Recently the Mumbai family court rejected the claim of a wife for Maintenance from her husband under section 24 of the Hindu Marriage Act (HMA). As per section 24 of the Hindu Marriage Act:

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. Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

The aim of section 24 of the HMA is 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 passes the order. The proceeding being rather summary in nature, the object of the order being ad hoc and the duration of the order being temporary, the approach of the Court to such an order should be ut res magis valeat qnam pereat, to sustain it wherever possible and not to interfere unless intervention is irresistible in law.

Therefore, the aim is to provide the spouse necessary source of income if the spouse does not have an independent income due to which he/she is unable to maintain themselves. This is a beneficial provision so that the proceedings are not jeopardized for want of funds by either spouse. Social Justice is the driving force for this provision.

Is this Provision Gender Neutral?

On the face of it, the provision seems to be gender neutral as either spouse can file for maintenance pending a litigation. As per the Hon’able Bombay High Court in Smt. Kanchan v. Kamalendra, it was help that ‘husband will have to satisfy the Court either due to physical or mental disability, he is handicapped to earn and support his livelihood.’ Therefore, the husband can only claim maintenance if he is able to satisfy his physical / mental disability and not otherwise. No such rider is there for wife for claiming maintenance.

Factors Considered while paying Maintenance:

As per the Hon’able Delhi High Court in Jayant Bhargava v. Priya Bhargava, the Court can take into consideration amongst others, the following factors while guessing income of the spouses:

1. Life style of the spouse;
2. The amount spent at the time of marriage and the manner in which marriage was performed;
3. Destination of honeymoon;
4. Ownership of motor vehicles;
5. Household facilities;
6. Facility of driver, cook and other help;
7. Credit cards;
8. Bank account details;
9. Club Membership;
10. Amount of Insurance Premium paid;
11. Property or properties purchased;
12. Rental income;
13. Amount of rent paid;
14. Amount spent on travel/ holiday;
15. Locality of residence;
16. Number of mobile phones;
17. Qualification of spouse;
18. School(s) where the child or children are studying when parties were residing together;
19. Amount spent on fees and other expenses incurred;
20. Amount spend on extra-curricular activities of children when parties were residing together;
21. Capacity to repay loan

The object of Section 24 of the HMA is not to bring about financial equality between the spouses. Its object is not to slash some amount from the earnings of the husband and hand it over to the wife so that financial disparities between the two are removed. Its object is only to provide means to the spouse who has no independent source of income to contest the matrimonial proceedings.

It is a well-established maxim of Anglo Saxon jurisprudence that no person can be allowed to incapacitate himself. A person who voluntarily incapacitates himself from earning is not entitled to claim maintenance from the other spouse.

The Hon’able Madhya Pradesh High Court in Smt. Mamta Jaiswal vs Rajesh Jaiswal, stated that ‘Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversory by implementing the provisions of law suitable to their purpose. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ‘dole’ to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her…. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself… In fact, well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress’

For example in Sweden maintenance is given when a spouse has difficulty in supporting himself or herself for a transitional period following the divorce. Such transitional maintenance provides the needy spouse with opportunities to seek gainful employment or retraining. Section 7 of Chapter 6 (Maintenance) of the Swedish Marriage Code (Aktenskapsbalken) is: “Following a divorce, each spouse shall be responsible for his or her own support. If a contribution towards the maintenance of either spouse is needed for a transitional period, that spouse shall be entitled to receive maintenance payments from the other spouse on the basis of what is reasonable in view of the latter’s ability and other circumstances.”.  Further, Sweden has a concept of personal Property and marital property. Property jointly acquired by the spouses is treated as marital property. An exception is there, if only one spouse acquires property, then his/her personal property may be treated as marital property.

For example in Germany: A spouse must provide for their own maintenance after divorce (Sections 1569, 1577 BGB). Maintenance may only be granted for an intermittent period till the other spouse retrains so as to be employable. Further, the networth of the spouses at the time of marriage and after the marriage is calculated. The difference is treated as marital property and property of both spouses is equally divided. An exception is there that if a spouse does not contribute in promoting the economic gain in marital property, he/she is not eligible for anything. Further, adultery and cruelty is given weightage.

In essence, both the developed nations treat the property of husband and wife separately and only joint contributed property as marital property. This comes from the tenet that all able bodied persons should be liable for their own upkeep.

We are seeing that over the years able bodied and educated women elect to stay out of the labour force. Their labour force participation rate has also fallen drastically in the past 10 years. Time has now come to do away with the one sided maintenance laws and move towards equality if the country wants to prosper.

Let us all Stand Up for a Cause…