Issue 42 Vol II, June 30, 2007

L A W  &  J U S T I C E

Preserving Human Life through Financial Support
Joginder Singh Toor

IS maintaining parents, children and spouse a duty? When it becomes an obligation short of duty, which must be performed, depends on circumstances and the law of that country. In each country the concept differs.

In Canada it is a duty. In India it is an obligation. A duty must be performed. Non-performance in Canada has penal and civil consequences. In India it is only civil obligation giving rights to the dependants to have it paid through court. Both have good and bad points, preservation of human life is the duty of the state; the performance of which can be discharged by enacting a law and implementing it with full force. As such Canadian Criminal Code contains chapter providing preservation of human life.

“Everyone is under a legal duty”, “as a parent, a foster parent, guardian or head of family”, “to provide necessaries of life to a child under 16 years of age to a spouse or common law partner”.

It goes to the extent of obliging a person to provide all necessities of life to any person under his charge if that person because of detention, age, illness, mental disorder or other physical difficulty is unable to withdraw himself from the charge and is unable to maintain himself.

This duty is absolute as it attracts penal action if the person failing to perform that duty is unable to prove, the burden of which lies upon him, that there was a lawful excuse for non performance failing which he can be punished for committing a indictable offence punishable for 5 years of imprisonment.

Besides this the Family Law Act- separately contains provisions regarding maintenance of children, spouse and parents giving civil rights short of punishment under criminal law.

Maintenance of parents and spouse is however conditioned as compared to that of children under the Family Law Act 1986 (Ontario).  “Every child who is not a minor has an obligation under Section 32 to provide support in accordance with the need, for his or her parent”.  The condition is, “who has cared for or provided for the child’ and second to “the extent that the child is capable of doing so”.

The express implication is that the parent who has not cared for the child and has not supported him/her is not entitled to be supported by the children.  The second one is that the children should be able to support.  In contrast the parents are liable to support the children without any prior condition.  It is their moral and legal duty, entailing civil as well as criminal consequences, subject, however. to lawful excuses provided under the law.

The spouse in contrast gets maintenance on separation under a separation agreement or in the discretion of the diverse court, keeping in view certain factors mentioned in the Divorce Act.  During continuance of marriage each spouse is to provide financial support to the other, that being his or her legal duty.

Besides financial support, the wife is entitled to “Compensatory Support” a concept unknown to the Indian and many other societies. A wife can claim compensatory support for the financial loss, suffered by her, because she stayed home to care the child and thus lost working income and/or career advancement. This can be up to 50% of the loss, the wife being equally liable to compensate.

In India, the liability to maintain, whom and to what extent is provided in Section 125 of the Code of Criminal Procedure, not providing the failure to maintain, as an offence, as in Canada. It provides that everybody is bound to maintain his children, wife and parents, who are unable to maintain themselves. Additionally, providing that divorced wife is entitled to continue receiving maintenance till she re-marries. Earlier the amount to be provided was mentioned as Rupees 100 per month, which with the passage of time, since 1908, became ridiculously low. It was enhanced in 1974 to 500, which too became a token maintenance.  Now it is as per standard and need of the family proportionate to the income.

The non-payment of maintenance amount provided under the orders of the court does not depend on the incapacity or unemployment of the respondent.  It has to be paid; failing which the person liable is detained in jail, till he pays the amount of maintenance.

A great controversy ensued in consequence of Supreme Court of India’s judgment in Shah Bano’s case.  The Supreme Court upheld the right of divorced Shah Bano to receive maintenance from her husband till re-marriage, as Section 125 of the criminal code applied to Muslim women also.  Protest from Muslim men throughout India led to a new legislation entitling Muslim women to receive the amount settled at the time of marriage “Mehar” to be paid by the husband immediately after divorce and not the maintenance till re-marriage.  The Hindu Maintenance and Adoptions Act 1956 provides a right to every child, wife and other adults including parents not capable of maintaining themselves to be supported by parents, husband, children as the case may be according to the standard and income of the family.

The maintenance does not confer any right in the property but entitles he claimant to claim a charge to be created on it.  Any person, buying the property with the knowledge that it is burdened with the charge of maintenance shall be obliged to pay the maintenance.  The liability shifts over to the person purchasing.

There are obvious conflicts/ variations of the laws of each country depending upon their social and religious considerations, influenced lately by economic factors, traveling with global change.  Each country needs studying the laws of other countries and find scope of improvements in existing legal infra structure.

[The writer is a senior lawyer and commentator on public affairs and is currently in Toronto, Canada phone 416-558-1777 Jogindersigh_toor@yahoo.com]

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