DISSOLUTION OF MARRIAGE

THEORIES OF DIVORCE

 The following theories of divorce are relevant:

1. Divorce at will
2. Frustration of marriage
 Parties entering into a marriage have several obligations, all of which are aimed to
promote the purpose of marriage. If those obligations are violated the entire
marriage becomes meaningless and the purpose is defeated.
 Hindu Law Recognizes this theory. Without there being any matrimonial offence,
if one spouse is suffering from any physical mental ailment, changed religion,
renouncing the world, disappearance
3. Offence/Guilt/Fault Theory
 When one of the spouse commits a matrimonial offence, other may seek divorce
from delinquent spouse. It implies guilt of one party and innocence of other
 However, if act is condoned then no divorce.

4. Irretrievable breakdown
 failure in the metrimonial relationship or circumstances so adverse to the relation
that no reasonable probability remains for the spouses to live toghther as husband
and wife.
 Law Commission 71 st Report recommended it as a ground, and 3 years separation
period. Approved by Marriage Law (Amendment) Act 2010, approved in 2013.

5. Divorce by mutual consent

 File a joint petition to “get rid of each other”. HMA permits under Section 13B.
 During pendency of petition however if one party withdraws consent then no
divorce can be granted.
 Islamic law provides for two ways. A.Khulla where wife asked husband to
discharge her, by making an offer of payment for the same. Irrespective of
quantum, wife says she doesn’t want anything in return but divorce.
 Other is Mubarat- Wife requests husband to give divorce without consideration.

1|Page
SECTION 13A: THEORIES OF ALTERNATIVE RELIEF IN DIVORCE PROCEEDINGS

In any proceeding under this Act, on a petition for dissolution of marriage by a decree of
divorce, except in so far as the petition is founded on the grounds mentioned in clauses
(ii), (vi) and (vii) of sub-section

(1) of section 13, the court may, if it considers it just so to do having regard to the
circumstances of the case, pass instead a decree for judicial separation.]

 Position of law is that Courts are reluctant to give decree of divorce immediately.
Option or possibility of reconciliation must be given.
 No court can grant divorce within a period of one year. Parties may at best obtain a
leave of acceptance of petition from the HC but they must state the reasons again for
coming out of the marriage before the family court. (Section 14)
 Chandramohini v. Avinash Prasad (1967): Decree of divorce may only be given after
a decree of Judicial Separation (JS).
 EXCEPTIONS :
1. Renouncing the world: Criteria for the same has to exist and Courts must test
renouncment. Not every single act amounts to renouncement.
2. Conversion: Intention of party very important as a criteria to test.
3. Missing or disappearance for last 7 years, after obtaining a certificate of
presumption of death

GROUNDS FOR DIVORCE

 TIME TO FILE: Under S.14, no petition for divorce can be admitted before 1 year
form date of marriage. However, petitioner can approach the High Court on any the
above grounds and obtain a leave to present petition.
 Once Petition is filed, it only allows for relaxation of 1 year time limit. It does not
grant divorce and the grounds must be proved again by the petitioner before the
Family court.
 Essential Ingredients for filing a divorce petition
1. The marriage must be solemnized by hindu rites and ceremonies (Valid marriage)
2. Marriage should be in subsistence at the time of filing petition

2|Page
 3. Eitehr party should approach the Court. In Mutual divorce both should approach.
 Only after these ingredients are present, divorce can be obtained on several grounds,
divided into 4 parts. First part, Section 13(1) include:
1. Adultery
2. Cruelty
3. Desertion
4. Conversion
5. Mental illness
6. Leprosy
7. Veneral Disease
8. Renouncement
9. Missing for 7 years
 General principles in this regard are clearly:
 (1) Both parties are eligible to take divorce: Both have equal rights base don the nine
aforesaid grounds. Comparable to Dissolution of Muslim Marriage Act where inequal
rights for same gronnds are given.
 (2) Divorce can only be given for valid or voidable marriages: Presumption of
validity of marriage exists. If there is no challenge, Court will not suo moto look into
validity of marriage. Provisino susch as PCMA may be invoked to prove void
marriages.
 (3) Must be in subsistence: If marriage is alredy dissolved by death or divorce, no
divorce can be granted.
 Multiple grounds of divroce can be claimed in one petition

 Second Part of grounds include Section 13A on grounds of non-fulfillment of

obligations of RCR or decree of JS.

 Third Segment include grounds avaliable only to the wife

-Bigamy: If husbadn enters into a second marriage, the marriage is void ab initio. Second
wife may approach for annulmnet wheras first wife will approach for divorce. In
majority cases this is attracted with adultery.

-Rape, Sodomy, Beastiality: In case Husband is convicted of these charges, wife may ask
for divorce. If husbadn has right to appeal no divorce may be given.

3|Page
-Cohabitaton between parties not resumed after one year-

- Girl’s right to repudiate the marriage at the age of 15. This repudiation itself is not
divorce, but it’s a ground of divorce under this section.

 Fourth Segment includes mutual consent- both parties must approach together.
Cooling off period of 6 months is required as per new case law.

I. ADULTERY – SECTION 13(1)(I)

 Definition of adultery as a ground in HMA is different than in IPC. HMA Adultery is
broader in many aspects than it is in IPC. While IPC definition is part of it, HMA
definitin is broader.
 Prior to 1976 amendment, Adultery included continous acts; as well as restricted
scope of husband not able to seek divorce if wife committed the same. 1976
amendment increased scope to include both Husband and wife.
 Adultery committed with either spouse after solemnizatino of marriage entered into
voluntary sexual relations with other than spouse. Essential ingredients:
1. Wilful act of the party: When husband or spouse does not give conesnt to the
sexual act, then it would not amount to adultery. (DOUBT- page 10 of D)
2. Substantial proof required to prove: Circumstnatial evidence may now be used
after the amendment to prove adultery.
TRIPAT V. BIMLA: In this case, marrige woman was absent from house for 4-6
days, husband spotted her with other persons. He could prove through
circumstnatial evidence that she was committed adultery and thus Court granted
divorce on the same.

Rajvee v. Baburao (1996): NO ADULTERY WAS FOUND. Standard of proof

and whatnot was said.
Nandlal v. Shankari (2002): Case where wife conceived while the husband was
under judicial custody, Husband claimed the child was illegitimate and thus
petitioned for divorce on the ground of adultery. Wife proved she had access to
him during custody and verified by jail authorities they were given a private
room. Thus, divorce not granted.

4|Page
 Pattayee v. Manikkam Gounder (1967): Court gavve guiding principles for
circumstnatial evidence cases:
1. It must be convincing to the Court
2. No reasonable doubt regarding act of adultery
3. Reasonable and Just man would conclude adultery.
4. Court cannot take suo moto evidence and claim must be provided. On the
basis of the same the Court may give divorce or conclude adultery on CC.

Rabindra Prasad v. Sita Devi (1986): not possible to lay down rule of thumb as to
which circumstnaces sufficient to establish adultery. Should lead to a guarded
judgement of a reasonable and jsust mant o reach the conclusion.

Sanjyukta Pradhan v. Lakshminarayan Pradhan (1991)

Avinash Prasad v. Chandra Mohini (1964)

3. One single act may be enough: Amended by 1976 Act which earlier required
continous acts of adultery.
4. Act to commit adultery and actual adultery: Only actual committing of
adultery is grounds. Preparation or attempt to commit is only punishable under
IPC, not as grounds for Divorce.

 CONDONATION: If the act of adultery is condoned then no divorce can be given.

This may be express or implied. Condonation is usually a general exception however
for conversion it is seen differently. Cruelty, Adultery and desertaion are cases where
condonation leads to no divorce; whereas Conversion and Leprosy (after looking for
cure) divorce may be given even after some time.
Vimlakshmi V. Smt. Sargini and Anr: Husband and wife continued cohabitating
and asked wife not to indulge in such acts after which they continued to live. This
amounts to condonation of adultery and no ground for divorce after 7 years (as in
case). SECTION 23-b and 23D
A.R Bhardwaj v. Arila Bhardwaj (1993): Husband and wife live together after a
fact is revealed (INCOMPLETE)

II. CRUELTY – S ECTION 13(1)( IA)

 If the party after solemnization of marriage treats the other party with cruelty.
5|Page
 Cruelty is defined as any kind of mental and physical injury that causes danger to life,
limb and health. This includes apprehension of danger.
 One of the most dynamic grounds as most case law has developed on this ground and
Courts have added many dimensions and aspects to the same. Although the two
ingredients are “after solemnizatino’ and “treats petitioner” case law suggests that
cruelty towards relatives also can come under cruelty.
 Forms of cruelty:
1. Mental cruelty: Denial of food, ill treatment, demand of dowrt, false allegations,
non fullfillment of marital obligations. Shobha Ravi v. Madhukar Ravi- The
enquiry must begin as to the nature of cruel treatment and the IMPACT OF SUCH
TREATMENT IN THE MIND OF THE SPOUSE (this is the most important
aspect.)
 Includes harrassment ie, continuous demands of dowry.
2. Physical Cruelty: Beating, stabbing, confinement tec.
 Definition of cruelty in IPC only relates to dowry death whereas it is broader in
HMA. In HMA, unintentional acts of cruelty may also be grounds as what is relevant
is impact in the mind of the spouse. Eg. In IPC, any wilful conduct of the husband
drove her to suicide. If wife commits suicide, HMA will cease and IPC will operate.

Shobha Rani v. Madhukar Reddi (1988): Cruelty in relation to demand of dowry from
wife’s parents. Court observed:

1. There was no assualt but mental agony. Cruelty may be mental as well as
unintentional. It is a question of fact and degree, depending upon
circumstances. Degree implies the extent of cruelty meted out. This degree must
be lead to a danger in the life or limb or health
2. We should not import our own notions of life as measure of cruelty differs in
situations. Degree of cruelty is most important with regard to apprehension.
Judges should give broader scope of cruelty.
3. Measure of cruelty varies from time to time. Each case must be decided on its
own facts, circumstances, nature, extent and effect of cruelty.
4. Court concluded that demand of dowry amounts to cruelty. Continuous demand
even without physical and mental hurt may amount to cruelty. However, this
dowry must be in relation to tha marriage and not simply a demand for money.

6|Page
Prakash Kaur v. Harjinder Pal (1999): Meaning of cruelty and what acts constitute
cruelty. (same propistions as above)

 Degree: sometimes Single act may be so grave to constitute cruelty, and other acts
will need continous occurrence. Thus, for cruelty to occur three aspects are
important: ACTS, EFFECTS, OTHER APPREHENSIONS.
 The necessary requirement of “affecting the other party” was understood in
Sodhara Srivastava v. Arvind Kumar Srivastava (2006): Cruelty is a course of
conduct of one, which is adversely affecting the other. Thus, effect of cruelty,
whether physical or mental must be felt/affect other.

Dastane v. Dastane (1975)

Rajiv Dinesh Gadkari v. Nilagi Rajiv Gadkari (2010)- INCOMPLETE

Husband residing in USA was forcing the wife to adopt an American lifestyle. (A.
Jayachandra v. Aneel Kaur) The court has to draw inference and decide on the basis of
probabilities of the case having regard to the effec on the mind of the complainant
spouse because of the acts or omissino of other spouse

Rattan Singh v. Manjit Kaur (2010)

-Wife refused access to matrimonial home to husband. Husband claimed right and said it
adversely affected his health. Court granted divorce. Conclusion: If someone is not given
acess to the kids, it maybe considered as cruelty. If husband is not allowing employment,
same could be. Refual of sexual relations, refusal of conceivment, all may be cruelty
depending on the health of the party.

III. DESERTION – SECTION 13(1)(IB)

 Desertion of the petitioner by the other party to the marriage without reasonable
cause and without the consent or against the wish of such party and includes the
willful neglect of the petitioner by the other party to the marriage.
 This also includes continual absence from cohabitation contrary to the will or without
the consent of the party. Such desertion can happen when parties stay together as was
given in Powell v. Powell (Sir said this, I’m not sure if It is correct) This is called
constructive withdrawal from society of another.

7|Page
 Desertion was merely a ground for JS before and now for divorce.
 Essentials:
1. Factum of Separation: This can be actual separation or constructive withdrawal
from the society of another. This separation must be for more than two years.
Even Partial withdrawal may be considered as desertion.
2. Animus deserendi: Intention to bring cohabitation to end permanently. If consent
for cohabitation exists, no divorce may be given. For example, Parties living
separately performing their marital obligations does not amount to desertion.

The Supreme Court in Lachman v. Meena8 interpreted that desertion in its very essence means the intentional
permanent abandonment by one spouse of the other without that other’s consent and without reasonable or just
cause or justification. It was also held to include willful neglect of one of the parties towards the other in a
marriage.9 This therefore means that one of the parties who intentionally ignores and willfully does not take
care of the other party or neglects to fulfil the needs of the other party being fully aware of the fact that such
neglect would prove to be negative for that other party is termed to have committed desertion

Durga Prasanna Tripathy v. Arundhati Tripathy (2005): After 7 months of marriage

the wife deserted, after which they lived separately for 14 years. Wife refused to live
inspite of efforts. Amounted to divorce.

Gagandeep Gupta v. Dr. Sonika Gupta (2010): Lack of cohabitation as wife

contimued to remain in matrimonial home by asserting her right, In spite of matrimonial
discord.

 END OF DESERTION: Desertion is a continuing affair and can be ended by

resumption of cohabitation or supervening animus revertendi (offer of reconciliation)

IV. CONVERSION – SECTION 13(1)( II)

 As soon as spouse converts, there is an immediate right of divorce and the law in
which the marriage was entered into will govern the marriage.
 In all these cases adultery, cruelty, bigamy, conversino there is no automatic
dissolution of marriage. Dissolution depends on the intention of the party to come
out of the relationship, and the party has to approach the Court of law. Thus,
intention of the party must become evident as parties may continue to live together
even after conversion.
 After conversion the spouse has an immediate right of divorce. In this case, the court
will not give JS but directly divorce.

8|Page
 V. UNSOUND MIND – SECTION 13(1)(III)

(iii) has been incurably of unsound mind, or has suffering continuously or

intermittently from mental disorder of such a kind and to such an extent that the

petitioner cannot reasonably be expected to live with the respondent.

Explanation- In this clause-

(a) the expression "mental disorder" means mental illness, arrested or incomplete

development of mind, psychopathic disorder or any other disorder or disability of

mind and include schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability

of mind (whether or not including sub-normality of intelligence) which results in

abnormally aggressive or seriously irresponsible conduct on the part of the other

 Mental disorder includes a number of disorders and these are proved by medical
evidence.
 In case a person occassionally suffers from unsoundness then it must be certified as
incurable. In all cases it must be shown that the party has apprehension of danger ie.
Whether continous or intermittent must be of such kind that other party cannot be
expected to live with the party.
 Law Commission recommended abolition of the duration of 3 years under 59 th report,
1974 which has now stood repealed. The earlier “insanity” was also repealed.

VI. LEPROSY– SECTION 13(1)(I V)

 Was only a ground for JS before 1976. Virulent implies dangerous or malignant. If it
is lent and incurable only then it is a ground for divorce.
 It is a disorder where the spouse cannot have free movement and must be in a closed
environment. Highly poisonous and if spouse suffers, there is no other person to
provide maintenance.
 The 1976 Amendment made leprosy avaliable for JS divorce and ommitted the period
of 3 years.

9|Page
Swarajya Lakshmi v. GG Padma Rao (NEED): Only welfare to be taken into account is
that of the spouse and children.

VII. VENERABLE DISEASE – SECTION 13(1)( V)

 Such diseases which are dangerous to life and communicable in nature. Eg. AIDS,
Tuberculosis etc.
 It may be curable/incurable doesn’t matter. Suffering is what must be shown.
Duration is also not material.
 If disease is contracted from the petitioner itself. Section 23(1)(a) will operate and
divorce will not be given.

VIII. RENUNCIATION OF THE WORLD- SECTION 13(1)( VI)

 A Hindu can according to religion take up Sanyas or Varaprastha Ashram

 Although in practice ceremonies must be performed for renounciation of the world,
law does not concern itself will the same. The process in tradition includes
performing tapaya to get Moksha or salvation. Law terms this as a civil death
according to Dr. Tahir Mahmood.
 Other party thus has to prove civil death or that the party has left everything and
renounced all obligations.
 HMA does not give criteria for renouncement, although the two criteria:
1. Taking sanyas
2. Civil death
 Merely wearing saffron clothes is not enough, but along with renouncement of
worldly affairs, civil death and exclusion of person from inheritence/matrimonial
rights becomes ground for divroce.
 HMA does not prescribe any specific criteria for renouncement, although it is clear
that it is not conversion or mere shifting of faith.

1. Respondent must give up all worldly affairs: This means relinquish all interest
in property, and relinquishment of all relations (mother, father etc. and
matrimonial relations)

10 | P a g e
 -Relinquishment of both property and property expected to be received. However,
HSA will operate after deatha nd not civil death, thus all property liable to be
recived must be relinquished.
-This depends on conduct of the person and the words spoken. Merely declaration
is not enough.
2. Ceremonies: Joining ar eligious order or group practiscing an idelogoy may
reuire some ceremonies. But relinquishment by words or conduct is necessary.
3. Joining a religious order if necessary: If her merely joins an NGO without any
property ownership, it may considered renoucnement if he has properly
relinquished everything.

IX. PRESUMPTION OF DEATH – SECTION 13(1)(VII )

 Missing for 7 years and above. Under S.108 of IEA, person is presumed dead if he is
not heard of as alive for 7 eyars.
 For this, person needs to get certificate of presumption of death. Marriage does not
get automatically dissolved, but same must be presented before th Court to petition
for divorce.
 (Uncertain about this- if person marries and wife reappears, he has ot pay
maintenance to both wives?)  WHAT HAPPENS IN CASE OF REAPPEARANCE

SECTION 13(1A) A

Bare Act:

(1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also
present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for judicial separation in a proceeding to which they
were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period
of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to
which they were parties.

ADDITIONAL GROUNDS AVALIABLE TO THE WIFE- SECTION 13(2)

1. bigamy: If parties enter into a second marriage, which was not consummated,
bigamy is a ground for divorce.
11 | P a g e
 2. Husband is guilty of Rape, (375), sodomy (377) or Bestiality: In case husbadns
gets punished for cruelty under Domestic Violence Act, it cannot be solely be a
ground but will help corroborate the case of the wife. Parties should exhaust all
remedies includinga ppeals and conviction should be final.
3. Where wife obtains a decree or order of maintenance either under S.18 of HAMA
or udner S.125 of CrPC, and if the cohabitation between the parties had not been
resumed for one year upwards.
4. Repudiation of Marriage: Happens when (a) Parties are hindu (b) Girl of below
15 yearas was given for Marriage by lawful guardian. Any marriage of such kind
will fall udner this section, when the girl reaches age of 15 and decides to
repudiate the marriage.

DIVORCE BY MUTUAL CONSENT SECTION 13(B)

13-B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage
by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether
such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act,
1976, on the ground that they have been living separately for a period of one year or more, that they have not
been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made earlier than six months after the date of the presentation of the
petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not
withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such
inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a
decree of divo

,Added by the 1976 amednment Act. Conditions:

1. Parties have been living sepratel for a period of one year or more
2. That they have not been able to live together
3. That they mutually agreed that the marriage should be dissolved.

The Petition is not withdrawn before 6-18 months of presentation of petition, Court may
pass such a decree.

K. Thiruvenagandam v. Nil 2008

-> If parties hav enot been able to live together they have to communicate sufficient
reasons to get divorce.

12 | P a g e
Veena Kalia v. Jatinder Nath Kalia (1996): APPLICABLE TO ALL GROUNDS OF
DIVORCE

Facts:

1. Husband went abroad to study leaving behind a wife and two children. After 23
years of living apart he contracted a second marriage there with three other
children. Canada court granted a decree nisi or an interim order.
2. Court granted Rs. 1000 as maintenance and the wife accepted the same. Husband
stopped paying. Wife approached Indian courts for divorce and Husband claimed
Res Judicata.
3. S.13 is reelvant in the regard of decree of foreign court. Court of competent
jurisdiction must enforce the court of foreign decree as per 13.A, wich must be
tested as per Indian law.
Issue: Which court had jurisdiction?
4. FC claimed that the decree must be conclusive and as per Section 13. He had the
right to approach the canadian court due to domicile and thus indian forums were
not the only option. FC further said that the other party must have expressly or
impliedly accept the jurisdiction of the foreing court
Husband’s Contentino: She accpted by:
1. Post decree Nisi, additional time was given. This silence amounts to consent.
She did not contest the same despite communication given to her.
2. Court had asked Husband to pay maintenance, which she accepted.
3. Res Judicata applies

Wife’s Contention: Since for more than 16 years, husband was absent she could
not have sufficient means and only due to that she accpted 1000 and not as an
acceptance of jursidiction.

Held: looked into the humanitarian aspect and not the law, held that the canadian
court failed in their duy to ensure representatino of the wife consdiering the
expenses. In absence of PNJ, husband contention falls. Acceptance of
maintenance was immaterial as she accpted it because of grave necessity.

Laid down principles on acceptance of foreign jurisdiction

13 | P a g e
 1. After examining the various clauses, the Court concluded as
under:--
2. "... .the following rule can be deduced for recognising a
foreign matrimonial judgment in this country. The
jurisdiction assumed by the foreign Court as well as the
grounds on which the relief is granted must be in accordance
with the matrimonial law under which the parties married.
The exceptions to this rule may be as follows: (i) where the
matrimonial action is filed in the forum where the
respondent is domiciled or habitually and permanently
resides and the relief is granted on a ground available in the
matrimonial law under which the parties are married; (ii)
where the respondent voluntarily and effectively submits to
the jurisdiction of the forum as discussed above and contests
the claim which is based on a ground available under the
matrimonial law under which the parties are married; (iii)
where the respondent consents to the grant of the relief
although the jurisdiction of the forum is not in accordance
with the provisions of the matrimonial law of the parties."
3.

DIVORCED PERSONS RIGHT TO MARRY AGAIN—SECTION 15

Bare Provision: If there is a decree of court, no right to appeal, or no appeal can be

presented during time frame, or the appeal is dismissed- appripriate to marry again.

 In Islamic law, if divorce is obtained by any method, wife cannot get married at least
for 3 months. Marriges entered into this (iddat) period is irregular. In case of death,
wife cannot get married for 4 months. The rationale is to contain the legitimacy any
child.

LEGITIMACY OF CHILDREN—SECTION 16 (NO CLARITY- DOUBT)

 Gives status to children born out of void or voidable marriages.

 HMA amendment had effect son HSA as well.
 Prior to amendment, because of the fault of the parties, the child had to suffer
because HAS covered sons but not illegitmate sons. After amendment, legitimacy to
the child born out of such marraiges was conferred on the children.
 After 1976 he will be considered legitimate though not legitimate for the purpose of
property rights. Stepson has no rights in property but illegitimate sons do.

14 | P a g e
 MAINTENANCE: SECTION 24 AND 25.

 Hindu Dharmashastra prescribes the duty to maintain as a Binding Duty (Personald

uty) and a General Duty to maintain (a limited duty)
 Section 3(b) of the HAMA 1956 describes that maintenance includes:
i) In all cases, provision of food, clothing, residence, education, medical
attendance and treatmen
ii) In case of an unmarried daughter, also the reasonable expenses of an incident
of her marriage
 This maintenance is base don the financial status, the needs of the claimant and
the other liabilities of the respondent. This may include necessities for the
survival of the party as well as the dependents .
 Types of Maintenance:
1. S.18 of HAMA: Wife claim while living separatel
2. S.24 of HMA: During pendency of suit
3. S.25 HMA: After JS/Dissolution decree.

Whether maintenance under Section 24 is absolute?

SECTION 24

 Under Section 24, two things are provided: (a) The personal maintenance and (b)
the cost of proceedings and litigation if necessary.
 Requirements:
1. Litigtion under any provisino of HMA is pending: May claim during RCR,
judicial separation, nullity of void and voidable marriage and divorce.
Litigation under HSA cannot attract this section.
2. It should be between the parties to the marriage: Under this section, no
maintenance can be claimed by son, daughter or in laws directly in their own
capacity. The Court may merely take into the account as a factor the nymber
of people the spouse has to support and accordingly grant. Spouses cannot
merely claim an amount, the Court will assess and grant.
(CASE LAW IN SLIDE)
3. Marriage should continue to be in subsistance, however in annullment
proceedings void marriages can also make a claim under Section 24.
4. Spouse has no independent income sufficient
15 | P a g e
Smt. Pramila Bhatia v. Vijay Kumar (2000): In this case, because husbadn was
dependent on his own mother, Court observed that no maintenance could be given to the
wife during pendency. The exceptino however is a minor’s marriage: when a girl of 16
gets married, the husband Is the lawful guardian. Since husband is a minor, the wife can
claim maintenance from the father of the husband.

CRITERIA FOR CALCULATING:

 Pradeep v. Shailaja Kapoor (1989): There is no specific criteria to calculate

maintenance but the court will usually take into acount:

1. Financial Status of Parties

2. Needs of the claimant
3. Income of the Claimant and Respondent
4. Any other special consideration- dependents etc.

 In Islamic law, education is also a consideration for maintenance. Living standard of

the educated party must be taken into account.

 In Christian law, 1/5 th of income is reserved for maintenance but this is merely a
guideing principle as the party may have several liabilities on him. In Prasanna Kumar v.
Sureshwari (1969) the Court held that in christian law cases husband may have many
liabilities thus the 1/5 rule was not always reliable. Also same held in Mukan Kunwar v.
Ajeet Chand.

 Preeti v. Ravindra Kumar: Maintenance is dependent on factual situations and no

guiding definitive princoe could be laid down.

SECTION 25

 ‘Alimony” refers to nourishment. Concept is to assure the wife’s lodging, food,

clothing and other necessities after divorce. It’s a financial arrangement between
divorced couples where one partner provides regular financial support to the
other.
 Alimony may be temporary and permanent. Further, they may be paid as a
lumpsum or for an indefinite period.

16 | P a g e
  Basic needs (UN) incldue nutrition, shelter, health, education, leisure, security
and environment. Acc to ILO, clothing, shelter, pure water, public transport,
health and education facilities.
 Under section 25, maintenance does not automatically follow divorce, but the
essential ingredients of economic needs and survival needs will be considered.
Court must be separately satisfied on regarding maintenance and will also take
into account the maintenance granted under S.24.
 Maintenance is given for period of lifetime, subject to death, remarriage, change
in circumstances.

Minakshi Gaur v. Chitaranjan Gaur (2009)

-Wife was working however her salary was too low (below 9000) Thus Husband had to
compensate through maintenance.

Ramesh Chandra Daga v. Rameshwari Daga (2005)

Savita Ben Sonabhai Bhtia v. State of Gujarat (2005)

Mangala Bhivaji Ltd. Dhondiba Rambhau Aher

 Section 24 and 25 of the HMA only provide for maintenance either during litigation
or in the aftermath of litigation. However, meintance can be claimed in two other
respects:

1. S.125 of CrPC
2. S.18 of HAMA- which provides broader scope than CrPC.

SECTION 18 of HAMA: Maitenance of Wife

 S.18 guarantees maintenance to the wife throughout her life, provided she is
not proceeding to dissolve the marriage. If there are no divorce proceedings,
wife may claim maintenance under this provision.

(2) A Hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance,-
(a) if he is guilty of desertion, that is to say, of abandoning her without

17 | P a g e
reasonable cause and without her consent or against her wish, or of wilfully
neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance
from her husband if she is unchaste or ceases to be a Hindu by conversion to
another religion.
 Grounds for providing maintenance to wife irrespecetive of living separately:
1. Desertion: Wife may prefer JS, but in case she doesn’t she may move for
maintenance under S.18. Such cases as cases of wilful neglect. In case of husband
treating with cruelty, desertion etc. does not perform marital obligations and does
not maintain her, she may file petition under S.18. Wife has to prove wilful
neglect, if lack of M is solely because he’s poor, same is not S.18 case.
2. Cruelty:
3. Leprosy: Wife may prefer separate residence than divorce. She must obtain a
decree to that extent. Under JS separate residence deceree may not always be
given but if she claimes separate residence under s.18, she will be given
maintenance.
4. Any other wife living: If second stays in the same house.
-if after obtaining a certificate of death I enter into second marriage, the first wife
appears. They are both entitled to separate residence and maintenance under S.18
-If party has married before 1955 and has multiple wives, then they’re eligible for
seprate residence and maintenance.
Rohini Kumari v. Navinder Singh (1972)

18 | P a g e
5. If husband keeps concubine in the house without consent of wife, and she does not
prefer Js or divorce, separate residence.

6. Conversion of husband

7. Any other cause justifyong separate living.

Disqualification of Maintenance

1. Wife is unchaste: During subsistence of marriage, wife gets invovled in an affair.

Husband may apply for rescinding the decree of maintenance.
2. Ceases to be Hindu: Rationale is that only hindus can inherit from hindus/get
maintenance from Hindus
3. Living separately without reasonable cause: Liability will arise.
4. Mutual agreement

SECTION 19 of the HAMA: Father In law’s Liability to Pay Maintenance to

Daughter in law

(1) A Hindu wife, whether married before or after the commencement of this Act, shall
be entitled to be maintained after the death of her husband by her father-in-law.Provided
and to the extent that she is unable to maintain herself out of her own earnings or other
property or, where she has no property of her own, is unable to obtain maintenance-

(a) from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be enforceable if the fatherinlaw has
not the means to do so from any coparcenary property in his possession out of which the
daughter-in-law has not obtained any share, and any such obligation shall cease on the
remarriage of the daughter-in-law.

Widow will not get any maintenance if:

 If she is able to maintain out of her own earning

 If she is able to get maintenance from estate of her husband
 Remarriage
 If her son/daughter are maintaining

19 | P a g e
  She had taken share from any coparcenaries property
 If father in law has not any coparcenaries property in his possession

 Under succession, wife of deceased comes under Class-1 anf if the person dies, as her
HSA she has the first right of property. However if the property is useless and she is not
able to take care of herself, maintenance can be demanded.

 Division of property of females is given in Section 16, 15 and 17. Her property has ot
be divided among husband, son and daughter(if not, then grandson). If none of this, her
property will go to in-laws.

 Under S.18, father in law does not have absolute liability, but limited. Father in
law need not pay if he has not received coparcenery property. When she gets interest in
deceased’s property or share in coparcenery property. She cannot claim maintenance.

 Since amendment in S.6(3) of HSA, widow can get coparcenery property of husband.
As per HAS (8, 9, 10), after the husband dies his property is shared among his mother,
wife and children. Father only falls in Class II, in this case also the widow gets property
whereas the father in law does not--- not entitled to pay maintenance.

 Thus, if widow falls under Class I, father as he is in class II does not get property and
is not required to pay maintenance.

MAINTENANCE OF DEPENDANTS: SECTION 21/22 bare act

Section 125 of CrPC bare Act+ google online

125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or

1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18- 12- 1978 ).

20 | P a g e
(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first
class may, upon proof of such neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife or such child, father or mother, at such
monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks
fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not possessed of
sufficient means. Explanation.- For the purposes of this Chapter,-

(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875
(9 of 1875 ); is deemed not to have attained his majority;

(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from,
her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the
date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any
such Magistrate may, for every breach of the order, issue a warrant for levying the
amount due in the manner provided for levying fines, and may sentence such person, for
the whole or any part of each month' s allowances remaining unpaid after the execution
of the warrant, to imprisonment for a term which may extend to one month or until
payment if sooner made: Provided that no warrant shall be issued for the recovery of any
amount due under this section unless application be made to the Court to levy such
amount within a period of one year from the date on which it became due: Provided
further that if such person offers to maintain his wife on condition of her living with him,
and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order
under this section notwithstanding such offer, if he is satisfied that there is just ground
for so doing. Explanation.- If a husband has contracted marriage with another woman or

21 | P a g e
keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live
with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section
if she is living in adultery, or if, without any sufficient reason, she refuses to live with
her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is
living in adultery, or that without sufficient reason she refuses to live with her husband,
or that they are living separately by mutual consent, the Magistrate shall cancel the
order.

 Social justice legislation. The main objective of this section is to alleviate the status
and economic condition of the neglected wives and the divorcees who are discarded.
Therefore it is construed liberally (Savitaben v. State of Gujarat)

 Section 125 ensures that maintenance is granted irrespective of the Personal laws of
the Hindus (Section 24 of the Hindu Marriage Act, 1955), Muslim (Women (Protection
Of- Rights On Divorce) Act, 1986) and Parsis (The Parsi Marriage and Divorce Act,
1936).

Scope:

-Scrit proof of marriage not needed. Meaning of the word “wife” includes persons lving
together as husbadn and wife for a reasonably long period of time. Chanmunya v.
Virender Kumar Singh.

-Savitaben v. State of Guajrat: no maintenance for those who are not legally married
wives. As such, however, desirable it may be to take note of the plight of the unfortunate
woman, who unwittingly entered into wedlock with a married man the legislative intent
being clearly reflected in Sec. 125 of the Cr PC, there is no scope for enlarging its scope
by introducing any artificial definition to include woman not lawfully married in the
expression ‘wife’. This may be an inadequacy in law, which only the legislature can
undo. Even if it is true that husband was treating the woman as his wife it is really
inconsequential. It is the intention of the legislature which is relevant and not the attitude
of the party.

HOWEVER,

22 | P a g e
Second wife entiteld to maintenance if he concealed firs marriage from her. SAVITA
BEN.

https://www.lawfarm.in/blogs/maintenance-of-spouse-under-section-125-of-code-of-
criminal-procedure

Ajay Bhardwaj v. Jhyostana: Punjab-Haryana HC

Contention by Petitioner: Section 125 only applicable to destitute wife or minor children.
They are not legally married and are in a live-in relationship.

Contention by Respodnent: They lived together as husband and wife and represented to
society as wife. Chanmuniya case- party should not derive benefit on the sole ground
that there is no marriage. (Presumption in favour of wedlock)

Holding: Section 125 social justice legislation aimed at preventing vagrancy. Applied the
giudelines found in Indra Sarma for relationships in the anture of marriage.

 125 can be extended to live in relationships but the nature of these live in
relationships have to be assessed by the courts.

23 | P a g e