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Husband refuses to maintenance due to unemployment

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Family Law | Maintenance

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My husband refuses to pay maintenance due to his unemployment. He left his job 2 months after the filing of a case under section 125 crpc. He was a commission agent in the excise tax department and earning well. I need maintenance for the sustenance of myself and my son.

Asked from: Maharashtra

The wife has a right to get maintenance from husband in section 125 crpc. Your husband has intentionally left his job to absolve himself from the responsibility to maintain the wife and children. But he’ll not succussed because Section 125 is a benevolent legislation protecting a destitute wife from starvation [Kirtikant D. Vadodaria v. State of Gujarat and another (1996) 4 SCC]. Therefore, wife is entitled for alimony even if husband is not earning.

Nowadays, a tactic is developing among husbands to left the job and take a plea that I’m not able to pay alimony. They think that it will frustrate the case of the wife consequently she will be ready for settlement or compromising the issues.

Even unemployed husband is bound to pay maintenance

According to Section 125 crpc, if the husband has sufficient means, he has to maintain his wife. The court has liberally interpreted the word “sufficient means.” The Supreme Court held in several judgments that if the husband has the potential to earn he is liable to pay maintenance [Rajnesh v. Neha (2021) 2 SCC 324]

In Captain Ramesh Chander Kaushal v. Veena Kaushal [1978] 4 SCC; the Supreme Court has held that section 125 of the code gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to sustain themselves.

Your husband has intentionally left his job after receiving the information that you have filed a case for maintenance. His conduct itself proves that he is neglecting and refusing to maintain his wife and child. Proof of such a neglect or refusal is sufficient for the court to pass an order of maintenance under Section 125 crpc because your husband has the ability to earn [Vaibhav Singh v. Divyashika Singh, 2022 All HC].

The Hon’ble Supreme Court has held that “Husband cannot abdicate from his responsibility to provide maintenance to his wife and it is his duty to provide the maintenance.” Section 125 crpc does not require that the husband must actually work at the time of determination of maintenance.

If the husband has intentionally left his job after the filing of maintenance application then the court may presume that husband has sufficient means as required under section 125. If the court does not take such presumption then the husband will defeat the object of section 125 merely by leaving his job. Your husband cannot plead that he has no job in hand therefore, cannot pay alimony to his wife and child.

An able-bodied person should maintain his wife

Law expects that a healthy or abled bodied man should do work to maintain himself and his dependants like wife, children and aged parents. If the husband is healthy he must maintain his wife who is unable to maintain herself. This is the social, moral and legal duty of the husband.

Your husband was working as a commission agent before filing the case then he cannot say that he has lost his ability to work. He still has the potential to earn and maintain himself and his family. Therefore, he cannot take unemployment as an excuse for giving alimony.

The husband being an able-bodied person is duty-bound to maintain his wife who is unable to maintain herself.

Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303

Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, the husband must see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is impermissible.

Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353

It is the sacrosanct duty to render financial support even if the husband is required to earn money with physical labour if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.”

Maintenance

Alimony includes the supply of food, lodging and other necessary things for leading a dignified life. The husband is under obligation to maintain the same living status of his wife which she would have in her matrimonial home. This is the standard procedure for the ascertainment of the amount of maintenance. 

Therefore, your husband has no escape route. It is the sacrosanct duty of the husband to see that his wife would not become destitute. This is indeed the social goal of Section 125 crpc.

What should you do

You should file an application under Section 125 crpc and demand maintenance for your son and yourself. In that application you have to prove that:

  • You are living in destitution.
  • Your husband refuses to maintain.
  • He has sufficient means to maintain you.
  • You have expelled from the matrimonial home.
  • Husband is not willing to perform his legal obligation.
  • There is sufficient reason for living separately from the husband.
shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

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