Chapter - VII

DAILY BREAD DENIED

Analysis of Petition C - For

Maintenance

266

Chapter : VII

DAILY BREAD DENIED Analysis of Petition C for Maintenance

Introductory Remarks

Matrimony entails a number of rights and obligations on the spouses against each other, maintenance being one of them "The expression 'maintenance' signifies the subsistence allowance for the support of necessaries and conveniences, the support which one person who is bound by law to do so, gives to another for his living".1 Looking after the wife in the matrimonial home is not just a religious or moral obligation but a social necessity. Earlier religion and other moral sanctions made this duty mandatory. But with the passage of time and changes in values and institutions, maintenance to dependents became a matter of public concern. Thus it gained statutory recognition and became a legally binding duty. The fundamental basis of the ground for claiming maintenance is marriage- the conjugal relationship. The wife must be cared for in her marital home and if there is a breach of this obligation, law comes to the aid of the neglected wife.

A husband is under obligation to maintain his wife during separation and divorce. All personal laws in India have accepted this principle.2

Maintenance like other branches of family law (marriage, divorce, custody etc.) is governed by different personal laws. Hindus are governed by the Hindu marriage Act, 1955.(Section 24 & 25). Christians by Indian divorce Act, 1869(Sec.36 & 37). Islamic scriptures and religious texts also make for provision of maintenance for the wife. However there are different rules and opinion about granting a woman maintenance after 'Talaq'. One opinion considers the Muslim marriage as a contract and when the contract ends by Talaq no further obligations can arise out of it. Another way, is to give the divorced Muslim woman way, is to give the divorced Muslim woman maintenance only for a period of 'iddat' (roughly three months). Another statute, the Special Marriage Act, 1954, gives opportunity for a secular marriage to any couple, irrespective of religion, which also makes provision for maintenance.

Under all personal laws, the wife can claim maintenance from her husband only if there is some matrimonial dispute and a petition is filed for some matrimonial remedy, either by husband or wife. There is also another provision

267

under the Hindu Adoption and maintenance Act, 1956, whereby a wife can live separately on justifiable grounds and claim maintenance, without filing a petition for any matrimonial dispute. Another special provision is the criminal procedure code 1973. This is a secular remedial measure. In the Shah Bano case, the supreme court categorically held that the liability imposed by section 125 Cr.P.C. to maintain one's close kin who need protection and care, is founded upon the individuals obligation to the society to prevent destitution. But the Muslim Woman's (Protection of Rights of Divorce Act, 1986) nullified the supreme courts verdict, under pressure from the proponents of the Muslim religious law code. In early Shastric law, textual evidence shows that a male Hindu is under a legal duty to maintain his wife. Manu declares that:

"An aged parent, a virtuous wife and an infant child must be maintained even by doing hundred misdeeds". (Cited in Mitakshara, 11 ,175).

However chastity, obedience and dutiful behavior were the conditions on which a wife was the duty of the wife to live with the husband and perform all conjugal duties. Only the second marriage of the husband without her knowledge, amounts to cruelty and can justifY separate maintenance.

The grounds for maintenance in modern Hindu law, include bigamy, adultery, cruelty and desertion by husband.

Under British rule, the Native Marriage Dissolution Act 1886 was the first legislative measure relating to the right of maintenance for Hindus. By this Act, if a husband converted to another religion the Hindu wife was entitled to maintenance for her whole life.

After a lot of demand by women's organization and reformers, the Hindu Women's Right to Separate Residence and maintenance Act, 1946 was enacted, which gave due right to maintenance to the Hindu wife. This Act also allowed the wife to stay separate from husband, if he had a virulent disease, he treated her cruelly, married another woman or kept a mistress. Conversion to another religion was also a reason to live separate.

The law relating to maintenance has been radically changed by the Hindu Adoption and Maintenance Act 1956, and several new provisions have been substituted in place of old traditions. The Act repealed the earlier Act of 1946, mentioned above. The Hindu wife is entitled to maintenance by her husband throughout her life. The Act also makes provision for interim maintenance, 1.e. financial aid during the pendency of a dispute with her husband in the court.

268

In Indian society, a woman may not want to take recourse to disruptive remedies like judicial separation or divorce. She may be conditioned by Hindu culture and also have children dependent on her. In such a case the Hindu Adoption and Maintenance Act helps to provide her escape from a difficult marriage and yet does not destroy the marriage. The family court law expressly emphasizes the goal of resolving the dispute and reinstating the marital bond. The wife can live separately and claim maintenance if the husband has been guilty of treating her with cruelty or has been violent, abusive or adulterous. The dyadic relationship between the husband and wife has traditionally been asymmetrical, but conflict was avoided due to family control and custom. Allowing a woman to move away from an unhappy marriage, without loosing her rights as a wife, is a modem concept, that protects the human rights of each citizen irrespective of gender. The obligations and duties of the husband are emphasized and a protective approach is taken by law towards the woman and her children. The entire structure of the unequal dyadic relationship and division of authority and rights changes in this case. It poses a challenge to the traditional norm that patriarchal residence alone is permissible for a woman after marriage.

One important ground on which a wife is entitled to reside separately, is desertion. Desertion, means the abandonment of the wife by the husband without reasonable cause and without her consent or due to neglect and abuse. In many cases, studied in the family court, husbands refuse to pay maintenance to a wife, claiming that she has left him without any reason. The family court procedure includes counseling and close interaction between the family and counselor, to ascertain the truth of the matter.

For most women financial difficulties are the major hurdle in leaving an abusive husband and bad marital environment. The law provides protection to the woman who dares to leave and escape the daily disputes. Besides, the women can decide to live separate if her husband has dangerous disease, commits bigamy, keeps a mistress, and changes his religion. However by the law, the wife too is required to remain faithful to her husband and not convert to another religion. In the case of conversion she cannot ask for maintenance.

Wife's right to reside in Matrimonial Home

F or married women, the security of the matrimonial home may tum out to be merely an illusion if their husbands tum them out of the house, or harass them so much that they have to leave the home. Most women in our society, (and in the sample studied) do not have independent source of income and are economically dependent on their husbands. The matrimonial home also is the husband's property, she has no claim on it, unless she insists on joint ownership. When a woman is

269

turned out of her home her whole life fells apart and she and her children need a new home. In many cases parents are also not willing to take the responsibility of married daughters, though this trend is slowly changing in contemporary urban families.

Cohabitation together in the matrimonial home is a tradition and normal way of life. However in a number of recent judgments, the court has allowed the wife to live in her home and barred the husband from entry, as he is a threat to her life. Under the Domestic Violence Act, 1976, the courts in England and Australia can grant injunction to protect a battered wife, even though the home is in the husbands name. She can also have him arrested.3

The Hindu women does not have legal protection as cited above and England, but most women have to carry on in the marital home even after they go to court for dissolution. But what is important is that he must give her financial support even in case of estrangement. Such cases are few and complicated, but the court does grant protection to the wife in such circumstances, if her claim is proved valid. Married women's right of maintenance and alimony and interim maintenance in the course of court proceedings

Under all laws relating to matrimony there is a provision for providing some sort of maintenance during the pendancy of the proceedings in courts and alimony thereafter, on a permanent basis. Under the Hindu Act 1955, many efforts to award gender equality are provided so that either of the spouses is eligible to get maintenance from the other. But usually it is the women who need interim and permanent alimony. Economic empowerment of women is still not existent for a very large section of women in India. Maintenance and expenses of litigation can be awarded to a woman who has no income and is dependent on parents. Non-payment of maintenance is able to be punished as a criminal offense by law.

Married women's Right of Permanent Alimony and Maintenance

In all Indian Matrimonial statutes, the Hindu Act, 1955, the Special Marriage Act 1954, the Indian Divorce Act 1869, there is provision for permanent alimony and maintenance. From the time of passing of the Marriage Laws(Amendment) Act of 1976, alimony may be granted to women who have applied for nullity, divorce, restitution of conjugal rights and judicial separation. However the element of traditionalism and emphasis on a woman's chastity is still a powerful influence that affects the court judgment. If a wife is guilty of adultery and immoral conduct, she has been denied maintenance by a decision of the Kerala High Court in 1966.4

This approach is not at all correct, as not granting a woman alimony is an unnecessary intervention based on a patriarchal value judgment by the court to punish immoral conduct by stopping alimony to punish her in an unjust fashion.

270

Married women's right of maintenance under Criminal Procedure Code

The parents, wife and minor children who are. unable to survive and have no financial resources have been given the right to claim maintenance under section 125 of the Criminal Procedure Code (Cr. P. C.). This requires the injured party to lodge a separate petition in the family court to claim unpaid maintenance from the errant husband. A husband having sufficient income is obliged to maintain his wife and also his divorced wife who has not married. Another rule is that an able bodied husband has the capacity to earn and thus must be considered to be having the means to support his wife.

However, though the law has tried to make provISIOn for a divorced or separated woman through the various legal enactment's, the quantum of payment is extremely low. The maximum maintenance is fixed at Rs. 500/- which is a ridiculously inadequate amount. In recent times however there have been protests and some new directives by the Supreme Court to increase the amount to Rs.1500/­at least.

The 132nd Report of the Law Commission of India, April 1989 has made the following recommendations:

"The statutory ceiling of Rs.500 incorporated in section 125( 1) which precludes a magistrate from awarding a monthly allowance for maintenance at a rate not exceeding Rs.500 in favor of the wife, the children and parents entitled to claim maintenance from a person (who) neglects or refuses to maintain his wife, children, parents ... deserves to be removed. Because it has become irrelevant by reason of inflation and rise in the cost of living since, 1955." (Source-132nd Report of the Law Commission of India of April 1989, Chap.-V, pp. 17).

The above report has also recommended that in determining the rates of the monthly allowance, the magistrate must take into account expenses needed for food, shelter and education, but also allowance for emergencies such as sickness and disability. The income of the person liable to pay maintenance to a wife and dependents also should be taken into account, as per the Law Commission recommendations. Moreover, in case the person is employed and receives a monthly salary, the magistrate or judge is empowered to deduct the amount of alimony from the salary and deposit the same with the court. The law commission report mentions that above recommendations should be immediately put into practice and the distress of neglected women, children and parents will be ameliorated.

The Law Commission Reports, as well as various amendments in the maintenance related directives have tried to reduce the severe financial handicaps faced by Hindu, Muslim and Christian women who are in need of maintenance from

271

their husbands. But when we analyze the actual cases under 'Petition C' for maintenance, and many problems faced by all the sampled cases of this study, it is obvious that the reality is different for most women, who face marital problems which are made worse by lack of economic support or employment.

After all what is professed on paper needs to be implemented, and this can occur only when public opinion, value systems and norms governing gender relationships in financial matters especially, undergo a sea change. Human societies all over the world, barring a few exceptions, have been patriarchal, and patriarchy is an institution based on subordination of woman to man. If and when, there is decline of patriarchy, it will shake the very foundations of our life and deeply affect our social, economic and political system. During the transition we are bound to experience a contrast between our percepts and practices, because the democratic societies wedded to the ideal of social justice, accept equality of sexes as a legal, constitutional principle, but the prevailing system based on patriarchy reinforces inequality. Biologically, marriage is equally necessary or unnecessary for man and woman, but the patriarchal system makes it obligatory upon a woman and this compulsion is enforced by keeping her economically insecure and dependent.

Maintenance Petition in the Family Court:

The number of cases registered for maintenance under petition C between 1989 and 1995 in the family court are given in Table 8.1. The receipts and disposal of cases shows that the process of settling financial disputes is complicated and also time-taking as seen in the actual sample studies which follow in this chapter. In 1995, 574 maintenance petitions were received by the family court and only 60 cases were disposal of. This means 89% cases remained pending. Moreover disposal does not guarantee that maintenance or alimony is granted to the needy party mainly women and children.

Table No. : 52 'Petition C' - Cases registered & disposal by the Family court between 1989-95

Year Receipts Disposal 1989 12 14 1990 21 15 1991 17 16 1992 15 15 1993 18 9 1994 305 53 1995 574 60

Source: Family court Registers 1989-1995

272

Obviously by 1995, the cases in the court had increased in number and the rate of disposal went down after 1993. Though the present researcher has not taken a sample of the cases in 'Petition E' i.e. the p.etition made for recovery of maintenance from the paying party, the data on the number of cases are available, (in petition 'E') are seen in Table No. 53 are given for reference. They indicate the volume of cases relating to economic aftermath of divorce.

Table No. : 53

Total number of Cases Registered in Family Court for getting payment of maintenance between 1989-1995 under Petition E

Year Receipts Dis"p"osal 1989 2829 1775 1990 1818 1711 1991 2183 1899 1992 2639 2206 1993 2092 1998 1994 27140 Not Available 1995 24635 Not Available

Source: Family Court Registers 1989-1995.

The quantum of cases registered indicates the large number of complaints regarding payment of maintenance. Financial issues are very serious for the dependents.

The Hindu Shastric Law does provide for maintenance of woman by the husband as also the Hindu Adoption and maintenance Act 1956 provides for financial support.5 There is also provision for alimony for the divorced wife under section 25 of the Hindu marriage laws also provide for maintenance. The Muslim personal law provides that the husband has a duty to maintain his wife. On divorce he is bound to provide maintenance for a period of 'Iddat' which is about three months after dissolution of the marriage.

'Section 488' of the Code of Criminal Procedure provides for maintenance to various categories of dependents including parents and children. The husband is also entitled to ask for maintenance under the C.R.P.C. of the Hindu Adoption and Maintenance Act, 1956 (HAMA). The Supreme Court in 1987, has also ruled that a daughter is under an obligation to maintain her father or mother. (AIR, 1987 S.C. 1100). The changing structure of the family is taken into account here and there is

273

an effort to give justice not only to women, but also to men. The daughter is educated by her parents and they also spend on her marriage. Thus if there is no son or if he does not maintain his parents, the parents can lodge a maintenance petition against the son and also the daughter. An employed daughter today has the duty to look after her parents if they need the help. However in the cases examined in this study, the husband and his family often oppose the wife when she gives financial aid to her natal family from her own earnings. A liberal and non-sexist law can be enacted on paper, but the obstructions in implementing it, arise from the traditional norms and behavior patterns which determine inter-familial and intrafamilial relationships. Conflict is bound to arise due to asymmetrical status of men and women, and subordinate status given to a daughter-in-Iaw's family.

It is unfortunate that the Hindu and Muslim laws both treat the woman as a sexual property of the man and her status is badly affected if she is found to be unfaithful or adulterous. The man however has many favorable supports for bigamy (having more than one wife). Under the Hindu marriage Act, a woman is disqualified from getting maintenance on the ground of chastity. She becomes ineligible to get maintenance if she is "living in adultery". Without adequate proof these allegations can ruin the life of women and that of her children, as Indian society surreptitiously condones adultery by the male not the female. Moreover, if a woman marries an already married man due to ignorance of the facts, her marriage is nullified if she complains to the court. But even such a case, she is not entitled to get maintenance from the husband. This is extremely unjust and the Supreme Court has reversed this rule and granted alimony to the second wife (AIR, 1975, A.I.R. 1970, BomA31).

Another important problem arises when a man offers to maintain a wife but she refuses to live with him. When there are acceptable reasons like cruelty or bigamy, such a woman is entitled to maintenance even if she lives separately. (This is a progressive legal provision under the Criminal Procedure Code section 125).

In case of Muslims, the man is allowed to marry four wives. Bur progressive lawyers and Muslim reformers feel that the husband's 'liberty' to be polygamous does not impose a 'liability' upon the wife to tolerate polygamy. The Supreme Court has given decisions in two cases in 1987, that, when a Muslim man has married a second wife, the first wife can refuse to live with him, but he must give her maintenance. (A.I.R. 1987, S.C. 1103).

But these progressive decisions are few and far between. In practice the plight of the discarded woman is pitiable, which ever religious law is applied Courts are expensive and cases take up lot of time to be settled. Even if the court orders the husband to pay, there is no provision for proceeding against him for contempt of court. The increasing number of 'E Petitions' in Table No. 53 are witness to this reality.

274

Poor and illiterate women have a very difficult time approaching the court again and again. Maintenance orders are helpful only where the husband has means to provide it. If his income is small or he is unemployed he cannot pay. Unless the person is employed in the organized sector and gets a salary, recovery of maintenance is almost impossible. The Family Court has no way to know if he is employed and what is his true income. Even wealthy businessmen, who divorce their wives, declare only small part of their assets and taxable income can be hidden. If the wife is educated and aware of legal procedure, in such a case she is able to fight her case and get alimony. But this involves more litigation and engaging expensive lawyers.

For Muslim women, their personal law is extremely unjust, as the 'Mehr' amount returned to her on divorce is often paltry. Though the Supreme Court has ruled in some decisions, that the Muslim woman must receive mainte"nance to be able to live with dignity. The husband must provide maintenance to her, if she appeals under the Criminal Procedure Code. (A.I.R. 1979, S.C. 362). The famous case of Shah Bano and the events which followed show how difficult it is to apply a uniform civil code of law in the Indian situation. Chief justice Chandrachud passed an order of maintenance in favor of Shah Bano, a woman of 75 years. This decision was treated as an interference in the Muslim religious law and a threat to the community. Ultimately the Government bowed down to political interests and passed the Muslim Women's Protection of Rights on Divorce Act, 1986.6 The passing of this Act was a retrograde step and was a cruel let down, of Muslim women by the state. There have been a number of cases lodged in the Supreme court to protest against the Muslim law, which is extremely unfair to women. In 1996, a case in the Supreme court was lodged by Zuleikha Bi of Madhya Pradesh. Her maintenance order had been cancelled by the Madhya Pradesh High Court. The woman petitioned the Supreme court asking it to declare illegal the practice of polygamy and triple Talaq, in the light of personal rights and human liberty guaranteed to all citizens under article 14,15 and 21 of the Constitution. She also pleaded that the custom of polygamy and extra judicial divorce practiced by Muslims was violative of fundamental rights.7 The cases of Muslim women fighting against the archaic laws of patriarchy is growing in modern times. But changes are slow in the coming. The Muslim personal law Board (MPLB) a body of 150 Muslim Clerics from all over India, is now approached again and again by women's organizations to address these issues.8

The Christian law of divorce is explicit in double standards. Divorce is governed by the provision of the Indian divorce Act 1869. Under this, Indian Christian men can obtain divorce from their wives on grounds of adultery, but the wife must prove additional grounds either of cruelty or desertion. The Christian law was enacted during British rule and remained archaic even though in 1973 the 'no fault divorce' or 'divorce by mutual consent' became grounds for divorce, in

275

Britain. After the British left, the Christians became a minority community. The Roman Catholic Church became a significant contender "for representing the values of Indian Christians, as opposed to the more liberal protestant ideology of British India. The Act in India got fossilized. 9 In 1995 the Kerala High Court struck down discriminatory clauses in the Christian divorce law. A bill for amending these laws was formulated by various Christian Churches in 1993. However the bill has many flaws regarding notions of equality of sexes and maintenance provisions. Right of maintenance was awarded to the husband also to make it unbiased. Flavia Agnes points out, "The concept of maintenance under all matrimonial statuses stems from the financial subordinate status of woman ..... As home makers, women's contribution to the household economy has remained unremunerated and unaccounted for ............ In most cases when women are compelled to leave their matrimonial home due to violence, alcoholism or adultery of their husband they are rendered destitute ........ children become the sole responsibility of women. "Women should not be burdened with giving maintenance to an able-bodied husband, as even if they are earning, they have little control over finances. The law also retains a clause that the party guilty of adultery pay damages to the wronged party. This according to Agnes makes the law totally outdated and also vindictive litigation' . \0 The provision for settlement of matrimonial property is also not clear and is unjust to women. This is evident in the data on Christian women's petitions for maintenance in this research.

The Act of 1993 also stipulates that remedies of child custody and maintenance can only be claimed along with other matrimonial problems. The woman must file for divorce or restitution of conjugal rights in order to claim maintenance. A Hindu woman can claim maintenance independently according to the HAMA, 1955. The Christian woman has to otherwise make a petition under the CRPC 125, which provides a paltry sum of Rs.500 per month. Thus the process of giving a Christian woman maintenance and protecting her rights is not really achieved through the provisions of the Christian Divorce Act and the New Bill of 1993. 11 ,~

The next section of this chapter is given to the analysis of the background of cases selected from the 'Petition C' category. The various factors like gender, family structure, occupation and income are variables examined in the petitions made for maintenance.

Analysis of Tables under 'Petition C' for maintenance

Out of the total sample, 17 cases were petitions purely for maintenance. Out of these only one petitioner was male, the other are all women.

276

Table No. 54 shows that there are 16 petitioners. The table correlates education and occupation of women who have demanded maintenance. The maximum number, 93.75% are housewives who have no independent income. 6.25% women who are employed in service have asked for maintenance because their income is insufficient to cover expenses for children. 37.50% women professionals are house wives. This is a sociologically important category, as they are well educated and can easily work, but since they have young children and no family support for them to manage child-care and no house hold help. Professional work demands initial capital investment (as in space for a clinic or office) and also is responsible full-time work. In case of divorce the women faces problems with more and more families becoming smaller and lack of domestic help to nurture young children. A divorced mother who has a small child cannot easily take up full time work. The number and quality of creches available is also negligible, compared to the need to look after the special requirements of divorced mothers with need for financial security. It is observed by the researcher that in many cases where an educated wife has the potential to earn, she finds that her divorced husband creates many difficulties in granting her maintenance, even for the dependent children.

In Table 54, out of 93.75% housewives 6.250/0 are illiterate, and 12.500/0 are only primary school drop outs. For these women financial problems are severe. 31.250/0 women are graduate and post graduates but have no income, and must plead for maintenance from the husband. However in studying these cases, it is seen that they are more aware of their legal rights and all of them have been granted interim-maintenance while their divorce case was in process in the family court. However even these women find if difficult to lodge legal cases under the Criminal Procedure Code (,Petition E' and CPC 125) to recover arrears, from time to time. The family court can grant maintenance but does not possess the machinery to implement this order by ensuring that the maintenance money is paid in time.

Table No. 55 is examined in relation to Table No. 54, as it shows the profile of the male respondents against whom the petition of maintenance is made by women petitioners. 50% of the men who are asked to pay maintenance are employed, and 31.25% of them are graduates and post-graduates. They must be earning at least a medium size income and therefore their wives have asked for maintenance. 6.25 % are professionals who must therefore support their family. All male respondents in the cases filed by the women, are employed, as per Table no. 8.3. This also points to the fact that uneducated, less educated and well educated women are all aware of their legal rights to maintenance from their husband.

Table No. : 54

Occupation/Education of Women who have registered maintenance petition

Education-7 Illiterate Primary Secondary Graduate/ Technical Professional Total Occupation Post-

Graduate Service 0 0 0 1 0 0 1

0.00% 0.00% 0.00% 6.25% 0.00% 0.00% 6.25% Business 0 0 0 0 0 0 0

0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% Retired 0 0 0 0 0 0 0

0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% House-wife 1 2 1 5 0 6 15

6.25% 12.52% 6.25% 31.25% 0.00% 37.50% 93.75% Agriculture 0 0 0 0 0 0 0

0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% Professional 0 0 0 0 0 0 0

0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% I

Unemployed 0 0 0 0 0 0 0 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

N .A. 0 0 0 0 0 0 0 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

Total 1 2 1 6 0 6 16 6.25% 12.50% 6.25% 37.50% 0.00% ~7.50%~100.00%

Education-7 Illiterate Occupation Service 0

0.00% Business 0

0.00% Professional 0

0.00% Unemployed 0

0.00% Total 0

0.00%

Table No. : 55

Occupation-wise Education of Respondent (Male) from whom Maintenance is demanded

Primary Secondary Graduate / Technical Post-Graduate

1 1 5 1 6.25% 6.25% 31.25% 6.25%

0 0 7 0 0.00% 0.00% 43.75% 0.00%

0 0 0 0 0.00% 0.00% 0.00% 0.00%

0 0 0 0 0.00% 0.00% 0.00% 0.00%

1 1 13 1 6.25% 6.25% 81.25% 6.25%

----

Professional Total

0 8 0.00% 50.00%

0 7 0.00% 43.75%

1 1 6.25% 6.25%

0 0 0.00% 0.00%

0 16 0.00% 100.00~ --_ .. -

279

The single .male petitioner who has lodged a petition for maintenance against his wife is actually a complex case. The case being exceptional can be discussed here as in some detail. "The petitioner is a highly educated well employed person, living with aged parents. Since, the marriage in 1984, the wife who is not working but is well educated, has been demanding that the marital house and all jewelry, assets etc. should be transformed in her name. There are two divorce petitions made by the husband pending in the Family Court. The family court has taken up the case but not granted the husband the right to evict the wife from the marital home. The case is made by the husband, that the wife has taken away jewelry and harassed his parents for lack of evidence. The Family Court Act is bounden to protect woman's right on her marital residence even if the couple has lodged a case for divorce. Moreover, the cruelty by the wife has not been proved, and instead, the husband's case for divorce is considered as a type of harassment by him to his wife. Ultimately the case has been dismissed in 1991 and the counselor has persuaded both to drop charges. This case may be based on false evidence or petition by the wife but ultimately the Family Court judge and counselor have given more weight to the case presented by the wife and to the event that she has been forced out of her marital home. The judgement favors the woman in this case, legal intervention takes a protective stance."

When the data was examined for the income level of the female petitioners, it was seen that 93.75% housewives had no income and only 6.25% women who had a job earned between Rs. 500 and Rs.I000. All petitioners are Hindu, as the personal law. for Muslim and Christian persons is separate. They have to lodge a petition under the Criminal Procedure Code, to demand maintenance.

Table No. : 56

Petitioners Type of Family x Religion and maintenance demand

Familv Joint Nuclear Couple Other Total M F M F M F M F M F

Hindu 1 4 0 4 0 5 0 3 1 16 100.00% 25.00% 0.00% 25.00% 0.00% 31.25% 0.00% 18.75% 100.00% 100.00%

Muslim 0 0 0 0 0 0 0 0 0 0 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

Christian 0 0 0 0 0 0 0 0 0 0 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% . 0.00% 0.00% 0.00% 0.00%

Sikh 0 0 0 0 0 0 0 0 0 0 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

Parsee 0 0 0 0 0 0 0 0 0 0 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

Neo-Buddhist 0 0 0 0 0 0 0 0 0 0 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

Other 0 0 0 0 0 0 0 0 0 0 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

N.A. 0 0 0 0 0 0 0 0 0 0 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

Total 1 4 0 4 0 5 0 3 1 16 100.00% 25.00% 0.00% 25.00% 0.00% 31.25% 0.00% 18.75% 100.00% 100.00%

-- -

281

Table No. 56 shows the profile of the Petitioners Type of Family their religion correlated with the maintenance petition.

It was assessed whether petition .for maintenance by women, would have some relationship to their family structure. It is seen in Table No. 55 that 25% women from joint families and 25% from nuclear families have asked for maintenance. Financial security is a need even if the petitioner lives with parents and other relations. Living in ajoint family, traditionally would be a kind of 'safety­net'. But today the members who live jointly may not want to take on responsibilities of a divorced female kin. Problems of inflation, high cost of housing and urban living, mean that the structure of the family may be joint or nuclear, but the values and norms are changing. 31.25% women who have lived only as a couple i.e. in a dyadic relationship with spouse, need maintenance, as they are housewives, and lack family support after divorce. And the remaining 18.75% women who live in modified extended families or with relatives also need maintenance. Though it is observed that many parents do support their married daughter to get a divorce or stay separate, they find it difficult to take on financial responsibilities of the daughter and children in their old age.

Table No. : 57

Decision on Petition for Maintenance given by Family Court

Particular Male Female Total N 0/0 N 0/0 N 0/0

Petition made for 0 0.00 17 100.0 17 100.00 Maintenance 0 Interim Alimony Granted 0 0.00 12 70.58 12 70.58 Petition Rejected for 0 0.00 5 29041 5 29041 Maintenance Permanent Alimony Granted 0 0.00 12 70.58 12 70.58

Total Sample Size: 17

Table No. 57 shows the overall decisions taken for all the petitions for maintenance. The Court has to take a sympathetic view of the female petitioners and also grant them interim- maintenance while the court case in going on. Out 17 cases studied, 70.58% petitioners have been granted permanent alimony when the final judgement is given. 29041 % cases have been dismissed, and maintenance has

282

not been granted. On examining these cases which have been dismissed, it was found that various reasons have been given in detail by the judge while denying maintenance. In 2 % cases the wife has made the claim after more than 10 years of getting a divorce. This is a legal lacuna and the court cannot entertain the claim. In the remaining cases the court has dismissed the case as being based on have compromise and the couple decided to live together again. In only one case the petitioner has moved to the High Court, for her claim.

On the whole, the Family Court has taken a protectionist view of the woman's need for maintenance and for welfare of the children. However it is only after 1994, that the amount of maintenance has been increased in line with the income of the husband. Where permanent alimony has been granted, it is on a monthly payment basis as well as a lump sum payment of cash and property. The main problem that arises is when the maintenance amount is not paid as per schedule by the husband and the woman has great difficulty in getting the arrears, through fresh. petitions in the Family Court.

Maintenance petitions are lodged along with other petitIOns for divorce (Petition A) and petitions for Injunction (Petition B) also. Table No. 8.7 shows the Family Court judgements regarding 217 cases where divorce is the main petition but maintenance is asked for also. Among women who asked for divorce, 24.420/0 have also demanded maintenance and interim alimony. The court has given interim maintenance to 18.430/0 of these women petitioners. 10.13% women out of the total number have been given permanent alimony and 14.28% petitions have been rejected on various grounds. Which means that 14.29% (more than halt) cases who have petitioned for financial aid have not received it.

As almost 37% of the women in this sample are housewives, such a decision can cause a great deal of financial hardship. As a result many of them register further cases under 'Petition C' for maintenance and the Criminal Procedure Code. This involves more money time and tension.

As seen in Table No. 56 earlier, among woman who have lodged a singular petition for alimony, 29.41 % have not been granted the relief. Financial hardship is the most difficult cost of divorce and appealing to the law is a long drawn and often wasted effort. Most petitions may be lodged for a main reason like divorce, but a majority of them also attach a demand for financial help from the spouse.

283

Table No. : S8

Decision on Petition for Maintenance included in 'Petition A' for Divorce

Particular Male Female Total N 0/0 N 0/0 N 0/0

Petition made for 1 0.46 53 24.4 54 24.8 Maintenance 2 8 Interim Alimony Granted 0 0.00 40 18.4 40 18.4

3 3 Petition Rejected for 1 0.46 31 14.2 32 14.7 Maintenance 8 4 Permanent Alimony Granted 0 0.00 22 10.1 22 10.1

3 3

Total Sample Size: 217 cases

A similar analysis of maintenance given to petitioners in 'Petition B' cases for Injunction is shown in Table No.58.

Table No. : S9

Decision on Petition for Maintenance included in (Petition B for Injunction)

Particular Male Female Total N 0/0 N 0/0 N 0/0

Petition made for 0 0.00 7 25.0 7 25.00 Maintenance 0 Interim Alimony Granted 0 0.00 1 3.57 1 3.57 Petition Rejected for 0 0.00 5 17.8 5 17.85 Maintenance 5 Permanent Alimony Granted 0 0.00 2 7.14 2 7.14

Total Sample Size: 28 cases

..•

284

Out of the total sample, 25% women had made petitions regarding financial need and asking the law to legally enforce financial obligations on the husband to look after the family. However in this case the problems are complex, and related mainly to the return of 'Streedhana' comprised of jewelry and gifts given to the woman at the time of marriage. Only in the case of 3.57% women interim alimony was granted while the case was being decided in court. 17.85% cases related to property rights and return of marriage expenses, are rejected by the court. The injunction petition involves direct conflict and strong opposition from both sides, to prevent the spouse from asserting financial and other rights (Refer to discussion of Injunction cases, Chap. VII).

Major findings :- 'Petition C' for Maintenance

1. When a woman is abused and treated cruelly by the husband and his family, she is forced to live with her parents. In such a case, the husband refuses her petition for maintenance claiming that she deserted him, or he asks for restitution of conjugal rights. It is only when violence and cruelty are extreme and police complaints are made or the woman has to be hospitalized, that evidence is furnished. For example in one such case, the family court has granted her Rs. 225 per month, and interim maintenance arrears to the abused wife. But the income of the husband is more than Rs.5000/- per month. Revision of maintenance amount is a dire need of the hour, and the special needs of women who are traumatized by cruelty must be recognized by giving financial succour to her.

2. In Indian society some medical problems are considered serious though scientifically proved to be harmless. In one sample case, the wife developed white patches (lukoderma) on the skin after the marriage. The husband deserted her and she has demanded permanent alimony from him, as this is not a ground for divorce. In this case however, the counselor persuaded the couple to consult good physicians and ultimately they decided to take divorce on the condition that the husband pay her alimony of Rs.500/- per month. Though the petitioner wife was only school educated, she was aware of the harmlessness of her problem, and asserted her rights to maintenance. The counselor is role was positive and favorable to the woman.

3. In many cases, the ignorance and faulty ideas of the families of the couple can result in trauma and divorce. It is a grave misconception in Indian society, that mental problems or impotence in the male can be cured by marriage. In one sample case, a well-educated employed man married a girl with psychological problems, hiding the fact that he was sexually impotent. The two families were at fault and created trauma that stigmatized two lives.

285

The husband was ordered by the family court to pay Rs.800/- per month as maintenance to the wife, who developed severe psychological problems due to the divorce and social stigma involved. Extremely orthodox views, blind faith and lack of awareness of medical treatments available, can be very harmful to all concerned. Education and pre-marital counseling are essential in Indian society.

4. In Indian psyche, the woman's prime position in society is determined by her capacity to bear children, preferably sons, and become a mother. Childlessness is almost treated akin to a disease in many families. A childless wife is forced to suffer great injustice and humiliation in her marital home. In the 21 st century too, families do not accept that the husband also needs to be tested for fertility. In case the wife is forced out of her home or the husband marries again without her consent, she can claim maintenance. 6.240/0 cases in the 'C Petition' category are related to this problem. The Family Court law does not consider childlessness a ground for divorce. In all 6.24% cases the Court has granted maintenance and in two cases brought about compromise.

5. It is observed that marriage in which husband and wife to live apart for long periods of time, creates disharmony and stress for the wife and family. Inspite of financial security, even wealthy couples, whose husbands are in the army or merchant navy, have to make a lot of adjustments. In one such case, the wife has applied for maintenance for the daughter's education and marriage, even though she (the wife) divorced her husband who is in the army, five years ago. The court in this case has given the counselor the responsibility of convincing the couple to settle the issue amicably. The husband has agreed to pay Rs.5000/- per month for the welfare of his daughter and also bear all expenses for her wedding. The role of the judge and the counselor has been supportive and advisory in this case. In this case it was matter of asserting the fact that the father is obliged to care for this divorced wife and family, even if the wife is financially secure and has parental support.

On Analyzing 'Petition C' for maintenance certain sociologically significant facts are noted

1. Highly educated and economically 'Well-off couples often go in for a divorced by mutual consent. But as there is property and marital wealth, claims for shares in marital property, streedhana and high rate of maintenance are strongly demanded by the wife, as her right. The case therefore becomes complex and multiple cases are registered against each other. High Court appeals are also made.

286

2. It is observed that if a woman has deserted her husband due to his violent behavior and cruelty, police records can prove her case and the court grants her interim and permanent maintenance. The police need to be more alert and sensitized to the problems of domestic violence.

3. It is observed that working women tend to resent she husband's authority about money matters, and also dislike if he makes financial demands from her. The status-role conflict of traditional and modern definitions of male and female obligations and rights is evidently the cause of stress.

4. The domestic role of the wife is still considered the prime role for a woman. In many cases a woman is harassed because "She does not cook or wash clothes, or give a lunch-box to her husband". These issues are actually mentioned in writing in petitions where the wife has left the husband's home due to various reasons. Her traditional stereotyped image of wife, mother and home maker is attributed as being most suitable. Even a working woman is made to bear the double burden of full time employment and housework. The demands of the male members are based on the traditional way of life and internalized values of patriarchy.

5. In the case of petitions for maintenance, there are many men who try escape the responsibility of maintaining a wife by making serious charges like adultery and bigamy against her. In such cases, the cross examination of the two parties, the families and witnesses is vital process of interaction between the Judge and the petitioner. In two cases studied, the researcher has noted that in the Family Court, charges of adultery or being unchaste made against the wife are not easily accepted without foolproof evidence. The court's stand in such cases is to protect the position of the woman, as character defaming can ruin her future.

6. However there are cases, where the family court judgement seems to subscribes to patriarchal values and ideals. In one observed case, the couple had a handicapped child who has a heart ailment. Owing to incompatibility, the couple divorced. The wife demanded a maintenance amount for medical expenses for the child. The family court granted her petition for maintenance but gave her full custody of the child as the mother is treated as natural guardian. The husband agreed to pay maintenance but refused to take custody of the child during school holidays as requested by the mother. The father here has neglected his obligation towards his child, and the mother must bear the whole responsibility of daily care. All over the world, a new trend of female-headed families is on the rise. A men leaves his wife and his child, by

287

divorce or desertion. And the woman has no alternative but to take over the burden of child rearing and earning all alone. New kinds of marital relationships and many variations of family structure are emerging in the modem society, where definitions of family, marriage and parenthood, have become fluid and ever changing.

Seeking divorce has never been easy for both husband and wife. but women suffer more due to their financial dependency on the husband and lack of training to be able to get employment. There have been many sympathetic amendments to the marriage law acting as pilasters for support. But many of these amendments introduced since September 2001, have remained on paper.

The President of India cleared the Marriage Laws (Amendment) Bill, 2001, in October 2001. This amended the Special Marriage Act, 1954, the Hindu marriage Act, 1955, and the Parsi marriage and Divorce Act, 1936. But people have remained unaware of it. Actually the Amendment (Act no. 49) compels the husband to provide interim maintenance to the wife within 60 days of serving notice to the court, for divorce.

The Code of Criminal Procedure (Amendment Bill, 2001 (Act No.50» seeks to remove the bar on the ceiling of alimony of Rs.500 per month to women. Alimony will be fixed by the court, reasonably proportionate to the assets and income of the husband. In the Family Court Laws of Australia (1974) and in U.S.A., this condition has been rigorously implemented and the wife receives at least enough alimony, to maintain a fair standard of living. In the Family Court study in Pune the present researcher found sporadic cases, decided after 1994, where alimony has been granted according to the need of the woman and children, when the husband can afford to pay.

The Indian Divorce Amendment Bill 2001 (Act No.51), seeks to undo injustices and anomaly, with respect to Christian women in matters of judicial separation or dissolution of marriages. Muslim law also has a different set of rules and authority is not vested totally with the Family Court. A Muslim woman has to apply for maintenance under the Criminal Procedure Code, section 125.

In order to create awareness and give legal advice, there are many Pune based advocates who work through private associations. Advocate Madhumita Choudhary is the founders of 'Swayamsiddha' a voluntary organization fighting for the rights ofwomen. 12

288

.Concluding Remarks

1. The maintenance provision in different personal laws, Hindu, Muslim and Christian are not easily implemented and remain on paper.

2. Home-makers role is not given adequate support and prestige, and housework is undervalued. Therefore the maintenance provision in law is not recognized as a compensation for the contribution that she has made to her marriage. The predominant consideration behind it remains an idea of 'charity' because she is dependent.

3. In civil courts, maintenance claims were fewer and granted in few cases due to adversary procedures. The family court has institutioned a conciliatory method and informal procedure. But obtaining maintenance remains difficult of all women, especially poor women, whose husbands do not have regular income and do not pay in time.

4. A wife who does not live with her husband, is blamed for desertion and cruelty, but the reasons could be justified. She is a victim of domestic violence, she may have been harassed for dowry or there could be medical reasons. E.g. in one case studied, the family court has allowed a woman to live separately as her husband has contracted AIDS and has transmitted the disease to her. This amounts to cruelty and fraud and the court has granted her claim for maintenance, cost of medical treatment and also passed a decree of divorce in her favour.

5. The calculation of the amount of maintenance to be paid must be in the best interest of all the parties. Maintenance obligations are rarely equitable and realistic. The Family Court Judge has to weigh all factors and grant a proper amount. In the cases examined in this study, there are some cases where couples with considerable material assets have waged long battles about settling financial issues. Conflicts and confrontations over monetary issues are complicated and yet vital in the work of granting social and economic sustenance to the weaker party.

6. The cost of divorce and single living is not always easy to bear for a woman who, is not employed, has children and no support of parents. We find that in 200/0 cases studied, women came to some compromise with the husband and either go back to live with him or withdraw the case due to lack of resources.

289

7. The maintenance provision is applicable to minor children and parents who are old, disabled and need support. The family court has also the right to enable minor children to get maintenance from divorced parents by petition through their kin. (The present study discussion such a case in the section on 'Case Studies', Chapter IX, Part-II).

8. The legal right to live in the matrimonial home must be given to the woman who has problems and where the marriage has broken down. The family court in most cases has protected this right, though most women prefer to live away due to fear of reprisal and harassment by the estranged husband and his family.

9. In the absence of a uniform law of maintenance the family court has many procedural problems in accepting petitions from Muslim and Christian women and granting them relief under the Criminal Procedure Code. There are a number of protest movements and amendments regarding these laws, but implementation is extremely difficult and expensive if the case is to be made in the High Court or Supreme Court.

10. Both men and women need to be educated, become legally aware and also committed to the need to be just and fair to a spouse, even when the marriage is in trouble. Counselors,Lawyers and Judges in the Family Court must also deal with the financial needs of the divorced persons with the aim of dispensing social justice and adequate amount of funds for the dignity of living.

The examination above makes it clear that financial aspects of married life influence the decisions to live together in harmony or not. Sociological analysts have applied the theory of cost and exchange to the problem of conflict and divorce. Divorce analysts have found that financial status of the husband influences decision to divorce. Divorce is always costly and higher income males may be in a better position to go in for a separation, and get more rewarding alternatives like remarriage or even single status. However the legal structure also influences the cost of divorce, as the husband has to pay all money and maintenance according to his income. Recent legislation in some countries like U.S.A and Australia, permit equalization of life styles following divorce. The husband has to pay the ex-wife adequate money to continue her life style as is existed prior to divorce. But this is not the case in India, and the problem of maintenance is the worst offshoot of divorce in most cases.

290

Reference

1. Shanna, Vijay, Protection to Women in Matrimonial Home, New Delhi Deep and Deep Publication, 1994, pp.274.

2. Segade, Jaya, "Polygamy and Women's Right to Maintenance: Survey of Judicial Decisions" Journal of the Indian Law Institute, vol. 34, No.3, July­Sept 1989, pp.366.

3. Shanna, Vijay, op.cit., pp.250.

4. Shanna, Vijay, op.cit., pp.261.

5. Desai, Mihir, "The Family Courts Act 1984", The Lawyers, February 1966, pp.12-13.

6. Zoya Hasan, "Minority Identity, Muslim Women's Bill Campaign and the Political Process", Economic and Political Weekly, Vol., XXIV, No.1, t h

January, 1989, pp.44-49.

7. Hameed, Syeda Saiyidain, "Now we shall speak", Times of India, Thursady, January 21, 2001, pp.l0.

8. Zoya Hosan, op.cit., pp.49.

9. Agnes, Flavia, "Refonns as if women mattered", Manushi, April, 2001, pp. 25-27.

10. Ibid, pp-119.

11. Ibid, pp-26

12. Patole, Gitanjali, "New Divorce Laws remain on paper", Times of India, Pune Times, Monday 29th July, 2002, pp-l.