Introduction
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.
Conclusion
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
