Above: Illustration by Anthony Lawrence

A case in the Punjab and Haryana High Court where the husband has pleaded that he will compensate his wife only in kind has evinced keen interest

By Vipin Pubby in Chandigarh

A recent study shows that India has one of the lowest divorce rates in the world, estimated at about 13 per 1,000 marriages or 1.3 percent. The figures are comforting considering that the data shows that Belarus tops with a 68 percent divorce rate while the Russian Federation and Sweden follow with 65 percent and 64 percent, respectively. The UK is also high on the divorce list at 53 percent while the US pegs it at 49 percent. The comparative low rate of divorce in India is attributed to several factors, among them being societal pressure, the institution of arranged marriages and close family ties.

What is, however, not so comforting is the fact that in terms of sheer volume, about 5,000 divorce cases are added in the country every day, with the number rising more rapidly in metros and other urban areas. According to data culled from the ministry of law, over seven lakh divorce cases were awaiting adjudication in various courts across the country at the end of December 2017.

Uttar Pradesh leads the list, being the most populous state in India. Kerala, which accounts for less than three percent of the country’s population, has more divorce cases pending than other states, such as Maharashtra, Bihar, West Bengal and Madhya Pradesh, as per the official figures.

Together with the increase in the number of divorce cases, the grant of alimony and maintenance allowance is also increasingly coming into focus. Since there are no set parameters, the amount of alimony and maintenance varies from case to case. A number of factors are taken into account like income of those concerned, their standard of living, net worth and an individual’s financial needs. The decision on alimony and maintenance eventually rests with the family courts and later on the higher judiciary.

It is in this context that a case that recently came up in the Punjab and Haryana High Court has caught the attention of not just the legal community but everyone else concerned with divorce and alimony. It relates to a couple from Rewari, in Haryana, in which the husband pleaded that he would not be able to give any financial support to his estranged wife but was willing to pay her in kind.

In his petition, he said that he was willing to give adequate quantity of rice, sugar, milk, wheat, etc, to enable her to live well. “Learned counsel for the petitioner has submitted that instead of making payment, the petitioner is ready to provide 20kg rice, 5kg sugar, 5kg different pulses, 15kg wheat and 5kg pure ghee per month; three wearing suits quarterly and two litre milk every day to the respondent,” as per the submission recorded by the High Court.

A bench headed by Justice Raj Shekhar Attri directed the husband to hand over all these items within three days to the estranged wife. The court added that the man requires to also clear arrears of maintenance and show up in the court on the next date of hearing to answer queries regarding previous employment, salaries, etc, instead of paying Rs 5,000 as maintenance, according to an order by a family court.

The two had got married in 2007 but the differences between the couple had resulted in the wife filing a number of cases, including of harassment and dowry against her husband and his family members. She had filed for divorce and the proceedings have been pending before a Bhiwani family court since 2016.

The husband had challenged the family court order, claiming he was unemployed and not in a condition to pay the maintenance amount in cash. The family court had directed the husband to pay Rs 5,000 per month to his estranged wife in May 2018. It had also imposed litigation charges of Rs 11,000 on the man while taking note of the wife’s contention that he was working for a private company at a salary of Rs 40,000 per month.

The husband, in turn, had claimed that the woman was “quarrelsome” and had left their home on her own. He further claimed that he had to look after himself, his two children, and elderly parents. He had subsequently moved the High Court with the plea that he had been unemployed since 2016 as the company for which he was working had shut down. Adjourning further hearing in the matter, the High Court directed the man “to clear the arrears of maintenance” and submit an affidavit before it.

Advocate Amardeep Sheoran, who is representing the husband, said that they had moved the High Court to seek revision of the maintenance allowance ordered by the family court since it was on the higher side. He said that since the husband was not in a position to pay the amount in cash, he had offered to look after his wife by providing her articles of necessity and daily use. He said the spirit behind the laws relating to maintenance was that the basic needs of the person concerned should be met. He said he would not like to comment at this juncture but wait for the response from the petitioner’s wife.

The wife had earlier taken the plea through her counsel that she was living with her parents and wanted restoration of matrimonial life. She claimed that her husband had not paid her anything despite the court orders last year.

According to legal experts, the compensation depends on the matrimonial laws specific to certain religions or specific civil laws like the Special Marriage Act, 1954, and Common Social Welfare Law.

As is well known, divorce is governed by different laws for different communities in India. Hindus, Sikhs, Buddhists and Jains are governed by the Hindu Marriage Act, 1955. The Dissolution of Muslim Marriage Act, 1939, governs divorce for Muslims and for Christians it is made possible by way of the Indian Divorce Act, 1869. Parsis can seek divorce under the Parsi Marriage and Divorce Act, 1936. Then there is a Special Marriage Act, 1954, for
inter-community marriages and divorces.

Under the Hindu Marriage Act, 1955, both husband and wife can seek divorce but it is usually the woman who gets maintenance from the husband. However, there have been cases where the court has ordered the wife to pay maintenance if the husband was handicapped or not able to earn.

The final outcome of this case will be watched with keen interest as it could set a precedence which could be quoted in similar cases of alimony.