Do a Self Made wife apply for Alimony? Learn about maintenance laws in India & how to avoid maintenance to wife in India.

These Women Are Not Entitled For Maintenance

(Disqualifications For Maintenance To Wife)

People looking for judgments and information on “No Maintenance to Wife” or “how to avoid maintenance for wife in India” forget one primary reason for having maintenance Provisions in law. The provision of maintenance wives in various matrimonial and other acts is a benevolent provision made to stave off vagrancy and destitution amongst a large part of the population. However, with time, these maintenance cases have become a tool of extortion in the hands of evil women. I had previously written an article about how multiple maintenance provisions are a paradise for Indian (Hindu) women. Thankfully, the legislature, in its wisdom, has also provided some safeguards which disentitle unscrupulous women from claiming maintenance.

One has to understand that broadly below factors work for granting maintenance to wife  or a way to avoid maintenance for wife in india:

• The woman shall be a lawful or divorced wife who has not remarried.
• She should have valid reasons to stay away or seek maintenance.
• The husband must neglect, refuse or make inadequate provision for her maintenance.
• Any maintenance granted can be varied or rescinded by courts if there is a change in circumstances.
• The rights terminate on the marriage of a divorced woman.

Based on the above understanding, the following class of women are not entitled to claim maintenance or a way to avoid maintenance for their wives in India. Of course, this list must include women with sufficient income to maintain themselves.

A woman who is living in Adultery:  As per sub-section 4 of CrPC 125, No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery. This means the wife loses the right to claim maintenance from the husband, in spite of the fact that she has sufficient income to maintain herself if she is living in adultery. However, living in adultery can not be equated with solitary or sporadic instances of adultery. Living in adultery is a continuous course of adulterous conduct. Bombay and Guwahati High Courts have held that the term “living in adultery” shows the use of present tense, and S. 125(4) conveys present continuous tense. Whereas Madras and other High Courts held that proving that the wife was living in a quasi-permanent union with a man with whom she was committing adultery shortly before or after the presentation of the maintenance petition would disentitle her from maintenance. This section also holds good when, after obtaining the maintenance award of the decree of divorce, the woman starts living in adultery; the award of maintenance can be cancelled on presentation of any such poof. Living in adultery is a valid clause to avoid maintenance for a wife in India.

A woman who contracts a Second Marriage: This seems logical corollary to the above; a woman who contracts a second marriage forfeits her right to maintenance. If the woman agrees to a second marriage, then the husband from the first marriage can avoid the maintenance of her wife in India. If contracted while in the existence of the first marriage, it can be considered continuous adultery. And if the woman is educated, then there is no alimony to the educated wife as she can maintain herself.

A woman who has willfully refused to live with the husband: Desertion sans reason and willful refusal of a woman to stay with the husband would mean that the wife shall not get any maintenance. However, desertion and deliberate refusal to live with the husband must be proved. The courts have held instances like the wife pressurizing husband to live with her parents, the wife staying with her parents to take care of their cultivation land, the wife’s refusal to live with her parents-in-law, the wife putting unnecessary conditions or creating futile or subterfuge pretences to stay away from husband enough reasons to deny maintenance to such women.

Woman against whom Decree of Restitution has been passed:  This is a result of the above; a decree of restitution of conjugal rights is proof of the wife’s withdrawal without a reasonable excuse and would be considered a willful refusal to live with the husband. However, courts are divided on whether an ex-parte decree of Restitution of Conjugal Rights is enough. The courts then look at the wife’s conduct in such cases, whether she was served notice or challenged the decree. The courts also look at a husband’sHusband’s conduct after the passing of the decree. If the husband, despite getting a decree in his favour, does not allow the wife to reside with him despite her efforts, he would still have to pay maintenance. Maintenance needs to be given to the wife.

A woman whose maintenance has been cancelled by a competent Civil Court: As per the existing legal position, a magistrate must follow the judgment of a skilled civil court specifically on the point of maintenance. That means even if the civil court order has been obtained subsequently to a criminal court passing an order, the magistrate must cancel or vary the maintenance order u/s CrPC 125. However, one has to understand that order u/s 24HMA is not considered as it is Maintenance Pendente Lite only. Only final orders of the civil court are counted. The civil court final orders u/s 25HMA, HAMA, etc, are to be counted. If a woman gets divorced sans alimony, the magistrate order can be challenged, as it would be sine qua non that the wife had no reason to stay away from her husband or her conduct was such that she is not entitled to maintenance. This legal position has been created explicitly to avoid proving the same grounds in two different courts.

Where a woman is staying away from Mutual Consent or has foregone maintenance:  Though owing to recent judicial pronouncements, there is some doubt on this ground. However, the consensus is that where the wife has voluntarily relinquished her right to claim maintenance by either receiving lumpsum maintenance or otherwise, she may not claim the maintenance later. This said, as an agreement to surrender the right of maintenance is against public policy and hence void, notwithstanding her relinquishment, if she cannot maintain herself due to a change in circumstances, she can litigate the claim of maintenance again. But in such circumstances, the court insists on drastic change in circumstances.

Where divorce was granted against a woman on her fault: Though a divorced wife is eligible to claim maintenance even where initially she lives apart from her husband without cause, the guilt or fault of the woman hinges heavily on the quantum of maintenance which the courts grant. Under Section 25 of HMA, the parties’ conduct is one of the deciding factors when deciding permanent alimony in the courts. There are numerous decisions by High Courts where a woman was divorced on the grounds of Adultery, Cruelty and Desertion, where courts have either refused or granted minimal maintenance to the wife.

No alimony to educated wife: In the recent judgment of the Hon’ble Delhi High Court of Mamta Jaiswal, it was said that there was no alimony to the educated wife as no wife should use her husband to extort money from him.

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