15 Maintenance & Custody

Upasna Garnaik

Learning Aims:

By the end of this module the reader should:

Be familiar with various laws dealing with maintenance and custody in India.
Have a brief knowledge of the impact of judicial decisions on the rights of women claiming maintenance and alimony under various laws.
Be familiar with factors which govern custody matters and of the welfare of the child principle.
Have some basic knowledge of the judicial decisions related to these areas of family law.

Introduction

Maintenance and custody are two primary issues arising out of a matrimonial dispute. Maintenance under the classical law generally refers to the husband’s obligation to financially support the wife during marriage and also on divorce or separation. Provisions for maintenance arise out of the personal laws as well as the Code of Criminal Procedure, 1973. Such provisions have typically aimed to secure the finances of the wife and to ensure the same standard of living to her, and children she retains custody over, which she had when she was married. Recently courts have started denying maintenance to women who have the capacity to earn independently and are not financially dependent upon their husbands. Challenges have also recently come to courts with men requesting maintenance if the wife was the primary income earner. This module will examine legal rights to maintenance and custody from a woman’s perspective under various personal laws and how these affect her right to life and non-discrimination.

Maintenance

The right of maintenance is recognized as a statutory right that serves a social purpose to prevent women from becoming destitute and impoverished following the breakdown of the marriage. Recognising women’s socio-economic inferiority within society access to maintenance is recognized as a means to secure to all women an adequate means of livelihood (Constitutional provision 39), and, when reading with provision 15(3) of the constitution, it may be awarded to women as a special provision. It’s status as a statutory right has also led courts to state that a wife cannot bind herself by agreement with her husband and give up her right of maintenance. It was held that “The parties, therefore, cannot by an agreement between themselves, agree to oust the jurisdiction of the Court which otherwise Parliament has conferred.”

In the case of Purnananda Banerjee vs. Swapna Banerjee and Anr, in a proceeding for divorce and maintenance filed by the wife, the husband challenged the constitutional validity of Section 36 of the Special Marriage Act, 1954 as it did not provide the husband with the option of claiming maintenance unlike the Hindu Marriage Act, 1956. The Court of Calcutta upheld the constitutional validity of Section 36 in view of Article 15(3) of the Constitution which states that, “Nothing in this article shall prevent the State from making any special provision for women and children.”

Such interpretations by courts demonstrate the level of importance given to maintenance as a right for women and its intent to ensure women are not unfairly and unequally left vulnerable after separation and divorce. In the case of Bhuwan Mohan Singh v. Meena and Others, the Supreme Court held that “The husband cannot take subterfuges to deprive her of the benefit of living with dignity.” This section will examine rights to maintenance as under secular, Hindu, Muslim, Christian, and Parsi laws.

Maintenance under Section 125 CrPC

Section 125 of the Code of Criminal Procedure, 1973 states that if any person has sufficient means refuses or neglects to maintain his wife or legitimate child, then such party may apply to the Magistrate who may order a monthly allowance for the maintenance of such child or wife. In the case of Chanmuniya vs. Virendra Kumar, the Supreme Court held that women in live-in relationships can also claim maintenance under Section 125, CrPC. It was stated by the Supreme Court in this case that, “Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her.” The objective behind granting maintenance in such cases is that the woman should not be led to vagrancy and destitution. In the case of Chaturbhuj vs. Sita Bai, it was held that “the test is whether the wife is in a position to maintain herself in the way she was used to in place of her husband….The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C. The court in this case also cited the case of Bhagwan v. Kamla Devi, where it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with the status of the family.

The liability under Section 125 does not absolve on punishment for non-payment, it only absolves when the actual payment of maintenance is made. In the case of Ajith Kumar vs. Shaima, it has been held that “Imprisonment does not, and cannot absolve petitioner of his liability to pay maintenance. Imprisonment is not a mode of satisfaction but is only a mode of enforcement of liability.” In another case decided by the apex court, it was held that, “…The liability can be satisfied only by making actual payment of the arrears.” Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears.

Maintenance under the Hindu Marriage Act, 1956

Section 24 of the Hindu Marriage Act, 1956 (herein HMA) deals with maintenance pendente lite (pending litigation). It states that on the application of the husband or the wife during any proceedings under the Hindu Marriage Act, 1956, where it appears to the court that the applicant has no independent income sufficient for her or his support including the cost of litigation, the court may order the respondent to pay to the applicant such costs and expenses. Maintenance under Section 24 can be granted only when the proceedings are pending, and thus when the case is disposed of, the maintenance under Section 24 also ends. An application for maintenance under Section 24 is not maintainable when the marriage is void. This may be problematic for women who are either unable to prove their married status or whose marriages may be declared void as a previous marriage had not been dissolved prior to their marriage without their knowledge. It may, therefore, lead women who thought themselves to be married to be left financially vulnerable.

Section 24 includes considerations such as the applicant’s own income and income of the respondent. It has been held that “[m]aintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non-applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.” Income affidavit thus has become an efficient tool to help the court in deciding the fair amount of maintenance to be granted. In the Puneet Kaur case, a detailed format of the income affidavit was given and facts such as tax receipts, property ownership, school fees, fuel expenses, total income package and day-to day expenses had to be disclosed. In another case, V. Usha Rao vs. M.L.N Rao, it was held that the term “income sufficient for her support” is not to be narrowly construed and it cannot be held to mean bare subsistence. It means that the spouse should be in as much comfort as the other spouse and to which she was habituated while living with her husband. Maintenance for minor children also can be granted along with maintenance of the spouse under this section. Even though Section 24 does not explicitly refer to children, it has been held in the case of Damodharan vs. Meera, that the court can invoke Section 26 which discusses custody proceedings and grant maintenance if required.

Section 25 deals with permanent alimony and maintenance. It states that any court on an application by the husband or the wife, at the time of the passing of a decree ordering the respondent to pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant. The section although entitles both spouses the right to maintenance, most of the cases are decided where it secures the right of the wife to secure support. Even if the decree is in favour of the husband, that does not restrain the court from passing an order of permanent alimony and maintenance in favour of the wife. While one can file an application for maintenance under Section 24 while the proceedings are pending, Section 25 can be used at the time of decree under this Act or thereafter. In the case of Chand Dhawan vs. Jawaharlal Dhawan, it was held that when the main petition has been dismissed or withdrawn, permanent alimony is not payable under this Section. While deciding an application under Section 25, the court has to take into consideration the income of both the parties and even conduct of the parties. The amount of alimony to be granted is the court’s discretion taking into account various factors such as ownership of property, the lifestyle of the parties, day-to day expenses, predictable change in circumstances and the capacity to earn.

The Special Marriage Act, 1954 applies to persons who are married under the Act. Section 36 deals with maintenance pending proceedings and Section 37 of the Act deals with permanent alimony. Unlike the Hindu Marriage Act, a husband cannot claim maintenance under the Special Marriage Act.

Maintenance under Hindu Adoption and Maintenance Act (HAMA), 1956 Section 18 of the Hindu Adoptions and Maintenance Act (herein HAMA), 1956 states that a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. This section reaffirms the Hindu ideology of maintaining your wife. While under the HMA the laws treat both husband and wife equally to claim maintenance and alimony, HAMA specifically talks about the right of a Hindu wife to claim maintenance during her marriage from her husband. The liability of the father-in-law arises only on the death of the husband. Section 18(2) states that “a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.” The case of Bouramma vs. Siddappa Jeevappa, upheld this stating that mere agreement to live separately unless there has been the dissolution of marriage in law cannot be a ground for refusal of maintenance. Maintenance includes everything that fulfills basic necessities such as food, clothing, residence, medical treatment, and education. The court also has the jurisdiction to provide for interim relief of maintenance under this Section and it does not depend on the challenge by the husband questioning the validity of marriage. Such an interpretation by the court is very gender-sensitive; by allowing maintenance even when living separately, it doesn’t force women to live in unhappy or abusive relationships and nor does it, subject women, to have to get divorced if they do not wish to. It, therefore, upholds the privacy and choice of the woman and her right to financial security this maintaining her dignity.

Section 20, HAMA specifically deals with the right of maintenance of children and aged parents. It states: “a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.” The maintenance under this section can be claimed from the father or the mother. In the case of State of Haryana vs. Santra, it was held that there is no difference between a legitimate and an illegitimate child with respect to the question of maintenance. It was also stated in the same case that “’Maintenance’ would obviously include provision for food, clothing, residence, education of the children and medical attendance or treatment. The obligation to maintain besides being statutory in nature is also personal in the sense that it arises from the very existence of the relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father or the mother.”

The court can make an interim order for relief of maintenance under Section 18 and 20 of the HAMA. Section 23 deals with the amount of maintenance to be ordered and states that courts have the discretion to “determine whether any and if so what, maintenance shall be awarded.” The Act states that in determining the amount to be awarded the court should consider: the position and status of the parties; the reasonable wants of the claimants; if the claimant is living separately, whether the claimant is justified in doing so; the value of the claimant’s property and earnings and the number of persons entitled to maintenance under this Act. In stating down such clear guidelines which also consider the claimant’s assets and income the HAMA clearly aims to strike a balance between meeting the monetary needs of the claimant with existing provisions and the respondent’s capacity to pay.

Maintenance under Muslim Law

A Muslim wife can claim maintenance under the Code of Criminal Procedure, 1973, the Shariat and the Muslim Women (Protection of Rights on Divorce) Act, 1986. Under the personal law, a wife is entitled to maintenance as long as the wife is faithful to the husband, does not refuse to cohabit with the husband and obeys his reasonable orders. After the divorce, a Muslim woman is entitled to maintenance and the claims should be settled during the period of iddat. In the infamous Shah Bano case, the Supreme Court held that Section 125 of the CrPC was applicable to all without prejudice to their religion. This created a large reaction from male Muslim religious leaders that it was interference in their personal laws. The Muslim Women (Protection of Rights on Divorce) Act 1986 was then passed proving a codified set of rules to govern maintenance for Muslim women and effectively limiting their ability to access the secular CrPC and to seek equality with other women in India. The move was criticized as being an Act passed to appease the powerful voices of the angry religious leaders at the cost of securing women’s dignity as a rights holder free from discrimination on the basis of her sex.

The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act was challenged in the case of Danial Latifi vs. Union of India, stating that it was against the ruling in the Shah Bano case. It was held that the payment of maintenance as implied by a bare reading of the provision of maintenance under the Act was not limited to the period of iddat. Further, it was held that a divorced Muslim woman is entitled to a fair and reasonable provision for her future being made by her former husband which must include maintenance for a period extending beyond the iddat period.

Maintenance under Parsi Law

Section 39 of the Parsi Marriage and Divorce Act deals with Maintenance pending litigation and Section 40 deals with permanent alimony. Under these sections, both husband and wife are entitled to claim maintenance or permanent alimony. The court takes into account various factors such as income of the applicant and the respondent, conduct of the parties.

Maintenance under Christian Law

The Indian Divorce Act, 1869 governs marriage, divorce, and maintenance for Christians within India. Section 36 addresses alimony pending litigation. Only the wife is entitled to claim relief under this section. In the case of Joykutty Mathew vs. Valsamma Kuruvilla, it was held that even if the wife has an independent source of income, it does not disentitle the wife from claiming alimony under this section. Dismissal of an application under 125 CrPC is also not a ground for disentitlement of the wife from claiming alimony under this section. Section 37 of the Indian Divorce Act deals with permanent alimon.

Custody

Custody refers to the physical care and control of a minor. It involves routine tasks associated with bringing up a child and day-to-day decisions which affect the child’s life. Decisions could include which school the child should attend, dietary habits, extra-curricular activities, and medical treatments, etc. In matrimonial disputes, the child is the worst sufferer due to no fault of theirs; therefore, courts follow the policy of the welfare of the child or best interest of the child to decide custody disputes. The best interest of the child supersedes personal laws as well. The “best interest of the child” has to be decided to take into account various factors and several complex socio-ethical issues. Some of the factors which are taken into account are the minor child’s wishes, the finances of the parents, the conduct of the parents, for example- whether the parent acted in a cruel manner or if the parent suffers from any mental or physical ailment. The following section will examine custody laws under different personal laws.

Custody under Hindu law

Section 26 of the Hindu Marriage Act states that in any proceeding under this Act, the court may, from time to time pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance, and education of minor children.

Section 6 of the Hindu Minorities and Guardianship Act, 1956 states that the natural guardian of a Hindu minor (a boy under the age of 18 or an unmarried girl) is the father and after him the mother. The proviso to Section 6 provides that in cases, where the minor has not completed the age of 5 years, the custody of the child is with the mother. In cases, where the child is illegitimate, the guardian is the mother and after her, the father. In the case of Gita Hariharan vs. Reserve Bank of India, the validity of Section 6(a), Hindu Minorities and Guardianship Act, 1956 was challenged as being violative of Articles 14 and 15 of the Constitution of India.

The petitioner claimed that she should be an equal guardian to her child and should not come “after” the father’s legal right of guardianship. The court held:

“the word ‘after’ shall have to be given a meaning which would sub-serve the need of the situation viz., welfare of the minor and having due regard to the factum that law courts endeavour to retain the legislation rather than declaring it to be a void, we do feel it expedient to record that the word `after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning theretoas ‘in the absence of’- be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word `after’ as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child.”

Therefore, although the court expanded the meaning of ‘after the father; to include situations where the father is alive but absent, it did not put at par the rights of the mother as a guardian with the father’s right. Her rights to non-discrimination on the basis of sex, recognition of her as an equal parent and her dignity to be a mother without secondary status were therefore denied by the court.

In many of the judicial decisions, the welfare/best interest of the child is the primary and paramount consideration. In the case of Rajesh K. Gupta vs. Ram Gopal Agarwala and Ors., a Habeas Corpus petition was filed by the father for the custody of his minor daughter. The child was living with her mother and her grandparents. The father alleged that the mother was suffering from schizophrenia. The Court held that “in an application seeking a writ of habeas corpus for custody of the minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else”. The medical reports did not show any such mental ailment as alleged by the father. It was also observed that the father being a Supreme Court lawyer and hence very busy with the profession, it was in the welfare of the child to stay with the mother and her grandparents who were well-educated and financially sound to look after their daughter and the granddaughter.

In the case of Gaurav Nagpal vs. Sumedha Nagpal, it was held that in cases of custody of a minor child, the paramount consideration is the welfare of the child and not the rights of the parents under different statutes. In another case decided by the Supreme Court the court held that, “it is not the ‘negative test’ that the father is not ‘unfit’ or disqualified to have custody of his son/daughter [that] is relevant but the ‘positive test’ that such custody would be in the welfare of the minor which is material, and it is on that basis that the Court should exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian”.

Custody under Muslim law

Under Muslim personal law, the father is considered to be the natural guardian of the child. Under Shia law, a mother is entitled to the custody of minor son till the son is two years of age and the custody of the minor daughter till she is seven years of age. Under the Sunni law, a mother is entitled to the custody of the son till he is seven years of age and of the minor daughter till she attains the age of puberty. In the case of Zarabibi vs. Abdul Rezzak, it was held that the right of the mother to the custody of the minor children till a certain age operates after divorce. The courts have time and again emphasized on the principle of the best interest of the child. In the case of Md. Khalid vs. Zeenat Parvin, where the father under the Muslim personal law was claiming the custody of the children, the Allahabad High Court held “Though the father as natural guardian may have a prima facie right to minors custody, this may be negatived if infant’s welfare lies in keeping him in his mother’s custody. The children cannot be treated as chattel or property. Their welfare has to be considered more on humanitarian ground and looking into the overall welfare of the child.” In a recent decision by the Supreme Court of India in Athar Hussain vs. Syed Siraj Ahmed and Ors, the children were residing with their maternal grandparents after the mother’s death, and the father initiated custody proceedings. It was held by the apex court that although the father is the natural guardian according to the Muslim law, the court could not overlook the preference of the minor children and the interest of the children. The court found that it was in the interest of the children that the custody should not be disturbed and the father should be allowed visitation.

Custody under Christian law

Sections 41- 43 of the Indian Divorce Act, 1869 addresses the custody of children for Christians. Even under the proceedings under the Indian Divorce Act, 1869, the primary consideration in deciding a case under the Act is the welfare of the minor child. In the case of Jacob vs. Jacob, it was observed that “children are not mere play things for their parents. The absolute right of the parents over the destinies and lives of their children has, in modern changes [sic] conditions, yielded to the consideration of their welfare as human beings”. In the case of Duncan vs. Duncan, it was held that the person to whom the custody is granted can be directed to not remove the child from the court’s jurisdiction. Such orders help to ensure that both parents have access to their children.

Parsi Law of Custody

Under Section 49 of the Parsi Law of Marriage and Divorce Act, 1936, a court may make provisions with respect to the custody, maintenance and education of the children under the age of eighteen years. In the case of Thirty Hoshie Dolikuka vs. H.S Dolikuka, the mother was refused custody of her minor daughter by the High Court as she was a working woman. The mother alleged that the father had poisoned the mind of the girl against her. The Supreme Court on appeal stated that employment of the parent should not be primary condition and the High Court erred in not granting custody to the mother on this ground. Custody was granted to the mother, and the father was given visitation rights.

Courts have consistently ruled in favour of the presumed welfare of the child over personal law provisions. This demonstrates a desire to implement legal provisions with a consistent welfare of the child interest. As there has been no significant backlash from faith based groups, it has been easier to create uniformity between the personal laws thus helping to ensure equality between children from different faiths and the mother’s role as a care provider.

Conclusion

This chapter has introduced maintenance and custody provisions that exist in India in both secular and religious laws. The module has attempted to provide information on not just the key provisions that exist but also how courts have interpreted them, particularly with reference to rights to dignity and equality amongst women.

Summary

Maintenance and Custody are governed largely by various personal laws and form the core of matrimonial disputes.
Maintenance under Hindu Law is governed by Section 24 of the Hindu Marriage Act which deals with the right to claim maintenance of either spouse when litigation under the Act is pending. Section 25 deals with the right of permanent alimony of either spouse.
The factors that the court has to look while deciding the quantum of alimony and maintenance are income of the applicant, income of the respondent, if the applicant is not earning, the capability of the applicant to earn, properties of both the parties, and conduct of the party in some cases and lifestyle of the parties.
Section 18, Hindu Adoption and Maintenance Act deals with the right of the wife to claim maintenance from her husband.
Section 125 of the CrPC entitles wife and children to claim maintenance from the husband who has been neglecting and refusing to maintain them. Imprisonment for non-payment does not absolve the husband from paying maintenance.
A Muslim wife can claim for maintenance under the Code of Criminal Procedure, 1973, the Shariat and the Muslim Women (Protection of Rights on Divorce) Act, 1986. Under the personal law, a wife is entitled to maintenance as long as the wife is faithful to the husband, does not refuse to cohabit with the husband and obeys his reasonable orders. After the divorce, a Muslim woman is entitled to maintenance and the claims should be settled during the period of iddat.
Section 39 of the Parsi Marriage and Divorce Act deals with Maintenance pending litigation and Section 40 deals with permanent alimony. Under these sections, both husband and wife are entitled to claim maintenance or permanent alimony.
Section 36 of the Indian Divorce Act, 1869 deals with alimony pending litigation. Only the wife is entitled to claim relief under this section.
Custody although governed by various personal laws where generally father is taken to be the natural guardian, the paramount and primary consideration is the welfare of the child or the best interest of the child which supersedes every personal law.