Concept of Maintenance for Women under Christian Law

Written by Kiran Singh

The Divorce Act of 1869 governs the person who professes Christian religion; this Act provides that, the maintenance from the husband can be claimed by the wife if the below conditions are fulfilled, –
i. The wife is unable to maintain herself;
ii. The husband having sufficient means refuses or neglects to maintain her.

Under the said Act ‘inability to maintain herself’ is a pre-condition for granting maintenance, so it should be proved by the wife claiming the maintenance that she does not have sufficient means to maintain herself, and the word ‘refuse’ means denial of obligation to maintain after demand or failure to maintain. ‘Neglect’ on the other hand means default or omission in the absence of demand. When the wife is residing with her parents in her patrimonial home separately from the husband and her husband does not make any genuine effort to bring her back, it is a case of refusal or neglect to maintain the wife and on such ground, the wife can claim maintenance under Section 125 CrPC 1973.

Sections 36 and 37 of the Divorce Act 1869 mentioned the alimony pendente lite and permanent alimony. The notion of maintenance is mainly provided to the wife so that she can live in such a manner that she is accustomed to during the subsistence of marriage; it includes provision for food, clothing and the basic need of a roof over the head. The living standard of the woman should be in a similar pattern when she lives with her husband; maintenance for ‘sustenance’ does not mean animal existence, it should include the same standard as that of what she would have lived in the house of her husband. In Bhuwan Mohan Singh v. Meena, the court held that the husband has the duty to enable his wife to live a life with self-esteem as per their social strata and status.

Section 36 of the Divorce Act 1869 provides that the application for interim maintenance has to be disposed of within sixty days; this time will be calculated from the service of notice on the respondent. The major difference between Section 36 of the Divorce Act 1869 and Section 24 of the Hindu Marriage Act 1955 is that under the Divorce Act 1869 it is not mandatory for the wife to show that she has no independent income to maintain herself while seeking the maintenance pendente lite under Section 36; whereas under the Hindu Marriage Act 1955 it is the mandatory factor for claiming interim maintenance under Section 24 of the said Act. It means the wife who has an independent source of income is not disentitled to claim maintenance under the Divorce Act 1869 but the wife who has sufficient means to livelihood under the Hindu Marriage Act 1955 is disentitled to claim maintenance pendente lite.

However, in Ivan Iganias v. Zena Erasmus the court decided that, if the income of the husband is not sufficient, then it should be a significant factor to consider by the court while granting the maintenance and it should not award maintenance in such situations. Again in Chitra Sengupta v. Dhruba Jyoti Sengupta, the court held that under Section 36 of the Divorce Act 1869 and Section 39 of the Parsi Marriage and Divorce Act 1936 the maintenance pendente lite can be fixed as one-fifth of the net salary of the husband’s monthly average income. Similarly in Alice Baldev Singh v. Baldev Singh, the court held that the maximum amount which can be awarded under Section 36 of the Divorce Act 1869 is one-fifth of the average income of the husband.

The plain meaning rule of interpretation of Section 37 of the Divorce Act 1869 is that the gross sum of money should be awarded to the wife and the annual sum of money should be limited for the lifetime period of the wife. In the case of Noel Lewis Pinto v. Shalet D’Souza, the court granted permanent alimony to the wife as due to her medical condition she had to resign from her job and she also resided with her daughter. Again in Aruna Basu Mullick v. Dorothea Mitra, the court decided that the maintenance right of the wife does not get extinguished on the death of the husband; therefore this right is executable even after the death of the husband and it can be executed against the deceased husband’s estate which remains in the hands of his legal heirs.

Keywords: Concept of Maintenance for Women under Christian Law, Concept of Maintenance for Women in India