Category: Family

Claim of Maintenance by a Divorced Wife

Claim of maintenance by a divorced wife A divorced wife has a statutory right to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973. Every divorced wife, if otherwise eligible and unable to maintain herself, is entitled to the benefit of maintenance allowance. Divorce by itself does not extinguish the right of maintenance, and the obligation of the husband continues unless specifically discharged in accordance with law. Where the husband fails to prove that he was actually paying maintenance to the divorced wife, and merely contends that she forfeited her right due to divorce or an earlier consent decree, the essential condition of “neglect or refusal to maintain” stands satisfied. In such circumstances, a divorced wife is not required to plead or prove that she was not living separately by mutual consent. This principle has been clearly laid down by the Supreme Court in Bai Tahira v. Ali Hussain Fissalli (1979 Cr LJ 151 SC) and reaffirmed by the Kerala High Court in Kamalakshi v. Sankaran (AIR 1979 Ker 116). Under Section 127(3)(b) of the CrPC, a husband can seek absolution from his obligation under Section 125 towards a divorced wife only on proof that he has paid a sum in accordance with customary or personal law, and that such sum is reasonably sufficient to substitute the maintenance allowance. Mere assertion of divorce or settlement is not enough. This legal position was authoritatively settled in Bai Tahira v. Ali Hussain Fissalli (1979 Cr LJ 151 SC) and followed in Kamalakshi v. Sankaran (AIR 1979 Ker 116). The right of a divorced wife to receive maintenance flows directly from her status as a divorced wife. This right does not depend upon any further condition once divorce is established and inability to maintain herself is shown, as held in M. Nanu v. Vasantha (1986 Cr LJ 652). After divorce, the husband cannot insist that the wife should live with him, and consequently, the divorced wife is under no obligation to prove sufficient cause for living separately. This principle has been upheld in Velukutti v. Prasanna Kumar (1985 Cr LJ 1558 Ker) and Hari Singh v. Gulab Devi II (1989) DMC 439 (Raj). Even where the marriage has been dissolved by mutual consent, the divorced wife, if unable to maintain herself, is entitled to claim maintenance until she remarries. This position was clearly recognized in Sadasivam Pillai v. Vijaya Lakshmi (1989 Cr LJ 765). It is now a well-settled proposition of law that even where there is a valid decree of divorce, the wife remains entitled to claim maintenance under Section 125 of the CrPC. A decree of divorce cannot be used as a ground to deny maintenance, as held in Chandrakant v. Sulochana (1997 Cr LJ 520 Bom). Further, even when a decree of divorce is passed against the wife on the ground of desertion, she is not barred from claiming maintenance against her former husband from the date of the decree. This legal position has been affirmed in Jashelal v. Pushpabati (1998 Cr LJ 4740) and Harish v. Kabita Bai (2007 Cr LJ (NOC) 724 MP). Similarly, where a decree for restitution of conjugal rights had been passed prior to divorce, such decree loses all relevance once the marriage stands dissolved. After divorce, the earlier decree for restitution of conjugal rights ceases to have any legal significance, and the divorced wife cannot be denied maintenance under Section 125 CrPC. This principle was upheld in Koli Gomiben Shyamji v. Koli Laxman Premji (1998 Cr LJ 429 Guj). The Supreme Court has categorically held that a woman, after divorce, is entitled to claim maintenance from her former husband if she is unable to maintain herself and so long as she does not remarry. The ex-husband continues to remain under a statutory duty and legal obligation to provide maintenance to his divorced wife. This authoritative declaration of law is found in Rohtash Singh v. Ramendri (AIR 2000 SC 952). The fact that at the time of an initial compromise the wife did not claim maintenance, or that she did not seek maintenance at the disposal of the matrimonial suit, does not bar her from claiming maintenance at a subsequent stage. Any agreement or understanding whereby a wife relinquishes her right to future maintenance has no legal sanction, being opposed to public policy. This position has been reiterated in Bishnupriya Bhuniya v. Jhumi Banik (AIR 2007 NOC 657 Gau). By Advocate Bhuvnesh Kumar GoyalAdvocate in Jaipur High Court

Alimony in Hindu Marriage Act & Section 141 BNSS Maintenance

Alimony under the Hindu Marriage Act, 1955 and Maintenance under Section 125 CrPC (Now Section 141 BNSS) Even where alimony pendente lite is granted by the civil court in matrimonial proceeding under s. 24 of the Hindu Marriage Act in favour of the wife alone, the Magistrate under s. 125, CrPC/141 BNSS can grant higher maintenance for wife and children (Ramesh Chandra v Veena Kaushal 1979 Cr LJ 3 (SC)).  However, the quantum of maintenance awarded under s. 125, CrPC /141 BNSS is adjustable with the award of alimony pendente lite granted by the Matrimonial Court (Sudip Chaudhary v Radha Chowdhury 1999 Cr LJ 466 (SC). When the plea of adjustment was not raised then the maintenance ordered under s. 125, CrPC/141 BNSS and alimony pendente lite ordered under s. 24 of the Hindu Marriage Act are payable to the wife and both the orders are required to be complied with till the final decision is rendered by the civil court. After the civil court passes the final order of alimony, the husband can apply for cancellation or variation of the order passed under s. 125, CrPC/141 BNSS (T.Rajinder Singh v Maya Devi 1996 Cr LJ 2384 (AP). Only because a proceeding under the Hindu Marriage Act 1955 is pending, an application under s. 125, CrPC/141 BNSS cannot be dismissed summarily (Balan v Pankojakhy 1992 Ker LJ 778). Even refusal of granting pendente lite maintenance by the civil court is not binding on the criminal court and the Magistrate can grant maintenance under s. 125, CrPC/141 BNSS in spite of such refusal (Ashok Nath Singh v Upasama Panwar 1994 Cr LJ 998 (H.P).  In case of dismissal of husband’s petition under any one of the ss. 9 to 14 of the Hindu Marriage Act 1955, alimony under the Hindu Marriage Act cannot be granted. But the wife can maintain a petition under s. 125, CrPC (Now 141 BNSS) – Chand Dhawan v Jawaharlal Dhawan (1993)3 SCC 406; 1993 Cr LJ 2930 Petition for nullity of marriage pending Even if a petition for nullity of marriage is pending under the Hindu Marriage Act 1955, this will be no ground for refusal of maintenance to the wife under s. 125, CrPC, but in such petition for nullity of marriage, no interim direction has been given Manoj v M. Sindhi 2007 Cr LJ (NOC) 2 (Ker). Civil Court’s decree is binding on Criminal Court The question arose that if the husband obtained a decree for divorce on the ground of desertion by the wife, the petition under s. 125, CrPC cannot be dismissed summarily. The Magistrate has to scrutinize the judgment of the civil court to ascertain as to whether there was really any finding recorded by the civil court or not that the wife was guilty of desertion. However, the civil court decree is binding on the criminal court (Jasholal Agarwal v Pushupati 1994 Cr LJ 185 (Ori). Decree for restitution of conjugal rights However, despite the decree for restitution of conjugal rights passed against the wife, the wife may file an application under s. 125, CrPC unless it is proved that the person, in whose favour the decree was passed, was willing to discharge the obligation as a husband and has not secured the decree in order to frustrate the order of maintenance under s. 125, CrPC (K. NArayan Rao v Bhagyalakshmi 1984 Cr LJ 276 (Kant); Mr Shakal v Shahina Parveen (1987)1 Crima 115 (Del). When, in spite of the decree for restitution of conjugal rights, the wife refused to stay with the husband and the husband obtained a decree for divorce on the ground of desertion, the wife is not entitled to apply for maintenance under s. 125, CrPC (In the matter of Rabindra Nath Ray 1995 Cr LJ 1187 (Cal.) By Bhuvnesh Kumar GoyalAdvocate in Jaipur High Court

Mutual Consent Divorce Under the Hindu Marriage Act, 1955

Mutual Consent Divorce Under the Hindu Marriage Act, 1955 Divorce by mutual consent is the most peaceful and dignified way to end a marriage under Indian law. When both husband and wife agree that the marriage has broken down and they cannot live together anymore, the law allows them to separate without allegations, blame, or lengthy court battles. Under the Hindu Marriage Act, 1955, this form of divorce is recognised under Section 13B. This article explains the complete legal process of mutual consent divorce, eligibility conditions, procedure, timeline, court requirements, waiver of cooling-off period, and important judgments, in a clear and practical manner. What Is Mutual Consent Divorce? A mutual consent divorce is a divorce where both spouses jointly agree to dissolve their marriage. Unlike contested divorce cases, there is no need to prove cruelty, adultery, desertion, or any other fault. The focus is only on mutual agreement and settlement. Under Section 13B of the Hindu Marriage Act, 1955, a husband and wife can file a joint petition stating that: They have been living separately, and They are unable to live together, and They have mutually agreed to dissolve the marriage. Legal Provision: Section 13B of Hindu Marriage Act Section 13B was introduced to reduce unnecessary litigation and emotional stress between parties. It provides a statutory framework for amicable separation. The section works in two stages: First Motion (Joint Petition) Second Motion (Final Hearing and Decree) Conditions for Filing Mutual Consent Divorce For filing a mutual consent divorce under Hindu law, the following conditions must be satisfied: 1. Marriage Must Be a Hindu Marriage The marriage should have been solemnised under Hindu law and registered (registration is helpful but not compulsory). 2. Living Separately for At Least One Year The parties must have lived separately for a minimum period of one year before filing the petition.“Living separately” does not necessarily mean living in different houses. Even staying under the same roof without marital relations can qualify. 3. Mutual Agreement Both husband and wife must freely consent to divorce without force, pressure, fraud, or coercion. 4. No Possibility of Reconciliation The parties must genuinely believe that the marriage cannot be saved. First Motion in Mutual Consent Divorce The process begins with filing a joint petition before the Family Court or District Court having jurisdiction. Contents of First Motion Petition The petition generally includes: Date and place of marriage Details of separation Reasons for divorce (simple statement of incompatibility is sufficient) Settlement terms regarding: Permanent alimony or maintenance Child custody and visitation (if applicable) Return of stridhan Property settlement Both parties must sign the petition and file affidavits. Appearance Before Court Both spouses must personally appear before the court for filing the application and further later for recording of statements. The court verifies consent and satisfaction of legal conditions. Cooling-Off Period of Six Months After the first motion, the law provides a cooling-off period of six months. This period is meant to give the parties time to reconsider their decision and explore reconciliation. However, this period often delays divorce even when the marriage is completely irretrievable. Waiver of Cooling-Off Period – Supreme Court Judgment In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month cooling-off period is directory, not mandatory. Cooling-Off Period Can Be Waived If: The parties have already lived separately for a long period All disputes regarding alimony, custody, and property are settled There is no chance of reconciliation The waiting period would only prolong mental agony Courts today frequently waive this period where facts justify immediate divorce. Second Motion and Final Decree After six months (or earlier if waived), the parties file the second motion. At this stage: Both parties again appear before the court Consent is reconfirmed The court ensures that consent is voluntary If the court is satisfied, it passes a decree of divorce, dissolving the marriage legally. Time Taken for Mutual Consent Divorce Without waiver: Around 6–8 months With waiver: As fast as 1–2 months (depending on court workload) Compared to contested divorce, which can take years, mutual consent divorce is significantly faster. Alimony and Maintenance in Mutual Consent Divorce There is no fixed rule for alimony. It depends entirely on mutual agreement. Factors considered include: Income and financial capacity of both spouses Duration of marriage Standard of living Future needs Alimony can be: One-time lump sum payment, or Monthly maintenance The agreed amount is recorded in the divorce petition and becomes binding. Child Custody in Mutual Consent Divorce If the couple has children, custody arrangements must be clearly stated. Courts prioritise the welfare of the child, not the convenience of parents. Custody can be: Sole custody to one parent Joint custody Visitation rights for the non-custodial parent The court ensures that the arrangement serves the child’s best interest. Can Mutual Consent Divorce Be Withdrawn? Yes. Either party can withdraw consent at any time before the final decree. If consent is withdrawn, the court cannot grant divorce under Section 13B. Once the final decree is passed, the divorce is complete and cannot be challenged except on very limited legal grounds. Mutual Consent Divorce vs Contested Divorce Mutual consent divorce avoids: False allegations Lengthy trials Cross-examination Emotional stress Financial drain It allows parties to move on with dignity and closure. Common Mistakes to Avoid Many couples face delays due to: Incomplete settlement terms Improper drafting of petition Non-appearance of parties Disputes arising after first motion Proper legal guidance ensures smooth and quick disposal. Conclusion Mutual consent divorce under the Hindu Marriage Act is a practical, humane, and legally sound way to end a marriage that has irretrievably broken down. It respects the autonomy of individuals, reduces conflict, and saves valuable time of the court and parties. When handled correctly, with clear settlement and informed consent, it provides a clean and respectful exit from a failed marriage.   By Bhuvnesh Kumar GoyalAdvocate in Jaipur High Court