Family Law-I

Maintenance for Husband

Submitted by: Shivang Singhal (65LLB19)

Supervised by: Anju Tyagi
Table of Contents

SYNOPSIS........................................................................................................................3

ABSTRACT......................................................................................................................5

CHAPTER 1: INTRODUCTION.....................................................................................6

CHAPTER 2: PROVISIONS IN INDIA FOR MAINTENANCE OF HUSBANDS OF

HINDU RELIGION..........................................................................................................7

 SECTION 24 OF THE HINDU MARRIAGE ACT 1955.....................................................7

 SECTION 25 OF THE HINDU MARRIAGE ACT 1955.....................................................8

 CASE LAWS DEALING WITH THE ISSUE:.....................................................................9

CHAPTER 3: PROVISIONS IN INDIA FOR MAINTENANCE OF HUSBANDS IN

PERSONAL LAWS OTHER THAN HINDU PERSONAL LAW.................................12

CHAPTER 4: HOW OTHER COUNTRIES ARE DEALING WITH MAINTENANCE

FOR HUSBANDS (USA AND UK)?...............................................................................14

CHAPTER 5: IS CURRENT PROCESS OF EVALUATION OF MAINTENANCE

SUFFICIENT?................................................................................................................16

CHAPTER 6: CONCLUSION........................................................................................18

BIBLIOGRAPHY...........................................................................................................19
 SYNOPSIS

1. Literature Review
This paper heavily relies on the primary sources such as case laws and constitutional acts.
The Hindu Marriage act 1955, is a well drafted and comprehensive law which still holds
relevance even after 60 years in existence. Women (Protection Of Rights On Divorce)
Act, 1986 deals with protection of rights provided to women and was a much sought
relief when enacted and still provide protection and justice. The Indian Divorce act 1869
deals with the rights of Christians in India in cases of divorce. All these legislations have
their merits and demerits but are specimens of pristine law.

2. Statement of the Problem

The problem dealt within this paper is the lack of awareness of the difficulties faced by
husbands in divorce proceedings specially related to maintenance and alimony. It has
always been expected from men to provide for the family but the times are changing and
so are the norms. Ideally law should keep track of the changes in these norms and
legislate in order to face new challenges but it failed to do so in the current issue. The
consequence of this ignorance has led to inequality and oppression of husband in such
proceedings

3. Research Objectives
 To find if the current law provides for maintenance for husbands.
 To compare various personal laws to find if the right is available to all the husbands
irrespective of their religion.
 To conduct a comparative analysis between the law on the issue in USA/UK and in
India.
 To see if the. Current method of evaluation of maintenance is arbitrary or not.
4. Research Questions

a) Whether the current provisions on maintenance for husbands in Hindu

Marriage act 1955 and the precedents established by courts impartial and
sufficient?
b) Whether the husbands of religions other than Hinduism have the right of
maintenance?
c) Whether there are any similarities or difference between the USA and UK law
on maintenance for husbands and that of India?
d) Whether the current method of calculation of maintenance efficient to be
applied in the case of husbands?

5. Research Methodology

The research was analytic and comparative in nature. It included the analysis of
various case laws and comparison between laws from different jurisdictions. The data
was collected from credible sources such as SCC and Manupatra. The researcher
chose this method because it is effective in pointing out limitation s and mistakes in
law and makes it easy to understand, this in con sequence helps in identifying
solutions easily.

6. Chapterization

(i) Chapter 1 will introduce the topic and lay down the relevance and scope of the
research.
(ii) Chapter 2 will discuss the maintenance for husband in Hindu Marriage act
1955 and judiciary’s various decision and analyse the current situation.
(iii) Chapter 3 will discuss the provision for maintenance for husbands in personal
laws other than Hindu personal law.
(iv) Chapter 4 will compare the laws on maintenance for husband in USA and UK
with that of India.
(v) Chapter 5 will discuss the method of evaluation of maintenance.
(vi) Chapter 6 will be the conclusion of the topic.
 ABSTRACT

This research paper deals with the current situation of the law on maintenance for husband in
India. Due to diversification in India we have different personal laws for different religions
and they all differ in. some way or another. The current issue finds mention in some of them
whereas the others such as Christian and Muslim law completely ignore to even mention
maintenance for husbands. This is due to the fact that husbands are usually expected to be the
bread earner of the family and have obligation to maintain for his dependents. The research
paper delves in the right provided to Hindus through the personal law and various rulings by
Indian judiciary on the matter. Then it further conducts a comparative analysis of the laws in
USA and UK and that in India and makes the observation that we lack behind due to
diversified laws on different religions. Then the paper finds the current method for evaluation
of maintenance and finds that it is an adequate procedure for husbands also. Though the law
is progressing and shattering earlier norms more effort is required from legal fraternity to
ensure justice and equality and end oppressive practices.
 Chapter 1: INTRODUCTION

The right to maintenance is not based on a contract, but arises from the right to property to
which a person was initially entitled but was prevented from sharing due to the nature of the
inheritance or his own exclusion from his property . Hindu law recognizes the need for
maintenance based on the precepts of natural justice and sometimes supported by the theory
of property, personal identity, moral duty or relationship, but in all cases it is based on
ultimate instance in the original source of jus naturale, whose underlying principles are clear
in the context of the jurisprudence of each country.
Maintenance is a term derived from English law. Traditionally alimony(maintenance
provided to spouse) was awarded to wife but in recent years(1970-80) courts began to award
it to husbands depending of the circumstances of the case. Alimony under Corpus Juris is
defined as the benefit received by law from a wife on her husband's inheritance for her
maintenance, either during the marriage proceeding or upon termination, when the fact of
marriage is established and she proves that she has right to alimony. Maintenance, like
alimony, implies the existence of an obligation on the part of a person to satisfy the needs of
another person or persons "who are, or are, in some way related or related to another person".
Divorce occurs when the dissolution of a marriage has been approved by a court or other
competent authority. So, the parties are not required to perform duties within the marriage,
the marriage is shortened if the divorce is approved.
Support is when a marriage is dissolved, certain rights arise. The wife has the right to claim
alimony from the husband so that she can support herself and her child in certain cases. The
intention is to provide the woman with overhead and reassure her while minimizing the loss.
Certain laws in India. In other words, the Hindu Marriage Act of 1955 gives husbands and
wives the right to demand maintenance. Some additional benefits are given to women under
the Hindu Adoption and Support Act. This law applies only to Hindus. Personal laws of
various religions are applied on people of those religions whereas the section 125 CrPC is
applicable on everyone.
Maintenance and alimony law can be enumerated under the following two heads:
I. Interim maintenance for the proceedings, and
II. Permanent maintenance and alimony.
Chapter 2: Provisions in India for maintenance of husbands of
Hindu Religion.

There are two provisions on maintenance in the Hindu Marriage Act 1955:

 Section 24 of the Hindu Marriage act 1955 states-

“Maintenance pendente lite and expenses of proceedings. —Where in any proceeding

under this Act it appears to the court that either the wife or the husband, as the case
may be, has no independent income sufficient for her or his support and the necessary
expenses of the proceeding, it may, on the application of the wife or the husband,
order the respondent to pay to the petitioner the expenses of the proceeding, and
monthly during the proceeding 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”

This section is gender neutral wherein it allows both the husband or wife to file a motion for
maintenance during the proceedings of divorce.1 Unlike any other law, only HMA 1955
provides the provision on maintenance for husbands.
Bombay High court however enumerated a condition in its decision in Kanchan v.
Kamalendra that the husband will only be eligible for maintenance if he is unable to provide
for himself and the proceedings due to physical or mental disability2.
Court in its decision in Captain Ramesh Chander v. Veena Kaushal held that the maintenance
provided under section 24 of HMA 1955, will only be for the period of proceedings to bear
the expenses of the court and personal expenses. This will not be a final decision on the
amount of maintenance.3
The proceedings under this section are of monetary in nature and should be disposed of
expeditiously.
The aim of this section is to make it convenient for the spouse to carry with the proceedings if
he/she is unable to do so because of their inability of earning individually and absence of any
money earning property.

1
Section 24, Hindu Marriage act 1955.
2
Kanchan v. Kamalendra, AIR 1993 Bom 493
3
Captain Ramesh Chander v. Veena Kaushal, AIR 1978 SC 1807
 Section 25 of the Hindu Marriage act 1955 states:

“Permanent alimony and maintenance: (i) Any court exercising jurisdiction under this
Act may, at the time of passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or the husband, as the case may
be, order that the respondent shall pay to the applicant for her or his maintenance and
support such gross sum or such monthly or periodical sum for a 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 immovable property of the
respondent.”

The provisions of this section do not imply equating the income of the spouse with that of
the spouse, but are intended to ensure that in divorce or other proceedings neither party
suffers from the scarcity of recourse of income and that the court also during the period in
which said request is processed.4 If a spouse has no salary or cannot support himself, the
court must file an application taking into account the salary and living situation of the
spouse. This section caters to the need of a permanent maintenance by either of the
spouse.
Both of these sections are gender neutral wherein they do not discriminate against any
gender.

 Case Laws dealing with the issue:

The judiciary has been proactively engaging in this issue of maintenance for husbands since
late 1980’s.

4
Section 25, Hindu Marriage act 1955.
Lalit Mohan v. Tripta Devi
Facts: The man had a serious accident that drove him crazy. Relations between spouses
deteriorated and the wife obtained sentence of divorce for cruelty and desertion. Husband's
appeal against divorce decree failed, but he requested for maintenance which was approved.
Issue: Whether the husband is eligible for maintenance and on what grounds?
Decision: The court ordered wife to pay maintenance to husband because he did not have any
source of independent income.
Reasoning: The promulgation of these provisions is due to the fact that a woman or husband
who does not have sufficient independent income to support himself or to cover the necessary
costs of the procedure cannot be hindered. This was enacted on social and moral grounds that
no party is at a disadvantage.5
The norm in the society before this decision was that a husband should pay maintenance
because it is his duty to earn and maintain for the family6. But the court through its decision
established a way by challenging the norms.

Smt. Kanchan W/O Kamelendra Sawarkar v. Kamalendra

Facts: Wife filled for divorce, she was a government employee and the husband was out of
business because of heavy debts.
Issue: Under what circumstances can a husband get maintenance pendent lite?
Decision: the husband was not granted maintenance in this case and if the wife is earning the
husband cannot rely on the wife for sustenance through the provisions of section 24 HMA
1955. This is only provided in circumstances of handicap or impediment to earn.
Reasoning: This decision was reached because a well abled and equipped person who has
skills and knowledge to earn cannot be allowed to rely on another just because they currently
are unemployed.7

Nivya VM v. Shivaprasad N.K.

5
Lalit Mohan v. Tripta Devi AIR 1990 J K 7.
6
Kusum , 'MAINTENANCE FOR HUSBANDS' [1990] 32 Journal of Indian Law Institute 403.
7
Smt. Kanchan W/O Kamelendra Sawarkar v. Kamalendra AIR 1992 Bom 493.
Facts: The petitioner filed for divorce on grounds of cruelty. Respondent denied the charges
and asked for dismissal of the case and made an application to the court asking for
maintenance pendent lite.
Issue: Whether the suit is maintainable in court?
Whether the husband can get maintenance pendente lite from the wife under Section 24 of the
Hindu Marriage Act, 1955?
Decision: The suit is perfectly maintainable in court because section 24 of HMA 1955 is
gender neutral. However the Kerala high court dismissed the case and did not allow any
maintenance to the husband because he is capable to provide for himself.
Reasoning: The fact that a husband who demands maintenance from his wife may be treated
as an exception only because he normally has the responsibility or obligation to support his
wife and vice versa is only exceptional. It is not common for the husband to ask the working
wife for child benefits if he can support himself with work. If the courts adopt such an
attitude, men will become lazier and will be tempted not to work and depend on their wives
for a living.8 And this will go against the purpose of section 24 of HMA 1955.
The maintenance for husband should only be provided in exceptional cases, only if he is
unsound or physically incapacitated to earn for himself.

Yashpal Singh Thakur v. Smt. Anjana Rajput

Facts: The husband filled for maintenance. He stopped working as a rickshaw driver on hire
own his own.
Issue: Whether maintenance can be granted when the husband incapacitated himself?
Decision: The husband will not be granted maintenance if he stops working on his own and
incapacitate himself.
Reasoning: No person is allowed to incapacitate themselves just so they can stick it to the
other spouse. A person who voluntarily renounces to earn is not qualified to maintain the
guarantee of upkeep from the other life partner. A husband who could otherwise earn a living
must not stop earning a living and begin to depend on his wife's income.9

Rani Sethi v. Sunil Sethi

8
Nivya VM v. Shivaprasad N.K. OP (FC).No. 26 of 2015 (R).
9
Yashpal Singh Thakur v. Smt. Anjana Rajput AIR 2001 MP 67.
Facts: The husband was granted maintenance and the use of Zen car by the trial court, the
decision was challenged in Delhi high court.
Issue: Whether the maintenance should include provisions for other than bare sustenance?
Decision: The court upheld the trial court’s judgement and established that maintenance
should not only provide for bare sustenance but other basic need also.
Reasoning: The court established a wider meaning of the word “support” in the law to not
only include basic necessities but to allow them to live their life in the same manner as before
the divorce.10

In the case of Sanjay Bhardwaj & Ors. V. State & Anr court held that:
We live in an era of gender equality. The constitution provides for equal treatment regardless
of gender, caste and faith. An unemployed husband with an MBA cannot be treated
differently from an unemployed woman who also has an MBA. Since the two are equal, one
cannot ask to stay with the other unless one is employed and the other is not.
It was said that, “court cannot ask husband to beg or steal to provide maintenance for the wife
if both are equally qualified and capable.”11

As we can see the Indian courts have quite comprehensibly decide on the issue of
maintenance for husbands. Though these precautions and rules are strict and tight, they seek
to provide relief to only those who deserve such relief.
Husbands can be provided with money or goods for his sustenance and equal living
conditions but in very exceptional cases which falls under certain circumstances enumerated
by the court.
Also, no previous contract between the spouses can limit the court from granting
maintenance.

10
Rani Sethi v. Sunil Sethi 179 (2011) DLT 414.

11
Sanjay Bhardwaj & Others v. State & Another LQ 2014 HC 9536.
Chapter 3: Provisions in India for maintenance of husbands in
personal laws other than Hindu personal law

Maintenance under Muslim Personal Law:

Only women are allowed maintenance in Muslim personal law under Women (Protection Of
Rights On Divorce) Act, 1986. The purpose and the objective of the law is to provide
protection to the right of maintenance of a Muslim women in case she has taken divorce or
has been divorced by the husband.12
The entire act is partial towards women and does not mention any provision for maintenance
of husband.

Maintenance under Christian Personal Law:

A Christian women is allowed to seek maintenance from her husband under both the civil and
criminal law.
The Indian Divorce act 1869, maintains the rights and privileges of individuals who practice
Christian religion and thus it provides for the rights of Christian women. Under section 37 of
the act she can apply for maintenance or alimony and the husband will have to pay as per the
orders of the court. Both alimony pendent lite and permanent alimony/maintenance is
provided under the act.13
Again we see no mention of maintenance for husbands in this act.

Maintenance under Parsi Personal Law:

The Parsi Marriage and Divorce Act, 1936 caters to the need of divorced Parsi women and
men and protect their rights. Section 39 and 40 deals with maintenance pendent lite and
permanent alimony and maintenance respectively. 14
This act is gender neutral like the Hindu Marriage Act 1955 and provides for both the
husband and wife. It provides and protect the rights in a impartial manner.

As we can see the Christian and Muslim personal laws do not provide maintenance to
husbands neither there is any precedent for their aid. Such an arrangement, which allows a

12
Women (Protection Of Rights On Divorce) Act, 1986.
13
The Indian Divorce act 1869.
14
The Parsi Marriage and Divorce Act, 1936.
spouse to obtain support, is not found in any personal law implied by Christians or Muslims.
Keeping the Christian and Muslim couple out of the area of support available to the Hindu
due to the lack of an empowerment agreement is discrimination. This is a serious legal gap
that must be corrected to ensure social justice and equity under the watchful eye of the law.
Whereas the Parsi personal law much like the Hindu personal law sees that the husbands are
also provided relief and no discrimination is faced by them in the law.

Chapter 4: How other countries are dealing with maintenance for

husbands (USA and UK)?

In UK a husband has right to ask for maintenance from his wife. This right is granted under
section 63 of the Domestic Proceedings and Magistrates Courts Act, 1978.
Section 63 (1) states:
“Either party to a marriage may apply to the court for an order under this section on
the ground that the other party to the marriage (in this section referred to as the
respondent)—
(a)has failed to provide reasonable maintenance for the applicant, or
(b)has failed to provide, or to make a proper contribution towards, reasonable
maintenance for any child of the family.”
As we can see the wordings of the law either party is mentioned. There is no discrimination
or partiality in favour of wives in the law.
The court in Calderbank v. Calderbank15, stated that the parties in divorce comes to the court
on monetary and financial matters as equals. The court in its decision granted husband 10,000
euros because he had lost all his capital. The wordings in the law mention spouse and not
husband or wife, it really does not make any difference between the two.

In USA, earlier it was only the right of the wife to ask for alimony from husband and not the
other way round. The U.S. Supreme Court in Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L.
Ed. 2d 306 (1979) held that the statue in the state of Alabama requiring only the husband to
pay alimony is in a clear violation of equality rights guaranteed in the fourteenth amendment.
The parties can agree on the amount and duration of the partner's assistance and the court can
approve it, or the court can determine if there is a dispute. Some states have adopted financial
calendars to help judges determine the appropriate level of assistance. Spousal support can be
temporary or permanent. The parties can generally adjust their amount at a later date by going
back to court and re-evaluating the relevant criteria at that time. In some states, parties can
permanently waive their right to partner support by written agreement.
The laws in UK and USA are better than that in India for the sole reason that they do not have
different personal laws. In India different personal laws provide different provisions while
some of them are arbitrary others are fair and in par with that in UK and USA.
If we are to succeed in establishing fair laws then we have to work in raising awareness
against current oppressing and unfair norms of society.

15
Calderbank v Calderbank [1975] 3 All ER 333 (EWCA).
Chapter 5: Is current process of evaluation of maintenance
sufficient?

How the maintenance is fixed in present law?

When determining the amount of alimony or maintenance, the court takes into account
several factors, some in the statutes and others developed by the courts. Under all Indian
marriage laws, the considerations for determining alimony somewhat similar:
1) Economic ability and background of the claimant and that of the non-claimant
 2) Conduct of the spouses involved in the case;
3) Other circumstances which the court finds relevant for consideration.

Economic ability and background of the claimant and that of the non-claimant
It is an established and sound practise that the court adopts in which it asses the income and
assets (including both movable and immovable) of both the husband and wife. The nature of
the assets is also identified to check whether they are money earning assets or not.
In cases where the court is asked to provide maintenance, the main problem for the court is
finding out the truth about each party's financial situation. If one party requests ongoing
maintenance, the other party must provide full details and fully disclose its income and assets.
The duty lies on the parties to disclose all the assets without any dishonest intentions.

Conduct of the spouses involved in the case

Earlier there was a view by the English courts that the guilty party should not be awarded any
maintenance but this view was abandoned in Wachtil v. Wachtil, in which it was stated that
this arbitrary rule does not find any support in modern society. The court discourages the
practise of post mortem of the divorce and grants alimony and maintenance to the one in
need.

Other circumstances which the court finds relevant for consideration

This is a pending consideration. The Tribunal is free to consider any considerations and
factors that may contribute to the "fair" or "reasonable" determination of assistance. It is
argued that one of the factors that the court must take into account in any case is the financial
needs, obligations and responsibilities that each party to the marriage has or is likely to have
in the near future. This is one of the most difficult problems and the Indian courts have not
paid enough attention to it.
Other factors:
1. Time period of the marriage.
 2. Current income of both parties.
3. Age, physical and mental state of each party.
4. Other income.
5. The contribution by either of the spouse to education of the other.
6. The contribution of one spouse as a homemaker.

The present method of evaluation is sufficient as it does not discriminate. Both the husband
and wife can find confidence in the current method because it is just and sound. There is no
need to develop a separate method for husbands.
Chapter 6: Conclusion
Maintenance for husbands though provided for few religions does not cover all the husbands
aggrieved by the oppressive laws. A change is required to deal with this problem. It will
require the support of all the stakeholders to go beyond the established norms and do what is
right. USA and UK have progressive laws on maintenance wherein they do not discriminate
between husband and wife. This is partly due to the fact that they do not have different
personal laws like in India.
Men in India have long been victims of sexist laws and Section 24 outlawed such egregious
use of the law, but this is how it works in India. Women can easily get support, but things are
looking up and women are now rejecting even false or unnecessary support cases. Double
standards is something the law was not designed for, but sadly it is, but there are also
unreasonable and unfair clauses that may be gender specific or not generate logic. There still
much work to do.
My suggestion to somewhat alleviate the problem is to amend section 125 of Criminal
Procedure Code, 1973 to include husbands in the section. This will provide new horizon of
relief and protection of the rights of a husband.
It is claimed that more and more women accepting jobs are realizing that they must also share
financial responsibilities when necessary. This is evident in the statements that extend the
duty to help older and needy parents to girls, even married ones, when they win. The number
of men who really want to go to court and seek support from their wives is another matter,
but the law should definitely include a provision to deal with such situations.
Bibliography
 Wikipedia.
 Material provided by the college.
 SCC online
 Manupatra online database
 Online blogs
 The Gazette of India