Issue 52 Vol III, November 30, 2007

L A W  &  J U S T I C E

Separated Wife’s Right to husband’s house standard
Joginder Singh Toor

THE Supreme Court of India in a recent judgment has granted to a separated wife, even if she is having her own income, maintenance to enable her to attain the same standard of living that she enjoyed in her husband’s house before separation. “Where the personal income of the wife is insufficient, she can claim maintenance so as to maintain herself in the way she was used to in the place of her husband”.

This is an interpretation on the provisions of Section 125 of the Cr.P.C. which earlier provided a maintenance to a deserted wife to the maximum amount of Rs.100/- per month which later on was enhanced to Rs.500/- and thereafter deleting the amount, the discretion was left to the court to ascertain the amount which the courts usually determined as minimum required for keeping the body and soul together of the 1/3rd of the income of the husband. The Supreme Court  has now raised it to the standard of living which the deserted wife used to enjoy in the husband’s house.

Hindu law makes liberal provisions for maintenance on a larger number of persons than any other system including in its benevolence an ill-legitimate son (even the result of casual intercourse) and concubine which provisions after the codification of Hindu law in 1956 have been restricted to maintenance of wife whether married before or after the commencement of the act from her husband and after his death from the father-in-law to the extent of the property the father-in-law possesses as joint Hindu family property or takes from the son. An ill- legitimate son mentioned in the Act generally means an off-spring of a void marriage. But the Mysore High Court has made no distinction between the case of an off-spring of an adulterous intercourse and ill- legitimate son even by an unmarried woman so for as right to maintenance is concerned. The Madras High Court made no distinction between a legitimate or ill-legitimate child born of a concubine of other religion. The child of a Hindu born of any mother irrespective of any religion married or unmarried, result of adulterous or casual intercourse is entitled to maintenance.

Ancient scriptures of Hindu law provide an undisputed right of maintenance to a wife and in forcible obligation on the husband. “A mother, a father, a wife and a son shall not be forsaken; he who forsakes either of them unless guilty of deadly sin shall pay 600 panams to the king says Manu. In Narada’s view “A husband who abandons an affectionate wife, or her who speaks not harshly, who is sensible, constant and fruitful shall be brought to his duty by the King with a severe chastisement.” According to Vishnu “the man who deserts a faultless wife, shall suffer the same punishment.” And finally Yajnavalkya espouses “he who forsakes a wife, though obedient to his command, diligent in household engagements, mother of an excellent son and speaking kindly, shall be compelled to pay the 3rd part of his wealth or if poor, to provide a maintenance for that wife.” The provisions of the codified Hindu Law after 1956, do not adhere to the conditions laid by Manu, Vishnu, Narada or Yajnavalkya except that it is an obligation of the husband to maintain the wife even after separation and the recent judgment of the Supreme Court, not adhering to the 1/3rd of the wealth or bare maintenance, proceeds to grant maintenance as may be adequate to maintain the standard of life the wife was enjoying in her husband’s house before separation.

In Shahbano’s case the Supreme Court of India held that the provision of Section 125 Cr.P.C apply to Mohammedan wives also and they are also entitled to maintenance after separation and even to the extent to continue receiving the maintenance till remarriage. The judgment was initially welcomed by all including the Muslim women but a strong resentment by Muslim community against the judgment terming it against the provisions of the Muslim Law demanded Shahbano’s case to be annulled by legislation as a result of which Muslim Women (Protection of Rights on Divorce) Act,1986 was passed. It enabled a divorce wife to claim maintenance during the period of “iddat” defined as a period of three menstrual courses after the date of divorce or 3 lunar months if not subjected to menstruation or till birth of child if enceinte (pregnant). She can also claim an amount equal to sum of ‘mahar’ or ‘dower’ agreed to be paid at the time of marriage as one time payment. Her maintenance after divorce is the responsibility of her relatives entitled to inherit her property. Husband is liable to provide maintenance to children up to the age of two years where wife chooses to keep the children with her. The parties can by joint declaration chose to be governed by provisions of Section 125 to 128 of Cr.P.C. In the absence of which the divorced wife shall not be able to get any benefit of the judgment of the Supreme Court. However, it enhances the rights of Hindu woman to maintain standard of life at the cost of her defaulting husband, which she enjoyed in her husband’s house.

[The author is a senior lawyer based at Chandigarh, jogindersingh_toor@yahoo.com]

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