State of Gujarat, I (1986)
DMC 20 Guj
5 Ramesh Kumar Leekha vs. Raj Kumari, I (1992) DMC 311 P&H.
Quantum of maintenance—Half share 281

According to the Hindu Mythology, wife has been given the


status of ‘Ardhangni (Half Part) and as such she shares sweet or sour
equally alongwith her husband and therefore, so far as the income of the
husband is concerned, she is also entitled to share equally. Thus, the wife
is justified to have equal share in the income of her husband. 1

There is no hard and fast rule, and each case depends on its own
facts, and the Court has been given wide discretion to fix the amount of
maintenance, keeping in mind the provisions of Section 23(2) of the Act.
If the income of the husband is on the higher side and if he has no
obligation to maintain any other persons except himself, and if the wife
is neglected, who has to maintain two children, the share from the
income of the husband to which the wife should be entitled may be
considered to the extent from one-third to one-half, depending upon the
circumstances of the case and the need of the family. In the instant case,
the net income of the husband is assessed at Rs. 2,000/- per month plus
income from the joint family properties. The amount of Rs. 1,000/- per
month claimed by the plaintiff-wife is less than one-eighth of the net
income of the defendant-husband and, therefore, it is not necessary, in
the instant case, to decide the percentage to which the plaintiff-wife will
be entitled to. At least, she is entitled to Rs. 1,000/- as maintenance per
month from the date of the suit till she alive, subject to her right to apply
for enhancement of maintenance in accordance with the income of the
defendant-husband under Section 25 of the Act. 2
In Radhikabai @ Ambika vs. Sadhuram Awatrai, 3 the Court held
that after deducting amount for uncertainties the total income of the
husband is to be divided equally amongst the dependents of the husband,
if any, including himself and in this way the wife shall be entitled to
have her proportionate share. In another case, the material on record did
not show that there were dependents of the husband. Therefore, if an
amount of Rs. 100/- is deducted out of the income Rs. 1500/-, for
uncertainties, then the -wife was accordingly held entitled to receive
maintenance at the rate of Rs. 700/- per month as alimony. 4

1 Pratima Singh vs. Abhimanyu Singh Parihar, I (1986) DMC 301 MP.
2 Maganbhai Chhotubhai Patel vs. Maniben, AIR 1985 Gujarat 187:
1985 Guj LH 181: 1985 (1) 26 Guj LR 271.
3 AIR 1970 MP 14.
4 Pratima Singh vs. Abhimanyu Singh Parihar, ibid.
282 Law of Maintenance

Income of claimant/wife
Very often financial support is given to the wife by her father. It
has been held that the sum received by wife from her father is not her
income but only a bounty which she may or may not get. 1
The mere fact that the language of Section 488(1) of the old Code
does not expressly make the inability of a wife to maintain herself a
condition precedent to the maintainability of her petition, does not imply
that while determining her claim and fixing the amount of maintenance,
the Magistrate is debarred from taking into consideration the wife’s own
separate income or means of support. There is a clear distinction between
a wife’s locus standi to file a petition under Section 488 and her being
entitled, on merits, to a particular amount of maintenance thereunder. 2
There is nothing in these provisions to show that in determining
the maintenance and its rate, the Magistrate has to inquire into the means
of the husband, alone, and exclude the means of the wife altogether from
consideration. Rather, there is a definite indication in the language of the
associate Section 489(1) of the old Code, that the financial resources of
the wife are also a relevant consideration in making such a
determination. Section 489(1) provides, inter alia, that “on proof of a
change in the circumstances of any person receiving under Section 488 a
monthly allowance, the Magistrate, may make such alteration in the
allowance as he thinks fit”. The “circumstances” contemplated by
Section 489(1) must include financial circumstances and in that view, the
inquiry as to the change in the circumstances must extend to a change in
the financial circumstances of the wife. 3
Under the Hindu Adoption & Maintenance Act, 1956 it is the
obligation of a person to maintain his unmarried daughter if she is unable
to maintain herself. It has been held that where the wife has no income of
her own, it is the obligation of the husband to maintain her and her two
unmarried daughters one of whom is living with wife and one with him.
Section 24 of the Hindu Marriage Act, 1955, no doubt talks of
maintenance of wife during the pendency of the proceedings but this
section cannot be read in isolation and cannot be given restricted
meaning to hold that it is the maintenance of the wife alone and no one
else. Since wife is maintaining the eldest unmarried daughter, her right
to claim maintenance would include her own maintenance and that of her

1 Kulbhushan Kunwar Dr. vs. Raj Kumari, AIR 1971 SC 234: 1971
All LJ 1047: 1970(3) SCC 129: 1971(2) SCR 672.
2 Bhagwan Dutt vs. Kamla Devi, 1975 CrLJ 40: AIR 1975 SC 83:
1975(2) SCC 386: 1975(2)SCR 483: 1975Mad LJ (Cr) 81.
3 Bhagwan Dutt vs. Kamla Devi, ibid.
Quantum of maintenance—Interference in Revision 283

daughter. This fact has to be kept in view while fixing the maintenance
pendente lite for the wife. 1

Increase or decrease
No criteria has been laid down to be taken into account while
considering the application under Section 127 of the Code and the
ground on which reduction or enhancement of the amount may be made.
A change in the circumstance of any person appears to be the sine qua
non for vesting power in the Magistrate to deal with the matters
regarding alteration of quantum of maintenance. In these circumstances
it has been held reasonable to read Section 125 and 127 of the Code
together since both the section deal with the same subject object matter
and one is an off shoot from the other. This position becomes
particularly clear since the Magistrate is vested with power both to
enhance and reduce the quantum of maintenance as evident from the
provisions of the Sub-section (1) of Section 127 of the Code. It is
therefore necessary that in order to deal with the application filed under
Section 127(1) for modification of the order of maintenance, the
Magistrate should consider the matter in the light of the criteria which
usually weigh with the Court in the proceeding under Section 125. 2
In the proceeding under Section 125, the Magistrate is to consider
the reasonable requirement of the wife for her proper maintenance
considering the standard of living which she was enjoying/would have
enjoyed in the house of her husband, the reasonable amount required for
her separate maintenance considering the prevailing cost of living, price
of essential commodities, etc., and also the income of the husband and
income, if any of the wife. Unless this position is accepted it will lead to
a mechanical disposal of the application filed under Section 127 simply
on the ground that there has been a change in the circumstance
subsequent to passing of order under Section 125. 3

Interference in Revision
In one case Rs. 1300/- per month as maintenance pendente lite as
also litigation expenses of Rs. 2200/- was fixed by consent of both the
parties. The wife then brought certain more facts to the notice of the
learned ADJ like that he was actually drawing salary of Rs. 4300/- per

1 Jasbir Kaur Sehgal vs. District Judge, Dehradun, AIR 1997 SC


3397: 1997(7) SCC 7: 1997(7) JT 531: 1997 All LJ 2091: 1997(2)
Orissa LR 379.
2 Santilata Pradhan vs. Mrutunjaya Pradhan, I (1991) DMC 256
Orrisa.
3 Santilata Pradhan vs. Mrutunjaya Pradhan, ibid.
284 Law of Maintenance

month and was also, getting bonus of Rs. 14000/- to Rs. 15000/- per
year. In addition the husband was alleged to be recovering Rs. 1500/- per
month as rent. The learned ADJ carefully considered these circumstances
some of which were also admitted in the reply filed by the husband. He
came to the conclusion that husband was actually receiving Rs. 14000/-
to Rs. 15000/- approximately per annum as bonus. Thus adding this
income he came to the conclusion that the monthly income of the
husband was round about Rs. 5000/- per month and, therefore, increased
and maintenance allowance from Rs. 1300/- to Rs. 1600/- per month. It
was held that there was no jurisdictional error in the conclusion arrived
at by learned Additional District Judge. 1

Irregular income
While considering the irregular nature of income it was observed
as under:
‘The error committed by the Revisional Court is that although the
husband was receiving Rs. 620.65 p. per month, his salary has
been considered as Rs. 1,000/- per month. Secondly, the extra
work which the husband undertakes on holiday cannot be said to
be any fixed income. No fixed income is proved on record and
therefore, the uncertainly of the income cannot be taken into
consideration to enhance the quantum.’ 2
Joint family
In one case husband was residing with his parents and his brother
in a flat which was a luxurious one having air-conditioner. The husband
was working as a Director of a firm and his family belongs to the
business community and the income appeared to be quite substantial. It
was held that even assuming that the net income of husband is about
Rs. 2500/- per month, still there is nothing wrong if the learned Judge
awarded Rs. 100/- to the wife and Rs. 500/- each to the two children. It
was also held that the husband must thank himself for the situation as it
is of his own making and should have exercised more restraint and
should have also advised his parents to do so while dealing with
his wife. 3
In another case the husband was in service in a private auto
company and is drawing a salary of Rs. 500/- p.m. and was a member of
the joint Hindu Family which was possessed of certain agricultural lands

1 Shashi Bawa vs. Rumneek Bala, I (1991) DMC 386 Delhi.


2 Kanhaiya Lal vs. Sau. Suman, I (1989) DMC 157 Bombay.
3 Suren Chndrakant Shah vs. Rita Suren Shah, II (1985) DMC 329
Bombay.
Quantum of maintenance—Judicial notice of inflation 285

giving two crops in a year. Under the circumstances, the amount of


interim alimony to the extent of Rs. 75/- per month was held to be
unreasonably low. Treating the total monthly income of the non-
applicant to be Rs. 750/- p.m., monthly interim alimony of Rs. 150/- was
held to be reasonable and proper and the litigation expenses of Rs. 200/-
was held to be very meagre and therefore was enhanced to Rs. 350/-, in
the peculiar facts and circumstances. 1
In one case the plaintiff/wife had given details of the properties
and business activities of the defendant. She had also given the details of
the business which was being run by the family. It was not disputed by
the defendant that he was part and parcel of a joint family. It was also
not disputed that he is married for the second time. Therefore, it was
held that the contention that he had no independent income to provide for
maintenance of the wife, cannot be accepted. It was also held that once
the details of the properties and the business had been specifically
mentioned in the petition, it was for the defendant to disclose the
income. He had chosen not to give any details of the income. He merely
stated that he is only helping in the business of his parents. When the
plaintiff had made allegations that the parents of the defendant were
constantly demanding dowry, it was stated by the Counsel for the
defendant that the family is well off that therefore, there is no need to
make any demands for dowry. Yet on the other hand in reply to the plea
for maintenance it is stated by the defendant that he has no independent
income. In this background it was held that the plaintiff had made out a
prima facie case for interim maintenance. The defendant was directed to
pay maintenance to the plaintiff in the sum of Rs. 2,500/- per month
from the date of the application. 2

Judicial notice of inflation


The Court can also take judicial notice of the cost of living and
also the inflation. The maintenance can be fixed with reference to the
cost of living as of today and future rise in the cost of living on
approximate basis. It is not that the wife has to come to the Court again
and again with increase in cost of living. The maintenance can be linked
to the inflation. Of course, if there is some substantial change in
application could be filed for modification of the maintenance awarded. 3

1 Bandna vs. Ramnaresh Shivhare, II (1994) DMC 161, MP.


2 Tabassum Shaikh vs. Shaikh S.J. Shaikh, I (2000) DMC 95
Bombay.
3 Veena Kalia vs. Jatinder Nath Kalia, AIR 1996 Delhi 54: 1996
Marri LJ 423: 1995(3) AD (Delhi) 1: 1995(59) DLT 635: 1995 RLR
102(N): 54: 1995 MLR 385.
286 Law of Maintenance

Judicial notice can be taken of rising prices with the result that
the cost of bare existence is regularly rising, rather mercurially. 1
Having regard to the rising cost of living at the relevant point of
time, which the Court can take judicial notice at least Rs. 250 to 300/-
per month if nor more, was held to be required for the maintenance of the
children, the expression ‘maintenance’ being understood as defined in
Section 3(b) of the Act. The question of adequacy is not to be tested by
the fact that they were not subjected to abject starvation, but the same
will have to be tested by the standard reflected in the definition
of ‘maintenance’. 2

Lump sum payment


The payment of maintenance to the wife by way of lump sum can,
by no stretch of imagination, be stated to be contracting out of the legal
obligation to maintain the wife. To put it otherwise such payment is sine
qua non of taking cognizance of the legal obligation of the husband to
maintain the wife. However such lump sum payment in a sum of
Rs. 5000/- paid in the year 1967 can, by no stretch of imagination, be
stated to be so merger or inadequate, so that it can be stated that by the
investment of the said sum, the wife cannot meet out her requirements
towards her maintenance. 3

Maintenance of children
Under Section 3(b) of the Hindu Adoptions & Maintenance Act
‘maintenance’ includes— (i) in all cases, provision for food, clothing,
residence, education and medical attendance and treatment; (ii) in the
case of an unmarried daughter, also the reasonable expenses of and
incident to her marriage. 4
Reasonable expenses of and incidents to their marriage also
would come under the definition of ‘maintenance’. Looked at from any
point of view and from any angle, therefore, it is not at all possible to
say that the plaintiff were adequately maintained. Even otherwise, as
pointed out earlier, it is not open to the defendant to say that because
they were maintained till the date of the suit by the mother they should
be continued to be maintained by her only. Such cannot be the stand of

1 Ram Shamker Rastogi vs. Vinay Rastogi, I (1991) DMC 204 All.
2 Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka.
3 Palanimmal vs. K. Chinnusamy, II (1995) DMC 140 Madras.
4 Gurupadayya vs. Ashalata, ibid.
Quantum of maintenance—Maintenance of children 287

the defendant because, as pointed our earlier, the liability of each of the
parents is several. 1
The husband was a Medical Officer getting a salary @ Rs. 5000/-
per mensem as determined by the Matrimonial Court. The maintenance
pendente lite @ Rs. 1000/- fixed by the Matrimonial Court was held to
be excessive. It was held that the Matrimonial Court did not take into
consideration the fact that the progenies from the wedlock were being
maintained by the husband. It was not disputed that the progenies are
being educated in Public School and the husband had to incur
expenditure on the maintenance of the children. Under these
circumstances, it was held that it will meet the ends of justice if the
husbands is directed to pay the interim maintenance at the rate of
Rs. 750/- per mensem till the final disposal of the petition under Section
25 of the Act. However the husband was permitted to deduct the
maintenance allowance @ Rs. 400/- per mensem payable under the
orders of the Judicial Magistrate under Section 125, Criminal Procedure
Code. 2
In another case the Supreme Court directed the father who had
married again, to deposit a sum of Rs. 30,000/- for each of the two
daughters who were with their mother as the husband had married again
and had paid only Rs. 50/- per month to each of the daughters which
amount was also enhanced to Rs. 1000/- per month from the January of
the year of the decision. 3 In yet another case while granting decree of
divorce the father was directed to pay Rs. 4000/- for maintenance of the
two daughters till they are married or are able to earn their livelihood.4
In this case the children were living with their mother who was also
earning about Rs. 4000/- per month. 5 In yet another case the monthly
maintenance granted to the son was Rs. 1000/- which was enhanced to
Rs. 3000/- per month till he attains the age of 27 years. 6
In a rather latest case the Supreme Court has held that the
liability to maintain the children, under section 26 of Hindu Adoptions &
Maintenance Act, 1956, is mutual and both the parents should contribute
towards their maintenance, and the amount of Rs. 3000/- fixed for

1 Gurupadayya vs. Ashalata, I (1994) DMC 62 Karnataka.


2 Ramesh Kumar Leekha vs. Raj Kumari, I (1992) DMC 311 P&H.
3 S. Jayalakshmi vs. T. Prakash Rao, 1996 (8) SCC 501
4 Sneh Prabha vs. Ravinder Kumar, 1995 Supp (3) SCC 440
5 Sneh Prabha vs. Ravinder Kumar, ibid.
6 Kirti Malhotra vs. M.K. Malhotra, 1995 Supp (3) SCC 522
288 Law of Maintenance

maintenance was directed to be shared by both in a ratio of 2:1 as per


their respective incomes. 1

Maintenance of parents
In fixing maintenance but allowance the court has to Take into
account not only the needs of the person who claims maintenance but
also the capacity, status, commitments and the obligations of the person
who is to pay it. It is to be recalled that the applicant has two infants
who are to be looked after by him and this is the stage when he is to
bring them up and also to give them proper education so that they grow
in the manner in which every parent would like their children to grow.
The court while dealing with such matters should not only take into
account the respective needs and requirements of the parties but should
also take into account the status, the capacity to pay, commitments and
the obligations of the person held guilty of neglect. It would be unjust to
grant maintenance in an arbitrary manner. In certain circumstances it
might have the effect of virtually rendering the other side a destitute. In
dealing with this aspect of the case the courts below have made an
emotional approach and that is how the quantum of maintenance
was fixed. 2
In this case while allowing this allowance the courts below had
taken into consideration that the income of the husband is about
Rs. 3,000/- per month. There was also a mention of the fact that the wife
of the petitioner was also earning about Rs. 1,000/- per month. It is true
that the income of the wife was not taken into consideration while fixing
the quantum of maintenance but then it appears that this has affected the
minds of both the courts below. The husband had submitted a chart of his
latest income before High Court wherein he had pointed out to various
deductions he has to make from his pay and had stated that after making
the compulsory deduction he is only left with Rs. 1,300/-. He has placed
his total income at Rs. 3,349/-. He has further stated therein that after
paying Rs. 900/- to his parents he is left with only Rs. 400/- to maintain
himself, his wife and two children. It was held that the only
consideration in allowing the quantum of maintenance that seems to have
weighed with the courts below was the income of the petitioner and they
have not taken into consideration the compulsory deductions which the
petitioner had to make from his income as an employee. Both the courts
below have failed to take into consideration some both factors while
fixing the quantum of allowance. It was also held that it had been totally

1 Padmaja Sharma vs. Ratan Lal Sharma, 2000 (4) SCC 266
2 Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116
Delhi.
Quantum of maintenance—Minor children 289

forgotten that the respondents to whom the maintenance is being granted


have to live together under one roof and one hearth because the idea is to
provide for their maintenance and not to make provisions for saving. 1

Maximum amount
In one case the applicant was an illiterate old woman without
means. The husband was an employee of the vehicle factory, and
according to his own admission, he was getting Rs. 3,500/- per month as
salary. It was held that must have been before the revision of pay under
the Fifth Pay Commission and he had no other liability as all his six
children are major and married. Maintenance of Rs. 500/- per month to
the wife was affirmed. 2

Minor children
In ordinary circumstances, the expenses on a child which belongs
to such a family whose parents are indisputably deriving more than
Rs. 4000/- per month as income, should not be less than Rs. 1000/- per
month in any case. When the learned Magistrate after taking notice of the
factual position in this case has held that both the father and mother are
equally liable to support and maintain the petitioner, then they should
bear the expenses for the maintenance of the child in equal shares.
Therefore it was directed that it will be in the interest of justice if the
father is ordered to pay maintenance of Rs. 400/- per month. 3
The father has given evidence that his per day income was only
Rs. 20/-. The learned Trial Judge, on scanning the evidence, came to the
conclusion that even if the father was a driver of a taxi, his income per
month would not be less than Rs. 1,000/- to Rs. 1,200/-. The conclusion
drawn by the learned Trial Judge was held to be correct. But, it was
pointed out that the Counsellor’s Report also shows that the father was
working as a driver in a private sector and he was earning approximately
Rs. 1350/- to Rs. 1400/- per month. That being the monthly income of
the father, a maintenance at the rate of Rs. 200/- p.m. in favour of a
minor child cannot be said to be excessive in any manner. 4
It is the bounden duty of the father to maintain his wife and
minor children. When it was fully proved that he had neglected and
refused to maintain them it was held that in these days, the amount of

1 Kailash Chandra Gupta vs. Chaman Lal Gupta, I (1985) DMC 116
Delhi.
2 Prema Bai vs. Kanchhedilal, I (2000) DMC 183 MP.
3 Kumari Salon vs. Surjit Kumar Ratti, I (1996) DMC 156 P&H.
4 Wahid Rajjak Sawar vs. Shahanaz Wahid Sawar, II (1994) DMC 4
Bombay.
290 Law of Maintenance

Rs. 250/- allowed to each child is not enough for their maintenance,
particularly when they are to get proper education. 1

Nominal amount
In one case the husband was working as Station Superintendent in
South Central Railway. Although his Pay Certificate was not filed, his
pay was stated to be Rs. 3,500/- per month. The wife claimed Rs. 700/-
per month for his maintenance, but only Rs. 500/- was the maximum that
can be allowed under Section 125 of Code of Criminal Procedure. It was
submitted that the husband had since retired and that he was paralysis-
stricken and was hospitalised and, therefore, he himself needed a lot of
money for his treatment etc. It was held that in any case the wife was
entitled for maintenance and even if nominal amount is to be awarded,
the wife was held to be entitled to a minimum of Rs. 300/- per month.
But since he was paralysis-stricken, he was permitted to pay the arrears
of maintenance in 12 equal monthly instalment, failing which the wife
will be entitled to enforce the maintenance order for full amount. 2

Number of dependents
In one case the salary of husband was Rs. 1675/- considering the
fact that he was required to maintain family of 6 persons, therefore, it
was held to be just and reasonable to pass an award of maintenance at the
rate of Rs,. 200/- per month. 3

One fifth of pay


There is no rational basis for this rule which prevents the wife
from claiming more than 1/5 th , even when her needs, and capacity of the
husband, warrant awarding large amount. This amounts almost to be rule
of the thumb. Such a provision in the Act of 1869, may have a been
based on then notions and concepts, as to a woman’s status and position
in the society and her claims against the husband. The provisions of the
Hindu Marriage Act enacted in 1955 are, on the other hand, based on the
recognition of the wife as equal partner of her husband in life. This is
just in keeping with the guarantee of equality to every citizen afforded
by the Constitution. It does not depend on whether the wife chooses to
devote her talents to household work or to sphere outside. This Act does
not permit denying her right to share the husband’s earnings, like his

1 Santosh Kumari vs. Satish Kumar, I (2000) DMC 660 P&H.


2 Anil Kumar vs. Turaka Kondala Roa, II (1999) DMC 683 AP.
3 Takhatben vs. Jashubhai Prabhatsingh Rathod, II (1984) DMC 437
Gujarat; Narendra Kumar Mehta vs. Suraj Mehta, I (1982) DMC
242 AP: AIR 1982 AP 100: (1982) 1 APLJ (HC)113L (1982) 1 Andh
WR 452L 1982 Hindu LR 387.
Quantum of maintenance—One fifth of pay 291

fortunes or misfortunes, on the footing of equality. This Act enables even


the husband to claim maintenance from the wife when former has no
source of subsistence and the latter has. Such a rule, apart from being
unreasonable and irrational, also cuts at the root of such equality. Such a
rule also militates against the reasonableness of approach conceived
under this section. 1
This rule of thumb, so far as 1/5 th of the amount of income is
concerned, has no reasonable basis except following the provisions of
Indian Divorce Act, 1869. Whenever Courts award even interim alimony,
social status of the parties, earnings of the husband who has to pay
maintenance, liability of the wife, require of particular treatment, etc. all
are to be considered while awarding interim alimony or even at the time
of passing the final order of maintenance. Section 24 of the Hindu
Marriage Act, 1955, speaks of fixing a reasonable amount, and that
reasonableness has to be considered from some of the factors mentioned
above and also other factors which may crop up in peculiar case.
Alongwith that, the Court also should ignore the legal obligations of the
husband to earn and maintain the wife. It should not be forgotten that
there may be obligations of the husband to maintain other members of
his family, and the Court cannot overlook them even through they may
not be legal obligations. Court has also see whether the wife is earning
so that the husband may not be saddled with the expenses, and ultimately
the Court will pass the order considering all the aforesaid relevant
factors. For considering those factors, there cannot be any specific
formula which will be available in all cases, but each case will depend
on its particular set of circumstances. Therefore, this rule of thumb of
1/5 th cannot be applied in all cases and should not be encouraged also. 2
In another case even though, the wife claimed that the husband
had been getting a monthly salary of Rs. 7,000/-, there was no evidence
adduced in support of the claim. Appellant-husband produced a
certificate from the Company in which he is employed showing that his
normal monthly salary, including D.A. and allowance would come to
Rs. 3,062/-. It was also stated therein that in addition to the above he
earns production incentive which will very every month, depending upon
the production. He did not disclose as to how much he will be receiving

1 Dinesh Gijubhai Mehta vs. Usha Dinesh Mehta, AIR 1979 Bombay
173 (DB): 1978 UCR (Bom) 650: 1979 Mah LJ 367: 1979 Mat LR
209.
2 Ravi Parkash vs. Shakuntala Devi, II (1984) DMC 64 Delhi;
Dhirajben Prabhudas Parmar vs. Rameshchandra Shambhulal
Yadav, II (1983) DMC 56 Gujarat: AIR 1986 Guj 215: 1983 Guj LJ
455: 1983 (2) 24 Guh LR 860: (1983) Hindu LR 471.
292 Law of Maintenance

as production incentive, even though, this was within his knowledge.


Under Section 36 of the Indian Divorce Act, alimony pendente lite
should not exceed 1/5 th of the husband’s average net income. Learned
Single Judge granted Rs. 770/- p.m. taking into consideration certain
amount which the husband would have received as production incentive
also. The view taken by the learned Single Judge was affirmed by
Division Bench. 1

One fourth of pay


In one case the husband was leading a fairly comfortable life. He
maintained a car and had a telephone. He paid Rs. 4,000/- towards the
rent alone which was disputed by the plaintiff. According to her he was
paying between Rs. 15,000/- and Rs. 20,000/- rent per month. The
defendant did not file lease deed despite opportunity was granted to him.
His share of rent of factory premises according to him was Rs. 2,000/-.
Two daughters of the second wife of the defendant/husband were
studying in private English medium Schools. The entire expenses were
also borne by the defendant/