Legislative amendments and judicial pronouncements have come to hold vital changes in the ancient and personal laws of different religions being followed in India. Once such change has been incorporated in section 24 and 25 of the Hindu marriage act 1955 wherein the right of a husband to claim maintenance has been recognised. This change has been written off by various critics as an outcome of gender focused enthusiasm of the legislature, which prompted the lawmakers to provide right to the husband. However the authors of the present article have a different opinion to hold. This article is an attempt to trace such a right to husbands in the historical as well as the present era.
Prevention of destitution, avoidance of vagrancy and providing for those suffering from inability are the three tenets upon which the right to maintenance is based. The entire jurisprudence upon which the right of maintenance is based seeks to emerge out of the fact that when a person whose responsibility towards someone, he simultaneously also become duty-bound to provide for the other. The aim sought to be achieved is, that the one in need should be provided for and the one capable of doing so should provide for.
Right from the time that witnessed that the origin of maintenance rights, till the present era, one shall observe that the object beneath the philosophy, as originally perceived, has remained the same. However, its application and outcome of a claim for maintenance has not been left confined to the relationship of husband and wife only. It has been extended to include other classes considered as socially deserving such sympathy (though essentially in terms of financial aid) such that the condition of destitution can be avoided.
Basing upon these, it is being felt that having if the right is based on the concept of equity, why the same should not be extended towards husbands who are in the condition of penury and deserve a support from a well-to-do wife. It is upon this count that several grounds are considered in the present article upon which the claim of husband be based.
Under the ancient Hindu law the liability to provide maintenance arose in either of the two ways, (a) on account of the relationship between the parties, or (b) on the ground of the position of property. Upon the first Manu is cited as declaring that ‘one must maintain one’s aged parents, a virtuous wife and the minor son by doing even 100 bad acts’. From the verse it follows that irrespective of the position of property there is a personal obligation upon a father to maintain his minor son, upon a son to maintain his aged parents and most importantly a husband towards his wife must make a provision as for her maintenance. The obligation in this case is so severe that it has been prescribed that a man who does not maintain the said categories should be fined 600 panas by the king and also such punishment as required in the case.
In certain specific circumstances also maintenance was required to be paid. For example, it was a duty upon a husband, to provide for his wife, when he went abroad for business, in the form of maintenance. This right of maintenance existed even towards concubines kept as abaruddha (one who was kept in the house itself and forbidden to have intercourse with any other man). This position was given statutory recognition, forming it as a sort of legal right by section 488 of code of criminal procedure of 1898. Further the Hindu adoption and maintenance act, 1956 provides for maintenance of wife and other dependents.
The simple implication that can be derived of the historical situation is that the moral duty, as we say it to be today, was an obligatory requirement necessarily to be fulfilled and the same has continued to be reflected while litigations on the aspect of interpretation of maintenance rights were entertained. The underlying reason for such a provision was the fact that the wife was seen as a dependent upon the husband and for this fact, law was bent to protect her interest and to provide for her sustenance in case she was destituted by her husband or left uncared for, the former not being in a position to earn a living or to make her two ends meet. Thus, a matter of personal obligation was made a statutory duty.
However it was never considered, in any case howsoever exceptional, as to whether husband could claim maintenance for the wife. In fact, the huge inequality of the status between the two spouses brought in a sort of taboo whereby husbands would be reluctant to claim maintenance from wife in fear of the social stigma that would have been attached against the name if they tried to claim maintenance from the wife. Practicality to that would have been impossible for, maintenance was given only from the income of an earning spouse and in no case, at that point of time, the wife could have or expected to have earn a livelihood from her own working on account of the qualificational bar that was attached to her being a female. Thus the concept of maintenance of husband in the ancient law could not have been conceived.
The ancient Hindu law regarded Vivaha (marriage) as one of the most important of the several Samaskaras and the sanctity attached to the relationship of husband and wife brought about by such Vivaha made it an inseparable relationship. It was, however, not exactly a right in the strict sense of the term, rather a duty upon the husband to provide for his wife, when he went abroad for business, in the form of maintenance. The prime consideration of this rule was the inability of the wife to maintain herself. The ancient legal recognition of the wife was based on fidelity interest. The wife was expected to be honest and faithful to the husband, who in turn was obliged to maintain her with the same comfort and peace, as he himself was in. As enunciated earlier, it was duty towards one another and was followed as an obligation rather than a party claiming from the other.
Daksa II defines Posyavarga ( persons whom everyone, however poor, is bound to maintain) as follows: ‘the parents, the guru, the wife, children and a helpless man who has taken shelter with one, a guest and fire. Manu VIII 389 prescribes that the man who abandons and does not maintain his parents, wife, and son, when they’re not outcasted should be fined 600 Panas by the King. Yaj I 74 requires the husband to maintain a wife whom he has suppressed in the same way as before, otherwise he would be guilty of great sin. Yaj I 76 says that if a man abandons the wife who was obedient, diligent, the mother of a son, and agreeable in speech, he was to be made to give one third of his property to the wife, but if he has no property, he had to maintain her.
Wife was seen as the dependent on husband because of this reason, the law was bent in her interest to provide for her sustenance in case of her being left destitute by her husband and being in so inferior a position, could not earn a living. Rather she was not expected to earn a living for herself. In short, socially as well as legally, the husband was in an obligation to pay maintenance to the wife. This position was crystallised during the British period where the prevalent judicial upon Hindu law was that the maintenance of a wife by her husband was a matter of personal obligation. The judicial view was given finality by a statutory recognition forming it as a sort of legal right (thus deviating from the concept of duty, as earlier considered) by section 488 of the code of criminal procedure of 1898. Thus we find that the very concept of maintenance arose to aid those who were destitute and unable to provide for their own sustenance.
Basis of Equity:
Equity, as having been explained as the prerogative of the chancellor, is another basis for grant of maintenance. Equity as it stands up today (or even earlier) demands that proper adjudication of rights be done and relief in the true sense of the term, should be what accrues to the parties. Thus, if the husband after divorce was well to do, the wife could file for maintenance proceedings to end in her favour upon such terms by which she would receive a considerable portion of a stake in the property which now belongs to the husband but wherein she has it right as in before.
If this was the consideration made for the wife, why couldn’t it have been made for the husband as well. It could suitably have been ruled that husband was equally entitled to be maintained by the wife, for financial consideration supported, and he was unable to maintain himself. A specific illustration in this regard can be in the case of love marriage. Suppose parties to the marriage have contracted it with certain reservations raised by their parentage because of it not being made with their consent and the wife was well to do on account of her maternal lineage and upon the marital relationship being broken down, the wife was accepted back but the husband not being well to do was living in a condition of destitution or say at most poverty, still he could not have derived maintenance right from his wife on account of the absence of specific provision in this regard and also no versatility being involved.
Code of Criminal procedure and Maintenance:
Coming to the modern period we find that it was in lieu of this concern for those in severe need of support that the Supreme Court in the case of Vijaya v Kashira interpreted section 125 of criminal procedure code, 1973 to include the right of parents to claim maintenance from the daughter irrespective of the fact that the obligation to pay maintenance was only upon a male in the light of the term “His” in the language of the said section. The court categorically stated that “we are of the view that section 125 (1) (d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself. Section 488 of the old criminal procedure code did not contain a provision like clause (d) of section 125 (1). The legislature in enacting criminal procedure code 1973 thought it wise to provide for the maintenance of the parents of a person when such parents are unable to maintain themselves. The purpose of such enactment is to enforce social obligation and we do not think why the daughter should be excluded from such obligation to maintain their parents.
Further, the court observed that there can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve. Apart from any law, the Indian society cast a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm. Thus we find that the court that reiterated the test for providing maintenance. Once the court finds that there is a need for the appealing party to provide for his or her maintenance, the court would insist upon it being provided.
However her quest for a husband’s right to claim maintenance from the wife is mitigated by the view of Patna and Madras High Court holding that section 488 (now 125) of the code of criminal procedure, which does not recognise the liability of both the spouses to pay maintenance, is not unconstitutional and is within the confines of the protective discrimination under article 15 of the Constitution and aims to prevent the starvation of wives deserted by their husbands. Nevertheless, in view of the increasing desire for equality in maintenance rights, various concerns have been raised against existing provisions. Called upon to interpret the meaning of person under section 125 of code of criminal procedure, the Karnataka High Court observed that, in the expression “any person having sufficient means”, “person“ is a term of wider connotation and may include natural person or a juristic person if context so required. Referring to the provisions of the general clauses act, 1897 (Section 3), the court came to hold that the definition of person is inclusive and illustrative and means that it may include in itself a natural person as well as the juristic person and since natural person means an individual without distinction of male or female and as such, person may include a female as well. The court concluded that, the referring to the explanations in the Indian Penal Code as well as the general clauses act for the purpose of section 125 when section 125 used the word “person, “ it has to be taken to include both “male“ and “female“. This meant, the court observed, that is any “male “or “female “having sufficient means neglects or refuses to accept “his “or “her“ liability to maintain then if other conditions of either clause (a), (b) or (c) of section 125 are shown to exist, liability may be fastened to maintain. The court fell just one step short of declaring the husband to have a right to maintenance but since the instant case was not of the husband making a provision for maintenance so the court did not express any opinion on that and left it for consideration at appropriate stage when any such problems or question arises before the court in that context.
As stated earlier, as of present, the right to maintenance available to a husband, if any, is only under the Hindu Marriage Act, 1955 (Section 24 and 25). However, it is surprising to note that in almost about five decades of its being in force, there are only two reported cases wherein the husband has been found to claim maintenance from his wife. However, in both the cases the claim of the husband failed. In Lalit Mohan v Tripta Devi it was observed that section 25 of the Hindu marriage act, was a provision in the nature of social welfare legislation to enable the divorced wife or minor children from the vagaries of life and not to lead them to be subjected to frustration of life or destitution. Therefore, it’s being a social welfare legislation, it has to be interpreted in the best possible interest of the society and in the interest of social purpose. “In the case, the husband, a rickshaw puller, claimed maintenance from his wife claiming therein that since he was unable to pull the rickshaw and thereby was unable to earn, his wife who had been earning by doing household chores in the neighbouring houses was bound to maintain him.
The court, accepting that the husband had such a right of maintenance dismissed the claim of the petitioner on the ground that he had incapacitated himself from earning by not pulling the rickshaw of which he was capable of and therefore he could not have exercised such a right. The court observed that the object of such a provision was that such persons who were not able to maintain themselves should not be left to the agony of starvation, frustration or of destitution and in case of female destitution, which may lead to prostitution. Nevertheless, the person who was capable to earn but incapacitated himself from earning by a voluntary act, could not claim such a beneficial right.
The court commenting upon the nature of the provision, observed “ The provision for grant of maintenance and expenses of the proceedings under the act is in fact a revolutionary provision made in as much as there is no such corresponding provision in any enactment relating to matrimonial law in force in any of the countries of the western civilisation. In those countries, it is only the wife who is entitled to such a right and not the husband. The object of the section is that none of the party should suffer to get adequate justice from the court on account of his or her financial difficulties. The reasons for enacting the provision is that a wife or husband who has no independent income sufficient for her or his support or enough to meet the necessary expenses of the proceedings may not be handicapped. Such a provision was made on social and moral grounds with the motive that the party should be able to maintain himself or herself during the pendency of the proceedings as there was no freedom of contracting another marriage. The intention of the legislature was to provide financial assistance to the indigent spouse during the Proceedings and after the passing of the decree. The other spouses under an obligation to provide the indigent spouse financial assistance so that the proceedings may be conducted and he or she be maintained during the pendency of the proceedings and not forced to starvation or moral degradation. In another case, the High Court of Rajasthan observed that right to maintenance forms a part of the personal law and the obligation of the spouse to maintain the other arises out of the status of the marriage.
With the express direction in article 44 of the Constitution and the recent judgements of the Supreme Court wherein the urgent need to adopt a uniform civil code, it is imperative to analyse or present design with a uniform civil code perspective. The aim of the deliberation is to identify whether the husband’s right to maintenance as tenable Hindu law, shall be as well sustainable in other personal laws such that it can be included in the code which comes in the furtherance of article 44 that is Uniform Civil Code. First of all it has to be noted that uniform code shall be a consolidatory attempt that is incorporating the best features of all the religions prevalent in the country. This clearly implies that equality, which many religions lack, shall be the prime concern in the draft of such uniform code and females shall enjoy equal rights as of their male counterparts, a notion which deserves great appreciation. However, it is equally true that what is available for the fairer sex should also be made available for the males though seeking absolute equality here would be hilarious yet, where possible, beneficial provisions should be made wherever possible giving equal protection and benefits to both the sexes. Therefore, the natural argument goes that if maintenance is a beneficial provision and the real intent is to prevent destitution in poverty, it should be granted to all, irrespective of their sex and thus to both husband and wife.
The need to augment equitable social conditions for both the spouses maybe the basis for arguing a case for husbands to have a right to maintenance from their wives. Nevertheless, few questions remain yet to be answered. In this quest for the right of the husband, are we not viewing marriage as a purely simple contract wherein we wish to equate them on similar footing? What an answer do we have to feminist jurists who, and rightly though, contend that such a provision would become a potential weapon or grounds for indolent husbands to make frivolous and vexatious claims against their wives and ruin the social institution of marriage? On the other footing, if we cast off the potential misuse of the provision, it can well be a step towards gender equality and gender justice.