Overlapping Laws on Maintenance and Alimony Rights of Women in India: Present Scenario
Author: Utkarsh Srivastava
Advocate-on-Record, Supreme Court of India
- INTRODUCTION AND PURPOSE BEHIND MAINTENANCE LAWS
Maintenance and Alimony is a right given to married women in India under a number of laws pertaining to matrimonial disputes. These include Special Marriage Act 1954 (“SPA”), Hindu Marriage Act 1955 (“HMA”), Hindu Adoption and Maintenance Act 1956 (“HAMA”), Protection of Women from Domestic Violence Act 2005 (“DV Act”) and Section 125 under Code of Criminal Procedure 1973 (“CrPC”) which has been recently changed to Section 144 of the Bharitya Nagarik Surakhsha Sanhita 2023 (“BNSS”).
A married woman is in a matrimonial dispute with her husband, if her husband is not maintaining her. Neither is he giving any maintenance or monthly alimony to her. She can then file a complaint or an appropriate application seeking monthly alimony from her husband for her day-to-day expenses. Similarly, she can also file an application for her minor child.
Maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and minor children for financial needs. This is done to prevent the woman and her child from falling into destitution and vagrancy.
In Chaturbhuj v. Sitabai, 2007 INSC 1190, Hon’ble Supreme Court of India held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy.
- WOMENS RIGHT UNDER CONSTITUTION OF INDIA
Article 15(3) of the Constitution of India provides that nothing shall prevent the State, i.e., the government, from making any special provisions and laws for the welfare of the women and children.
This positive role of the government lead to laws empowering the women and children from time to time, including the laws which have been mentioned above like, Protection of Women from Domestic Violence Act 2005, The Sexual Harassmentof Women at Workplace (Prevention, Prohibition and Redressal) Act 2013), Protection of Children from Sexual Offences Act 2012, and many more.
In the present paper we are only concerned with the topic of maintenance and alimony under the laws enacted towards protection of women in matrimonial cases.
Hon’ble Supreme Court of India in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal & Ors., (1978) 4 SCC 70 while discussion the provision under Section 125 Code of Criminal Procedure 1973 held that the provision of maintenance is a measure of social justice which is specially enacted to protect the women and children. This provision falls within the constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India.
- OVERLAPPING PROVISIONS FOR MAINTENANCE
It would have become clear from the introduction itself that a woman can seek maintenance for herself and her child under one or more provisions of laws. Each of the enactments provides an independent remedy. She can claim maintenance in either of the disputes relating to divorce, restitution of conjugal rights, complaining under DV Act, etc.
In Nanak Chand v. Chandra Kishore Aggarwal & Ors. (1969) 3 SCC 802, Hon’ble Supreme Court of India while dealing with such a question as to whether maintenance can be claimed by a woman only under one provision of law at a time or she can claim maintenance under all provisions simultaneously. The question was between HAMA and Section 488 of Old CrPC.
It was held that both can stand together. Both the laws are different from one another. CrPC provides a summary remedy. Whereas, HAMA is a Maintenance Act for granting maintenance Hindu Women and Children. It does not repeal or affect in any manner the provisions contained under CrPC.
Therefore, although it true that one can claim maintenance under all the provisions simultaneously, but, it causes multiplicity of proceedings and conflicting orders. This is inevitable effect of overlapping jurisdiction leading to more than one order granting maintenance to the wife. It also results in a scenario of confusion because more than one order means more than one quantum of maintenance. It causes quite a confusion as to which quantum of maintenance is to be paid and which order is to be followed.
In this regard Courts follow an equitable principle of law. The order which grants more quantum of maintenance prevails over the other. Apart from that an order under HMA or HAMA would prevail over S. 125 CrPC order because it is a summary order. Whereas the order under HMA or HAMA are passed after trial is completed. Thus, the lower maintenance granted was adjusted accordingly.
Keeping in mind the overlapping issue, Hon’ble Supreme Court of India in its judgment titled Rajnesh v. Neha, 2020 INSC 631, also @ (2021) 2 SCC 324 finally settled the issue and held that,
“60. It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the DV Act and Section 125 CrPC, or under HMA. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/Family Court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.
61. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the court concerned in the previous proceeding.”
- CONCLUSION
Therefore, as on date, although a wife, a married woman, has every right to claim maintenance from her husband under a number of laws simultaneously. However, once granted she has to disclose about the order of maintenance to the other courts wherever she is praying for maintenance or alimony form her husband or in-laws for herself and her children.
This in no manner means that rights of a married women has been curtailed. She can still approach another court with the same prayer under a different law. Even if, she has already filed for maintenance under one law, she can still file it before another court, but once granted the disclosure has to be made about the order granting maintenance to all the other courts.
Then it is up to the discretion of other courts to decide as to whether they want to keep the quantum same as already decided or enhance it further.
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