In recent divorce cases, courts, deviating from the norm, have been denying maintenance to the wife if she is capable of earning or was earning in the past. There are also cases of the wife being asked to pay maintenance to the husband.
The husband paying maintenance to the wife is the textbook model for divorce proceedings. However, in a recently developed trend, the courts have been denying maintenance to the wife if she is capable of earning or was earning in the past. There have also been cases where the court, instead of going the conventional way, has told the wife to pay maintenance to the husband. Even the wives, in a hurry to end the marriage as soon as possible, are opting for out-of-court settlements and paying the husbands a permanent alimony.
Maintenance Plea by the wife rejected
In a recent judgement, a trial court in Delhi denied the plea of a woman seeking maintenance from her husband. It was reported that the trial court dismissed the woman's plea seeking residential maintenance from her estranged husband, and observed that no financial assistance can be provided to a woman if she earns as much as her husband. Anuradha Shukla Bharadwaj, additional sessions judge, observed, "In the era of gender equality, bias cannot be shown to one gender and discretionary relief of financial assistance cannot be granted to wives despite their capability to earn as much as their husbands."
The court, reportedly, said that rental maintenance would have been awarded to the wife had she proved that she was incapable of arranging an accommodation for herself. However, in this case, she was living with her mother.
Although uncommon, it is not the first time that a court has denied maintenance to the wife. There have been several cases where the court has supported the husband and denied the wife's plea for maintenance. Advocate Samama Suhail shares a similar case, "The husband was an NRI from the UK and the wife was working with a multinational bank here in Delhi, and she was drawing a salary of `60,000-70,000. They had a troubled marriage so the wife filed for divorce. She asked for maintenance under Section 125 of the Code of Criminal Procedure, 1973, from her husband, stating that he was quite rich. However, her plea for maintenance was rejected and the court ruled that since she was earning well, she didn't need her husband's money to survive, despite the fact that he was quite well-off."
According to advocate Osama Suhail, "A trend has developed recently wherein the court is denying maintenance to the wife if she has capability, capacity and past employment." Citing a case, he says, "There was a case in which the wife was a dentist by profession and used to be employed. However, at the time of divorce, she wasn't working and asked for maintenance from her husband. But the court denied her maintenance because, in this case, she had the capability and capacity, and was working in the past. So, she could work again to support herself."
Family resource cake
According to advocate Prabhjit Jauhar, it is not necessary that either of the party has to pay maintenance to the other in divorce cases. Says Jauhar, "In 2004, Justice Vikramjeet Sen of the Delhi High Court (as he then was) worked out a formula involving a 'family resource cake' in order to provide maintenance to even working wives. Justice Sen, in the said judgment, combined the income of both the spouses, calling it the 'family resource cake.' Half of the 'cake' was allocated to the husband to meet his expenses, and the other half to the wife and children, for their maintenance. This method has been widely followed by other courts in Delhi when awarding maintenance to either spouse."
Maintenance in favour of the husband
Although in most cases, the wife is awarded maintenance to enjoy the same lifestyle as that of the husband, there are also instances where the reverse happens. Not only is the wife refused maintenance, in many cases, she is also asked to pay maintenance to the husband. Advocate Osama Suhail recalls a four-year-old case in Delhi where the court granted maintenance to the husband. He shares, "In this case, the Karkardooma Court granted maintenance in favour of the husband, who was suffering from a mental disorder, while the wife had a government job. The wife earned about `20,000, and the husband was granted a maintenance of `2,000." He adds, "I have seen many applications in which the husband has asked for maintenance but has been dismissed by courts, despite the fact that he was entitled to it, as the court followed the principle that the husband is supposed to be the breadwinner of the family. Although Section 24 of the Hindu Marriage Act (HMA) is written in a very gender neutral manner, its interpretation is broadly in favour of women, and thereby discriminatory."
There was another case in which a court passed a judgment supporting the plea of a husband who, under Section 24 of the HMA, wanted maintenance from his wife. The trial court directed the wife to pay the husband `20,000 per month as maintenance, `10,000 as litigation expenses and also to provide a car for him. This judgment was later challenged in the High Court by the wife, but the HC also supported the judgment of the trial court. The wife was running a paying guest facility while the husband was unemployed.
Wives pay out-of-court settlement
Advocate Shilpi Jain says she has seen only two cases in her twenty-five-year career where the husband got the 'permanent alimony' in an out-of-court settlement. She says, "In both the cases, the wife was in a hurry to move out of the marriage. She agreed to the amount demanded by the husband so that he could have no future claim on her. In one of the cases, which is still being considered for mutual consent, the wife and the husband are trying for an out-of-court settlement. They both have dual citizenship and were in the US. They came to India a few months back. As the wife is earning more, she is ready to pay `60-70 lakh as permanent alimony in an out-of-court settlement. The husband, however, wants more and they are still trying to reach a consensus. The wife has returned to the US and is in a hurry to end the marriage. According to the husband, she is in a relationship and wants to get rid of him and move on in life."
In another case, a well-to-do woman who wanted to opt out of her marriage gave away her property and some cash to the husband, to get 'rid' of him. This was also an out-of-court settlement. Jain recalls, "In both the cases, the women were in a hurry to get out of the relationship. They were rich and ready to pay the husbands to end the marriage as soon as possible. In this case, which was about four years ago, the woman gave the man her house, which was worth `1.25 crore at that time, along with some cash."
The law which allows the husband to seek maintenance from his wife
According to advocate Prabhjit Jauhar, husbands can only seek maintenance under Section 24 of the Hindu Marriage Act. "Section 24 of the Hindu Marriage Act, 1955, provides that the court, in case of either the wife or the husband having no independent income sufficient for her or his support, may, on the application of either of the spouses, order to pay to the petitioner the expenses of the proceedings and monthly expenses during the proceedings such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. So, under this section, even the husband can file an application claiming maintenance pendent elite in the pending divorce case. But the only pre-requisite is that he should not have sufficient income to maintain and support self in consonance with the lifestyle and income of the wife. Assuming the wife is earning much more than the husband, the husband only in that eventuality shall have the locus to file for maintenance."
