Under S/18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife shall be entitled to be maintained by her husband during her lifetime

The Supreme Court judgment in the case of Ganesh v. Sudhirkumar Srivastava and Ors. (2019) continues to cause  apprehension about the right of a divorced women to get alimony. Justices Indu Malhotra and UU. Lalit held that it “was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or Stridhana but she could not have given up the rights which vest in the daughter (a minor) insofar as maintenance and other issues are concerned.”  Many jurists feel strongly that the very proposition that it would be acceptable for a woman to waive the right to her own maintenance goes against settled law and public policy.

It would be pertinent to mention that the parties to the case were married as per Hindu rites and had a minor daughter born out of the wedlock.  Due to irreconcilable differences, they agreed mutually and consented on certain terms for a divorce. The divorce agreement included, among other things, the withdrawal by the wife of criminal proceedings against the husband and the relinquishing her right to alimony and maintenance as well as the right to her daughter’s maintenance.  They got the divorce. However, the husband filed a Contempt Petition in the Bombay High Court as the criminal proceedings against him by the ex-wife were not withdrawn as per mutually agreed terms. The contempt petition having been dismissed by the High Court, the husband preferred an appeal to the Supreme Court. The apex court observed that if the parties had arrived at a settlement and decided to withdraw the cases filed by each of the parties against the other, the compromise ought to be effectuated in complete sense. The Supreme Court quashed the criminal proceedings but expressed reservation insofar as the divorce decree passed by the Family Court relinquishing the right of the minor child to get maintenance from the father even though the mother had agreed to relinquish the same. The Court observed that while it was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan, she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned.  Exercising the power under Article 142 of the Constitution, the apex court set-aside the said Clause of the Consent Terms.

The precise legal point and a matter of vital societal concern is that the approval given by the apex Court to the voluntary relinquishment of the statutory right to maintenance by a woman is in conflict with public policy and the principles well settled judicially.  In Rajesh R. Nair vs Meera Babu, (2013), a division bench of the Kerala High Court held that an agreement, by which the wife waived her right to claim maintenance, would be a void agreement it being against public policy.  Such an agreement would amount to ousting of jurisdiction of Magistrate and Family Court to entertain maintenance claim, which cannot be permitted by law.  The Bombay High Court in Ramchandra Laxman Kamble vs Shobha Ramchandra Kamble and Anr, (2016), while dealing with the right to maintenance under S/125 of the Criminal Procedure Code (Cr.P.C.), had held that even if the wife gave up or relinquished her right to claim maintenance, at any time in the future, it was opposed to public policy and therefore such an agreement, even if voluntarily entered into, would not be enforceable. Likewise, the Punjab and Haryana High Court in the matter of Ranjit Kaur vs Pavittar Singh (1992), held that the right of maintenance is a statutory right which the legislature has framed obliterating the cast or creed of the parties, and, therefore, distinct from the liability under any other law. If it is proved to the satisfaction of the Court that there is a refusal or neglect on the part of the husband to maintain his wife, children or parents, none of them can be deprived of the statutory protection of maintenance. Therefore, ‘the statutory right of a wife to maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.  Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision’. 

The right to maintenance, a substantive measure of social security, is enshrined in various statutes.  S/125 of the Cr.P.C. provides that “if any person, having sufficient means, neglects or refuses to maintain…. his wife, unable to maintain herself…a Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife’.  Further, ‘if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing. “Wife” includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried.”  More so, the Code of Criminal Procedure (Cr.P.C.) is based on unexceptionable principle and makes no distinction between caste, creed or religion.

Under the Hindu Marriage Act, 1955, an order for maintenance, interim or temporary, may be made by the Court under S/ 24 and for monthly maintenance and alimony under S/ 25.  Under S/18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife shall be entitled to be maintained by her husband during her life time.  Notably, a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance subject to laid down conditions under the law. Under S/20 of the Protection of Women from the Domestic Violence Act, 2005, the Magistrate has the power to grant fair, adequate and reasonable maintenance or monetary relief to not just the wife but every woman who has been in a relationship in the nature of marriage and has been the victim of domestic violence.  Under the Parsi Marriage Act,1869 and the Special Marriage Act,1954, a wife can seek maintenance from the husband on specified grounds.

The Muslim Women (Protection of Rights on Divorce) Act,1986 provides that the Muslim women be provided with fair and reasonable maintenance within the ‘iddat’ period by her former husband.  But in the famous Shahnaz Bano vs. Babbu Khan (1985), the Supreme Court held in their pathbreaking judgement that even in a case where the wife has surrendered her rights voluntarily, and if after waiving her right to maintenance, she becomes vagrant and destitute and is unable to maintain herself, then irrespective of her personal law, she would be entitled to avail statutory remedy for maintenance under S/125 of Cr.P.C. 

It is abundantly, and unambiguously clear from various judgments and the provisions of the personal laws and the overarching Cr.P.C that there can be no relinquishment of the statutory right to maintenance in the future.  A woman may choose not to take alimony or maintenance from her husband but there can be no relinquishment of the statutory right to maintenance in the future.

(Shamindra Kadian is a Delhi-based advocate and Devendra Singh Aswal ex-Additional Secretary, Lok Sabha and a legal scholar. The views expressed are personal.)