Maintenance Under Christian Law
MaintenanceProvisions for maintenance under the Christian law are contained in The Indian Divorce Act. 1869 as amended in 2001. The relevant sections are:
S. 36. Alimony Pendente Lite.-In any suit under this Act, whether it be instituted bya husband or a wife, and whether or not she has obtained an order of protection, ( The wife may present a petition for expenses of the proceedings and alimony pending the suit.)
Such petition shall be served on the husband, and the court, on being satisfied of the truth of the statements therein contained, may make such order on the husband ( for payment to the wife of expenses of the proceedings and alimony pending the suit) as it may deem just.
(Provided that the petition for the expenses of the proceedings and alimony pending the suit shall, as far as possible, be disposed of within sixty days of service of such petition on the husband.)
S. 37. Power to order permanent alimony.-(Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the Husband shall), to the satisfaction of the court, secure to the wife
such gross sum of money, or such annual sum of money for any term not exceeding her own life, as having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable, and for that purpose may cause a proper instrument to be executed by all necessary parties.
Power to order monthly or weekly payments.-In every such case the court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the court may think reasonable.
Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the court seems fit.
38. Court may direct payment of alimony to wife or to her trustees.-In all cases in which the court makes any decree or order for alimony it may direct the same to be paid either to the wife herself or to any trustee on her behalf to be approved by the court and may impose any terms or restrictions which to the court seem expedient and may from time to time appoint a new trustee if it appears to the court expedient so to do.
In the context of Christian parties, K. Kumar v. Leena is a significant judgment. The issue involved in the case was whether a Christian wife and children can invoke the provisions of s. 9 of the Civil Procedure Code, 1908 (CPC) to claim maintenance even though the Christian Marriage Act, l872 makes no such provision.
The court held that even though the Christian Marriage Act, makes no provision for maintenance, such right is available under the common law, wife and children are dependents and a suit by a Christian wife and children is not barred under the provisions of the CPC.
Section 9 of the CPC says:
The court shall ( subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which the cognizance is either expressly or impliedly barred.
The following observations of the apex court in M.V Elisabeth v/s Harwan Investment and Trading Pvt. Ltd, were relied upon in support of the case:
where a statute is silent and judicial intervention is required, courts strive to redress grievance according to what is perceived to be principles of justice, equity and good conscience.
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