Introduction: From Matrimony to Litigation

Understanding increase in maintenance seeking litigations straight away lifts the veil over Family breakdown and irrespective of fixing blame on either party, the consequences on ground do exist once a Happy family converted to a bored room, distances and sometimes badly broken. Being fair in commenting that Human Nature conditions as per circumstances around and when the doors of wisdom break into the arena of vengeance, the first hand advice lent for no fee is to kneel down the Respondent Husband before the mighty sword of law, where known to all and sundry Respondent husband has no strong sheath to defend.

The next move, found is the option finding to go for the Maintenance seeking by an estranged wife against the Respondent Husband. The status, so gets metamorphosed from being Wife & the Husband to that of a Petitioner & that if the Respondent.

Psychological Shifts and Initial Legal Guidance

Psychology reads the two states of the mind differently, every possible effort to overawe the other side, now considered as his or her opponent. The first advice, which a women receives at her lawyers chamber is possibly to sound her about legal arsenal in the fact situation as She can undergo for the consideration of the following, laid as under :-

Legal Avenues Available to a Petitioner Wife

·      Maintenance Seeking under her Personal Laws

·      Maintenance seeking under Secular Statute, Sec 125 CrPC/Sec 144 BNSS

·      Additional relief seeking under PDV Act.

·      Mehar /Dower seeking

·      Conjugal Relation Restoration

·      Divorce plea factor

·      Guardianship rights in parlance of legal battle and not as per larger picture of family Restoration

As a matter of common observation on storming the legal avenues to the Petitioner woman, she starts up next to set her goal, her targets under law to achieve and so the round of litigation starts up between the estranged spouses, where the date of hearings determine not only the fate of petition but of the relationship itself.

The aforesaid aspect is mentioned herein with the set purpose just to know and understand the seriousness of this particular nature of litigation and so the subject demands an expertise in taking up matrimonial cases. It is not simply Money seeking or Money giving. It is beyond it, The bedrock of a peaceful society is always to be found in a good family placement and so construction of this thought provoking is not to be undermined.

Word “Maintenance” itself takes one to conceptual exercise in terms of something needful, preventive, corrective and also predictive.

It is understood as “upkeep”, “support”, “ to keep something in an existing state or preserving it from failure and decline.

Maintenance, also known as Alimony in law, is understood as a Spousal Support and be it on marriage, during or after the marriage.

Be said, it can be pendente lite, Final or in lump sum.

Concept, Status, and Statutory Basis of Maintenance under Personal Laws

Upon marriage of a girl of an age of majority her marital status gets changed and attains to be called wife. With this status change, virtually the burden of rights and liability get born and fixed as per the faith or religion of the parties and among it, Right of maintenance is born in favour of a wife and likewise Husband is morally bound to maintain his wife. This aspect is given legal recognition, an acknowledgement, an enforceable one.

Among Hindus, we have maintenance seeking provision in terms of The Hindu Marriage Act 1955 & The Hindu Adoption & Maintenance Act 1956.

Under The Hindu Marriage Act, a wife does not include a divorced wife. Under this Act 1955, the wife is to prove no sufficient and independent income to maintain herself.

Under The Hindu Adoption & Maintenance Act 1956, vide Sec 25 either husband or the wife can claim for maintenance, if the husband is physically or mentally incapable of maintaining himself.

Likewise, under Muslim Act, a wife can bring a claim for her maintenance against her husband if she has been deprived of the same with no legal ground available to the husband as if not living in adultery .

It is to bear in mind that under personal Muslim law, a woman after an iddat period is not entitled to any maintenance. But is not barred to seek maintenance under CRPC or any other secular provision.

Under The Muslim women Protection on Divorce Act 1986, a wife can seek for her maintenance till her iddat.

Secular Statute: Section 125 CrPC / 144 BNSS

Beyond moral, religious thought acknowledging the relationship of Husband and Wife with a set of reciprocal Rights & Duties, a legal recognition exists in terms of its enforceability and civil courts entertain and decide the matters as to seeking & granting of matters. The State, being guardian of the Constitutional guarantees has lead to have a separate chapter in the Code of Criminal Procedure, Vide Sec 125 now Section 144 BNSS to provide a uniform opportunity to a Women, irrespective of her faith or religion upon proof of her Neglect or Refusal to maintain by her husband.

This piece of legislation in the Code of Criminal Procedure is read as a complete Code by itself and is a religion neutral, a secular provision wherein its main feature is that a definition of Wife included a Divorced Wife as well. This factor has not only widened the scope of this chapter but has become the subject of great legal debate in various judgments from the Supreme Court as well.

Besides all these legal framework available under personal / secular law, the Parliament of India has felt the need in consultation with the changing attitudes of family aberrations, of its getting drawn to complex situations, with the analysis of international approach towards the subject a separate Act, The Prevention of Domestic Violence of Women Act stand passed, which encompasses an altogether different Outlook to the family, Spousal relationship and contains provision for seeking of Maintenance in addition to the one granted under other laws,say under Section 125 Cr P Code, to grant protection order, to grant compensatory orders, to grant house sharing orders.

The placement as a separate chapter vide Section 125 “Of Rights of Maintenance to Wives, Children and Parents” in the Code is born so with an efficacious, quick remedy on the constitutional strength of Art 14, Art 15, Art 21, Art 25 and more so in compatibility to the Directive Principles of the State Policy .

With this, the litigation as to Maintenance seeking has attained a conspicuous place in the daily cause list before the courts.

Expansion to Non-Marital Relationships

Maintenance as such has upon passing of PDV Act traversed from conjugal relationship to even woman like relationship, though not legally married and made such a woman too entitled under law to claim for maintenance and for other multiple reliefs under this Act.

As a matter of common observance, a husband feels dettered upon receiving a Notice under PDV Act simultaneously with a Notice issued in terms of Sec 125 cr.p code or Sec 144 BNSS and feels himself placed in the most precarious position, where he has less scope to defend.

Such a position has been noted and so said that this PDV Act needs to be seen in terms of its object, which has led to the passing of this Act. It was to maintain the family relations and provide a subtle compartment for the wife & husband relationship to determine their prospects wisely, prudently but on the practical side all the same stands for, far away.

Preventive, Corrective, Predictive Aspects of Maintenance

Maintenance, finding its traces within communities from the times immemorial and is being considered both religiously and socially. So understanding, in matrimonial conflicts, the maintenance seeking need to observed as a preventive measure to prevent the family, the relationship of the petitioner wife & the Husband to collapse in terms of realisation to sense that law holds the responsibilities intact and the Respondent Husband cannot shut his eyes towards the basic human needs of the wife. The modus operandi in terms of its enforceability need to be read as a corrective measure and so impressing upon the husband that law does not leave the woman petitioner as remedilless and during this whole process of proceedings need to analyse predictive structuring.

Legal Evolution and Practical Aspects in Court

Each case has its own limitations, own facts and upon legal analysis. Various spectacles of law on Maintenance have come fore and given as such an occasion to new heights of understanding towards the Family law itself. From the Nature of right of maintenance itself, the journey in the matter has travelled a lot erecting the milestones at proper places of concern as How to determine the scale of fixing of the maintenance, as to how it is to be executed and how the changes can be sought in the Award and all these issues stand a daily concern before the Law courts.

In Bhaskar Lal Sharma & Anr Vs Monica & Ors, 2014 Legal Eagle (SC) 119 : 2014 SAR (Criminal) 343, it was decided that Maintenance order, having attained finality at law can be executed by following the provisions of Sub Section (3) of Sec 125 . Proceedings for Execution, if the husband is living outside the country, Section 105 CrPC makes elaborate provision for service of Summons by the court for the one who resides outside the territory of India.

In Cr.L.J 2009 Bom 70 Restoration of dismissed in default application. Proceedings are quasi civil in nature. Order dismissing can be called under inherent powers of the criminal court. Recalling cannot be treated as alteration or change in the final order .

Arif Khan Vs Ruby Khan & Anr, 2021(1) MMKJ 173 (Kar) : 2020 Legal Eagle (MP) 129 :  Order to pay maintenance, party in whose favour it is paid has two options: Ist, party can approach under Section 125(3) CrPC requesting the court to punish the defaulter by imposing imprisonment; the second, is one to approach the court under Section 128 Code of Criminal Procedure.

Alkaram vs State of UP & Anr MMLJ 2021 (All) 805 : Enforcement of arrears of maintenance amount. Under Section 125(3) Statute prescribed a period of limitation of One Year and under Section 128, if approached, there is no limitation provided at all.

Sarwan Kumar Sharma vs Ranjana Sharma 2021 (1) CriCC 185 : 2020 Legal Eagle (DEL) 12192 : Del Expression “unable to maintain herself” dies not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.

Data Insights: Domestic Violence and Maintenance Trends

·      According to National Family Health Survey 2019 - 2021, 29.3 % married women between Age group of 18- 49 have experienced domestic violence/ Sexual violence.

·      3.1% of pregnant women have suffered physical violence.

·      As per NFHS data 87% of married women are victims of DV Act and do not seek relief.

·      July 2022 data, shows 4.71 lakh cases under DV Act stand pending disposal in India. About 21008 Appeals/ Revisions stand pending.

Reasons for such a stuff of aberrations, compelling a woman to knock the doors for her maintenance or to prevent herself from domestic violence, after all asks one to find out as to why? Reasons stand to be diverse. However, the general reinforcement of perceived superiority, society being patriarchal, violence stems in the subtle form of neglect, refusal to serious domestic violence through the pages of arrogance, less understandings of law, poor education system, poverty, psychological problems, violent behaviours and glorification of tolerance submissions among women.

Way Forward: Legal Reform and Social Change

The way forward speaks of a transformative change in the attitudes, understandings towards gender roles, to foster mutual respect and love and for it, the safety of women folk needs to be preserved and maintained through compulsory registration of the Nuptial knot, enforcing the rights & liabilities clause under the recognition of Law of Contract, besides to otherwise religious oriented moral or legal rights or duties.

Eligibility and Legal Boundaries under Section 125 CrPC

The depriving one’s better half from being maintained by the Respondent husband be for any reason or no reason despite of knowing the fact that the the petitioner wife is unable to maintain herself, has no regular means to maintain itself complex one to test this delinquent tendency and the tilt of dynamics of justice doing do concur place towards the petitioner wife. Reason for consideration of grant of pendente lite maintenance upon seeking for by the petitioner wife finds its grant.

Tools that help to navigate through the tough times within a family stand before the court in its soft swing with a claim for maintenance by the estranged petitioner wife against her husband, the Respondent and it is here, lawyers, the Social Engineers not to miss to earn “libido factor “ the social justice factor whereof, money maintenance part is virtually a fraction of the holistic concept of the maintenance.

Judicial Interpretation of Section 125 CrPC as a Tool for Sustenance

The Supreme Court in the case of Bhuwan Mohan Singh Vs Meena & Ors, 2014 Legal Eagle (SC) 526,  held Section 225 code of Criminal Procedure was conceived to alleviate the agony, anguish and financial suffering of a woman who has left her matrimonial home for the reasons set forth in the provision so that court can make appropriate arrangements for her and her children if they are with her. The term “sustenance” does not always imply that one is living an animals existence. She has the right to conduct her life in the same manner as she would have in her husband's home.

The Delhi High Court has ruled in Kusum Sharma vs Mahinder Kumar Sharma, 2020 Legal Eagle (DEL HC) 12653 that maintenance is not only a constitutional right but also an element of universal human rights. The purpose of of paying maintenance is twofold :

First, to prevent vagrancy as a result of strained husband - wife relationships, and 2. To guarantee that the poor litigating spouse is not crippled as a result of a lack of funds to defend or prosecute the case.

Though section 125 Code of Criminal Procedure is a secular provision, a question arises as to whether a Magistrate while dealing with a case under Sec 125 Cr P Code, a religion neutral law can overlook the religious thought about the institution of Marriage itself and see it solely through the prism of the constitution .

In the case of Badshah vs Urmila Badshah, AIR 2014 SC 869 : 2013 Legal Eagle (SC) 809, held that a purposive interpretation needs to be given to the provisions of Sec 125 CrPC. Upon reading it, it comes fire that its purpose is to achieve Social Justice, a constitutional vision enshrined in the preamble of the constitution. An effort to bridge the gap between the law and society

In the case of Capt. Ramesh Chander Kaushal vs Veena Kaushal, AIR 1978 SC 1807 : 1978 Legal Eagle (SC) 143, Supreme Court remarked that the brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation of it has to have social relevance.

In Chaturbhuj vs Sita Bai, (2008) 2 SCC 316 : 2007 Legal Eagle (SC) 131,  Supreme court expressed that section 125 is a measure of social justice and is specially enacted to protect women and children and it gives effect to fundamental rights and Natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves.

In the case of Shah Bano vs Imran Khan it got held that even after the disposal of the Appli7 under section 3 of The Muslim l Women (Protection of Rights on Divorce Act )the divorced wife is entitled to claim maintenance under section 125 CrPC beyond the period of iddat and till she remarries. Same view was followed by Shamima Farouqi.

Wider Interpretation of “Wife” under Section 125 CrPC

Wife, is a status granted and acknowledged upon marriage of a woman. Upon entering into marital knot as per personal law of the parties, the relationship of a woman with her husband stands acknowledged, recognised with rights & liabilities.

This definition of wife is squarely wider in scope in the Secular law i.e. Sec 125 CrPC as the expression “ wife “ includes a divorcee. This has been so for the fact this piece of legislation sees the maintenance issue, as a right or liability beyond the prism of the personal law of the parties. It reads it as a social concern, a human right, as a Women's right to live and as such, maintenance orders stand passed despite plea of divorce or even beyond the person of iddat.

1997 SLJ 333 held that a Khanadamad is liable to pay maintenance to his wife. So, order of maintenance can be sought and granted in favour of a wife under Section 125 Code of Criminal Procedure, where the scope and meaning of expression ‘wife’ as carried by Explanation includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

The petitioner Wife, as such under Sec 125 is upon proof of neglect or refusal to maintain her by her husband Respondent, who is having sufficient means to maintain can come up before a Judicial Magistrate.

It stands however provided in the Section that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her,and may make an order under this Section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

It is worthwhile to note here that vide Explanation to the above held provisio it is laid that if a husband has contracted marriage with another woman or keeps a mistress,it shall be considered to be just ground for his wife's refusal to live with him.

However, the Section provides vide sub Section 4 of Section 125 CrPC that No wife shall be entitled to receive an allowance from her husband under this Section of she is living in adultery, or, if without any sufficient reason,she refuses to live with her husband, or if they are living separately by mutual consent.

Exception: No Relief for De Facto or Void Marriages

It needs to be not lost sight of the fact this provision of law is available to a woman, where her marriage is not void ab initio . Be said, maintenance cannot be sought under this Statute by a de- facto wife. To women not lawfully married has no application under Section 125 CrPC (Kandukuri Sridhar Rao vs. Kandukuri Kamakshama, 1983 1 Cr.LC 239.

Conclusion :