Written by Atharva Nikam
Second year student, BA LLB., Maharashtra National Law University, Mumbai.
Source: Law Ratao
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Maintenance is an amount of money, which a husband is obliged to pay to his wife, who is unable to maintain herself, upon separation or after the breakdown of the marriage. The Indian society is governed and administered by a huge number of different personal laws, and each one of them has a provision of maintenance. An observation that could be made here is that seven different legislations are present in today’s society to govern and administer the procedure of maintenance. Like for Hindus, the concept of maintenance is covered by two legislations, Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956. Similarly, for Muslims, it is covered by the Muslim Women (Protection of Rights on Divorce) Act, 1986, for Parsis it is covered by the Parsi Marriage and Divorce Act, 1936 and for Christians, it is covered by the Divorce Act, 1869. Apart from these personal laws, the concept of maintenance is also covered by The Criminal Procedure Code, 1973 and The Special Marriage Act,1954. This implies the importance and significance of maintenance in every family’s well-being.
Notably, there is one thing which is common in the concept of maintenance in all the above-mentioned personal laws. The thing which is mutual is that it is only the husband which is liable to provide maintenance to the wife and never the other way around. Doesn’t this indicate a patriarchal ideology? Most of these legislations were drafted in the previous century, with an assumption that a wife is completely dependent on her husband, and therefore it is the duty of the husband to maintain his wife (even after the marriage is over). Such an assumption cannot be taken into consideration in today’s society. The main contention of the researcher through all these observations and findings is that “The concept of maintenance should undergo a gender-neutral change”. This contention will be discussed widely in the upcoming sections. Besides, if we just take a look into the evolving form of families and the changing structure of societies, it will be evident that this notion would be a necessity in the upcoming future.
The Evident Gender-Biases In The Prevalent Personal Laws
The term ‘maintenance’ is defined under S. 3 clause (b) of The Hindu Adoptions and Maintenance Act, 1956 as follow:
“maintenance” includes― (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage”.
This definition can be termed as one of the most basic definitions of maintenance, which is embedded under the personal laws. But the term ‘maintenance’ has much more ambit than the meaning provided in this definition. Therefore, the term maintenance can be broadly defined as per Indian Criminal Procedure Code, “Maintenance of a person to whom an individual with sufficient needs owes a duty is more than a mere financial support, maintenance as a legal concept is the measure of social justice and an outcome of the natural duty a man owes to maintain his wife, children and parents when they are unable to maintain themselves”. One important component of the definition of the term ‘maintenance’ is the inability of a wife to maintain herself. There is not even a regard as to whether a man can maintain himself or not. It is pretty much assumed that he is a man (traditionally the head of the family) and therefore is always in a position to maintain himself.
There are two types of maintenance, first is the temporary maintenance and the second one is the permanent maintenance. In most of the cases, permanent maintenance is only prevalent.
Let us take into consideration Section 18 of The Hindu Adoptions and Maintenance Act, 1956.
“Maintenance of wife. ―(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time”.
Just from a simple reading of the above-mentioned section, it is crystal clear that a wife has to be maintained by her husband, throughout her life. A husband has to maintain his wife throughout his life even if she has a good source of income and is financially stable. Recently, the High Court of Bombay in the case of “Sanjay Damodar Kale v. Kalyani Sanjay Kale”, held that the wife (Applicant) is entitled to maintenance of Rs 12,000 per month. Now, in this case the wife was financially stable and had a good source of income as she was the owner of Kalyani Beauty Parlour and Training Centre. The first point of the term maintenance states that maintenance includes provision for food, clothing, residence, education and medical attendance and treatment. Being the owner of a training centre and a beauty parlour, she could easily afford all the above-mentioned things. The High Court didn’t pay any heed to this contention of the Respondent’s counsel and consequently awarded a hefty amount of maintenance to the applicant.
Providing maintenance to the wife, even when she is earning a stable income has now become a normal notion of the society.
The Supreme Court in the case of Rohtash Singh v. Ramendri, stated about the condition of a divorced wife. It stated that, “ A woman after divorce becomes a destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her”. The researcher is not implying that a wife who is having a source of income, should not be considered for maintenance.
It is implied that in such cases, the maintenance should be of a temporary nature instead of a permanent one.
It is implied that one should in such cases be granted maintenance of temporary nature rather than a permanent one. This is because the concept of maintenance was brought into existence to achieve social justice, and not to create inequality between the genders. The maintenance should be paid until the wife is financially independent and is able to maintain herself and her children (if any).
The Supreme Court from time and again have administered social justice through their judgments. One such relevant judgment is the case of Rosy Jacob v. Jacob A. Chakramakkal. Though this case is a landmark one in regard to the custody of children, it is also heavily referred to in various cases of maintenance. In this case, the wife (Rosy Jacob) had a school of her own and was also in the possession of some wetlands. On the other hand, the husband was not doing well in his profession and had no land under his possession. Thus, it had to be noted that the wife was in a much better financial position than the husband. Therefore, the Apex Court held that it was unnecessary to pay any maintenance to the wife, as she herself was in a better position to maintain herself.
Why a Gender-Neutral change is the need of the society
The researcher has used the term ‘gender-neutral change’ at various places before. By the usage of this term, the author wants to indicate that the laws and legislations revolving around the concept of maintenance should be gender-neutral. In a simpler terminology it can also be stated as follow: The laws of maintenance should not target any one gender in particular. To understand this contention completely, an analysis of one specific legislation is made. Section 125 of the Code of Criminal Procedure, 1973 This legislation is selected because it applies to everyone irrespective of their religion, and therefore is more comprehensible than any other personal law. Now the question before us is: Whether the S. 125 of CrPC was drafted with an intention to cast a primary duty on male members of the family to maintain their dependents or whether the intention was to cover both the male and female members?
To understand the mentioned contention i.e., laws of maintenance should not target any specific gender, an analysis of Section 125 of The Code for Criminal Procedure, 1973 is done. This section is general in nature, that is to say it applies to everyone irrespective of their religion, thus providing a broader analysis. In order to analyse the mentioned section, intention of the law-makers while drafting this section must be taken into consideration. An argument can be raised by a plain reading of the section that the intention of the law makers was to cast a primary duty over only male members of the family. Now, over the years and by the help of various court pronouncements the scope of this section has tremendously increased. Some of the judgments which clearly imply this are described hereinafter.
The Supreme Court of India in the case of Dr. (Mrs.) Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai And Anr held that a daughter is liable to pay maintenance to her father, even if she is not obliged to pay as per Section 125 of The Code of Criminal Procedure, 1973. In the present case, the appellant (V.M. Arbat) is the daughter of the respondent. who was married. The respondent asked his daughter for a maintenance sum of Rs. 500 per month, to which she declined. The appellant implied that she is not obliged to pay the maintenance sum to her father as per S. 125 of the Cr.P.C, 1973. The main contention of the appellant was that S. 125 (1)(d) mentions the word ‘his’ and therefore by this terminology it can be observed that only a son is liable to maintain his parents and wife and not vice versa.
The Supreme Court of India rejected this contention by stating that the word ‘his’ includes female gender within the male gender as per Section 8 of the Indian Penal Code, 1860 and Section 13 (1) of General Clauses Act.
The apex court further held that, “it is the moral obligation of a son or a daughter to maintain his or her parents. The Indian society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm”.
This rationale was again held in the case of Vasant vs. Govindrao Upasrao Naik. Even, in this case the High Court of Bombay directed a married daughter to maintain her father.
The above-mentioned cases are very important while understanding the issue of gender-neutral change. If these cases are observed through a legal perspective, it will be noted that the primary duty to maintain parents is gender-neutral i.e. Both sons and daughters are entitled to do it. Though Section 125 of the CrPC only mentions the word ‘his’ while maintaining everyone, the Supreme Court through the case of Dr. (Mrs.) Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai And Anr held that the word his is not gender specific. It implies both male and female genders. Both of these cases are relevantly new and the main reason behind including daughters within the concept of maintenance is because of the changing role of women in today’s families and societies.
It is evident from the court’s findings that women are also in a position to maintain a dependant (in above cases a father). So, if a woman can maintain her father then why not her husband remainsdebatable. Though it might seem anti-traditional, but it is the need of the society. Consider a situation in which the husband after the breakdown of marriage is not in a financially stable condition whereas his wife is. Then why cannot under these circumstances, the wife be held liable to maintain her husband is questioned in this new era. These are some of the questions which need to be answered. Now, through the cases discussed in the previous chapter, it can be noted that the section is gender-neutral when it comes to the issue of maintenance of parents but this section is gender biased when it comes to the maintenance of respective spouses. Immense legislative changes are required to make.
 Section 3(b) of The Hindu Adoptions and Maintenance Act, 1956.
 W. Syngkon, Maintenance For Wives and Children: Section 125 of Code of Criminal Procedure, JBM&SSR 4, 4 (2017).
 Section 18 of The Hindu Adoptions and Maintenance Act, 1956.
 Sanjay Damodar Kale v. Kalyani Sanjay Kale 2020 SCC OnLine Bom 694.
 Supra note 1.
 Rohtash Singh v. Ramendri (2000) 3 SCC 180.
 Rosy Jacob v. Jacob A. Chakramakkal 1973 1 SCC 840.
 Dr. (Mrs.) Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai And Anr. 1987 AIR 1100.
 Vasant vs. Govindrao Upasrao Naik, Criminal Revision Application No. 172/2014.
Hindu Marriage Act, 1955
Hindu Adoption And Maintenance Act, 1956
Muslim Woman (Protection Of Rights On Divorce) Act, 1986
Code Of Criminal Procedure, 1973
Special Marriage Act, 1954
Indian Penal Code, 1860
Parsi Marriage And Divorce Act, 1936
List Of Cases:
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
Sanjay Damodar Kale v. Kalyani Sanjay Kale 2020 SCC OnLine Bom 694
Rohtash Singh v. Ramendri (2000) 3 SCC 180.
Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.
Rosy Jacob v. Jacob A. Chakramakkal 1973 1 SCC 840
D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.
Dr. (Mrs.) Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai And Anr. 1987 AIR 1100.
Begum Subanu v. A.M. Abdul Gafoor, (1987) 2 SCC 285.
Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188.
Sabra Shamim v. Maqsood Ansari,(2004) 9 SCC 616.
Danial Latifi v. Union of India, (2001) 7 SCC 740.
Vasant vs. Govindrao Upasrao Naik, Criminal Revision Application No. 172/2014.