When Wife is not entitled to claim Maintenance from husband? पत्नी भरण-पोषण का दावा कब नहीं कर सकती ? I کب بیوی کفالت کا دعوی نہیں کر سکتی

The term maintenance is mostly associated with the financial support given to a wife, which she can claim from her husband after divorce or during the existence of marriage, and if the financial support given to her is not sufficient, and if she not having any source of income personally, and if her husband has abandoned her without any sufficient reason.

    Under Section 125 of the Criminal Procedure Code , Section 125(4) states that "No wife shall be entitled to receive an allowance from her husband , if she is living in Adultery or if without any sufficient reasons she refuses to live with her husband , or if they are living separately by mutual consent". 

The following are grounds where wife is not entitled to get any maintenance from her husband:-

👩When wife is living in Adultery

👩When wife living separately without sufficient cause

👩When wife is high/professionally qualified and capable to earn

👩When income of wife is more than husband

👩When both husband and wife are living separately by mutual consent

 

When wife is living in Adultery:

Adultery refers to the voluntary sexual intercourse between a married person and someone other than their lawful spouse. 

It is a matrimonial offense and a ground of divorce; hence if of adultery are proved against the wife then she is not entitled to get maintenance from her husband. 

In the matter of Sanjivini Ramchandra Kondalkar Versus Ramchandra Bhimrao Kondalkar & another, Bombay High Court on 18.12.2019 held that , "if of adultery are proved against the wife in a marriage then she is not entitled to maintenance , and she is entitled to claim maintenance only if she is able to prove that all the whole of adultery are wrong". 

 

When wife living separately without sufficient cause:

If the wife is living separately from her husband without any reason, she is not entitled to maintenance. 

The Supreme Court of India, in Rohtash Singh v. Smt. Ramendri and another, 2000(2) RCR (Criminal) 286, held that, "if the marriage is sustained, the wife shall have a legal and moral obligation to live with her husband." and to fulfill the marital obligations. She cannot, without sufficient cause, refuse to live with her husband and claim maintenance from her husband."

In the case of Mrs. Teja Bai Vs. Chhido Armo, the Madhya Pradesh High Court held on 24.06.2019 that, "If the wife is living separately without any sufficient reason, she is not entitled to maintenance".

 

When the wife is highly/professionally qualified and able to earn:

A deserving wife who has the capacity and ability to earn, but is willing to remain idle, is not entitled to claim any maintenance from her husband. 

Further, if the wife is equally capable of working and maintaining herself, she is not entitled to claim maintenance from her husband.

The Calcutta High Court in Smt. Swastik Sen v. Promit Sen et al., (2004) DMC66 held that, "Maintenance allowance cannot be given to every wife who is neglected by her husband or whose husband refuses to maintain her." , but can only be given to a wife who is in fact unable to maintain herself."

In another case of Sanjay Bhardwaj & Ors vs State & Ors, the Delhi High Court on 27.08.2010 observed that, "No law provides that a husband has to live separately from his wife, regardless of the fact that regardless of whether he earns or not. The Court cannot ask the husband to beg, borrow or steal, but to maintain the wife, especially when the husband and the wife are of almost equally ability and almost equally capable of earning and both must have claimed to be gainfully employed before marriage.

 

When the income of the wife exceeds that of the husband:

If the wife is earning more than the husband, she is not entitled to claim maintenance from her husband. 

The Supreme Court of India in Rosie Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 that, "If the wife is in a better position than the husband who is not earning well in his profession and has no land, it is unnecessary to give any maintenance to the wife." 

Supreme Court of India, in another case of Bhagwan Dutt Vs Smt. Kamala Devi et al., (1975) 2 SSC 386 stated that, “While determining the amount of maintenance payable to a wife, her income should be taken into account. A neglected wife is not an absolute right to receive maintenance.” Nor is it the absolute obligation of the husband to accompany her in all circumstances."

 

When both the husband and wife are living separately by mutual consent:

If there is an agreement between husband and wife that they will live separately and she will not claim maintenance from her husband, then after entering into mutual agreement, the wife cannot claim any maintenance from her husband.

 

Grounds for refusal of maintenance under Hindu laws:

👉A wife is not entitled to maintenance from her husband if he has converted to another religion during marriage or after divorce. 

👉If the wife has remarried after divorce, the husband is not liable to pay maintenance.

 

Grounds of deny maintenance under the Muslim Laws:

➣A wife is not entitled to get maintenance if she has not attained puberty.

➣The husband is not liable to pay maintenance, if wife has eloped with some other man and leaves her husband for that man.

➣A disobedient wife is not entitled to get maintenance from her husband.