Introduction:
This article is mainly based on the financial support that is been given to wives after divorce or some other matrimonial reasons In modern Hindu society, wives are still economically dependent on their husbands and infact wives have the right to get all essential necessities from her husband for which now all the laws are available to provide them this justice. Under Hindu Adoption and Maintenance Article 18 talks about whether maintenance will be given to an unchaste hindu wife or not. Hindu Undivided family gave rise to status of right of maintenance. The head of the family who is known as ‘karta’ is bound to maintain his family. Husband is also bound to maintain his wife after marriage in all the conditions even after divorce but certain situations are there where he is not bound to maintain. Maintenance can be claimed under two sections that is Section 125 of the Code of Criminal procedure and Section 18 of Hindu Adoption and Maintenance Act, 1956.
DEFINITION OF MAINTENANCE:
According to Hindu Adoption and Maintenance act, the person who is entitled to get maintenance is wife, child, aged parents, widow and on the other hand according to Muslim Law, the person who is entitled to claim maintenance is wife, young children, aged parents and also some any other person from prohibited degrees who is eligible to get maintenance from any person of the family or husband.
There are mainly 4 provisions that have been made till now in relation to maintenance that is provisions under the code of criminal procedure 1973, provisions under The Hindu Adoption and Maintenance Act 1956, provisions under The Hindu Marriage Act 1955, provisions under Protection of Women from Domestic Violence Act.
Basically, maintenance has been defined under Section 3(b) of Hindu Adoption and Maintenance Act which includes :
In all cases, provisions for food, clothing, residence, education and medical attendance and treatment.
In the case of an unmarried daughter also the reasonable expenses of and incident to her marriage;
But now the question arises that although this fact is clear that an Hindu wife is entitled to claim maintenance from her husband after divorce or nullity of marriage but is unchaste Hindu wife also entitled to claim maintenance?
The answer to this question is further explained below :
SECTION 18 OF HINDU ADOPTION AND MAINTENANCE ACT :
Basically answer this question lies here that an unchaste hindu wife cannot claim maintenance. An unchaste hindu wife has no right to claim separate residence and maintenance. The term “unchaste” means relating to or engaging in any sexual activity, especially of an illicit or extramarital affair. Section 18(3) states that
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. A hindu wife is disqualified from claiming maintenance from her husband if she is unchaste the legislature could not have intended by Section 25 of the Hindu Marriage Act to benefit such a person. The main reason behind maintenance is just to see that if any of the single spouse is not independent financially and is not having any earning hand than the other spouse has to help him or her in order to make the living of that person possible.
TYPES OF MAINTENANCE :
There are basically 2 types of maintenance mentioned under law that is Interim maintenance and Permanent maintenance which are discussed as below :-
INTERIM MAINTENANCE – This maintenance is basically started to be paid from the date when the petition is filed to the date of dismissal of suit. It is the amount which is paid to meet all the necessities of the person who is financially independent to the person who is financially dependent and includes all the expenses during the course of the proceeding.
PERMANENT MAINTENANCE – This maintenance is basically paid by one party to another party after all the judicial proceedings that is the result is either dissolution of marriage or judicial separation.
SECTION 125 CrPC :
Section 125 of CrPC 1973 gives the provision to wife, child and parents for maintenance. If a person is having sufficient amount of money and means to maintain his wife but still refuses to maintain his wife who is unable to maintain herself than on this part wife can file a petition and after that can claim maintenance from her husband under this section. In this section mainly justice is provided to the person who is feeling any type of unjustice. A magistrate may upon the proof order monthly allowance for maintenance of the wife.
CASE- Shamima Farooqui vs Shahid Khan, Under this case it covers the provision of a right of a wife professing Islam or any religion. Thus, this provision is secular. Whereas unchaste wife or wife from a void marriage is not at all in any case entitled to claim any remedy or maintenance as decided in Krishna Gopal vs Usha Rani.
FAMOUS CASE LAWS :
Kaithakulangra Kunhikannan vs Nellatham Veettil Malu - In this case, petition was filed by husband under section 10 of hindu marriage act against his wife that respondent 1 has committed adultery or sexual intercourse with respondent 2 impleaded in the petition. Judicial separation was granted by the judge stating that the respondent is being guilty of adultery and along with this husband was also asked to compensate wife and pay maintenance Rs. 25 per mensem under section 25 of Hindu Marriage Act. “It has been held that in the case of an unchaste wife whose marriage has been dissolved on the ground of her living in adultery bare maintenance allowance or starving allowance alone was permissible.
Manohari vs Ramchandra - The facts of this case was that wife filed complaint against her husband that she had been turned out by her husband who had married again. She therefore claimed maintenance but her husband that is Ramchandra said that his wife had already became unchaste and left him alone about 5 years ago and also admitted that he had married only after when his wife refused to come back. His case mainly was that his wife should not be allowed maintenance on the ground of unchastity. Then, when this case came into light :
The trail court came to conclusion that unchastity had not been proved and therefore was granted Rs 10 per month as maintenance. Then again an appeal was filed by Ramchandra and the High Court came to the conclusion that unchastity had been proved and therefore on this basis dismissed the suit in toto.
Gomaji vs. Smt. Yashoda - In this case, the petitioner is the Husband and the Respondent is the wife. The husband in this case filed case against the wife under Section 13 of The Hindu Marriage Act 1955, under which he was seeking divorce or under Section 10 for judicial separation from his wife. And the respondent filed an application under Section 125 of code of criminal procedure claiming maintenance after divorce. As while allowing maintenance to his wife two main things which were kept in consideration were that whether that wife is financially dependent person and secondly what is the background of the person who will be paying maintenance to the other party. That is assets, liabilities and income were been checked of husband in order to set amount for maintenance.
CONCLUSION :
So, at the end its stated that an unchaste Hindu wife can not claim maintenance from her husband on any of the grounds. Under section 18 sub clause 3 of the Hindu Adoption And Maintenance Act. One more important thing to be noted is that the case to ask for maintenance or to claim maintenance will be filed under Hindu Marriage Act 1955 or Hindu Adoption and Maintenance act , but most of the times the punishment for any of the cruelty been performed will be covered under code of criminal procedure or Indian Penal Code as hindu acts does not contain any of the single punishment part.
Refrences:
- Bare act of Hindu Adoption and Maintenance act , Bare act of code of criminal procedure.
- https://www.legalservice.com
- https://www.indiankanoon.com ( Various case laws for section 18 )
- https://wwwlegalsarcasm.com ( Burden of proof and various provisions)
- https://blog.ipleaders.in
- https://www.scconline.com ( Maintenance of wife )
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