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Maintenance as an entitlement

By Pooja Badarinath

The right to ‘maintenance’ acknowledges the woman’s non-economic contribution to the family. In patriarchal India, however, this right ends up being linked to the real or perceived ‘sexual purity’ of a woman. Also, it is usually available only to middle class and elite women. How can this civil right be made meaningful for all women?

The term ‘right to maintenance’ is a loaded term and, needless to say, a loaded right! Flavia Agnes explains this very appropriately as: ‘It is a need-based approach which reduces the wife to a subordinate position and does not recognise her as an equal partner in marriage.’ However, marriage and the way it has been conceived in India is an inherently patriarchal and unequal institution; against this background it is a necessary right. It is also one of the very few positive rights available for women. At a time when the women’s movement has been focusing on reforms in criminal law and laws that impose greater penalties and more stringent punishments, maintenance is one of the few rights which provide civil remedies.

Maintenance as an entitlement

But maintenance is also a right which necessarily tags along a stigma -- of being a favour bestowed upon a woman rather than an entitlement. Maintenance also comes with the baggage of being a right that is and will be useful to the elite and the middle class. For instance: in situations where the woman is the sole earner or where both parties earn equally (read, daily wages), the right to maintenance becomes effectively redundant. This article explores the different contradictions within this right, and attempts to resolve them and understand what the ideal right to maintenance should look like.

The general debate around maintenance in the past decade has been regarding ‘who is legally entitled to claim maintenance’ and expanding the scope of maintenance to extend beyond the myopic definition of a wife. The Delhi High Court recently, in Narinder Pal Kaur Chawla vs M S Chawla (1) went a step further in doing this very same thing. In this case, the couple had lived like a married couple for 14 years and the man had concealed the fact that he was already married. They had two children from this relationship. The view taken by the court was that on account of the nature of the relationship, the woman should not be deprived of her right to maintenance under the personal law applicable to Hindus. The court further expressed that denial of maintenance under such circumstances would amount to putting a premium on or rewarding the man for defrauding the woman by concealing his first marriage. It was further recorded that for the purpose of granting maintenance under personal law, a woman placed in the position of a second wife can be treated as a legally wedded wife and is entitled to maintenance.

Before embarking on the meaning and implications of the right to maintenance it is essential to examine the provisions providing maintenance, and some of the issues surrounding those provisions. I am going to refer to three major legislations that deal with the right to maintenance, not all the legislations.

Criminal Procedure Code, 1973 (CrPC)

Section 125 of the CrPC provides for maintenance of a legally wedded wife, legitimate and illegitimate minor child/children, legitimate or illegitimate child/children who cannot maintain himself/herself because of an infirmity in body or mind, and parents; the exception is a married daughter who has attained majority. The law provides that if any person (read, man) who has sufficient means (read, income disclosed to the court) neglects or refuses to maintain any one of the abovementioned categories of persons, a magistrate can order a monthly allowance to be paid to such persons. For the purpose of this piece I will be referring only to the legally wedded wife, not discussing other issues arising from it.

The section further provides an exception when maintenance need not be paid to the woman. According to the law, a wife will not be ‘entitled’ to receive maintenance if she is ‘living in adultery’ or she refuses to live with her husband without providing sufficient reasons, or if they are living separately by mutual consent.

Three major issues arise out of this provision:

  • It is only a legally wedded wife who can claim maintenance. And proof of marriage is almost non-existent in non-urban, non-educated sections of society. Also, there are so many different varieties of customary marriage that one can never come to a clear unambiguous conclusion as to who is a ‘real wife’ (2).  The prevailing debate on the much-discussed proposed Compulsory Registration of Marriages Act is centred precisely on this point (3).
  • Secondly, in many instances of bigamous marriage, the second wife is not entitled to maintenance because it is only the first marriage that is the legal marriage in the strictest sense (4). This applies even to cases where the second wife is not aware of the first marriage and the man has married her fraudulently. This means that the woman pays the price for the man’s fraud, and he is actually rewarded for defrauding the woman!
  • Thirdly, cases of maintenance are always accompanied by accusations of adultery by the woman. Since an exception is provided in the law, almost all cases have respondents (husbands) accusing their wives of adultery; a baseless yet traumatic experience for the woman.

The idea is that a woman who does not perform her ‘conjugal obligations’ (sic) faithfully by being an ‘adulteress’ is not entitled to any maintenance. One cannot escape noticing the transactional nature of maintenance, which being monitored by the court only adds to the dilemma surrounding maintenance.

The Hindu Marriage Act, 1955 (HMA)

Section 24 of the HMA provides for maintenance and expenses of proceedings for cases where either the husband or the wife does not have sufficient income for their own support and the expenses of the proceedings. Either party can apply to the court, and the court can order the respondent to pay the petitioner (the person who has filed the claim) the expenses of the proceedings and a monthly income during the proceedings, keeping in mind the petitioner’s needs and respondent’s means.

Section 25 of the HMA deals with permanent alimony and maintenance which can be ordered to either husband or wife. While passing a divorce decree, the court, after an application in this regard, can order either the husband or the wife to pay maintenance. The said maintenance can be either a gross amount or a periodic sum. Needless to say, such an order can be altered with a change in circumstances and/or if the husband or wife has had sexual intercourse (5) outside of wedlock. Sub-section 3 which deals with this aspect maintains that the order can be changed if the woman is not ‘chaste’ and the man has ‘sexual intercourse outside the marriage’, the section implying that a woman’s sexuality is somehow much more ‘protected’. The word ‘chaste’ and ‘chastity’ implies a sense of purity which is automatically expected from a woman. One can argue that the result of such behaviour is the same; however, the language, especially on purity for the woman, belies any such claim of equal treatment regarding sexual intercourse outside of marriage in the law.

The Protection of Women from Domestic Violence Act, 2005 (PWDVA)

The PWDVA is the most recent and probably the most secular addition to laws on maintenance. As the name suggests, the law provides protection to women who have been subjected to violence in their homes. The law provides civil remedies for women who have been subjected to domestic violence, maintenance being one of them. Since violence has been defined broadly, many cases can be covered under the PWDVA as well. Section 20 of the PWDVA provides a woman who has been subjected to violence with monetary relief which includes loss of earnings, medical expenses, loss caused by the destruction, damage or removal of any property from the control of the person, and maintenance for the woman and her children. The most significant contribution of this law to jurisprudence of maintenance is broadening the scope of maintenance itself, that is, persons living together but not married can also claim maintenance. Hence, all bigamous marriages and other cases where there is no proof of marriage can claim maintenance under the PWDVA. However, it will not be wrong to say that the specific provision relating to maintenance under the PWDVA is the direct descendant of Section 125 of the CrPC. This can be seen through the fact that enforcement of maintenance under the PWDVA is the same as under Section 125 of the CrPC. Hence, it has not only inherited the procedures but also the baggage from that section. And it has also clearly worded maintenance as just that -- ‘maintenance’. The language in this section is significant because language defines perspectives on any issue.

Maintenance as a transaction

In all the legal provisions referred to above, maintenance is linked to the real or perceived ‘sexual purity’ of the woman. It is a reward earned for maintaining this purity and essentially conditioning behaviour in regard to her sexuality. Hence, if a woman behaves in a manner that is more often than not ‘beyond reproach’, only then will her value within a marriage be acknowledged. Every provision ensures that maintenance is doled out without taking into consideration the financial or non-financial inputs a woman makes within a marriage but only the apparent ‘respectable behaviour’ of the woman.

When the laws imbibe different meanings for the same behaviour, as for example ‘woman is not chaste’ being equal to a ‘man having sexual intercourse’, it is reinforcing an already cultural and patriarchal norm on women’s sexual behaviour being of higher value than a man’s. This discrimination percolates into different judicial decision-making where a woman is judged by a set of different parameters from a man. In matrimonial litigation it is invariably the people who are judged; very rarely are cases seen on the merits of the facts and adjudicated in a cut-and-dry manner as would be expected in civil matters. In such cases, the law itself seems to condone an unequal process of assessing who is more worthy of ‘favour’ by the judge doling out these favours and entitlements. Consequently, it very rarely becomes a discussion about the ‘right’ but more a discussion on the ‘obligations’ which were not fulfilled and, in this case, the obligation of a woman not seen or perceived to be an ‘adulteress’ or ‘un-chaste’. As a result, she is also held responsible for others’ un-chaste behaviour!

Claims for maintenance by women

A study of matrimonial litigation and also cases filed under the PWDVA shows that, almost always, a claim for maintenance is the most commonly sought after remedy in the courts. A study on family court litigation in West Bengal conducted by Flavia Agnes (6) has shown that the bulk of family court cases revolve around maintenance under Section 125 of the CrPC. The study also showed that the provision was generally used by poor, destitute women, most of them illiterate (7). Similarly, analysis of court orders under the PWDVA showed that maintenance was the most commonly sought after order under the Act. This has been the trend for five consecutive years (8). Due to a lack of such studies with respect to other legal provisions providing for maintenance, one cannot make the same claim. However, we can safely make the statement that within matrimonial litigation, maintenance has been a highly contested and very valued provision.

Maintenance does become contentious when we look at cases of women who are the sole earners in their household, or daily wage labour. For example a typical scenario where both husband and wife earn Rs 100 per day and have one child. The wife is physically and mentally abused. The typical solution suggested in such a case is always file for maintenance and also a protection order and possibly divorce depending on the circumstances of the woman and the societal structures. In such a case, the court procedures are long and the woman spends a lot of time coming and going to court without any support. Eventually, she ends up losing more money than she would ever gain. This is without even going into the problem of enforcement of the order, if made. At this point, do we say women do not need maintenance at all? We need to think about custody of the children with their mother; a single income is not sufficient to make ends meet.

Conclusion

There is no doubt that ‘maintenance’ as a concept is an extremely invaluable provision. The idea behind maintenance is to respect the woman’s non-economic contribution to the family. It stresses the fact that women have a right to monetary compensation in a marriage, not necessarily of being ‘maintained’. It is also essential for a woman’s sustenance and living. However, for the right of maintenance to be available to all women including those in extremely poor circumstances, the existing provision should be amended to bring in the state’s liability in such circumstances -- that is, welfare and social security mechanisms. Since criminal law in this regard has not been the most effective in providing rights to women, there has to be an alternative through which a woman’s contribution to the family and economy is recognised. We need to question how the right of maintenance can move beyond an entitlement for the middle class elite woman and find a more effective and meaningful ‘right’ for all women.

(Pooja Badarinath works at CREA in New Delhi. She works on women's rights, violence against women and sexuality)

Endnotes

1 Crl Rev Pet No 238/2004 decided on March 19, 2012
2 For details please refer ‘Rights in Intimate Relationships’, Partners for Law in Development, New Delhi, 2010
3 The Compulsory Registration of Marriages Act is hailed as ending the ambiguities in such bigamous marriages because non-registration would result in levy of a fine. It is also hailed as a way to prevent child marriages as all marriages should be compulsorily registered. However, the opposite argument that such compulsory registration will further marginalise the few women who are either unaware or do not have access; further there is no mechanism to track whether every marriage is registered and in cases of maintenance and other matrimonial rights, denial of a wife’s right becomes easier
4 Section 5, Hindu Marriage Act, 1955
5 Section 24 (3), Hindu Marriage Act, 1955
6 Agnes, Flavia. ‘A Study of the Family Courts, West Bengal’ for the West Bengal Women’s Commission, September 2004, pg 26
7 Agnes, Flavia. ‘A Study of the Family Courts, West Bengal’ for the West Bengal Women’s Commission, September 2004, pg 27
8 Please refer: ‘Staying Alive; The First, Second, Third, Fourth and Fifth Monitoring and Evaluation of the Protection of Women from Domestic Violence Act, 2005’, Lawyers Collective Women’s Rights Initiative, New Delhi

Infochange News & Features, March 2013