A deserving husband of a woman married under the Hindu Marriage Act, 1955 has every right to get maintenance. But no other law of similar kind provides for a husband to get maintenance from his wife.
The term ‘maintenance’ includes a wide range of things for living such as food, clothes, residence and the things necessary for the comfort and status in which the person is expected to live.
Laws that provide maintenance to wife
Every law which provides for maintenance, except the Hindu Marriage Act, speaks about maintenance to the deserving wife alone. The laws which provide for maintenance to wife are:-
The Criminal Procedure Code, 1973 (Chapter IX : Sections 125 to 128)
The Divorce Act, 1869 (Section 36 & 37)
The Special Marriage Act, 1954 (Sections 36 & 37)
The Muslim Women Protection on Divorce Act, 1986 (Section 4)
The Protection of women from Domestic Violence Act, 2005 (Section 20)
\6. The Hindu Adoption and Maintenance Act, 1956 (Section 18)
The only marriage law which upholds mutual obligation of both partners of a marriage - the husband and the wife - in the matter of providing maintenance is the Hindu Marriage Act, 1955 (HMA). The Sections 24 and 25 of the law confer the deserving wife or husband the right to claim maintenance from the other spouse. The claim definitely depends on the means, income and the needs of the party, as the case may be.
Maintenance *pendente lite* & expenses of proceedings
The Section 24 of the HMA provides for maintenance pendent lite and the expenses of the proceeding to the husband or the wife, as the case may be. Under the provision a deserving husband, having no independent income sufficient for his support and the necessary expenses of the proceeding, can obtain maintenance and such expenses from his wife if she has the ability to afford it.
The court can order the respondent such reasonable sum to be paid to the husband after considering his own income and the income of the wife. Such an application should be disposed of within sixty days. A petition for this can be maintained only when a proceeding under the act is pending. When the proceedings are terminated the claim will naturally come to an end. A person having sufficient income and the capability to earn income cannot maintain such an application for interim maintenance.
The grant of maintenance pendent lite is allowed either from the date of original petition or from the date of service of summons on the other party or on the date on which the decision is taken.
In fixing the amount the court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his maintenance.
If the husband claims that he has no independent income for his support, it is for the wife to prove the contrary if what he claims is not true.
Permanent alimony & maintenance
The court under Section 25 of the HMA allows permanent alimony and maintenance, either to the husband or wife in needy cases, to pay such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant having regard to the respondent income and other property. The court can however modify such order at the instance of either party of there is a change in the circumstances. A claim under Section 24 of the HMA does not bar a claim under Section 25 of the HMA, as each one is an independent right.
Agreement cannot prevent granting maintenance
In a mutual consent divorce under 13B of the HMA if the party agrees not to claim alimony/maintenance the court can grant maintenance. An agreement between parties cannot prevent a court to exercise its jurisdiction. The quantum of alimony and maintenance is decided on the facts and circumstances of each case but the amount so fixed should not be excessive or exorbitant in any case. The Section 25 is a substantive provision.
Husband gets only when in earning inability
A husband can get maintenance only when he has dire need for it and he proves his inability to earn. A person incapacitated voluntarily will not get it. A capable person remaining idle cannot claim it.
If a husband is provided maintenance even in the absence of incapacity for him to work, it will promote idleness as held in Nivya V M v Shivaprasad M K/26/2015&cCode=1&appFlag=) [(2017 (2) KLT 803] by the High Court of Kerala, unless husband is able to establish that he is permanently disabled from getting any income he cannot seek maintenance from the wife.
Every Hindu husband is personally bound to maintain some persons like parents, wife, children etc based on the relationship between them and the obligations arising out of it. This obligation is independent of the person possessing any property or income. The obligation of a husband to maintain his wife is arising out of the status of marriage. It is a liability created by the Hindu Law.
The Bombay High Court in Smt Kanchan v Kamalendra ( AIR 1992 Bom 493) held that in the absence of any handicap or impediment to earn, granting such able bodied person equipped with skill would promote idleness.
In Rani Sethi v Sunil Sethi [179 (2011) DLT 414] the Delhi High court on 31 March 2011 held, “The purpose of section 24 of Hindu Marriage Act is to provide support to a spouse who has no independent source of income and is incapable of maintaining himself/herself. It is trite law that the term “support‟ is not to be construed in a narrow manner so as to mean bare subsistence. It means that the other spouse, who has no independent source of income, is provided with such maintenance so as to live in a similar status as was enjoyed by them in their matrimonial home. It is the purpose of section 24 that the wife or the husband who has no sufficient source of income for her or his support or for the expenses of the proceedings must be provided with such reasonable sum that strikes equity between the spouses”.
In Yashpal Singh Thakur v Smt Anjana Rajput ( AIR 2001 MP 67) it was decided that a person who voluntarily incapacitates himself from earning is not entitled to claim maintenance from the other spouse. A respondent, who is not making any money though he is capable of getting private job, cannot claim maintenance from his wife.
In short, it is not a normal practice for a husband applying for maintenance from an employed wife, though he is capable of maintaining himself. The provision of law in the HMA is intended to support only such a husband who is really incapable of maintaining himself. Such a deserving husband alone is eligible to get maintenance for his sustenance from his wife. Therefore a needy Hindu husband of no means to live can claim maintenance for livelihood from his affluent wife.
No such provision, which enables a husband to claim maintenance, is there in any personal law meant for the Christians or Muslims. Keeping the Muslim and Christian husbands outside the purview of maintenance, which is available to Hindu man, due to lack of an enabling provision is discrimination. It is a grave lacuna in law. It needs to be rectified in order to ensure social justice and equality before law.
Therefore the Section 125 of the CrPC should be amended so that husbands of other religions also can claim maintenance from wives with solid source of income.