December 12, 2020
Cursed be the man, the poorest wretch in life,
The crouching vassal, to the tyrant wife,
Who has no will but by her high permission;
Who has not sixpence but in her possession;
Who must to her his dear friend’s secret tell;
Who dreads a certain lecture worse than hell
Were such life had fallen to my part
I’d break her spirit or I would break her heart
Robert Burns (1759-1796) poet, Scotland in The Henpecked Husband.
Shylock, for the uninitiated, is the ruthless Jewish usurer (money-lender at very high interest) in William Shakespeare's The Merchant of Venice who demands a pound of his debtor's flesh as compensation for default upon a loan.
This topic-essay is provoked by a Delhi High Court and a Bombay High Court judgments holding that wife’s capacity to earn is no ground to deny maintenance. First the judgments concerned.
Merely because the wife is capable of earning cannot be a sufficient reason to reduce the maintenance awarded to her by the family court in a case of a matrimonial dispute, the Delhi High Court has held in a recent judgment.
Justice Manoj Kumar Ohri declined a plea by a man from Bengaluru against the award of Rs 50,000 per month as maintenance to the wife.
The man, who used to earn Rs 1.68 lakh per month, claimed his wife was an independent practicing advocate. But the wife, for her part, denied it, saying she was fully dependent on her parents for living, though she was qualified to be an advocate.
The court pointed out the issue, whether the wife can be denied maintenance only on account of the fact that she is capable of earning has come before the court earlier too where it has been held that ‘capable of earning’ and ‘actual earning’ are two different requirements.
"Merely because the wife is capable of earning was held not be a sufficient reason to reduce the maintenance awarded by the family court," the court said.
The court declined to interfere with the trial court's order, saying his admitted salary of Rs1.68 lakh per month has to be divided into three equal shares, keeping two parts for the petitioner and one for the respondent. Therefore, the award of Rs 50,000 per month as interim maintenance to her was "completely justified".
In the case, marriage was solemnised on September 15, 2018. The parties resided together at the matrimonial home at Bengaluru till about October 2018 when the wife left the matrimonial home. She sought Rs one lakh per month as maintenance.
The man questioned the validity of maintenance order, saying the court has overlooked the fact that his wife is enrolled as an advocate and, therefore, must be earning respectably.
In another similar case, Bombay High Court held that wife's capacity to earn is no ground to
Justice NJ Jamadar passed an order in early December, 2020 in response to a petition by a Pune resident, who challenged the February 7, 2019 order of the family court at Pune that ordered him to pay a monthly maintenance of Rs 15,000 to his ex-wife.
In 2016, the woman applied for maintenance, contending she had no source of livelihood and the man, though having resources, had not made any provision for her.
The earning potential or actual earning of a woman is insufficient to deny a claim of maintenance, the Bombay high court said while upholding a family court’s order granting alimony to a woman who runs a beauty parlour.
Justice Jamadar passed the order in response to a petition by a Pune resident, who challenged the February 7, 2019 order of the family court at Pune that ordered him to pay a monthly maintenance of Rs 15,000 to his ex-wife.
The marriage was solemnised in November 1997 and the couple had no children. The 52-year-old businessman claimed his wife suffered from psychological illness and the marriage couldn’t be consummated because of his wife’s mental condition, even after she was treated by a sexologist.
In April 2007, the couple applied for divorce by mutual consent and the family court in Pune dissolved the marriage by issuing a decree of divorce in October the same year. Four years later, the businessman remarried.
In 2016, the woman applied for maintenance, contending she had no source of livelihood and the man, though having resources, had not made any provision for her. The family court accepted her plea and ordered the man to pay her Rs 15,000 a month.
The businessman then approached the high court, challenging the family court’s order on the ground the lower court didn’t consider that his ex-wife was earning by running a beauty parlour.
Justice Jamadar accepted the husband’s contention and said that against the backdrop of material on record, the family court ought to have accepted the woman’s claim that she had no source of income “with a pinch of salt”.
The material on record suggested the woman was carrying on the business of running a beauty parlour.
“However, the fact that the wife carries on some business and earns some money is not the end of the matter,” said the judge, adding her earning potential or actual earning is insufficient to deny her claim of maintenance.
“In this era of inflationary economy, where the prices of commodities and services are increasing day by day, the income from a beauty parlour, which has an element of seasonality, may not be sufficient to support the livelihood of the woman, and afford her to maintain the same standard of living as that of her husband,” said the court, upholding her right to maintenance.
The high court, however, reduced the alimony to Rs 12,000 a month.
It also rejected the business man’s argument that his ex-wife relinquished her right to maintenance and it formed part of the consent terms approved by the family court while dissolving their marriage.
“The object of the provisions contained in section 125 of the CrPC cannot be lost sight of. Indisputably the provision is a measure of social justice and its object is to prevent destitution and vagrancy,” said the judge.
“The statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance. Such a clause in the agreement would be void under section 23 of the Indian Contract Act, being opposed to public policy,” the court said.
Both the judgments may encourage married women to goad their husbands to ask for divorce with the hope of snatching attractive maintenance. This could encourage some scheming women to garner multiple maintenances through serial marriages and divorces.
But, there have been, and are, husbands who swear by their wives as vouched by Shakespeare.
I will be the master of what is my own;
She is my goods, my chattels, she is my house
My household stuff, my field, my barn,
My horse, my ox, my ass, my anything;
And here she stands, touch her whoever dare.
-William Shakespeare (1564-1616) English dramatic poet in Taming the Shrew.
But, this is not to suggest that men are saints without any taint. We will focus on them in times ahead.
The subject is open to many views. What are yours? Your response is welcome in the format given below. Please stroll down.
I read a Kannada daily which has money-minting obituary page. First I check if my name is there. Then I check the age of the departed to determine my chances of making or postponing my place on the obituary page.
One thing I irritatingly observe is that in these obituary announcements the use of ‘grand son’ and ‘grand daughter’ with reference to the relationship of the departed.
‘Grand son’, with space between the two word means that the son is grand like Taj Mahal is grand. I suspect the practice might have started when ads were charged by the count of words and a cunning clerk might have broken the words to increase the word count and the cost – to earn his bonus.
Now ad space is mainly charged on the basis of space consumed in terms of column centimetres. So, advertisers would benefit by the compound words – like grandson.