Maintenance In Cases Of Desertion By Wife

[The author, Yojit Kaushik is a law student pursuing BA LLB from Institute of Law, Kurukshetra University, Haryana.]

INTRODUCTION

Maintenance as a concept refers to the payment of some monetary or financial assistance by either spouse upon the breaking of marital ties i.e. Divorce or even in-between the proceedings. It is also known as Alimony in legal terminology. The purpose of such benefits is to maintain the standard of living of either spouse as it was before the decree of divorce.

Maintenance can be awarded by the court of jurisdiction in that area upon the application of either spouse. Maintenance can be claimed for the Children, Parents, Wife and even In-Laws. In Chanmuniya v. Virendra Kumar Singh Kushwaha, it was held that Maintenance can even be asked from the Live-in-relationship partner if the cohabitation is nature of the domestic relationship.

TYPES OF MAINTENANCE

On the basis of granting of maintenance by the Hon’ble court, maintenance is of two types:

1. Temporary Maintenance (Pendente lite): It is a type of maintenance given during the course of proceedings of divorce or separation in a court of law. It is given to meet out the necessary and immediate expenses of either spouse during such proceedings. This type of maintenance is mentioned under Section 24 of Hindu Marriage Act, 1955, Section 36 of Special Marriage Act, 1954, Section 36 of Parsi Marriage and Divorce Act, 1936, Section 36 of Divorce Act, 1869 and Section 125(1) of CrPC.
2. Permanent Maintenance: It is the type of maintenance granted after the disposition of the court case of divorce or separation. It may be periodically paid to the other spouse i.e. On Monthly basis or it may be collectively paid in a single payment. Section 25 of Hindu Marriage Act, 1955, Section 37 of Special Marriage Act, 1954, Section 40 of Parsi Marriage and Divorce Act, 1936, Section 37 of Divorce Act, 1869, Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986. There is also a provision of maintenance to children along with wife under Section 125 of CrPC.

MEANING AND CONCEPT OF DESERTION

The concept of desertion is clearly explained under Section 13 (1) (ib) of The Hindu Marriage Act, 1955. In simple words, it means an act of living separately by either spouse without any reasonable cause for the continuous period of 2 years, without the will of other spouse. It is prima facie case of negating the main objective of matrimonial ties i.e. to live together. Desertion is a valid ground of divorce.

CLASSIFICATION OF SPOUSES IN DESERTION

• Deserting Spouse- A spouse who has abandoned the other spouse or lives separately from his/her is known as deserting spouse.
• Deserted Spouse- A spouse who is being separated from the other spouse is known as a deserted spouse.

BURDEN OF PROOF

In Devi Singh v. Sushila Devi, it was held that in case of desertion, the burden of proof lies upon the petitioner, to prove above any reasonable doubt that he/she has been fully deserted beyond any reasonable doubt.

NO MAINTENANCE TO THE DESERTING WIFE- IF WITHOUT REASONABLE CAUSE

The right to maintenance is only provided to the wife who is ready to fulfil the marital obligations. But in case the wife is deserting her husband and not fulfilling her marital obligations which are essential for the marriage, she is not entitled to maintenance. In Bheekha Ram v. Goma Devi and Ors., it was held by the Rajasthan HC that, there is no maintenance to the deserting wife. Right to maintenance stems performance of marital duty. If there is no evidence of ill-treatment by husband and wife has no just cause to live separately, she is not entitled to the maintenance.

In Kalidas v. Parwatibai, it was held that if the wife has left the husband without any reasonable cause and left her husband against his wish, she is not entitled to the benefit of maintenance under section 125 of Cr.PC.

In Krishnabai v. Punamchand, the wife refused to live with her husband and deserted her on the ground that her father-in-law misbehaved with her. This was regarded to be unreasonable by the court.

In such cases, a husband is also entitled to maintenance from his wife, if he is unable to work or earn money. It was held in Smt Kanchan v. Kamalendra and Nivya V M v. Shivaprasad that the husband cannot claim maintenance unless he establishes that he is permanently disabled to earn any income otherwise it would promote idleness.

RIGHT TO MAINTENANCE IF SEPARATION IS REASONABLE

This type of maintenance is generally covered under “Constructive Desertion”. It is a situation when one spouse made it impossible for the other spouse to live in a combined domestic relationship. In may be due to conditions like cruelty, ill-treatment, drunkenness and domestic violence etc. In such situations, although the actual desertion is by one spouse, it was the result of the ill-treatment of other spouses. In Stickert v. Stickert, it was held that desertion is not determined solely on the ground that who left the matrimonial house. So, in such cases, it is taken to be a reasonable cause for desertion and maintenance is awarded to the spouse.

In Sharda v. Kiran, it was held that if one spouse is obligated by the conduct of other houses, to leave the home, then the other spouse will be held responsible for the constructive desertion.

In Roi v. R. Naik, the husband brought another woman to his matrimonial house and upon the objection by the wife, calmly asked her to leave the home. Wife left the matrimonial home and never continued the matrimonial relationship and cohabitation. It was considered to reasonable cause for desertion.

In Rengaki v. Arungiri, the husband brought a mistress to the house against the consent of wife and had sex with her in her wife’s presence. In pursuance to this act, wife left the home as it was only consequence available to her. The court held it to be reasonable and held husband guilty for the constructive desertion.

In the cases of reasonable desertion, the deserting spouse i.e. who is forced by circumstances to live separately is entitled to the maintenance as it was upon the part of other spouses that he/she is not fulfilling the marital obligations.

CONCLUSION

A desertion is an act of living separately or forcing other spouses to live separately from other spouses. It a major ground of divorce and indicates that deserting spouse does not want to continue the matrimonial relationship. The crucial element of desertion is the intention of a spouse to live separately. If there exists any reasonable ground of desertion, then the spouse is entitled to maintenance, but if the case is otherwise maintenance shall not be awarded.

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REFERENCES

1. Devika, ‘Maintenance – Wife’ (The SCC Online Blog, 4 January 2019) <https://www.scconline.com/blog/post/2019/01/04/maintenance-wife/> accessed 5 May 2020.
2. Diva Rai, ‘Concept of Maintenance in Hindu Marriage Act, 1955’ (iPleaders, 13 June 2019) <https://blog.ipleaders.in/concept-of-maintenance-in-hindu-marriage-act-1955/> accessed 5 May 2020.
3. Radhika Bhakoo, ‘DESERTION AS A GROUND FOR DIVORCE–A CRITICAL STUDY’ (JCIL, March 2016) <http://jcil.lsyndicate.com/wp-content/uploads/2016/03/DESERTION-AS-A-GROUND-FOR-DIVORCE-Radhika.pdf> accessed 5 May 2020.
4. Avnish Kaur, ‘desertion by wife no maintenance’ (lawyersclubindia, 29 August 2010) <https://www.lawyersclubindia.com/forum/DESERTION-BY-WIFE-NO-MAINTENANCE-233> accessed 5 May 2020.
5. ‘No maintenance to deserting wife. Right to maintenance stems performance of marital duty! Rajasthan HC’ (my2centsworth, 1 Feb 2016) <https://vinayak.wordpress.com/tag/no-maintenance-to-deserting> accessed 5 May 2020.
6. The Hindu Marriage Act, 1955.
7. The Special Marriage Act, 1954.
8. The Parsi Marriage and Divorce Act, 1936.
9. The Divorce Act, 1869.
10. The Muslim Women (Protection of Rights on Divorce) Act, 1986.
11. The Code of Criminal Procedure, 1993 (CrPC).
12. Devi Singh v. Sushila Devi [1980] AIR 48 (Raj HC).
13. Chanmuniya v. Virendra Kumar Singh Kushwaha [2011] 1 SCC 141.
14. Bheekha Ram v. Goma Devi and Ors. [1999] WLC 260 (Raj UC).
15. Kalidas v. Parwatibai [1985] 1 BomCR 515 (Bom HC).
16. Krishnabai v. Punamchand [1967] AIR 200 (MP).
17. Nivya V M v. Shivaprasad [2017] 2 KLT 803 (Kerala HC).
18. Smt Kanchan v. Kamalendra [1992] AIR 493 (Bom).
19. Stickert v. Stickert [1899] P. 278 at 284.
20. Buchler v. Buchler [1947] I All 319 (ER).
21. Sharda v. Kiran [1985] (2) DMC 257 (Del).
22. Roi v. R. Naik [1930] AIR 140 (Mad).
23. Rengaki v. Arungiri [1993] AIR 174 (Mad).