08/02/2017 1:18 PM IST | Updated 13/02/2017 8:50 AM IST

Refusing To Pay Maintenance To A Well-Earning Wife Is Not Economic Abuse

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An interesting case has been referred to me, where both the husband and wife have corporate jobs and are drawing a salary of around ₹10 lakh per month. Nitesh* is a chartered accountant and Renuka is an MBA from IIM. Unfortunately, Nitesh started having an extra-marital affair and when Renuka found out she was devastated. At first Nitesh denied the affair but when Renuka showed him pictures of his girlfriend along with him, he confessed. Renuka's dilemma was twofold, she had lost faith in the marriage and didn't want to continue living with Nitesh. However, she had also made a number of financial investments along with Nitesh and didn't want to be punished financially because of his extramarital affair.

Economic abuse essentially means where the wife has no means to survive financially due to the wilful negligence of the husband.

Since her salary was comparable to Nitesh's, I had advised her that legally it would not be easy to claim much from him, although the law does have various provisions for providing maintenance to a wife such as under Section 24 of the Hindu Marriage Act, which essentially provides interim maintenance to a wife during the pendency of litigation and also, at times, for litigation. The reason for this provision was to protect wives from being thrown out by husbands without any means to support themselves. It was also intended for wives who are not working and have no independent source of income.

However, today the scenario has changed and more women are working and have their own income. So the courts have also taken this into cognisance whilst ordering husbands to pay for wife's maintenance.

A recent judgement of the Rajasthan High Court by Hon'ble Justice Prashant Kumar Agarwal emphasises that "refusal to provide maintenance to be qualified and earning wife cannot be termed as economic abuse." The facts of that matter were that Sunjay and Reema were married in 2007 and barely 30 days after the marriage Reema left for her matrimonial home. Reema was a qualified nurse by profession and continued working. She had claimed economic relief under the Domestic Violence Act, 2005, which includes the provision of "economic abuse":

(a) Deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) Disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) Prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration.

Economic abuse essentially means where the wife has no means to survive financially due to the wilful negligence of the husband. In Reema's case the court ruled that she had left the home of her own volition, she was also working of her own volition and her income was sufficient for her to survive.

This judgement may come as a relief to a number of men who feel that the court is biased in favour of women.

The law cannot encourage different criteria for claiming maintenance from the husband. The legal position about income of the wife as contemplated for the grant of maintenance is that if the wife of her own volition pursues a career where she earns her own income, then the sufficiency of that income is to be seen and calculated to reject or grant her claim of maintenance.

But if the wife is constrained to take up a job to in case of extreme necessity or to survive with dignity pending actual receipt of maintenance from her husband then the court may refuse to take her income into consideration whilst granting her maintenance.

In effect, it was held that Rena was not economically abused.

This judgement may come as a relief to a number of men who feel that the court is biased in favour of women. It is also a counter to the argument that the court is biased against men.

Renuka and Nitesh parted ways amicably and even divided their assets almost equally, with Nitesh signing off a little more in favour of Renuka. They ultimately filed for a divorce by mutual consent.

The court is not biased, it provides a fair judgement and that is the big hope for all of us litigants, lawyers and citizens of the country.

* All names of parties of divorce changed.

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