GENDER NEUTRALITY OF MAINTENANCE LAWS

INTRODUCTION

Maintenance has been legally provided by the legislations with certain conditions to be fulfilled. The majority of laws that provide for maintenance for the dependents- mention that it’s the husband who shall be responsible for paying the amount of maintenance to them[1]. Various judgments and academicians have time and again lead this notion forward that it’s the ‘duty’ of husbands to take care of the basic amenities of their wives, children, and parents[2].

If we talk about legislations for matrimonial matters in India, Muslim women can claim Mahr at the time of divorce under the Muslim Women (Protection of Rights on Divorce) Act[3] and Shariat is another Muslim personal law that talks about maintenance under its scope[4]. Hindu Marriage Act and Hindu Adoption and Maintenance Act are Hindu personal laws that also provide provisions for maintenance[5]. Apart from personal laws, The Special Marriage Act[6] also provides for the same, and the Code of Criminal Procedure provides for the maintenance of wives, children, and parents of a person[7]. Protection of Women from Domestic Violence Act also provides monetary relief in case of loss in earnings, medical expenses, and other conditions mentioned therein[8].

It’s only under Hindu Marriage Act where the responsibility can be brought against either husband or wife for maintaining the other. So can the wife be made liable for maintenance when she’s working and the husband is unemployed? Do the qualifications of women help the case in favor of the husband? Can matrimonial laws be gender-neutral? Under this write-up, these questions would be answered and what stance does judiciary has taken.

UNEMPLOYMENT AS AN EXCUSE

In the case of Sunil v. Nimnish[9], the court has observed that just because the father is unemployed or earns a meager income doesn’t give him an excuse for not maintaining his wife or child. The court decided in favor of the wife observing that the father has the means but is unwilling to provide for the child. In another case[10], the husband was willingly unemployed and was living on his wife’s earnings. The court while deciding the maintenance claim noted that just because the person is unwilling to do the work which he’s able to do, it will not make him entitled to the maintenance from his spouse. Looking at the case laws above, it’s clear that if it’s proved that the husband is willingly or intentionally not working, despite having the capacity to do so, the courts will decide the case against the husband.

WORKING WOMEN

The Supreme Court has taken up the stance that those women who are earning but are still unable to maintain themselves wouldn’t be kept in a helpless situation. In the Sita Bai[11] case, the court had decided in favor of the respondent (wife), when it was claimed and proved that the respondent was earning for herself. Here the court observed that if the wife is ‘unable to maintain’ herself, she doesn’t have to prove that she’s living in complete destitution. It’ll be enough to show that she can’t support herself with whatever she’s earning, to get maintenance under Cr.P.C. In the Kamla Devi[12] case, the court observed that to award maintenance under Cr.P.C., the earnings of the wife also need to be considered, and accordingly, it needs to be decided whether it’s enough to sustain her and if not, the differential shall be paid by maintenance.

These cases show that the courts have taken a middle ground when it comes to providing an allowance to the working wives. While they can’t be completely disallowed to claim for maintenance if they are working, it also needs to be seen that the provision is not used to provide for those who have enough on their plates.

QUALIFICATION OF WOMEN

We’ve seen that with regards to the unemployment of husbands if they are qualified and not working willingly, the court has considered it as an excuse and ordered them to maintain their spouses. Let’s see whether the same stance is taken by the court for qualified women. In Firdos Mohd. Shoeb Khan[13] case, the family court had straight away decided that qualified women sitting idle at home can’t expect to claim maintenance from their husbands. The court took the clear stance that in today’s age, the maintenance provision of Cr.P.C. can’t be misused and hence those who are capable to support themselves shouldn’t be the ones to reap from this law.

In another case[14], the court has decided in favor of the husband while deciding the petition under the Hindu Marriage Act. The court observed that under this scenario where the person is highly qualified but not able to get the job, enough evidence shall be provided to prove the same. In the cases mentioned above, the courts have tried to take a ‘progressive’ stand, observing that ‘inability to maintain’ should not be read on par with ‘incapability to maintain’.

 MAINTENANCE TO HUSBANDS

The court in the Tripta Devi[15] case, ordered the working wife to pay maintenance to her dependent husband who proved that he suffered a neurological disorder that makes him incapable to work. The court stated that maintenance provisions of the Hindu Marriage Act apply to both the spouses and the one who can support the other would have to pay for the same. In another case of Jagdish Jaiswal[16], the court had decided maintenance in favor of the husband where he was the homemaker and the wife used to work. The Delhi High Court in another case[17] ordered that the husband is eligible to get maintenance from his wife who was running a successful and profitable business by owning a hostel.

CAN THE PROVISIONS OF MAINTENANCE BE MADE GENDER-NEUTRAL?

In the case laws mentioned above, most of the courts have tried to take an equitable ground for providing maintenance to the spouse who is unable to maintain herself/himself. While it becomes easy under the Hindu Marriage Act, to provide the same for the needful one, other provisions in other laws do not give such broad understanding in terms of maintenance. Though in Firdos Mohd. Shoeb Khan case, the court did take into consideration the qualification of the wife for the determination of the maintenance claimed by her, under these kinds of provisions it becomes difficult for the court to apply a gender-neutral stance because these provisions specifically mention maintenance to the wives/women.

Now coming to the point of whether these laws should be made gender-neutral. There are other aspects such as ‘equal pay for equal work’ which haven’t come into practicality yet so qualifications won’t provide women with similar pay like that to men. In the Jagdish Jaiswal case, the husband while contending for the maintenance also claimed that he didn’t follow his ambitions because he encouraged his wife to obtain the degree and thus manage the household[18]. When contentions like these are made to obtain maintenance, it becomes important to note that many women as well have done the same, but the difference is that the household chores are seen as their “duties”. We saw the cases above where the courts have stated that if the wife is qualified to maintain herself then her idleness won’t make her claim for maintenance by her husband. In these cases, contention like in the Jaiswal case is not mentioned, but this is the story of various women who have stopped working to take care of the household and children and thus making ‘the qualification of women’ as precedent for claiming maintenance cannot be a fair standard of determining.

So it may seem that we have gone far enough now to implement gender-neutral laws concerning maintenance but social realities haven’t changed much. Gender-neutral laws can become reality if the social outlook toward women changes.

CONCLUSION

We studied how courts have taken views under different circumstances concerning maintenance and how an equitable approach is taken in cases where wives are in stable financial positions or even if they are qualified. Similarly, willingly unemployed husbands cannot leach on the earnings of their spouses. So the perfect balance can be seen between equity and equality in most of the case laws. Though there’s also a case decided by the lower court in which an extreme view is taken that, if the wife has qualifications she can’t claim the maintenance. It’s not an unknown fact that it’s never easy to go back to work if a longer duration has been spent as a homemaker. Not forgetting the pay gap between the genders for the same work which also puts women in a prejudiced position.

So when social structure is such that it inherently puts one gender in a position that is unfair for them, it becomes important to not bear the gender-neutrality flag when the genders are in inequitable positions. For the maintenance laws to be gender-neutral, both the genders would need to be kept at par in sociological and economic spheres.

Author(s) Name: Eva Chauhan (Maharashtra National Law University, Mumbai)

References:

[1]. Code of Criminal Procedure 1973, s 125 (Cr.P.C.); The Special Marriage Act 1954, s 37; The Muslim Women (Protection of Rights on Divorce) Act 1986, s 3 (Muslim Women Protection Act)

[2]. Sunil v Nimnish (2014), SCC OnLine Kar 10347

[3]. Muslim Women Protection Act (n 1)

[4]. Dr. Kahkashan Danyal, Muslim Law of Marriage Dower, Divorce and Maintenance (1st edn, Regal Publications 2015) 612

[5]. The Hindu Marriage Act 1955, s 25; The Hindu Adoptions and Maintenance Act 1956, s 18

[6]. The Special Marriage Act 1954, s 37

[7]. Cr.P.C (n 1)

[8]. The Protection of Women from Domestic Violence Act 2005, s 20

[9]. Sunil (n 2)

[10]. Smt. Kanchan v Kamalendra (1992), 94 BOMLR 418

[11]. Chaturbhuj v Sitabai (2008), 2 SCC 316

[12]. Bhagwan Dutt v Kamla Devi (1975), AIR 83

[13]. Firdos Mohd. Shoeb Khan v Mohd.Shoeb Mohd.Salim Khan (2013), petition no.e­ 119

[14]. Mamta Jaiswal v Rajesh Jaiswal (2003), 3 MPLJ 100

[15]. Lalit Mohan v Tripta Devi (1990), AIR J K 7

[16]. Bhagyashri Jagdish Jaiswal v Jagdish Sajjanlala Jaiswal (2022), 3 AIR Bom R 288

[17]. Rani Sethi v Sunil Sethi (2011), 179 DLT 414

[18]. Jagdish Jaiswal (n 16)

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