In this article I will cover 8 grounds with Judgments held in the field on the grounds how maintenance can be denied to the wife.
The Five Ground are
- Wife Living separately without sufficient cause.
- Wife living in Adultery
- Professionally qualified wife-Capable of earning
- Separated by mutual consent
- Earning wife
- Woman who contracts Second Marriage
- Woman against whom Decree of Restitution has been passed
- Where divorce was granted against a woman on her fault
Wife Living separately without sufficient cause.
This ground is very simple but needs effective cross examination. In this ground the onus is on the wife to explain why she is living separately with the husband.
In the Judgement of Smt Teja Bai Vs. Chiddu Armo Jabalpur High Court it was observed
High Court observed “It is evident that petitioner applicant No.1 is wife of respondent. Petitioner-applicant No.1 admitted in her cross-examination that respondent does not do any work due to illness, so she left his house and she is living in her paternal home with her child. She is not ready to live with the respondent. So, it is evident that petitioner No.1 is living separately from her husband-respondent, without any sufficient reason. Therefore, the learned trial court appreciates each and every fact in this regard so petitioner-application No.1 is not entitled to get any maintenance from her husband…”
In the Judgement of Anil Jain Vs. Smt Sunita it was observed.
Wife resided with the husband for 12 days and in these 12 days the wife was in constant touch with her brother. She had a mobile phone and in the entire period of stay she never complained to her brother regarding any cruelty. it is not possible that any cruelty was done to her. She left her home as per own will
Wife living in Adultery
Now it is very interesting, the Husband has the onus to prove that the wife living in adultery is not entitled to maintenance.
But the interesting thing about this ground is that it is not applicable to divorce wife.
Mariyumma vs Mohammed Ibrahim on 28 June, 1978
Though there is no requirement of joint residence in the case of a divorced wife with her divorced husband the learned Judges seem to assume that the Idea behind Sub-section (4) of Section 1 ’25 is to promote a process of reconciliation between the divorced spouses. We see no justification to assume so. On the other hand, the question is whether there is an obligation on any of the parties to the divorce to live with the other and whether any one of the parties can insist upon the exercise of right to live with the other even where the other is not willing. We are afraid, the answer can only be negative. Sub-section (4) cannot hence logically apply to the case of a divorced woman.
Professionally qualified wife-Capable of earning
If the wife is capable of earning and is well qualified she is not entitled for maintenance now Three judgments are in this field.
In a recent Judgment by Delhi Session court filed under appeal u/s. 29 of DV act the court ordered wife to find a suitable job and held that maintenance order is valid for 1 year only
Case link Rajan Parmar Vs Mamta Parmar
In Padmja Sharma vs Ratan Lal Sharma on 28 March, 2000
In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentions that she is getting a salary of Rs. 3,100 per month and husband is getting a salary of Rs. 5,850 per month. She is, therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, perhaps in the case of an employee of Reserve Bank of India at a somewhat higher rate. If the approximate salary of the husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. The Family Court has already fixed a sum of Rs.. 250 per month for each of the children under Section 125 of the Code. That amount we need not touch.
In Sri R Ravindra vs Smt N Anitha on 10 April, 2018 it was held
Moreover, considering the fact that the respondent No.1 may have some capacity to earn, the learned Family Court has not imposed the complete, and sole responsibility of having to pay the educational expenses of the child, on the petitioner’s shoulders. In its wisdom, the learned Family Court has directed the petitioner to pay merely 75% of the educational expenses, thereby indicating that 25% of the educational expenses have to be borne by the respondent No.1.
In Dr. E. Shanthi vs Dr. H.K. Vasudev on 22 August, 2005 it was held
Admittedly, petitioner is residing with her parents at Chennai and whose brother is also a doctor. When the petitioner was practicing prior to marriage, when her name continues on the board of the clinic, the Trial Court is justified in rejecting the application of the petitioner. There is no difficulty for the petitioner to work as a Doctor. Even if the petitioner is not working as a doctor in the clinic of her brother, since there are no impediments for her to work along with her brother as a doctor and when she is capable of earning, this Court is of the opinion that the Trial Court is justified in rejecting the application of the petitioner. When the petitioner is capable of earning and having required qualification and that when she was working as a doctor prior to marriage, there cannot be any difficulty for her to continue the same profession. Therefore, Section 24 of the Hindu Marriage Act cannot come to the aid of such persons. Accordingly, this petition has to be rejected.
About Income Affidavit
Separated by mutual consent
Now if there is an agreement that both spouses are living separately and will not claim maintenance then this can be a ground to deny maintenance.
But what about cases in which maintenance is granted after mutual consent divorce
The Judgement of Rohtash Singh vs Smt. Ramendri And Ors on 2 March, 2000
The second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. “Sufficient reasons” have been interpreted differently by the High Courts having regard to the facts of indivisual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125 Cr. P.C. and how far can the plea of desertion be treated to be an effective plea in support of the husband’s refusal to pay her the Maintenance Allowance.
In the Judgement of Chaturbhuj vs Sita Bai on 27 November, 2007
In an illustrative case where the wife was surviving by begging, would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Devi(AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.
Maintenance can be denied on the basis of Preliminary Issue of
- Jurisdiction-If the case is not maintainable due to the fact that wife was not the resident at time of filing of the petition then the Maintenance case can be dismissed at preliminary stage.
- If wife is is earning and capable of maintenance herself. maintenance cannot be granted in such a situation but these facts should be part of records.
Woman who contracts Second Marriage
: This seems logical corollary to the above, a woman who contracts second marriage forfeits her right to maintenance. If the woman contracts for second marriage then the husband from the first marriage can avoid the maintenance of her wife in India. The same can be considered continuous adultery if contracted while in the existence of the first marriage. And if the woman is educated then no alimony to educated wife as she can maintain herself.
Woman against whom Decree of Restitution has been passed
This is corollary to the above, a decree of restitution of conjugal rights is a proof of wife’s withdrawal without a reasonable excuse and would be considered willful refusal to live with the husband. However, courts are divided on the issue whether an ex- parte decree of Restitution of Conjugal Rights is enough. The courts then look at the conduct of the wife in such cases, whether she was served notice, has she challenged the decree or not. Husband’s conduct after passing of decree is also looked at by the courts. If the husband despite getting a decree in his favor, does not allow the wife to reside with him despite her efforts would still have to pay maintenance. The maintenance to wife needs to given.
Where divorce was granted against a woman on her fault
Though a divorced wife is eligible to claim maintenance even where initially she lives apart from her husband without just cause, the guilt or fault of the woman hinges heavy on the quantum of maintenance which is granted by the courts. Under Section 25 of HMA, the conduct of the parties is one of the deciding factors while deciding permanent alimony in the courts. There are numerous decisions by High Courts where a woman was divorced on the grounds of Adultery, Cruelty and Desertion, where courts have either refused or granted minimal maintenance to wife.