Author Name:   shiva satish

At the outset, it must be pointed out that the existing laws of maintenance are disparate, chaotic and scattered. Maintenance law in India relating to Hindu female...

Protecting Economic Rights of Hindu Women:
 Need & Feasibility of Matrimonial Property Law in India

At the outset, it must be pointed out that the existing laws of maintenance are disparate, chaotic and scattered. Maintenance law in India relating to Hindu female can be, broadly, categorized into two types. The first type envisages maintenance following a divorce, or some other matrimonial remedy, such as, nullity of marriage. The second type envisages maintenance during the subsistence of marriage. In the first category, The Hindu Marriage Act 1955 (HMA), Section 25[1], empower courts to order the payment of maintenance as an ancillary relief while granting a matrimonial remedy. The second category consists of two legislations that envisage maintenance to a wife and other near relations such as parents and minor legitimate and illegitimate children. These are Sections 125-1­27 of the Code of Criminal Procedure 1973 (Cr. P.C), and the Hindu Adoptions and Maintenance Act,[2] 1956 (HAMA). These legislations are independent of the litigation.

These statutory laws relating to maintenance are not uniform as regards their policy and purpose. The provisions of Special Marriage Act, 1954 and Cr. P.C. (barring an exception in Cr. P.C provided in 1986 as regards Muslims) can be availed of by all, irrespective of their religious faith. The other statutes are personal laws, that is, laws applicable on the basis of religion professed by an individual.

A noteworthy feature of maintenance statute in India is that they are based not on the concept of equal economic partnership of husband and wife, but on the concept of maintenance as gratis or at best an act of compassion[3]. This is revealed by the phrases adopted by the enactments in the first category: 'having regard to ... income and the other property of the applicant' (Section 25, Hindu Marriage Act, 1955); coming to the Acts in the second category, under Cr. P.C, a wife who is 'unable to maintain herself' can claim maintenance. The object of the Act is to prevent starvation or destitution.

Hindu Adoptions and Maintenance Act 1956 (HAMA) also says that a court, while granting maintenance, should have regard to 'the value of the claimant's property and any income derived from such property, or from the claimant's own earnings, or from any other source[4].

Another feature of the laws of maintenance is that maintenance is conditional upon certain norms of behaviour. Hindu Marriage Act 1955 (HMA), require that the wife in whose favour the maintenance has been granted should be chaste and should not remarry. Cr. P.C requires the wife not to be 'living in adultery'[5], while Hindu Adoption and Maintenance Act, 1956 imposes the condition that she remains chaste and not cease to be a Hindu by conversion to another religion. This position may be compared to that of a widow who succeeds to the property of the husband on his death. She does not forfeit her right in the property either by subsequent unchastity or by remarriage[6].

The above mentioned provisions of various maintenance laws, explicitly reveal that maintenance right of the female is not absolute but a conditional one; it points out the coercive nature of such prescriptions. It notes that the economic dependency of the wife during marriage is perhaps the surest ‘guarantee’ that she will have need for support after separation. [7]

However, the ability of a wife, upon dissolution or breakdown of-the marriage, to continue to enjoy the privilege of, or perhaps more accurately, to remain in the condition of dependency may depend not upon this need, but upon a favorable assessment of the propriety of her personal conduct. Thus, to the moral standards that prescribe contemporary norms of marital conduct for both spouses, the law adds an element of financial coercion based upon individual behaviour or 'worthiness' that is applied only against the wife[8].

The prevailing norms of maintenance do not take into consideration a divorced woman's loss of career opportunities or late entry into profes­sion on account of marriage or because of the custody of children born out of the distorted wedlock.

Maintenance is in the nature of a personal right and is liable to be defeated on the death of the person under obligation to provide maintenance, unless a charge had been created on the immovable property. (By definition, whenever immovable property is made to secure the payment of money, and it does not amount to a mortgage; a charge is said to have been created.) The amount that is granted as maintenance depends largely on the discretion of the judge and its realization in civil cases is affected by the whims of the husband, which proves torturous to the claimant. Mounting inflation is not kept in view and the maintenance granted by courts quickly gets reduced in real value. It is unrealistic to expect a claimant to approach the courts frequently for enhancement of maintenance[9].

Under the present chapter an attempt has been made to ascertain the nature and scope of the alimony and maintenance under Hindu Marriage Act 1955 and other enactments like Hindu Adoption and Maintenance Act, 1956 and under Section 125 of the Code of Criminal Procedure, 1973 and an endeavour has been made to locate the anomalies and the insufficiency of maintenance to nurture the lives of the deserted helpless females and in addition to bring up their lives with the children as the case may be, and emphasize has been laid on the recent Supreme Court decision[10] in which maintenance was denied to the wife because her marriage was void in the eyes of law.

2. Maintenance under Hindu Marriage Act, 1955
Alimony pendete lite under the Hindu Marriage Act which is dealt with by section 24, provides for the allowances which husband or wife in accordance with the order of the Court pays to other spouse for maintenance till they are separated or after they are divorced ( permanent alimony) or temporarily ,pending a suit for divorce (pendete lite). The object for enacting the provision for maintenance and expenses during the pendency of the proceedings in Section 24 is that a wife or husband, who has no independent source of income sufficient for her or his support or enough to meet necessary expenses of the proceedings, may not be handicapped.[11] So, the doctrine of pendelite and permanent alimony is based on economic tutelage and if any spouse, to the satisfaction of the court, is well of then, it no longer remains obligatory for him/her to maintain the other spouse

The power of the court of ordering alimony pendelite in a proceeding for matrimonial relief has been provided by section 24 of the Hindu Marriage Act, 1955.[12] The liability is on the person who initiates the proceedings to maintain the opposite party during the pendency of the proceedings if the opposite party is unable to maintain herself and to meet the expenses of the proceedings.

3 Judicial Observations on Alimony Pendelite
The discretion in the matter of granting maintenance pendete lite and cost of the litigation is to be exercised on the sound legal principles, if the applicant has no independent means; he or she is entitled to interim maintenance and expenses unless good cause is shown for depriving him or her of it. The matters that may be properly considered in this connection are:

1.  Whether the applicant is being supported by an adulterer?
2.  Whether the respondent has not sufficient means?

The fact that the petitioning spouse is maintained by his or her parents; is no ground of deprive him or her maintenance rights and expenses of the proceedings.[13] For considering the application for the grant of interim maintenance, only independent income of the petitioning spouse or the conduct of her is material.[14]
The expression 'sufficient' in the colloca­tion of the word 'sufficient' means for his or her support 'Sufficient' is not 'some'. The word 'sufficient' connotes that the income of the applicant must be such which would be sufficient for a normal person for his or her sustenance as well as to meet the nec­essary expenses of the proceeding.[15]
However, there are numerous cases[16] in which court has granted the maintenance to the wife; as in most of the cases the wife was dragged out of her matrimonial home and was compelled to seek support and security from her parental home. The question whether as to ascertain the guilty party cannot be de­cided at the time of passing order of main­tenance pendente lite.[17]

4 Maintenance pendelite: only moveable property to be considered
It is noticeable that Sec. 24 of Hindu Marriage Act only refers to income and not other property. So, in case of alimony pendente lite other property of the spouses should not enter judicial con­sideration. Therefore Immovable property yielding no income cannot be considered. Only the income out of it received by the applicant can enter judicial consideration. To have alimony pendente lite it is not necessary that petitioners should have no Income of her or his own. If the income of the petitioners is found by court to be in­sufficient to support her/him the court may order the other party to pay to the petitioner an allowance monthly and litigation ex­penses. Even if the petitioner fails to aver that she has no source of income the peti­tion is not liable to be dismissed.[18] The word sufficient is a relative term and has to be considered on facts of each case. In Sousseau Mitra v. Chandana Mitra[19] Case; The Court can legiti­mately take into consideration his ability to earn a reasonable amount.

In Shiva Kumar v. Pushpa Rekha,[20] it was held that alimony pendente lite and litigation ex­penses may be granted in any proceedings under the Hindu Marriage Act, 1955 provided other conditions for such grant are satisfied. The grant of such relief is not in any case dependent either on the merits of the case or on the ultimate success of the main petition.

5 Alimony pendente lite: quantum
In case of ordinary or small incomes, a rough working rule adopted by some courts in India under some analogous legislation is to assess the amount at one third of the aggregate income of the husband and wife, less the wife’s income. It is submitted that in cases, falling for determination, there can be no datum line but only the rough working rule is adopted in fixing the amount of maintenance[21]
The­ preponderance of judicial opinion is that in respect of alimony pendente lite under the Hindu Marriage Act, 1955 there is no hide bound formula as to the quantum the Court is to award as alimony pendente lite. There is no fixed formula for allowing maintenance out of the income of the husband to the wife. In some Cases, 1/3rd of the income of the husband has been allowed as maintenance to the wife and in some cases one-half of the income. Maintenance for the wife is to be fixed by keeping in view facts and circumstances of each case. [22]

In Radhika v. Vineet Pungta[23] the wife in her application for interim maintenance did not disclose the real income. Section 24 does not bar proceedings under section 125 Cr P.C, being separate and independent remedies. Also by the reason of the section 4(b) of the Hindu Marriage Act, it does not prevail over the provisions of 125 Cr.P.C, although amount granted under 125 Cr.P.C may be taken into account while awarding maintenance pendente lite.

6 Conditional Permanent Alimony under Hindu Marriage Act, 1955
Section 25 of The Hindu Marriage Act, 1955 makes provision for the grant of permanent alimony. This grant of permanent alimony and maintenance is circumscribed by two conditions; first, grant will remain enforce till the applicant remains unmarried aid pursues the chaste life. Secondly the grant is personal right of the applicant and extinguishes with the death of the applicant.[24]
The concept of 'permanent alimony' is not an indigenous concept grown on the soil and there was no law of divorce amongst Hin­dus In the country. But when the Act was enacted providing inter alia for divorce amongst Hindus, the concept of 'permanent alimony' was borrowed by the draftsmen of the Act from England. In England, wife is entitled to permanent alimony from the hus­band where a decree is passed granting re­lief by way of Judicial separation, divorce or nullity of marriage.[25] Whether the decree be passed in favour of the husband or the wife. The wife can ask for permanent alimony from the husband. The reason for awarding per­manent alimony to the wife seems to be that if the marriage bond which was at one time regarded as indissoluble is to be allowed to be severed in large interest of society.

The considerations of public interest and social welfare also require that the wife should not be thrown on the street but should be provided for in order that she may not be compelled to adopt a disreputable way of life. The provision for permanent alimony is, therefore really incidental to the grant­ing of a decree for judicial separation, divorce or annulment of marriage.

The right of permanent alimony is statutory right and as such it cannot be abridged or taken away by any contract of the parties to that effect. Thus the husband can not con­tract out nor is the wife bound by any contract.[26] The description of the parties for purposes of Section 25 continues be exactly the same as it was in the original proceeding for any decree under the Act. [27]

The fact that the proceedings for grant of permanent alimony are incidental to the main proceedings also lends support to this approach. Therefore all application under Section 25(1) Hindu Marriage Act, 1955,can be male even after the grant of a divorce decree. This section has no application where a marriage is ad­mittedly a nullity. But where the question of nullity is in issue and is contentious, the Court has to proceed on the assumption until contrary is proved that the wife is the applicant.[28]

7  No Maintenance if Relief not granted
As interpreted by various High Courts that if the application for the substantive relief under Hindu Marriage Act has been dismissed, the court could not grant the ancillary relief of Alimony under this provision. This view was on the basis to term ‘decree’ as interpreted as to put to an end the marital status of the parties.[29] Although there was divergence of the judicial opinion over the issue as some High Courts gave the contrary interpretations[30] yet Supreme Court also asserted the views about the necessity of disruption of marital status for the relief under this section[31]; in this back drop; it can be deduced that if restitution of conjugal rights are not granted in favour of wife; she can not claim maintenance under this section

In the context of Section 25 of the Hindu Marriage Act, 1955, the expres­sion, ‘any decree’ means any of the decree referred to in the earlier provision of the Act, i.e. nullity of marriage or of divorce passed under Sections 9 to 14 of the Hindu Marriage Act, 1955. When the main petition is dismissed and no substantive relief is granted under Sections 9 to 14 of Hindu Marriage Act, 1955, there is no passing of a decree as contemplated by Section 25 of Hindu Marriage Act, 1955, the juris­diction to make an order for maintenance under the section 24, 25 does not arise. The term “only decree" in the section, however, can­not be construed to include “every decree" In Bhau Saheb v. Leelabai[32] the issue in­volved was whether an order dismissing a wife's petition seeking declaration that mar­riage was valid can come under the return "any decree". The Court considered some hy­pothetical situation to indicate that the term “any decree" cannot be expanded or stretched too liberally to include any Court order.

8 No Maintenance to defrauded wife
If we trace the judicial attitude over the fraud cases where the pre existence of the living spouse is concealed; various High Courts have opined that in case of void marriage, maintenance order cannot be passed.[33] The Supreme Court although set-aside the notion in R.C Daga v. Rameshwari Daga [34] and gave the contrary view but if the recent decision of the apex court is analysed it has been expressly held by the court that maintenance can not be given to the wife of the void marriage.[35]
9 Maintenance denied in case of divorce by mutual consent

In the recent decision[36] of Rajasthan High Court, where the parties divorced on the ground of mutual consent; it was held that the wife could not claim any maintenance or interim maintenance and expenses of the proceeding from the husband.

10 Non Disclosure of respondent’s Income; another Lacuna
It is common knowledge that in mainte­nance cases parties rarely disclose their actual income. It is application for interim maintenance admitted that she had some nominal income from some deposits though she did therefore, left to the court to make an assessment by taking various factors in to the consideration, one of the most significant factors is the lifestyle and status of the parties.

A problem arising under Section 25(1) of the Hindu Marriage Act, 1955, is of ascertaining the income and property of the parties for fixing the quantum of alimony and maintenance. In practice the difficulty comes in ascertaining the income and prop­erty of the respondent. The applicant is not generally aware of or is not in possession of documents from which the income of re­spondent can be ascertained. Such docu­ments are accessible to the respondent only. It is, therefore, suggested that matrimonial statutes themselves should contain specific provisions which would make it obligatory on the parties of maintenance proceeding to produce documents particularly 'Income­ tax Return". In an instant judgment Allahabad High Court observed that with­out recording any finding regarding income of the husband for payment of maintenance is not proper.[37]

11 Permanent Alimony as Compared to Maintenance under Hindu Adoptions and Maintenance Act, 1956
Section 25 of Hindu Marriage Act 1955 differs from Section 18 of the Hindu Adoptions and Maintenance Act, 1956. Though this section confers power on the Court to order the permanent alimony and maintenance but this power is discre­tionary and is exercised with reference to certain well established principles. On the other hand, Section 18 of the Hindu Adoptions and Maintenance Act, 1956 does not provide any such discretionary power and as such the Court is to pass order un­der this section on determination of ques­tion of facts and questions of law. Thus, no question of judicial discretion is involved in this matter. Further Section 4 of the Hindu Adoptions and Maintenance Act, 1956 does not impliedly repeal Section 25 of the Act.

12 Valid Marriage a condition of Maintenance under section 18 of the Hindu Adoption and Maintenance Act, 1956
Under Section 18, husband is personally liable for his wife's maintenance because such right is an incident of the sta­tus of matrimony. For such right valid marriage is a pre-condition. This right of wife is a part of our ancient law but such right does not accrue in case of void marriage. The right may be refused if decree on resti­tution of conjugal right is operating against wife.[38]

In this context it is relevant to mention here the restricted meaning of ‘wife’ given by the High Court of Andhara Pradesh in the instance [39] held that the second wife cannot claim maintenance under sec.18 of the Hindu Adoption and Maintenance Act, 1956 ; and the decision of the apex court in Yamuna Bai v. Anant Rao,[40] was referred to in which it was held that the expression ‘wife’ used in 125 Cr.P.C would have a restricted meaning and such a wife was not entitled to maintenance.

It may be noted that in of Section 25(1), Hindu Marriage Act, 1955 apart from various other mat­ters to be taken into account the Court is also to take into account -the conduct of the parties when a request is made for payment of alimony and maintenance. Section 25(2) provides for the Court varying modify­ing or rescinding any order already passed under section 25(1) of Hindu Marriage Act, 1955 on being satisfied that there is a change in the circumstances of either party at any time after the order was passed under section 25(1). But there is another special provision contained in ­section 25(3) making it obligatory on the Court to cancel an order passed under sec­tion 25(1) Hindu Marriage Act, 1955 under the circumstances mentioned in that sub-section. [41] The Court has to cancel an order passed under Section 25(1). These circumstances are:

i) The party in whose favour maintenance is awarded has remarried;
ii) If that party is the wife, that she has not remained chaste; and
iii) If such party is the husband, that he had sexual intercourse with any women outside wedlock.

13 Death of the Indebted Spouse and its Effects on Maintenance
The right of maintenance provided in favour of wife on divorce under 125 Cr.P.C and Hindu Marriage Act is right in personam and not the right in rem. Payment of alimony is by nature, a personal obligation and so it must inevitably come to an end with the deceased husband and no longer being there to fulfill it.[42] The one exception is when the decree of the court exercising matrimonial jurisdiction secures the payment of maintenance by making it a charge on the movable or immovable property of the husband.[43]

As regards a wife, the position is different under Hindu Adoptions and Maintenance Act, where a wife is mentioned as a dependent. If, therefore, a wife is disinherited by the husband, or does not have a share in the property, she, as a dependent, 'shall be entitled ... to maintenance from those who take the estate. But Section 21 of Hindu Adoptions and Maintenance Act enumerates the dependents of a deceased, mentions 'his widow, as long as she does not remarry.' Obviously the term 'wife' excludes a divorced wife and therefore, in the absence of a charge created over the property of the deceased, on the death of the person liable to maintenance, her prospect of getting maintenance will vanish into thin air and her only recourse is the welfare payment given, if at all, by the State.[44]
14 Debts Prioritized and not the maintenance

Indian law for too long, perhaps under the influence of the mercantile traditions of English law, has concerned itself more with the protection of creditors’ rights than with the protection of the property rights of wives, even though the latter may be at an earlier point in time. For example, Section 26 of Hindu Adoption and Maintenance Act, 1956 says that 'subject to the provisions contained in Section 27 debts of every description contracted or payable by the deceased shall have priority over the claims of the dependents for maintenance under this Act.'

Unlike Muslim Law, where dower is regarded as a secured debt in certain sects, in Hindu Law, maintenance rights are subordinated to debts-of the deceased, unless a charge had been created over an immovable property, that is, immovable property is made a security for the payment. Section 26 of under Hindu Adoptions and Maintenance Act lays down this rule. As regards the prioritization of debts, the rule is that whichever debt was incurred earlier has priority in law. The obligation to maintain arises on marriage: how then can the debts contracted subsequent to marriage be accorded priority, as they are under some personal laws?

Moreover, the dower as mentioned above as secured debt, also negated by the Supreme Court. To illustrate, in Kapore Chand v. Kadar Unnisa[45] a creditor of the husband obtained an attachment order of the house of the debtor, for the realization of his debt. The house was the only property of the debtors. His wife contested the claim stating that her dower debt was payable out of the proceeds of the sale. The amount was sufficient only to discharge one of the debts. The Supreme Court held that the creditor was entitled to priority for his debt. The result of the decision was to leave the family homeless and destitute.

Questions connected with non-realization of maintenance are of considerable importance for women because maintenance is the basis of their survival and its deprivation leads not only to financial difficul­ties but also to associated social problems such as prostitution, beggary or bonded labour.

15 The glaring lacuna: Only money and no home
The Indian society, though with the lesser intensity than it used to be; terms the divorced women; as a burden shifted back to parents. She has to live a stigmatized life as some times has to face derogatory colours of life; in this context, if she doesn’t remarry, she would have to submit herself to the destiny and has to bring up the child, as the case may be. Thus, the concept of matrimonial home comes to the light.

Wife's occupational rights in the matrimonial home play an important role due to her general financial dependence on the husband; but they become all the more important in cases of domestic violence, and where a wife has been deserted by the husband. The two situations demand a separate consideration. A wife's occupational rights in the matrimonial home become a critical aspect, as she is forced to cope up with unjust and unwarranted treatment­ even brutal treatment in case of domestic violence-because of her inability to find alternate accommodation. Similarly, in case of desertion, she becomes a homeless destitute. Her children suffer no less. Although, the concept of ‘shared household’ has been recognized under Domestic Violence Act, but still legislative effort is required to actualize the concept in the arena of maintenance and matrimonial proceedings.

Section 18(2) of Hindu Adoptions and Maintenance Act, 1956 says: 'A Hindu wife shall be entitled to live separately from the husband without forfeiting her claim to maintenance' and proceeds to enumerate the grounds. In other words, it does not specifically grant either the right of occupation against the husband, or the right to get an order preventing his entry into the matrimonial home.

Even if there is an enactment recognizing the ownership rights of a non-owning spouse in the matrimonial home, there will still be a need for legislation on the lines of the Family Law Act, 1996 in England. This is because many legislations dealing with sharing of matrimonial property draw a distinction between short-duration marriages and those that are not, and confine such rights of owner­ship to the non-owning spouse of a marriage that survived a specified period. Thus, there is a need for legislation in India to provide victims of domestic violence and deserted wives with rights of occupation in the matrimonial home, rights that can be exercised against the spouses who have ownership or leasehold rights in their favour.

16 Maintenance Right in Family Property
The existing law primarily considers maintenance claims as being against individuals only. The obligations ought to rest on the indi­vidual first, next on the family, and finally on the State, as envisaged by the Constitution.[46] Let us now consider some aspects related to the progression of the right from individual to familial or quasi­ familial obligations. There are several arguments in favour of viewing maintenance as a familial obligation. Traditionally, under Hindu law it was considered an obligation of the husband's family. Mayne says, 'The importance and extent of the right of maintenance necessarily arises from the theory of an undivided family.'

The Hindu Adoptions and Maintenance Act essentially deals with the liability of the husband's family. It is submitted that the question is not of the personal law of the majority and minority community, but that of social and distributive justice, and the right of a divorcee as a father was allowed maintenance from his daughter[47] and step mother from step son.

The augmentation of familial institutions to assist the members of the family would achieve the objective to provide for a divorced Hindu wife, who is not entitled to maintenance, from the heirs who take the estate as she is not enumerated among the dependents under Section 21 of Hindu Adoptions and Maintenance Act

A major patriarchal feature of the existing law is that a wife is not entitled to any share in the accumulation of property made by the husband during coverture. The law should provide that on the disso­lution of marriage either by a decree of divorce or under customary or personal law, the other spouse should be entitled to a share in it.

17  Judicial Panorama over the issue
In India the conservative view, where individual rights in property override the familial rights has been observed to be prevalent. For example, in Pakhiraj Jain v. Naina Jain,[48] judiciary took the conserva­tive view that a woman's re-entry against her husband's will was illegal trespass as the property was in the husband's name. However, occa­sionally the modern trend, wherein familial rights subordinate the property rights of the husband; is also noted. The judgement of Justice Choudary in In the matter of B.HP. & V. Ltd., Visakhapatnam,[49] in a revision petition represents a modern view rooted in modern jurisprudence, where the obligation of the husband to maintain the wife and her needs were taken into account. As it marks a break from the past this decision needs a closer look.

In B.HP & V Ltd., one Prasadarao, an employee of the Bharat Heavy Plates and Vessels Ltd., took on lease the company quarters, which was regarded as the matrimonial home of the parties concerned. Differences arose between them and the husband left the matri­monial home. The wife continued to live in it along with her three minor children. Subsequently, the husband informed the company that he was terminating the lease and would not be liable for the payment of rent. The company, on receipt of the letter, asked the wife to vacate the premises. The wife sought a permanent injunction against eviction. The District Munsif gave an interim injunction, but later vacated it, thereby leaving the company to forcibly vacate her and her children.

On appeal, the District Judge held that the wife and children of the employee could not be forcibly evicted except by the due process of law, and that the company could take proceedings under the provisions of the Public Premises Eviction of Unauthorized Occupants Act 1971. The company filed a petition for revision of the decree before the High Court. Rejecting the revision, Justice Choudary observed:

“The husband is under an obligation to provide shelter to his wife and children. The husband and the company acting in different ways have been recognising all these years the occupation, of the quaver by the wife in her matrimonial right.”[50]

The learned judge negated the contention that the company, as owner of the quarters, was entitled to evict the wife and children. Relying on the phrase 'socialist republic' occurring in the Preamble to the Constitution of India, he distinguished the concepts of property in the Anglo-Saxon jurisprudence and the socialist jurisprudence. In the former, he pointed out, property is the relation between a person and an inanimate thing, while in the latter it refers to the relationship of the person who owns and another person; in a socialist state owner­ship rights cannot be used so as to destroy the happiness of others. He further observed that the concept of State action prohibits the courts from enforcing rights that tend to destroy the happiness of others. The decision of Justice Choudary in B.HP. & V. Ltd. is yet to entrench itself as a well-recognized doctrine in Indian law.

18 Maintenance under 125 Cr. P.C.
Code of Criminal Procedure contemplates the payment of maintenance by a husband (father or son) to a wife (child, father or mother respectively). The term 'wife' includes a divorced wife also for the purposes of the Code. The claim for maintenance must satisfy the following conditions:

(1) The person from whom maintenance is claimed must have sufficient means to maintain;
(2) The person claiming maintenance must be unable to maintain herself or himself.

In case the claimant is a woman, the following special conditions must also be fulfilled:
(1) She should not be living in adultery;
(2) She must not have refused without sufficient reasons to live with her husband; and
(3) She must not be living separately by mutual consent.

The summary procedure adopted for deciding maintenance claims is not formal and elaborate. Also, there is no need to frame a formal charge

No doubt that stringent enforcement measures are provided under the Act. In case of default in payment of maintenance, a warrant may be issued for its levying in the manner prescribed for payment of fines. If the amount still remains unpaid, a warrant of arrest may be obtained but as this measure of arrest is seldomly resorted by wives.

However, in this case also, the important consideration is of the quantum of the maintenance granted under section 125, Cr.P.C. Although, the provision of interim relief has been introduced in this section but no permanent settlement is accorded to the destitute wife as the provisions are not stringent enough to tackle the defaulting husbands.

19 Gap in Legal Status and Social Change: Problem of Implementation
Indian society has failed to keep pace with law and the changing legal status of women. Neither the child marriages nor dowry could be prevented. Rather after passing of the Dowry Prohibition Act, 1961, dowry and dowry crimes have increased and even after two recent amendments in Dowry Prohibition Act, dowry is at increase through the impact of addition of 498 A and 304 B and other reforms in this regard is premature to be commented upon. Hindu women's succession rights are honored only in their breach or mostly defeated by making a will. There is a big gap in availability of legal rights and their actual enjoyment or implementation. Educational constraints and social awkwardness of the majority of Indian women accounts for the great hiatus between their legal status and their actual position in the life and society, and their failure to utilize legal rights available to them for improving their social status. But there is lacuna at least on the part of the government also and in its implementation machinery. The fact that Family Courts Act- was passed in 1984 but still except few cities, no Family Courts have been established is a glaring example.

20 Suggestions as to maintenance law under the code of criminal procedure
Maintenance order passed under Section 125 of Cr. P.c.), he should be liable to undergo rigorous imprisonment (to serve as a deterrent) for a term that may extend to 6 months and should also be liable to pay a fine equal to twice the amount of arrears of maintenance or permanent alimony.

Yet another important recommendation was made by the Com­mittee on the Status of Women for the effective realization of amounts granted under maintenance orders, namely, all maintenance orders should be deducted at source by the employer and that in other cases arrears of maintenance should be recovered as 'arrears of land revenue or by distress'. These statutory recommendations, which will mitigate the hardships of women, still await implementation.

Apart from this, the following changes are suggested in the law of maintenance:
(1) The grant of maintenance should be made solely on the basis of need, and legislative provisions that limit maintenance on the basis of subsequent conduct should be deleted.

(2) The existing priority accorded to debts over maintenance rights should be discarded under all laws. The provision should be extended to claims for dower under Muslim law.

(3) Maintenance claims should be considered as secured debts.

(4) The recommendations contained in the 73rd Report of the Law Commission relating to enforcement of maintenance claims must be implemented.

(5) Maintenance amounts granted by the courts should be deducted at source by employers from salaries, and in other cases, arrears of maintenance should be recoverable as arrears of land revenue, or by distress.

(6) The burden should be shifted to the earning member to prove his or her income.

21  Conclusion
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would only to be to covenant with himself. The husband is bound to provide his wife with the necessaries by law, as much as himself[51].

However even though the remains the part and parcel of his husband’s family and gives best of her life for the sake of the welfare of her husband, children; thrown out of the house in case of divorce and her contribution to rear the family are negated. Nevertheless, she is compelled to adopt the lengthy litigation procedure to get her rights. As it has been noticed in the British Laws, the concept of matrimonial property should also be recognized in India.

According to the Preamble of the Indian Constitution the dignity of the individual man or woman be achieved with justice , lib­erty and equality. The dignity of the women is a new human right recognized under Art. 21 of the Constitution; the right to live un­der Art. 21 is not a mere life -With dignity and worth. The justice includes economic Justice also. There is no period of limitation prescribed by the legislation for filing appli­cation for maintenance. But it is the enforce­ment system provided by the legislature which keeps the poor facing starvation in dark. All should be balanced through utilizing the following doctrines:

Delay defeats justice too.
Justice delayed justice denied.
Justice hurried justice buried

If balance is maintained among these doctrines, the right to maintained may be protected in a proper way can utilized for the betterment of women's position at par with the respondent; which ultimately leads to women's development in holistic per­spective. But it is unfortunate see that few month back Supreme Court made an observation that marriage of woman in ac­cordance with Hindu rites with a man hav­ing living spouses a complete nullity in the eye of the law and such woman is therefore not entitled to the benefit. Section 25 of the Hindu Marriage Act or Section 125 of Cr.P.C, The Supreme Court ought to have realized a social realism and the plight of women, while giving a technical interpreta­tion to the "Wife". A woman who has been kept in the dark about the husband's first marriage should not be made to suffer with­out any fault of hers. Her life has already been ruined because of the fraud commit­ted by her husband. She should not be again made to suffer destitution and denied maintenance. No injustice will be caused if the earning husband is made to bear the liability. It may also be submitted that Sections 24 and 25 should be available for husband only in a rare case like physically or men­tally unfit to earn. However, wife should be given more liberty to get alimony even if she is leading an adulterous life because the right of maintenance should be treated a separate subject. It is entirely different from the ground of divorce validity of marriage etc. First wife should be given an opportu­nity to live the life properly, thereafter other matter should be taken into consideration, as without opportunity live the existence of wife is nothing.
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[1] Section 24:Permanent Alimony and Maintenance-(1) Any court exercising jurisdiction under this act may, at the time of passing of any decree or at any time subsequent thereto, on an application made to it for the purpose either by the wife or husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance or support such gross sum or such monthly or periodical sum for the term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case ,it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of the either party at any time after it has made an order under subsection (1), it may at the instance of the either party, vary, modify or rescind any such order in such manner as the court may deem just

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is husband that he has had sexual intercourse with another woman outside the wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

[2] Section 18.
[3] B.Sivaramayya, Matrimonial Property law in India, Oxford University Press, New Delhi, 1999, p-21.
[4] Section 23(2) of Hindu Adoptions and Maintenance Act 1956 (HAMA).
[5] Section 125(4) of Cr. P.C
[6] Mulla, Principles of Hindu Law, Lexis Nexis, London, 19th ed, 2005, p. 343
[7] Robert Lingatt, The Classical Law of India, Oxford India Paperbacks, London, 2003, p. 134.
[8] Ibid.
[9] Indira Jai singh, Men’s Laws: Women’s Lives, Women Unlimited, New Delhi, first ed, 2005, p. 127
[10] Savitaben Bhatia v. State of Gujrat, AIR 2005 SC 1809
[11] Rukmani Bai v.Kishan lal, AIR 1959 MP187.

[12] Maintenance pendete lite and expenses of the proceedings: Wherein any proceeding under this Act it appears to the Court that either the wife or husband, as the case may be, has no independent income sufficient for his or her support and necessary expenses of the proceedings ,it may ,on the application pf the wife or husband, order the respondent to pay the petitioner the expenses of the proceeding, and monthly, during the proceedings such sum as, having regard to the petitioner’s own income and the income of the respondent ,it may seem to the court to be reasonable.

[13] Muskan Kanwar v. Ajeet Chand, AIR 1958 Raj 322.
[14] Dashrath Yadav v. Saroj, AIR 1989 MP 242.
[15] Kruhnapriya Mahapatra v. Birakishore Mahapatra, AIR 1987 Ori. 68.
16 Gayatri Devi v. Laxmi Kant, (1986) 2 DMC 214 (MP); Munnilbai v. Jagdish Rathore. 1998 AIHC 3600.
[17] Rajesh .K Singh, “Alimony under Hindu Marriage Act, An Overview”, AIR, 2007 Journal Section vol., 4, p. 42.
[18] Sukhpa J Singh v. Shinger Kaur, AIR 1997 P & H 186
[19] AIR 2004 Cal.61.
[20] AIR 2004 NOC 253.
[21] S.A Desai, Mulla Hindu Law, Lexis Nexis Butterworths, New Delhi, vol., 1, 19th ed., 2005, p- 231.
[22] Gurveen Kaur v. Ramjeet Singh Sandhu (1990)2 DMC 503 (P & H)
[23] AIR 2004 Delhi 323
[24] M. Bharti Kumba, Gender and Social Movements, Rawat Publications, Jaipur, 1st Indian reprint, 2003
[25] Andrew N Sharpe, Transgender Jurisprudence- Dysphoric Bodies of Law, Cavendish Publishing Limited, Sydney, 2002,p. 379
[26] Hjman v. Hyman, (929) AC 601
[27] Durga Das v. Smt.Tara Rani, AIR 1971P& H 141
[28] A.P.K. Narayanaswam Reddiar v. Padmanabhan, AIR 1996 Mad 394
[29] Shanta Ram v. Hira bai, AIR 1962 Bom 27; Vinod Chandra v. Rajesh, AIR 1998 All 150; P. Shankar v. P. Vasanthi, AIR 1995 AP 155
[30] Sadanand v. Sulochna, AIR 1989 Bom 220; S. jaganandha v. Lalitha kumari, AIR 1989 AP 8.
[31] Chand Dhawan v. Jawahar Lal Dhawan, (1993) 3 SCC 406.
[32] AIR 2004 Bom 283
[33] Daramshi v. Bai Saker, AIR 1968 Guj. 150; Narayan Swami v. Padmnabhan, AIR 1966 Mad 394; Babu Saheb v. Leelabai, AIR 2004 Bom 383
[34] (2004) JT 366
[35] Savitaben Bhatia v. State of Gujrat, AIR 2005 SC 1809
[36] Shashi alias Mala v. State, 2007 (1) HLR (Raj.) 574
[37] Smt. Pushpa v. State of Uttar Pradesh AIR 2005 All 187
[38] Rajeshbai v. Shantabai, AIR 1982 Born231
[39] A.M Subbareddy v. Padmamma AIR 1999 AP 19
[40] AIR 1988 SC 644
[41] Raja Gopalan v. Rajammacase AlR-1967 Ker 181
[42] Gurdeo Kaur v. Channo, AIR 1986 P&H 251.
[43] Supra foot note 3, p. 29
[44] Ibid.
[45] 1950 S.C.R 747
[46] Article 41
[47] Vijaya v. Kashi Rao, AIR 1987 S.C 1100
[48] Appeal from Order No. 1003 of 1986 as quoted in B.Sivaramayya, Matrimonial Property law in India, Oxford University Press, New Delhi, 1999, p-53.
[49] A.I.R. 1985 A.P. 209
[50] Ibid at 211.
[51] Claudia Zaher, When a Woman’s Marital Status Determined Her Legal Status: A Research Guide on theCommon Law Doctrine of Coverture, retrieved online

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