CHAPTER-01
Introduction
One and a half thousand years ago, long before the birth of the doctrine of uses and trusts in English Law, Islamic Law recognized and developed a legal expedient under the name of wakf, which permitted an owner to settle his property for the use of beneficiaries in perpetuity.
The subject of "Wakf" is relative to Entry No. 10 "Trust and trustees" and No. 28 "Charities and charitable institutions, charitable and religious endowments and religious institutions" in the concurrent list attached to the 7th Schedule to the Constitution of India. Supervision over the administration of wakfs is, therefore, the responsibility of both the Central and State Governments.
Article 26 of the Constitution gives freedom to every religious denomination to establish and maintain its religious and charitable institutions subject to public order, morality and health. They are also allowed the right to administer the properties of these institutions in accordance with the law. In other words, the right of administration is left to the institutions themselves. Subject of course, to such regulations as the law might choose to impose. But a law which takes the whole right of administration is null and void. The regulatory laws assume their importance out of the fact that in case of public trusts and endowments, some amount of control or supervision over their administration is necessary in the interest of the public as a whole. Such laws are valid insofar as they do not interfere with the internal matters of the institutions. The State cannot, however, interfere in the establishment or maintenance of religious and charitable institutions" or in the management of religious affairs. The various religious denominations or sects are allowed to manage them in accordance with the tenets of their religions. The only interference possible is on grounds of public order, health and morality.
The doctrine of Wakf which is interwoven with the entire religious life and social economy of Muslims has laid down the foundations of one of the most important institutions of the community. In India alone there are more than a lakh wakfs valued at more than a hundred crore of rupees. An extensive survey of wakf properties throughout the country is nearing completion.
Origin History and Development
The institution of Wakf or the provision of dedication of property, movable or immovable, for religious purposes and for waqf the uplift of the poorer sections of the society have been a distinguishing feature of the socio-economic structure of Islam. Devotion to the way of God or the way of goodness or piety and a strong desire to win Divine approbation have been the root cause of the origin and development of the institution.
The Quran contains no reference to wakf but it abounds in injunctions in the matter of charity,
"And in their wealth the beggar and the outcaste had due share." (Surah 51, Ver. 19)
"They ask thee (O Muhammad) what they shall spend, say; that which ye spend for good (must go) to parents and near kindred and orphans and the needy and wayfarer. And whatever good ye do, to I Allah is Aware of it." (Surah 2, Ver. 215)
Historically, the origin of wakf is traced to the prescriptions of the Prophet. Omar had acquired a piece of land in the canton of Khaibar and proceeded to the Prophet and sought his counsel to make the most pious use of it, whereupon the Prophet declared, "Tie up the property (asl-corpus) and devote the usufruct to human beings that it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred and the poor in the way of God." In accordance with this rule Omar dedicated the property in question as wakf which continued in existence for several centuries until the land became waste.
CHAPTER-02
Wakf- Meaning
The term wakf as defined in clause (1) of Section 3 of the Wakf Act, 1954, means a permanent dedication made by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes a wakf by the user, mashru-ulkhidmat and wakf-alal-aulad to the extent the property is dedicated for any of the purposes mentioned above.
For creation of wakf it is not necessary that the settler should be a Muslim. Any non-Muslim can also create under the Muslim law a wakf provided the object of the wakf is one which is recognised by Muslim Law as pious, religious or charitable and his own religion treats the object in the same manner. The words 'professing Islam' in clause (1) of Section 3 have been purposely retained for otherwise all charitable and many pious endowments of other communities would have come within the purview of the Act because the purposes for which they stand are also regarded as charitable or pious under the Muslim Law.
The Wakf (Amendment) Act, 1964, has amplified this definition by treating all grants made for religious, pious and charitable purposes including mashru-ul-khidmat as wakf and also as permanent dedications made for mosques, dargahs, imambaras, takias, musafirkhanas, etc., by non-Muslims. Under the Muslim Law, these dedications were always wakf but the definition contained in clause (1) Section 3 had excluded them from the purview of the Act. In Kanti v. Mirza Hossani , it has been held that land used for Masjids and for the Muharram festival from time immemorial is wakf and evidence of express dedication is not necessary. When a long period has elapsed since the origin of the alleged wakf, the user can be the only available evidence to show if the property is wakf or not. When there is no evidence to show how and when the alleged wakf was created, the wakf may be established by the evidence of a user.
Moreover, according to the Wakf Act, ‘Wakf’ means the permanent dedication by a person professing Islam". The words “professing Islam" are purposely kept here to exclude charitable and pious endowments of other communities from the purview of the Act. However, Section 60-C of the Act makes a special provision for the creation of Wakf by non-Muslims, provided the object of the wakf does not carry the words of a person professing Islam.
The definition of a beneficiary as given in clause (a) of Section 3 of the Wakf Act, 1954, had unnecessarily restricted its scope. The beneficiary was defined as a person or object for whose benefit a wakf is created and includes religious, pious and charitable objects and any other objects of public utility established for the benefit of the Muslim community. The use of the words “objects of public utility” established for the benefit of the Muslim community' was wholly unnecessary for they are covered by the preceding clause and include religious, pious or charitable objects. The addition of these words had made the definition of ‘beneficiary’ inconsistent with the definition of wakf in clause (1) which incorporated no such restrictions.
In Zain Yar Jung v. Director of Endowments , the Supreme Court held that the objects of public utility which may constitute beneficiaries under the wakf must be objects for the benefit of the Muslim community. There can be no doubt that the wakfs with which the Act deals are trusts which are treated as wakfs under the definition of Section 3 (1) and as such, a trust which does not satisfy the tests prescribed by the said definition would be outside the Act.
The same view was held by Madras High Court when it stated that a ‘wakf,’ created as an object of public utility is excluded from the operation of the Act if it does not benefit the Muslim community exclusively! Though the word ‘exclusively' has not been used in the definition in clause (a) of Section 3 and though this ruling tended to ignore the main clause in the definition and include ‘religious, pious and charitable objects,' there is no doubt that the words 'objects of public utility established for the benefit of Muslim community' were creating difficulty. They blurred the real concept of charity in Islam which makes no distinction between Muslim and non-Muslim among the recipients of charity. Wherever there is an injunction or inducement in the Quran or Hadith on charity, the recipients are stated as the poor, indigent, orphans, travellers, the down-trodden and poor neighbour without making any distinction on the basis of religion, caste or creed. For all these reasons, the Wakf (Amendment) Act, 1964 substituted the words “objects of public utility established for the benefit of Muslim community” with the words “objects of public utility sanctioned by Muslim Law."
CHAPTER-03
Essential Requisites of a Wakf
Under the Muslim law a wakf means dedication by a person embracing the Muslim faith of any property for any purpose recognized by the Muslim law as religious, pious or charitable. The dedication must be permanent and by the owner of the property who by reason of such dedication of the property should divest himself of such property and hand over the possession thereof to the mutawalli.
There is nothing in the Mohammedan law to invalidate a wakf, where the objects of the endowment are clear and certain, simply for the reason that no certain portion of the property or specified amounts of the usufruct have been dedicated to charity or other religious, pious or charitable pur¬pose of a permanent character recognized by the Mohammedan law.
It will appear from the definitions given above that a wakf should possess the following features :
(1) There should be dedication in perpetuity.—Perpetuity is a necessary condition for the validity of a wakf according to all opinions. A wakf is not governed by rules against perpetuity . If a wakf is made and is silent as to whether it is to be in perpetuity a difference of opinions exists as to its validity. According to Abu Hanifa and Muhammad, a wakf is not com¬plete unless the wakif destines the ultimate dedication to objects which are not liable to become extinct. Abu Yusuf maintains that an express mention is not necessary. Thus, if the wakif makes a wakf to Zaid, the wakf is valid, and the property passes to the poor on the death of Zaid. So also, according to him, if a wakf is made for a month or any specified time without further addition, the wakf would be valid and perpetual. But if it is further provided that the wakf would be void after the expiry of the specified time, the wakf would be void according to all. The view of Abu Yusuf seems to have been approved.
The view of Abu Yusuf had not been followed.
(2) The wakf should be immediate.—Except in the case of testamentary wakfs the law insists on a immediate transfer of property and a wakf postponing the coming into effect of the wakf would be void. The wakf must be made to take immediate effect absolutely for ever. A wakf must not toe deferred to any future date.
. (3) It should not be contingent.—A wakf is invalid if it is made contingent on the happening of an event. Thus, if the wakf is made contingent on the death of a person without leaving children it will be void.9 But a direction that the wakf will not come into effect till certain debts of the wakif are paid off or that it was necessary to ascertain the residue whichwas dedicated. or that all the heirs decided to partition the property among themselves, the equivalent in cash of one-third of his property should be reserved for reigious purposes or expended on works acceptable to God will not make the wakf contingent.
Shia law.—Contingent wakfs are invalid under the Shia law also.
(4) It should not be conditional —The appropriation must not be suspended on anything and its real test is to see whether the dedication was complete at once at the time. Thus, if a condition is imposed that if the property is mismanaged, it should be divided among the heirs of the wakif or that the property would be sold for wakifs necessities, the wakf would be invalid. If a right to assume possession and divide the property according to ancestral shares is reserved in a family agreement even though some provisions are made for meeting the expense of a dargah, the wakf would be invalid .
The wakif has got the power to make the reservation of some rights and benefit for himself. If a right is reserved otherwise than as permitted under that section the wakf would be invalid. But where some rights which cannot be reserved are reserved in respect of a part of the dedicated property which is distinct and separable, the wakf as to the rest of the property would be valid.
(5) The wakif should completely divest himself of ownership of the property—There is a difference of opinion between Abu Yusuf and the disciples. According to Abu Hanifa the ownership of the property even after the dedication continues to be with the wakif while according to the disciples the wakif ceases to be an owner. The view of Abu Hanifa has not been accepted. From the time of the dedication, the property ceases to be that of the wakif. He should sever all connection with the property as an owner. It the wakif retains any control or dominion over the property as such the wakf becomes invalid.
It is a question of construction of the deed whether the wakif has wholly divested himself of all property. The fundamental idea is that the ownership of the property vests in God. and is placed in his implied ownership as a juristic person. If the legal and beneficial interest is reserved during the lifetime of the person making the wakf it is invalid.
Shia law.—The wakif must be entirely divested of the property.5
(6) It must be made for objects mentioned in the Act.
(7) There must be a proper subject of wakf.
In the case of wakf made by a Shia Muslim delivery of possession is necessary as laid down in Sec. 186 of the Mulla's Mohammedan Law. 16th Ed. at p. 180. The Privy Council also held in Ali Zamin v. Akbar Ali Khar that under Shia law actual delivery of possession by or by direction of the wakif is a condition precedent to the wakf having validity and effect.
CHAPTER-04
Kinds of Wakf
Broadly speaking wakfs can be of two kinds: Public and private. But the most accepted is its three-fold classification -- public, quasi-public and private.
Public trusts are those which are dedicated to the public at large having no restriction of any kind regarding its use, e. g., bridge, well, road, etc.
Quasi-public wakfs are those, the primary object of which is partly to provide for the benefit of particular individuals or class of individuals which may be the settler's family, and partly to public, so they are partly public and partly private.
Private wakfs are those which provide benefit to private individuals, including the settler's family or relations. Such a wakf is termed as wakf-alal-aulad. The Mutawalli manages the wakf but he cannot alienate the property. He is, however, more than a manager or superintendent, as he does not hang on the pleasure of anybody else or to anybody. Under Muslim Law a private wakf is subject to the same restrictions as any public wakf as the Law makes no distinction between public and private wakfs. Both are subject to the rules of divine property where the rights of the wakf are extinguished and it becomes the property of God. Both the wakfs are created in perpetuity and the properly becomes inalienable. Like public wakfs, a private wakf can under no circumstances fail and when the line of descent becomes extinct, the entire corpus goes to charity.
It may be clarified here that the term ‘private’ is used to connote wakfs for private individuals. It does not include wakfs which are of public nature, such as, a mosque. According to Muslim Law, there is nothing like a "Private Mosque". A person can set apart an apartment for his own prayers, but if he allows others to say their prayers in it, it assumes & public character. The test whether a building is a mosque, it is enough to make it "wakf" provided that public prayers are even once said with the permission of the settler.
According to Abu Yusuf, wakf is the detention of a thing in the implied ownership of Almighty God in such a way that its profits may be applied for the benefit of human beings, and the dedication when once made, is absolute, so that the thing dedicated can neither be sold, nor given or inherited. In India the view of Kazi Abu Yusuf is adopted. In Jewun Dass v. Shah Kubeer-Ooddin, the Privy Council held that after the creation of wakf, the right of the wakif is extinguished and the ownership is transferred to the Almighty. Fatawa-i-Alamgiri declares that “decrees in this country are given according to Abu Yusuf."
In a recent case, Kassimiah Charities v. Secy. Madras State Wakf Board , the meaning of wakf was taken as the detention of the corpus in the ownership of God in such a manner that its profits may be applied for the benefits of His servants. The objects of dedication must be pious or charitable. Hence, the three dominant characteristics of ‘wakf' can be summarized as under:
1. In the first instance, the motive must be religious; a merely secular motive would render the dedication a gift or a trust, but not a wakf.
2. Secondly, it must be of a permanent nature. A pious gift which is not a permanent foundation may be a Sadaqa but cannot, in law, be termed as a wakf.
3. And lastly, the usufruct is to be utilized for the good of mankind.
CHAPTER-05
Creation of Wakf
There is no essential formality or the use of any express phrase or term requisite for the constitution of wakf. The law looks to the intention of the donor alone. Where a dedication is intended, the law will give effect to it in whatever language it may be expressed or in whatever terms the wish may be formulated.
It is not necessary that a wakf should be made in writing. All that is necessary in constituting a wakf is that some sort of declaration, either oral or in writing must be made. Though oral wakf is permitted yet when the terms of a wakf are reduced into writing, no evidence can be given to prove the terms except the document itself or secondary evidence of its contents, when it is admissible.
Where a wakf deed is executed, it must comply with the provisions of the Registration Act. Thus, a wakf deed of immovable property of Rs. 100 or upwards would require registration.
Sometimes, circumstances are also to be considered to ascertain a wakf: the statement and conduct of the wakif and his successors and the method in which the property has been treated are circumstances which though not conclusive are relevant . It was repeatedly held by the Privy Council and the different High Courts of India that for creating a valid wakf, it is not essential to use the word °•wakf'." Neither the use of the word wakf nor express dedication of the property to the ownership of God is essential for the creation of a wakf where the tenor of the document may show that a wakf was intended. Any implied expression is enough for the purpose.
Fatawa Kazi Khan says, “If a man says, this land is mauqoofa' for God in perpetuity', it will create a valid wakf.” And even if there is no mention of ‘perpetuity', it will create a valid wakf, and perpetuity will be presumed.
“And if a man were to say, that this land is dedicated, consecrated, not to be sold, inherited or given by a gift, all these words would create a wakf according to Abu Yusuf," says Radd-ul-Mukhtar. Similar are the observations of Wajiz-ulMuhit.
A wakf can also be created by long user. In a case where there is no evidence to show how and when the alleged wakf was created, the wakf may be established by evidence of the user. Where land had been used from time immemorial for religious purposes, say a mosque, the land becomes wakf, even though there is no evidence of express dedication.
In the case of Imambara it was held by the Oudh High Court that if 'majalises' were celebrated and "Quran Khani' was done and the building had never been used as a residential house, the presumption of dedication will be made. But it would be erroneous to think that the burial of a saint on a particular spot would make it wakf, in spite of the fact that 'Urs' was held there without the proprietor's objections
Other formalities
(a)Declaration
As far as the courts in India are concerned, a declaration of endowment and delivery of possession to the Mutawalli are essentials of a wakf. When the first Mutawalli happens to be wakif himself, a mere declaration is sufficient to constitute a wakf. Where the wakif after creating a bonafide wakf treats the wakf property as his own and commits certain wrongful acts in pursuance of this notion, these acts will only amount to a breach of trust and would not in any way affect the validity of the wakf.
(b) Delivery of possession
According to Abu Yusuf a dedication of wakf is complete by a mere declaration. Neither delivery of possession nor appointment of Mutawalli is essential. The view has been adopted by most of the High Courts in India. Dedication by way of a wakf is completed when the wakif makes a dedication in good faith with a real intention of divesting himself of the ownership of the property which he intends to dedicate:
(1) If he nominates another person as Mutawalli such an intention is ordinarily evidenced by delivery of the wakf property to himself or Mutawalli; the failure to deliver needs at least some explanation : want of such an intention may be inferred if there is no explanation.
(2) The fact that no person is nominated as Mutawalli does not necessarily show a want of such an intention; it may be presumed in proper cases that the wakif himself intended to act as a Mutawalli; but this last presumption may be rebutted by evidence that the wakif did not act as such, and neither himself gave nor requested another to give any effect to his declaration.
(c) Appointment of Mutawalli
In its earlier decision, the Allahabad High Court followed the view of Imam Muhammad: that a wakf is not complete unless:
(1) there is a declaration, coupled with
(2) appointment of Mutawalli ; and
(3) delivery of possession,
Even according to the previous view of the Allahabad High Court, a mere declaration was sufficient where the wakif himself was the Mutawalli. It was not necessary to transfer the property from his name as owner into his name as Mutawalli. The mere delay in transferring possession or getting the name mutated could not have invalidated the wakf.
Under Shia law the possession has to be delivered to the first person in whose favour the wakf has been made. In the case of a public wakf, a Mutawalli must be appainted to the possession.
CHAPTER-06
Case Analysis
Garib Das and Ors. v. Munshi Abdul Hamid and Ors.
Facts
One Tassaduk Hussain was the owner of the disputed house had admittedly executed a deed of wakf on June 21, 1914 in respect of the same for the benefit of a mosque and Madrasa at Nathnagar and had the same registered. In terms of the deed the donor was to remain in possession of the house as Mutawalli and his wife was to be the Mutawalli after his death. The document provided that after the death of both the husband and wife the Mutawalli would be elected by the panchas of the muslim community of Nathnagar and so long as the donor and his wife were living they would maintain themselves from the income of the property and spend the balance left for the mosque and the Madrasa. Tassaduk Hussain executed and registered three deeds on 10th December, 1949 by one of which he purported to cancel a gift deed dated November 4, 1939 executed in favour of some of his relations in respect of the disputed house. By the second document he cancelled another registered deed of gift dated August 2, 1948 executed in favour of another relation of his in respect of the identical property. And by the third document he purported to cancel the deed of wakf of 1914. Thereafter he executed and registered three separate sale deeds on March 27, 1949 one in favour of the appellant Garib Das, a second in favour of Shamlal and a third in favour of Gobind Lal. All these three deeds were in respect of portions of the disputed property. Tassaduk Hussain died in July, 1950.
The suit was filed by the first plaintiff as the elected Mutawalli of the wakf created by Tasaduk Hussain joining with him plaintiffs 2 and 3 as members of the Sadar Nathnagar Masjid Committee. Garib Das, Shyam Lal and Gobind Lal, the alienees from Tasaduk Hussain were impleaded as defendants first party.. The first three defendants were described as tenants in the suit properties. The plaintiffs claimed to set aside the deeds in favour of the said persons on the ground that as a valid wakf had already been created in favour of the mosque and Madrasa and had been acted upon, the deed of cancellation of December 10, 1949 and the sale deeds in favour of the first three defendants could not affect the wakf. A prayer was also made that as the said three defendants who were tenants had repudiated their tenancy they had forfeited the same and they had become trespassers and were liable to eviction as such.
Lower Court Proceedings
The Subordinate Judge who tried the suit found the deed or wakf to be invalid holding, inter alia, that there could be no reservation for the benefit of the donor in the case of an endowment purportedly in favour of a mosque. He also held that the endowment was bad for uncertainty on the ground that the mosque and the Madrasa mentioned in the wakf could not be identified and that Tasaduk Hussain never had any intention to create a wakf.
High Court
The High Court's conclusions were: (1) that Tasaduk Hussain had created the wakf in question in 1914 and he continued to be the mutawalli of the same until his death. (2) the wakf was not a sham or illusory transaction. (3) It was not bad for uncertainty or vagueness. (4) It was not bad or void on account of reservation of some benefit in favour of himself and his wife.
Supreme Court
Appeals Dismissed.
Ratio- The founder of a wakf may constitute himself the first mutawalli and when the founder and the mutawalli are the same person, no transfer of physical possession is necessary. Nor is it necessary that the property should be transferred from the name of the donor as owner into his name as mutawalli. An apparent transaction must be presumed to be real and the onus of proving the contrary is on the person alleging that the wakf was not intended to be acted upon.
Punjab Wakf Board v. Shakur Masih
Facts
The admitted facts are that Najaf Khan was the owner of the properties, namely, houses and shops situated in Jutog. He had executed a will on August 29, 1949 bequeathing all his properties to his son's mother-in-law, namely, Smt. Musamat Kariman. He added a note to the Will on dated 29-9-1949 stating thus:
"After the death of Masomat Kariman, my entire property would become wakf and the income from that would be spent for the maintenance of the Mosque at Jatog. Nobody shall have the right either to mortgage or sell these properties."
The appellant filed the suit for declaration that it is a wakf properly and the respondent has no manner of right whatsoever. All the Courts below have concurrently held that the wakf has not been created by Najaf Khan and, therefore, the will is void and the wakf thereby has not been created. The question is; whether the view taken by the Courts below including the High Court is correct in law?
Supreme Court
Appeal Dismissed.
The hon’ble court relied on Chapter XII of the principles of Mohomedan Law, Nineteenth Edition edited by M. Hidayatullah, former Chief Justice of this Court, it is slated that a wakf means permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. Under Section 174, the dedication must be permanent. Under Section 176, the subject to wakf must belong to the wakif, namely, the property dedicated by way of wakf must belong to the wakif (dedicator) at the time of dedication. Under Section 191, contingent wakf is not valid. It is essential to the validity of a wakf that the appropriation should not be made to depend on a contingency.
Ratio- that bequest creating a wakf contingent upon the life time of a lady is invalid and therefore the contingent wakf is not valid as per Section 191 of the principles of Muslim Law
Other Judicial Precedents
Ahmed Ariff v. CWT
Wakf means "the tying up of property in the ownership of God, the Almighty
and the devotion of the profits for the benefit of human beings".
Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan
The ownership of the wakf property has no jural conception with any exactitude and the corpus is tied down and is made non-alienable. Only the usufruct and the income from the corpus of the wakf property is available for carrying out the objects of the wakf.
Mohammad Sabir Ali v. Tahir Ali
No formal dedication or use of the word "wakf or an express transfer of the corpus of the properties to God is necessary for constituting a wakf, the dedication of properties to purposes recognised by Mohammedan law as religious or charitable may be inferred and that in itself will give rise
to a wakf.
Syed Mohd. Salie Labbai v. Mohd. Hanifa
Following are the essential conditions for creation of a valid wakf dedication for a mosque of public nature.
(i) The founder must declare his intention to dedicate a property for the purpose of a mosque,
(ii) The founder must divest himself completely from the ownership of the property.
(iii) The founder must make some sort of a separate entrance to the mosque which
may be used by the public to enter the mosque.
Allaha Rakhi v. Shah Md. Abdul Rahim
Creation of a valid wakf leads to simultaneously passing of all rights of property out of the wakf and its vesting in God Almighty. The person in the administration of the wakf, whether mutawalli, Sajjadanashin, or mujawar, or known by any other name, is merely a manager of the wakf. He is not a 'trustee' in the technical sense of the term as understood nor is any property belonging to the wakf 'vested' in him.
M. A. Namazie Endowment v. CIT
Where reading the relevant clauses of a deed of wakf, it is held that the wakf was created for the benefit of the wakif s poor relations and, therefore, it is not a wakf created for charitable or reli¬gious purposes eligible for exemption, the enactment of the Wakfs Act, 1954 (29 of 1954) can have no impact on the character of such wakf for the purposes of the Income Tax Act. Even the fact of inclusion of such wakf in the list of wakfs published in the Gazette as per the provisions of that Act would not change the character of such wakf.
CHAPTER-07
Conclusion
Critically examining of this project will clearly highlight certain aspects about the institution of wakf, in the present times. The foremost of these aspects is that wakf is only for religious purpose and is permanent in nature, it cannot be a temporary institute. Also any gain derived out of a wakf has to be use for the benefit of the mankind. Though their hasn’t been a great deal of judicial scrutiny on this topic in the recent times but even in the few cases that have come up the Courts of the country have passed their decisions keeping these aspects in mind.
It can be unhesitatingly said that the enactment of the Wakf Act. 1954, made a landmark in the history of wakf administration in India. By constituting unofficial Boards vested with considerable authority and powers, by imposing a precise obligation upon mutawallis and making their violation a penal offence, by associating the State Governments in the supervisory responsibility and by conferring authority on the Central Government to lay down the policies to be adopted by the Boards, the Act has laid down a sound administrative structure to ensure proper administration of wakfs in the country. Whatever lacunae or weaknesses existed in the Act have been removed by the Wakf (Amendment) Act, 1964 and the Act as amended is a very sound piece of legislation.
Considering their number and resources, wakf can become a strong instrument not only for the preservation of religious and charitable institutions, but also for the educational and economic development of the community. Wakfs constitute a national asset for a very large number of these support schools, colleges, technical institute, libraries, reading-rooms, charitable dispensaries and Musafirkhanas, etc., which benefit the public irrespective of their religion or creed. It is of utmost importance, therefore, that wakfs should be maintained properly and their resources should be utilised for the objects and the purposes of dedications. But unfortunately, many of the existing wakfs have not escaped the process of decadence brought in by the twin impact of neglect and misuse.
On a detail study of the topic the writer of the project would like to highlight the problems faced by the wakf boars which need to be redressed soon. Some of them are-
• Grabbing of wakf properties.
• Matters regarding wakf properties pending in courts for several years.
• Lack of proper supervision of wakf land and properties.
• Need to ensure proper possession of wakf properties.
• Further amendment in wakf Act and legal protection.
• Wakf properties be brought out of the purview of the Rent Control Acts.
• All wakf properties must have boundaries.
• Wakf land be used for the welfare of the people.
• Welfare/Social Welfare and Development institutions or organisations be set up on wakf land.
• Performance of the wakf board be watched constantly
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Sunday, August 29, 2010
Family Law - Maintenance of Wife
Introduction
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance for all dependent persons is limited to Rs 500 per month. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great advantage of making the remedy both speedy and cheap. However, divorced wives who have received money payable under the customary personal law are not entitled to maintenance claims under the Code of Criminal Procedure.
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance for all dependent persons is limited to Rs 500 per month. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great advantage of making the remedy both speedy and cheap. However, divorced wives who have received money payable under the customary personal law are not entitled to maintenance claims under the Code of Criminal Procedure.
Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. justifiable reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the either spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands and provides for matters connected therewith or incidental thereto.
This Act inter alia provides that a divorced Muslim woman shall be entitled to
(a) reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the Muslim Law and
(d) all property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of the husband or his friends. In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat the magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law, and to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of such relatives, and such maintenance shall be payable by such relatives in proportion to the size of their inheritance of her property and at such periods as he may specify in his order.
(a) reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the Muslim Law and
(d) all property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of the husband or his friends. In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat the magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law, and to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of such relatives, and such maintenance shall be payable by such relatives in proportion to the size of their inheritance of her property and at such periods as he may specify in his order.
Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the magistrate shall order parents of such divorced woman to pay maintenance to her. In the absence of such relatives or where such relatives are not in a position to maintain her, the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995 functioning in the area in which the woman resides, to pay such maintenance as determined by him.
The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.
Maintenance under Hindu law:
Maintenance is a right to get necessities which are reasonable from another. it has been held in various cases that maintenance includes not only food, clothes and residence, but also the things necessary for the comfort and status in which the person entitled is reasonably expected to live. Right to maintenance is not a transferable right.
Maintenance is a right to get necessities which are reasonable from another. it has been held in various cases that maintenance includes not only food, clothes and residence, but also the things necessary for the comfort and status in which the person entitled is reasonably expected to live. Right to maintenance is not a transferable right.
Maintenance without divorce
The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to livelihood when one is incapable of sustaining oneself. Hindu law, one of the most ancient systems of law, recognises right of any dependent person including wife, children, aged parents and widowed daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance Act, 1956, provides for this right.
Maintenance as main relief: for wife
The relief of maintenance is considered an ancillary relief and is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation etc. Further, under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial relief has been recognised in Hindu law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act envisages certain situations in which it may become impossible for a wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial tie for various reasons ranging from growing children to social stigma. Thus, in order to realise her claim, the Hindu wife must prove that one of the situations (in legal parlance 'grounds') as stated in the Act, exists.
The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to livelihood when one is incapable of sustaining oneself. Hindu law, one of the most ancient systems of law, recognises right of any dependent person including wife, children, aged parents and widowed daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance Act, 1956, provides for this right.
Maintenance as main relief: for wife
The relief of maintenance is considered an ancillary relief and is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation etc. Further, under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial relief has been recognised in Hindu law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act envisages certain situations in which it may become impossible for a wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial tie for various reasons ranging from growing children to social stigma. Thus, in order to realise her claim, the Hindu wife must prove that one of the situations (in legal parlance 'grounds') as stated in the Act, exists.
Grounds for award of maintenance
Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of the wife, maintenance is granted. These grounds are as follows:
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion;
g. Any other cause justifying her separate living;
Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of the wife, maintenance is granted. These grounds are as follows:
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion;
g. Any other cause justifying her separate living;
Bar to relief
Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she has indulged in adulterous relationship or has converted herself into any other religion thereby ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief, the marriage must be a valid marriage. In other words, if the marriage is illegal then the matrimonial relationship between the husband and wife is non-existent and therefore no right of maintenance accrues to wife. However, thanks to judicial activism, in particular cases the presumption of marriage is given more weightage and the bars to maintenance are removed.
Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she has indulged in adulterous relationship or has converted herself into any other religion thereby ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief, the marriage must be a valid marriage. In other words, if the marriage is illegal then the matrimonial relationship between the husband and wife is non-existent and therefore no right of maintenance accrues to wife. However, thanks to judicial activism, in particular cases the presumption of marriage is given more weightage and the bars to maintenance are removed.
Other dependents who can claim maintenance
Apart from the relationship of husband and wife other relations in which there is economic dependency are also considered to be entitled to maintenance by the Hindu Adoptions and Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from her father-in-law to the extent of the share of her diseased husband in the said property. The minor children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance from their parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim maintenance from their children. The term parent here also includes an issueless stepmother.
Apart from the relationship of husband and wife other relations in which there is economic dependency are also considered to be entitled to maintenance by the Hindu Adoptions and Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from her father-in-law to the extent of the share of her diseased husband in the said property. The minor children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance from their parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim maintenance from their children. The term parent here also includes an issueless stepmother.
Maintenance Under Muslim Law
Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the Act as "the protection of the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands." The Act makes provision for matters connected therewith or incidental thereto. It is apparent that the Act nowhere stipulates that any of the rights available to the Muslim women at the time of the enactment of the Act, has been abrogated, taken away or abridged. The Act lays down under various sections that distinctively lay out the criterion for women to be granted maintenance. Section (a) of the said Act says that divorced woman is entitled to have a reasonable and fair provision and maintenance from her former husband, and the husband must do so within the period of idda and his obligation is not confined to the period of idda.
Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the Act as "the protection of the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands." The Act makes provision for matters connected therewith or incidental thereto. It is apparent that the Act nowhere stipulates that any of the rights available to the Muslim women at the time of the enactment of the Act, has been abrogated, taken away or abridged. The Act lays down under various sections that distinctively lay out the criterion for women to be granted maintenance. Section (a) of the said Act says that divorced woman is entitled to have a reasonable and fair provision and maintenance from her former husband, and the husband must do so within the period of idda and his obligation is not confined to the period of idda.
it further provides that a woman , if not granted maintenance can approach the Wakf board for grant as under section (b)which states that If she fails to get maintenance from her husband, she can claim it from relatives failing which, from the Waqf Board.
An application of divorced wife under Section 3(2) can be disposed of under the provisions of Sections 125 to 128, Cr. P.c. if the parties so desire. There is no provision in the Act which nullifies orders passed under section 125, Cr. P.c. The Act also does not take away any vested right of the Muslim woman.
All obligations of maintenance however end with her remarriage and no claims for maintenance can be entertained afterwards. The Act thus secures to a divorced Muslim woman sufficient means of livelihood so that she is not thrown on the street without a roof over her head and without any means of sustaining herself.
Protection to Divorced WomenSub-section (1) of Section 3 lays down that a divorced Muslim woman is entitled to:
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after the divorce.
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after the divorce.
Maintenance Under Christian Law
A Christian woman can claim maintenance from her spouse through criminal proceeding or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings, simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties does not matter at all, unlike in civil proceedings.
If a divorced Christian wife cannot support her in the post divorce period she need not worry as a remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which is only applicable to those persons who practice the Christianity religion inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance. The provisions of THE INDIAN DIVORCE ACT, 1869 are produced herein covered under part IX -s.36-s.38
A Christian woman can claim maintenance from her spouse through criminal proceeding or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings, simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties does not matter at all, unlike in civil proceedings.
If a divorced Christian wife cannot support her in the post divorce period she need not worry as a remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which is only applicable to those persons who practice the Christianity religion inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance. The provisions of THE INDIAN DIVORCE ACT, 1869 are produced herein covered under part IX -s.36-s.38
IX-Alimony
S.36. Alimony pendente lite. -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.
S.36. Alimony pendente lite. -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 statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem 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.
37. Power to order permanent alimony -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.
Power to order monthly or weekly payments. -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.
38. Court may direct payment of alimony to wife or to her trustee. -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.
Alternatively, as previously mentioned S.125 of Cr.P.C., 1973 is always there in the secular realm
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance for all dependent persons was limited to Rs 500 per month but now it has been increased and the magistrate can exercise his discretion in adjudging a reasonable amount. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great advantage of making the remedy both speedy and cheap
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance for all dependent persons was limited to Rs 500 per month but now it has been increased and the magistrate can exercise his discretion in adjudging a reasonable amount. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great advantage of making the remedy both speedy and cheap
Order For Maintenance Of Wives, Children And Parents
S.125.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
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
S.125.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
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
Explanation. - For the purposes of this Chapter, -
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875(9 of 1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875(9 of 1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is a just ground for so doing.
Explanation .- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(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.
(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. The objective of this section as expressed by Krishna Iyer, J. is ?to ameliorate the economic condition of neglected wives and discarded divorcees?
Proceedings under S.125 are not civil, but criminal proceedings of a summary nature. But these criminal proceedings are of a civil nature. Thus, clause (3) of S.126 which empowers that Court to make such orders may be just.
It should be kept in view that the provision relating to maintenance under any personal law is distinct and separate. There is no conflict between the two provisions. A person may sue for maintenance under s.125 of Cr.P.C. If a person has already obtained maintenance order under his or her personal law, the magistrate while fixing the amount of maintenance may take that into consideration while fixing the quantum of maintenance under the Code. But he cannot be ousted of his jurisdiction. The basis of the relief, under the concerned section is the refusal or neglect to maintain his wife, children, father or mother by a person who has sufficient means to maintain them. The criterion is not whether a person is actually having means, but if he is capable of earning he will be considered to have sufficient means. The burden of proof is on him to show that he has no sufficient means to maintain and to provide maintenance.
Maintenance Under Parsi Law:
Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter at all unlike the civil proceedings.
Maintenance Under Parsi Law:
Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter at all unlike the civil proceedings.
If the Husband refuses to pay maintenance ,wife can inform the court that the Husband is refusing to pay maintenance even after the order of the court. The court can then sentence the Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so long as he does not pay. The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste
and unmarried.
and unmarried.
S.40. Permanent alimony and maintenance
(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the defendant?s own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the defendant.
(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the defendant?s own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the defendant.
(2) The Court if it is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.
(3) The Court if it is satisfied that the partly in whose favour, an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just.
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.
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