MAINTENANCE – WHETHER A RIGHT OF A WOMAN ?

Maintenance is the uncanny duty of a husband and but is it  right of a wife? In modern times, when there are perverted meanings available in our psyche, do we really understand the core meaning of it? Let us delve into the discussion and find out a reasonable answer. Generally, in a matrimonial setup, maintenance comprise of necessities like food, shelter etc. Is the right to avail these necessaries is higher, or the duty to provide it is more important? To understand, we have to see it retrospectively and not prospectively. We have to examine our ancient customs which gave this duty to husband and subsequent right to wife. Also with due regard to the law we have to establish its legality in the light of those customs. It is only a custom, in personal law, which is given approval by the statute and then it forms the law. Before adverting to ‘maintenance’ we should understand ‘duty’. Like, for example, Govt. owes its duty to protect the rights of the citizens. Such a duty has been entrusted by the Constitution of India on the Sovereigns. These rights have been enshrined in the same Constitution and have been remarked as sacrosanct. Such a right, like “right to life” under Art.21, has been declared a fundamental right, which could not be curtailed even in situations of war. Any statutory authority could not take away any fundamental right of any citizen even in exercise of its sovereign powers. It was observed in many leading cases that Art.21 extends not only to citizen but to person, generally. Which means, a person who is not a citizen of India, also has been entitled several rights. However Art.14 “equality” was considered to be available only for a citizen. Hence an inference could be drawn from Constitution of India when we arrive at the juncture to decide the duty of the sovereign and subsequent rights of a person, may that be under civil or criminal law. In any case, it’s the constitution on which we would instil our trust to provide the guiding principle of ‘duty of reasonable care’ when it comes to civil or criminal cases. Hence we can deduce that duty is a variable term as per the law and area concerned. With this example we understood that duty is on a higher pedestal as compared to the right, as right is variable depending on the person who demands it. If we examine it in the light of a matrimonial setup, we could say that the duty owed by a husband towards his dependents is more important than the right of the dependent. A person may or may not demand his/her right but duty could not be avoided. A child, who does not speak, may not demand food but a father is duty bound to provide it. A man is duty bound towards his dependents. He has been regarded as the head of his family. This regard has not been founded as per the Constitution of India but entrusted to a man by the holy books. May that be for that matter a Hindu, Muslim, Christian or belonging to any other faith or religion.  He is duty bound to give necessaries like food, shelter etc. for the daily life, as are required by the dependent. The word “dependent” includes those who are morally but may be not legally, relying on the man. Hence it could fairly be said that a man owes a ‘duty of reasonable care’ towards his dependents as per our holy books. But why is it so? Can a reasonable inference be drawn other from any source other than the holy books for such ‘duty of reasonable care’? To answer this question we have to divert our discussion towards ancient times i.e., in stone-age, when human used to live in the caves. Men being physically more stronger than women, children or old age parents were designated the task to bring food to his family. He was entrusted to protect his dependents from possible threats. It is irrelevant here to go into further details about, which the dependents are, as we are only dealing with limited number of dependents namely, parents, wife and children. It is thus expedient to say that man owes ‘duty of reasonable care’ towards his dependents not for the only reason that he has been roped by the holy books but he is also bound by the customary practice as being followed since immemorial times. The duty that arises towards different dependents would certainly be different. Still there arise fundamental requirements for a livelihood which are common. Every dependent would require shelter and food as their fundamental requirement. There may well be other requirements which are peculiar to one dependent which are not required for other and vice versa. Like for instance, a wife may demand a make-up kit however a child of tender age do not require it. So it can be fairly said, that ‘duty of reasonable care’ arises in peculiarity with every dependent. Can it be said that the case of a wife is a special one? I think ‘Yes’. It is to be understood in the light of the customs in which we live. A girl leaving all her blood relations behind, joins the company of a stranger and instil her trust on him. She joins him with full faith and as per the rituals and the recitals of the holy books. Similar is the pedestal of a man, who takes this stranger girl, with a faith of allowing a person with positive notion, to join his family. Such bonding has been regarded as ‘sacrosanct’ and the ceremony a ‘sacrament’. Hence we can say that ‘duty of reasonable care’ by husband towards his wife exists to a more sensible level as compared to other relations. In the light of above discussion it is clear that duty arises to a restricted level of magnitude with due respect to the relation that exists between two parties as recognized by the law or as per the ancient customs for that matter. We are now clear, what is ‘duty’ and towards whom and how it has to be performed. Hence, if we try to formulate a simple definition of ‘duty’, then, it would be, “An obligation of a person towards the other, as laid by the rule of law, which is recognized by the statute, for the welfare of the other. This obligation is enforced not necessarily by the law but also by the morality of the society and failing of which sanctions may follow”. And in the light of this definition we can deduce that ‘duty of reasonable care’ raises the term maintenance. Maintenance when seen generally is the nurturing of one by the aid of the other. This aid extended by the other may be courteous, conditional or restrictive with regard to the relation in hand. For example, a man may nurture his child to an extent where he would provide all the necessaries whatever may be required for the child’s livelihood which not only includes shelter and food but also studies etc. In this relation, man does not expect any participation by the child in any form. But for the relation of the husband and wife, husband would extend everything she requires to spend a dignified and happy life. And here, he would expect her to share the responsibilities. At this juncture it would be wise to raise the question that when a man owes ‘duty of reasonable care’ towards his wife, is the wife also under similar or say equilateral duty? The answer is uncontested ‘YES’. Hence the maintenance of wife by a husband is a conditional phenomenon which is interdependent on the cooperation by either of them. Any change in circumstances may alter the magnitude of involvement and care by either. In conclusion, we can fairly say that if the husband owes an unconditional duty, the wife also owes responsibilities. Undoubtedly, when duty of the husband, has been raised naturally, as per the discussion hereinabove and has stayed unaltered since immemorial times, the responsibilities owed by the wife should also stay unaltered. In ancient times when the wife was served with necessaries by her husband, she in return undertook all proportionate responsibilities of the husband. However, in modern times, when the meaning of responsibility has altered, the meaning of maintenance should also change. A wife, who unconditionally adheres to the duties, as owed by her in ancient times, is entitled for maintenance as circumscribed in various provisions of law. However, if she, with dishonest intention, attempts to escape from the responsibilities, must not be entitled to be maintained. Any unscrupulous act by either of the spouse should entitle the other for fair enforcement of rights. If a wife, with all her dedication, adheres to her responsibilities but the husband with wilful and dishonest intention creates impediment in her life, then she should be entitled for maintenance and safety. However if the situation is reciprocal then wife do not deserve any right of maintenance and should be disowned by the husband and accorded by the law. If an innocent and decent wife is turned out of the matrimonial home and there is no recourse like maintenance etc., all unscrupulous men would start fulfilling their lust by performing marriages on day today basis. Consequences of divorce in case of innocent wife should be in deterrent form including maintenance, separate shelter for wife and punishment for husband etc. However when for ulterior motives a wife in connivance with her parents harass her husband, he should be entitled to save himself and consequently such wives should be ordered to pay maintenance allowance to aggrieved husband in similar proportions as does a husband in former case. If there are special laws available to provide maintenance for aggrieved wives, why there is no special provision for husband to get rid of an unscrupulous wife? With such effects, I wish and hope that we could develop a better world which marches towards peace and harmony. The matrimonial life could again delve into prosperity. The unscrupulous be washed away and the innocent shall survive.

(Written & Published on January 2014 By Mr. Samar Inam Khan at http://www.pathlegal.in/Maintenance-%E2%80%93-Whether-A-Right-of-a-Woman—blog-670)

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