What does the progress in relation to post-divorce maintenance for women in Indian law tell us about the relationship of law and society in South Asia?

On 16 December 2012, the events that unfolded on a bus changed the life of one woman dramatically. Four men raped the defenceless woman and beat her; she died two weeks later. On 13 September 2013 the four were found guilty and sentenced to life imprisonment. Whilst it would be naïve to think such events are confined to India, the reaction by certain factions of the public, which blamed the victim, evidences an underlying element of discrimination that remains present in the minds of certain persons within the region (Burke and Major (2014)). 

This paper considers whether the Hindu Marriage Act 1955, which aimed to cater for gender neutrality, and its reception by the judiciary tasked with implementing it. It is concluded that whilst progress between the Act and the Uniform Code may have seemed alleviate all forms of discrimination, the substance paints a different picture where religion and societal differences remain at play and often override legislative aims.

The legislation

How is maintenance calculated?

The Act was passed with the intention of prohibiting polygamy amongst Hindus and

increasing the right of the divorced wife to maintenance.

Section 25 provides for the grant of permanent alimony and maintenance to any party

to a marriage, this is regardless of gender.

Case law suggests that the Indian courts use maintenance in the traditional sense, working towards the ideals composed of a duty by the financially advantaged husband to support his ex spouse. The case of Vinny Parmar v Paramvir Parmar (2011) 13

SCC 112 states that maintenance should be calculated on the following basis:

"The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to

when she lived with her husband."

The court gave particular precedence to striking a balance that is fair to both parties:

Here we see that the court appears to be aiming for an objective balance between both parties in which the wife is maintained to the life she has been accustomed and the spouse is reasonably able to provide.

This view is enforced in the case of Manish Kumar v Mrs Pratibha CM(M) 949/2008. in which case the wife applying for maintenance was employed in a well paid job

"The amount so fixed cannot be excessive or affect the living condition of the

other party”.

which the court deemed enough to support herself and lead an enviable lifestyle of luxury. Her application for maintenance was refused on the grounds that she was able to support herself. The bench ruled that the benefit of maintenance under Section 24 were granted so that any party without any independent or sufficient source of income, (male or female) could continue to exist without hardships as a result of their divorce.

Again, thus far case law supports the ideals of the Hindu Marrige Act: providing fair, objective support working to protect the party at a financial disadvantage regardless of gender.

In favour of women?

Traditional Indian family roles view men as the ‘breadwinner’ and place the woman’s duties in a domestic context, thus women usually rely on the party male for their financial support (Dandekar, 1986). This is likely to be the reason that males are often unsuccessful in their applications for maintenance, despite the Hindu Marriage Act stating that the benefits of the act were available to both parties. It may be due to this traditional view of genders which places the duty to maintain de facto with the male such as in the case of Anil Kumar v Laxmi Devi AIR (1994) NOC 61:

‘It is the duty of the able-bodied person to earn enough to discharge his legal obligation to maintain his wife and to provide for the subsistence so that the wife is not driven to destitution even when the husband is not earning sufficient money’.

Not only did the court impose the obligation on the husband to pay his ex partner maintenance, but inferred a duty of earning power upon him based on his physical ability to work. In such case the duty to maintain is based upon a simple foundation: physical ability to earn and duty to support his wife.

This case has shone light upon the courts view of ‘family roles’ being entwined within their decisions for granting maintenance. However earlier case law did work towards the gender-neutral objectivity Section 24 of the Hindu Marriage Act aims to provide. The case of Lalit Mohan v. Tripta Devi AIR (1990) J&K 7 concerns a disabled party (in this case male) and his entitlement to maintenance by his able bodied wife. The courts ruled that as he was not able to be financially independent and his wife was, she owed a duty to ensure he did not suffer hardship. This case clearly demonstrates that the point of maintenance is for the party at a financial advantage to look after the other party, sex does not factor as per section 24.

Breach of sexist morality penalised by the courts with maintenance

Section 21(2) allows for the court to rescind or modify a contract for maintenance following a change in the circumstances of either party at any time any time after it has been made in any such manner as the court may deem ‘just’.

Sub-section (3) allows for the court to exercise this power if:

“... if such party is the wife, that she has not remained chaste...”

Yet again the Indian courts have concerned themselves with the moral conduct of the woman and will penalise her for having a sex life that is deemed as immoral. Again, as Gangoli, G. (2010) notes, the purpose of Section 24 is ignored, showing a clear lack of concern for whether will suffer hardship; courts use their legal powers of awarding/rescinding maintenance contracts as a ‘carrot/stick’ for ‘moral behaviour’ usually in favour of men.

Shocking case law demonstrates the Indian courts imposing moral obligations, arguably in favour of the male, upon the divorced women. In Poonam v Mahender Kumar (Criminal) 8854 Of 2009, the court ruled that the wife was not entitled to maintenance from her husband as she had voluntarily left the martial unit and not returned despite many requests. The courts hereby imposed a moral obligation upon women to stay in relationships and not ‘abandon’ their husbands or face penalisation. The Supreme Court said:

“You left the matrimonial home on your own, and now you want maintenance? Is this the law of the country what is the justification for your staying separately?”

This places the burden of proof on the woman to explain her choices for ending marriage, the standard being a very ambiguous “sufficient reason” which is not described by statute and was described by the judge as being “ill treatment”. There is no case law suggesting that this explanation is expected of men. This placed shackles firmly across the ankles of married women in India and is extremely biased to men by Western standards.

“Failure of the petitioner-wife to justify her decision to stay away from the respondent-husband and two kids shows that she had left society of the respondent on her own accord.”

This judgement implies that unless the male is “ill-treating” his female counter part, the male must initiate the end of relations or the female will face financial penalties, discarding the concept of reasonable maintenance to prevent hardship as in section 24. Hereby we see the court are not staying gender neutral, involving themselves in biased relationship dynamics and giving females an extremely restrictive passive role with marital relations.

Religion and divorce entwined

Creating objectivity

Religious groups of India are diverse; tensions between such communities have run high. As Holden (2010) notes, Hindus view marriage as a sacred promise between two people to stay together and uphold the religious values of the ‘Dharma’ (roughly translated as ‘the right way to live’), considering this, it is not difficult to see why the very concept of divorce can be treated with fierce opposition by religious groups.

The Uniform Civil Code of India is aimed at creating an objective code by which the courts must follow: secular in its nature and to be considered in any case when passing judgement; this disregards Muslim Law or the Indian Caste system and works

towards promoting a fair, blanket system for all citizens as opposed to different rules and considerations as per the group before the court.

"The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India."1 (Article 44, Uniform Civil Code)

Mahmood (1978) comments that that though the Uniform Civil Code is present, the courts merely are mindful of it and do not necessarily enforce it at all times in the interest of maintaining religious peace at a time of great political unrest. He writes:

"Article 44 does not require the state to enforce a uniform civil code abruptly; it rather gives a latitude for the introduction of such a code in stages...since the Muslims and other minorities were not 'prepared to accept and work social reform,' enactment of an all embracing civil code could be lawfully deferred."2

If this is to be accepted, it does suggest that though India is moving towards creating objective, unbiased laws that act independently of gender and religion that is very much entwines in the roles one creates for another, it still has a long way to go.

Removing the barriers of morality in divorce?

Section 13(B) Hindu Marriage Act stipulates a mandatory ‘cooling off’ period that starts from the day in which the petition for divorce is filled and is calculated until the day it is granted by the courts.

However Rakesh Harsukhbhai Parekh v State of Maharashtra may indicate a recent relaxation in the courts willingness to impose strict rules upon divorce. In such case the court scrapped the 6-month cooling off period using their powers under Article 142, in order to “do complete justice”.

However it was noted by the bench that this was an unusual case, perhaps a nod to future applicants that this kind of decision would be rare and due to the religious

nature of marriage:

“Marriage under the Hindu law is not considered a contract between two individuals. It is treated as a sacrosanct relation between two human beings, placing certain obligations and duties... No provision in Hindu law gives either

party to the marriage an automatic right of divorce.”

This case shows the slow improvements by the Indian courts in giving citizens more autonomy in marriage, whilst it may not necessarily be a triumph for women in particular, it certainly is for marriage in general as it shows the courts are imposing their morality upon applicants less. Religion still entering the judgements of the bench despite the Civil Code but as mentioned by Mahmood (1978), this is often enforced ‘softly’ in the interest of maintaining religious peace in an already unstable state. It is perhaps wrong to legislate before one educates; Menski (2013) reminds us that India is culturally different from the West. Before imposing legislation that offends such culture, this very culture and the attitudes towards women must be changed. The imposition on the majority of rules made by the minority, which are consequently ill- received, led to the failure of the British Empire in India and is a figurative reminder of the need for cooperative change, see Synge (2006).

Whilst statute, particularly Section 24 of the Hindu Marriage Act details a gender- neutral law, case law has shown that biased morality is strictly imposed upon a woman and breach of this will be penalised when considering post divorce finances. Religious and cultural differences remain a prime consideration of the judiciary and perhaps this is an indication to the authorities that culture must be changed before the law and not by the law.


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