Concept of maintenance under Hindu Law
Q. 9 Explain the provisions for the grant of maintenance pendente lite and expenses of the proceeding and permanent alimony and maintenance under the Hindu Marriage Act, 1955.
Or
Discuss the provisions of the Hindu
Marriage Act, 1955 relating to permanent alimony and maintenance under the
Hindu Marriage Act.
Or
What are the provisions contained in the
Hindu Marriage Act dealing with permanent alimony and maintenance? Discuss.
Ans. Maintenance during the pendency of litigation.-Maintenance during the pendency of the litigation is known as "maintenance pendente, lite” or interim maintenance. Section 24 of the Act provides for maintenance pendente lite and also for the expenses of the proceedings This section makes following point's:
(1) Either spouse is entitled to or the interim maintenance and the expenses of the proceedings. Even a husband can apply for interim maintenance and expenses of the proceedings.
(2) Interim maintenance and expenses of the proceedings can be ordered in any proceeding, that is, it is available in petitions for restitution of conjugal rights, judicial separation, nullity of marriage, annulment of voidable marriage and divorce.
(3) Application is necessary for the interim maintenance and expenses of the proceeding. The application may be made by the husband or the wife, by the petitioner or the respondent. If the husband files a petition for restitution of conjugal rights, the application for interim maintenance and expenses of the proceedings can be made either by the wife (respondent) or by the husband. If the Court comes to the view that the applicant has no independent income sufficient for his or her support and the necessary expenses of the proceedings, it may order the other party to pay the applicant.
The Delhi Court held in Chitra Lekha v. Ranjit Rai, [AIR 1977 Delhi 176], that the object behind Section 24 is 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 defend and to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds.
The court has the discretion to grant maintenance pendente lite and expenses of proceedings under Section 24 of the Act, but the discretion should be judicious one. However no hard and fast rule can be laid down for the exercise of the discretion, and it depends on the facts and circumstances of the case.
In Pradeep v. Shaileja [AIR 1989 Del. 10], it has been held that an application under Section 24 of the Act will be considered on the basis of the following grounds, namely
a) the status of the parties to marriage.
b) legitimate needs to the claimant etc., food, cloth, medicine, shelter and education, etc.;
c) the self income of the claimant,
d) income of the respondent;
e) the number of persons required to be maintained.
While considering the application for maintenance pendente lite, the only consideration before the court is inability of the spouse to maintain herself or himself for want of financial means and not the misconduct of applicant spouse.
The interim maintenance must be paid monthly till the pendency of the litigation, but the necessary expenses of the proceeding must be ordered to be paid in lump sum. Where on an application to a party the court orders the opposite party to pay an ascertained amount to the applicant and the opposite party refuses to make payment of the said amount, the court may stay the further proceeding, if he or she happens to be the petitioner, or may strike out the defence if he or she happens to be the respondent. Once an order is passed under Section 24, the liability to pay maintenance and expenses of the proceeding in respect of the period during which the proceedings were pending cannot be avoided. In Muniratnam Naidu v. Shatamma, AIR 1971 Mysore 25 it has been held that the subsequent dismissal of the petition does not exonerate the liability already incurred.
Permanent alimony and
maintenance
Section 25 of the Act does not use the phrase "permanent alimony and maintenance", but it has been mentioned only in the marginal note of the section. “Almony " and "maintenance", except with their etymological difference, mean the same thing. Both words are now used interchangeably.
Permanent alimony can be granted only when a decree for divorce has been granted and not when the petition of divorce is dismissed.
The application for maintenance is to be made by the wife or husband. Granting of maintenance to a husband is entirely a new concept accepted in the Indian Jurisprudence by Section 25 of the Hindu Marriage Act. However in case of divorce, the wife deserves more sympathy. In our society remarriage of divorced wife is more difficult than that of divorced husband
When the marriage is proved to be illegal the wife has no right to maintenance under Section 25 of the Act even as under Section 125 CrPC. But a woman whose marriage is void because of the existence of another wife was held entitled to maintenance under Section 25 of the Act.
In Rajeshbai v. Shanta Bai (AIR 1982 Bom. 231], it was held that the second 'wife' whose claim as wife failed because her husband's marriage with her was bigamous can also apply under Section 25 of the Act. In Manjit Singh Savita Kiran [AIR 1983 P&H 2811, it was held that a wife who by agreement with the husband has given up her right to maintenance in order to have the custody of her child cannot claim maintenance under 25 of the Act as that agreement stands in her way
Section 25 seems to provide for maintenance only to the husband and wife but provision for maintenance may be made also for the children of the marriage.
In Atam Prakash v Java Devi (1976 HLR 837 (P&H)), a wife living in adultery was held entitled to alimony, unchastity being no ground to refuse maintenance under Section 24 or under Section 25 of the Act. However, the conduct is relevant while considering the quantum of maintenance. An unchaste wife at the time of dissolution of marriage is entitled to surviving allowance which disappears if she is earning or is not in a helpless position.
If there is a change in the circumstances of either party after the order is made under Sub-section (1). the order can be varied, modified or rescinded by the court (Section 25(2)) under the following circumstances:
i) if such party is the wife, she has not remarried chaste: or
ii) if such party is the husband, he had sexual intercourse with any woman outside wedlock.
iii) when the party in whose favour an order is made, has remarried,
Q. 9b. Discuss the
conditions in which a Hindu wife living separately from her husband can claim
maintenance from him under Hindu Adoption and Maintenance Act 1956.
Or
Enumerate the
circumstances in which a wife may live separately and claim maintenance from
her husband.
Or
What are the grounds on
which a wife living separately from her husband can claim maintenance from him?
Discuss.
Ans. Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 provides that a Hindu wife shall be entitled to be maintained by her husband during his lifetime.
Sub-section (2) of Section 18 of the Act lays down that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance in the special circumstances on the grounds of:
(a) desertion;
Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term The essential ingredients of desertion in order that it may furnish ground for relief are:
(1) The factum of separation,
(2) the intention to bring cohabitation permanently to end-animus deserendi,
(3)
the element of permanence which is a prime condition requires that both these
essential ingredients should continue during the entire statutory period. [Adhyatma Bhattar Alwar v. Adhayatma Bhattar
Sridevi, AIR 2002 SC 88)]
Desertion may be classified in two
categories
1) Actual desertion:- To prove actual desertion it is necessary to prove:
(i) factum of separation;
(ii) intention to desert;
(iii) desertion without reasonable cause;
(iv) it is without consent of other party; and
(v) it is for a continuous period of two years.
For the success of petition on the ground of desertion it is incumbent on the part of the petitioner to prove all five elements.
2) Constructive desertion (Wilful neglect):- If by words or conduct a spouse makes it impossible for the other spouse to live in his or her company and as a result the other spouse leaves the matrimonial home, the other spouse cannot be said to be the deserter. On the other hand, the spouse who makes impossible for other spouse to continue matrimonial relations would be the deserter. Thus desertion has to be inferred from the state of things. This principle is known as constructive desertion.
(b) cruelty;
Cruelty is such conduct as to cause danger to life, limb or health or as to give rise reasonable apprehension of such danger. Past conduct is undoubtedly relevant as it forms the very basis of the reason for the apprehension of the injury or hurt in the future.
In Russel v. Russel. [1897 AC 395], Lopes, LJ. defined cruelty as conduct of such a character as to have caused danger to life, limb, or health, bodily or mental or a reasonable apprehension of it.
In Dastane v. Dastane, [AIR 1970 Bom. 312] the following five tests were laid down in determining whether a given conduct amounts to legal cruelty:
i) the alleged acts constituting cruelty should be proved according to the law of evidence:
ii) there should be an apprehension in the petitioner's mind of real injury or harm from such conduct,
i) the apprehension should be reasonable having regard to the socio economic and psycho-physical condition of the parties;
iv) the petitioner should not have taken advantage of his position;
v) the petitioner should not by his or her conduct have condoned the acts of cruelty.
Cruelty can be classified under two heads: (1) physical cruelty;
and (ii) mental cruelty
Physical cruelty:- Acts of physical violence against another spouse resulting in injury to body, limb, or health or causing reasonable apprehension thereto constitute legal cruelty. What degree of physical violence will amount to cruelty will differ from case to case depending on the susceptibility or sensibility of the parties.
Mental cruelty:- Though physical violence is absent any conduct of the respondent which would render harmful or injurious for the petitioner to live with the respondent or is of such a nature so as to create a reasonable apprehension to that effect would amount to mental cruelty. Mental cruelty can be defined as that conduct which inflicts such mental pain and suffering as would make it not possible for the party to live with the other. It must be of such a nature that the parties cannot reasonably be expected to live together. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner.
In G V N Kameshwar Rao v. G Jabille AIR 2002 SC 576 the Supreme Court observed that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. The Court laid down that cruelty can be said to be an act committed with the intention to cause suffering to the opposite party. Austerity temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct. The court further opined that having regard to the sanctity and importance of marriages community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live to gather is impossible, then only the court can find that there is cruelty on the part of counter petitioner.
The Punjab High Court held in P.L. Sayal v. Sarla Rani, AIR 1961 Punjab 125 that willful intention to injure is not an essential element of cruelty.
In this case :
The Marriage was not rosy. The wife was crazy to get the love and affection of her husband. She consulted a fakir who gave her some love potion to administer to the husband, and she did it. Due to the administering of the love potion, the husband became seriously ill and was admitted to the hospital where he remained for some time. The husband presented a petition for judicial separation on grounds of the wife's cruelty. (At that time cruelty was not recognized as a ground for divorce.)
The Court came to the conclusion that the husband was afraid of living with his wife lest such a thing happens again. It was held that the conduct of the wife amounted to cruelty.
The Supreme Court also in Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 said that intention is not a necessary element in cruelty. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of the intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty.
(c) suffering from a
virulent form of leprosy;
(d) having another wife
living;
The words any other wife living in this clause have sufficiently wide connotation to include any wife other than the wife claiming maintenance under the section. The meaning is not confined to a wife junior to the wife who is the claimant, nor is it necessary that the husband and the other wife should be living together. The word living here means alive' and not living with the husband'.
(e) keeping concubine:
To claim separate residence and maintenance under clause (e) of Section 18(2) of the Act, it is necessary for a wife to prove the following:
i) that her husband keeps a concubine; and
ii) that the concubine lives in the same house in which the married wife lives; or
iii) that the husband habitually resides with the concubine elsewhere
A concubine is a woman in the permanent and exclusive keeping of a man though not married to him. It should be noted that keeping of a concubine should denote some permanence and not a casual act of prostitution. It is not necessary that the husband should have actually shifted his residence to the place where the concubine lives; the emphasis is on 'habitual' and not so much of residence. It would be enough if it is shown that there is a consistent course of conduct, spread over a time indicating that the husband has kept a mistress exclusively to himself and visits her regularly.
(f) ceased to be a
Hindu;
(g) other justifying cause.
Clause (g) of Section 18(2) of the Act lays down that a wife can claim maintenance while living separately on any other justifying cause. What is justifying cause depends on the facts and circumstances of the case and the Court will have to come to the conclusion whether the wife is justified in living separately. This is a residual clause and empowers the Court to give a Hindu wife such relief which she may be entitled to in those cases which do not specifically fall under any of the above clauses viz. (a) to (f). Under this clause, separate residence and maintenance cannot be allowed to be taken merely on the ground of domestic bickerings or incompatibility of temperament or minor differences.
In Meera v Sukamar [AIR 1994 Mad. 168]. it was held that where a husband sold the family house and saw successfully that the purchaser evicted the wife from the house, the conduct of the husband would amount to a cause justifying her to live separately and claim maintenance
Q. 9(c) How can a wife
who has been abandoned by her husband compel him to maintain her? How does the
criminal court enforce its maintenance?
(d) When is a wife not
entitled to maintenance for her husband?
(e) How does CrPC
provide for the maintenance of Children and aged Parents?
Ans. 9(c), Chapter IX of the Code of Criminal Procedure containing Sections 125 to 128 deal with order of Maintenance of Wives. Children and parents. 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. Its provisions apply to all and are enforceable, whatever may be personal law by which the persons concerned are governed. The object of these proceeding is to prevent vagrancy in the society, by compelling those persons who could maintain those who are unable to maintain themselves.
Magistrate upon proof of such neglect or refusal, order such person to make any amount of monthly maintenance allowance for each of the above stated persons.
As per the second proviso to section 125 CrPC a Magistrate may proceed during the pendency of the proceedings regarding monthly allowance for maintenance order for the in-terim maintenance of wife, child, father or mother. Provided that the application for interim maintenance will be disposed of within 60 days from the date of service of notice to the other party
In 1999 Criminal Law Journal 2919, it was held that though proceedings u/s125 are wholly governed by the Criminal Procedure Code and application for maintenance is entertained and disposed of by a Magistrate, proceedings are in reality of Civil nature
So very basis of proceedings under Section 125 of the code are twofold:-
Firstly the person from whom Maintenance is claimed must have sufficient means and he neglects or refuses to maintain.
Secondly person who claims maintenance must be unable to maintain himself or herself
In Narain Sahu v. Sushama 1992 Criminal Law Journal 2912 it was held that no order for maintenance can be passed under Section 125 unless neglect or refusal to maintain is proved. Neglect or refusal to maintain can even be inferred from conduct
Sub-section (3) of Section 125 of the Code then provides that if any person against whom an order has been made, has failed to comply with the order, Magistrate may issue a warrant for levying the amount of maintenance in the same manner as provided for levying fines and may sentence the person in default to imprisonment for a term of one month for every breach of the order
Ans. 9(d) When a wife is not entitled to maintenance from her husband. No wife shall be entitled to receive an allowance as maintenance from her husband under Section 125. Cr PC, if
i) she is living in adultery,
ii) or if without any sufficient reason, she refuses to live with her husband, or
iii) if they are living separately by mutual consent.
She is disentitled to maintenance when she is living in adultery Phrase living in adultery' is of special importance. It means that the wife is living in continuous adulterous conduct as different from a single act of adultery
Passing of a decree of judicial separation against the wife disentitles her to claim maintenance because she has no reasonable ground for not living with her husband.
The Magistrate shall cancel the order of maintenance on proof that the wife in whose favour an order has been made under Section 125 Criminal Procedure Code, is living in adultery or without sufficient reason she refuses to live with her husband or that they are living separated by mutual consent
Ans. 9(e). 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. Its provisions apply to all and are enforceable, whatever may be personal law by which the persons concerned are governed. The object of these proceeding is to prevent vagrancy in the society, by compelling those persons who could maintain those who are unable to maintain themselves. Section 125 of the Code provides that any person having sufficient means if neglects or refuses to maintain
(a) His wife unable to maintain herself.
(b) His legitimate or illegitimate minor child whether married or not, unable to maintain itself.
(c) His legitimate or illegitimate Major child (Not being married daughter) who by reason of any physical or mental abnormality or injury unable to maintain itself.
(d) His father or mother unable to maintain himself or herself
Magistrate upon proof of such neglect or refusal, order such person to make any amount of monthly maintenance allowance for each of the above stated persons
In Priyal v. Dr. Pradeep Kumar Kamboj, 2000(2) Recent Criminal Reports 217 Minor child was claiming maintenance under Section 125 of the code from a father living in the U.S.A. The Punjab and Haryana High Court directed that Magistrate to issue a warrant for recovery of an amount of maintenance to the concerned court in the U.S.A. through the Ambassador of India in the U.S.A. and if the father fails to send any amount of maintenance then, Magistrate will proceed according to the law in this regard
Section 125 of the Criminal Procedure Code, 1973 and Section 18 of the Hindu Maintenance Act, 1956 deal with the maintenance.
Differences between Section 24 of the Hindu Marriage Act and Section 125 of CrPC, 1973 are:
1. While Section 24 of Hindu Marriage Act is applicable where the wife or husband is unable to maintain himself or herself, and more particularly. when there is a case pending before any appropriate court, Section 125 of CrPC grants the maintenance to the aggrieved parties while the case is pending or at the time of disposing the case.
2. Section 24 of the Hindu Marriage Act is civil in nature whereas the proceedings under Section 125 of CrPC are under the criminal proceedings, and the defaulter can also be sent to imprisonment though it is also in fact of civil nature.
3. Generally either of the spouses is entitled to get maintenance pendente lite under Section 24 of the Hindu Marriage Act, while parents, wife and children are entitled to sue a person for their maintenance under Section 125 of CrPC.
4. There is no maximum limit for maintenance pendente lite under Section 24 of Hindu Marriage Act, but, the maximum limit has been fixed by Section 125 CrPC to Rs 500/-(now it was removed by 2001 amendment Act)
5. For the expenses towards legal proceedings also the amount is sanctioned under Section 24 of the Hindu Marriage Act, whereas for the expenses of bare necessity only the maintenance allowance is granted under Section 125 CrPC.
6. Section 24 of the Hindu Marriage Act applies to Hindus only while Section 125 of the while CrPC applies to all religions.
Distinction between
Section 24 of Hindu Marriage Act, 1955 which deal with maintenance pendentelite
and Section 18 of Hindu Adoptions and Maintenance Act, 1956 which deal with maintenance
of wife
1. Section 24 of Hindu Marriage Act provides the relief to any of the spouse, who is financially weak whereas Section 18 of Hindu Adoptions and Maintenance Act provides the relief only to Hindu wife.
2. Under Section 24 of Hindu Marriage Act, the maintenance is granted during the pending of litigation, but the maintenance is granted during her life time under Section 18 of Hindu Adoptions and Maintenance Act, 1956.
3. Under Section 24 of Hindu Marriage Act, the wife or husband has two rights i.e., (i) to claim maintenance, and (ii) to claim expenses of proceedings whereas under Section 18 of Hindu Adoptions and Maintenance Act, 1956, the wife has two rights Le, (1) to claim maintenance; and (ii) to live separately from her husband.
4. Whereas there are no grounds required to fulfil under Section 24 of Hindu Marriage Act and the only condition that there must be some litigation pending, there are certain grounds enunciated in Section 18 equal to the grounds for divorce under Section 13 of Hindu Marriage Act. 1955 for the eligibility to grant the maintenance.
5. Section 24 of the Hindu Marriage Act confers a special right on the indigent spouse while Section 18 of the Hindu Adoption and Maintenance Act confers an absolute right.
Differences between
Maintenance pendente lite under Section 24 and the permanent alimony under
Section 25
1. The question of maintenance pendente lite arises when the matrimonial proceedings are pending for decision in the court while the question of permanent alimony arises in matrimonial cases which stand decided.
2. The maintenance pendente lite can be claimed by the party without caring for winning or losing the substantive position but claim for permanent alimony is generally made in favour of the person against whom the decree has been passed in the substantive petition.
3. Amount of permanent alimony may be secured by a charge on the immovable property of the respondent whereas it is so in case of maintenance pendente lite.
4. Maintenance pendente lite is granted for the period during which the litigation petition of matrimonial relief is pending in the court while the permanent alimony may be for a term not exceeding the life of the applicant.
5. The order for maintenance pendente lite is made by the court when the applicant has no independent income of his/her own sufficient for his or her support and the necessary expenses of the proceedings while the permanent alimony is granted taking into consideration the income and the property of the applicant if any and the income and the property of the respondent if any.
Section 18 of the Hindu Adoptions and Maintenance Act provides
"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 life time.
(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 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 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.
Under Section 18 of the Act, the wife's right of maintenance may arise in the following two situations: (i) when the wife lives with her husband; and
(ii) when the wife lives separately from her husband
Maintenance
1. When the wife lives
with her husband
A Hindu is under a legal obligation to maintain his wife. The obligation to maintain a wife is personal in character and arises from the very existence of the relations between the parties. There is an absolute right vested in a married Hindu woman to be maintained by her husband, and this maintenance is dependent on her living with him and discharging her duties as such married woman. A married woman who does not perform her part of the marriage tie, physical, moral, social or legal will not be entitled to any maintenance. A distinction may be drawn between the phrase, "entitled to be maintained" and "entitled to maintenance". A Hindu wife shall be 'entitled to be maintained' by her husband means that a married woman is entitled to be fed, clothed, lodged and medically treated or attended to at the expense of her husband. A Hindu wife is entitled to maintenance means the husband is liable to pay periodically so that the woman may be able to have the amenities to which she is entitled to be fed, clothed, lodged and medically treated.
Section 18 of the Act deals with the maintenance of a wife. It is therefore clear that the person claiming maintenance must have the status of a wife. In other words she must be legally married to the person against whom the claim is made) However, in Obula Chinna Konda Reddy v. Peda Venkata Lakshmamma, [AIR 1976 A.P. 43], it was held that the expression 'Hindu wife' in Section 18 would include a wife whose marriage is solemnized though the marriage is void."
In Gonda Reddy v PY. Lakshmamma, [1975 (2) APLJ 87], it was observed that where a person who has his wife living married again after the commencement of the Hindu Marriage Act, though such marriage is void, the second wife can claim maintenance against him.
In Rajeshbai v. Santhabai, (AIR 1982 Bom. 231), the Court had to consider the claim of maintenance of a woman from the estate of her husband even on its finding that the marriage was void.
However in Jamunabai v. Anant Rao, [1988 Cr.LJ. 793), a man married a second time when his wife was living, the second wife had no knowledge of the first marriage. In an application for maintenance, it was held that she was not entitled to maintenance, as she was not a legally wedded wife as her marriage was void. It was further held that the husband was not estopped as there can be no estoppel against a statute. In Patel (V.M.) v Patel (M.D.), [AIR 1995 Guj. 88], it was held that the expression 'wife' includes a wife who has been divorced where the decree for divorce did not become final.
2) Maintenance when the
wife does not live with her husband [Separate maintenance] [When can the wife
live separately without forfeiting her right to maintenance from her husband]
The first duty of a wife towards her husband is to submit herself obediently to his authority and to remain under his roof and protection As a rule a wife is not entitled to separate residence from her husband. Slowly separate residence is allowed when she proved that by reason of his misconduct or refusal to maintain her in his own place of residence or other justifying cause. The Courts allowed separate residence under the above circumstances through their decisions Lange the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 gave statutory recognition to the right and at the same time law in certain resets in her favour. This Act has been replaced by the Hindu Adoptions and Maintenance Act 1956 and the provisions of Act of 1946 have been incorporated in Section 18(2) of the Hindu Adoption and Maintenance Act, 1956
In Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168, it was observed that the claim for maintenance, by a wife, can also be sustained under clause (g) even on a ground covered by one or other clauses ie, clause (a) to (1) of section 18 (2), substantially but not fully. Merely because the wife fails to strictly prove the specific grounds urged by her, she cannot be denied relief.
In the above-mentioned case, the wife had been living alone and all the children had been brought up by her without any assistance and help from the husband and there was a clear case of desertion the wife was entitled to separate residence and maintenance.
"The location of a wife's work is also an important consideration to be borne in mind in selecting the matrimonial home, although in some cases the husband's business or the vocation and livelihood may be the predominant consideration. But neither party has a casting vote. The mere fact that the wife is living separately and the separate residence is necessitated by reason of the working condition of the wife and the post to which she is entitled would not amount to the wife withdrawing from the society without reasonable excuse. Even if a case was to be based on the ground of desertion and if such a case was to be considered, it must be shown that there is a physical separation coupled with animus deserendi which means the intention to bring cohabitation permanently to an end. It may be that the husband does not want the wife to serve, but that is not a reasonable way of living a matrimonial life in modern times. In the present society, and in the modern conditions, a wife cannot be expected to implicitly obey the husband even though the husband's mandate is not reasonable. In such circumstances, there is no case for a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Therefore, the court has to consider in each case the animus of the wife and the surrounding circumstances for the wife to take up service at a place different from the place of business or vocation of her husband. There is no warrant in Hindu Law to regard the wife as having no say in choosing the place of the matrimonial home. None of spouse has a casting vote. Therefore, the mere refusal of a wife to resign from her job does not amount to withdrawal from the society of her husband without reasonable cause.
(1) Desertion by the husband.-Desertion has been dealt in detail in the chapter of marriage. According to several judicial decisions, there can be desertion by the husband even though the wife and the husband are living in the same house, and there can be desertion if the husband has no reasonable cause for leaving the wife.
In a case of desertion, the wife has to prove the following facts: (1) That the husband has abandoned her;
(ii) That he has done so:
(a) without any reasonable cause,
(b) without her consent, or
(c) against her wish;
(iii) That he is guilty of wilfully neglecting her. Generally speaking, desertion begins when the factum of separation of husband and wife is completed with the intention to bring the marital relationship permanently to an end; Pankajinidas v. Hrushikesh, AIR 1956 Ori 184.
What constitutes desertion - In Purushottam Kewalia v. Devki, AIR 1973 Raj 3, it was laid down that the offence of desertion commences when the fact of separation and the animus deserendi co-exist but it is not necessary that they should commence at the same time.
In Elokeshi Chakraborty v. Sunil Kumar Chakraborty, AIR 1991 Cal 176, the Court held that the essential elements as regards deserting spouse are factum of separation and intention to bring cohabitation permanently to an end and they must be proved. As regards the deserted spouse, absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home shall have to be proved.
Desertion includes 'wilful neglect' of one spouse by the other. In the normal sense, 'wilful' means 'intentional'. Neglect here means negligence in the discharge of marital obligations of cohabitation and consortium. Mere negligence on the part of the husband will not be sufficient under this section. It is wilful or deliberate negligence that is to be proved if the wife wants to claim the right under this sub section
(2)Cruelty by husband -Cruelty may be said to be a conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger
This second ground of cruelty not only includes physical cruelty such as battery and beating but also mental cruelty such as by words of insult and humiliation. It is well known that the tongue pierces more deeply than the sword, and many have been cases of suicide by the wife who, unable to bear the cruel words spoken by the husband, has preferred a watery grave or the swinging obligation of a rope or the lapping flames of fire.
In a suit for maintenance on the ground of cruelty, the wife has to prove the following facts:
(1) that the husband has treated her with cruelty
(ii) that the cruelty was such as to cause a reasonable apprehension in her mind that it will be
harmful or injurious to live with the husband.
(3) Husband suffering from virulent form of leprosy.-A Hindu wife is entitled to separate residence and maintenance on the ground that her husband is suffering from a virulent form of
leprosy This clause deals with the virulent form of leprosy. The emphasis has been given on the words "virulent form". It would be much better if leprosy alone would have been made a ground for the wife to live separately from her husband without specifying the words "virulent form of leprosy Whether leprosy is malignant, virulent or merely in its initial stage, there is always danger for the wife being infected with it.
Any disease other than leprosy does not fall under this ground and even mere affliction of leprosy will not do. Leprosy to be ground for separate maintenance must be of a virulent type in the sense of a repulsive character, making the man afflicted unfit for social intercourse. To compel a wife to be
in his company is abhorrent to anybody and hence this provision is made.
(4) Husband having another wife living.-Section 18, sub-section (1) of this Act clearly lays down that the provisions for maintenance of wife would apply in cases whether the marriage was solemnised before or after the commencement of the Act of 1956. Clause (d) of Section 18 (2) entitles the wife to claim separate maintenance and residence where her husband has another wife living. This right would not accrue to the wife if the marriage was a void marriage since under the provisions of the Act, the right to separate maintenance would accrue only if the second marriage was a good marriage. In a case, B was the first and C was the second wife of one A B claimed separate maintenance from A. Held that B is entitled to separate maintenance only if the second marriage between A and C was a valid one; Saraswathamma v. Bluadramma, AIR 1970 Mys 157.
The intention of the Act is to cure an existing evil and to afford a married woman a remedy for separate residence and maintenance against a twice-married man, whether such marriage took place before or after the Act; provided it continued on the date of the suit.
(5) Husband keeping a concubine. To claim separate residence and maintenance on this ground,
it is necessary for a wife to prove the following
(i) that her husband keeps a concubine; and
(ii) that the concubine lives in the same house in which the married wife lives; or that the husband habitually resides with the concubine elsewhere.
It should be noted that the keeping of a concubine should denote some permanent and not a casual ac of prostitution. A concubine is a woman in the permanent and exclusive keeping of a man though not married to him
In Kesanabai v. Haribhan, AIR 1975 Bom 115, the Bombay High Court has held that where the husband keeps a mistress in the same bouse in which his wife is living or where it is shown that resides habitually with such concubine, the wife is enabled to have the rebel The appeal filed by the wife was allowed in this case. The whole phrase "habitually resides with a concubine elsewhere" is indicative of the customary behaviour of a married man, though he might not have changed his ordinary place of residence
(6) Where husband ceased to be Hindu by conversion-A wife is entitled to maintenance and separate residence where her husband abandons Hinduism. But it should be remembered that the mere fact that a man ceases to be Hindu by religion would not itself break the Hindu marriage In these circumstances, the wife may, under Section 13 of the Hindu Marriage Act, 1955 clan dissolution of marriage by a decree of divorce or treat the marriage as subsisting and claim separate residence and maintenance: Boramma v Dharmappa AIR 1969 Mys 12
Under Section 24 of the Hindu Adoptions and Maintenance Act 1956, no person shall be entitled to claim maintenance if he or she has ceased to be a Hindu by conversion to another religion. Thus the rights of the wife to claim maintenance and separate residence from her husband under this clause would continue only so long as she remains Hindu
(7) Other justifying cause-This is a residual clause and empowers the court to give a Hindu wife such relief that she may be entitled to in those cases which do not specifically fall under any of the above clauses. The language of this residual section is undoubtedly very wide and is designedly intended to take various circumstances in relation to the particular case before the court which may be joint from the point of the wife to live separately from the husband. At the same time, it is intended that the advantage not be taken generally of the language to claim a right of separate residence and maintenance merely on the ground of domestic bickerings or incompatibility of temperament or minor differences are not unusual in the married lives of parties, if nothing more serious is alleged Mancharramma v Satyanayam, AIR 1950 Mad 359 Darka Bai v. Maman Matheus AIR 1963 Mad.
References:-
Family law---Paras Diwan
Family law—S.R. Myneni
https://www.iilsindia.com/study-material/880413_1617519779.docx
https://legislative.gov.in/sites/default/files/A2007-06.pdf
https://www.slideshare.net/RashmiDubey21/hindu-marriage-act1955
https://www.indianemployees.com/acts-rules/details/hindu-marriage-act-1955
http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-MarriageAct,-1955.html.
http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-MarriageAct,-1955. html
https://www.iilsindia.com/study-material/880413_1617519779.docx
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