The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Contents hide
1 Maintenance of Wife Under Personal Laws 1.2 Maintenance of Wife Under Personal Laws1.2.3 Hindu Personal Laws on Maintenance
1.2.4 Muslim Personal Laws on Maintenance
1.2.5 Maintenance under s.125 of CPC
This paper deals with Maintenance of wife under Hindu Marriage Act and dissolution of Muslim act. The concept of maintenance aims to put the wife back to the same position of power and comfort and lifestyle as she was at the time when her marriage existed. The article also highlights the point that why women need maintenance. There is no patent amount given by the husband for the maintenance that the husband is liable to pay to his wife, and it is upon the discretion of a financial condition of the husband and what comes out of the court decision to fix the amount of maintenance that the husband needs to pay either in the monthly basis or in form of a lump sum. The whole concept of maintenance was initiated to see there is no exploitation on the spouse who is not independent economically than the other spouse should help the order to make the living of the other persons possible, and independent.
The maintenance refers to the payment which a husband is under an obligation to pay to a wife either during the subsistence of the marriage in the case of the Muslim law or under the case of the divorce and separation also. Under the certain circumstances the liability if the husband flows from the bond of the matrimony. A wife is entitled to the maintenance under the personal law with various provision of the Code of the Civil Procedure, 1973[1] and there is other matrimonial proceeding under the respective personal law act and the case of the Code of the civil proceeding, 1973 which can be applied to any person and can seek maintenance under the same.
Maintenance may be allotted to dependent children like a unmarried daughter or minor son, parents and legally wedded wives, counting, but not limited to a divorced spouse, mistress, illegitimate children, etc. The courts of the country have adopted a lenient view and granted the husband the right to receive maintenance. The right granted is conditional and typically conferred upon the husband, only if he is incapacitated due to some accident or disease and rendered incapable of earning a livelihood even there is no clause that establishes whether a husband can be maintained by his wife or not but their various maintenance by a wife to his husband has been granted. The entitlement of maintenance totally depends on availability to an able person, doing nothing for a living.
The Hindu law has two statuses which provide the maintenance clause that is The Hindu marriage act, 1955 and the Hindu adoption and maintenance act, 1956. Section 24 of the Hindu marriage act provides that the application need to pay the expenses of the proceeding of the court and the sum of money whether monthly or de disposed of within the sixty days from the date of the service of the notice issued by the court to the husband as the case may be.
In case Prem Kumari v. Om Prakash[2], where the wife who was earning some money by way of tuition’s, so she filed an application for maintenance pendent late under the Section 24 of the Hindu Marriage Act, in the case court stated that the fact of her earning amount to take her right of maintenance of the wife and children as she would have lived differently if she had continued to live with her husband.[3]” So in the case Sanghamitra Singh v. Kailash Chandra Singh[4], where the wife’s consolidated from the salary so the court made to pay maintenance as the husband was drawing Rs. 7,000 per month, so maintenance on her application under the Section 25, of Hindu Marriage Act, 1955. Under the case of K.K. Desai v. A.K. Bhai Desai[5], where it was held “that where there is provision for free legal aid by the state, the burden cannot be put on the husband merely because the wife was ignorant of her right of legal aid”. It is a good step to stop the misuse of the right which is guaranteed to the people.
Under the Hindu adoption and the maintenance act,1956 under Section 18 the Hindu wife is entitled to live separately from her husband without forfeiting her claim to a maintenance, provided her separate living is justified which means that the husband: (i) is guilty of desertion; (ii) has treated her with cruelty; (iii) is suffering from a virulent form of leprosy; (iv) has any other wife living; (v) keeps a concubine in the same house, or is living or habitually resides with a concubine elsewhere; (vi) has ceased to be a Hindu by conversion to another religion; or (vii) if there is any other cause justifying living separately.
In the case Bouramma v. Siddappa[6], on a wife’s claim for maintenance under the section 18 on ground of desertion, the contention raised by the husband who had another wife was there and the dissolution is as per “an arrangement to live separately”. The trial court held that there was no desertion and further that she being divorced was not entitled to maintenance under the provisions.
The personal law statutes which are governing the Muslim woman’s right to maintenance are the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. The first Act provides for grounds under which a woman married under the Muslim law can seek maintenance under the dissolution the marriage. One of the grounds provided is that ‘the husband has neglected or has failed to provide for her maintenance for a period of two years. The latter Act, as it very indicates, makes provision for the protection of rights of Muslim women who have been divorced by, or have obtained a divorce from, their husbands, which includes right of maintenance as well. As is evident from the above statutory provisions, maintenance could be interim or permanent. This amount can be varied on the application of the parties if there is a change in the circumstances of the parties.
Thus in the case Dilip Kumar v. State of U.P[7], where an application for maintenance remained pending for 21 years due to the husband’s delaying tactics, it was held that “he was liable to pay from the date of wife’s application. A wife seeking maintenance under this section has to prove negligence on the part of the husband to maintain her”. In Mohd Ismail v. Bilquees Bano[8] the Allahabad High Court held that even though the Muslim personal law permits a husband to take another wife, it is his duty to create an atmosphere for amicable and peaceful living of the wives.
Unlike the personal laws which are applicable only to persons belonging to particular religions, the provisions of the Code of Criminal Procedure, 1973 are applicable to all irrespective of religion. Relief under this Code is speedy and is available irrespective of whether or not any matrimonial proceedings are pending. According to the Supreme Court, in Rajathi v. C. Ganesan, in a case under s. 125 the court is to take a prima facie view of the matter and it is not necessary to go into the matrimonial disputes between the parties in detail. In Shaikh Babbu v. Sayeda Masarat Begum[9], where a divorced wife’s petition filed under s. 125 of the Code of Criminal Procedure, 1973 was resisted by her former husband on the ground that after the Muslim Women (Protection of Rights on Divorce) Act, 1986, she could not resort to s. 125, the Bombay High Court made the statement.
The duty to maintain a wife is a moral as well as a legal duty that needs to be accounted for by everyone who is married. All personal laws provide for maintenance for the wife have upper ceiling attainment to make it each considerable to outshine and considerable to be part of the society to help the needy.
[1] Code of Civil Procedure, 1908, (Feb,2 2021 12:21) ,https://www.advocatekhoj.com/
[2] Shakuntla Kumari vs Om Prakash Ghai, AIR 1983 Delhi 53, 19 (1981) DLT 64
[3] Sushma Kumari vs Om Prakash , (feb,2 5:54),https://indiankanoon.org/
[4] Sanghamitra Singh v. Kailash Chandra Singh AIR 2001 Ori 151 : (2001) 91 CLT 404
[5] K.K. Desai v. A.K. Bhai Desai ,AIR 2000 Guj 232
[6] Bouramma v. Siddappa ,AIR 2003 Kant 342
[7]Dilip Kumar v. State of U.P CIVIL APPEAL NO. 5122 OF 2007
[8] Mohd Ismail v. Bilquees Bano (1998) Cr LJ 2803 (All)
[9]Shaikh Babbu v. Sayeda Masarat Begum (1999) Cr LJ 4822 (Bom)
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