The onslaught of Covid-19 infections made sure that people remained stuck at home. Families, friends, and strangers, seldom, had to camp together when the country was put under lockdown. So had to, divorced or separated men and women, that were either forced to or chose to live under one roof for the sake of children. Marital disputes take a whole new perspective when ex-spouses or spouses live together under a roof. This difference in mere residential dynamics is sure to cause not-so-mere conflicts especially when it comes to maintenance for wives. Maintenance, a payment that is done to avoid destitution and vagrancy, now needs to be decided for wives who share a roof with their husbands or specifically for those who live under their husbands’ roofs.
Maintenance for wives under The Code of Criminal Procedure
Section 125 of The Code of Criminal Procedure (hereon, Cr.P.C), decrees that a magistrate of First Class may order a man to pay maintenance to his wife, upon neglect or refusal to maintain being proved and defines wife as woman that is divorced by her husband or as a woman that has divorced her husband, living without remarriage.[1] The section is not gender neutral, unlike its religious counterpart, Section 25 of its religious counterpart, which allows a plea for maintenance by either the husband or wife.[2] Supreme Court of India in Chaturbhuj v. Sitabai observed that the object of this section is to give support to those who have a claim on it morally, and cannot support themselves and thus stop vagrancy.[3] It mentioned that the test is whether the wife is able to maintain herself as when she did in her husband’s home.[4] A wife’s earning is never a bar for her from claiming maintenance.[5] The section speaks about conditional maintenance of wife living with the husband but does not speak about circumstances where the divorced pair might be forced to live together.
Essentials of Section 125
Neglect of husband of the divorced wife is an essential that courts consider while deciding applications for maintenance. Since the aim of the section is to avoid destitution and vagrancy, Supreme Court in Shamima Farooqui v. Shahid Khan made important observations about the maintenance amount that is paid with respect to the husband and wife. It observed that when it comes to the wife on the receiving end, that wife should be able to live in dignity with the amount she receives, as she lived in her marital home and that sustenance cannot be equated with mere survival.[6] Despite a woman receiving maintenance, if she is subjected to destitution or to beg for a living, the objective of section is immediately defeated. The wife should be able to live in reasonable comforts, in context of her life in her marital home. But when the wife’s need to live a dignified life is put on a pedestal, there is always a risk the maintenance ordered to pay might in turn render the husband himself, destitute, which is an ideal condition neither for him nor the woman he is paying maintenance too. The Court keeping this in my mind, decreed that the amount can’t be “extortionate or excessive”,[7] that it renders the husband helpless.
Neglect and State of Destitution
Both neglect and destitution are easy to define in a context where the wife moves out and sets on her own post dissolution of her marriage. Destitution would simply mean that she’s extremely impoverished and her husband’s neglect in taking care of her needs after she moved out of his house is what that led to the impoverishment. While the objective of Section 125 is to avoid destitution, it doesn’t necessarily mean that the relief is only provided to those who are in risk of destitution. An application for maintenance is therefore decided by whether the husband has neglected or not, but not by whether she’s close to destitution or no. But a divorced woman living under her husband’s roof might not fit into the same definition at the first look, because the lines this time are drawn differently. There are certain questions that need to be answered before deciding whether the application for maintenance may be allowed or no. Is it neglect if the wife is living in her ex-husband’s home? What would be the parameter of maintenance when the wife is literally living in her marital home and maintenance needs to be fixed in a way that gives her the same comfort as matrimonial home?
Physical Separation of Husband and Wife
A maintenance amount decided on the basis of wife enjoying the same level of living as she did when she resided in her matrimonial home, hints towards physical separation being a very important element when an application for maintenance is being considered. There is an inherent assumption that a wife’s status of living shifts or changes only when she moves out and loses the comfort of her husband’s house. But a woman might face the same problems when she’s sharing her ex- husband’s home. In fact, this change or rather fall in standard of living is more dangerous than physically moving out, the change in living standards of the woman can only be observed only when seen closely. A man might allow his ex-wife to live in his house but can go on to neglect her by refusing her the basic comforts that she enjoyed as his wife. Literacy and income levels of the woman also affect her living standards in this condition, where an illiterate, unemployed woman might still be considered one with a roof over her head, but in reality, she could be brutally ignored by her husband in providing basic need.
Sitaram v. Anita, (2021)
The Delhi High Court while deciding an appeal case, where the petitioner appealed against a Family Court’s order to him to pay maintenance to his wife, who resides in the same house as him, observed that a wife may be deserted while living in the same house.[8] The petition states that physical separation of husband and wife is a pre-requisite to seek maintenance under Section 125 Cr.P.C. The court went on to say that physical separation, unlike neglect and refusal to maintain is not an essential ingredient of Section 125. It quashed the appeal and ordered that the wife is to receive maintenance.
Conclusion
The aforementioned judgement does pave way for a new lens to put on while deciding applications of maintenance by bringing in more women under the scope of Section 125. But the “just exception” mentioned in the judgement poses several problems for deciding what happens between the four walls of house is never an easy process, and if not dealt with extreme caution, it can lead to gross injustice
[1] The Code of Criminal Procedure,1973, §125.
[2] The Hindu Marriage Act, 1955, §25(1).
[3] Chaturbhuj v. Sitabai MANU/SC/8141/2007.
[4] Id.
[5] Chaturbhuj v. Sitabai MANU/SC/8141/2007
[6] Shamima Farooqui v. Shahid Khan MANU/SC/0380/2015.
[7] Id.
[8] Khadija Khan, Is wife living in husband’s house entitled to maintenance? Delhi High Court issues notice in plea. Bar and Bench, (Dec. 19, 2021, 10:20 AM), https://www.barandbench.com/news/litigation/is-wife-living-in-husband-house-entitled-to-maintenance-delhi-high-court-issues-notice.
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