High on maintenance!

Amrita Prasad
Sunday, 25 March 2018

Recently, a Delhi-based man had to go for crowdfunding to pay alimony to his wife to settle their divorce case. This has sparked off a debate. We speak to lawyers to know more about alimony and whether the laws are biased

When a news article about a disabled man crowdfunding to pay alimony to his ex-wife began circulating on social media it got everyone talking.  According to the news article, the Delhi-based man Shiv Kumar went for crowdfunding to arrange about Rs 5 lakh to pay alimony to settle their divorce case. 

Kumar’s lawyer Pradeep Kumar quoted that his client borrowed money from his friends and others to pay maintenance to his wife even though ‘client is not even in a position to arrange for his own medication and treatment.’ This makes one wonder whether the laws in our country are biased. 

The piece sparked off a debate with some  doubting the man’s honesty and tried to find loopholes in his story. A section of netizens questioned the laws and the judiciary. How can a man who doesn’t have a job and is physically challenged be asked to pay maintenance to his ex-wife when he himself is paralysed and struggling to take care of his medical expenses? 

There have been debates in the past regarding who should pay alimony, how much and till when? There are many who argue that the court considers the financial stability of the husband before asking him to pay maintenance, however there is also a big section of the population which thinks that the court is quite indifferent to a man’s income and doesn’t consider his inability to pay before declaring a verdict. 

Some argue that the there are provisions in the law that state that women too have to pay alimony or maintenance to the husband if she is financially independent and in a position to pay for his maintenance.

To get a clearer picture, we spoke to lawyers on alimony or maintenance. 

Dilshaz Khan, advocate at Asansol District Court, and Civil and Criminal practising advocate at Sub-Divisional Court, Asansol, says that generally, it is always the husband who pays maintenance after the legal separation is announced by the court. “Maintenance and alimony is governed under Section 125 of The Code of Criminal Procedure (CCP). Regarding the provision where women have to pay alimony or maintenance, it is only in the rarest of rare cases. A case was fought where the wife was working and had some extra marital affair, so the husband claimed for alimony after they were legally separated. His plea was rejected by the trial court but later, when the judgement was challenged in the Supreme Court, it gave the husband the right to claim an alimony,” says Khan.

Khan further says that alimony is generally paid after legal separation or divorce. The duration for which the money is to be paid for alimony is fixed by the judge according to the capability of the payee. Even Muslims and Christians claim maintenance under the same law.

“It is generally paid for the upliftment of the minor child, if any, until he is able to earn himself and even for the wife until she gets married again. Section 24 of the Hindu Marriage Act of 1955 entitles a women for maintenance but Section 125 of CCP also mentions that she has to pay alimony if she’s earning more than her husband. Section 24 of Hindu Marriage Act is only a provision but Section 125 of CCP is a procedural law which entitles her/him to claim for maintenance or alimony. However, I must highlight that in most cases these laws work in favour of women who often tend to misuse them and it is rare to see a man being paid a maintenance,” points out Khan.

Arguments and counter arguments
Sattwik Majumder, an advocate at Calcutta High Court, says that there are provisions that demand wives to pay alimony. “Theoretically, yes. And it’s not unheard of for a court to have awarded maintenance to a husband but that’s almost rarest of rare; 9.9 out of 10 times it’s the guy who has to pay the maintenance and that is irrespective of the fact if he has a job or not. It’s the courts’ assumption that he has a job and is supposed to maintain his wife/ ex-wife.” 

Speaking about the law, he says that it referred to as Maintenance under Hindu Law where the husband has no statutory right to claim maintenance. “There is no provision for the husband to claim maintenance; wives have several. Hindu Adoption and Maintenance Act, 1956 is the applicable law in the subject. There has probably been one case where a court in Gujarat had awarded a husband maintenance. But I think that is all. In short, husbands don’t have any statutory right to claim maintenance but wives do, and the amount of maintenance is the discretionary power of the court subject to some guidelines under the Act,” he adds. 

According to Majumder, the current legislations are barely the surface of a set of laws that have evolved over 5,000 years dating back to the days of Manusmriti. “There are different schools of Hindu law for different portions of the country, and the modern personal laws are applicable accordingly. However, there have been some very serious arguments and counter arguments on both sides — husbands and wives,” adds Majumder.

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