Financial Rights of Husband during Divorce

Right of the wife to maintenance is well established and society is generally aware of the fact that a wife has the right to claim maintenance from her husband during separation or after divorce, but what we are mostly unaware of is the husband’s right to maintenance. According to law both spouses are entitled to the right of maintenance, in husband’s case some conditions are required to be fulfilled.

Legal provisions: 

Hindu Marriage Act, 1955 provides for the husband’s right to maintenance from the wife. Following provisions deal with the maintenance provided during and after divorce-

• Section 24- provides that a “deserving man” who does not have sufficient means to provide for himself and does not have the sufficient income to deal with the proceedings has the right to claim Pendente Lite and expenses for the proceedings from his wife.  
• Section 25- provides for permanent alimony and maintenance to the husband. Keeping in mind the wife’s income and financial conditions, this section provides for a gross sum to be paid to the husband for his lifetime. The Court can make changes in the judgment if some changes in the condition of the parties have occurred with time.

Types of Maintenance- 

Under Sections 24 nad 25 of the Hindu Marriage Act, 1955, two kinds of maintenance are provided-

Maintenance Pendente Lite and maintenance for proceedings–

• If during the proceedings of the Court it is observed by the Court that one of the parties, either the wife or the husband is unable to pay for the proceedings of the Court, then on the application of such party (say party A), court can order the other party to pay for the finances of the proceedings for such party(i.e. Party A).
• Thus, under this Section, if the husband has insufficient means to pay for the proceedings of divorce, then he can apply for maintenance to be paid from his wife, however if he has sufficient income and is capable enough, he can’t apply for maintenance under this Act.
• Such application for maintenance shall be disposed of within 60 days.
• The maintenance can be paid from the date from which such application was filed, or the decision by the Court has been taken, or from the date the notice to the other party was sent.
• Under this Section, the burden of proof would lie on the husband, who has filed for maintenance, to prove his incapability. In the Case of Kanchana v Kamlendra, 1993 it was held that the husband is neither mentally ill or physically unable, only because his business was closed down, he can’t be considered to be unable to pay for the proceedings.

Permanent Alimony and Maintenance-

• Under Section 25, the Court allows for a fixed amount to be paid as alimony either on a monthly basis or during a fixed period of time. Such maintenance could be provided to the wife or to the husband, for a time period not exceeding the applicant’s lifetime.
• While deciding such an application, the court has to observe the income and other property of both the parties.
• Thus, the important points to be noticed under this Section are as follows-

• The amount to be paid as maintenance shall be a gross amount and shall be paid on a monthly basis or on a fixed interval of time.
• Shall be paid for the claimant’s lifetime.
• It depends on the judgment of the Court as to what amount shall be paid, the Court while making such a decision should also observe the financial status of both the parties.
• If there is a change in the situation of either partie\s,the court may revoke, change such decision any time it deems fit.
• If the claimant has remarried or has been found guilty of adultery, the court can revoke such decision for maintenance.
• Such an award regarding the maintenance can be appealed to the higher court.

In case of an agreement between the parties-

• If the court deems fit, it can still grant a decree to maintenance, even if the parties have filed for divorce with mutual consent under Section 13B of the Act, the court can still grant maintenance to the party the Court deems as necessary.

Maintenance- Quantum:

There are some factors based on which the Court decides the amount of alimony to be paid to the parties-

• Status of the Parties- the Court decides the amount of maintenance to be paid to the claimant based on the financial as well as social status of the parties.
• Also the capability of the parties are also taken into concern by the court
• Claims and needs of the Husband- the claims of the husband regarding maintenance shall be reasonable also the needs of the husband shall also be appropriate in nature, otherwise the application for maintenance shall be dismissed by the court
• The Court also keeps in consideration the income of the wife so as no extra burden has been put on the wife.
• Financial situation of the husband- the Court also considers the income as well as other properties of the husband, and if found enough then in such case the court will not allow for the application for the maintenance by the husband.

Some cases related to the husband’s right to maintenance- 

• In Kamelandra Sawarkar v Kamelendra (AIR1992), the court decided that the husband cannot completely depend upon the income of the wife and if he can work and earn income, then providing income in such a case will only promote idleness.
• Nivya VM v ShivPrasad (2017), Kerala High Court  held that providing a husband with maintenance when he can earn it on his own will only promote idleness, to apply for maintenance he has to prove that he is completely incapable of earning.

In the Case of Yashpal Singh thakur v Anjana Rajput (2001 MP), the Court held that a person who voluntarily incapacitates himself is not entitled to income, thus a husband who can earn but is not making money is not ewntitled to maintenance.