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Morality in Maintainance Laws of India


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Hindu Law:

Under the Hindu personal law, providing maintenance to the wife was considered to be the pious obligation of the husband, arising out of the factum of marriage. Manu declared: “the aged parents, a virtuous wife and an infant child must be maintained even by doing hundred misdeeds.” After independence, when the Hindu law was codified the pious obligation was given legal effect Hindu Law

Hindu Adoption and Maintenance Act, 1956; Section18: :

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, if (…) (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. Hindu Adoption and Maintenance Act, 1956; Section18:


Under the codified Hindu law the sentiment expressed by Manu is echoed. The wife, as long as she is virtuous and ‘ chaste ’ is entitled to receive maintenance. The only other disqualification being her conversion to another religion. Through Hindu law this burden of chastity has seeped into other non-religious maintenance laws.

Maintenance under Hindu Law::

The religious obligation of the husband to provide maintenance for the wife is captured in Sec 18 of the Hindu Adoption and Maintenance Act. The wife is entitled to live separately from the husband, under certain conditions, and still be entitled to receive maintenance. However, she loses the right to receive maintenance is if she is unchaste or converts to another religion. 6 Maintenance under Hindu Law :

Objective of maintenance law: :

The objective is to recognize the duty of the husband to provide for the financially dependent spouse to ensure that the wife is not left destitute in event of breakdown of the marriage. 7 Objective of maintenance law:

Criminal Procedure Code:

Section125 : Order for maintenance of wives, children and parents : (1 ) If any person having sufficient means neglects or refuses to maintain-(a) his wife, unable to maintain herself, or (…) Explanation .- For the purposes of this Chapter ,-(…) ( b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried .(…) (4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery , or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent . (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. Criminal Procedure Code

Under Criminal Procedure Code::

The Criminal Procedure Code encapsulates the secular duty of providing maintenance, i.e. a monthly monetary stipend, by a person to his dependents. The duty extends to wife, minor legitimate and illegitimate children, adult children (except a married daughter) unable to maintain themselves due to physical or mental injury or abnormality and parents who are unable to maintain themselves. 9 Under Criminal Procedure Code:

Divorced wife:

The term “wife” includes a divorced wife who has not married . Clause 4 of the Section states that if the wife is “living in adultery” or she refuses to live with the husband without sufficient reasons or if they are living separately by mutual consent, then the wife is not eligible to receive any maintenance under this Section. Divorced wife

Rationale: :

The wife who engaged herself in (an) adulterous relationship with a man cannot claim maintenance and cannot be allowed to take advantage of her own wrongdoings. Our laws enforce sexual exclusivity between husband and wife during marriage. A ny deviation from this norm by one spouse gives the other the right to dissolve the marriage by seeking divorce. Maintenance is an economic obligation which arises out of marriage and continues till the wife finds another source of dependence, in another marriage (or in a relationship like marriage). In India the concept of maintenance is need based as opposed to contribution based. The intent ion of the legislature, as interpreted by the courts, is to save women from destitution. Rationale:

Problematic area: Marital Property:

The I ndian Maintenance laws do not recognize the concept of martial property or community property. The law is based on the need and fault model. The women is entitled to maintenance because the law recognizes her as a ‘needful’ party and hence in the event of a fault i.e. adultery she loses her entitlement to the maintenance. However, the model which recognizes the woman as a contributor to the marital property, the entitlement to maintenance would no longer be affected by the fault of the woman. Problematic area: Marital Property


The matrimonial property is not divided as there is no acknowledgment of the non economic contributions that the wife makes towards the development of matrimonial property . The intention of legislature is clear to barter the a woman’s sexual propriety for her economic entitlement. Hence, if she finds another man, the duty of the husband is over. This ignores a woman’s contributions to the marriage except her contribution as a sexual partner. Hence, to qualify as a needful candidate and not a rightful candidate for maintenance the wife must prove her virtue by being chaste. Contd …


The provision aims to regulate the freedom of the woman even after there is a breakdown of the marriage. The provision of maintenance is applicable only if the woman continues to live as someone’s wife, i.e. have a monogamous existence even though there is no marriage existing in real sense as the spouses could be living separately or even be divorced. The provision aims to punish conduct post marriage by keeping the rules constant as that for a woman who is a part of a monogamous marriage. 14 Contd …

Problematic area: Protracted Litigation:

The moralism associated with the notion of sexual propriety in marriage also bleeds into economic consideration in course of matrimonial dispute litigation and adjudication. The claims of adultery on part of wife are frequently invoked by husbands and this turns the summary proceedings under Sec 125 Cr.P.C . into a protracted legal battle for women, who, in many cases, are approaching the courts through legal aid. Problematic area: Protracted Litigation

Problem area: ‘Living in adultery’ :

The courts have taken divergent stands on the point of whether Sec 125 (4) applies to only married women during the subsistence of marriage or does it migrate into post married life. In a 2000 judgment, Rohtash Singh v Ramendri , the Supreme Court had noted that the grounds for disqualification from maintenance enumerated in clause 4 of Section 125 make sense only in the context of a subsisting marriage, and hence, the clause is applicable “where the marriage between the parties subsists and not where it has come to an end”. Problem area: ‘Living in adultery’


However, in Karuppasamy v Kanimozhi , the Madurai Bench of the Madras High Court ruled that if a husband had obtained divorce on the ground of adultery committed by the wife, then he was exempted from the obligation to pay her maintenance under Section 125 of the Code of Criminal Procedure ( CrPC ). The High Court reasoned in this judgment that the disqualification that a married woman faces if she is “living in adultery”, also applies to a divorced woman. Contd …


The problem with this interpretation is that it imposes the standards of morality of a married woman on a divorced or a separated woman. This interpretation carries the sanctions of a monogamous marriage even beyond the marriage and sets up a control on the sexual freedom of the woman. There is no sanction on the husband if he lives in adultery after the dissolution of marriage but the wife must continue to barter her sexual exclusivity for maintenance. Contd …


The Supreme Court in its judgment stated that “living in adultery” means something different from living an unchaste life. Living in adultery is understood to mean a continuance of unchaste life which absolves the husband from paying maintenance because the wife has found another de facto benefactor (the man she is living in adultery with). However, after dissolution of marriage, the concept of adultery should no longer apply as the dissolved marriage can’t continue to impose sanctions on one party. Contd …

Problematic area: Live in relationship:

The Supreme Court has recognized the right of maintenance in Indira Sharma case even in a live-in relationship. Hence the courts are alive to the concept of fluidity of morality in changing times. The question will arise when the courts are faced with a conflicting view of looking for morality in a live-in relationship which doesn’t fit in to the structured concept of a monogamous marriage. Would the woman be required to face sanctions of a monogamous marriage even without there ever being a marriage ceremony? Problematic area: Live in relationship

Problematic area: Bigamous marriage of husband:

In some cases, husbands have used their own previous marriage to defeat the claim of the second wife. The husband has no civil liability if he shows that the second marriage was bigamous and hence essentially not just immoral but even beyond the purview of law, but the second wife is taken out of the definition of wife and hence loses her maintenance. The law looks to only defeat the claim of maintenance of the wife by imposing standards of chastity. The standard of matrimonial misconduct is different for the husband and wife. Problematic area: Bigamous marriage of husband

Way forward: Hindu Succession Act, 1955:

It was well settled rule of Hindu Law - a rule that was in conformity with ‘popular sentiment’ - that unchastity disqualifies a widow from succession to her husband's estate. Even the widow must be chaste not only when the inheritance of her deceased husband opens but also thereafter. Now after independence the disqualification which existed in the Hindu Law has been removed by the Hindu Succession Act, 1956 . Unchastity of a widow is no longer a disqualification in Hindu Succession Act but in other Acts it is still operating against her. Way forward: H indu Succession Act, 1955

Way Forward: Goa’s model of Marital Property: System of Communion of Assets:

Goa comprises approximately 64 % Hindus, 31 % Christians, 4 % Muslims and 1 % other communities. Yet no specific personal laws are applicable and “Portuguese Civil Code” applies to all communities in Goa. In Goa, 98% of marriages are governed by marital property rules. Goa follows a system called “Communion of Assets” which grants equal rights in marital property to women. All wealth and properties here, regardless of the source, owned by both partners are considered joint family assets, and both partners own equal shares. It might be interesting to note here that the husband cannot sell or do away with his property without the consent of his wife. The division of properties cannot be done during the subsistence of the marriage. The collective property can be partitioned only on the dissolution of the marriage, that is, in the event of death or divorce. The main drawback of this system is that the administration of common assets rests solely with the husband. Way Forward: Goa’s model of Marital Property : System of Communion of Assets

Way Forward: Matrimonial Property::

“Matrimonial property” refers to the property acquired during the course of their marriage or in marriage-style relationships, with the exception of gift or inheritance. The system treats both spouses as having contributed equally to the marital community in various economic and noneconomic ways, and gives equal ownership of marital assets. The Marriage Laws (Amendment) Bill (“Bill”), 2013 seeks to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954 by introducing a provision related to allocation of movable and immovable matrimonial property. The ‘ Rajya Sabha ‘ or ‘Council of States’ of India (Upper House of Parliament) has passed this Bill on August 26, 2013. This bill is still pending before the ‘ Lok Sabha’ or ‘House of the People’ (Lower House of Parliament) and has not yet been ratified into these laws. A similar Bill drafted by Maharashtra State Women's Commission has been pending since 1995 in the State of Maharashtra. Way Forward: Matrimonial Property:

Way Forward: The Marriage Laws (Amendment) Bill (“Bill”), 2013:

Section 13F (1), HMA of the Bill provides: Without prejudice to any custom or usage or any other law for the time being in force , the court may, at the time of passing of the decree under section 13C on a petition made by the wife, order that the husband shall give for her and children as defined in section 13E, such “ compensation” which shall include a “share” in his share of the “immovable property ( other than inherited or inheritable immovable property )” and such amount by way of share in movable property , if any, towards the settlement of her claim, as the court may deem just and equitable , and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband . Way Forward: The Marriage Laws (Amendment) Bill (“Bill”), 2013

Conclusion: :

The community property system becomes important because the post-divorce standard of living of most women is lower as compared to during the marriage. There is a need of recognition of a meaningful property distribution schemes post-divorce in order to ensure economic equality of spouses after divorce. There is a need to give proper credit to the contribution of homemakers. The spouses should be considered as equal partners in marriage. The spouses have “equal management, control and disposition rights over their marital property. Conclusion:

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