Divorce, also known as dissolution of marriage, is the process of terminating a marriage or marital union. Divorce laws vary around the world. It comes with one of the major issues that is, distribution of property and finances between husband and a wife.
Laws dealing with divorce
Since India is a land of varied religious communities having their own marriage laws. Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956.
Grounds of divorce and Who can file it?
Under Section 13, Hindu Marriage Act,1955. There are many grounds of divorce on which both husband and wife can file a divorce petition.
Sub-clause (1) of section 13 of the Act, there are 9 fault grounds on which divorce can be taken. These grounds are such as desertion, adultery, cruelty, venereal disease, leprosy, insanity, and conversion.Sub-clause (2) of section 13 of the Act, there are four grounds on which the wife alone can file a divorce petition. These grounds are such as husband having more than one wife living, rape or sodomy or bestiality, non-resumption of cohabitation after a decree of maintenance, repudiation of marriage.Sub-clause (1A) of section 13 of the Act, Irretrievable Breakdown Ground is also available for both husband and wife.
Section 28 of the Special Marriage Act, 1954, the couple should be living separately for at least one year before divorce proceedings can begin. Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years. Do note that living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.
Grounds of alimony and maintenance to wife after divorce
With divorce there arises an issue of alimony and maintenance to the wife and distribution of finances. How much a wife must receive? Proof of marriage for maintenance? Precondition for maintenance? How should it be distributed? To what extent a husband is responsible towards his wife? What factors influence the duration and amount of alimony?
When two people are married, they have an obligation to support each other. This does not necessarily end with divorce. Under the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband who has sufficient means. When deciding the payment on the alimony, the court will take into account the earning potential of the husband and will also consider the need of the wife. Section 125 of criminal procedure code, 1973 orders for maintenance of wives as well as to children and parents.
Relevant cases and judgements
Proof of marriage- A strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance under Section 125 CrPC. This was stated in Kamala and ors. v. M.R. Mohan Kumar. Therefore precondition for proof of strict marriage is not required.
Quantum of Maintenance- The Supreme Court answered this question in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy by holding that 25% of the husband’s net salary would be just and proper as maintenance to the wife.
The Supreme Court in Dr. Kulbhushan v. Raj Kumari & Anr. it made two remarkable contentions:
● That the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.
● That maintenance is always dependent on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors.
Compulsory maintenance to wife
How, how much should be distributed and to what extent a husband is responsible to maintain his wife is completely on court’s discretion depending upon case facts and circumstances.
The supreme court in Shantha v. B.G. Shivnanjappa held that
“ the first and foremost duty of the husband is to maintain the wife and the child. He may beg, borrow or steal. Husband will suffer imprisonment on each default in payment of maintenance. ”
Can a husband claim maintenance?
Section 24 of Hindu Marriage Act, 1955 entitles not only the wife but also the husband to claim maintenance pendente lite on showing that he has no independent source of income and Section 25 allows to make the application for Permanent alimony and maintenance by either the wife or the husband. Husband gets only when in inability to earn
In V. M Nivya v N. K Shivaprasad High Court of Kerala held that-
“ A husband seeking maintenance from the wife can be treated only as an exceptional case as normally he has got the liability or obligation to maintain the wife and vice versa is only exceptional. Husband has to establish that he is permanently disabled from getting any income, he cannot seek maintenance from the wife.”
The purpose of section 24 of Hindu Marriage Act is to “provide support” to a spouse who has no independent source of income and is incapable of maintaining himself/herself. It means that the other spouse, who has no independent source of income, is provided with such maintenance so as to live in a similar status as was enjoyed by them in their matrimonial home. It is the purpose of section 24 that the wife OR the husband who has no sufficient source of income for her or his support or for the expenses of the proceedings must be provided with such reasonable sum that strikes equity between the spouses. Husband’s claim has been an exception to the law which will only be considered if he is completely unable to earn money, and therefore is not entitled to maintenance from his wife (Rani Sethi vs Sunil Sethi, 2011).
Normally none maintenance to a wife is considered to be a criminal offence under section 125 of criminal procedure code. But there is no such provision in any law which is available to men specially. As to claim maintenance for livelihood from his affluent wife he has to prove his inability to earn money.Maintenance is granted under circumstances of violence, cruelty, mutual consent divorcee wife and also to a wife who is able to earn, as it is the utmost priority and duty of the husband to maintain his wife and children by hook or by crook, again depending upon the facts of the case. [ In KUSUM BHATIA vs SAGAR SETHI supreme court denied to award maintenance to the wife as she was a working lady with sufficient salary. ]