MAINTENANCE OF A HINDU WIFE
The concept of maintenance owes its allegiance to the Great Sages where it was
inconceivable if any person more especially a woman would go unprovided for.
Maintenance was regarded as a duty, a duty of a Hindu, which he owed to his relations
and by which both, the person and property, were bound.
The rules relating to maintenance were the inevitable consequence of the
doctrine of unity of legal personality. The wife, lacking the capacity to hold property,
could neither own the bare necessities of life nor enter into a binding contract to buy
them. The husband alone had the right and capacity to hold all means and property. It
is in the light of this basic premise that the various elements in the concept of alimony
and maintenance took shape and developed. One of the principle that emerged,
imposed an essential obligation upon a married man to provide his wife with at least
bare necessities.
The Smritis, Commentaries and Digests dealt with the subject of maintenance
with resounding interest. Even a concubine, more commonly known as Avaruddha Stri,
who was kept by a man for a number of years was entitled to maintenance from the
separate property of her paramour. However, she was disentitled to claim maintenance
on her becoming unchaste. The Avaruddha Stri had the recognised status below that of a
wife and above that of a harlot.
The right of maintenance was also closely related to the right of property and to
the theory of an undivided family. The head of the undivided family was bound to
maintain its members, their wives and children. The work of Golap Chandra Sastri on
Hindu Law highlighted this aspect which is reproduced hereunder:
The ancestral immovable property is the hereditary source of maintenance of the members
of the family and the same is charged with the liability of supporting its members, all of
whom acquire a right to such property from the moment they become members of the
family by virtue of which they are atleast entitled to maintenance out of the same. Such
property cannot be sold or given away except for the support of the family; a small
portion may be alienated, if not incompatible with the support of the family 1 .
Even sacrifices was regarded as mockery if thereby a man deprived himself of
the means of maintaining his dependents. A man could maintain his dependent by
1 Gopal Chandra Sastri’s work on Hindu Law, Edition 8, Pg. 523
doing acts which were otherwise forbidden in the shastras, e.g., to accept gifts from a
sudra. The maintenance of his dependents was the primary duty of man. Manu said:
A mother and father in their old age a virtuous wife and an infant son must be
maintained even though by doing a hundred misdeeds.
The right of maintenance was a recurring right accruing from time to time and it
was personal and non‐transferable. The right to future maintenance was not attachable
and was subject to debts which were payable out of the property against which the
right of maintenance was being enforced. The measures for maintenance were secular
and social in character aimed at avoiding immorality and destitution. In the tenets of
Shastri Hindu Law, two principles subserved this need to provide beliefs of maintenance
and those emanated from social ethics, personal relations and economic conditions. The
principles of Hindu personal law had developed in an evolutionary way so as to make
fair provision against the destitution. Its field of operation is humanistic in nature
although it laid down the permissible categories under its benefaction.
LEGISLATIVE HISTORY:
The claim of a Hindu wife to be maintained was not an empty formality which
was to be exercised as a matter of concession or indulgence, grace or gratis or generosity
but was a valuable spiritual and moral right which flowed to her from the temporal
relationship of husband and wife. By the passage of time, the rights of wife started
attaining recognition at the hands of legislature. Hindu women’s right to maintenance
received statutory recognition by the enactment of Hindu Married Women’s Right to
Separate Residence and Maintenance Act, 1946, which came into force on 23rd April,
1946. This enactment brought about a fundamental change in the Hindu Law of
maintenance, as it existed prior to the Act. The second marriage by the husband entitled
the wife perse to claim separate maintenance. 2 This was the most radical introduction by
the legislature which intervened by vesting the right in a Hindu married women to
claim separate residence and maintenance when her husband took another wife. The
other important right which was transformed by this enactment was the right of the
wife to claim maintenance on the ground of her husband developing amorous
connections outside wedlock 3 .
The entire perspective had started changing with the enactment of the 1946 Act,
and particularly after attainment of Independence, the nature of old human values
2 Clause (4), Section 2
3 Clause (6), Section 2
assumed a new complexion and the need for emancipation of womanhood from
feudal bondage became all the more imperative. The ceaseless agitation by the female
Hindus for enlargement of their rights changed the entire perspective and applied great
social pressure to set up a new social order where the woman should be given a place of
honour and equality with the male sex in every respect. It was this object in view which
prompted the Legislature of Independent India to consider it as its primary duty to
bring forth legislation to remove the anomalies in the Hindu Law. It resulted in the
enactment of the Hindu Adoptions and Maintenance Act, 1956, which was passed to
alter the law in respect of the right of the wives in the field of the maintenance. The Act
fulfilled a long felt need of the hour and was widely acclaimed by the people. 4
Similarly, the legislature enacted the Hindu Marriage Act, 1955 by which a
Hindu wife was vested with a right to claim maintenance although it could only be
claimed during the pendency of the proceedings under the Hindu Marriage Act. It also
resulted in the grant of yet another peculiar right by virtue of which either of the
spouses were entitled to claim permanent alimony from the aggrieved spouse. To the
same effect was the enactment of the Code of Criminal Procedure in 1973 which also
brought about major fundamental changes by repealing the earlier Code and
beneficient provisions were introduced to favour the women’s community. The right to
claim maintenance was extended to a woman who has been divorced or has taken a
divorce from her husband.
COMPARATIVE ANALYSIS OF PROVISIONS OF MAINTENANCE UNDER
DIFFERENT STATUTES
The different provisions for claiming maintenance under the different statutes
viz., the Hindu Adoptions and Maintenance Act, 1956, the Hindu Marriage Act, 1955
and the Code of Criminal Procedure 1973 pertain to three independent remedies
available to the Hindu women for claiming maintenance. Under the Hindu Adoptions
and Maintenance Act, 1956 Section 18 provides the remedy to a Hindu Wife to claim
maintenance. Whereas under the Hindu Marriage Act, 1955, the maintenance can be
claimed only during the pendency of the substantive proceedings or, after the
conclusion of the proceedings resulting in the passing of the decree ; through the
medium of Sections 24 and 25. The third remedy is available under Section 125 of the
Code of Criminal Procedure, which not only applies to Hindus but to persons of all the
religions. It would be noted that all these three remedies is available under the different
statutes co‐exist with each other. However, there are certain similarities and
dissimilarities interse them which are discussed herein below.
4 V. Tulsamma v. Sesha Reddy, AIR 1977 SC 1944
I. COMPARATIVE ANALYSIS OF SECTION 24 OF THE HINDU MARRIAGE
ACT WITH SECTION 18 OF HINDU ADOPTIONS AND MAINTENANCE ACT
Both the aforesaid remedies are different from each other and operate in two
different fields. These two provisions co‐exist with each other and are not mutually
destructive nor do these counter‐act to each other. 5 Therefore, these are two
independent remedies and the proceedings under both these remedies can run parallel
to each other.
Under Section 24 of the Hindu Marriage Act, the maintenance can be claimed by
the wife only during the pendency of proceedings between her and her husband.
However, that would not bar the wife from initiating proceedings by way of the suit
under Section 18 of the Hindu Adoptions and Maintenance Act { in short, the
Maintenance Act}. Therefore, where the suit of the wife for maintenance is pending
under Section 18 and the husband initiates restitution proceedings under Section 9 of
the Hindu Marriage Act, the application of the wife for interim maintenance under
Section 24 of the Hindu Marriage Act is maintainable as it is a separate and independent
right, the enforcement of which cannot be denied to the wife merely because her suit for
maintenance under Section 18 is pending. There is nothing under the Hindu Marriage
Act or under the Maintenance Act, which bars the wife from claiming maintenance
under Section 24 of the Hindu Marriage Act if she has preferred a regular suit for
maintenance under the Maintenance Act. Therefore both these aforesaid provisions are
not inconsistent but are consistent. 6
The purpose and intendment of Section 18 is different from the one under
Section 24 of the Hindu Marriage Act which is meant for awarding interim maintenance
only. The conditions and circumstances in which these two rights can be exercised
differ from each other. The object and purpose of Section 24 is to provide immediate
relief to the wife and to claim expenses of the proceedings irrespective of other
circumstances whereas the regular suit for maintenance under Section 18 may take time
for adjudication. There are many distinguishing features in the right of the wife to claim
maintenance contemplated by these two provisions, some of which are as follows:‐
1. OBJECT : The object of Section 24 is to ensure that the indigent
spouse does not suffer from prosecuting or defending the proceedings under the Act for
5 V.K. Kejriwal v. Usha Kejriwal AIR 1993 Bom. 160
6 A.K. Damodar v. Bimla, 1974 PLR 33(Del)
lack of funds, and also to provide maintenance during the pendency of the proceedings.
On the other hand, the object of Section 18 of the Maintenance Act is to preserve and
protect the right of wife to claim maintenance as also the right of separate living
coupled with maintenance.
2. ANY SPOUSE : The maintenance under Section 24 of the Hindu Marriage
Act can be claimed by any spouse irrespective of the husband or the wife. However,
under Section 18 of the Maintenance Act it is the wife only who has the right to claim
maintenance.
3. NATURE OF ORDER PASSED: The order passed under Section 24 of the
Hindu Marriage Act is interim in nature which subsist only during the pendency of the
main proceedings, while the decree passed under Section 18 of the Maintenance Act is
final unless set‐aside, modified or varied in a legal proceeding.
4. NATURE OF PROCEEDINGS: Under Section 24 of the Hindu Marriage
Act, the nature of proceedings are summary in nature and the application is generally
disposed of on the basis of affidavits alone. Whereas the proceedings under Section 18
of Maintenance Act is a regular suit which requires trial and can be decided only after
providing full opportunity to both the parties to lead evidence in support of their
respective contentions.
5. CONDITION PRECEDENT: The pendency of main proceedings is the
condition precedent to the initiation of proceedings under Section 24, whereas the
proceedings under Section 18 of the Maintenance Act, itself constitutes independent
proceedings.
6. EXPENSES OF PROCEEDINGS: The expenses of proceedings can be
claimed under Section 24 of the Hindu Marriage Act but Section 18 of the Maintenance
Act does not confer such a right.
7. APPEAL / REVISION: The order passed under Section 24 of the
Hindu Marriage Act cannot be appealed against and only a revision petition under
Section 115 of the Code of Civil Procedure is maintainable. But the decree passed under
Section 18 of the Maintenance Act is appealable.
8. CONDUCT : Under Section 24 of the Hindu Marriage Act, what is
required to be proved is that the wife has no independent income sufficient for her
support and the necessary expenses of the proceedings. But under Section 18 of the
Maintenance Act, the Court shall have regard to the conduct of the wife and if the wife
is living separately whether she is justified in doing so.
9. PROCEEDINGS: The proceedings under Section 24 of the Hindu Marriage
Act requires early and expeditious disposal whereas under Section 18 of the
Maintenance Act no such mandate is there.
II. COMPARATIVE ANALYSIS OF SECTION 25 OF THE HINDU MARRIAGE
ACT WITH SECTION 18 OF THE HINDU ADOPTIONS AND MAINTENANCE ACT
Both these aforesaid remedies also operate in different fields. These two
provisions are independent of each other and can run parallel to each other and none
defeats the other. The order for maintenance can be obtained under both the provisions
but the amount of maintenance cannot be recovered twice‐over for the same period.
Section 25 of the Hindu Marriage Act deals with the concept of permanent alimony
which may be granted only on the passing of decree under the Act or at any time
subsequent thereto. Under this provision, even the husband has been given the right to
claim alimony which right was not available to him under the traditional Hindu Law
nor it has been given under the Maintenance Act. The right conferred under this
provision is a special right given to an indigent spouse. An order under this Section is
by virtue of special jurisdiction conferred under the Act, while Section 18 of the
Maintenance Act recognises, protects and preserves the legal right of the wife to be
maintained by her husband. 7 The right to claim maintenance under Section 25 of the
Hindu Marriage Act is ancillary to the right to claim any matrimonial relief under said
Act it does not lay down any rigid rule or any fixed criteria for the assessment of the
amount of maintenance and therefore it is left to the wise discretion of the Court. This
discretion is not affected or controlled by the provisions of Maintenance Act. On the
other hand, Section 18 confers the right to claim Maintenance only on “a lawfully
married Hindu Wife”. However, this may not be so under section 25 of Hindu Marriage
Act where even the Hindu wife other than a lawfully wedded wife can be granted
maintenance. For instance, a wife of a void marriage is entitled to claim maintenance
under Section 25 of the Hindu Marriage Act.
The other important point of distinction between the two provisions is that
under Section 25 of the Hindu Marriage Act, the payment of maintenance can be made
even after dissolution of marriage; whereas Section 18 is attracted only when the
marriage is subsisting. Therefore, it can aptly be said that the provision of Section 25 of
the Hindu Marriage Act is wider in its scope and ambit in relation to Section 18.
7 D.S. Sheshdri v. Jaya Lakshmi, AIR 1963 Mad. 283
However, the wider scope of Section 25 in as much as it includes the right to a divorced
wife or a wife of a void marriage to claim maintenance would not render Section 18
repugnant, inconsistent or redundant with the provisions of Section 25 of Hindu
Marriage Act. The Supreme Court has also held 8 that in case of dismissal of petition of
husband under the Hindu Marriage Act, the wife can claim no alimony under Section
25 but she can validly do so under Section 18 of the Maintenance Act.
III. COMPARATIVE ANALYSIS OF SECTION 18 OF THE HINDU MARRIAGE
ACT WITH SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE
The above noted remedies are alternative remedies which are not identical to
each other. There is no inconsistency between the provisions although the relief
provided by them is not the same. It is true that they overlap each other to a certain
extent, but there is no element of repugnancy between them. 9
The object of Section 125 of the Code is to prevent vagrancy and destitution; and
the jurisdiction vested under it is merely preventive in nature rather them remedial.
Both the remedies i.e. Section 125 of the Code and Section 18 of the Maintenance Act are
available to a Hindu wife against her husband. She can choose any of them as both are
consistent with each other . The existence of an order of maintenance under section 125
of the Code does not oust the jurisdiction of the Civil Court to grant maintenance under
Section 18 of the Maintenance Act . The factors to be considered while awarding the
quantum and the quantum to be fixed under both the provisions are different with each
other. However, where a suit filed under Section 18 of the Maintenance Act by a wife
against her husband has been dismissed, she will be disentitled to claim maintenance
under Section 125 of the Code because proceedings of the Civil Court are substantial in
nature determining the rights of the parties whereas proceedings under Section 125 are
of summary nature.
The claim of maintenance under Section 125 of the Code is limited to Rs.500/‐
only and such amount of maintenance is granted which is sufficient to save the claimant
from starvation. Whereas under Section 18 of the Maintenance Act, the consideration
which weigh in the mind of the Court is different such as the position, status, wants,
exigencies, conduct and means of the parties. Under Section 125, the wife can be
granted maintenance if she is unable to maintain herself. Even a wife who has been
divorced by or has obtained a divorce from her husband is entitled to claim
8 Chand Dha wan v. Jawaharlal Dhawan 1993 (3) SCC 406
9 Kuttappan v. Thanka, 1985 (1) HLR 407
maintenance. On the other hand, only a legally wedded wife of subsisting marriage can
claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act.
IV. COMPARATIVE ANALYSIS OF SECTION 24 OF THE HINDU MARRIAGE
ACT WITH SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE
There are distinguishing features between the provisions under Section 125 of
the Code and Section 24 of the Hindu Marriage Act. As already discussed in the
preceding Chapter, the object of Section 125 of the Code is to serve social purpose of
alleviating privation and avoiding destitution and vagrancy. This provision is meant to
provide urgent relief to the needy without delay. On the other hand , the object of
Section 24 of the Hindu Marriage Act is to ensure that a spouse in a financially
vulnerable position must be enabled to maintain himself or herself during the pendency
of the proceedings and should also be provided with expenses for litigation. The
mandate of Section 24 is to put, both the spouses as far as possible on a position of
equality. The reason for this is to ensure that the parties before the Matrimonial Court
can fairly present their respective cases without being disabled by lack of funds. The
purpose, nature of right and the remedy provided by Section 125 is different from the
purpose, nature of right and the remedy provided under Section 24. The remedies
under both the provisions are neither alternative nor inconsistent with each other. The
manner and mode of recovery under both the provisions is also different. Section 125 is
applicable to all the persons regardless of their religion whereas Section 24 applies to
Hindus only. Both the spouses can claim right to maintenance under Section 24 of the
Hindu Marriage Act, whereas under Section 125 of the Code it is only the wife who is
entitled to maintenance. The amount of maintenance which can be granted under
Section 125 is limited to the extent of Rs.500/‐ only whereas there is no such ceiling
under Section 24 of the Hindu Marriage Act.
The order passed by the Matrimonial Court under Section 24 of the Hindu
Marriage Act is not a final determination of the Civil Court as under the Hindu
Adoptions and Maintenance Act. It is merely an order of interim nature. Therefore, the
jurisdiction of the Magistrate under Section 125 of Code is not ousted nor such an order
debars the Civil Court from considering the application put forth under Section 24 for
maintenance pendente‐lite. The order of dismissal of the application under Section 24
will have no bearing on the order passed under Section 125 of the Code under which
the wife is getting maintenance 10 and the same would apply vice‐versa i.e. where the
petition for maintenance under Section 125 of the Code has been dismissed, it would
not debar a wife from claiming maintenance under Section 24. This has been so held by
10 Parmeshwar v. Rekha , 1986 (1) HLR 278 (Bom.)
the High Court of Punjab and Haryana in the case of Kulwinder Kaur v. Daljeet Kaur 11 .
The Supreme Court in the case of Captain Ramesh Chander Kaushal v. Veena Kaushal 123
has gone to the extent of laying down that barring marginal relevance for the
Magistrate, the order of interim maintenance under Section 24 of the Hindu Marriage
Act in favour of the wife does not bar the jurisdiction of the Criminal Court to award a
higher maintenance.
However, it must be made clear that where maintenance has been awarded by
different Courts exercising jurisdiction under relevant provisions, it would only be one
order which can be enforced out of the two orders. Therefore, the other order remains
just a declaration, in dormancy or consumed. But it would not mean that if the wife is
awarded maintenance under Section 24 at a lower rate and also where maintenance
under Section 125 is higher wife is not entitled to enforce the order of maintenance
simultaneously. She can do so but only subject to higher maintenance fixed in one order
and not the total amount of two orders. For instance, she can enforce the order passed
under Section 24 in‐toto but she can claim only a difference of amount in the other
proceedings under Section 125 of the Code so that the total amount recieved does not
go beyond the amount of maintenance awarded at a higher rate.
Therefore, remedies available under Section 24 of Hindu Marriage Act and
Section 125 of the Code of Criminal Procedure are alternative and optional for the
parties to avail of.
CONCLUSIONS AND SUGGESTIONS
The right of a Hindu wife to claim maintenance is scattered under the provisions
of different statues viz. the Hindu Marriage Act, 1955, the Hindu Adoptions and
Maintenance Act, 1956 and the Code of Criminal Procedure, 1973. The right to claim
maintenance is an important feature of Hindu Law which has been derived from our
age‐old traditions and customs, Dharamshastras and Shastric Hindu Law. The birth of
this valuable right has its logic in the corresponding rights and duties of husband and
the wife. It is not only the husband who shoulders the responsibility of maintaining his
wife and children besides providing them with love, warmth and affection. The wife
has an equal duty to perform in the matrimonial household, foremost among which lies
in her sincerity and integrity with the husband. Moreover, she has an equally important
task of sharing the feelings of love, sorrow and happiness with her husband. The age‐
old saying that behind the success of every man lies the contribution of woman, needs
11 1989 (2) HLR 213 ( P & H)
12 AIR 1978 SC 1807
no reiteration. It is the wife who contributes substantially to enable her husband achieve
the heights of success. She has an equal share in that success which legitimately belongs
to her. The right to be maintained according to the social environment is, therefore, her
legitimate due. The husband should not be allowed to escape from this basic
responsibility. If he does so, the legal system must come to the aid of the vulnerable
wife.
Our legal system boasts of as many as three remedies which come to the rescue
of its victim. All these three remedies are different in their purport, context, purpose;
and the nature of right existing under the provisions differs from each other, which has
already been discussed in the preceding chapter. But are these provisions adequate
enough to cope up with the demands of the present day situation or do they need a
fresh look. These and like questions readily confront us once the practical difficulties
inherent in them get exposed rendering them virtually ineffective. Their adequacy and
the object for which they came to be enacted has been completely ignored. The most
unfortunate aspect, which worsens the situation even more, is the lack of sensitivity on
the part of our responsible and eminent politicians towards the problem. But let us first
understand the problem and then I will discuss the measures to overcome it.
The remedies provided to a wife under the Hindu Law to claim maintenance
from her husband has its roots in three different enactments, which have been dealt
with at length in the preceding chapters. Firstly, the provision of section 18 under the
Hindu Adoptions and Maintenance Act, 1956 needs to be examined. Section 18 provides
an independent and substantive remedy to a Hindu wife to lay a claim for maintenance
against her husband. This provision confers an important right to the wife to claim any
amount of maintenance against her husband, subject of course, to the factors to be
considered while awarding the quantum. However, there is no ceiling limit on the
amount of claim to be made. It is dependent upon the social environment to which the
parties belong and other relevant factors. But the wife cannot approach the court under
section 18 of the Act unless she complies with the procedural technicalities. One of such
pre‐condition is the payment of Court fee under the Court Fees Act, 1870 for instituting
a suit for maintenance. Section 7 of the Court Fees Act provides the jurisdictional value
of the petition on which the requisite ad‐valorem Court fee is to be paid. The value of
subject matter of the suit, according to clause (ii) of section 7 of Court Fees Act, works
out to ten times of annual maintenance claimed in the petition. 13
13 Section 7(ii) of The Court Fees Act , 1870. “ for maintenance and annuities - In suits for maintenance and annuities or other sums payable
periodically - according to the value of the suject matter of the suit, and such value shall be deemed to be ten times the amount claimed to be
payable for one year”
For instance where a wife per force wishes to file a suit under section 18 of the
Hindu Adoptions and Maintenance Act for claiming maintenance against her
recalcitrant husband, she would be able to do so only if she pays the Court Fee on the
petition. If she claims a sum of rupees five thousand per month in the suit, the value of
the suit for the purposes of the court fee and jurisdiction would be ten times of the
annual maintenance. Therefore, the annual maintenance which comes to rupees sixty
thousand will be multiplied by ten in order to arrive at the value of the subject matter.
Thus the amount of court fee to be paid by the wife would be calculated on the sum of
rupees six lacs. The ad‐valorem court fee on this sum would mean a sum of more than
rupees eight thousand. This is besides the fact that she has to incur expenditure for
availing the professional services of a lawyer. Therefore, the remedy under section 18 of
the Act becomes very onerous for a helpless wife who approaches the Court in a state of
destitution. The payment of phenomenal amount of court fee renders this remedy
virtually ineffective for which immediate legislative measures must be taken. Needless
to add that the complexities and the procedural delays involved in pursuing legal
remedies take a considerable time before a needy wife actually gets something although
that is also subject to the clever and shrewd tactics adopted by the husband to delay the
payment of maintenance.
Secondly, the provision under sections 24 and 25 of the Hindu Marriage Act,
1955 also urgently need legislative reforms in view of its basic lacuna. It is so because
these provisions can only be invoked by a spouse when the substantive proceedings
under the Hindu Marriage Act viz. petition for restitution of conjugal rights, judicial
separation, divorce or annulment of marriage are pending before the Matrimonial
Court. In the absence of any proceedings before the court, a wife cannot lay any claim
for maintenance under the Act. There are other serious defects in the legal procedure for
claiming maintenance under section 24 of the Hindu Marriage Act.
For instance where a husband institutes a petition for divorce against her wife
under the Act, a wife gets entitled to move the court for grant of pendente lite
maintenance alongwith litigation expenses from the husband. In such an eventuality,
the Matrimonial Court has to decide the application of the wife for maintenance and if it
holds that she is entitled to a specified sum of maintenance every month, then the
normal strategy adopted by the husband is to stop appearing in the court in order to
escape the payment of maintenance. This results in the petitions getting adjourned
sine‐die and in this manner a recalcitrant husband is able to evade the order of payment
of future maintenance. There is no procedure in law which empowers the Matrimonial
Court to direct the husband to continue to pay future maintenance to his wife after the
husband stops appearing in the court. The amount of maintenance which already
becomes due in the meanwhile can only be recovered by the wife by filing an execution
petition before the court. The court, on the filing of the execution petition, issues
warrants of attachment against the property of the husband for recovering the arrears of
maintenance. For executing warrants of attachments, the wife herself has to take the
bailiff from the court to the husband’s place where he adopts every tactic in the book to
avoid it and obstructs to the execution of the warrants by issuing threats and criminally
intimidating the vulnerable wife. The bailiff has no option but to report to the court that
the husband is causing obstruction to the execution of warrants of attachment. On the
report of the bailiff, the court requires him to enter the witness‐box to depose about the
necessity of grant of police‐aid for execution. This again requires considerable time
before an order granting police‐aid is passed by the court. However, it is also well
known that the concerned police express its helplessness in arranging their officials in a
short time to carry out the execution. Therefore, before the wife actually gets
something as maintenance through this long and frustrating procedure, she breaks
down midway rather preferring to settle herself in her own way which might even lead
to adopting the path of immorality to sustain herself.
On the other hand, where a petition is instituted by the wife against her husband
under the Hindu Marriage Act and an order of maintenance is made in favour of the
wife, there is no such procedure by way of which the court can effectively enforce the
payment of maintenance. If the husband does not pay maintenance, as is the normal
practice, the court can strike off the defence of the husband and proceed with the
matter.
Therefore, besides the fact that the provisions of the Hindu Marriage Act for
claiming maintenance are applicable only when some proceedings under the Act are
pending, there are other serious inherent defects in the procedure for execution of the
orders of maintenance which immediately requires to be overhauled. A delinquent
husband can easily defeat the order of maintenance passed by the court on which the
court also remains a silent spectator.
Thirdly, the provision of section 125 of the Code of Criminal Procedure, 1973
needs a fresh look. The quantum of maintenance prescribed under the said provision is
merely rupees five hundred per month. In the present day world of high inflation
coupled by soaring prices it is ridiculous to perceive of an amount which is as low as
five hundred rupees. In such a meagre sum, it is impossible for the wife to even have
access to the bare necessities of life. Despite vociferous protests from various sections of
the society to reconsider the low quantum provided under this provision, our
legislature did not even spare a thought which reflects total insensitivity on their part.
This also reflects the discriminatory attitude adopted towards the women community
and the low social status accorded to them. Even the minimum wages prescribed for a
daily worker under the Minimum Wages Act, goes much beyond this low quantum.
Besides this, there is another important aspect which should not be lost sight of.
The procedure for awarding maintenance under section 125 begins with filing of the
petition before the Magistrate empowered to deal with the same. The Magistrate before
whom such petitions are presented and entertained are entrusted with other criminal
matters also. A wife who institutes a petition for maintenance under this provision is
required to be personally present in the court on each and every date of hearing. Even if
she succeeds in her claim for maintenance, the husband evades the payment on one
pretext or the other. The only course left for a wife is to press for his imprisonment on
the ground of his inability to pay the arrears of maintenance. If the husband is
imprisoned, it is the wife who has to incur the expenditure of diet money for the period
of incarceration of the husband.
There are no Special Courts prescribed for trying the petitions under this
provision and these have to be dealt alongwith other criminal matters where habitual
criminals frequent the court. The wife has to withstand such environment i.e. be in the
company of criminals and to stand there for hours waiting for their turn. In such a
situation, a woman is required to undergo enormous humiliation and is subjected to
grave harassment for claiming a meagre sum prescribed under this provision. Instead,
the Legislature should establish Special Courts for the adjudication of the petitions
under section 125 of the Code. Moreover, the Legislature should forthwith enhance
the ceiling limit under this provision or instead scrap this provision altogether.
Another important aspect in the lack of effectiveness of all these provisions is the
inability of the Judges to handle the situation with maturity and to deal with a proper
attitude in order to enhance the object of the provision enshrined in the aforesaid Acts.
The Judges should not be indifferent to the problems confronted by a woman in our
society and should endeavour to augment the social status by ensuring her proper
adequate relief.
MEASURES FOR PROMPT RECOVERY
All the provisions discussed hereinabove have a common factor which lies in the
lack of adequate enforcement machinery for the recovery of arrears of maintenance.
Once an order for maintenance has been passed, the husband generally fails to pay after
a short period. Even though when a claim for interim maintenance is allowed, the wife
is not able to get the maintenance for years together. No one knows how she maintains
herself during the pendency of the claim. Driven by indigency and starvation, a woman
may also be forced to lead a life of immorality and prostitution for her sustenance. The
arrears of maintenance are treated as a “debt” and the mode of its recovery is tedious
and expensive. The expensive nature of recovery proceedings becomes a bar to a wife,
who is already in dire need of monetary assistance, to further pursue the matter thereby
defeating the very intent of the legislation. Even the Committee on the Status of Women in
India in its report as back as in 1974 observed that the hardships caused to the wife by
non‐payment of maintenance should be minimised, and to ensure certainty of payment
certain recommendations were also made, for instance having a provision for deduction
at source by the employer of the person liable to pay maintenance. It is submitted that
the legislature should act with promptitude in order to remove the anomalies and
hardships inherent in the present system of laws of enforcement to enable us to say that
Justice should not only be done but should seem to have been done. Moreover, in case
of failure to pay arrears of maintenance for a long time, the legislature should devise a
procedure to award interest on the delayed payments of maintenance to the aggrieved
wife.
The courts need to sensitise the entire system towards the need to achieve
substantial justice to the women of our country and to treat them with dignity and
humane approach. This welcome change will not only show its colours of joy but will
also prove beneficial for the generations to come.
It can be summed up that the need of the hour is to introduce major legislative
reforms in the field of maintenance in order to provide speedy and substantial justice to
the destitute and vulnerable wife at the minimum cost. Moreover, the facility of legal
aid should also be made available to her for which steps should also be taken in this
direction. It is hoped that the legislature would finally wake up from its long slumber
and end this frustrating struggle.
‐Vandna Rajput Aneja
‐Rajat Aneja
OF ANEJA & ANEJA
ADVOCATES & LEGAL CONSULTANTS