Family Law - Maintenance and Alimony

CHAPTER-2

INTRODUCTION

The law of maintainance is not based on any contract , but is evolved out of the right in property to which a person was prima facie entitled , but which he became disqualified from sharing, by reason of the nature of the estate, or his own disqualification, whether personal or sexual. Being thus excluded from participation in the estate, law afforded him for the solatium of maintenance. The right of maintenance is, thus, not dependent on near relationship but on the existence, in the hands of the heir, of property upon which all dependent members of a joint family lay a claim. Even when there is no joint family, the law of necessity enjoins on a certain person by reason of his journal relationship to another, the duty of maintaining him. Hindu law recognizes the necessity of maintenance founded upon the dictates of natural justice, sometimes supported by the theory of co-ownership, personal identity, moral duty , or relationship, but in all cases it is ultimately traceable to the original fount of jus naturale the underlying principles of which are visible in the framework of the jurisprudence of every nation.

Alimony and Maintenance are terms of English matrimonial law, and have technical meaning. In recent years alimony, has been referred to as maintenance or spousal support. Traditionally, alimony was awarded to the wife and paid by the husband. However during the 1970's and 1980's judges began to award alimony to the husband depending upon the circumstances. Alimony is awarded to either spouse in an effort to maintain the standard of living that both parties were accustomed to during the marriage. According to Corpus juris, alimony is defined as the allowance, required by law to be made ‘to a wife, out of her husband’s estate for her support either during’ the matrimonial suit or on its termination where the fact of the marriage is established and she proves herself entitled to separate maintenance. Like maintenance, alimony connotes the existence of a duty on the part of a person to provide for the need of another person or persons “who is or are, in one way or the other, related to, or dependent upon, him.”

Since at English common law on marriage wife’s property became that of the husband, it was a logical corollary that the husband was required to maintain his wife during coverture as well as on divorce, so long as she remained unmarried. This principle was later on extended to void and voidable marriages. In English law, in recent years the alimony and maintenance have developed into, what is called, “Financial Provisions and Property Adjustment” and maintenance may be claimed by either party against the other.

The Hindu Marriage Act, Special Marriage Act do not go beyond the law as laid down in the Matrimonial Causes Act, 1950. The Indian Divorce Act, 1869 is based on the late nineteenth century English law, and it has not been reformed since then.

The law of maintenance and alimony can be discussed under the following two heads:

I. Interim maintenance and expenses of the proceedings, and

II. Permanent maintenance and alimony.

CHAPTER-3

Provision under Hindu law

Under Section 93 to 111 under Hindu Law talks about law of maintainnece.

Section 93 lays obligations on a person to maintain certain relationship, i.e., (a) his wife so long as she remains under his roof and protection, or lives apart for a just cause; (b) his minor sons, whether legitimtate or illgetimate; (c) his unmarried daughters; (d) his aged father and mother.

Section 94 lays down that a wife entitled to maintainence, does not forfeit her right by her husband’s conversion to another faith.

Section 99 and 100 talks about the rights of widow to get maintainence. Section 99 talks about the no right of maintainnce in following cases :

1) Is she has sufficient stridhan, or other means of support, from the income of which she can maintain herself.

2) If she had once received suffcieint allotment for her maintainmece which she has since dissipated.

3) Is she is remarried.

4) If she is leading a unchaste life.

5) Is she is living apart from her husband’s family for immoral or improper reasons, or without a just cause.

And, Section 100 talks about the right of widow to reside in family dwelling house. This right cannot be defeated by a sale of the house to a purchaser with notice. Even in the case of purchaser without notice, she cannot be evicted unless she is provided with another residence. But she is no such right where the sale is contracted by the husband or is for her husband’s debt or is for any other debt binding upon her.

Section 18 of the Hindu Adoptions an Maintainnece Act, 1956 talks about 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 lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance -

(a) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;

(b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) If he is suffering from a virulent from of leprosy;

(d) If he has any other wife living ;

(e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion ;

(g) if there is any other cause justifying her living separately;

(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.

COMMENTS

The words "wife or widow" in the context of marriage, succession or maintenance enactments are of restrictive legal character and imply relationship which is not recognized by land .

A man marrying a second time, during the lifetime of his wife, second wife though, having

no knowledge of the first marriage, is not entitled to claim maintenance under s, 125 of the

Code of Criminal Procedure, as she was not legally wedded wife and for that the marriage

was void. There is no forum provided under the Act so as to claim maintenance. Maintenance can only be claimed through regular suit.

Suggested Amendments by NCW (National Commssion of Women)

Section 18: Maintenance of Wife: 1)……., 2)…….., 3) In sub-secjtion 3) of section 18 the words 'is unchaste or' shall be deleted.

Justifications for amendement:- Maintenance of Wife: 1)……., 2)…….., 3) Conversion should not be the criteria to deprive a woman from her rights. Depriving a Hindu wife of her right for separate residence and maintenance solely on the ground of her ceasing to be Hindu as provided in section 18 ( 3 ) of the Act is equally unreasonable and violative of the provision of the Constitution (Article 15). Note - In order to minimize the hardship caused by non-payment of maintenance, and to ensure certainty of payment, it has been recommended that 'all maintenance orders should be deducted at the source by employer (as done in the case of income-tax). Whether it I not possible to deduct at source as in the case of a business man or self-employed person, the arrears of maintenance should re recovered as arrears of the land revenue or by distress'

Section 19 of the Hindu Adoptions an Maintainnece Act, 1956 talks about maintainence of Widowed daughter-in-law

(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.

PROVIDED and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance -

(a) from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be enforceable if the father- in law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.

COMMENTS

Liability of the father-in-law comes to an end where the widow is remarried or she has obtained a share in the coparcenery properties while partition. But her right to share in the separate property of her husband or in his interest in coparcenery property cannot be divested.

Section 23 of the Hindu Adoptions an Maintainnece Act, 1956 talks about Amount of maintenance

(1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so the court shall have due regard to the considerations set out in sub- section (2), or sub- section(3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to.-

(a) the position and status of the parties;

(b) the reasonable wants of the claimant ;

(c) if the claimant is living separately, whether the claimant is justified in doing so;

(d) the value of the claimant's property and any income derived from such property , or from the claimant's own earnings or from any other sources;

(e) the number of persons entitled to maintenance under this Act

(3) In determining the amount of maintenance, if any, to be awarded to a dependent under this Act, regard shall be had to.-

(a) the net value of the estate of the deceased after providing for the

payment of his debts;

(b) the provision, if any, made under a will of the deceased in respect of the dependant;

(c) the degree of relationship between the two;

(d) the reasonable wants of the dependant;

(e) the past relations between the dependant and the deceased;

(f) the value of the property of the dependant and any income derived

from such property; or from his or her earnings or from any other source;

(g) the number of dependants entitled to maintenance under this Act.

COMMENTS

Quantum of maintenance depends upon a gathering together or all the facts of the situation, the amount of free estate, the past life of the married parties and the families a survey of the conditions and necessities and rights of the members, on a reasonable view of the change of circumstances possibly required in the future, regard being of course to the scale and mode of living to the age, habits, wants and class of life of the parties.

CHAPTER-4

INTERIM MAINTENANCE

AND EXPENSES OF THE PROCEEDINGS

Under the English common law, if a husband deserted his wife or his misconduct drove her away from the matrimonial home, the husband was required to provide reasonable expenses for necessaries according to her husband's degree which included legal advice, including litigation expenses. Under the matrimonial statutes it came to be firmly established that the husband was required to pay for the maintenance of the wife during the pendency of proceedings in matrimonial cause as well as to pay her the expenses of the proceedings. This came to be known as the interim maintenance.

The interim maintenance, is payable from the date of the presentation of the petition and till the dismissal of the suit or passing of the decree. The interim maintenance is intended to be made to meet the immediate needs of the petitioner, but in practice, because of procedural formalities, there is considerable delay before it is actually granted. Under the modem English law, either party to the proceedings may claim for interim maintenance and expenses of the proceedings. It is no longer confined to the wife.

Under the Hindu Marriage Act interim maintenance can be claimed by the wife or husband and it is called “Alimony Pendente Lite.” Under the other statutes, wife alone can claim it.

Section 36, Indian Divorce Act. 1869 runs as under:

In any suit under this Act whether it be instituted by a husband or a wife and whether or not she has obtained an order of protection, the wife may present a petition for alimony pending the suit.

Such petition shall be served on the husband; and the court on being satisfied of the truth of the statement therein contained may make such order on the husband for payment to the wife of alimony pending the suit as may be deemed just:

Provided that alimony pending the suit shall in no case exceed one-fifth of the husband’s average net income for the three years next preceding the date of the order and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be.

The Special Marriage Act, 1954 also provides for “alimony pendente lite” for the wife alone. Section 36 of the Act lays down:

Where in any proceedings under Chapter V or Chapter VI (these chapters deal with the restitution of conjugal rights, judicial separation, nullity of marriage and divorce) it appears to the district court that if the wife has no independent income sufficient for her support and the necessary expenses of the proceedings, it may, on the application of the wife, order the husband to pay to her the expenses of the proceedings such sum as having regard to the husband's income, it may seem to the court be reasonable.

Under the Hindu Marriage Act, either party to marriage may claim interim maintenance. The provisions are substantially the same. Section 24 of the Hindu Marriage Act runs as under:

Where in any proceedings under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or husband, order the respondent to pay to the petitioner the expenses of the proceedings, such sum as, having regard to the petitioner’s own income of the respondent, it may seem to the court to be reasonable.

Basically the provision in all the statutes is the same. Under the Hindu Marriage Act, the Special Marriage Act, “one-fifth rule” has not been enacted, as it has been under the Indian Divorce Act. The criterion and the principle for fixing the amount of interim maintenance and expenses of the proceedings and the situation in which it can be claimed are virtually the same under all the statutes. An order for interim maintenance and expenses of the proceedings may be made in proceeding for nullity, judicial separation, divorce and restitution of conjugal rights.

CLAIMANT HAS NO INDEPENDENT INCOME FOR SUPPORT.-

The basis of the claim of interim maintenance is that the claimant has no independent income to support herself or himself. The emphasis is on independent income. A claimant may have property movable or immovable but if the property doesn’t yield income, she can still claim interim maintenance. But if the property yields income such income will be taken into account in fixing the amount of maintenance. The fact that the wife is educated and capable of earning is no ground for denying her interim maintenance, since “independent income” is not equivalent to potentiality to earn.

The test is whether she has any independent income sufficient for her support and to bear the expenses of the proceedings; if she has no income or her income is insufficient she can claim interim maintenance and expenses of the proceedings. The travelling expenses of the spouse may also be granted as part of the expenses for the proceedings.

QUANTUM OF MAINTENANCE AND EXPENSES OF THE PROCEEDINGS.-

The provision of interim maintenance and expenses of the proceedings in all the Indian Matrimonial statutes except the Indian Divorce Act does not specify the quantum of maintenance and expenses of the proceeding. The court has discretion to fix the amount of maintenance, but it is judicial discretion exercised on certain well established principles. The provision clearly states that the court may award to the applicant such sum every month, until the petition is finally disposed of, as the court in the circumstances of the case considers reasonable.

In fixing quantum of maintenance the court takes into account the income of both the parties, their status and other circumstances. It should be noticed that the amount of maintenance is to be paid monthly during the pendency of the proceedings and the expenses of the proceeding may be paid in lump sum.

CONDUCT OF THE PETITIONER.-

At one time English law was wedded to the doctrine that wife found guilty of adultery or any other matrimonial misconduct was not entitled to alimony pendente lite. But English law no longer follows that doctrine. Under the Indian matrimonial statutes, every matrimonial misconduct is not a basis for the rejection of the spouse's claim for maintenance pendente lite. In Debnam v. Debnam, a case under the Indian Divorce Act, the wife's claim for interim maintenance was opposed by the husband who had petitioned for divorce on the ground of wife's adultery. He asserted that a spouse guilty of matrimonial misconduct could not be given interim maintenance. The court observed that:

“In an application for maintenance pendente lite only consideration was whether applicant had no sufficient means to support herself; no other consideration was relevant.”

CHAPTER-5

PERMANENT ALIMONY AND MAINTENANCE

The provision for permanent alimony and maintenance exists in all the Indian matrimonial statutes and it is substantially the same. Section 37, Indian Divorce Act, dealing with “permanent alimony” runs as under:

The High Court may, if it thinks fit, on any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, and the District judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties.

In every such case, the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part as to the Court seems fit.

Section 38 contains a provision under which the amount of alimony may be paid to the wife or her trustee. The section runs:

In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court expedient so to do.

Section 37 of the Special Marriage Act, 1954 deals with “permanent Alimony and Maintenance” and runs as under:

(I) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary by a charge on the husband’s property such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband's property and other circumstances of the case, it may seem to the court to be just.

(II) If the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (I), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

Section 26, Hindu Marriage Act, 1955 and Section 40 of the Parsi and Divorce Acts, 1935-88 are substantially the same except that under that provision an application for permanent maintenance and alimony can be made by either party, i.e., by husband or wife.

WHEN PERMANENT MAINTENANCE AND ALIMONY MAY BE GRANTED.-

An order for permanent maintenance and alimony may be made:

(a) at the time of the passing of the decree in any matrimonial cause, or

(b) at any time subsequent to the passing of the decree in any matrimonial cause.

Under the Special Marriage Act, Parsi Marriage and Divorce Act, and the Hindu Marriage Act, the court has power to make orders for permanent maintenance and alimony in nullity, divorce, judicial separation or restitution of conjugal rights proceedings. But under the Indian Divorce Act, such orders can be made only when a decree dissolving the marriage or granting judicial separation is passed. But the words “while applicant remains unmarried” give one an impression that orders for permanent alimony cannot be made when a decree for judicial separation is passed. But this impression is caused by the inapt use of these words. The words in Section 37, Indian Divorce Act, viz., an order for permanent alimony may be made on any decree of divorce, etc. appear to lay down that the court has no power to pass any permanent orders for maintenance subsequent to the passing of the decree in a matrimonial cause. All the other three statutes specifically lay down that orders for permanent alimony may be made “at the time of the passing of any decree” or “subsequently thereto.”

Thus, under the Indian Divorce Act, orders for permanent alimony can be made only at the time of the passing of the decree, while under the Parsi Marriage and Divorce Act, the Special. Marriage Act and the Hindu Marriage Act, such orders can be made subsequent to the passing of the decree at any time on the application of the claimant. Once an application is dismissed, another application may be made provided change of circumstances is shown.

CONSIDERATION FOR FIXING THE AMOUNT OF MAINTENANCE

In fixing the amount of permanent maintenance and alimony the court takes into consideration several factors, some of which have been laid down in the statutes and some have been evolved by the courts. Under all the Indian matrimonial statutes the considerations for fixing the amount of maintenance are, more or less, the same. These are:

I. Income and property and ability of claimant, and income and property of the non-claimant.

II. Conduct of parties, and

Ill. Any other circumstance or factor relevant for the purpose.

INCOME, PROPERTY AND ABILITY OF THE NON-CLAIMANT AND INCOME AND PROPERTY OF THE CLAIMANT:-

That one of the consideration for granting permanent maintenance and alimony is the assessment of income and property of both the parties, is well established rule. Thus, the court will take into account not only the income of both the parties but also the property of any type that they have.

In cases where the court is called upon to grant permanent maintenance and alimony, the main question before the court is to get at the truth about the financial position of each party. When a party makes an application for permanent maintenance and alimony, the other party is required to give all details and make full disclosure of his income and properties. There is an obligation on the party to make a full, frank and complete disclosure of all relevant circumstances.

CONDUCT OF THE PARTIES:-

The English courts have abondoned its earlier view that a guilty party is not entitled to maintenance. In Wachtil v. Wachtil, Ormond, J. observed that the notion that a “guilty wife” was virtually disqualified from obtaining an order of maintenance had no support of any modern authority. In this case, the court of appeal considered this provision and observed that this did not mean that the judge was to hear the parties, “mutual recriminations and………go into their petty squabbles for days on end, as he used to do in the old days.” The court further observed that there was no need for “a post mortem to find out what killed”, the marriage, as in most cases, “both parties are to blame……..or both parties have contributed to the breakdown.” Lord Denning said that only when the conduct of a party is “both obvious and gross” that it will be taken into consideration in fixing financial provisions. On this matter Indian courts have expressed divergent views.

OTHER CIRCUMSTANCES:-

This is a residuary consideration. The court is free to consider any consideration and factors which help in arriving at the ‘Just’ or ‘reasonable’ fixation of maintenance. It is submitted that one of the factors that the court will have to consider in all cases will be the financial needs, obligations and responsibilities which each of the parties to the marriage has or, is likely to have in the foreseeable future. This is one of the most difficult questions and the Indian courts have not paid sufficient attention to this matter.

PERIODICAL PAYMENTS, UNSECURED AND SECURED.-

Under all matrimonial statutes, the divorce court while passing order for permanent maintenance and alimony may require the other party¬

(a) to make periodical payments to the applicant, or

(b) to make lump sum payments

The Divorce Court has power to make an order that the other party shall make to the applicant such periodical payments, on such terms, as may be specified in the order. The periodical payments may be monthly or yearly or by installments as the court may specify. Such orders may be unsecured. Under the Parsi Marriage and Divorce Act, and the Hindu Marriage Act, such payments may be secured, if necessary, by a charge on the immovable property of the other party. The Indian Divorce Act and the Special Marriage Act do not provide for secured orders. Where the order is unsecured, it directs the other party to make payment weekly, monthly or annually, and if the other party fails to do so, the applicant may bring execution proceedings against him or her in which case the property of the other party may be attached and sold.

On the other hand, if the periodical payments are secured by making them a charge on the property of the other party, their enforcement becomes easy. Section 38, Indian Divorce Act, 1869, lays down that when a court makes an order for alimony, it may direct the same to be paid either to wife herself, or to any trustee. Under the Parsi Marriage and Divorce Act, such payment may be made to the wife or her guardian. Under both the statutes, the court may impose any terms or restrictions which to the court may appear expedient. This may mean that the husband is required to set aside a fund of capital which will be generally vested in the trustees or guardian, as the case may be, and may be resorted to, if the maintenance payments are not made when these fall due. The same result is achieved when maintenance payments are secured on some property, preferably on immovable property (Hindu Marriage Act talks of immovable property while the Parsi Marriage and Divorce Act talks of movable and immovable property). The property remains that of the husband (or wife, as the case may be) but if he defaults in making payments the secured property is resorted to, and if need be, part or whole of it, may be sold to make good the default. The power of the court extends to any property of the other party whether within or outside the jurisdiction.

The secured payment has two main advantages: (1) some specific property is marked out against which payments can be enforced, whether the husband is present within the jurisdiction or not. On the other hand, enforcement of unsecured payment depends on husband's having sufficient means to pay as well as his being present within the jurisdiction, and (ii) a secured payment may continue for the life-time of the wife-the husband may die but the property remains. But, the court has no power to order unsecured payments beyond the parties’ joint lives.

LUMP SUM PAYMENTS.- The court also has the power to order that maintenance and alimony be paid in lump sum and in cash. Such lump sum or gross sum (as the Indian statutes call it) are paid for her maintenance or support. In England, in practice orders for lump sum payments are usually made in those cases where families are wealthy.

CHAPTER-6

CASE ANALYSIS

CASE NO.1.

Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga,

MATERIAL FACTS:

1. Husband and wife both are married for the second time.

2. Although a divorce petition was filed by wife against his previous husband, decree of divorce was not passed.

3. Wife showed a chhor chithhi, a registered document of dissolution of marriage with previous husband contending that it is in accordance with prevalent custom in Maheshwari Community to present husband at time of second marriage.

4. Allegations of ill treatment meted out to wife by second husband for non-fulfillment of dowry demands.

5. This lead to initiation of proceedings for grant of a decree of judicial separation and maintenance by wife.

6. Counter petition filed by husband seeking declaration of second marriage with wife as nullity on plea that a date of second marriage, wife’s marriage with previous husband had not been dissolved by any court.

7. Family Court allowing petition of wife but High Court reversing finding of Family Court dismissed wife’s petition for decree of judicial separation and allowed husband’s petition declaring second marriage null and void but it maintained the decree granting maintenance to the wife and her daughter.

ISSUE:

1. Whether when a marriage is declared null and void, an order awarding permanent alimony could be made?

ANALYSIS

The Husband in the present case contended that where a marriage is declared to be null and void by grant of a decree, no order awarding permanent alimony or maintenance could be made in favour of the unsuccessful party under Section 25 of the Act. And from the other side the argument was that the marriage itself is not null and void.

The court held that the evidence show that no decree of divorce was obtained by wife from previous husband and that she obtained only a registered document of chhor chithhi from her previous husband. In the present case the respondent also failed to establish that through chhor chithhi divorce can be taken in their community. As a Hindu Marriage can be dissolved only in accordance with provisions of Act by obtaining a decree of divorce from Court, finding of High Court that second marriage of wife was null and void is justified.

Now so far as the husband’s appeal against grant of maintenance under Section 25 of the Act to the wife is concerned, the court granted him leave to appeal confined to the question as to whether the wife is entitled to maintenance after the Court held that the marriage was nullity.

Court relied upon the case of Chand Dhawan v. Jawaharlal Dhawan, and held that: “In interpreting the provision of Section 25 the expression ‘at the passing of passing any decree,’ as has been used in Section 25, includes a decree of nullity of marriage.”

The court dismissed both the appeals and the impugned judgments of the High Court, to the extent of granting decree of declaration of marriage as nullity and granting maintenance to the wife and daughter are maintained. The husband shall pay all the arrears of maintenance to the wife and daughter.

CASE No. 2

Sudhir Jain v. Prema Jain

FACTS:

1. The marriage between the parties was dissolved by a decree of divorce.

2. The court fixed permanent alimony @ Rs. 400/- per month for the wife and two minor children.

3. It was claimed that the husband sometimes remits the maintenance and sometimes not which is causing drastic problems.

4. The wife claimed that she is totally unemployed and the prices of the things are shooting day by day.

5. The trial court enhanced it to Rs.2000/- per month which is being challenged by the husband in the present petition.

ISSUE:

1. Whether the amount of alimony can be raised with the passage of time?

ANALYSIS:

The learned Judge noted that Rs. 600/- as maintenance had been fixed by the High Court with effect from 3.7.1987 and since then the cost of living index has risen. According to him, the rise in the value of property as per the inflation index for the year 1981-82 was Rs. 100/- and for the year 1982-83 it was Rs. 109/-, in the month of July, 1982, the cost of index will lie between or around Rs. 103/- and in the year 1999-2000 it was Rs. 389/-. Considering the same the learned Judge noted that wife would be entitled to maintenance fixed at Rs. 2,400/- per month and, thereafter, taking into consideration that the petitioner has re-married and got two other children to support, thought it fit to fix the maintenance at Rs. 2,000/- per month.

The learned Judge, while adopting the criteria of inflation cost formula, has arrived at a conclusion that the wife is entitled to Rs. 2,000/- per month. The reasoning of the learned Judge in the judgment under challenge appears to be sound as for increase in maintenance the inflation cost formula is good criteria.

The court dismissed the appeal and ordered for the payment of the arrears of maintenance.

CASE No. 3

Alice Baldev Singh v. Baldev Singh,

FACTS:

1. The respondent husband had filed a suit against the petitioner under Section 22 of the Indian Divorce Act for grant of a decree of judicial separation.

2. On the application of the petitioner the court fixed her pendente lite alimony at Rs. 500/- per month.

3. Thereafter she submitted an application for enhancement of her pendente lite alimony on the ground that alimony fixed at Rs. 500/- per month is very low as compared to the monthly salary of Rs. 12,000/- which the respondent is getting.

4. She has requested that her maintenance allowance be increased from Rs. 500/- per month to Rs. 5000/- per month.

ISSUE:

1. Whether the alimony can be increased from what is allowed as per section 36 of the Indian Divorce Act, 1869?

ANALYSIS:

The court said that the pendente lite alimony fixed in a suit may be varied, enhanced, reduced or even suspended during the pendency of the suit or during the period when such order remains in operation, depending upon the change in the factors which are counted for determination of pendente lite alimony. Each and every variation in the income of the husband and wife will not necessitate change in the amount of alimony but if where is significant or substantial change in the facts and circumstances which are reckoned for fixing the rate of alimony change in the rate of interim alimony may become necessary.

Though in modern times the limit of one-fifth of husband’s average net income with mathematical precision on the wife’s pendente lite alimony is difficult to appreciate but so long as this incongruity is not corrected by a legislative action the courts have to fix the rate not more than the maximum amount allowed under section 36.

In the present case at the time of fixation of pendente lite alimony the respondent’s salary was Rs. 7018/- per month and after allowing some deductions the trial court had assessed it to be Rs. 5500/- per month. Conversely, the petitioner alleged that at present the respondent pay and allowances are Rs. 12,000/- per month.

The maximum alimony pendente lite allowed under section 36 of the Act is one-fifth of average income of Rs. 7500/- i.e. Rs. 1500/- per month. Keeping in view the present day cost of living the amount of Rs. 1500/- per month may be grossly inadequate for the maintenance of the wife judged from the cost of living of present day but it is the maximum which she can be allowed in terms of section 36.

CASE No. 4

E.A. Benny v. Raichel Bindu,

FACTS:

1. Husband contends that the marriage between the petitioner and the respondent is null and void on the ground of fraud under Sections 18 and 19 of the Indian Divorce Act, 1869.

2. Wife claimed alimony pendente lite at the rate of Rs. 1,500/- p.m.

3. The claim was opposed by the husband contending that the application is not maintainable under section 36.

4. Learned single Judge did not accept the objection and granted the wife, interim alimony at the rate of Rs. 750/- p.m.

5. Aggrieved by the above the husband has appealed in the High Court.

ISSUES:

1. Whether the petition is maintainable?

2. Whether the amount granted for interim alimony is excessive?

ANALYSIS

1. It is necessary that she should be a wife for the purpose of maintaining a petition under section 36. If a petition under Sections 18 and 19 seeking a decree of nullity of marriage is allowed, the marriage is set at naught from the very beginning and if that be so, the respondent cannot be described as a wife at all.

2. It was contended by the learned counsel for the appellant that the amount of interim alimony granted is excessive.

3. The court didn’t find any merit in both the contentions raised by the appellant.

4. The answer to the first contention raised by the appellant regarding the maintainability of the petition by the respondent under section 36 is available in the provisions of the section itself. Apart from giving the right to the wife to file an application for alimony pendente lite ‘in any suit’ under the Act, the proviso makes it very clear that such an application is maintainable even in a petition filed under Sections 18 and 19.

5. The court did not find any reason in interfering with the order passed by the learned single Judge. According to the section 36 of the Indian Divorce Act, alimony pendente lite should not exceed 1/5th of the husband's average net income. Learned single Judge thus granted Rs. 750/- p.m., taking into consideration certain amount which the husband would have received as production incentive also.

6. The court was in full agreement with the view taken by the learned single Judge therefore, the appeal fails and it stands dismissed.

CASE No. 5

Winfred Dhanraj Samuel v. Betsy Ratnakumari,

FACTS:

1. The plaintiff’s contention is that the respondent's mental condition is idiocy within the meaning of Medical Jurisprudence. Her mental faculties, her behaviour as a child, poor memory and absence of will power, emotions, or initiative of any kind, etc., would go to show that she had always been an idiot both before and during the time of marriage and continued to be so thereafter.

2. He further contends that his consent for the marriage was obtained by the suppression of this material fact.

3. He is therefore entitled to a decree declaring his marriage with respondent as null and void.

4. This court earlier dismissed the petition passed an order.

5. The plaintiff has filed the present case to review the above order.

ISSUE:

1. Whether an order for maintenance can be passed when the application for divorce is rejected?

ANALYSIS:

Petitioner

1. The petitioner/husband contended that the only question that arose for consideration was whether the petitioner was entitled to Divorce as prayed for. There was no issue as to whether the petitioner should take back the respondent.

2. He has further submitted that this Court has erred in granting maintenance to the wife, which according to the learned Senior Counsel is beyond the scope of section 36 and 37 of the, Indian Divorce Act. He further contended that while under section 36 the Court has power to grant maintenance pending suit, under Section 37 it has power to order maintenance only when a decree is made absolute declaring a marriage to be dissolved or a decree of judicial separation obtained by the wife.

3. Thus, the order of this Court directing the petitioner to take back the respondent is not sustainable. Hence, the case has got to be reviewed.

RESPONDENT:

1. The respondent submitted that when the wife has expressed her desire to join her husband, he was not willing to take her back, and has unjustly deserted her and refused to maintain her.

2. He is bound to maintain her and in fact she has claimed maintenance in her written statement filed in this suit.

The conditions precedent to satisfy the requirements of Section 37 of the Indian Divorce Act are two fold :

(i) there must be a decree absolute declaring the marriage to be dissolved and

(ii) a decree of judicial separation obtained by the wife;

Thus, it is seen that the Court has power to grant maintenance pending suit under section 36 of the Indian Divorce Act and has power to order maintenance under Section 37 of the Indian Divorce Act only when a decree is made absolute declaring the marriage to be dissolved, or on any decree of judicial separation obtained by the wife.

Further the court looked into two High Court decisions i.e. Devasahayam v. Devamony, and Ranganathan v. Shyamala.

The court finally said that, permanent alimony and maintenance can only be granted in case divorce is granted and if the marriage between parties subsists. If the petition by the husband as in the instant case fails, then no decree is passed, i.e., the decree is denied to the husband. Alimony, cannot, therefore in my view be granted in a Case where a decree for Divorce is refused.

CHAPTER-7

CONCLUSION AND RECOMMENDATIONS

In many countries alimony, maintenance or spousal support is an obligation established by law that is based on the premise that both spouses have an absolute obligation to support each other during the marriage unless they are legally separated, though in some instances the obligation to support may continue after separation. Once dissolution proceedings commence either party may seek interim or pendente lite support during the course of the litigation.

Where a divorce or dissolution of marriage is granted, either party may ask for permanent maintenance. It is not an absolute right, but may be granted, the amount and terms varying with the circumstances. If one party is already receiving support at the time of the divorce, the previous order is not automatically continued (although this can be requested), as the arguments for support during and after the marriage can be different.

While deciding the amount of alimony and maintenance, generally the following factors are considered:

1. Duration of the marriage.

2. Earning capacity of both parties.

3. Age, as well as physical, mental and emotional state of each party.

4. Other income, including but not limited to interest and dividends.

5. The contribution by one spouse to education and furtherance of career of the other.

6. The contribution of one spouse as a homemaker.

7. How much earning power will be affected by the parenting requirements of the custodial parent.

In addition to the above, the judge may consider any economic circumstances of either party that they (the judge) deem to be just or proper.

The amount of alimony payments should be generally calculated based on the above considerations. As with any other aspect of your divorce, if possible it is always best to negotiate alimony rather than have a judge arbitrarily determine if your situation is one that will include alimony and how much will be awarded.

Further though in modern times the limit of one-fifth of husband’s average net income with mathematical precision on the wife's pendente lite alimony is difficult to appreciate but so long as this incongruity is not corrected by a legislative action the courts have to fix the rate not more than the maximum amount allowed under section 36.

While calculating the average net income of the husband, care should be taken that the husband does not artificially reduce his monthly income by increasing voluntary deductions/expenses so as to deprive the wife of her due share in the income as alimony.