‘Wife’ under Section 125 of Criminal Procedure Code

Maintenance is legal, social and moral responsibility. It is provided both under personal law and Code of Criminal Procedure. The article discusses definition of wife under the aforesaid Code especially inadequacy of law in view of bigamous marriage where factum of first marriage is concealed and the second wife disowned becomes destitute but still ineligible for maintenance under the Code.

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Maintenance is a social, moral and legal responsibility. Law extends maintenance right to wife, husband, parents, minor children and in some cases to major children. With respect to wife, it is to be discharged both during subsistence of marriage and also after divorce until the spouse is re-married subject to personal law. Legal responsibility of maintenance is provided both under the personal law as well as under Section 125 of the Code of Criminal Procedure, 1973 (“Code”), which provides a relief of maintenance to the wife, children and parents, provided they are unable to maintain themselves. The legislation under Section 125 of the Code is broad enough and does not differentiate between religions as well as the minor-legitimate and illegitimate child and the major children who are physically and mentally challenged or due to injury are unable to maintain themselves except for married daughter. The Hindu Law provides for maintenance under two of its statutes-Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956. The Special Marriage Act is a secular law that provides relief to those who are married under the Act. The Parsi Marriage and Divorce Act, 1936 provides for maintenance of Parsis and for Christians, it is provided under the Indian Divorce Act, 1936. The maintenance under different laws is of the nature of pendente lite (maintenance during the pendency of litigation) and permanent alimony. The focus of the article is to understand the meaning of ‘wife’ seeking maintenance relief under Section 125 of the Code. Normally, such situation arises wherein the parties have undergone a second marriage during lifetime of the first one by an act of concealment of fact of subsisting marriage. The article examines the definition of ‘wife’, nature of proceedings under the Section 125 of the Code and impact on the situation from registration of marriage.

A. Definition of ‘wife’ under the Section 125 Code

The Code clearly does not define ‘wife’ but states that it includes women who is divorced by or has obtained divorce from her husband and has not re-married. So, who all can claim maintenance under the definition of wife?

  • Legally wedded wife
  • Divorced wife but not a re-married wife

The important part is that ‘wife’ can seek maintenance even if she has not initiated any proceeding under the personal law. Additionally, staying separate from the husband under justified grounds may not exclude her from definition of ‘wife’ for the purpose of the section.

B. Nature of the Proceedings

Maintenance under Section 125 of the Code is a social legislation, which is meant to prevent vagrancy and provide immediate relief for food, clothing and shelter. The Code was amended suitably in the year 1973 to include consideration of women’s inability to maintain as ground to grant her maintenance. This was retariated by the Hon’ble Supreme Court even in Bhagwan Dutt vs. Kanta Devi[1]. The intention of the legislature is suitably covered by the nature of proceedings under Section 125 of the Code, which is of summary nature and is not meant to affect the civil rights of the parties. The strict standard of proof is not required under section 125 of the proceedings. In Dwarka P. Satpathy vs. Bidyut Prava Dixit & Another[2] the apex court held that the validity of marriage for the purpose of summary proceedings is to be determined on the basis of evidence brought on record by the parties. The trial procedure in such cases is not as strict as under section 494 IPC. If the claimant under proceeding is able to show she lived as husband and wife, then the same may amount to ground of relief by taking into account the presumption of marriage subject to rebuttal to the presumption raised. Regarding non-appearance in such cases of the spouse to rebut the presumptions of marriage, the Privy Council in the case of Gurbaksh Singh v. Gurdial Singh[3], held that it is the bounden duty of a party, personally knowing the whole circumstances or the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. Similarly, this Court in the case of Pirgonda v. Vishwanath, held as follows:”Normally, a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness box it would be open to the trial Court to draw an inference against him. If a party fails to appear in the witness box, it should normally not open to his opponent to compel his presence by the issue of a witness summons………..” Of recently Mumbai High Court in Siddappa Satappa Savali vs. Smt. Mahananda Sidappa Savali[4] the orders passed under Section 125 CrPC can never come in way of civil rights of the parties to get appropriate declarations. In marriage of this nature, strict proof is not required

C. Entitlement of Maintenance when Spouse is living and Second Marriage done

The Apex Court in the case of Yamunabai Adhav v. Anantrao Adhav held that the wife’s right to maintenance depends upon the continuance of her married status and if her marriage is null and void because of the husband having a spouse living at the time of marriage, then the wife is not entitled for maintenance. The Apex Court further held that the contention of the wife that at the time of her marriage she was not aware of husband’s subsisting marriage is of no consequence. The Apex Court also held that even if the husband had treated her as a wife will not come to her rescue because it is the intention of the legislature, which is relevant, and not the attitude of the party.

In another case a different set of facts were on record wherein second marriage solemnized was void due to subsistence of the first marriage but after divorce if the spouses continue to live as husband and wife would the wife entitlement to maintenance. The opinion of the Mumbai High Court in Prabhubhai Ranchhodbhai Tailor vs Mrs. Bhartiben Prabhubhai Tailor[5] the Hon’ble court threw light on the present case. Even though the second marriage of the husband during the subsistence of the first marriage was null and void, on the dissolution of the first marriage, if the parties to the second marriage continued to live together as husband and wife, then there is no impediment in conferring the status of ‘wife’ to the second wife. In other words, even if the second marriage was null and void when solemnized on account of the subsistence of the first marriage of the husband, if the parties to the second marriage continue to live as husband and wife even after the divorce of the first marriage then the second wife would be entitled to the status of a wife and consequently has a right to claim maintenance.

 D. Remedy by way of Registration of Marriage

The dispute to that who is ‘wife’ can be resolved to great extent by registering marriages in India. Supreme Court of India has ordered the compulsory registration of all marriages in India, irrespective of the religion. In India, a marriage can be registered under either of the two marriages Act:  The Hindu Marriage Act, 1955 (“HMA”) and The Special Marriage Act, 1954.

(a) Hindu Marriages

The HMA is applicable only to the Hindus, The HMA provides for registration of an already solemnized marriage under Section 8. It does not provide for solemnization of marriage by the Registrar. All rules made in this section may be laid before the state legislature.  A Hindu marriage, which has already been solemnized in accordance with the religious customs and rituals, can be registered under the HMA. The parties to the marriage have to apply to the concerned authority in whose Jurisdiction the marriage is solemnized or either party to the marriage has been residing. The process of registration requires along with the application form they to attach two photographs of the marriage ceremonies, invitation card of marriage, age and address proof of both parties, affidavit of Notary/Executive Magistrate to prove that the couple is married under Hindu Marriage Act and have fit mental condition, relationship between the parties is not within the degree of prohibition.

Both the parties have to appear before the Registrar along with their parents or guardians or other witnesses within one month from the date of marriage.  Marriage is registered before a marriage registrar/tahsildar of the district, wherever the parties got married. The registration under the HMA does not require any notice. It can be done on the same day of the filing of application or a few days of moving the application for marriage. The parties will receive a marriage certificate within few days, which is a proof of registration of marriage.

(b) Other Religion

The Special Marriage Act is applicable to all citizens of India. Any person, irrespective of religion such as Hindus, Buddhists, Jains, Sikhs, Muslim, Christian, Parsi, or Jewish can perform marriage under the Special Marriage Act, 1954. Special Marriage Act provides for solemnization of a marriage as well as registration by a Marriage Officer/Registrar. Both parties to be present on the date of registration of marriage with the proof of age and address of both parties, affidavit with regard to these as well marital status, fit mental condition, non relationship between the parties within the degree of prohibition, passport size photographs and with three witnesses. In the presence of these three witnesses the Marriage Officer solemnizes the marriage. The Marriage officer registers the marriage and a marriage certificate is issued within few days of marriage.


The observation of the Bombay High Court in Prabhubhai Ranchhodbhai Tailor (Supra) is the most appropriate conclusion:

“With the ever-increasing matrimonial offences, time has come for the Parliament to have a fresh look and see whether the existing laws strike a balance in the matter of rights and obligations cast upon the husband and wife in preserving the sanctity of the sacred institution of marriage. Luckily, in the present case, the first marriage of the husband ended in a divorce, as a result whereof maintenance could be granted to the wife. But if the wife is an innocent victim and it is only after the marriage, she realises that the husband has cheated her by not disclosing the existence of a living spouse, should the wife be at the mercy of the husband and stay with him as a concubine? Should there be no legislation granting some protection for her to live independently in a dignified way by seeking maintenance from the husband? In a society where the marriage between a man and woman is considered to be sacred and supposed to last beyond the existence of the physical body and extend for generations, whether the existing legislations strike a balance in the matter of matrimonial offences committed by a man or a woman? It is for the legislature to consider and take appropriate measures.”

 HMA however, gives maintenance to wives of void and bigamous marriages. Supreme Court in Ramesh Chandra Daga vs. Rameshwari Daga[6] held that marriage may be declared illegal contravention of the provision of the HMA but it cannot be said to be immoral so as to deny the right to alimony or maintenance to the spouse financially and economically weak. Parsi Law and Hindu Law are same however, under Christian law position is different as maintenance is granted only on divorce or judicial separation and therefore, the void marriages are not covered under it. Even though the Indian Divorce Act, 1936 has been suitably amended but has not been amended to include void marriages.

There exist inadequacy of laws to protect women who have been kept in dark from relief of maintenance under the Code, the protection however can be extended only by legislature alone.

[1] AIR 1975 SC 83

[2] AIR 1999 SC 3348

[3] 29 BLR 1392

[4] Crl Writ Petition of 1464 of 2001

[5] 2004 (3) MhLJ 487

[6] AIR 2005 SC 422

Recent Developments in Law for Women Empowerment

Women empowerment and gender discrimination is matter of grave attention of our Indian society. In recent judgment, the Hon’ble Supreme Court has adjudicated in Krishna Bhattacharjee case and in Prakash case on the aforesaid issues discussed in the article for our readers.

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Women empowerment and minimising gender discrimination has not just been a legal jargon. Time and again the court has always struck the right balance in the relationships with necessary aforesaid ingredients, if the facts of the case required such justice. Recently, these facts were again reflected in recent judgments passed by the Hon’ble Supreme Court in Krishna Bhattacharjee judgment wherein it was held that if a decree of judicial separation is passed, wife cannot cease to be an ‘aggrieved person’ within the definition of Protection of Domestic Violence Act, 2005 (“Act”). In another development, Hon’ble Supreme Court in case titled Prakash discussed below has also held that the amendment in the Hindu Succession Act, 1956 (“Succession Act”) will have effect, if father and daughter are both alive on the date of the amendment for daughter to become co-sharer along with other siblings. These judgments have impact on those women filing the matters to pursue their rights before appropriate courts in India. The article appreciates these precedents for understanding step towards women empowerment at large.

A. Judgment-I in Krishna Bhattacharjee’s Matter

In this judgment, the appellant lost his case of claiming her stridhan only on the ground that she did not fall within the bracket of aggrieved person as she was under judicial separation. The appellant had filed an application under Section 12 of the Act for seizure of the stridhan. The judgment reflects certain important interpretations-aggrieved person. Understanding them can help draw better picture of issues and ratio involved. 

(i) Aggrieved Person

The Act intends to provide the effective protection to the rights guaranteed to women under the Constitution of India. The recent attention to the meaning of ‘aggrieved person’ in the judgment as provided under the Act makes it important to understand how it has been defined under the Act. As per the Act, the aggrieved person is: 

“The one who has had domestic relationship with the respondent and who alleges to have any act of the domestic violence by the Respondent.”

To assist in understanding of our readers, we clarify that the ‘Domestic violence[1] is an act or omission or commission as per the Section 3 of the Act to include physical abuse, mental abuse, verbal and emotional abuse, economic abuse. To assess the act of the domestic violence over all facts and circumstances are taken into consideration by the court.The definition has quiet wide a spectrum.

The element of ‘Domestic relationship[2]’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by way of consanguinity[3], marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

(ii) Judicial Separation Qualifies for a Relief under the Act

It is important to understand the spirit of the legislations, to find the answer to aforesaid issue in judgment under discussion. Here came the challenge to interpret the ‘aggrieved person’ for a situation wherein the parties are husband-wife but legal relationship between them is snapped by way of judicial separation in the matter of Krishna Bhattarjee vs. Sarathi Choudhary[4]. The Act was legislated in 2005 as has been stated to provide effective protection to women who are victim of domestic violence. However, as the Act came into force in 2005 questions began to be raised about the application of the same to disputes on-going prior to implementations of the Act. In V.D. Bhanot vs. Savita Bhanot[5] the question arose whether the relationship disputes that is applicable prior to the coming into force of the said Act could be taken into consideration. It was held that even the wife, who has had a shared household in the past but, is no more doing so when the Act came into force, still be covered under the Act. The Act was enacted to safeguard the interest of women to protect her rights under article 14, 15, 21 of the Constitution of India and to provide her efficacious remedy. The principle underlying Savita Bhanot was retariated in Saraswati vs. Babu[6]

To resolve the issue in spirit of the legislation, it is important to analyse the issue of judicial separation and understand the distinction between decree of divorce and decree of judicial separation and whether the same would qualify for relief under the Act. In the former, there is a severance of status and parties do not remain as husband and wife whereas in the later the relationship as husband and wife continues but the legal relationship is snapped. A three-judge bench in Jeet Singh & Ors vs. State of UP[7] the apex court held that the judicial separation creates rights and obligations. A decree to that effect permits parties to live apart. There would be no obligation of either party to cohabit each other. Mutual rights and obligations would remain suspended. Though judicial separation after some period may become a ground of divorce. It is not necessary and that parties are not bound to have recourse to that remedy, they can continue to live as husband and wife lifetime.

(iii) Final Verdict

The court observed considering the sensitive nature of the legislation alone, even the maintainability issue requires thorough deliberations. It is the duty of the court to examine the grounds of respondent in such petitions from all angles. It is also important to analyse that the person aggrieved is not denied justice on grounds of non-adjudication in the maintainability petitions. Therefore, it was held that if a decree of judicial separation is passed, wife cannot cease to be an aggrieved person within the definition of the Act.

B.  Date of Application of Amendment to the Succession Act: Judgment-II

The Succession Act originally didn’t give daughters equal rights to ancestral property. This disparity was however, removed by an amendment that came into force on September 9, 2005. However, the recent legal debate around the amendment arose when issue relating to retrospective effect of the same came in question in Prakash & Ors. vs. Phulwati & Ors[8] (“Prakash Case”). The settled position of law is that amendment of substantive rights in the absence of express provision or implied intention to the contrary; the substantive law is prospective and does not affect the vested rights. Even a social legislation cannot have a retrospective effect unless so provided for or so intended by the legislature.

Section 6 of the Succession Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has lead to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women. The States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. Likewise, the Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

(i) Understanding the concept of ‘Hindu Mitakshara Coparcener’ Now and Then

Coparcenary property is synonymous with ancestral property i.e. property inherited by a male Hindu from his father, grandfather and great grandfather. The main incidents of coparcenary property are:

(i) It devolved by survivorship not by succession,

(ii) It is a property in which the male issues of the coparcener’s up to three degrees acquire an interest by birth.

Coparcenary refers to equal inheritance that was restricted only to male members of the Hindu Undivided Family. It is a narrow body of persons within a joint family. Coparceners jointly inherit property and have unity of possession.

India has been a patriarchal society where women have been unfairly discriminated against. This was reflected in laws like the Succession Act, which did not give women a birth right even in the joint family property under Mitakshara coparcenary. The Succession Act was amended in 2005 with a view to re-affirm the equality granted to women under Article 14 of the Constitution. The amendment provided daughters equal rights in coparcenary property on birth, at par with sons. After the amendment, daughters have the same rights and liabilities as sons including a notional partition.

Any reference to a Hindu Mitakshara coparcener shall now deemed to include a reference to a daughter of a coparcener now. Provided that nothing contained in the amendment shall affect or invalidate any disposition or alienation including any partition[9] or testamentary disposition of property, which had taken place before the December 20, 2004 (“Cut off Date”), the date on which the bill was introduced.

(ii) Equal Rights for a Daughter in a Coparcenary Property

In 2005, the amendment of Section 6 with regard to devolution of interest in coparcenary property on and from the commencement of this Amendment in a Joint Hindu family governed by the Mitakshara law, made the daughter a coparcener which ended the gender discrimination:

  • She now by birth become a coparcener in her own right in the same manner as the son;
  • She will have the same rights in the coparcenary property as she would have had, if she had been a son;
  • She would be subjected to the same liabilities in respect of the said coparcenary property as that of a son

Any property to which a female Hindu becomes entitled by virtue of the aforementioned amendment shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition or will.

(iii) Retrospective or Prospective: 2005 Succession Act Amendment

The court observed that in the amendment neither it has retrospective effect not intendment to that effect in the Prakash Case. Even a social legislation cannot be read retrospectively. In the present amendment, the legislature has made it clear the amendment should be made applicable on the date of commencement and only if death of the coparcener is after the amendment. There is no possible interpretation in view of the express provision.

Where a Hindu dies after the commencement of the Amendment, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary[10] or intestate succession[11], as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a notional partition had taken place:

(a) The daughter is allotted the same share as is allotted to a son;

(b) The share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) The share of the pre-deceased child of a pre-deceased son or of a pre­-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December 2004.

(iv) Summary of the Outcome

Even a social legislation cannot be read retrospectively. In the present amendment, the legislature has made it clear the amendment should be made applicable on the date of commencement and only if death of the coparcener is after the amendment. There is no possible interpretation in view of the express provision.

C. Parallel Issue of Gender Discrimination discussed in Judgment-II

An indirect issue of gender discrimination, though not directly concerning the appeal, has been raised by some learned counsel of the parties in the Prakash Case, which concerns right of Muslim women. The court observed that there is no safeguard against arbitrary divorce and second marriage during currency of first marriage. The issue was raised before court in Ahmedabad Women Action Group vs. Union of India[12] in which the Hon’ble Court held that the issue involves policy intervention. The court observed that the issue involves the fundamental rights guaranteed under Article 14, 15 and 21. The Constitution Bench in Daniel Latifi vs. Union of India[13] did not address the said issue but held that Article 21 include right to live with dignity which means that Muslim women could invoke fundamental rights in such matters. In Javed vs. State of Haryana[14] the Hon’ble Court held that conduct rules providing for monogamy irrespective of religion are valid and could not be struck down on violations of personal law. The court referred to John Vellomattam vs. Union of India[15] it was observed that Section 118 of the Indian Succession Act, 1925 restricting the right of Christians to make Will for charitable purpose was without any rational basis and was discriminatory against Christians and violated article 14. The court observed that the laws relating to marriage and succession are not part of religion and International Treaties and Covenants can be referred for reasonableness. In Charu Khurana vs. UOI[16] court considered the issue of gender discrimination of membership to Cine costume and make up artist hairdresser association


In view of the above discussion, another step towards women empowerment has been taken; the macroscopic vision of the same can be summed up as follows:

  • Explanations of the Succession Act cannot mean re-opening of partitions already affected.
  • Normal rule is that proviso in any Act excepts out something which would otherwise be within the purview of enactment, the text, context so require a different rule may apply.
  • Object of interpretation is to discover the intention of legislature
  • Proviso to section 6(1) and 6(5) of the Succession Act clearly excepts out the transactions prior to the cut-off date.
  • Rights under the amendment are available to living daughter of a living coparcener as on September 9, 2005 irrespective whether such daughters were born or not.
  • Judicial Separation would do not debar relief under the Domestic Violence Act.

[1] Section 3 of the Act

[2] Section 2(f) of the Act

[3] Blood relationship

[4] Criminal Appeal No. 1545 of 2015

[5] (2012) 3 SCC 183

[6] (2014) 3 SCC 710

[7] (1993) 1 SCC 325

[8] Civil Appeal No. 7217 of 2013

[9]Partition of property: means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition affected by a decree of a court.

[10] As per his Will

[11] Without Will

[12] (1997) 3 SCC 573

[13] (2001) 7 SCC 740

[14] (2008) 8 SCC 369

[15] (2003) 6 SCC 611

[16] (2015) 1 SCC 192

Income Proof in Maintenance Proceedings in India

Maintenance is not just a legal right but a basic human right. The right is meant to prevent vagrancy and at the same time is meant to ensure that the wife is able to maintain herself during the period of strained relationship including seeking a legal remedy.

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Maintenance is not just a legal right but a basic human right. The right is meant to prevent vagrancy and at the same time is meant to ensure that the wife is able to maintain herself during the period of strained relationship including seeking a legal remedy. The various provisions under Indian laws taking about the issue of maintenance are as follows:

(a) The section 24 of the Hindu Marriage Act, 1955 (“HMA”): Maintenance pendent lite and expenses for dealing with litigation for spouse that has no independent income for his or her support. The court is required to decide the application under section 24 of the HMA within 60 days of service of notice to other party. It does not deal with children but require formal application. This is an interim measure.

(b) Section 25 of the HMA: Permanent alimony and maintenance

(c) Section 26 of the HMA: Interim maintenance for children.

(e) Section 125 of the Code of Criminal Procedure, 1973 (“CrPC”): The section was created to take care of the financial suffering of women who left her matrimonial home to enable her and her children lead a normal life, if they are with her. She is entitled under Indian law to lead a life normal the way she led in her matrimonial home. This includes women who have taken divorce from her husband as well. The law provides relief to Muslim women as well. Further, the purpose behind section 125 CrPC is to provide speedy remedy for supply of food clothing shelter to deserted wife.

(f) Section 18(1) of the Hindu Adoption and Maintenance Act, 1956 provides that wife is entitled to maintenance by her husband for lifetime i.e. she will be given maintenance until she dies or her husband dies. Under section 18   of this Act a Hindu wife is entitled to live separately from her husband without canceling her right to claim maintenance.

(g) If a divorced Christian wife cannot support her in the post divorce period then under Section 37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act,1869 which is only applicable to those persons who practice the Christianityreligion inter alia governs maintenance rights of a Christian wife

A. Purpose of Maintenance Law

The law of maintenance is personal as well as legal in character and arises from the very existence of relationship between the parties. It is the obligation of the husband to ensure that the wife does not become a destitute or beggar. This is a sacrosanct duty from which husband cannot escape unless the husband is able to bring on record legally permissible grounds under which maintenance cannot be provided. The various judgments even has taken note of the adjournments granted in the matter at times can defeat the very social legislations. So procrastination can be the greatest assassin of the lis in such matters. A three judge bench in Vimla K. vs. Veerswamy[1] held that the “It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the family judge must reveal awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with for family court judge has to be alive to the fact that the lis before him is an emotional fragmentation and delay can feed it to grow.

B. Assessing Income of the Spouse

It’s a matter of common application, that parties hardly reveal their true income in any maintenance proceedings. The onus of proving the income is on the parties as per section 106[2] of the Indian Evidence Act, 1872. Especially in cases of estranged relationships or where the husband and wife are living separately or are having estranged relationships. In such as scenario, it is duty of the court to ascertain the true income of the parties and then to ascertain the income of the parties to pass an order of maintenance.

Section 165 of the Indian Evidence Act empowers the courts with plenary powers to put questions to any witness or any party at any time in any form about any fact whether relevant or irrelevant. The judge conducting the trial is not a mute spectator but is clothed with all necessary powers to bring the facts out. This section gives ample power to control the trial effectively.

So in view of the recent judgment passed by the Hon’ble High Court in Kusum Sharma vs. Mahender Kumar Sharma[3] a comprehensive affidavit of assets, income and expenditure along with documents is now required to be filed at the very threshold of matrimonial cases to enable adjudicate the matters for maintenance proceedings.


The justice must not be seem to be done but actually done to eliminate or minimize the abuse of law therefore the facts and circumstances of each case must be examined with utmost circumspection and sensitivity.

[1] 1991 SCR (1) 904

[2] When a fact is especially within the knowledge of one person, the burden of proving the same is with the same person.

[3] Date of Decision: FAO of 369/1996