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Article Published in the Express Magazine Dated
September 08, 2002
General Attorney : Rajiv K. Luthra
My wife threatened to commit suicide if I
stopped her from going to her parents' house. She
left five months ago with my 6-year-old son. No
divorce or separation case has been filed as yet.
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 may be 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 negative her claim of
maintenance. It is only where 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.
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