CAN HUSBAND CLAIM MAINTENANCE IN INDIA?

Introduction

Almost everyone in today’s contemporary world has grown up listening to some wife claiming maintenance from her husband. But in a country like India which is based on equality before the law and where no one is to be discriminated against each other based on gender, caste, religion, etc., we have hardly come across a situation where a husband has claimed for maintenance. However, there are some instances when the judiciary has put away the conservative notion which says only husbands should provide for maintenance and women should stay back at home. In this article, we will try to understand laws relating to the maintenance of a husband.

Maintenance Laws in India

The word “maintenance” has been used in a very diverse sense by different religions. In simple norms, it means the act of providing basic necessities and support of life such as food, shelter, money, clothing, education, and medical expenses. It is the liability of a husband to a wife to maintain her either during the marriage or upon the breakdown of the marriage. The wife is entitled to claim maintenance under the provisions of the “Code of Criminal Procedure (CrPC), 1973” or under the personal laws. In the case of CrPC there need not be any matrimonial litigation, however, to claim maintenance under personal laws there must have been proceedings under the said Act. The following listed are prevalent statutory provisions under the different laws regarding maintenance:

 Personal Laws

  • For Hindus – Hindu Marriage Act, 1956; Hindu Adoptions and Maintenance Act(HAMA), 1956;
  • Parsi Marriage and Divorce Act, 1936 for Parsis;
  • Indian Divorce Act for Christian; Dissolution of Muslim Marriages Act, 1939 and
  • the Muslim Women (Protection of Rights on Divorce) Act, 1986 for Muslims.
  • Special Marriage Act for marriages registered under the Act.

If we examine the maintenance provisions under the above personal laws we would come to know that husbands can claim maintenance under only sections “24 & 25 of the Hindu Marriage Act” and “section 39 of the Parsi marriage and divorce Act”

Sections 24 and 25 of the Hindu Marriage Act

Section 24 (Maintenance pendente and expenses of proceedings) states that if the court is of the view that either of the spouses, has no or significantly less income, or has no independent income enough for her or his maintenance, then the court may request the respondent to compensate to the petitioner the necessary expenses of the proceeding[1]

Thus, an eligible husband who does not have sufficient income to cover his maintenance and the costs of the procedure may make a claim against his wife for those costs if she is competent to furnish so. However, if the husband has adequate income, then he will not be qualified to claim maintenance under this section. The burden of proof lies upon the husband in cases where the husband is the claimant.

In the case of Lalit Mohan v. Tripta Devi[2], the wife was working in a big corporation and had an adequate fund, whereas the husband had experienced a brain injury and was unable to make enough money to support himself. The court held that wife was bound to pay the husband under sections 24 and 25 of the HMA.

Section 25 (Permanent alimony and maintenance), under this section the court if found reasonable can allow either the husband or wife to claim permanent alimony or maintenance. The amount shall be either, in the form of monthly or periodical payment or in the form of a gross sum.[3]

The Bombay High court, in a recent judgment of Bhagyashri v. Jagdish[4], has allowed the husband to take maintenance from the wife under “section 24 and section 25” of the HMA. The fact of the case is that the petitioner and respondent filed a suit for a divorce. Upon divorce, the husband-respondent filed a petition seeking alimony from the wife arguing that he has no source of income while the wife is well educated and a teacher. He also mentioned how he remains a homemaker to support her.

Parsi marriage and divorce Act, 1936 also provides similar provisions for maintenance, maintenance pendent lite (section 39), and permanent alimony (section 40).[5] Before the Fifth Amendment act, only the wife was entitled to maintenance. After the amendment now even the husbands can claim maintenance at par with the Hindu Marriage Act.

Other than personal laws

Other than personal laws Code of Criminal Procedure(CrPC) and the Protection of Women from Domestic Violence Act, 2005 also contain provisions of maintenance irrespective of the religion of the parties in India. However, in India, only wives, minors, unmarried daughters, and aged parents can claim maintenance under 125 of CrPC and not a husband. [6]

As we have discussed above different provisions of laws, indicate that only Hindu and Parsi husbands can claim maintenance as per their personal laws. A question here might arise as to what about non-Hindu or non-Parsi husbands? Are they entitled to claim maintenance? The answer is No. 

Conclusion

Indian laws are still silent about the matter about husband’s right to claim maintenance. In every law, the wife is entitled to claim maintenance from her husband, if she is not earning enough to live a standard life. This is not the same with husbands. Even if they are entitled to get, like under HMA and Parsi Law, then there are strict conditions applied. And laws such as section 125 of CrPC are deemed to be gender-biased by many people. In a contemporary era, where women and men both are working and earning a handsome sum of money, and when husbands are keener on being a homemaker than working. There is a demand for gender-neutral laws relating to maintenance in India, where husbands and wives irrespective of their religion can claim for maintenance.

Author(s) Name: Nikita Sinha (Hidaytullah National Law University, Raipur)

References:

[1] §24 of Hindu Marriage Act, 1956.

[2] Lalit Mohan v. Tripta Devi [1988] AIR 7 (J&K).

[3] §25 of Hindu Marriage Act, 1956.

[4] Bhagyashri v. Jagdish [2022] AIR 116 (Bombay HC).

[5] §39 & §40 of Parsi marriage and divorce Act, 1936.

[6] §125 of Code of Criminal Procedure(CrPC).

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