Maintenance
to husband: Permissible, even after divorce
The Matrimonial Disputes are increasing by the day and various
legislations enacted in this regard are increasingly being put to use by the
aggrieved party. The legislation is intended to alleviate the
predicament of women with the underlying intention to save marriage and
matrimonial relationship, but at the same time this also prescribe aid and
subsistence to aggrieved spouse irrespective of gender. Undoubtedly, women are generally
in receiving ends. In several instances, however, converse is also true and
legislation and courts of law could not have been oblivious to the situation. The
Hindu Marriage Act (HMA) 1955, The Hindu Adoption and Maintenance Act (HAMA),
The Hindu Succession Act (HSA) 1956, the Domestic Violence Act
(DVA) 2005, provisions in Indian Penal Code (IPC), Criminal Procedure Code (Cr.P.C)
and amendments in the Acts are carved out to give fillip to the objective. Also,
these Acts are amended periodically, with a view to provide further teeth to
the object sought to be achieved by the legislation.
However, the present write up shall remain confined to the issue
of Maintenance. The emphasis shall be on The Hindu Marriage Act and
corresponding provisions qua maintenance thereunder. The relevant sections
being Sections 24 and 25 of Hindu Marriage Act 1955. The issue is whether the
maintenance can be granted to a spouse after
decree of divorce and more particularly, whether the husband is entitled to maintenance from the wife. Though,
there has been some ambiguity, though courts have strived to settle the
issues. The Hon'ble Bombay high court
have dealt with the issue and that is of some significance.
FACTS
NEEDING DELIBERATION
In Bhagyashri Vs. Jagdish & Anr.
WRIT PETITION NO.2527 OF 2021, the HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT
AURANGABAD in on 26th February,
2022 had the occasion to delve in and interpret the aspect of maintenance to a
husband and that too after divorce.
To put in perspective, the
petitioner-wife was aggrieved by the order passed by the 2nd Joint
Civil Judge, Senior Division, Nanded, dated 08/08/2017 and also by the order
dated 06/12/2019 passed in the very same proceedings. The husband was granted
interim maintenance. The wife pleaded that the order granting maintenance to
husband, even after decree of divorce is not sustainable as the relationship
between the husband and wife is already extinguished by a decree of divorce on
the wife filing a petition under Section 13 of the Hindu Marriage Act, 1955
(for short, “the Act of 1955”) seeking dissolution of marriage on the ground of
cruelty and desertion.The marriage between the parties came to be dissolved on
17/01/2015 by the 2nd Joint Civil Judge, Senior Division, Nanded and
decree of divorce was drawn accordingly.
After passing of the decree of
divorce, the respondent husband had filed Hindu Marriage Petition No.46 of 2015
claiming for grant of permanent alimony
from the petitioner-wife at the rate of Rs. 15,000/- per month. This
application was filed under Section 25 of the Hindu Marriage Act 1955, and
pleaded that since the marriage being dissolved by a decree of divorce, the application
is filed, as the respondent-husband is not having any source of income and the
petitioner-wife, on the contrary had acquired the educational qualification of
M.A, B.Ed. and, on completion of education, is serving at a College at Hadgaon.
It is specifically pleaded that in order to encourage the wife to obtain the
degree, the husband had to manage the household affairs, keeping aside his own
ambition. The wife was also taking tuition classes, prior to her employment and
was earning income for the family. The respondent-husband claimed that he was
working with the father of the petitioner-wife with the aid and assistance of
her parents, he would contribute some amount for the well being of the family. It
was also pleaded that he suffered humiliation and harassment in the marital
relationship as the petitioner-wife, with a mala
fide and dishonest intention, filed petition for divorce, which was
decreed. It is specifically pleaded that the respondent is neither doing any
job, nor does he possess any moveable or immoveable property or has any
independent income. He was not keeping good health either and unable to secure
any job for earning his livelihood. As against this, wife earns a salary of Rs.30,000/-
per month and also possesses valuable household articles and immoveable
properties.
The respondent-husband claimed maintenance
of Rs.15,000/- per month from the wife, from the date of filing of the
petition. The prayer in the said petition reads as under:
“1.
That the respondent may be directed to pay permanent alimony / maintenance to
the petitioner at the rate of Rs. 15,000/- per month from the date of filing of
this Petition.
The
charge of maintenance to be created on the salary of respondent.
In the said Marriage Petition
itself, an application was filed by the respondent-husband under Section 24 of
the 1955 Act, claiming maintenance pendente lite, and interim maintenance, till
disposal of the main proceedings filed by the respondent-husband under Section
25 of the 1955 Act, claiming permanent alimony / maintenance, is sought.
WIFE’s CONTENTIONS:
The claim of the husband was
strongly opposed by the petitioner-wife, by submitting that the husband is
running a grocery shop and he also owns an auto rickshaw and earns income by
leasing out the same. It was denied that the husband is dependent upon the wife
and it is specifically pleaded that there is a daughter born out of the
wed-lock, who is dependent on the wife and, therefore, the claim of maintenance
by the husband is prayed to be rejected, with costs of Rs.10,000/-.
The application filed claiming
interim maintenance, is allowed by the 2nd Joint Civil Judge, Nanded, on
08/08/2017 by the following order:
“The
respondent is hereby directed to pay Rs.3,000/- per month (Rs. Three Thousand
only) to the applicant towards maintenance pendent lite from the date of
application till disposal of the petition.”
While passing the above order,
the learned Judge records that, since the proceedings filed under Section 25 of
the Act of 1955 are pending, the application under Section 24 is maintainable
and by relying upon the facts and figures presented and by recording that whether
the applicant-husband is entitled for claiming permanent alimony from the
respondent-wife, will be decided on merits during trial, the application
claiming interim maintenance, came to be granted.
Another order was passed in
pursuance to earlier order passed by the learned Judge on 08/08/2017 forward,
in the wake of the request of the respondent that a warrant for recovery of
arrears may be issued against the petitioner-wife and the amounts due and
payable, be deducted from her salary and deposited before the court. The
application was granted on 06/12/2019, with the following order:
“1)
Issue letter to the Headmaster of the institution at Hadgaon, Dist. Nanded to
deduct Rs.5,000/- from monthly salary of respondent and send said amount to
this court per month till further orders towards recovery of arrears of
maintenance pendent lite.”
The plea of petitioner that since
the marriage between the petitioner and the respondent is dissolved by a decree
of divorce, the proceedings for permanent alimony and maintenance under Section
25 of the Act of 1955, shall not be maintainable. If the wife is to pay maintenance
to husband, after dissolution of marriage by a decree of divorce, this would
amount to travesty of justice. Once the relationship between the husband and
wife is severed by a decree of divorce, there cannot be any claim made by
anyone of them against each other.
Per contra, the respondent/husband’s
plea revolved around the provision contained in Section 25 of the Act of 1955 and
it was submitted that it does not depend upon the outcome of the relationship
subsequent to divorce, since the section use the word “at any time subsequent
thereto” and therefore, there can be no embargo on the applicant as the husband,
after dissolution of marriage cannot be denied, the benefit flowing from
Section 25 of the Act of 1955.
FINDING OF BOMBAY
HIGH COURT
At the outset the provisions of Section 24 and 25
and its recitation were analysed:
Section
24:
Maintenance pendentelite and expenses of
proceedings. – “Where in any proceeding under
this Act it appears to the court that either the wife or the husband, as the
case may be, has no independent income sufficient for her or his support and
the necessary expenses of the proceeding, it may, on the application of the
wife or the husband, order the respondent to pay to the petitioner the expenses
of the proceeding, and monthly during the proceeding 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: [Provided that the application for the payment of
the expenses of the proceeding and such monthly sum during the proceeding,
shall, as far as possible, be disposed of within sixty days from the date of
service of notice on the wife or the husband, as the case may be.”
It was held that mere reading of
the aforesaid, it is clear that the application can be filed under Section 24
of the Act of 1955, in the pending proceedings under the Act and it may cover
proceedings under Section 25 of the Act of 1955 for permanent alimony and
maintenance.
Section 25 of the Hindu Marriage
Act 1955 reads thus:
Section
25.
Permanent
alimony and maintenance.-
(1)
Any court exercising jurisdiction under this Act may, at the time of passing
any decree or at any time subsequent thereto, on application made to it for the
purpose by either the wife or the husband, as the case may be, order that the
respondent shall pay to the applicant for her or his maintenance and support
such gross sum or such monthly or periodical sum for a term not exceeding the
life of the applicant as, having regard to the respondent's own income and
other property, if any, the income and other property of the applicant the
conduct of the parties and other circumstances of the case, it may seem to the
court to be just, and any such payment may be secured, if necessary, by a
charge on the immovable property of the respondent.
(2)
If the court is satisfied that there is a change in the circumstances of either
party at any time after it has made an order under subsection (1), it may at
the instance of either party, vary, modify or rescind any such order in such
manner as the court may deem just. (3) If the court is satisfied that the party
in whose favour an order has been made under this section has re-married or, if
such party is the wife, that she has not remained chaste, or, if such party is
the husband, that he has had sexual intercourse with any woman outside wedlock,
[it may at the instance of the other party vary, modify or rescind any such
order in such manner as the court may deem just].” 14. A conjoint reading of
both the provisions, would reveal that both the sections in the Act of 1955 are
enabling provisions and confer a right on the indigent spouse to claim
maintenance either pendente lite or in the nature of permanent alimony and
maintenance.
The Bombay High Court has held
that it is thus explicit from the foregoing that the words applied in Section
25 of the Act of 1955 permit any court exercising jurisdiction under this Act,
i.e. under Sections 9 to 13, at the time of passing any decree or at any time
subsequent thereto, on an application made to it, by either of the spouse pay
to the applicant for her/his maintenance, either gross sum or monthly or
periodical sums for not exceeding the life of the applicant, having regard to
the income and the other property, etc. The term used “at any time subsequent thereto” cannot be made redundant, by
giving constricted meaning to the words “wife or husband”, applied in Section
25 of the Act of 1955 and this can be said so, in the wake of sub-sections (2)
and (3) of Section 25, which empower the court to vary, modify or rescind the
amount of permanent alimony and maintenance as awarded under sub-section (1)
and, on existence of the circumstances set out in sub-section (3), order
granting permanent alimony and maintenance can be varied and modified or
rescinded as the court may deem just and proper. Sub-sections (2) and (3) of
Section 25 are thus indicative of the fact that if at the time of decree, an
application is made or at any subsequent time of the passing of the decree, an
application is made, claiming maintenance by either of the spouse, the court is
empowered to grant the claim, which is just and proper and the payment can be
secured if necessary, by creating charge on the immoveable property of the
respondent. If sub-section (1) cannot be given a restrictive meaning, as if
that is so, the words used “at any time
subsequent thereto” would become redundant, which cannot be the intention
of the legislature. The legislature does not use the words in vacuum and when it specifically permits
the exercise of power of granting permanent alimony and maintenance on the
court exercising jurisdiction under the Act, at the time of passing of the
order or at any time subsequent thereto,
then, it is open for the court to grant such maintenance at the time of passing
the decree or even subsequent to the decree being passed. The provision cannot
be read to constrict it, if the relationship between the husband and the wife
is severed and as per respondent, on divorce, they no longer remain husband and
wife. Section 25 is not only restricted to a decree of divorce, but the decree
can also be for restitution of conjugal rights under Section 9 of Hindu
Marriage Act 1955, the decree can also be for judicial separation under Section
10 of the said Act or the decree can also be for divorce under Section 13 of the
Act or the decree can also be for a divorce by mutual consent under Section 13 B
of the Act. In the contingency, other than the one covered by a decree of
divorce, the parties are still husband and wife, when a decree for restitution
of conjugal rights or judicial separation is passed. The scope of Section 25,
therefore, cannot be restricted by holding that on divorce / dissolution of
marriage, the wife or the husband cannot bring such proceedings.
It was further held that the
provision of maintenance / permanent alimony being a beneficial provision for
the indigent spouse, the said section can be invoked by either of the spouse,
where a decree of any kind governed by Sections 9 to 13 has been passed and
marriage tie is broken, disrupted or adversely affected by such decree of the
court. It was held that the scope of Section 25 of the Act of 1955 cannot be
constricted by not making it applicable to a decree of divorce being passed
between the husband and wife.
JUDICIAL PRECEDENTS:
The Hon’ble Apex Court in case of
Chand Dhawan v. Jawaharlal Dhawan , 1
(1993) 3 SCC 406 took note of divergent opinions, in respect of the words
applied in Section 25- “at the time of passing any decree or at any time
subsequent thereto” and recorded as under:
“6.
Right from its inception, at the unamended stage, the words "at the time
of passing any decree or any time subsequent thereto" posed difficulty.
The majority of the High Courts in the country 1 (1993) 3 SCC 406 took the view
that those words indicated that an order for permanent alimony or maintenance
in favour of the wife or the husband could only be made when a decree is passed
granting any substantive relief and not where the main petition itself is
dismissed or withdrawn. It was also gathered that if no request for alimony was
made at the time of passing the decree the same relief could be sought
subsequently on an application. The relief of permanent alimony was deduced to
be ancillary or incidental to the substantive relief, and it was given to the
party to whom such relief was due. The expression "any decree" was
viewed to have been used having regard to the various kinds of decrees such as
decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of
Marriage, and Divorce, which could be passed either on context or consent.”
After
referring to the various decisions from the High Courts, interpreting the
aforesaid terminology, the Apex Court has observed as under:
“23. On the other hand, under
the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is
durated (sic) on the pendency of a litigation of the kind envisaged under
Sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent
maintenance or alimony is based on the supposition that either her marital
status has been strained or affected by passing a decree for restitution of
conjugal rights or judicial separation in favour or against her, or her
marriage stands dissolved by a decree of nullity or divorce, with or without
her consent. Thus when her marital status is to be affected or disrupted the
court does so by passing a decree for or against her. On or at the time of the
happening of that event, the court being seisin of the matter, invokes its
ancillary or incidental power to grant permanent alimony. Not only that, the
court retains the jurisdiction at subsequent stages to fulfill this incidental
or ancillary obligation when moved by an application on that behalf by a party
entitled to relief. The court further retains the power to change" or
alter the order in view of the changed circumstances. Thus the whole exercise
is within the gambit of a diseased or a broken marriage. And in order to avoid
conflict of perceptions the legislature while codifying the Hindu Marriage Act
preserved the right of permanent maintenance in favour of the husband or the
wife, as the case may be, dependent on the court passing a decree of the kind
as envisaged under Sections 9 to 14 of the Act. In other words without the
marital status being affected or; disputed by the matrimonial court under the
Hindu Marriage Act the claim of permanent alimony was not to be valid as
ancillary or incidental to such affectation or disruption. The wife's claim to
maintenance necessarily has then to be agitated under the Hindu Adoptions and
Maintenance Act, 1956 which is a legislative measure later in point of time
than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme
revolutionizing the law applicable to Hindus.”
Based on the dicta of hon’ble
Supreme Court , the Bombay High Court in Bhagyashri
(Supra) has held that In the wake of the above observations, Section 25 has to
be looked upon as a provision for destitute wife/husband, and thus, the
provisions will have to be construed widely so as to salvage the remedial entailments.
It is open for the court to decide the application filed by the husband under
Section 25 of the 1955 Act, seeking monthly maintenance, by way of final
proceedings, pending which, the application for interim maintenance filed under
Section 24 of the Act of 1955, and the application was rightly entertained by
the learned Judge below whereby the husband has been held entitled to interim
maintenance while the proceedings under Section 25 are pending. The orders
impugned thus did not warrant any interference and the writ petition was dismissed.
REMARK
The net result of the above discussion
is that the husband is held to be entitled to maintenance from wife, if the
case is otherwise made out and the fact that husband and wife are duly
separated by a decree of divorce shall not be an embargo for entertaining a application/s u/s 24 and 25 of Hindu Marriage Act 1955. The
Act being benevolent, its purpose and intent is to be achieved and therefore,
it is held by harmonizing the provisions of sections 24 and 25 of the Act and
based on the dicta of hon’ble Supreme Court in Chand Dhawan (Supra), that maintenance plea shall not only be sustainable
during the subsistence of matrimonial relationship, but that shall be available
to any spouse, even after the marriage is declared a nullity by a decree of
divorce. The aspect of maintenance can still be looked into irrespective of
decree of divorce and the same can be granted to an aggrieved spouse.
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Anil K Khaware
Societylawandjustice.com
Founder & Senior
Associate
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