Your Q, His A: Rajeev K Luthra

A) I want the marriage to continue, but with precautionary conditions like my wife should stop her aggressive/abusive behaviour. Can I do so?

Manz P Pattel

UNDER the presumption that you and your wife are Hindus the provisions of the Hindu Marriage Act, 1955 (‘‘Marriage Act’’) would be applicable. Ordinarily, a Hindu wife is required to live with her husband under the same roof and protection of her husband as has been held in a large number of cases. It is obligatory for the couple to stay with each other after marriage. Any attempt on your part to stop your wife from entering into the house may entitle her to move a petition for restitution of conjugal rights, which in other words would mean resumption of marital cohabitation.

As regards your imposing conditions on your wife’s entry into the house, it is unlikely that any court would come to your aid even by way of granting an injunction order, restraining her from aggressive/abusive behaviour. However, if despite your requests, she does not stop her aggressive/abusive behaviour, you shall have the remedy under the law i.e. filing a petition for divorce or judicial separation.

B) As she has left on her own accord, will I be liable for paying maintenance charges and what amount? She is a trained beautician and has her own business.

ACCORDING to the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956 (‘‘Maintenance Act’’) a Hindu wife is entitled to be maintained by her husband during her lifetime. She shall be entitled to live separately from her husband without forfeiting her claim to maintenance on interalia the following grounds; if the husband is guilty of desertion i.e. he abandons his wife without reasonable cause, if he has treated her with cruelty, or has another wife or if there is any other cause justifying her living separately. However, if she is unchaste or has converted to another religion, she shall not be entitled to a separate residence and maintenance from her husband. Under Section 23 of the Maintenance Act, the court has the discretion to determine whether any and if so what, maintenance shall be awarded to the claimant.

In determining the amount of maintenance the factors that will be considered would, interalia, be the position and status of the parties, reasonable wants of the claimant, and whether her staying separately is justifiable. No rigid formula is prescribed with regard to the quantum of maintenance. Also under the provisions of the Marriage Act the court is authorized to grant maintenance to the wife if she makes a petition to that effect. Such a petition maybe made at the time of filing any petition within the ambit of the Marriage Act. Capacity of a wife might be a relevant factor in certain cases and not the sole criterion so as to negate her claim of maintenance. It is only where the wife has sufficient source of income that she is not entitled to get maintenance. Further under Section 125 of Criminal Procedure Code, 1973, a wife shall be entitled to receive an allowance from her husband if he neglects to maintain or refuses to maintain her.

C) If my wife applies for divorce can I say, ‘‘I do not want divorce’’.

DIVORCE can be filed only on certain grounds as provided under Section 13 of the Marriage Act. Your statement ‘‘I do not want divorce’’ shall not be a legal ground to deny your wife the divorce. You will have to establish that the allegations in the petition do not satisfy the grounds for divorce under the Act and/or they are not duly proved.