Showing posts with label alimony. Show all posts
Showing posts with label alimony. Show all posts

02 October 2020

Husband is duty bound to maintain his dependants, regardless of his job and income

Insofar as the plea of the petitioner that he has no means to pay maintenance is concerned, it would be relevant to refer to the decision of the Hon'ble Supreme Court in Sumitra Devi vs Bhikan Choudhary, reported in [1985] 1 SCC 637, wherein, it has been held as follows:
“4.Now that the matter is going back to the original Court we think it appropriate to bring it to the notice of the learned Magistrate that under Section 125 of the CrPC even an illegitimate minor child is entitled to maintenance.
Husband is duty bound to maintain his dependants, regardless of his job and income

    Even if the fact of marriage is discarded, the minor child being found to be an illegitimate daughter of the respondent would be entitled to maintenance.”[Para no.13]


    The Hon'ble Supreme Court in Bakulbhai and another vs Gangaram & another, reported in 1988 SCC (1) 537 has held that even an illegitimate child is entitled for maintenance and the relevant portion of the judgment reads as follows:
“The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision. No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate. (See Pathumma and another v. Mahammad, [1986] 2 SCC 585). Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child. If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of s. 16(1) of the Hindu Marriage Act, 1955, which reads as follows:
"16(1). Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act."

30 May 2020

Agreement by wife for relinquishment of her right to claim maintenance is not enforceable even if voluntarily entered by her

Divorce by mutual consent - Wife agreed not to claim any maintenance including Streedhan, husband assured to continued marrital relationship and maintain her- Husband and wife continued their marrital relationship inspite of paper decree of divorce - After some years husband discontinued this relationship and not made any arrangement for maintenance of wife who has been divorced by him - Wife claimed maintenance u/s.125 of CrPC - Husband's defence that she had given up her claim for maintenance, when the decree for divorce by mutual consent was passed; and she has income source as she is running a beauty parlour.

Held:

   A woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.[Para No.20]

18 May 2020

Qualification of wife and capacity to earn cannot be a ground to deny maintenance to wife who is dependent and does not have any source of income

Factors be considered in fixing the quantum of maintainable.

   It is also well settled principal of law that while granting the maintenance, following factors should be taken into consideration :
  • (I) Income, property and capability of earning of both the parties.
  • (ii) Living standard and need of the parties keeping in mind the principle that wife is entitled to get an amount of maintenance which will enable her to maintain almost the same standard of living to which she was entitled if she would have lived in the house of her husband. 
Qualification-and-capacity-to-earn-not-ground-to-deny-maintenance-to-defendant-wife
  • (iii) Qualification of the wife and capacity to earn cannot be a ground to deny maintenance to a wife who is dependent and does not have any source of income. Whether Appellant is capable of earning or whether she is actually earning are two different requirements. Merely because Appellant is capable of earning is not sufficient reason to reduce the maintenance awarded by the Family Court.[Para No.12] 

03 May 2020

Family Court has jurisdiction to award permanent alimony to Muslim wife while granting the decree of divorce in her favor

The point to be stressed is that the relief of maintenance whether to the wife or the children is incidental to the relief of 'dissolution of marriage'. Merely because 'The Dissolution of Muslim Marriages Act, 1939', does not mention that the Court is also having the jurisdiction or power to grant such relief, it cannot be said that the Court is not having the jurisdiction to grant it, if it is incidental, claimed and the Court finds it necessary to grant the same. Moreover, the right of maintenance given to wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father.
The law expects that the parties should not be driven to approach the different forums but in one forum itself they should be granted whatever reliefs to which they are entitled.[Para No.56]
   
The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage. In other words, the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding.[Para No.79]

permanent-alimony-to-Muslim-wife
   The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much an integral part of the decree of 'dissolution of marriage'. The Law contemplates that the husband has two separate and distinct obligations; (I) to make "reasonable and fair provision" for his divorcee wife and (ii) to provide "maintenance" for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.
   The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.
   When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.[Para No.80]

Gujarat High Court

Tarif Rashidbhai Qureshi
Vs.
Asmabanu Alimohmmad Idarbhai Qureshi

Decides on 19/03/2020



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