Lawwatch

Husband's right to get Maintenance from his Wife

A deserving husband of a woman married under the Hindu Marriage Act,
1955 has every right to get maintenance. But no other law of similar
kind provides for a husband to get maintenance from his wife.

The term ‘maintenance’ includes a wide range of things for living such
as food, clothes, residence and the things necessary for the comfort and
status in which the person is expected to live.

Laws that provide maintenance to wife

Every law which provides for maintenance, except the Hindu Marriage Act,
speaks about maintenance to the deserving wife alone. The laws which
provide for maintenance to wife are:-

  1. The Criminal Procedure Code, 1973 (Chapter IX : Sections 125 to 128)

  2. The Divorce Act, 1869 (Section 36 & 37)

  3. The Special Marriage Act, 1954 (Sections 36 & 37)

  4. The Muslim Women Protection on Divorce Act, 1986 (Section 4)

  5. The Protection of women from Domestic Violence Act, 2005
    (Section 20)

  6. The Hindu Adoption and Maintenance Act, 1956 (Section 18)

The only marriage law which upholds mutual obligation of both partners
of a marriage - the husband and the wife - in the matter of providing
maintenance is the Hindu Marriage Act, 1955 (HMA). The Sections 24 and
25 of the law confer the deserving wife or husband the right to claim
maintenance from the other spouse. The claim definitely depends on the
means, income and the needs of the party, as the case may be.

Maintenance pendente lite & expenses of proceedings

The Section 24 of the HMA provides for maintenance pendent lite and
the expenses of the proceeding to the husband or the wife, as the case
may be. Under the provision a deserving husband, having no independent
income sufficient for his support and the necessary expenses of the
proceeding, can obtain maintenance and such expenses from his wife if
she has the ability to afford it.

The court can order the respondent such reasonable sum to be paid to the
husband after considering his own income and the income of the wife.
Such an application should be disposed of within sixty days. A petition
for this can be maintained only when a proceeding under the act is
pending. When the proceedings are terminated the claim will naturally
come to an end. A person having sufficient income and the capability to
earn income cannot maintain such an application for interim maintenance.

The grant of maintenance pendent lite is allowed either from the date of
original petition or from the date of service of summons on the other
party or on the date on which the decision is taken.

In fixing the amount the court has to consider the status of the
parties, their respective needs, capacity of the husband to pay having
regard to his reasonable expenses for his maintenance.

If the husband claims that he has no independent income for his support,
it is for the wife to prove the contrary if what he claims is not true.

Permanent alimony & maintenance

The court under Section 25 of the HMA allows permanent alimony and
maintenance, either to the husband or wife in needy cases, to pay such
gross sum or such monthly or periodical sum for a term not exceeding the
life of the applicant having regard to the respondent income and other
property. The court can however modify such order at the instance of
either party of there is a change in the circumstances. A claim under
Section 24 of the HMA does not bar a claim under Section 25 of the HMA,
as each one is an independent right.

Agreement cannot prevent granting maintenance

In a mutual consent divorce under 13B of the HMA if the party agrees not
to claim alimony/maintenance the court can grant maintenance. An
agreement between parties cannot prevent a court to exercise its
jurisdiction. The quantum of alimony and maintenance is decided on the
facts and circumstances of each case but the amount so fixed should not
be excessive or exorbitant in any case. The Section 25 is a substantive
provision.

Husband gets only when in earning inability

A husband can get maintenance only when he has dire need for it and he
proves his inability to earn. A person incapacitated voluntarily will
not get it. A capable person remaining idle cannot claim it.

If a husband is provided maintenance even in the absence of incapacity
for him to work, it will promote idleness as held in Nivya V M v
Shivaprasad M K [(2017 (2) KLT 803] by the High Court of Kerala,
unless husband is able to establish that he is permanently disabled from
getting any income he cannot seek maintenance from the wife.

Every Hindu husband is personally bound to maintain some persons like
parents, wife, children etc based on the relationship between them and
the obligations arising out of it. This obligation is independent of the
person possessing any property or income. The obligation of a husband to
maintain his wife is arising out of the status of marriage. It is a
liability created by the Hindu Law.

The Bombay High Court in Smt Kanchan v Kamalendra ( AIR 1992 Bom
493) held that in the absence of any handicap or impediment to earn,
granting such able bodied person equipped with skill would promote
idleness.

In Rani Sethi v Sunil Sethi [179 (2011) DLT 414] the Delhi High
court on 31 March 2011 held, “The purpose of section 24 of Hindu
Marriage Act is to provide support to a spouse who has no independent
source of income and is incapable of maintaining himself/herself. It is
trite law that the term “support‟ is not to be construed in a narrow
manner so as to mean bare subsistence. It means that the other spouse,
who has no independent source of income, is provided with such
maintenance so as to live in a similar status as was enjoyed by them in
their matrimonial home. It is the purpose of section 24 that the wife or
the husband who has no sufficient source of income for her or his
support or for the expenses of the proceedings must be provided with
such reasonable sum that strikes equity between the spouses”.

In Yashpal Singh Thakur v Smt Anjana Rajput ( AIR 2001 MP 67) it was
decided that a person who voluntarily incapacitates himself from earning
is not entitled to claim maintenance from the other spouse. A
respondent, who is not making any money though he is capable of getting
private job, cannot claim maintenance from his wife.

Conclusion

In short, it is not a normal practice for a husband applying for
maintenance from an employed wife, though he is capable of maintaining
himself. The provision of law in the HMA is intended to support only
such a husband who is really incapable of maintaining himself. Such a
deserving husband alone is eligible to get maintenance for his
sustenance from his wife. Therefore a needy Hindu husband of no means to
live can claim maintenance for livelihood from his affluent wife.

No such provision which enables a husband to claim maintenance is there
in any personal law meant for the Christians or Muslims. Keeping the
Muslim and Christian husbands outside the purview of maintenance, which
is available to Hindu man, due to lack of an enabling provision is
discrimination. It is a grave lacunae in law. It needs to be rectified
in order to ensure social justice and equality before law.

Therefore the Section 125 of the CrPC should be amended so that husbands
of other religions also can claim maintenance from wives with solid
source of income.