Legal Advice

Maintenance in case of divorce after one year of marriage

Question: Question: I want to know whether maintenance in case of divorce after one year of marriage is possible. I got married on 20 Nov 2019. Now we want to get separated by mutual consent. My wife is a B. Tech. & MBA but did not make any serious attempt to get a job. At the […]

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Question: I want to know whether maintenance in case of divorce after one year of marriage is possible. I got married on 20 Nov 2019. Now we want to get separated by mutual consent. My wife is a B. Tech. & MBA but did not make any serious attempt to get a job. At the time of engagement in Jan-2019, she was doing her MBA. 

Prior to that she did some internships as well in some MNC in Gurgaon. But after getting engaged, despite getting good grades in MBA she did not make any serious attempt for a job and did not join when she got one such opportunity. 

While at XXX, after marriage, initially she tried for a digital marketing job, I even arranged for an online coaching class for her. But then she decided to apply for a job in LIC. I bought enough books for her to study. She has not shown any inclination towards study and now says she will remain a housewife but will not be doing household chores but engaged two maids at monthly rate of more than Rs.4000/pm each. 

When I asked her to study for a job, she got annoyed and is now asking for divorce by mutual consent. I have tried to give her all the possible luxuries but she is in no mood to live with me. 

When she wanted to go with her parents, I not only arranged her travel but also accompanied her to her native and stayed there for two weeks along with her parents in the hope for reconciliation. But now she is harassing and torturing me and insulting me in front of her parents. I am told no maintenance, or alimony or property division is required to be paid in case of consent divorce just after one year of marriage.

Question from: Maharashtra 

Mutual consent divorce is not possible in this circumstances

In the present facts of your case she cannot get divorce by mutual consent under Section 13-B of the Hindu Marriage Act. For the mutual consent divorce it is mandatory that spouses have not been living together for more than one years and they have agreed to leave separately. 

Therefore, the most important ingredient of divorce by mutual consent is missing in your case. The court thus, will not entertain your petition for divorce under section 13-B of the Hindu Marriage Act.  Your wife is not willing to perform her matrimonial obligations. It  proves that she is the real guilty party in this case therefore she cannot invoke any provisions of the Hindu Marriage Act. 

Maintenance

Your wife is an educated lady. She has the ability to earn But she is a jobless woman and not earning. So far as maintenance is concerned, she can not get maintenance under section 125 of the code of criminal procedure. 

Your wife has no valid ground to live separately therefore she is not entitled to get maintenance under section 125 or under Section 18 of the Hindu adoption and maintenance act. 

Subsection 4 of Section 125 of the Criminal Procedure Code specifically bars maintenance if the wife has no sufficient reason to live separately. Your wife is not performing  her matrimonial obligations therefore she is a guilty party. Such a wife cannot get maintenance under Section 18 of the Hindu adoption and maintenance act. 

Wife cannot claim partition of property in lieu of maintenance 

Wife has no right in the self acquired  or and ancestral property of the husband. Therefore the wife cannot claim partition of property in lieu of maintenance. Maintenance is a separate issue which is very much social. It is the utmost responsibility of the husband to maintain his wife and give her a good life. Wife is entitled to maintenance if 

  • she has no sufficient names to maintenance herself and 
  • there is no fault from her side.

Both the above mentioned conditions are missing in your case. Those conditions are necessary for seeking maintenance from the husband. On fulfillment of  both conditions the husband  cannot refuse to maintain. He is bound to maintain his wife even if he is jobless. 

What will happen if the husband has resigned from the job only to avoid the maintenance?  In this condition the court will also order to pay maintenance. 

Shivendra Pratap Singh

Advocate

High Court Lucknow

Divorce Cases | Family Law | Maintenance

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