Wednesday, September 1, 2010



The courts will now take into consideration a man’s joint family finances when granting alimony. Smitha Verma looks at the repercussions





Illustration: Suman Choudhury

Ajay Sahai (name changed), an engineer from Mumbai, is a worried man. A recent Bombay High Court ruling is causing him sleepless nights. The court said a man’s joint family finances can be taken into account when the quantum of maintenance to be paid to his estranged or divorced wife is being considered. Sahai, who is fighting a divorce case in court, feels that the judgment may adversely affect him. “I fear this ruling will have a strong impact on my case,” he says.

Maintenance in a marital discord case has always been a troublesome issue — one side would feel it’s too little, and the other, that it’s too much. That’s why the Bombay High Court ruling — which asked a Pune businessman to pay his estranged wife Rs 20,000 instead of the Rs 2,500 that had previously been decided — has kicked up a furore. The court took into account his joint holdings in the family property and the family’s lifestyle while announcing the verdict.

Not everybody is happy with this. Groups that fight for men are perturbed. “This could lead to further misuse of Section 498A (anti-dowry law),” says D.S. Rao, president of Calcutta-based men’s advocacy group Hridaya. “Once we receive a copy of the judgment, we’ll see how to protect our interests,” says Rao.

Sahai, who lives in a joint family, cannot understand how undivided property can decide his social status. “I may inherit the property but how will I be able to pay a monthly maintenance based on my family property? My monthly income should be the deciding factor,” he says.

Clearly, the issue is a contentious one. While some lawyers stress that it will help women, others say it will put men in the dock. Neeraj Aggarwal, co-ordinator, Save Family Foundation, a Delhi-based group working for the interests of men, is among those troubled by the ruling.

Stressing that it can lead to irrational demands, he cites the example of a woman who demanded alimony from her father-in-law based on inheritance laws. “The woman had left her husband after he was diagnosed with cancer. After his death she demanded money from the family citing her right to the property,” says Aggarwal. “The trial court sympathised with her and awarded her maintenance,” he adds.

According to Niladri Shekhar Das, secretary, Gender Human Rights Society, a Delhi-based non governmental organisation, courts should examine the income tax returns of estranged parties before taking a decision on alimony. “What about the wife’s inheritance? Do our esteemed courts ever look into that,” Das asks.

There have been some rulings where a wife was asked to pay maintenance to her husband, or an unemployed man was absolved of the responsibility of supporting his estranged wife. But such cases, the men’s group argue, are rare. “This ruling is in violation of a previous Supreme Court judgment which said a wife’s maintenance should be based on a husband’s income and not of the in-laws’,” says Aggarwal.

Das points out that a woman cannot claim right to property which has been divided, and to which the husband has no share. “Only undivided property of a joint family — where the husband holds a share — can be looked at,” he says.

But those who hail the judgment point out that it has come in the wake of an increasing number of cases where husbands fighting a divorce do not disclose full details of family property in a bid to lower the maintenance amount they have to pay their wives. “There is lack of transparency in many cases when it comes to declaring assets. This way even if a property is in a joint holding, one can't evade the payment,” says Supreme Court lawyer Pinky Anand.

Anand believes the ruling will help women get proper alimony. “It is a commendable ruling and goes with the ethos of Indian society,” she says. She stresses that the treatment meted out to women is “shameful” when it comes to property. “We are still not giving women equal rights to property. I feel it’s a reasonable and appropriate order.”

Nidhi Suri (name changed) believes that the court has spoken up for women like her. Her husband had initially not disclosed details of an ancestral house in Chandigarh when they moved court for a divorce. “I hope the apex court takes this judgment as a landmark initiative to give a fair deal to estranged wives,” says Suri, a Jaipur-based media professional whose alimony case is pending in the Delhi High Court.

Anul Shiggaon, a Bangalore-based IT consultant, is on the other side of the fence. Shiggaon, who is without a job, has been embroiled in a maintenance case with his estranged wife for the past two years. “My wife, who is employed, has been awarded maintenance despite being able to support herself,” says Shiggaon, who has been asked to pay Rs 25,000 a month as maintenance. “I have a home loan and am struggling to maintain myself,” he adds.

Divorce lawyer Vijay Raj Mahajan believes the ruling merely means more litigation. “If the property is lying idle, such judgments can create problems for petitioners,” he says. The lawyer rues that maintenance often turns into a gender issue. “But maintenance is not a matter of right. It’s a question of whether one can maintain oneself or not,” adds Mahajan.

The ruling has brought several issues out in the open. And while people are divided over its merits, what is clear is that maintenance continues to be a thorny issue. And the judgment has only underlined the wall between the warring parties.

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