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    Module 5

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    Shanskriti Swain

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    of 48
    ‘Alimony and maintenance are terms of English have technical meaning. According to Corpus juris, alimony Allowance, required by law to be made to a wife, out of her for her support either during the matrimonial suit or on its the fact of the marriage is established and she proves herself separate maintenance. Like maintenance, alimony connotes the Guty on the part of a person to provide for the need of another Serzons "who is or are, in one way or the other, related to, oF dependent y persorsinoe at English common law, on marriage, wife's property became th of the husband, it was a logical corollary that the husband was redtired vraintain his wife during coverture as well as on divorce, so long as she mavtined unmarried. This principle was later on extended to void and retdable marriages. In English law, in recent years, the alimony anj voirmtenance have developed into, what is called, "Financial Provisions and Pamperty Adjustment” (see the Matrimonial Causes Act, 1873, Part ID) and vip tenance may be claimed by either party against the other ‘The Hindu Marriage Act, Special Marriage Act and the Parsi Marriage and Diveree Act (even after the amendment of 1988) do not go beyond ies iw atid down in the Matrimonial Causes Act, 1950. The Divotce ‘Act, 1869 was eased on the late nineteenth century English lav, and has ‘been amended by Act 51 of 2001. ‘The law of maintenance an‘ following two heads : (a) Interim maintenance and expe! (b) Permanent maintenance and alimony. d alimony may be discussed under the wnses of the proceedings, and 0 INTERIM MAINTENANCE AND EXPENSES OF THE PROCEEDINGS Under the English common law, if a husband deserted his wife or his misconduct drove her away from the matrimonial home, the husband W% required to provide reasonable expenses for necessaries "according to her husband’s degree" which included legal advice, including litigation expenses Under the matrimonial statutes, it came to be firmly established that the husband was required to pay for the maintenance of the wife during the pendency of proceedings in matrimonial cause as well as to pay her the 1. Bazely v. Forder, (1898) QB 559, per Blackburn, J. (232) jal Maria _ Secti Where in any | j Chapters deal separation, nul court that if tl support and th application of of the proces income, it mo Under the Hind cither party to marr substantially the sai Where in ar either the ——— Y Gooday-v. Good ~ Section 22, Mat: 4 Qritted by Act mserted by Act __,, nton of the phe interi needs there 18 lish Iaw and Hindu Marriage ‘Act and the Parsi int a iment of 1988) interim maintenance can a d and it is called “Alimony Pendente Lite." U1 jan claim it. the ye amen Yon shall be served on the husband and the court on being Sr of the truth of the statement therein contained may make otter on the husband for payment t0 ‘the wife of alimony pending the suit as may be deemed just : ‘e suit shall in no case exceed Provided that alimony pending the oneefifth of the husband's average ‘net income for the three years next preceding the date of the order and shall continue, in case of a decree for dissolution of marriage OF of nullity of marriage, until the decree pr fade absolute or is confirmed, as the case may be: Provided that the petition for the expenses of the proceedings and simony pending the suit, shall, as far as possible, be disposed of within sixty ition on the husband.* days of service of such peti The Special Marriage Act, 1954 also provides for forthe wife alone. Section 36 of the Act lays down : Where in any proceedings under Chapter V or Chapter VI (these Chapters deal with the restitution of conjugal rights, judicial separation, nullity of marriage and divorce) it appears to the district tourt that if the wife has no independent income sufficient for her support and the necessary expenses of the proceedings, it may, on the application of the wife, order the husband to pay to her the expenses of the proceedings such sum as having regard to the husband's income, it may seem to the court be reasonable. ee th Hindu Marriage Act and the Parsi Marriage and Divorce Act, ubetant a 0 marriage may claim interim maintenance. The provisions are = ly the same. Section 24 of the Hindu Marriage Act runs as under : hos ms any proceedings under this ‘Act it appears to the court that e wife or the husband, as the case may be, has no alimony pendente lite" i 2 pa Gooday, (1969) P 1. 8 omy Matrimonial Causes Act, 1978 asec, by Act 51 of 2001. by Act 51 of 2001 a P FAMILY LAW. independent income sufficient for hor or his gy necessary expenses of the proceedings, it may, on ther the wife or husband, order the respondent to pay to the. expenses of the proceedings, such sum as, having qtttiong, petitioner's own income of the respondent, it may seem taint om ‘oun, be reasonable, Basically the provision in all the statutes is the same, Under Marriage Act, the Special Marriage Act and the Parsi Marriage nt"® Hing, Act, "one-fifth rule" has not been enacted, as it has been a Bi un ¢ Act, dhe eoiedincantitioaprinaple. fr Hing] Heeamem ‘he Dire | Peps maintenance and expenses of the proceedings and the situation in yy'’tin y can be claimed are virtually the sameyunder all the statutes, which eri ‘An order for interim maintenance and expenses of the proceedin oes be made in proceeding for nullity, judicial separation, divorce and oats May Fl” of conjugal rights.’ An application for maintenance may be made both, bution, ei trial court and appellate court? the | (prt Maintenance on dismissal of the petition—At one time faloy real the old English law our courts took the view that if petition is dismissed order as to any ancillary relief can be made. But some of our High Coury ma have held the view that even on the dismissal of the petition, an order aie maintenance can be passed.’ 7 a0 Who can apply—Husband and wife—Under Hindu law, the | bate provision is that either the wife or husband can apply for maintenance, Eye, | but if marriage is void, either party can apply. The Claimant has no independent income for support.—The basis) the claim of interim maintenance is that the claimant has no independent | ‘i! income to support herself/himself.‘ The emphasis is on independent income! | mail ‘Adlaimant may have property movable or immovable but if the property does | thei not yield income, she can still claim interim maintenance. But if the property | SUP yields income, such income will be taken into account in fixing the amountat | Rs. maintenance. The word "independent" seems to mean income which she has | _ the independently of the other spouse and any other person. Thus, the fact that Su the claimant is maintained by her parents, brother or relatives is no reasn , 2 for denying her interim maintenance.’ Similarly, the fact that the wife is vel educated and capable of earning is no ground for denying her inteim Im maintenance, since “independent income" is not equivalent to potentiality to ™ earn,’ The fact that the wife is likely to inherit huge property, is also not au sufficient to disentitle her maintenance.’ The test is whether she has any co independent income sufficient for her support and to bear the expenses of the hy Balbir Kaur v. Raghubir Singh, AIR 1973 P & H 225, 2. Syamali v. Ashina, AIR 1985 Cal 123, Chitra v. Dhuraba, AIR 1988 Cal 98. 8, Shilla vy. Shilla, AIR 1989 AP 8; Sadanand v. Sulochana, AIR 1989 Bom 220; Met! v. Modi, AIR 1991 Bom 440. ‘ 4. Laxmi v. Ayodhya, AIR 1991 MP 45. 5. B. Saraswati y. B. Krishnamurthy, AIR 1960 AP 3. 6, Mukam Kumar v, Ajeet Chand, AIR 1958 Raj 50 Al 130, C.B. Joshi y. Ganga, AIR 19 7. Arya Kumar v, Ha = i Aa Kumar x. Ha Bal, AIR 1968 Cal 276; Radhikabai v. Sadhu Ram, AIR 1910 8 Lalithamma v, Kannan, AIR 1966 Mys 178 . if she has no income or her ine PEicieceate and expenses of the p the spouse may also be granted as "But the non-applicant ean only be order proeeet ance if he has means to do so. : mainten' one side, the court has expressed the view that On ore capable of working but was not doing any work ha band who 16 OH court fixed it on the assumption of mimirnaiate ntenanee i the court granted maintenance to an educated wife who ihe aes rrning but was doing no work.* c hare denial of relationship is no reason to deny interim maintenance, if issible.” atherwise peach ivy —It should be noticed that Section 24 only uses the Tnconie;« while Section 25 tuses the words “income and ofher property! Wore ie ie substantially the same in all the three statutes). Thus, it has ven beld that for interim maintenance, only "income" of the claimant has to he taken into consideration and not his or her other assets. : Quantum of maintenance and expenses of the proceedings.—The provision of interim maintenance and expenses of the proceedings in all the Indian Matrimonial statutes except the Divorce Act does not specify the quantum of maintenance and expenses of the proceeding. It does ‘not mean bare maintenance. The court has discretion to fix the amount of maintenance, but it is judicial discretion exercised on certain well established principles.’ The provision clearly states that the court may award to the applicant such sum every month, until the petition is finally disposed of, as the court in the tireumstances of the case considers reasonable. In fixing the quantum of maintenance, the court takes into account the income of both the parties, their status and other circumstances.* Wife had no sufficient means to support herself, High Court granted her Rs. 60,000 pm and she was getting Rs. 10,000 pm under D.V. Act. Maintenance was reduced to Rs. 25,000 pm in the interest of justice.’ In Kalyan Dey Chowdhry v, Rita Dey Chowdhry," the ‘upreme Court enhanced compensation after enhancement in husband's salary but reduced it by Rs. 3000/- taking into account fact that husband had fmarried and has a child. Bhagwati @ Reena vy. Anil Choubey," is an mucS4iRg case in the sense that husband filed for declaration of marriage as ee a a as first, the wife was below the age of 18 at the time of marriage court helt 3) Me*Fiage was contracted under coercion and threat to life. The cd that only a minor spouse has a right to seek annulment and jor cannot seek annulment. It should be noticed that Ashok, ATR 1988 Raj 84. inet. Pundi, AIR 1970 Bom 264, Kring 9 arian: AIR 1985 P & 11 8 fy adma, AIR 1968 Mys 226 Gia x, Prettiest, AIR 1989 Ori 1 uran eee oe 1988 Cal 83; Hema v, Bhat, AIR 1986 Ker 320. ¥. Kamla, AIR 1981 J & K 5. Ansuyamma, AIR 1957 AP 170. v. Akanksha Jai B 2017 go ganeumeene Jain, AIR 2017 SC 1640. hus usband who was a maj Sarg PSeernens ern the amount of ma Jaw), during the 8 ane Dendeney ‘of the’ procendi ty (OF Wea Proce may bo ny the, Sere ke gg On wife's ap expen Pang : * oF dado "oviso to Section 36, Divore, M8 in ig Shall in no case exceed one-fathonr an 48% do¥n that a — ears next preceding the date of the jn sseand’s et Such limits have been tag ego! the Average net incre mg order. In other i been Taid down, Yr atrimonalg mates, it has been held that in the ne eome ©8868. coming sei eld that in the absene oming under tie? at i Shen Rit But in some cases it has been obey ey Bet income Hmco Pend Pendente tite and Hien ee adopted as a matter of course Ie Drees ate arithmetiel oa res High Court bas criticised this rule. Deshpenaen ft oe ola the Boni meas proad and th Unable to trace any rational basis of the onelliti cay eset that hea aia during the tl amounted to almost rule of thumb, Such a rule in fee pie eet gaan Th pnterim go under the f emai z a le 1e Divorce Act, 1869 d to es 4 case UNC €,poen based on the then notions and concepts to womes's emit eat epnar:’ 2 coy py the bust Position in society. But in our comtemporary society this tule ign git att Devas OPPOSEE DY 56 asset lpreasonable and irrational, but also cuta atthe very root of the ae pa yife’s AdUItETY. erin equality of sexes. It militates agninst the concept of easonablenees mie and of V1 not be give! ct cou! i yplication ‘maintenance the basis for awarding interim maintenanee. In this case, husband wert 0, sufficier with his father having six members including the wife. The net ineomesfal the members of the family was Rs. 2,020. The court fixed Rs. 350 per moat as the amount of maintenance for the wile as the share of each afte : members of the family came to Rs. 370.‘ In Radhikabai v. Sadhu Ram} the ‘Duration Madhya Pradesh High Court evolved a different formula, The court said tt Re claimed for the eo after making an estimate of the average monthly income of the non-dlsimant ) Bgsim maintenance ™AY SU and alter allowing for uncertainties, it shouldbe divided by the total mine | MEEDoa\ is pending, © feel f of dependents, including the wife. The figure so arrived at should be allowed Mentes of the proceeding has 60 6 to the wife as her monthly allowance. It is submitted that the discretion of the aimed on the basis of Be oe court should not be hampered by any rigid formula, and the court after mo power to pass an order of inte considering all the circumstances, should fix an amount of maintenance which | PMO WP the proc ceding 60 it considers to be reasonable Re epplication for maintenant Now this controversy has been finally resolved by the Amendment of this ee atatement or reply to ap Act. This rule of one-fifth has been omitted/deleted from the Act. Therefre for jeant. had was relevant. ¢ maintenance Pé Srror the entire pe this discussion has only academic value feitainsManjile. AIR 1988 Cel But interim maintenance cannot be so fixed as to exceed the total income Sy Kumar v. Purnima, AUW J of the other party. i 4 Mane: Prakash, AIR 1989, Ba ¢ quantum of maintenance and expenses of the proceedings, indira v. Shelendra 09) papeesns the quantom of det E : 5. Lallubhai v pen, AIR T. Mukam v. Ajit, AUR 1958 Raj 322; Pr Kumar v. Sureshwan, AIR 1966 On 1 & AIR 1974 AN 110. 2. N, Subramaniam v. M.A. Saraswati, AIR 1964 Mys 38; Sushila v. Dhani Ram. 7. AIR 1949 Mad & 1965 HP 12; Asit v. Sumitra, ATR 1987 Cal 153, MN iGe ce raccin tat 2. AIR 1979 Bom 173 Del 99 are te 4. See also Rajdeo ¥. Lantan, AIR 1980 All 108. AIR 1970 MP 14 —— See Pratima v. Kamal, 68 CWN 317; Usha ¥. Sudhir, (1974) 76 PLR 196; Jan na © Selb Alt 1015 HP 16 Pract! Randy Ai 1970 AN 2 Dinesh Ue uy, SOY Ral 8, Tarloch AIR 1979 Bom 173 1. Pradeep ¥. Shelia, AIR 1989 Del 10 the same effect a) Ave Kumar v. Illa Bai, AIR mada Innapurnamma v. Ram Krish in Singh Anasuyamma Nirmal, AIR 1968 ¢ nay be claimed for t Interim maintenance may al am appeal is pending, & aimed on the basis of trial no power to pass an order of the date when the proce the application for main' ‘written statement or rep! petitioner. —At one time, {wife found guilty of adultery oF any wntitled to alimony pendente lite. ine. Under the Indian matrimoni: ie not a basis for the rejection of the s fe lite® In Surender Kumar v. Karlesh,* rndente lite and expenses of proceedings in a pe by the husband on the averment that she was @ “nd therefore the court had no juris 0 the trial of the issue of jurisdieti ‘and expenses of ce per was opposed al residing abroad yhat even during interim maintenance 7 q case under the Divorce Act, the ed by the husband who had petitioned for divorce on ted that a spouse guilty of matrimonial intenance. The court observed that only consideration was rat had no sufficient means %0 upport herself; no other : was: relevant. Duration of maintenance pendente lite—The interim maintenence he entire period that the proceedings are pending. Iso be claimed at the appellate stage.” But when ‘reah application for interim maintenance and eeding has to be ‘made to the appellate court; it cannot be | court's order.” However, the appellate court has f interim maintenance retrospectively, i.e., from trial court.!' An order that till the applicant filed a der.” But the Court (both edings commenced at the tenance will not be heart ly to a petition is a bad 0 T, Upal v, Manjula, AIR 1989 Cal 20 bi 2 Vinay Kumar y, Purnima, AIR 1973 Raj 32 8. Meena v, Prakash, AIR 1983 Bom 408. 4 Indra. Stledra, ATR 1993 MP 56 Bee eile imalaie, AIR 1972 Guj 174 1974 All 110 A ae 1949 Mad 877, Se also Gangu x. Pudi, AIR 1979 Bom 264; Yageshwara v. Jyoti Rani, AIR 1981 apa la ae effect. 1h fe Kunarv. Ma Bat, aR 1968 Cal 276 peg mins Fem Brishns, "AIR 1959 AP 49; Makan Kanwar v. Alt i tirichan Singh». Mohinder Kaur, AIR 1963 Pun) 249 1 papht Bao v. Anaiuyamma, AIR 1067 AP 110. % Nirmal, AIR 1968 Cal 68. it Chand, AIR len and Met beth oat a hand, the A petition.’ The the dato of summon: Interim maintenance for children.—There among the High Courts whether interim maintenance fixed under this provision or under the provision of cus of children. (This is Section 26, Hindu Marriage Act). Be fixed under this section or under Section 26° while that no interim maintenance for children can be fixed under dur submission, former view is correct as in such matters one sh at technicalities. ‘Once the main petition is dismissed, the application for i maintenance abstes.’ The Andhra Pradesh High Court in 8. Jaganna, Prasad v. 8. Lalitha Kumar,? took a contrary view and held that wate Ender could be mavie even when the main proceedings have been di ‘Conditional order of maintenance.—In Saraj Ashok the court feed an amount of maintenance to the wife on the condi ate core eet living in adultery, she would refund the amount of maintenaes ee (etition was on the ground af edultery. The Majestlman| Mill amaaiay seach condition could be attached to the order. es. OU cee not ex 2 gen acier for permane | al vat the time of the passing | | or (b) at any time matrimonial cause. Under the Special Marriage A ‘he Hindu Marriage Act, the court } Baintenance and alimony in nullity, | tonjugal rights proceedings. But « subsequent tale only when a decree dissol ‘artion is passed. But the words 4n impression that orders for | decree fy or judicial i eparation is pé | Bent use of th T ese words. The word wye™anent alimnor an “a by dome wnt alimony may be ma Thing’ 28t the court has no | Al the we Subsequent to the pai Mino NF three statutes specif BihsayenaY be made ‘hy aun ade “at the a” thereto." ‘Thus, und nara Pill ow is the time of passing any deer r to cece on application made to it t the jusband shall secure to the wife for he support, f necessary, by @ charge on the ppesum or such monthly or pericdiea wali gross ot exceeding her life, as, having vagaed io He ifany, her husband’s property and other cireumstances y be just. if etay seem to the court to . | Tne aistrict court is satisfied thet there ie change in @) If the Sances of either party at any time ‘after it has made an cinunder sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court jnay deem just. Marriage Act, 1955 and Section 40 of the Parsi and tion 26, Hindu . Aes ‘1935.88 are substantially the same except that under that a plication for permanent maintenance and alimony can be jsion an AP) i t a mrovisioe Srther party, ie., by husband om wife. Section 41 of the Parsi nae BY rd Divoree Act stipulates for the payments of ‘alimony to the wife Marsieg® jrdian appointed by the court. * Bovnance would include provision of residence. Wife eannot be denied sight of residence in the matrimonial home.’ When permanent maintenance and alimony may be granted.—An jeder on gotnanent maintenance and alimony may be made : teen the time of the passing of the decree in any matrimonial eause, or tb) at any time subsequent to the passing of the decree in any matrimonial cause. Under the Special Marriage Act, Parsi Marriage and Divoree Act, and the Hindu Marriage Act, the court has power to make orders for permanent Bsntenance and alimony in nullity, divorce, judicial separation OF restitution sfonjugal sights proceedings. But under the Divoree Act, such orders can be made only when a decree dissolving, the marriage or granting judicial szaraton is passed, But the words "while applicant remains unmarried" give tre sn impression that orders for permanent alimony cannot. be made when sfecee for judicial separation is passed, But this impression is caused by the gifts of these words, The words in Section 87, Divoree Act, viz» an order Iby Gown that the ecast te be made on any decree of divorce, etc. appear to maineen that the court has no power to pass any permanent orders for All sequent to the passing of the decree in a matrimonial cause. l the oth. alimony ey cree statutes specifically lay down that orders for permanent ne made “at the time of the passing of any decree” or Squently theret. Thus, under the Divorce Act, orders for permanent Komatam En lam Amma v. Kum v. Kumara Pillai Raghavan Pillai, ATR 2009 SC 636. ee FawILY LAW ‘alimony can be made only at the time of the passing of the deren, Ander the Parsi Marriage and Divorce Ach the Special Marriage Hinds Marriage Act, such ordors can be taade subsequent to the p the deeree at any time on the application of the claimant. Once an is. dismissed, another application may be made provided ee ia circumstances is shown. Order when petition is dismiss view that if the petition was dismissed, #l any order for permanent maintenance an Hive Court has dissented from this Vit i Eee romised between the parties and the basis of compromise, no dears is passed, the court has no jurisdiction to pass an order for permanen *s Penance and alimony.’ Similarly, if the petitioner withdraws the petition no order for permanent alimony can be made. While applicant remains unmarried.—An order for permanent maintenance and alimony can be ‘nade in all the matrimonial causes, ‘Jurisdiction.—An-application for permanent maintenance and alimony can be filed only in the court in atnich original petition in a matrimonial ause was filed. No other court has jurisdiction. n for Fixing the Amount of Maintenance amount of permanent maintenance and alimony, the court ration several factors, some of which have been laid down T gome have been evolved by the courts, Under all the Yndian matrimonial statutes, the considerations for fixing the amount of sintenance ave, more oF less, the S870 These are * T Income and property and ability of claimant property of the non-claimant, TL Conduct of parties, and II. Any other cireumstance or factor relevant for the purpose. 1 may be noticed that Section 40 of the Parsi Marriage and Divorce Act and Section 25 of the Hindu Marriage Act “Jo not talk about the "ability" of ané'slaimant, while the other two statutes ‘do so. The Divorce Act does not nom'tion "income and property" of the Non-claimant as a consideration for saeeemining the permanent alimony and maintenance. It is submitted the dete ranility’ is wide enough as to include the consideration of "income and property" of the claimant, Omission (0 ention “ability” under the Hindu preptiage Act and the Parsi Marriage and Divorce ‘Act doos not mean that Mbility’ of the non-claimant is not a consideration Consideration of "income and property" would obviously include it. The Divorce Court's discretion in ST Shantaran WMI AIR 1964 Bom 88; Horilal w Lilavatt, Att 1961 Gui 202 Sarre eercih, AIR 1963 Cal 498, Kalapasi ». Kalapasi, AV, 1955 Bom 413 seamony, AIR 193 Mad 211 (case (a case under Parsi Law); Devashayam v. De Ghrstian law); Also see Badri Prasad v. Urmila, AIR 2001 MP 106 a Jogo Nath Lalitha, AIR 1989 AP 8 E Chinna'v Peri, AIR 1967 On 153 © Shanta . Mirabai, AIR 1962 Bom 27; A. San 3 St Pd kn a 2 4, Mi I amanatt_ AIR 1989 Bom 297, for contrary vi ‘Malook Singh, AIR 1983 P & H 281. as aoe Doo oe w! 4.—At one time it was the fhe court had no jurisdiction tg \d alimony.’ But the Andh; Make 1a bere, aera ae eines eee Consideratio' In fixing the takes into consider in the statutes an t, and income and eae see Ses Eres SBEAASTELESR SEE saa i taram v, Malti, AIR 1964 Bom 83. mi x. Hasami, AIR 1975 Med 1 ww, see Darshan Kaur ¥ ANCILLAI ‘fas to include ee alimony and m/ "et and the Parsi Marri: Mandy Marriot’ manent alimony and maintens the Th order for Pte property of the non-claimant. ety ity of the non-claimant ané erty “nant.—That one of the considerations of the ciaiTad alimony i the assessment. of incor oi prOhy maintenar ties, is a well established rule. Thus, the court ratte" both The Pe ihe income of both parties but also the prapesty tf Gecount Not OMY vig implies that all the properties held by the that they have, Tecount irrespective of the fact whether, any os e or profit. Thus, & husband who works at his father’s pr income and will be required to pay maintenance i tt maintenance the court is called upon to grant permanent Reeania question before the court is to get at the truth about a alimony he Tn of each party. When a party makes an application for : anc : th is required to give all she fin ce and alimony, the other party is reat y # Nemanent mainteres.Sclosure of his income and properties. There is a0 pend ke a full, frank and complete disclosure of all ie the party to mal d u t Pacecetanes! ‘The applicant has the right to make queries about eS court has power to make an order for discovery, | | the alleged eae cote available for inspection relevant documents, Zia, ask the other PlZturns, bank statements, the account of any business in {such a5 nom nterest and like matters, if necessary, the non-elaimant may be sich penined. A similar disclosure of the income and properties of the spplicant is also required. i a : Under the modern English law, the court takes into consideration the nantiat position of the parties, ie., not only what a man is shown to have praniet Fhat would reasonably be made available to him if he wishes® J. v. Jamply illustrates this proposition. The taxable income of the husband was #70 per annum but he was able to live at the rate of more than £ 1,000 per tnnum by borrowing money secured on his properties. The court, therefore, took £ 1070 as his income for assessment purposes. In Ettee v. Ettee,° the fact that the husband was provided with free board and lodging by his mistress, in Martin v. Martin,‘ voluntary allowance that the husband received, and in Klucinski v. Klueinski,? the overtime payment of the husband were taken into consideration by the court. e. ieee oe law, since the court is concerned not only with what a din Mas but with what he could have if he liked, ic. his earning capacity, is into account." Just as husband's earning capacity is taken into Account, a vi : » & view has been expressed that wife’s earning capacity, too, should \ Gurmai 2 ons ee y. Bhuchari, AIR 1980 P & H 120. 3 (196 D., (1978) Fam 83 at 90 per Ormond, LJ. 4 or, 5 WER 1433. / E ; 819) P ogg tL SIR ox, e-E. . 150, "Wen v. Me-E-Wan, (1972) 1 WLR 1217; Griffiths v. Griffiths, (1974) 1 WLR a, relevant _ See a ae Saleen a ami LAW. Bataan Sinn nn te Pes sree eaed ts Riera cere ac eren where the abla that. it will he Pieewill'bs eterno capacity will obviously b have com from youth.' Pcie seratch in middle life, whi bo oa ah acy eeepc while the he with eesegray an doce band Reece eee may be elon i ea Tei eet : Pr # marriage has been of short duration aed : i, ee should not expect a pension for ite aah eet ne ined ® thy a decree of div eee ee eee tho looked fre Teste the | thers ogo Act sumption of coh ee that there is no principle of law {or work, But the pa i ration hd Wee pear ine Tooking to her former husband for Eneneia Ga pa Joaee he wite, Vaitalng a, 3 ian courts have, on es . ihe sara Gree Wat in cmasidacing wide e nicttn (at aa ae gr unde Sef court vo cancel Whe oe u Se Ly expressed ty wered the Co judicial separat jony, they would not take into permanent maintenan powering te alana they (would not Ses ab oe tad a darn nec sufficiently quali in Krishna v. Padma} the tee tea i ea Or support ne To gat a job and in Matha ¥ AjetE Bolg tare ened te ne oS unt of meintoanen! Bet fe owe rat fe con tene court decided | fixation of the amount of maintenance.* But in those vant cat els ce re igh Coronal migeonduct ie sufficient income or earning f sufficient income or earning for herself, no order for maintenance need ie I eintenance’. In Ano}ne® mased to lead an 3 made.” Conduct of parties.—The English courts have abondoned its eri view thata guilty party is not entitled to maintenance, In Wack Meet ing mai Cee eater ecbserved that the notion that a ‘guilty wife) was Weiaty cases which de rmenified from obtaining an order of maintenance, had supe 2 vt ne court held that a W disqualifie’ nority. In this case, the court of appeal considerid RU REE ‘mony, just because & ( aan ae that this did not meon that the Judge was to Hen par | Seittbor on the ground of eruclty In G vapuies for daysonead | Mrreia chat wife is entitled to pone jassed against hei jmutual recriminations and.......go into their peby Sa) as he used to do in the onto thet Aurther observed that there#s | fg decree had been ‘5 an interesting ¢f as need for "a post-mortem to find out what filed the marriage, asin | Surenjrav, Phulwanti ne ee tpoth parties are to blame...0F both Parise have contributed to the ’ case jgurn.? Lord Denning said that only alban the conduet ofa party is Both See ee cu the grommet u vheious and gross” that it will be taken 10% on neideration in fixing fina] | the basic en Kean sect an tao Grovisions, In Harneet v. Harneet,” this Gnterpreted to mean "COMI | ppasd by net of the sect. On wife's 2 Justice requires" that one party should not receive as much 9 ae the ground thi Jtherwise have been ordered: a tries peanut observed that wife ‘On this matter, Indian courts have expressed divergent views: Insem | li Tatdecsen ease Religious toconstitute a ground for divoree or, old days. Ee S, 1078) Faw 1 . aa Fe ie PMtahinn (1272 Fame 127; Colenan COM, (1975) Fam 195 op ae B, Sco LeRoy Lewis . 1e-Roy Lewis Tiges) Pi; Bret x. Bret, (1960) 1 WLR 487 | Met Niblett, AIR 1935 Oudh 138; Le 4. AIR 1968 Mys 226 ~A : 5 AIR 1968 Raj 322 co | ee 8 ATR 105% pramaroan v, Soraeuat ATR 1401p 36; Uso v Subir, 18 IS ag 1 Hata x Seot, (1960) Smith's loading 6 ere So nobar ak, AIR 1089 MB 32: C2 “Took v Gans 9! 86) Kur eo 1 De etfs, At 1960 Ca 8 Senda Banta, 1990 Cal Ri & are PLR 2 i La gate, Stotona, AR 1980 Cal 48 9. ag7a) 1 WLR 21 s mae ee : ‘ 5 579, Jone Ree 97) a (19Ts) Fam 1, Armairone Ae gts) 1 A iss Gi 0, ese Wet, (1978 Fam 2 eave cso of tis Proven bas) a am (ag76) Fam ani he proved unchastity should on the Fr Gopalan v, Rajmaz,! is an interest oralitteained a deere of judicial separation on th ently a decree of divorce under my and subseaver’ vesumption of cohabitation for a p arringe Act ‘Tal separation had been made), For dent for judi ife, Vaidialingam, J. advanced the to the tion 25(3) of the Hindu Marriage Act, Me .r, His Lordship said, a Separation proceedings tance, there was no evidence on Dee eifa ive in adultery after the decree of judicia ee Nonetheless, the cou: i , make an order against her. The ion, None cas also expressed the view that a wile guilty of adultery. High Court has 2 conduct is entitled to either ne mainnanss y other matrimor ce" In another case, the Caleutia igs Court held ee starving To has ceased to lead an. aduliordus life is only entitled to a "6 M i intenance. vs waring mr another line of cases Which do not tale such a rigid position. In Perey. Manjula,’ the court held that a wife could not be denied permanent dogdish «Mar glimony, just because a decree of diverse had been passed mainte on the ground of cruelty. In Gulad vt ‘Kamal, the Bombay High Hae held that wife is entitled to permanent maintenance and alimony even the ground of her adultery. ifa decree had been passed against her on h ® is an interesting case. The husband obtained a decree Surendra vy. Phulwanti,” {judicial separation on the ground of his wife's desertion, since wife had onthe Brahma Kumari sect and took the holy vow of celibacy, which 1s application for maintenance being the basic tenet of the sect. On wife's opposed by the husband on the ground that she was responsible for breaking the marriage, the court observed that wife was entitled to maintenance. This Be el Hinde situation. Religiousity of the wife led her to do what she aid This decision implies that an act or conduct may amount to misconduct constitute a ground for divorce or judicial separation but the same act and TR 1935 Oudh 133; La Framais v. La Framais, AIR 1931 Sind. Dlett vibe 112. plat, 2- AIR 1970 J & K 150. Manby ¥. Scott, ( = 4. (is6e) 96, 8.8%; (1960) Smith's leading cases, Vol. II 417 (13th ed). T 891 s & Sachi indra y. tamer are eee 1960 Cal Raghunath v, Rambala, (1972) 1 CWR 717. TAR agian Sioband, AIR 1960 Cal 438 5 65)an yee § 2 ¥ = 3 is no ground f len, Ro ground to refuge would not ie * ‘ the conduct an”® then cei 4 20d not the mane etd ae ee ee seal sith our social conditinn i ou on mn c] ve i i er Which is, in the words of enning, LJ. ents Other cir, each of the Parties to the nit a likely to have in the foresesabh: future, This is one ofthe Stade auestions and the Ina court attention to this matter. 7 ‘ts have not paid sufficient Two English decisions will illustrate the problem, In MA. vy. Jones,° the husba and had caused his wife such serious injuries that it Teta eabtiul whether she would ever be able to take up a job. There were also fhildren of the marriage. The court allowed the wife to have the matrimonial home (the only capital asset thar the parties had). In S. v. S,7a daughter he poly child of marriage, had suffers! from serious kidney trouble since i infancy, and needed to be looked after. This meant that the wife will at able to t, job, as even when the daughter would leave the st fe of her mother. The court allowed her to have matrimonial home. ; the court will invariably take into ney snioyed by the family before the break Tr When parties are rich, there is no cific ae ‘smilies of moderate or poor means, the task o of living marriage. This is obvious cases of middle clas AIR 1971 Ray 3 2. Jagdish 43. Manjula, AIR 1975 Cal 64; See 8. Mukesh Mittal v, Seema Mitt 4. AIR 1990 P & H 83 & Raj Tatreja v. Kavita Patreja, ATR 2017 SC 2138, 6. (1976) Fam 8, 7. (1976) Fam 1 Bom also Hormusji v. Devibai, AIR 1955 ‘al, AIR 2006 Del. 145 = ‘cs 25 we eee geet one é Wawoe eee = . t would be a difficult exercie but a a Mhe courts have said that ordin to take: yenanee that will enable her to rai ving to which she was entitled before the 1 1 am v. Krishna Kumar, the court said that th Movide maintenance to ‘his wife so as to enable ide which she was uted to before the divorce i card je her further sum as to equip herself for aca on tg for other needs of the life. Se jal court is also free to consider any other matter relevant, piemanent alimony and maintenance, ‘The English court aerr ar any physical or mental disability of either epodse: jbution made by each of the parties to the marriage and to the tributie ily, including any contribution taade by him or her looking are of the fA”, ng for the family, the value to either of the parties of the house oF orig, a pension) which, by reason of the dissolution or it or orrarriage, that party will loss the ehane® of acquiring, | nvlment OF Tuch as what are the prospects, ‘chance or hope of re-marriage, consideratib'tner the wife is marrying 2 wealthy man or a poor man.” The a ba spurts are oleo free to take all ‘these matters into consideration. indi ide exP quantum of Maintenance—Basis for its fixation thi ule. —The English ecclesiastical courts laid down, ee ec awarding maintenance to the wife, that is to as 2 oo of a decree in a matrimonial cause, they would normally order the reaped to pay to his wife such a sum by way of alimony as would bring her hustle up to one-third of the parties joint income, This may be illustrated by ineo™emple, Suppose husband's income is Rs 10,000 per annum and the a ere 9,000 per annum, one-third of the joint income will be Rs. 4,000. wiles Re and will be ordered to pay his wife Rs. 2,000 per annumts So to fring her income to one-third level. This principle was accepted by the Pine eGourt as a guide, "a sound working rule......yet not an absolute rule.” In 1966, in Kershaw v. Kershaw, the court described the rule as “discredited.” The Matrimonial Proceedings and Property Act, 1970 established a new code. But in Wachtel v. Wachtel,° the court of appeal said that the one-third rule was a "good and rational starting point, d though the essence of legislation is to pene flexibility to meet the justice of particular cases, and not rigidity forcing particular cases to be fitted to some so-called principle within which a do not easily lie, and there may be cases where more than one-third is ight, as well as cases where les solution,” : than one-third is the only practicable aed The one-third rule is now treated only as a starting point. ait Fae resting to note that though Section 36, Divoree Act which deals Permanent penance talks of one-fifth rule, Section 37 which deals with alimony, does not speak of one-third rule. In some cases, the aurvir v, Si , io. '. Satiya, (1966) 70 CWN 633 3 ae 1961 Punj 2 ection 25 ‘ 65) on 25(1), Matrimonial Causes Act, 1973. * (1973) Pam 19. ~

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