7 min readJan 18, 2025 12:07 PM IST
First published on: Jan 18, 2025 at 12:06 PM IST
Written by Yashaswini Basu
Amidst the cacophony over the alleged gender bias in our laws in matters of maintenance and alimony, the recent Supreme Court judgment by the bench of Chief Justice Sanjiv Khanna and Justice Sanjay Kumar punctuates why a positive affirmation towards safeguarding the rights of a woman in the course of matrimonial disputes continues to be an exigent need. Last week, the apex court mandated that an estranged wife is entitled to maintenance even when she refuses to cohabit with her husband. This is indeed a watershed moment that reminds us why the provision of maintenance became a matter of legal right in the first place.
What happened in the current case?
Hearing an appeal against a judgment of the Jharkhand High Court, which overturned an order of a family court in Ranchi awarding maintenance to an estranged wife, the Supreme Court was assessing the question of whether the non-adherence of a wife to an order restituting conjugal rights absolves the husband from his obligation to pay maintenance. In this case, Reena had been living separately from her husband since 2015 and in 2017, Dinesh, her husband, obtained an order on restitution of conjugal rights under section 9 of the Hindu Marriage Act (1955). Despite the order, Reena refused to return to her husband’s house and in fact, the next year secured an order of maintenance from Dinesh. In 2019, Dinesh approached the High Court challenging this order. It held that since Reena did not comply with the restitution order of her own accord, she would not be entitled to maintenance. The case before the Supreme Court was an appeal against the High Court order.
Before we weigh in on why the Supreme Court deemed it fit to dismiss the High Court’s judgment, there are a few other facts to bear in mind. Reena’s contention in the proceedings before the family court revealed that Dinesh’s family had persistently demanded dowry from her and further, she was denied basic dignities like access to a washroom within the house or permission to use LPG gas cylinders. She was forced to use a wooden hearth. Moreover, she had suffered a miscarriage during which, let alone contributing to the expenses of her treatment, Dinesh did not even visit her.
The Supreme Court, upon delving into the detailed chronology of events, reinstated Reena’s right to maintenance from Dinesh, irrespective of her compliance with the restitution order. This judgment emphasised why the maintenance law in India holds the interest of a woman high and why a nuanced approach while adjudicating maintenance cases is not a mark of any gender bias but a reflection of the glaring reality of uncountable Indian women’s everyday travails.
What does the Indian law say about maintenance?
Maintenance is envisaged in India as the means of sustenance for those who are socially and economically disadvantaged. It puts the responsibility on the kin with “sufficient means” to enable them access to those means. At the very outset, it needs to be clarified that no maintenance law, either the erstwhile Code of Criminal Procedure (CrPC) or Bharatiya Nagarik Suraksha Sanhita (BNSS), or the HMA lays down any limitation based on gender. While section 125 of CrPC (now 144 of BNSS) extends the eligibility of claim to maintenance to wife (including long-time live-in partner), parents and children, HMA includes both wife and husband within the aegis of who can seek maintenance. The qualifying factor here is that the party seeking maintenance must be able to prove that they are unable to “maintain themselves” and the party being ordained to maintain has the “sufficient means”.
The legal principle behind the law on maintenance is not to punish the husband but to protect the wife from destitution and deprivation on account of a breakdown of marriage. The social fabric of Indian marriages is woven around patrilineal values where women generally move into the husband’s house and are given homemaking and care-giving roles. Not only does this place her in a vulnerable environment but also, by and large, deprives her of financial security. Maintenance laws are thus set in place to impart this security and prevent her from being compelled to endure ill-treatment due.
The hue and cry around weaponising maintenance provisions is a misdiagnosis. Maintenance laws come with adequate safeguards. As in the current case, sub-clause 4 of section 125 of CRPC states a wife’s entitlement to maintenance is limited if she lives in adultery or without any sufficient reasons deserts her husband or is separated upon mutual consent. So, the burden of proof still lies on the woman. The order of restitution of conjugal rights against Reena was passed without her consent. So, it took her to the Supreme establish evidence regarding Dinesh’s absence during her miscarriage, and her lack of access to basic facilities at her matrimonial home before the Supreme Court to rescind the order denying her maintenance.
The statute, as well as several Supreme Court orders, have clarified that the judicial order to resume conjugal rights does not disqualify a wife’s right to maintenance. If the wife establishes the reasons behind her refusal to cohabit with her husband in defiance of the order, she will remain entitled to a claim of maintenance. The Supreme Court also stated that there is no blanket rule in this regard and will vary accordingly depending on the facts emerging out of different cases.
Why is this order important?
While abuse of the laws is an unfortunate reality, the tilt in favour of women in maintenance law, if any, resonates with the gnawing need for succour from women silently suffering physical and mental abuse in marriages. This order is a timely reminder of why maintenance as a legal obligation upon the one with sufficient means exists.
While the letter of the law does not provide any gendered prescription, let’s look at some facts from the ground. Only 32.8 per cent of women participate in the workforce, with 45 per cent of those leaving the workforce citing household chores and caregiving as the reason. With domestic labour not being monetised, most of the women in India toil every day to have homes running without having any savings of their own. More than one-third of married women are subjected to some form of domestic violence in India. Court records highlight that reported cases are but a minuscule percentage of that figure, implying low reporting.
Redressal processes are far from easy, let alone favourable for women, and this order becomes crucial for more than one reason. Not only does it validate a woman’s refusal to return to a toxic home out of fear of losing her means of sustenance but also recognises that the order of restitution of conjugal rights can be used to escape the obligation to maintain one’s wife.
The writer is outreach lead at Nyaaya, an initiative of Vidhi Centre For Legal Policy
While abuse of the laws is an unfortunate reality, the tilt in favour of women in maintenance law, if any, resonates with the gnawing need for succour from women silently suffering physical and mental abuse in marriages. (Express File) 
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