Matrimonial Disputes are nothing new in our society and if we observe the current trends, almost 1/3rd households have some or the other form of matrimonial dispute lined up in the court. One of the most common disagreements that a couple has, after becoming one, is about money and that too the maintenance amount provided by the husband to his wife. Often, we see these disagreements between the couple take the shape of a legal dispute and then either one from the couple dragging the other one to the court, to resolve the dispute.
Now a days, to
file a matrimonial dispute has become more of a commonplace. Husband and wife
try to settle their domestic disputes by way of advocates and legal
professionals who, in majority cases, dupe them both to file a number of
matrimonial cases and cases that emerge out of the promise of living in a
wedlock. In India, it cannot be denied that laws with regards to marriage are
more inclined to protect the rights of the wife/ female in a wedding and hence
when both the wife and the husband look for options against one another, the
wife finds herself to have a few more options than the husband. Not just that,
the kind of options available to the wife are also hold an attacking posture
thana husband’s options, where most of the cases he can file of the defensive
nature, to protect himself from future litigation.
One such
provision is also mentioned in Section 144 of the Bhartiya Nagarik Suraksha
Sanhita (BNSS), wherein provisions are there for maintenance to be paid to
wife, children and parents by the husband, father or child, as the case may be. The provision was earlier provided in Section
125 CrPC before BNSS was introduced into the picture. Let us now discuss some salient features of
this provision to better understand what it does and how to use it.
1.
Section 144: Order for Maintenance of
Wives, Children, and Parents
Section 144 deals with the responsibility of individuals to provide financial support to their family members who are unable to maintain themselves. The provisions apply to individuals with sufficient resources/ means to maintain dependants. Here are the key points:
- Scope: If a person with sufficient means neglects or refuses to maintain any of the following dependants:
- His wife, who is unable to maintain herself.
- His legitimate or illegitimate child (whether married or not), who is unable to maintain itself.
- His legitimate or illegitimate child (not being a married daughter) who has attained majority but is unable to maintain itself due to physical or mental reasons.
- His father or mother, who are unable to maintain themselves.
- Magistrate’s Authority: A Magistrate of the
first class can order such a person to make a monthly allowance for the
maintenance of the affected family member. The Magistrate determines the
monthly maintenance rate based on the circumstances of each case which may
include the income of the person so neglecting and on the income and
expenditure of the dependants necessary to sustain a decent lifestyle.
- Interim Maintenance: During the pendency of
proceedings, the Magistrate also has power to order interim maintenance for the
wife, child, father, or mother based on the circumstances of each case, which is to be
paid by the person to his dependants till the case is pending in any court
of law and till the final rate of maintenance does not reach to an
agreement in the court of law.
- Application Disposal: The application for
interim maintenance should ideally be disposed of within sixty days from
the date of service of notice of application to such a person. This is
added to ensure that no injustice is caused to the dependants and they do
not face any hardships during the time final rate of maintenance is being
decided.
- Definition of “Wife”: The term “wife” also includes
a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried. Her being capable of earning is not a sufficient
reason to reduce the maintenance awarded by the family court. (In Shailja
and Ors. Vs Khobbanna, (2018) 12 SCC 199).
- Start and End of such Maintenance: Any such
allowance or maintenance is to be paid by the person to the dependant from
the date of the order of the court that so mentions and has to pay till
the dependants cease to exist or conditions change so that they can no
longer be considered dependants of that person. For example, in case of divorced
wife, husband has to pay maintenance to his wife till she decides to
remarry another man and becomes his wife.
- In case of any default: The court may issue warrants
against the person so obligated to provide allowance/ maintenance. The court
may also issue or levy fine in case of such defaults. The maximum
imprisonment a court can grant a person for non-compliance of the order is
one month max, or to the time payment in lieu of default is made by the
person.
- When Wife not Entitled to Allowance: Wife may
not be entitled to allowance from the husband in cases where she is living
separately from the husband without any reasonable or just cause of doing
so or, in case where wife is living in adultery with another man. The Magistrate
also has the power to cancel any order made prior to in this regard if the
husband brings and proves either of the two situations for the wife living
in adultery or she living away from husband without sufficient cause.
In Badshan
Vs Urmila Badshah Godse (2014) (1) SCC 188, the Hon’ble Supreme Court
held that the husband cannot deny maintenance to his second wife in such a case
where he had deceived the second wife by not revealing to her the fact of his
earlier marriage.
2. Section 145: Procedure
Section 145
outlines the procedure for enforcing orders related to maintenance. It provides
for the jurisdiction of the courts that can try the matter, the evidence how to
be collected and powers of the courts in certain situations.
- Jurisdiction: Case can be instituted at any place where (1) the husband resides; (2) where he or his wife presently resides; (3) where husband and wife last resided together. Or as the case may be, where he last resided with the mother of illegitimate Child. (4) Or in case of Mother/ father / other dependants, where they are residing at present.
- Evidence how Recorded: In presence of the person against whom such an order for allowance/ maintenance is proposed, or his advocate, in manner provided for in summons case.
- Powers of the courts in cases: In certain situations where the magistrate feels like the person is purposefully avoiding service or appearance in the court, he can decide the case ex-parte biases. Such an order can be set aside by the an application by the person within 3 months of such order, which shall state good reasons for his absence.
3. Section 146: Alteration in Allowance
This section
deals with any alterations that may be necessary in the maintenance allowance.
It allows for adjustments based on changing circumstances or needs. The provision
will be discussed in detail in a separate blog post on LegalProbe.in, so stay
tuned and keep following us to get the updates for the same.
4. Section 147: Enforcement of Order of Maintenance
Provision
empowers the Magistrate to enforce the maintenance order. In this provision it
is provided that the court shall give a copy of such order for maintenance or
allowance, free of cost to a person in whose favour such an order has been
passed or to his legal guardians and to the person who is so obligated by this
order of the court.
It is also
mentioned that any magistrate who has the territorial jurisdiction to verify
the identity of the parties and the facts of the matter, can proceed to enforce
the order against any person against such an order was passed by the court,
irrespective of any other circumstances.
Conclusion:
Hence from a
bare reading of the above provisions for grant of maintenance and/ or allowance
to dependants including wife, parents and children it can be derived that the
lawmakers have put the person, mostly male member of the house, on a pedestal
of him being the provider to the house and all other members being dependents. Laws
are made such that there is a presumption that regardless of income of the
dependants, the male member should have resources sufficient enough to sustain
all his dependants. The court has also ruled that this sustenance is not just
considered from a point of view of bare essentials, but the allowances should
be such as to be able to provide the dependants with a decent lifestyle which
the dependants are entitled to and were having prior to him neglecting their
cause.
It is also true
that in present times, we have seen numerous cases of the wife in a domestic
dispute, using such provisions to leverage her interests against her husband’s/
ex-husband, and because of this, the courts have to keep analysing the trends
and keep passing landmark judgements one after the other to ensure justice
prevails each and every time.
Sources:
Section 144,145, 146, 147 BNSS
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Complaint Cases under Section 223 BNSS/ 200CrPC: An In-Depth Analysis
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