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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
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.
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