VENTAJAS Y DESVENTAJAS DE LOS SISTEMAS DE REGISTRO LWD

maintenance

Legitimacy of child ... 163 Living in adultery ... 165 Living separate by mutual consent 166 Living with father ... 167 Maintenance by others ... 167 Necessity of consummation of marriage ... 168 Nullity marriage ... 168 Ornaments ... 169 Ownership of property ... 169 Paternity of child ... 170 Pre-existing order ... 170 Prior marriage ... 170 Proof of divorce ... 170 Proof of marriage ... 171 Refusal to co-habit ... 174 Restitution of conjugar rights ... 147 Right over property ... 184 Second marriage ... 184 Second wife ... 190 Sufficient income ... 191 Temporary Employment ... 191 Unproved illicit relation ... 192 Unreasonably attitude ... 193 Validity of marriage ... 193 Working wife ... 200

Introduction

Different provisions of the various Acts governing personal laws provide for maintenance pendente lite as also permanent maintenance or alimony. These provisions refer to various factors, which have to be

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considered by the courts. Some of these factors are the income, status and conduct of the parties. These factors as interpreted by court as also section 18 of Hindu Adoptions & Maintenance Act, 1956 lays down the circumstances in which the spouse shall not be entitled to maintenance. This chapter deals with such disabilities, which affect the grant of maintenance.

Abandonment of claim

Simply because the wife has not claimed maintenance for a long period, it does not mean that she has completely abandoned her right or voluntarily given up her right to claim maintenance. In her application she pleaded that she has no other source of income and she is unable to maintain herself. She might be living with her parents to the utter humiliation of other ladies and without any courtesy and respect which a daughter is entitled to in her parental house if she is living quite happily and peacefully with the husband, with the only fond of reunion. But when all her hopes are shattered away, and when there is no other source of income and when she feels herself burdensome to her parents or brothers, she has approached the Court claiming maintenance. Apart from that, Section 125 Criminal Procedure Code has not restricted the period of limitation to claim maintenance. When the statute has not prohibited any wife to claim maintenance with any period of limitation, the petitioner is not entitled to plead that she has waived her right to claim maintenance due to the long lapse of 10 or 12 years after she left his house. Due to the changed circumstances in her parents house, her parents may not be willing to maintain her and they may not be in a position to maintain her since other children have grown up and some other problems might have cropped up in her family. Under these circumstances, the petitioner is not entitled to raise the plea that the respondent has waived her right to claim maintenance after a long lapse of 12 years.1

Adultery

The word “adultery” has been considered in many decisions since a century. The words “is living in adultery” in Sub-section (4) of Section 125 Criminal Procedure Code would not take into their fold stray instance of lapses from virtue, it would not also mean that the wife should be living in adultery on the date of the petition. The proper interpretation would be that there should be proof of adulterous living shortly before or after the petition, shortly being interpreted in a reasonable manner viewing it in the light of the face of the case.

Kanaasami Pillai v. Murugamal,1 suit was filed in 1887 by a Hindu wife against her husband and a decree for maintenance was obtained and the judgment-debtor sued to have the decree set aside, alleging that his wife had since committed adultery and given birth to an illegitimate child. The wife denied adultery and stated that her husband had become reconciled to her and that the child was legitimate. But is was found that the case of the judgment-debtor was established and that defendant’s misconduct had been recent, open and continuous. In those circumstances the court set aside the decree passed in the previous suit granting maintenance and held that the defendant was not entitled even to a bare maintenance.

In Kista Pilia v. Amirthammal,2 Panduranga Row, J., observed thus:

“Emphasis no doubt to be laid on the words ‘living in adultery’. in other words, as was pointed out by the Bombay high court in re

Fulchand Maganlal AIR 1928 (52) Bombay. 160 the clear

implication from the words used by the legislature in this section (section 488 of the old criminal procedure code) is that, unless the wife is actually living in adultery at or about the time of the application, she is not disentitled to obtain maintenance. it is nowhere said in the section, and there is no need to introduce additional words therein, that living in adultery must be in the house of adulterer. the words “living in adultery” are, in my opinion, merely indicative of the principle that occasional lapses from virtue are not a sufficient reason for refusing maintenance. continued adulterous conduct is what is meant by “living in adultery”. the question, therefore, for the magistrate to decide in this case was whether there had been such adulterous conduct on the part of the petitioner at or about the time of the application, that is to say, shortly before or shortly after the application was made, interpreting the word ‘shortly’ in a reasonable manner……… my opinion is that in a case of claim for maintenance like this, the “respondent (husband)” who puts forward a charge of “living in adultery” against the petitioner (wife) as his only defence to the claim for maintenance, ought to begin his case, and the petitioner against whom the charge is made ought to have been an opportunity of adducing rebutting evidence.”

In M.A. Mya Khin v. N.N. Godenho,3 it was held that words “living in adultery” in Section 488(5) denoted a continuous course of conduct and not isolated acts of immorality. One or two lapses from

1 _{1896 ILR 19 Madras 6.}

2 _{1938 Madras Weekly Notes (Crl.) 145} 3 _{AIR 1936 Rangon 446.}

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virtue could be acts of adultery, but would be quite insufficient to show that the woman was living in adultery, which means that she must be living in the state of quasi-permanent union with the man with whom she is committing adultery. Further, it has been pointed out that there is a great distinction between the words ‘committing adultery’ and ‘living in adultery’ and that the ratio is that a solitary lapse from virtue, as distinguished from contumacious immoral conduct, should not be a ground for denying maintenance. The same court in M.A. Thein v. Maung Mya Khin,1 observed that the phrase “living in adultery” refers to course of guilty conduct and not a single lapse from virtue. It was held that the fact(herein) that a child was begotten when the husband could not get access to the wife showed that the wife must have been guilty of adultery on more than one occasion and therefore she was not entitled to maintenance, apparently on the presumption that it is extremely rare that conception happens after one solitary intercourse.

Ramaswami, J. in M. Kanniappan v. Akilandammal,2 observed that occasional lapses from virtue are not a sufficient reason for refusing maintenance and that the continuous adulterous conduct at or about the time of the application is what is meant by “living in adultery” and the court may in its discretion refuse to grant the allowance in cases where, apart from the fact that living in adultery in the sense of a course of continuous adulterous conduct has not been proved, there may exist circumstances which would justify such refusal. Regarding the interpretation of the term “living in adultery”, after referring to the various decisions, the learned Judge observed as follows:

“On as analysis of the case-law and the proposition deducible there from, the conclusion of the learned Chief Presidency Magistrate granting maintenance on the ground that though and adulterous conduct on the part of the petitioner has been proved, it has not been further proved that she was living in adultery at the time of the petition, cannot be upheld.”

Pursuant to the above observation, the learned Judge set aside the finding of the Magistrate and ordered for a further enquiry since the parties in that case had not come to grips on the point which should not be proved and rebutted in regard to the award of and withholding of maintenance and since they might also like to adduce further evidence in support of their respective contentions.3

1 _{AIR 1937 Rangoon 67.}

2 _{1953 Madras Weekly Notes (Crl). 48.}

3 _{M. Kanniappan v. Akilandammal, 1953 Madras Weekly Notes (Crl).}

In S.S. Manickam v. Arputha Bhavani Rajan,1 the facts were: the wife was living in adultery with her husband’s brother. Many letters written by the wife to her paramour were marked. One of the letters disclosed that she conceived through R.W.2 which had resulted in the birth of her second child, now alive. The learned Judge observed that the temporary cessation of relationship between the respondent and her paramour cannot be said to be due to the fact that the respondent has returned to a life of purity or that she has turned a new virtuous life…… Further more, there was no evidence that she ever repented or attempted to obtain any pardon from her husband. It was finally concluded by observing that the petitioner had established that the respondent was leading a continuous adulterous life and also was living in such adultery even at or about the filing of the application for maintenance. It is not necessary that the wife should live in adultery as on the date of the petition. It is the evidence as a whole that has to be taken into consideration.

In Mariyumma v. Mohd. Ibrahim,2 it was observed:

“Section 125(1) of the new Code obliges a person who refuses or neglects to maintain a woman who has his wife and who had been divorced to maintain her if she is unable to maintain herself. Such obligation is to last unless she remarries. The scope of the term “wife” is enlarged to take in the case of such a woman and this is by Explanation (b) to Section 125(1). Explanation (b) to that Sub- section reads thus:

“Explanation:— For the purposes of this Chapter:—

(a) ………

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

The effect of the Explanation is evidently to read the term ‘wife’ in Chapter IX of the Code as meaning not only the wife as generally understood but also a woman who has been divorced but who has not remarried. In may be noticed that Section 125(1) deals with the obligation of a “person” and not of a husband or of a father or of a son. The scope of the Explanation is not to create a jural relationship between the divorced woman and the erstwhile husband. No new obligation outside the scope of the Code is sought to be imposed either on the divorced woman or her erstwhile husband by reason of the Explanation. The object of the Explanation is only to enable such a divorced woman to claim maintenance from her erstwhile husband until her re-marriage. The very object of the provision in Section 125 of the Code is to

1 _{1980 Crl.LJ. 354.}

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provide for a minimum obligation on the part of a person to maintain his wife, children, parents and his divorced wife who is not remarried under certain circumstances.”

A woman whose martial tie does not subsist cannot be guilty of adultery much less can she be said to be living in adultery. She may live a promiscuous life, but that would not render her guilty of adultery, for ‘adultery’ is a term that denotes an offences against the institution of marriage. It is only under the inclusive definition of “wife” in Section 125(4) the divorce is entitled to claim. When the “wife” includes “woman” who has been divorced, the incidents that accrued to the term “wife” also must follow. A divorcee cannot take advantage of the inclusive definition of “wife” and can claim maintenance even though she was living in adulteries after the divorce to the knowledge of on and all. The other incidents and the liabilities that have to be attached to the term “wife” shall also follow in the event of claiming maintenance from her former husband. A divorcee cannot commit an offence of adultery as such, but if we take into consideration the inclusive definition and if we give her the status of wife for the limited purpose of claim. There is no difficulty to extend the same analogy to the offence that has been committed by her which may attract the ingredients of adultery, if she was not divorced. If the divorcee has to be treated as a wife, her living in adultery after the divorce also has to be taken into account. There need not be a specific provision that the divorcee is not entitled for maintenance, is she lives in adultery. What considerations have to be taken into account by applying Section 125, 126 and 127, Criminal Procedure Code with regard to wife also, have to be applied in the case of a wife who claims the benefit or the advantage that accrued to her after the divorce, by virtue of Explanation (b) to Section 125, Criminal Procedure Code. When the inclusive definition is there and the right to claim arose under the inclusive definition and the wife claimed right on that basis, the offences which she committed will generally fall if she was treated as a wife also have to be taken into consideration.1

If the wife was living in adultery and continues to live in adultery even after the divorce, she is not entitled to claim maintenance on the ground that she has not remarried. The legislature never contemplated that what normally a wife is not entitled, would be given to the divorce the benefit under the provision of Section 125, Criminal Procedure Code. If a divorcee who is leading a promiscuous life approaches the court for maintenance, she is not entitled for maintenance on the basis of the inclusive definition of “wife”. What normally could not have been

granted in the normal course to a wife, could not be expected to be granted to a divorced wife in whose favour a limited benefit has been conferred under the inclusive definition of Section 125 Explanation (1) (b) of the Criminal Procedure Code.1

Agreement to live separately

In one case the wife had launched the criminal prosecution against the husband for the offence of bigamy. That case was dismissed as she could not produce evidence. Thereafter the husband filed a petition for dissolution of marriage alleging unchastely to the wife shows that she was subjected to cruelty. Having alleged unchastely to the wife, he failed to substantiate that ground. It was held that even assuming that the finding of the Civil Court is binding, the finding is that the wife had deserted the husband for more than three years prior to the presentation of the petition in pursuance of an agreement, with her consent, that may be a ground for dissolution of marriage, but does not afford a ground for refusing award of payment of maintenance to the wife from the date of the petition. The act of living separately is not by mutual consent when as per agreement, the mutual consent is only for taking divorce. In the absence of any allegation that the wife had means to maintain herself, it was held that the liability of the husband to maintain the wife is not discharged.2

Refusal by the Courts to entertain the application of the applicant on the ground that she had accepted a sum of Rs. 1500/- as full and final settlement of her claims cannot be upheld.3

Annulment of marriage

The right of the wife to maintenance depends upon the continuance of her marriage status and once the status of husband and wife is declared to be null and void, the effect would be the same as in the case of void marriage under Section 11 of the Act. The legislature has given the benefit of the provisions of Section 125 Cr. P.C. to a divorced woman as long as she did not remarry by including Clause (b) of the Explanation, but, not such provision has been brought in so as to apply in the case where the marriage is declared null and void. The legislature decided to bestow the benefit of the section on a illegitimate child by express words, but, none are found to apply to a de facto wife where the marriage is void, ab initio or voidable and declared void by a decree of nullity. The benefit of maintenance under Sub-section (1)(a) is

1 _{Y. Mqanagtayru vs. Y. Seshawataram, I (1989) DMC 407 AP.} 2 _{K. Ramakrishna Reddy vs. T. Jayamma, I (1992) DMC 146 AP.} 3 _{Molyabai vs. Vishram Singh, II (1992) DMC 33 MP.}

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available only if the applicant is the wife of the person concerned. Therefore It was held that the distinction drawn by the learned Magistrate that the marriage in the instant case being voidable, the wife was entitled to get the maintenance even after the decree of nullity was wholly erroneous in law. He should have given the effect to the decision of the Civil Court and on the basis of that, the proper course was to cancel the order of maintenance. 1

Cancellation

The order of cancellation under Sub-section (2) of the Section 127 Cr. P.C. normally is effective prospectively. The language of Sub- section (2) of Section 127 empowers the Magistrate to cancel or vary the order according to the decision of the competent Civil Court and till then the order passed by him remains effective. So far the language used in the provision, was stated that the order that may be passed under Sub- section (2) of Section 127 shall be prospective in operation.2

Co-habitation by divorced wife

The normal rule for a wife is to live with the husband. It is the husband’s right to have her company and, therefore, a corresponding liability of the wife to fulfil that obligation. This also is confined to a wife properly so-called, but in the case of a divorced wife, this normal assumption can never be invoked. She, from the very nature of severance