Effect of conversion by Husband on Maintenance, Hindu law perspective
Introduction
Hindu law is a personal legal system which provides regulations for every aspects of life of a Hindu. Maintenance was codified in the “Mitakshara School of Law” produced by Manu. There are two types of maintenance under Hindu Law i.e personal maintenance, based on relationship between the parties and Maintenance for possessing property in the Hindu Undivided family, the Karta is responsible to provide maintenance to every members of the family.
Recently a Hindu married woman, reached me via social media and were trying to know her rights as her husband has changed his religion by conversion and ceased to be a Hindu. How can she claim Maintenance? In this article I tried to evaluate how Maintenance is regarded under Hindu Law and what will be the consequences of conversion by the husband while claiming Maintenance by the Wife as exists today in Bangladesh and compared with India.
Manu says in Manusmriti, “ A girl once married cannot be given further, a marriage is a bond of soul to soul.” So marriage under Hindu Law is not regarded as a contract but as a sacrament which is spiritual and unbreakable. But in this modern world it is necessary to make a way out from a distasteful marriage than to live with it.
The codified Hindu Law recognized Divorce so the question of Maintenance after separation arose. But maintenance under a living Marriage is well versed in the Ancient Hindu Scripture. Manu says in Mitakshara, “the aged parents, a virtuous wife, and an infant child must be maintained even by doing Hundreds misdeeds.”
what is maintenance?
Maintenance means paying an amount of money in an monthly portion or in lump sum which is called alimony to the wife by the husband during the divorce processing period (interim maintenance) and also after divorce (permanent maintenance) to support her livelihood when she is not able to sustain her own.
Section 18 of The Hindu Adoption and Maintenance Act, 1956 (not applicable in Bangladesh) contain the definition of Maintenance.
“Maintenance” includes-
1. Provisions for food, clothing, residence, education and medical attendance and treatment
2. In the cases of an unmarried daughter, also the reasonable expanses of and incidents to her marriage.
Acts providing provisions for maintenance in case of conversion
Section 2(5) of The Hindu Married Woman’s Right to Maintenance and Separate Residence Act, 1946, provides that
“Notwithstanding any custom or law to the contrary a Hindu married woman shall be entitled to separate residence and maintenance from her husband if he ceases to be a Hindu by conversion to another religion.”
But if a Hindu married woman is unchaste or ceases to be a Hindu by conversion to another religion or fails to comply with sufficient cause to gain a decree of a competent court for the restitution of conjugal rights, she shall not be entitled to any maintenance or separate residence.
This Century old laws are the main obstacles in the way of justice in Bangladesh.
In this context India has introduced various time favored laws to cope with the situation. Section 18 of The Hindu Adoption and Maintenance Act, 1956 provides various grounds for claiming Maintenance including Conversion. Interim maintenance can be claimed under Section 24 of the Hindu Marriage Act, 1955,by the wife. In the famous case of Mohd Ahmed khan v Shao Bano Begum, 1985 (3) SCR 844 the Apex Court of India included Section 125 of Indian Code of Criminal Procedure,1898 in this regard. According to Sec. 25 of the Hindu Marriage Act,1955 Court can order a Husband to pay maintenance in lump sum or monthly basis. It is important to know that Section 36 of the Special Marriage Act,1954 also provides that if the District Court thinks that the wife doesn’t have any independent income to support her life she has a ground for seeking maintenance as it is a right of the Wife to seek so.
In Vilayar Raj v Sunita, AIR 1983 Delhi 351, It is noted by the Court that if the Husband coverts and ceases to be a Hindu, this does not eliminate the marriage itself and only the non-convert spouse to the marriage can seek maintenance and separate residence. As it is the duty of the court not to let anyone be rewarded for their own misdoing or disability.
Amount of the Maintenance
The Hindu Married Woman’s Right to Separate Residence and Maintenance Act, 1946 reads in section 3 as: “The Court shall determine the amount to be paid by the husband to the wife therefore, according to the social standing of the parties and the extent of the husband means.”
Sec 23 of the Hindu Marriage Act, 1955 (Applicable in India) provides that while deciding the total maintenance the Court may pay attention to this clauses :- a) The position and status of the husband and wife, b) Whether the wife has an actual claim. c) If the wife is living separately, whether the reason to do so is justified. d) The wife’s total property and income. (Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386); e) The husband’s total property, income generated from this property, and his other income. f)The total number of dependents and their expenses borne by the husband etc.
In Dr. Kulbhushan v/s Raj Kumari and Anr, 1971 SCR (2) 672 the Court declared that, looking upon the needs of the spouse, the Court can increase or decrease the amount of maintenance and it would be justified as it is a discretion power of the court to decide. Yet the court meets the ending saying that it would be fair to provide the Wife with 25% of the Husband’s net Salary.
Where to File a Petition for Maintenance
Until 1985 there was no family court in Bangladesh where a family matter can be solved. After enacting the Family Court Ordinance, 1985a separate court was established to try the family matter as described in section 5 for the purpose of-
a) Dissolution of marriage; b) Restitution of conjugal rights; c) Dower; d) Maintenance; e) Guardianship and custody of children. But it was not still clear if people practicing other religion than Muslim could seek justice in this Court or not.
In the cases between ,“Nirmal Kanti Das v. Sreemati Biva Rani Das, 14 (1994) BLD 413 and Pochon Rikshi Das v. Khuku Rani Dasi & others, 50 (1998) DLR (HCD) 47, The High Court Division of Bangladesh finally came to aid other religious group expressing, any person irrespective of any faith can file a suit in the Family Court and also a Family Court can try suits under The Hindu Married Woman’s Right to Separate Residence and Maintenance Act, 1946.
Conclusion
Maintenance is one of the basic rights under marriage. In recent days even a husband was rewarded with maintenance from his wife at UP, India. There are not many detailed laws in Bangladesh addressing this matter. But now it has become a very concerning issue as conversion of faith is much usual. The lawmakers must address this issue. I urge them to modify and amend these old laws to create a better chance of justice for our woman. As It is well known that, “injustice anywhere is a threat to justice everywhere.”
Anik Das: Student; Department of LAW, University of Chittagong.
