Can wife claim maintenance from father in law if husband in jail?

[Anonymous]

Sir if husband is criminal and he has been punished for life imprisonment, so can wife get divorce, and maintenance from her father in law or mother in law?

[Sonia Dhamija]

Cases relating to marriage and divorce are governed by the separate personal laws of each religion. Thus, due to the reason that I do not know which personal law you are governed by, I shall be giving a general answer.

Section 27(1) of the Special Marriage Act, 1954, Section 2(iii) of the Dissolution of Muslim Marriage Act, 1939 and Section 32(f) of the Parsi Marriage and Divorce Act, 1936 specifically provide for divorce on the ground of imprisonment for seven years or more, of either spouse. The personal laws governing Hindus and Christians, do not specifically provide for the same in the statute, e.g. Hindu Marriage Act does not contain such a stipulation. Even in such cases, where there is no specific stipulation to the same, Courts have filled in the gaps and granted divorce on grounds that life imprisonment of spouse amounts to cruelty and/or (legal) desertion.

Section 27 of the Special Marriage Act reads as follows:
“27. Divorce (1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or he wife on the ground that the respondent-
….
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code.”

Section 32 of the Parsi Marriage and Divorce Act 1936 reads as follows:
“32. Grounds for divorce.—Any married person may sue for divorce on any one or more of the following grounds, namely:
…
(f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860): Provided that divorce shall not be granted on this ground, unless the defendant has prior to the filing of the suit undergone at least one year’s imprisonment out of the said period;”

Section 2(iii) of the Dissolution of Muslim Marriage Act, 1939 reads as follows:
“2. Grounds for decree for dissolution of marriage.: A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
….
(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;”

Various High Court have granted divorce even in cases when the personal law of the parties did not specifically stipulate the above clause. The Rajasthan High Court in the case of Vimla Bai v. Panchu Lal, AIR 2007 Raj. 99, granted divorce on the plea of the husband on the ground of cruelty on the basis of the fact that his wife was involved in a murder case. Further, in the case of Ganesha v. Vijaya, MFA 11864/2011 (F.C.), the Karnataka High Court on 12th March 2012 held as follows:

“8. Be that as it may, when the appellant has been convicted for life, even the ground of desertion has to be taken into account legally because the appellant cannot live with the wife and give conjugal happiness to her. For the rest of the life for no fault of the wife, she cannot be made to suffer, if the marriage tie being allowed even though the husband convicted for life. In the circumstances, it is not a case for interference.” (Emphasis supplied)

The Delhi High Court has dealt with the subject matter in great detail in the recent case of Swati v. Arvind Mudgal and it held as follows:

“30.1 The conviction of the respondent and sentence of life imprisonment under Section 302 IPC for murder has caused mental pain, agony and apprehension in the mind of the petitioner that it is not safe to live with him and it clearly amounts to cruelty. The respondent’s cruel act has also resulted in physical deprivation of matrimonial relationship which has caused physical and mental pain and torture.

30.2 The cruel offence of murder committed by the respondent has traumatized the petitioner for her life. The family of Gopal who was murdered by the respondent are not the only one’s to live a life of self-denial, there are others too. The wife of the accused also pays a huge price for her husband’s crime. The society treats her as murderer’s wife. Her honour is lost forever. Is there a greater punishment than bearing the burden of humiliation throughout one’s life? Probably not.

30.3 The respondent’s crime resulting in life imprisonment has opened up a chapter of profound uncertainty. Who will now earn and feed the petitioner? The respondent has not made any provision for her sustenance. The respondent’s family is also not ready to support her. The conviction and life imprisonment of the respondent has resulted in the deprivation of the conjugal rights as well as food, shelter and security from the husband. The petitioner’s life is on an endless slide backward. Admittedly, the petitioner is innocent and all this has happened due to the cruel act of the respondent. All this constitutes the worst form of cruelty which will continue unless the relationship is severed and therefore, it is in the interest of justice to dissolve the marriage by a decree of divorce to put an end to the endless misery and sufferings to enable her to live her own life.
…..
31. Taking all the facts and circumstances of this case into consideration, this Court is satisfied that the offence of murder committed by the respondent resulting in life imprisonment, has caused immense pain, agony and apprehension in the mind of the petitioner that it is not safe to stay with the respondent anymore which is sufficient to dissolve the marriage on the ground of cruelty.”
Thus on the basis of the above cases, even if your personal law does not specify imprisonment of seven years or more as a ground for getting divorce, you may still apply taking help of the above mentioned cases.

Coming to the second part of your question.

A divorced wife can claim maintenance from her husband through mainly three channels namely the personal law [e.g. the Hindu Adoptions and Maintenance Act, 1956], under Section 125 of the Code of Criminal Procedure, 1973 and under the Protection of Women from Domestic Violence Act, 2005.

The provision for maintenance to a wife provided in the Code of Criminal Procedure, 1973, vide Section 125, is a secular provision applicable irrespective of the personal law. However, even under these provisions, maintenance by the wife cannot be claimed from the father-in-law or mother-in-law and can be claimed only from the husband.

Even the Domestic Violence Act (which is also a secular provision which applies irrespective of the personal law) does not specifically provide for maintenance by the father-in-law or mother-in-law, the only respite under this Act is that the wife has a right of residence, however even the right to residence is available only in the case when her husband has any right, title or interest in that property. For example, even if the husband has contributed to the rent in the property, the wife will have a valid claim to right of residence. However, if the husband has no right, title or interest, whatsoever in the property, the wife shall have no right to claim right to residence.

Interpreting the provisions of the Domestic Violence Act the Supreme Court in the case of S.R. Batra vs. Taruna Batra (2007) 3 SCC 169 held that a wife could not claim a right of residence in the property belonging to her mother-in-law and observed as follows:

“17. There is no such law in India like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in- law or mother-in-law.

18. Here, the house in question belongs to the mother- in-law of Smt Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house.

19. Appellant 2, the mother-in-law of Smt Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.”

A recent Supreme Court judgment in the case of Vimalben Ajitbhai Patel vs Vatslabeen Ashokbhai Patel 2008(4) SCC 649 reiterated the principle laid down in the Batra and held as follows:

“Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject matter of attachment nor during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.
….
The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.”
It is to be noted that the observation of the Court that ‘The obligation to maintain a daughter-in-law arises only when the husband has died.’ is applicable only to Hindus as per Section 19 of the Hindu Adoptions and Maintenance Act, 1956, which specifically provides for maintenance of the widowed daughter-in-law. However, there is no similar provision in laws governing any other religion.

Section 19 of the Hindu Adoptions and Maintenance Act, 1956 reads as follows:

19. Maintenance of widowed daughter-in-law.-(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.
Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance-
(a) from the estate of her husband or her father or mother, or
(b) from her son or daughter, if any, or his or her estate.
(2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall case on the re-marriage of the daughter-in-law.

Thus there is no provision in law which provides for maintenance from the father-in-law or mother-in-law and all personal laws allow only for maintenance from the husband.

It is important to mention here that there has been a proposal by the Law Commission for an amendment of the Section 19 of the Hindu Adoptions and Maintenance Act, 1956 to provide for maintenance to be claimed from father-in-law and mother-in-law in circumstances other than the death of the husband, however such a proposal has not seen light of the day. To read the proposal in detail read here.

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