Maintenance of Hindu Wife

OBJECTIVE OF THE STUDY

The topic of my research paper, i.e. Maintenance Rights of a Hindu wife is one of the most important rights provided to a Hindu wife. In a Hindu family, the husband is the person who has to provide for his wife.

The main objective of this act is that the Hindu wife is not deprived as even after divorce the obligation to maintain the wife and children remains and also to prevent immorality and destitution and ameliorate the economic condition of women and children.

The preference for favouring the wife in awarding maintenance was due to the fact that women had no property rights during the marriage. In addition to this, Indian women generally don`t have the access to outside employment, thereby offering further support for awarding it to the wife. It is a right to get necessities which are reasonable from another.

 

SCOPE OF THE STUDY

The scope of the topic is very wide as there are many sections provided by the legislation that support and favour the Hindu wife and are there for their betterment.

Like as laid down in the section 24 of the Hindu Marriage Act, the main aim is to grant maintenance to the wife so that she can have financial assistance and she is able to maintain herself during the pendency of proceedings. On the other hand even the husband has a right to claim maintenance from the wife.

The whole concept of maintenance was introduced in order to see that if there is a spouse who is not independent financially than the other spouse should help him/her in order to make the living of the other person possible and independent. Providing maintenance means that the other person who is getting the maintenance should be able to live the life as he or she lived before marriage in case of divorce and in case where the two partners are not living together and they seek maintenance than the spouse getting maintenance should be able to live a life as when they lived together.

 

 

PURPOSE OF THE STUDY

The primary purpose of the study is to critically analyse the problems faced by the Hindu wife in order to get maintenance for her and her children so that no one is deprived and the help that can be provided so save them from the ill practices of the society.

a.       To analyse response of Indian judiciary and legal  light to Right of the Hindu wife to Maintenance under Hindu Adoptions and Maintenance Act, 1956,

b.      To compare the status of women under the various acts and provisions,

c.       To study Right to maintenance in classical Hindu law as well as the modern law,

d.      To suggest remedial measures to alleviate sufferings of a woman whose husband is unable to provide her maintenance.

 

 

MAINTENANCE OF HINDU WIFE

By Sashya Gulati

ABSTRACT

The present paper deals with the concept of the maintenance of the Hindu wife while emphasizing on the various legislative as well as the judicial help to the wives. The paper aims to reiterate what has already been established in the realm of maintenance of the Hindu wife and suggest the way forward that shall be beneficial for both, the state as well as the citizens of the state.

Maintenance refers to payments which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce. This liability of the husband flows from the bond of marriage. A wife is entitled to claim maintenance under the Hindu personal laws as well as Code of Criminal Procedure, 1973. While under the personal laws an application for maintenance can be made only if there are, or have been, matrimonial proceedings under the Act, in case of Code of Criminal Procedure, 1973 there need not be any matrimonial litigation and yet the wife may seek maintenance.

Section 18(1)[1] talks about the meaning of Maintenance of wife- “Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime….”

This research report will be doctrinal in nature which will include all the three major sources of the various legislations and also an in-depth analysis of various case laws.

The research paper has been divided into chapters which talk about maintenance under Hindu Marriage Act[2], Hindu Adoption and Maintenance Act[3] and Code of Criminal Procedure[4].

 

INTRODUCTION

“Half of the Indian populations too are women. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequalities, indignities, and discrimination”. [5]

Marriage is the very foundation of any society. It is sine qua non for family peace and stability. Being so, legislatures all around the world have given certain rights and imposed certain obligations on husband and wife which are important constituents of any family. In ancient times, marriage was considered to be decided by the God and divinity was associated with it.[6] It is considered to be a sacred social institution.[7] Marriage, according to the Hindu Law, is a holy union for the performance of religious duties.

Hindu marriage protects a woman by guaranteeing her legal rights for restitution of conjugal rights in case of desertion, legitimacy of the children, relief in case of cruelty, adultery, impotency, claim of maintenance and alimony etc. and order for maintenance to wife who is unable to maintain herself. [8]

The topic of my research paper, i.e. Maintenance of a Hindu wife is one of the most important rights provided to a Hindu wife. In a Hindu family, the husband is the person who has to provide for his wife. Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law.

The High Court of Punjab and Haryana in Avtar Singh vs. Jasbir Singh[9] held that a lacuna in the position of Hindu wife qua their property and maintenance rights, whose husband is unable to provide maintenance to her under Section 18 of Hindu Adoptions and Maintenance Act, 1956 was identified.

On the other hand, Maintenance refers to payments which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce. It is a right to get necessities which are reasonable for another. It includes not only food, clothes and residence, but also the things necessary for the comfort and status in which the person entitled is reasonably expected to live and is not a transferable right.

The relief of maintenance is considered a supplementary relief and is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation etc. This liability of the husband flows from the bond of marriage. Further, under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial relief has been recognised in Hindu law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956.

Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she may lose her right under the various conditions. A wife is entitled to claim maintenance under the Hindu personal laws as well as Code of Criminal Procedure, 1973. While under the personal laws an application for maintenance can be made only if there are, or have been, matrimonial proceedings under the Act, in case of Code of Criminal Procedure, 1973 there need not be any matrimonial litigation and yet the wife may seek maintenance.

The preference for favouring the wife in awarding maintenance was due to the fact that women had no property rights during the marriage. On the other end, the whole concept was introduced in order to see that if there is a spouse who is not independent financially than the other spouse should help him/her in order to make the living of the other person possible and independent. Providing maintenance means that the other person who is getting the maintenance should be able to live the life as he or she lived before marriage in case of divorce and in case where the two partners are not living together and they seek maintenance than the spouse getting maintenance should be able to live a life as when they lived together.

In addition to this, Indian women generally don`t have the access to outside employment, thereby offering further support for awarding it to the wife. It is a right to get necessities which are reasonable from another. The conduct of the husband taken as a whole may amount to total disregard of the fundamental obligations of matrimony and would constitute an intention to desert.[10]

The most important aspect of maintenance is that the party which relies on maintenance has no independent source of income to support himself/herself. The main point we have to focus on is independent income. If the spouse who is claiming maintenance has movable or immovable property, he/she can still claim maintenance if the property does not yield any income.

The maintenance amount is calculated (approximately) by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount. Maintenance amount can also depend on who well the lawsuit has been fought by the advocates of both parties. The spouse with lesser income or no income can get a maintenance amount.

Apart from the relationship of husband and wife other relations in which there is economic dependency are also considered to be entitled to maintenance by the Hindu Adoptions and Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from her father-in-law to the extent of the share of her diseased husband in the said property. The minor children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance from their parents.

 

MEANING OF MAINTENANCE

Definition:

Section 3(b) of the Hindu Adoptions and Maintenance Act[11] defines maintenance. According to this section Maintenance includes-

(i)                 in all cases, provision for food, clothing, residence, education and medical attendance and treatment,

(ii)               in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage

In order to ask for maintenance the most important factor is that the spouse who is asking/ demanding for the same has no means or no independent source of income and only then can he/she ask for maintenance, thus making the `independent income` an important factor, also irrespective of the fact that the spouse has movable or immovable property or not as long as the same doesn’t yield any profit/ income.

It is a right to get necessities which are reasonable. It is a liability created by Hindu Law and arises out of jural relation of the parties.[12]

According to me the main aim of providing maintenance is that the wife should not be left deprived on separation or divorce from her husband, not only the wife but widowed daughter-in-law, children, aged parents and dependants as enumerated in Section 21 of the Act.

Maintenance has been explained under the two categories i.e.

1)      Hindu Classic Law

2)      Modern Hindu Law

 

HINDU CLASSIC LAW

The classical Hindu law on maintenance was devised in such a way that no member of the joint family, especially the female members, should be left deprived. Maintenance was a duty that a Hindu owed to his wife, whether she lives with him or he has deserted her. Under the classical Hindu Law, the liability to pay maintenance by husband was a moral as well as legal right of a wife.[13] If a male Hindu did not perform his moral obligation to pay maintenance during his lifetime, then upon his death, the obligation would turn into a legal obligation.[14]

Every member of the joint family has a right to maintenance against the joint family property. It was the duty of the karta to see that all reasonable wants of the family members, were satisfied. If the karta failed to fulfil his duty, the members and even the Hindu wife could enforce it by legal action.

 

HINDU MODERN LAW

Maintenance refers to payment which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances. This liability of the husband flows from the bond of matrimony. A wife is entitled to claim maintenance under the personal laws as well as under the provision of the Code of Criminal Procedure, 1973. While under the personal laws application for maintenance can be made only if there are, or have been, Matrimonial proceedings under the Act, in case of Code of Criminal Procedure, 1973 there need not be any Matrimonial litigation and yet the wife may seek maintenance.[15]

Under Hindu Law, the wife has an absolute right to claim maintenance from her husband but may lose her right under the various conditions. Her right to maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. Justifiable reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the either spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance.

The concept of maintenance in India is covered both under Section 125 of the Code of Criminal Procedure, 1973 (Section 125) and the personal laws. This concept further stems from Article 15(3)[16] reinforced by Article 39[17] of the Constitution of India, 1950. Under Hindu Adoption and Maintenance Act,[18] the term “maintenance” includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents. It is a measure of social justice and an outcome of the natural duty of a man to maintain his wife, children and parents, when they are unable to maintain themselves.[19]

 

TYPES OF MAINTENANCE

There are two types of maintenances:-

(1) Interim maintenance and maintenance pendente lite

(2) Permanent maintenance

The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the petitioner. And maintenance pendente lite is for providing the litigation expenses to the claimant. Interim maintenance is the amount that is paid by the financially independent spouse to their counterpart during the pendency of the proceedings in the matrimonial cause and which covers the expenses of the proceedings as well as the other expenses of the spouse during the course of the proceedings. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. But the provision on the amount of the maintenance and it is upon the discretion of the court to determine the same.

Section 24:

It provides of Hindu Marriage Act, 1955 (HMA) for maintenance. It talks about how either the wife or the husband can claim for interim maintenance. The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the petitioner. And maintenance pendente lite is for providing the litigation expenses to the claimant.

Interim maintenance can be claimed either by the husband or the wife, under the Hindu Marriage Act and The Divorce Act is called “Alimony Pedente Lite.” Under all other statutes, the wife is the only spouse who can claim it. Section 36 of the Divorce Act[20] says that the wife may file a petition for interim maintenance, regardless of who instituted the suit and whether the wife obtained an order for protection. It also says that the petition for the expenses of the proceedings and alimony pending the suit should be disposed of within sixty days of the service of the petition on the husband.

Section 25[21]:

Permanent maintenance, on the other hand, is the maintenance that is paid by one spouse to the other after the judicial proceedings have resulted in either the dissolution of the marriage or a judicial separation. The act talks about permanent maintenance; it states that how the court can order the respondent to pay the applicant for her or his maintenance a gross sum or a monthly or periodical sum for a term not exceeding the life of the applicant unless there are changes in circumstances under which the court can change its order.

In India, family courts can pass an interim order on maintenance to a spouse when she/he is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. So, a lawsuit for divorce or judicial separation is not mandatory to apply for monthly maintenance.

Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce.[22]

But as a matter of fact, the wife doesn’t always get the maintenance amount so asked for, the same is supported by a case, In the matter of Mamta Jaiswal vs. Rajesh Jaiswal[23], as the Madhya Pradesh High Court did not grant neither an enhancement of interim maintenance nor any money to the wife’s companion for travel to the court for fighting the divorce case. In this case Mamta was educationally qualified and had been working as a college lecturer, even though later she lost her job. Hon’ble J.G. Chitre remarked:

“The submission made on behalf of Mamta, the wife, is not palatable and digestible. This smells of oblique intention of putting extra financial burden on the husband. Such attempts are to be discouraged.”[24]

 

PROBLEMS FACED BY THE WIFE

With the result, the Indian home has become the safest place for men to commit violence against women who are defenceless. To overcome this age-old disability, The Hindu Marriage Act (HMA), 1955, The Hindu Succession Act (HAS), 1956, The Hindu Adoption and Maintenance Act (HAMA), 1956 and The Hindu Guardian and Wards Act (HGWA), 1956 have been enacted. The State tries to empower married women through its policies and laws mentioned above. But due to their ineffective implementation, the Constitutionally-mandated concept of equality continues to be a mere paper blessing, far divorced from the touch of reality. So much so Hindu wife is not entitled to maintenance by spouse’s family under Hindu Adoptions and Maintenance Act, 1956. This paradox is the result of patriarchal norms and values institutionalized by the State. This leads to creation of inferior image of a woman which is an age-old tragic reality of Indian society. My main aim here is to try to lay down and justify the rights of maintenance of a Hindu married woman, whose husband is unable to provide maintenance to her under Hindu Adoptions and Maintenance Act, 1956 so that they are well aware of their rights and fight for the same when needed so that no one is left deprived.

 

MAINTENANCE RIGHTS UNDER “HINDU MARRIAGE ACT, 1955”

 

A.    SECTION 24 OF HINDU MARRIAGE ACT, 1955:

Section 24 provides of Hindu Marriage Act, (HMA) 1955 provides for maintenance and talks of Maintenance pendent lite and expenses of proceedings-

“Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.”

Section 24 is applicable when the marriage itself is valid. If the marriage itself is not valid (that is it is a void marriage), then wife cannot claim maintenance under section 24 of Hindu Marriage Act.

One of the conditions provided for a valid Hindu marriage is that neither party should have a spouse living at the time of marriage.[25] Hence, second marriages are declared null and void ab initio.

On the other hand, under this Act also, only a wife has a right to claim maintenance. The Hindu husband has a legal obligation to maintain his wife during his lifetime. However, if a wife ceases to be Hindu or lives separately under no legal grounds she loses the right to claim maintenance too. Also, a Hindu wife under this act shall not be entitled to separate residence and maintenance from her husband if she is unchaste or converts to another religion. Wife can claim separate residence only if husband remarries and the other wife stays in the same house.

The ambit of this above section is stated by the Honourable High Court in the case of K.R. Sagayaraj v. Mrs.C. Rajammal[26] in which the Court held that:

“The purpose behind Section 24 of the Hindu Marriage Act is that parties to a matrimonial cause should not take undue and unfair advantage of a superior financial capacity to defeat the rightful claims of a weaker party and the proceedings under Section 24 of that Act serve a limited purpose, i.e., during the pendency of proceedings under that Act, to enable the weaker party to establish rights without being in any manner hindered by lack of financial support. If the special nature of the statutory right under Section 24 of that Act and its purpose, are borne in mind, it is at once clear that the enforcement of that right, cannot in any manner be hedged in by a consideration of proceedings otherwise initiated, either under Section 125, Cr.P.C or under the ordinary law.”

In Sandeep Kumar v. State of Jharkhand[27] , where a husband had filed a petition under section 12 of the Act for declaration that the marriage was null and void, his plea that no maintenance under section 24 could be ordered was rejected. The court held that “so far as section 24 is concerned the wife’s right to seek maintenance is not affected and it is immaterial whether the main petition is under section 12 or it is under section 13.” [28]

There is one more case of T.P. Sudheesh Babu v. Sherly[29] in which a husband had filed a petition under section 12 of the Act for declaration that the marriage was a nullity; thereupon the wife filed an application under section 24. The issue was, whether section 24 is applicable when the proceedings before the court are under section 12 for declaration of nullity of the marriage. The court held that section 24 applies to “any proceeding” under the Act and no exception can be carved out for proceedings under section 12 of the Hindu Marriage Act, 1955. However since maintenance pending litigation can be granted only during pendency of proceedings.

Once these are disposed of arrangement as to payment of maintenance also comes to an end and the party cannot insist on payment beyond date of disposal of the main proceedings.[30] However Since maintenance pending litigation can be granted only during pendency of proceedings. Once these are disposed of arrangement as to payment of maintenance also comes to an end and the party cannot insist on payment beyond date of disposal of the main proceedings. Maintenance pendente lite can be granted even before first making effort for reconciliation.[31]

 

     (B) SECTION 25 OF HINDU MARRIAGE ACT, 1955:

It talks about PERMANENT ALIMONY AND MAINTENANCE-

(1) Any court exercising jurisdiction under this Act may, at the time of passing- any decree or at any time subsequent thereto, on application made to it for purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, verify, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just]

The expression used in the opening part of Second 25 of the Act enabling the `Court exercising jurisdiction under the Act’ at the time of passing any decree or at any time subsequent thereto’ to grant alimony or maintenance cannot be restricted only to a decree of judicial separation under Section 10 or divorce under Section 13[32]. When the legislature has used such a wide expression as `at the time of passing any decree’, it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13. [33]

Amount of maintenance may be altered on change of circumstances- The amount of maintenance, whether fixed by a decree of court or by agreement either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.

It is with the purpose of not rendering a financially dependent spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.[34]

 

      (C) SECTION 23 OF THE HINDU MARRIAGE ACT, 1955:

Section 23[35] clarifies or defines the people who get maintenance and how much of maintenance i.e. the amount they can get keeping in mind the various things. The court in the case of awarding maintenance has the authority to give the maintenance after analysing various factors. The factors which are considered by the court according to section 23(2) and section 23(3) are:-

Section 23(2):

(a) The position and status of the parties.

(b) The reasonable wants of the claimant

(c) If the claimant is living separately, whether the claimant is justified in doing so,

(d) The value of the claimant’s property and any income derived from such property, or from the claimants.

(e) The number of persons entitled to maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to –

Section 23(3), in determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to:-

(a) The net value of the estate of the deceased after providing for the payment of his debts.

(b) The provisions, if any, made under a will of the deceased in respect of the dependant.

(c) The degree of relationship between the two.

(d) The reasonable wants of the dependants.

(e) The past relations between the dependant and the deceased.

(f) The value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other source.

(g) The number of dependants entitled to maintenance under this Act.” [36]

Maintenance is the amount which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances thus, the court awards maintenance to the wife considering various factors into consideration like status and position of the parties, wife’s wants, the value of wife’s property and income if any, derived from that property and the number of persons entitled to maintenance. The section says that the maintenance is given on the basis of the degree of relation between the two partners.

I don’t understand how the court can determine the degree of the relation between a husband and wife, I think the husband and the wife can only determine the same and the court has no idea and no statue can define a relation.

From the above discussion, it can be concluded that Law of maintenance with no doubts is inclined towards the females. Although the given laws may sound unjust to a few but reasonably they seem to be correct as in our country even till date women do not have the social status equal to that of men. Hence, it won’t be incorrect to infer that Law makers while formulating these provisions must have kept in mind the situation of the women in the patriarchal society of India. The women of both the communities are suffering due to being poor, being women and then being a part of the patriarchal society.

But these days women are doing as good as the men in our country and some women are even above the men. Thus the laws so formed were made by looking at the conditions of women in the earlier time but I won`t say that the time has changed but has improved a lot. But as a matter of fact till date there are still many people who have backward thinking and treat the women in a bad way. Thus these laws are biased but in a way is the only hope to save them from the unjust of the society.

 

MAINTENANCE RIGHTS UNDER “HINDU ADOPTIONS AND MAINTENANCE ACT, 1955”

(A) SECTION 18 MAINTENANCE OF WIFE:-

A Hindu wife has the advantage of an additional statue that is the Hindu Adoptions and Maintenance Act, 1956. Under section 18 of this Act[37] a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance, provided her separate living is justified which means that the husband.

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-

The grounds under which she can live separately are:

1)      Husband is guilty of desertion

2)      The Husband has treated her with cruelty

3)      The husband is suffering from a virulent form of leprosy

4)      The husband has any other wife living.

5)      The husband keeps a concubine elsewhere

6)      The Husband has ceased to be a Hindu by conversion to another religion and

7)      If there is any other cause justifying living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

The two bars which will prevent a wife from claiming maintenance from her husband i.e.

(i)                 if she is unchaste or

(ii)               If she ceases to be a Hindu by conversion to another religion.

The wife is entitled to live separately without forfeiting her right to maintenance, if her husband is guilty of desertion, if he subjects the women to cruelty, if he is suffering from a leprosy, if he has any other wife living, keeps a concubine in the house where his wife resides, if he has ceased to be a Hindu, or if there is any other cause justifying her to live separately under Section 18(2) of the HAMA[38].

In the case of Meera Nireshwalia v. Sukumar Nireshwalia[39] the following facts were as follows and she was held entitled to get the maintenance,

(i) The wife had been living alone and all the children had been brought up by her without any assistance and help from the husband and there was a clear case of desertion, the wife was entitled to separate residence and maintenance;

(ii) The thoughtless action of the husband of evicting the wife from the house where she had been living in collusion with the purchasers of the house and the police inflicted a deep wound on her amounting to cruelty, the wife was entitled to live separately and claim maintenance;

(iii) The claim for maintenance by a wife can also be sustained under clause (g) even on a ground covered by one or other clauses i.e. clause (a) to (f) of section 18(2) substantially but not fully. Merely because the wife fails to strictly prove the specific grounds urged by her, she cannot be denied relief.[40]

It is pertinent to note that a claim for separate maintenance under this provision can be made only when there is a subsisting marriage. A divorced wife is not entitled to maintenance under the provision of section 18 of this Act[41]

In the case of Bauramma v. Siddappa,[42] where there was wife claiming for maintenance under section 18 of this Act on the ground of Desertion, the defence taken by the husband who had another wife was that their marriage had been dissolved as per “an arrangement to live separately”. The trial court held that there was no Desertion and further that she being divorced was not entitled to maintenance under the provision of the Hindu Adoption and Maintenance Act. The High Court held that the second marriage of the husband having been established, no further proof of desertion was required, and further, “an arrangement to live separately” even assuming that it is proved, cannot bring the marriage into an end, the wife claim thus justifiable cause and who, in the opinion of the court had no respect for the martial bond was held not to be entitled to claim maintenance order the provisions of section 18 of Hindu Marriage and Maintenance Act.[43]

On the other hand in the case of Atul Sashikant Mude v. Niranjana Atul Mude[44] the High Court finds that: “It is relevant to notice that under sub-section (2) of section 18, the Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance inter alia if he is guilty of desertion or of wilfully neglecting her and if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband or if there is any other cause justifying her living separately”.

According to me the exception given in this section according to which a wife cannot claim maintenance if she is converted from some other religion into a Hindu is not right. Now as the wife is related to a Hindu family and if she has married according to the Hindu religion and she is governed by Hindu law than she should not be separated from the rights which other women get as a Hindu lady.

(B) SECTION 19 Maintenance of widowed daughter-in-law:-

Under this act a (Hindu) wife after the death of her husband is entitled to be maintained by her Father in-law, provided she has no means of her own earnings. However, the right cannot be enforced if her Father in-law does not have means to do so and if the wife remarries. The section states as follow:

(1)   A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.

Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance-

(a) From the estate of her husband or her father or mother, or

(b) From her son or daughter, if any, or his or her estate.

(2)   Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.[45]

In Raj Kishore Mishra v. Smt. Meena Mishra,[46] Court held that the obligation of father-in-law shall not be enforceable if he has no means to maintain his daughter-in-law from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share. The object of this Section is to make it clear that the widowed daughter-in-law can claim maintenance from her father-in-law only where she is unable to maintain herself out of her own property or from the estate of her husband, father, mother, son or daughter. It is also provided that the father-in-law shall be under no obligation to maintain his daughter-in-law except in cases where there is some ancestral property in his possession from which the daughter-in-law has not obtained any share.

 

 

 

MAINTENANCE RIGHTS UNDER “CODE OF CRIMINAL PROCEDURE, 1973”

 

SECTION 125: ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

Under CrPC, only wife (a woman who has been divorced by or has obtained divorce from her husband & hasn’t remarried) can claim for maintenance. A wife who refuses to stay with her husband due to legal grounds such as (bigamy, cruelty & adultery) has the right to special allowance under this act. But a wife does not possess right to claim maintenance if she’s living in adultery or she’s living separately by mutual consent. The various sections of CrPC are criminal in nature and are used for the criminal charges. The Section 125 of the CrPC states the provisions as follows:

(1)   if any person having sufficient means neglects or refuses to maintain-

a)      His wife, unable to maintain herself, or

b)      His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

c)      His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

d)      His father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Section 125 of Criminal Procedure Code recognizes the illegitimate child entitled to maintenance but an illegitimate wife has no right to claim maintenance. It is unfortunate for women who, without any knowledge of the subsistence of the first marriage of the husband, get married, enter into the wedlock and are barred from claiming the rights that a legally wedded wife gets. It is apparent from Section 125 that only a woman, who is a legally wedded wife or one who is legally separated and is not remarried or who has been divorced from her husband, can claim maintenance. There have been numerous cases where the husband misrepresents to the woman that he is unmarried or has been divorced and when the woman finds out that she was defrauded into the second marriage by false representation, she is not even entitled to claim maintenance since the marriage has been solemnized against Section 5(i) of the Hindu Marriage Act 1955. Her claim for maintenance under Section 125[47] fails because she is not legally married.

Maintenance can be easily claimed through various respective laws of people following their various faiths and proceedings under such personal laws are civil in nature. Whereas the proceedings generated under Section 125 however, are criminal in nature and unlike personal laws, are of summary nature and are applied to everyone irrespective of caste, creed or religion.[48] However the very objective of such proceedings is different it is not to punish a person for his past neglect. The said provision has been enacted to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and have a moral claim support.[49] Under the provisions of Section 125, the burden lies upon the wife, i.e., the claimant, to prove that the husband, i.e., the other party, has sufficient means and has neglected or refused to maintain her and that she is unable to maintain herself.

The fact that a wife is working can be taken into account in fixing the quantum of maintenance but that would not debar her from claiming it. Thus where a wife was driven out of the matrimonial home because she refused to give consent to her husband marrying another woman and the wife was working but her job was not permanent, it was held that the husband could not take the plea that she would be able to maintain herself and so he has no liability to pay.[50] The case of Shravan Kumar v. Usha Devi[51] , also played a major role, where the court held that the words ‘unable to maintain in Section. 125 have nothing to do with the potential earning capacity of a wife.

Grant of maintenance to wife has been perceived as ameasure of social justice by this Court. In CaptainRamesh Chander Kaushal v. Veena Kaushal[52], it has been ruled that:- “Section 125 Cr.P.C is a measure of social justice and is specially enacted to protect women and children and it falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat[53]”.

 

LIVE-IN RELATIONSHIP

Marriage in the Indian society has been considered as a sacred bond since the Vedic period. This concept of matrimony has continuously evolved with time. With the ever-changing society and human psychology, the concept of marriage and relationship has also evolved. The upcoming generations are considering relationships ever more liberally. One such concept of live-in relationships is being adopted by numerous couples around the world. The relationships where two people cohabit outside marriage without any legal obligations towards each other are known as live-in relationships. This is a relationship in the nature of marriage but unlike a marriage. This concept has slowly paved its way in the Indian scenario as well. However, such relationships are considered a taboo in the Indian society. Although the legal status of live in relationships in India is unclear, the Supreme Court has ruled that any couple living together for a long term will be presumed as legally married unless proved otherwise. Thus, the aggrieved live-in partner can take shelter under the Domestic Violence Act 2005, which provides protection and maintenance and thereby grant the right of alimony.

Live-in relationship in simple terms can be explained as a relationship in the nature of marriage where both partners enjoy individual freedom and live in a shared household without being married to each other. It involves continuous cohabitation between the parties without any responsibilities or obligations towards one another. There is no law tying them together and consequently either of the partners can walk out of the relationship, as and when, they will to do so.

The right to maintenance in live in relationship is decided by the court in accordance with the Domestic Violence Act, 2005 and the individual facts of the case.[54]

Badri Prasad vs. Dy. Director of Consolidation[55] was the first case in which the Supreme Court of India recognized live in relationship and interpreted it as a valid marriage. In this case, the Court gave legal validity to a 50 year live in relationship of a couple. It was held by Justice Krishna Iyer that a strong presumption arises in favour of wedlock where the partners have lived together for a long term as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law leans in favour of legitimacy and frowns upon bastardy.

The recent judgment of Indra Sarma vs. V.K.V.Sarma[56], the Supreme Court has illustrated five categories where the concept of live in relationships can be considered and proved in the court of law. Following are the categories, domestic relationship between:

1.      An adult male and an adult female, both unmarried. It is the most uncomplicated sort of relationship

2.      A married man and an adult unmarried woman, entered knowingly.

3.      An adult unmarried man and a married woman, entered knowingly. Such relationship can lead to a conviction under Indian Penal Code for the crime of adultery

4.      An unmarried adult female and a married male, entered unknowingly

5.      Same sex partners ( gay or lesbian)

The Court stated that a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the Protection of women Against Domestic Violence Act, 2005 and provided certain guidelines to get an insight of such relationships. Also, there should be a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account, including the individual factors.

In a recent case of May 5th, 2015, the Supreme Court bench of Justices Vikramajit Sen and A M Sapre, dismissed a petition by the petitioner ‘Z’ who worked in the Bollywood and contended that the respondent could not claim the status of a wife to be legally entitled to get maintenance under the Hindu Marriage Act, 1955. The Court held that cohabitation of a couple would give rise to the presumption of a valid marriage and if a live in relationship breaks down, the man is bound to pay maintenance to the women.

Thus, the legal status of live-in relationships in India has been evolved and determined by the Supreme Court in its various judgments. However, there is no separate legislation which lays down the provisions of live in relationships and provides legality to this concept. The Supreme Court states that living together is a right to life and therefore it cannot be held illegal. The court has also tried to improve the conditions of the women and children borne out of live in relationships by defining their status under the Domestic Violence Act, 2005.

 

SUGGESTIONS AND RECOMMENDATION

In the light of the foregoing research paper which handled the issue by delving deep into all its intricacies, I support the recommendations of the Law Commission of India which would make a large section of aggrieved daughter-in-laws in heave a sigh of relief. The suggested Right of Hindu wife to Maintenance under Section18 of Hindu Adoptions and Maintenance recommendations to the existing law are insertion of sub-section 4 under Section 18 of Hindu Adoptions and Maintenance Act (HAMA), 1956 as below:

(A)  “Section 18 (4) – Where the husband is unable to provide for his wife, on account of physical disability, mental disorder, disappearance, renunciation of the world by entering any religious order or other similar reasons, the Hindu wife is entitled to claim maintenance during her lifetime, from members of the joint Hindu family of the husband, except where the husband has received his share in the joint family property.”

Explanation: For the purpose of this Section, the term “mental disorder” shall have the meaning assigned to it under the Explanation of the section 13 (1) (iii). [57]

(B)  Also one more interesting and a vague thing which I found during the research on my research paper is that a division of the Bombay High Court which said in its judgment that no maintenance will be granted to the second wife of a Hindu.” [58] According to me this is one of the vaguest judgments I have read during the one and half years of my law school. I would like to criticize this judgment on the basis that this judgment is in a way differentiating amongst women and also there is an angle of gender bias to this judgment. I am saying this on the fact that if the women are the second wife of a Hindu than it is not her fault and in case she is completely financially dependent on the husband than what does she have to do to survive. I think this judgment will is not good socially for the benefit of the society as a whole.

(C)  Maintenance of Wife- Section 18(3) of HAMA, 1956 uses the word ‘unchaste’, which the Researcher recommends to be deleted. Chastity of a woman cannot be put to any test. In our epic Ramayana, the lord Rama tried to test the chastity of his wife Sita‟ by compelling her to undergo Agni-Pariksha, which was crueller than cruelty. In the Mahabharata the similar hard proof for chastity was demanded.

(D) It should be made sure that the case for maintenance is not false or the woman is efficient to work but refuses to do the same thus, the husband should not face cruelty.

(E)It would be suggested that if the desertion is done by wife due to some mental disorder of the husband, then the maintenance should be provided by the husband`s family.

(F)   To provide maintenance to the deserted wife even if the couple is living separately by consent. For example, a married Hindu couple does not have a good relation and fight constantly and they separate by mutual consent and the wife is not qualified enough to earn a living for herself, she should still get maintenance for survival. The law says that if separation is mutually consented, no maintenance will be provided. But I would suggest that in such case as above mentioned, the maintenance should be provided.

(G) The grant of maintenance should be made solely on the basis of need, and legislative provisions that limit maintenance on the basis of subsequent conduct should be deleted.

(H) The burden should be shifted to the earning member to prove his or her income

(I)    It is also submitted that law related to maintenance should be so amended to deal with maintenance of second wife, sister, and partners in live in relations and of husband who is not able to maintain himself etc. in a clear way. It is also seen that position in India is changing.

(J)    It is suggested that more clarity is required in the statutory laws of maintenance so as to leave no scope of misinterpretation by the Courts. Delhi High Court’s observation in the case of Sanjay Bhardwaj & Ors. vs The State & Anr.[59] That “No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not”- is clearly contrary to the intention of legislature behind enacting various provisions of maintenance of wife. Changes should be so made in the enactments that leave no scope of such interpretation.

 

CONCLUSION

The judgments delivered by the Supreme Court and various High Courts of the country from a very long time cast an unavoidable legal obligation on the husband to provide maintenance to his wife. The fact that the husband is responsible gives an absolute right to the wife to claim maintenance and the husband cannot avoid it at any cost. Even if the wife separates from the husband due to his conduct, then also he is supposed to give for her maintenance. This thinking finds support from all the jurists as well as the Hon`ble judges and all the other legal luminaries. The above thinking lends full support to the 252nd Law Commission Report and the researcher also fully agrees to this concept. The court can determine a woman to be chaste or not by her conduct and not if the husbands falsely pleads so.

The removal of the term chastity is essential as the chastity of a woman cannot be put to test. In the famous epic of Ramayana, Lord Rama tested the chastity of his wife Sita when public started talking that she had lived so many days with Ravan then she has become impure. There are no tests which can lay down if a woman is chaste or not. It can be proven only by the woman herself. Therefore, living in the 21st century, I believe that the term unchaste should be removed.

In fixing the amount of maintenance, the court is considers the following matters:

a.       The income and other property of the claimant.

b.      The income and other property of the non-claimant.

c.       The conduct of the Parties and

d.      Any particular circumstance on special features.

 

The State tries to empower married women through its various policies and laws. But due to their ineffective implementation, the Constitutionally-mandated concept of equality continues to be a mere paper blessing, far divorced from the touch of reality. So much so Hindu wife is not entitled to maintenance by spouse`s family under Hindu Adoptions and Maintenance Act, 1956. This paradox is the result of patriarchal norms and values institutionalized by the State. This leads to creation of inferior image of a woman which is an age-old tragic reality of Indian society. The main aim is to justify the rights of maintenance of a Hindu married woman, whose husband is unable to provide maintenance to her under Hindu Adoptions and maintenance act, 1956.

In determining the amount of maintenance the following should to be considered:

1)      The net value of the estate of the deceased after providing for payments of debt

2)      The provision , if any made under a will of the deceased

3)      Degree of relationship with the dependant

4)      Reasonable wants of the dependants

5)      Number of the dependants.

While assessing the income or assets of the husband for ascertaining the maintenance amount, the judges must take assistance from social workers, NGOs and probation officers who could, inter alia, draw inference from, standard of living of the family. Amount of maintenance must be deposited in the court in the beginning of every month, to ensure that the wife receives her dues in time.

The judgments delivered by various High Courts and Supreme Court from time to time cast an unavoidable legal obligation on the father-in-law to maintain his daughter-in-law in an unfortunate event of inability of daughter-in-law’s husband to maintain her. This judicial thinking finds full support from legal luminaries. The above thinking lends full support to the amendments proposed by The Law Commission of India in its 252nd Report (6th January, 2015) titled Right of the Hindu Wife to Maintenance: A relook at Section 18 of the Hindu Adoptions and Maintenance Act, 1956 to make father-in-law obliged to pay maintenance to his daughter-in-law, whose husband is unable to provide maintenance to her under Hindu Adoptions and Maintenance Act, 1956. I fully agree with the proposed Amendment as it is for the betterment for all.

While the chapter on maintenance is given under the Code of Criminal Procedure, but the proceedings under it are essentially regarded as civil by their nature. With the result some confusion does prevail. Right to seek maintenance under s. 125 Cr. P.C is a measure in the alternative to provide for destitute wives. It is an independent right and the pendency of the proceeding under the Hindu Marriage Act in the Family Court is no bar for its maintainability outside the jurisdiction of Family Court.

There is no doubt that the changes as recommended by the Commission are the need of the day. The changes once introduced would certainly uplift the economic independence of women and would help in providing speedy and just maintenance to (women and children; thereby directly facilitate the purpose behind these social legislations.

It is suggested that there is an eminent need for reforms and changes to be introduced in the laws of maintenance of wife and children. The Parliament, the Courts and the society at large must depict their sensitivity over the issue of maintenance recognizing the vulnerability of women and children in this cruel world. Women, being a keeper of hearth in home, need to be protected as they are the foundation of any society. If women are exposed to physical abuses, to sexual exploitation, the very foundation of the society would begin to weaken. It is only after recognizing their importance, sociologically, that the ancient Indian Seers had opined that “Gods dwell only in those houses, where women are respected”[60] Thus, both the law and society must recognize a moral and legal duty of the husband to maintain the wife and children.

 

 

 

 

BIBLIOGRAPHY

· DR. PARAS DIWAN AND PEEYUSHI DIWAN (1990). Law of Maintenance in India. New Delhi: Deep & Deep, Pp. vii-viii.

· PROF. KUSUM, Family Law Lectures: Family Law I, (4th ed. 2015).

· ROMIT AGARWAL, Maintenance: Under Hindu, Muslim, Christian and Parsi Laws.

· DR. PARAS DIWAN, Modern Hindu Law, 23RD ED.

· IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 20, Issue 2, Ver. II (Feb. 2015),

· LAW COMMISSION OF INDIA Report No. 252 Right of the Hindu Wife to Maintenance: A relook at Section 18 of the Hindu Adoptions and Maintenance Act, 1956 January 2015

 

Articles:

1)      Madhu Kishwar, “Codified Hindu Law, Myth and Reality”

2)      Sarkar Lotika “Women‟s Movement and the Legal Process”

 

Web:

1)      http://lawcommissionofindia.nic.in

2)      http://www.lawyerscollective.org/files/LCWRI

3)      http://ncw.nic.in/frmReportLaws17.aspx

4)      https://indiankanoon.org/

5)      http://www.iosrjournals.org/iosr-jhss/papers/Vol20-issue2/Version-2/I020224249.pdf

6)      http://lawcommissionofindia.nic.in/reports/

 

[1] Section 18(1) of the Hindu Adoption and Maintenance Act, 1956
[2] Hindu marriage act, 1955
[3] Hind adoption and maintenance act, 1956
[4] Code of criminal procedure code, 1973
[5] Justice K.Rama Swamy in Madhu Kishwar vs. State of Bihar, ( 1996) 5 SCC 148
[6] Desai Satyajeet Atul , Sir Dinshah Fardunji Mulla, Principles of Hindu Law, Volume 1(20th ed.), New Delhi, LexisNexis Butterworths, 2007 at pg.9
[7] Prof. Vijender Kumar, “Live-In Relationship: Impact on Marriage and Family Institutions”
[8] The Code of Criminal Procedure, 1973, Section 125 order for maintenance of wives, children and parents.
[9] Avtar Singh vs. Jasbir Singh (RSA No. 29/1988 (O&M) in its decision dated 11.02.2014)
[10] Kantimati v. Paramaniara Iyer AIR 1974 Ker 124; Pankajam Das v. Hrishikesh AIR 1986 Ori 184.
[11] The Hindu adoption and maintenance act, 1956
[12] State of Haryana v. Smt. Santra
[13] Paras Diwan and Peeyushi diwan (1990), Law of Maintenance in India
[14] Law Commission of India, Report No. 252, “Right to Hindu wife to Maintenance” January 2015.
[15] PROF. KUSUM, Family Law Lectures, Family Law I, 239 (4th ed. 2015)
[16] Article 15(3) of The Constitution of India states that, “Nothing in this Article shall prevent the state from making any special provisions for women and children.”
[17] Article 39 of The Constitution of India talks about certain principles of policy to be followed by the State
[18] Section 3(b) of Hindu Adoption and Maintenance Act, 1956.
[19] Savitaben Somabhai Bhatiya v. State of Gujarat and Others, 2005 SCC (Cri) 787.)
[20] Section 36 of the divorce act, 1869 talks about  Alimony pendente lite
[21] Hindu marriage act, 1955
[22] http://www.huffingtonpost.in/vandana-shah-/interim-maintenance-during-divorce-is-not-always-the-wifes-lega_a_21449406/
[23]Mamta Jaiswal vs. Rajesh Jaiswal ( II (2000) DMC 170)
[24] https://indiankanoon.org/doc/1728023/
[25] Section 5(i) of Hindu Marriage Act, 1956
[26] K.R. Sagayaraj v. Mrs.C. Rajammal, 2010 SCC Online Mad 5729
[27] Sandeep Kumar v. State of Jharkhand AIR 2004 Jhar 23
[28] Section 12 and 13 of the Hindu marriage act, 1955
[29] Sudheesh Babu v. Sherly AIR 2010 Ker 37
[30] Arvind Chenji v. Krishna Veni, (2010) I DMC 545 (AP)
[31] Sidhertha v. Kanta Bai, AIR 2007MP 59
[32] Mohd. Ikram Hussain v. State of U.P., AIR (1964) SC 1625
[33] Chand Dhawan v. Jawaharlal Dhawan, [1993] 3 SCC 406
[34] Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga (2005) 2 SCC 33.)
[35] Section 23 of the HAMA, 1956
[36] https://www.lawteacher.net/free-law-essays/family-law/maintenance-of-wife-under-hindu-law-essays.php#ftn11
[37] The Hindu Adoption And Maintenance Act,1956
[38] https://www.lawteacher.net/free-law-essays/family-law/maintenance-of-wife-under-hindu-law-essays.php#ftn8
[39] Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.
[40] https://indiankanoon.org/doc/1727980/
[41] Vikas Pandey v. Vandita Gautam, AIR 2013 All 28
[42] Bauramma v. Siddappa AIR 2003Kant 342
[43] G.N.V.K. Durga v. G.E. Sudhakar, AIR 2013 AP 58
[44] Atul Sashikant Mude v. Niranjana Atul Mude, AIR 1998 Bom 234
[45] Hindu Adoptions and Maintenance Act, 1956, Section 18 – Maintenance of wife
[46]Raj Kishore Mishra v. Smt. Meena Mishra, AIR 1995 All. 70.
[47] Section 125 of Criminal Procedure Code
[48] Mohd Ahmed Khan v. Shah Bano Begum and Others, (1985) 2 SCC 556.
[49] Chaturbhuj v. Sita Bai (2008) 2 SCC 316
[50] R. Shivakumar v. Manimegalai, (1998) Cr LJ 2689 (Mad)
[51] http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=304891830000
[52] CaptainRamesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70.
[53] Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636
[54] http://ncw.nic.in/acts/TheProtectionofWomenfromDomesticViolenceAct2005.pdf
[55] Badri Prasad V. Dy. Director Of Consolidation & Ors [1978] Insc 119; Air 1978 Sc 1557; 1979 (1) Scr 1; 1978 (3) Scc 527 (1 August 1978)
[56] Indra Sarma v. V.K.V. Sarma, Crl. App. No. 2009 of 2013; Decided on 26-11-2013 (SC): 2013 (14) SCALE 448 [K.S. Radhakrishnan and Pinaki Chandra Ghose, JJ.]
[57] Section 13(1) (iii) of the Hindu Marriage Act. 1955
[58] https://www.lawteacher.net/free-law-essays/family-law/maintenance-of-wife-under-hindu-law-essays.php#ftn10
[59] On 27 August, 2010 Crl.M.C.No. 491/2009
[60] http://shodhganga.inflibnet.ac.in/bitstream/10603/132500/14/14_conclusion%20and%20suggestion.pdf

Right to Information Act, 2005

It came into force on 12th October, 2005. The basic object of it is to empower the citizens, promote transparency and accountability in the working of the Government, control corruption, and make our democracy work for the people in real sense. It goes without saying that an informed citizen is better equipped to keep necessary vigil on the instruments of governance and make the government more accountable to the governed. The Act is a big step towards making the citizens informed about the activities of the Government.

Right to information is accessible under the Act which is held by or under the control of any public authority and includes a right to inspection of work, documents, records, taking notes, extracts or certified copies of documents or records, taking separate samples of material or obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

All citizens shall have the right to information except people of J & K as the act extends to the whole country except State of Jammu & Kashmir. Section 6 tells that any “person” may request for information in writing or through electronic means English or Tamil along with fees  thus, the word “person” is defined under section 3(42) of the General Clauses Act, 1897 and shall include any company, or association or body of individuals, whether incorporated or not. An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

It applies to both the Central and State Governments and all public authorities including public Sector, government funded organizations/ institutions, schools, hospitals, etc. The public authority is bound to furnish the information, maintain the records for easy access and to publish within 120 days the name of the particular officers who should give the same and in regard to the framing of the rules, regulations etc. and to be disseminated in the prescribed form and manner. In Thalappalam Ser. Coop. Bank Ltd. & others Versus State of Kerala & others, Supreme Court held that any private organisations, including NGOs, which is substantially funded by the government , is within the ambit of Public authority under RTI.

Third party means a person other than the citizen making a request for information and includes a public authority thus, anyone other than the appellant or the respondent. In matters where an appellant is seeking information not regarding his or her own activities, or is asking for details of shared records that list details of several persons other than him or her, information cannot be provided until the third party consents to disclosure and subsequently until the Central Public Information Office after considering the implications of such disclosure allows it. PIO intends to disclose an information supplied by a third party which he has treated as confidential, the PIO, before taking a decision to disclose the information shall invite him to make submission in the matter.

In the case of state of Uttar Pradesh Vs Raj Narain (1974) 4 SCC 428, Supreme Court of India said that the Right to Information is included in the right to freedom of speech and expression explicitly guaranteed in Article 19(1) (a) of the Indian Constitution. “It is not in the interest of the public to cover with a veil of secrecy the common routine business – the responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.” India is a democracy and people are the masters thus, they have a right to know how the governments, meant to serve them, are functioning. Further, every citizen pays taxes; even a beggar on the street pays tax as he buys soap, etc. Therefore, they have a right to know how their money is being spent. The Act also empowers every citizen to ask any questions from the Government or seek any information, take copies of any government documents, inspect any government documents/works or take samples of materials of any Government work.

The public information officer on a receipt of the request, as expeditiously provide the information within 30 days with the prescribed fees or reject the same. Most of all, various exemptions are mentioned from the disclosure of information that are:

a)      Affect the Sovereignty, integrity of country, security, strategy, etc.

b)      Prohibited by any Court of Law or lead to contempt of court.

c)      Breach of Privilege of Parliament or State Legislature.

d)      Commercial Confidence, Trade Secret, intellectual Prosperity and would harm the competitive position of a third party, until for a large public.

e)      Information available in any fiduciary relationship.

f)       Information received in confidence from any Foreign Government.

g)      The disclosure of which would endanger the life or physical safety of any person.

h)      Impede the process of investigation, apprehension or prosecution of offenders.

i)        Cabinet papers and records of deliberations provided the decision of the council of ministers shall be made public in the near future.

j)        Personal information, disclosure of which has no relation to the public but would cause unwarranted invasion of privacy.

k)      Information not denied to parliament or state legislation to not deny.

l)        Decisions reasons and relevant material allowed after the matter is closed.

An appeal can be filed either by applicant or by the third party within 30 days from the receipt of decision given by PIO to the senior officer. But a second appeal within 90 days from the date of receipt of decision may be filled to the Central Information Commission for Central Government Departments there is a State Information Commission for state Government and there decision shall be mandatory.

Insolvency and Bankruptcy Code

Section 3(8): corporate debtor means a corporate person who owes a debt to any person.

Section 5-

(1): Adjudicating Authority, for the purposes of this Part, means National Company Law Tribunal constituted under section 408 of the Companies Act, 2013.

(Section 408 of the Companies Act, 2013: “The Central Government shall, by notification, constitute, with effect from such date as may be specified therein, a Tribunal to be known as the National Company Law Tribunal consisting of a President and such number of Judicial and Technical members, as the Central Government may deem necessary, to be appointed by it by notification, to exercise and discharge such powers and functions as are, or may be, conferred on it by or under this Act or any other law for the time being in force.”)

(20): operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred.

(21): operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority.

Section 8 tells that an operational creditor on the occurrence of a default may deliver a demand notice of unpaid operational debt, copy of an invoice demanding payment of the amount involved in the default. The corporate debtor within a period of ten days of the receipt of the demand notice or copy of the invoice, bring to the notice of the operational creditor—

a)      Existence of a dispute and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute

b)      the repayment of unpaid operational debt— (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor.

Demand notice means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred.

Section 9 tells that after the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment, the operational creditor does not receive payment from the corporate debtor or notice, he may file an application in the prescribed manner and fees before the Adjudicating Authority for initiating a corporate insolvency resolution process. He may propose a resolution professional to act as an interim resolution professional. He shall furnish—

a)      a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor

b)      an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt

c)       a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor

d)      Such other information as may be specified.

Section 9 (5) tells that the Adjudicating Authority shall, within fourteen days of the application, by an order shall admit the application and communicate such decision to the operational creditor and the corporate debtor if the following are fulfilled—

a.       the application is complete

b.      there is no repayment of the unpaid operational debt

c.       the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor

d.      no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility

e.      there is no disciplinary proceeding pending against the resolution professional

And the same will be rejected if the above mentioned are not fulfilled but before rejecting the application, a notice to the applicant will be given to rectify the defect within seven days of the date of receipt of such notice from the adjudicating Authority. Thus, the corporate insolvency resolution process shall commence from the date of admission of the application.

Rules 5 of the code tells that Demand notice by operational creditor shall be delivered with the following documents-

a.       a demand notice in Form 3, or

b.      A copy of an invoice attached with a notice in Form 4.

The demand notice or the copy of the invoice demanding payment may be delivered to the corporate debtor-

a.       at the registered office by hand, registered post or speed post with acknowledgement due, or

b.      By electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor.

Macquarie Bank Limited Appellant Vs. Uttam Galva Metallics Limited

“16. From bare perusal of Form-3 and Form-4, read with sub-Rule (1) of Rule 5 and Section 8 of the ‘I & B Code, it is clear that the ‘Operational Creditor’ can apply himself or through a person authorized to act on behalf of the ‘Operational Creditor’, who hold same position with or in relation to the ‘Operational Creditor’. Thereby such person(s) authorized by ‘Operational Creditor’, holding position with or in relation to the ‘Operational. Creditor’ can only apply.”

“17. In view of such provision we hold that an advocate / lawyer or Chartered Account or a Company Secretary or any other person in absence of any authority by the ‘Operational Creditor’, and if such person do not hold any position with or in relation to the ‘Operational Creditor’, cannot issue notice under Section 8 of ‘I & B Code’, which otherwise can be treated as a lawyer’s notice/ pleader’s notice, as distinct from notice under Section 8 of ‘I & B Code.“

Uttam Galva Steels Limited V. DF Deutsche Forfait AG & Ant.

“30. From bare perusal of Form-3 and Form-4, read with sub-rule (1) of Rule 5 and Section 8 of the I&B Code, it is clear that an Operational Creditor can apply himself or through a person authorised to act on behalf of Operational Creditor. The person who is authorised to act on behalf of Operational Creditor is also required to state “his position with or in relation to the Operational Creditor”, meaning thereby the person authorised by Operational Creditor must hold position with or in relation to the Operational Creditor and only such person can apply.”

AMENDMENT:

On November 23, 2017, President Ram Nath Kovind had given assent to the Insolvency and Bankruptcy Code Amendment Ordinance, 2017, making major amendments to the Insolvency and Bankruptcy Code 2016.

1.       SECTION 5(25): Resolution applicant means a person, who individually or jointly with any other person, submits a resolution plan to the resolution professional pursuant to the invitation made under clause (h) of sub-section (2) of section 25.

2.       Section 25(2)(h) of the Code is amended to enable the Resolution Professional, with the approval of the Committee of Creditors to specify eligibility conditions while inviting Resolution Plans from prospective Resolution Applicants keeping in view the scale and complexity of operations of business of the Corporate Debtor to avoid frivolous applicants.

3.       29A: A person shall not be eligible to submit a resolution plan, if such person, or any other person acting jointly or in concert with such person—

a)                  an undischarged insolvent

b)                  a wilful defaulter

c)                   account has been identified as a non-performing asset for more than a year

d)                  has been convicted of an offence punishable with two or more years of imprisonment

e)                  has been disqualified as a director under the Companies Act, 2013

f)                   has been prohibited from trading in securities by SEBI

g)                  has indulged in undervalued, preferential, or fraudulent transactions

h)                  he has given guarantee on a liability of the defaulting company undergoing resolution or liquidation

i)                    is connected to any person mentioned above (including promoters, management, or any person related to them), or any person related to them)

j)                    Has indulged in these activities abroad.

4.       Section 30(4): The COC may approve a resolution plan by a vote of not less than 75% of voting share of the financial creditors, after considering its feasibility and viability, and other requirements by the Board. The same shall not be approved where the resolution applicant is ineligible under section 29A and may require the resolution professional to invite a fresh resolution plan where no other is available. Where there is ineligibility under clause (c) of section 29A, the applicant shall be allowed, not exceeding thirty days, to make payment of the overdue, but shall not be construed as extension of period for proviso to sub-section (3) of section 12.

5.       Section 35 (1) (f): Provided that the liquidator shall not sell the immovable and movable property or actionable claims of the corporate debtor in liquidation to any person who is not eligible to be a resolution applicant.

6.       Section 235A: If any person contravenes any of the provisions of this Code or the rules or regulations made thereunder for which no penalty or punishment is provided in this Code, such person shall be punishable with fine which shall not be less than one lakh rupees but which may extend to two crore rupees.

Office or Place of Profit

The term office or place of profit is defined under the section 188 of the companies act, 2013, in its explanation and mentioned in the main section.

Section 188 talks about the related party transactions:

Except with the consent of the Board of Directors given by a resolution at a meeting of the Board and subject to such conditions as may be prescribed, no company shall enter into any contract or arrangement with a related party with respect to—

(f) Such related party’s appointment to any office or place of profit in the company, its   subsidiary company or associate company

Explanation: The expression “office or place of profit” means any office or place—

  1. Where such office or place is held by a director, if the director holding it receives from the company anything by way of remuneration over and above the remuneration to which he is entitled as director, by way of salary, fee, commission, perquisites, any rent-free accommodation, or otherwise;
  2. Where such office or place is held by an individual other than a director or by any firm, private company or other body corporate, if the individual, firm, Private company or body corporate holding it receives from the company anything by way of remuneration, salary, fee, commission, perquisites, any rent-free accommodation, or otherwise;

 

The 2 main conditions are:

  1. A person must hold an office or place under a company
  2. The office must be an office or place of profit

Before the amendment and coming of the section 188 on 1st April, 2014, office or place of profit was mentioned under section 314 of the act.

 

Section 314 of the companies act, 1956:


Meaning
of ‘Office or Place of Profit’: any place or office in a Company in which a Director obtains anything by the way of remuneration other than the remuneration to which he is entitled to receive as director. Remuneration may either be in the form of salary, fees, commission, perquisites, the right to occupy free of rent any premises as a place of residence or otherwise. Section 314 of the Companies Act, 1956 regulates the provisions relating to appointment of a director or any relative of Director, a firm, body corporate in which such Director is interested, to an office or place of profit.

Object: The object of the Section is to prevent a Director from being placed in the inconsistent position of being both master and servant. This Section prohibits appointment of Directors or their relatives or firms or companies in which Directors are interested to hold the ‘office or place of profit’ without approval of members in all cases and approval of Central Government in certain cases.

Applicability: The provisions of this section are applicable to both public and private companies

Rule 15(3) companies (meetings of board and its powers) rules, 2014, A company shall not enter into a transaction or transactions, where the transaction or transactions to be entered into is for the appointment to any office or place of profit in the company, its subsidiary company or associate company at a monthly remuneration exceeding two or half lakh rupees as mentioned in the clause (f) of subsection (1) of section 188.

 

Section 188, explanation of the term, “office or place of profit”

 

 

(a) In case the director holds the office or place

 

If the director holding it obtains from the company anything by way of remuneration to which he is entitled as a director, whether as salary, fees, commission, perquisites, the right to occupy free of rent any premises as a place of residence or otherwise

 

 

(b) In case an individual other than a director, firm, private company or other body corporate holds the office or place

 

 

if the individual, firm, private company or body corporate holding it obtains from the company anything by way of remuneration, salary, fee, commission, perquisites, any rent-free accommodation as a place of residence or otherwise;

 

 

The meaning of (a)(i) of section 188 of 2013 is that, if the office or place of profit is held by the director and obtains from the company anything by way of remuneration to which he is entitled as a director, whether as salary, fees, commission, perquisites, the right to occupy free of rent any premises as a place of residence or otherwise. It is related to all related parties and is not limited the directors. The term ‘related party’ includes relatives of the directors. Thus, a director shall be held to be holding an office or place of profit where the director receives from the company anything by way of remuneration over and above the remuneration to which he is entitled to as a director. Therefore, if any payment is made in salary and perquisites by way of fees for rendering technical services or rendering professional services, the office by virtue of which the director becomes entitled to additional remuneration is called as office or place of profit.

Thus the meaning of (a)(ii) of section 188 of 2013 is that,  it refers to office or place of profit held by the individual, firm, private company or body corporate holding it obtains from the company anything by way of remuneration, salary, fee, commission, perquisites, any rent-free accommodation as a place of residence or otherwise then such office is office or place of profit. This means every appointment to any office held by individual, firm, private company or body corporate who is a related party but is not a director will require approval of the board and if it carries a remuneration exceeding the limits prescribed under rule 15(3) of the companies (meetings of board and its powers) rules, 2014 then approval of the shareholders will be required.

Now the definition of the term,

OFFICE OF PROFIT: means an office capable of yielding profit or from which a person might reasonably be expected to make a profit. The actual making of profit is not necessary. The phrase means an office which yields income or profit. One of the essential necessity in determining the question whether an office is an office of profit or not is whether such office carries remuneration in the form of pay or commission. When a person is reimbursed expenses incurred by him, the essential condition that the office carries remuneration in the form of pay or commission is not satisfied. An ‘office of profit ‘must be capable of yielding a profit or pecuniary gain.

An office of profit really means an office in respect of which a profit may accrue. It is not necessary that it should be possible to predicate of a holder of an office or profit that he was bound to get a certain amount of profit irrespective of the duties discharged by him.

The expression “place of profit” means “any office or place in a company in which a director obtains anything by way of remuneration other than the remuneration to which he is entitled as a director”. For e.g., Let us say a director is entitled to commission on net profits as remuneration as approved by the Shareholders. Either director (in addition to his entitlement as director) or his relative or any firm in which director is a partner, a private company in which director or his relative is a member or director, receives any remuneration in the same company, it would be deemed that an office or place of profit is held in that company.

Unless an office or place held by a person under the company carries remuneration, this section cannot apply. Merely because a person holds any position in or under the company, he cannot be said to be holding an office or place of profit; it must carry remuneration in some form. For holding an office of profit, a person need not be in the service of the government.

The office of profit means a position, which brings to the person holding it some pecuniary gain or advantage or benefit. The expression profit connotes an idea of pecuniary gain. If there is really some gain, its label –honorarium, remuneration, salary, is not material. It’s the substance and not the from which matters and even the quantum or amount of the pecuniary gain is immaterial; which needs found out is whether the amount of money receivable by the concerned person in connection with the office he holds, gives him some pecuniary gain, other than as compensation to defray out of his pocket expenses.

The word ‘anything’ in this provision should not be read in isolation but in conjunction with the words following it, namely ‘by way of remuneration’. In other words, the person holding an office of place of profit must obtain from the company something by way of remuneration.

Moreover the word ‘otherwise’ should be read ejusdem generis having regard to the preceding words, namely salary, fees, commission, perquisites, the right to occupy free of rent any premises as a place of residence. Ejusdem generis means ‘of the same kind or nature’.

Thus the expression remuneration encompasses only those payments (in cash or in kind) which forms part of the compensation agreed to be paid by a company to its employee for his services under a contract of service or contract of employment. As mentioned in the section 2(78) of the companies act, remuneration means means any money or its equivalent given or passed to any person for services rendered by him and includes perquisites as defined under the Income-tax Act, 1961”

OFFICE: employment or position as an official; a position of duty, trust or authority. It denotes a duty in the officeholder to be discharged by him as such. It consists in a right and correspondent duty, to execute a public or private duty. It includes place and employment. The term office is defined as one subsisting, permanent, substantive position which had an existence independent from the persons who filled it. The word does not necessarily imply that it must have an existence apart from the person, who may hold it. Cases are known, in which, in order to make use of the special knowledge, talent, skill or experience of certain persons posts are created which exist only for so long as they hold them. It will be difficult to hold that such persons are not holders of the offices. Place means a job, post or office; employment; position. Profit in its ordinary sense means advantage, gain, benefit; pecuniary gain.

 

Whether office holder must be company`s employee– there is nothing in the language of the section that restricts its scope to only employment positions. In other words the expression ‘office or place of profit’ does not imply that the scope of the section is limited to positions of employment (contract of service) held under the company thereby keeping outside its scope the positions which are in the nature of contracts for service. A director or any other person covered by this section may not be in the service or employment of the company and yet be the holder of an office or place of profit under the company.

The supreme court has pointed out in the context of Maharashtra municipality act, 1965, which disqualified a person who held an office or place of profit under the government from becoming a counselor, that for holding an office of profit under government one need not be in the service of government and there need be no relationship of master and servant; however, the substance has to be looked at, not the form; the legislative end is to avoid a conflict between duty and interest and to cut out the misuse of position to advance private benefit.

The supreme court has dealt with the above issue in the context of article 102(1) (a) of the constitution of India concerning the question whether being an auditor of a company by a firm of chartered accountant in which a person to be selected as a member of house of the people amounted an office of profit under the government,

“For holding an office of profit under the government, one need not be in the service of government and there need be no relationship of master and servant between them. The constitution itself makes a distinction between the holders of a government. An auditor as a holder of an office of profit in the two government companies, the Durgapur projects ltd., and the Hindustan steel ltd. Is really under the government of India. Thus he holds an office of profit under the government of India within the meaning of article 102(1) (a) of the constitution.

  • Under the case: GURUGOBINDA BASU V SANKARI PRASAD GHOSAL

 

Also the article 102 (1)(a) of the constitution of India, says that a person shall be disqualified for being chosen as, and for being, a member of either house of parliament if he holds  any office of profit under the government of India or the government of any state, other that the office declared by parliament by law not to disqualify  its holder, it was held by the supreme court that before the provision of the article can be attracted, it must be established that the person was holding an office under the union or the state government and that the office was an office of profit. In other words, the office in question must have been held under a government and to that some pay, salary, emoluments or allowances is attached.

The test for finding if the office in question is an office of profit under the government or not, are:

Q1. Whether the government makes appointment?

Q2. Whether the government has the right to remove or dismiss the holder?

Q3. Whether the government pays the remuneration?

Q4.what are the functions of the holder? Does he perform them for the government?

Q5.does the government exercise any control over the performance of those functions?

The object of the provision is to secure independence of the MPs and to ensure that Parliament does not contain persons who have received favors or benefits from the executive and who consequently might be amenable to its influence.

 

Also there was an Act to declare that certain offices of profit under the Government shall not disqualify the holders thereof for being chosen as, or for being, members of parliament thus, India formed The Parliament (prevention of disqualification) act, 1959, it declared that certain offices of profit under shall not disqualify their holders. The act has been amended several times to exempt holders of various offices from the mischief of the office of profit law.

On the other hand, certain offices were declared to be non-profit. A list of non-profit offices have been mentioned in Part II of the Schedule to the Parliament (Prevention of Disqualification) Act, 1959. The membership of bodies listed in Part I of the same Schedule entails no disqualification on the ground of holding an office. Thus the final interpretation and decision whether a person is disqualified or not rests with the courts and not with Parliament.

  • Sonia Gandhi, a member of Lok Sabha, was appointed the chairperson of national advisory council by the UPA 1 government. After the issue of office of profit was raised, she quit as an MP and sought re-election. The prevention of disqualification act was amended in 2006 to add the position of NAC chairperson to the list of exempted posts.
  • The then Speaker Somnath Chatterjee, too, faced disqualification but was saved by amending the act.
  • Samajwadi Party MP Jaya Bachachan lost her seat for holding the post of chairperson of the Uttar Pradesh Film Development Federation.

The act was again amended in 2013 to save the chairpersons of the national commission for the scheduled castes and national commission for the scheduled tribes from disqualification.

 

CASES:

  • Astley v new Tivoli limited

Article 104 of the articles of the company provided that the office of a director shall be vacated, if he accepts or holds any other office or place of profit under the company (except that of managing director). The plaintiff, a director of the defendant company, was by resolution of the board of directors appointed one of the trustees for the holders of debentures issued by the company, had vacated his office by reason of the aforesaid article. It was held that the trusteeship was a place of profit under the company though there may be difficulty in saying that it was an office under the company. The trusteeship (who was nominated and paid by the company) was held to be the holder of a “place of profit under the company” and therefore incapable of acting as a director under article 104.

  • Ravanna subanna v kaggeerappa

The supreme court held that the plain meaning of the expression (office of profit) seems to be an office must be held (under government) to which any pay, salary, emoluments or allowances is attached. The word “profit” connotes the idea of pecuniary gain, if there is really an again. Its quantum or amount would not be material, but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit. The fee of Rs. 6 given for the out-of-pocket expenses which a person has to incur for attending the meetings of a committee was held to be remuneration for office or place of profit.

The office of lambardar was held to not an office of profit as it was not a post held under the government and no salary or other remunerations was payable to him although he was being paid honorarium of Rs. 900 per month to meet his out of pocket expenses incurred in carrying out his duties.

 

  • Dale v IRC

The testator by his will, under which the taxpayers was one of the five trustees, directed that the taxpayers should receive an annuity of 1,000 pound, a year free of income tax and surtax so long as he should continue to act as trustee. The duties of the trusteeship were onerous and the taxpayer had been chosen for his special qualification. He was assessed to the special contribution under the finance act, 1948, section47 (1), on the basis that his income as trustee was investment and not earned income. It was held that a trusteeship was an office if a testator attached remuneration to it, it was an office of profit.

Lord Normand said that the question is whether the annual sum receivable by the appellant under the testator’s will is income arising in respect of remuneration from an office of profit. The first point to consider is whether trusteeship is within the ordinary sense of the word “office”, thus office is an apt word to describe a trustee’s position, or any position in which services are due by the holder and in which the holder has no employer. A remunerated office is an office of profit. Equally clearly the income received by the appellant because he continues to act as a trustee is income arising in respect of remuneration from his office of trustee.

  • Ashok Kumar Bhattacharya vs Ajoy Biswas (AIR 1985 SC 211)

The Supreme Court held that to determine whether a person holds an office under the Government, each case must be measured and judged in the light of the relevant provisions and sections.

  • A R Sundarasanam v Madras PHJS Nidhi Limited (1985) Comp Cas 776 (Mad)

The Madras High Court in held that the office or place of profit held by a relative of a director is attracted by this section only if the director himself holds an office or place of profit. The words “such director’ in subsection (1) (b) of section 314, referred to the director already holding the office of profit and not to any other director. This lacuna in law is proposed to be plugged by the Companies (Amendment) Bill, 2003 as the article ‘a’ has substituted the words ‘such’ before the word director.
d. A firm in which such director or relative is a partner
e. Any private company of which a director is a director or member
f. Any director or manager of such a private company

A director receiving only sitting fee for attending meetings is not holding an ‘office or Place of profit’

  • Gobind Pritamdas Malkani v Amarendra nath Sircar, (1980) 50 Com Cases 219, 233 (Cal)

The object of section 314 is to prohibit a director and any person connected with him from holding any office or Place of Profit of such sum as may be prescribed unless the company approves it by m

  • Ravinder Kumar Sangal v Auto lamps ltd. (1984)55 Comp Cas 742(Del)

The provisions of this section 314 will be attracted if any of the entities referred to in (b) to (f) receive monthly remuneration of Rs 10,000 or more but less than Rs 50,000 per month. The Delhi High Court held that the word “monthly” necessarily connotes anything taking place once a month, relating to a month, payable every month, based on a month, having a duration of one month, occurring, appearing or being done or acted upon every month or once a month. No other implication has been stressed. Considered in this context, the payment of bonus, reimbursement in lieu of privilege leave not availed, employer’s contribution to provident fund, reimbursement of medical expenses, etc., cannot be treated as events of monthly regularity of occurrence. They are dependent upon certain events happening during the course of the entire year, and as and when they take place.

 

 

Circulars:

[TO BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY

PARTII , SECTION 3, SUB-SECTION (i)]

GOVERNMENT OF INDIA

MINISTRY OF CORPORATE AFFAAIRS

New Delhi, 2nd May, 2011

NOTIFICATION

 

G.S.R. – In exercise of the powers conferred by clause (b) of sub section (1) of Section 642, read with sub-section (1B) of Section 314 of the Companies Act, 1956, the Central Government hereby makes the following Rules in super session of the earlier Notification No. GSR 89(E) dated 05.02.2003 namely:-

  1. (1) SHORT TITLE AND COMMENCEMENT: (1) These rules may be called Director’s Relative (Office or Place of Profit) Rules, 2011.

(2) They shall come into force on the date of their publication in the Official Gazette.

  1. APPLICABILITY: These rules shall apply to all companies registered under the Companies Act, 1956 except as provided in these rules.
  2. APPROVAL OF THE CENTRAL GOVERNMENT IN CASE OF APPOINTMENT OF RELATIVES, etc. OF DIRECTORS: No appointment for an office; or place of profit in a company shall take effect unless approved by the Central Government on an application, in respect of:-

(a) Partner of firm or relative of a director or manager; or

(b) Firm in which such director; or manager of relative of either is a partner; or

(c) Private Company of which such director or manager or relative of either is a director; or member, which carries a monthly remuneration exceeding, Rs. 2,50,000/- p.m,

(d) An individual who is a relative of a director; or a manger and is appointed as an Advisor or Consultant and paid remuneration including commission on periodical basis.

  1. SELECTION OF RELATIVES OF DIRECTORS AND DIRECTORS TO HOLD A PLACE OF OFFICE/PROFIT:-

(a) The selection and appointment of a relative of a director for holding office or place of profit in the company with a salary exceeding Rs. 2,50,000/- per month shall be approved by adopting the same procedure applicable to non-relatives and approved by a Selection Committee.

EXPLANATION: For the purpose of the sub-rule, in the case of listed public companies, the expression “Selection Committee” means a committee, consisting at least three members, the majority of which shall be independent directors and an outside Expert. Provided that in case of unlisted companies, independent directors are not necessary but outside experts should be there in the Selection Committee. Provided further that in the case of private companies, Selection Committee is not necessary.

  1. PROCEDURE FOR EXAMINATION OF APPLICATION : The application under rule 3 shall be examined with respect to the following, in addition to all other requirements under the Companies Act, 1956 :-

(a) In the case of individual appointee, an undertaking from him that he/she will be in the exclusive employment of the company and will not hold a place of profit in any other company.

(b) The monetary value of all allowances and perquisites and of total remuneration package (monthly/annually) proposed to be paid to the appointee and details of the services that will be rendered by him to the company.

(c) Details of shareholding pattern particularly the shareholding of the directors along with his/her/their relatives, the public holding, institutional holding (each institution separately) and the quantum of dividend paid by the company during the last three preceeding financial years.

(d) Details of the educational qualification/experience, pay scale, allowances and other benefits of similarly placed executives.

(e) In case of the appointment of a relative, an undertaking from the Director/Company Secretary of the company that the similarly placed employees are getting the comparable salary.

(f) List and particulars of the employees who are in receipt of remuneration of Rs 2,50,000/- or more per month.

(g) The total number of relatives of all the directors either appointed as Managing/Whole time Director, Manager or in any other position in the company; the total remuneration paid to all of them altogether as a percentage of profit as calculated for the purpose of Section 198 of the Companies Act, 1956.

(F.No. 17/75/2011-CL-V)

-SD/-

(Dr.T.V.Somanathan)

Joint Secretary to the Government of India

 

 

Law Making Process

India is a democracy having quasi-federal structure of Government. Thus the Constitution of India is Supreme and is the result of the will of the people. Thus there is the procedure of separation of power where in there are 3 heads i.e. legislature, executive and judiciary. It is the Constitution that has given the Parliament the right to make laws and the Judiciary to interpret them.

Laws are made separately at different levels, by the Union Government for the whole country and by the State Governments for their respective states as well as by local municipal councils at district level. The Legislative procedure in India for the Union Government requires that proposed bills pass through the two legislative houses of the Indian parliament, i.e. the Lok Sabha and the Rajya Sabha.

Thus the laws so formed can be Union Laws made in Parliament (Lok Sabha and Rajya Sabha) or State Laws made in respective state assemblies (Vidhan Sabha and Vidhan Parishad). A law relating to financial matter (Money Bill) can only originate in the lower house (Lok Sabha or Vidhan Sabha). All other laws can be initiated in either house.

How a Bill becomes an Act in Parliament
Legislative proposals are brought before either house of the Parliament of India in the form of a bill. A bill is the draft of a legislative proposal, which, when passed by both houses of Parliament and assented to by the President, becomes an Act of Parliament. It has to pass through various stages before it becomes an Act of Parliament. There are three stages through which a bill has to pass in one House of Parliament:

·         First reading – introduction stage: Any member or member-in-charge of the bill seeks the leave of the house to introduce a bill. If the bill is an important one, the minister may make a brief speech, stating its main features.

·         Second reading – discussion stage: This stage consists of consideration of the bill and its provisions.

·         Third reading – voting stage: This stage is confined only to arguments either in support of the bill or for its rejection as a whole, without referring to its details. After the bill is passed, it is sent to the other house.

As soon as the bill has been framed, it has to be published in the newspapers and the general public is asked to comment in a democratic manner. The bill may then be amended to incorporate the public opinion in a constructive manner and then may be introduced in the Parliament by ministers. Bills may be classified as public bills and private bills. A public bill is one referring to a matter applying to the public in general, whereas a private bill relates to a particular person or corporation or institution.

President’s approval
When a bill has been passed, it is sent to the President for his approval as per Article 111. The President can assent or withhold his assent to a bill or he can return a bill, other than a money bill which is recommended by president himself to the houses. However Article 255 says that prior recommendation of president or governor of a state wherever stipulated is not compulsory for an Act of parliament or of the legislature of a State but the final consent of president or governor of a state is mandatory. President may be of view that a particular bill passed under the legislative powers of parliament is violating the constitution; he can send back the bill with his recommendation to pass the bill under the constituent powers of parliament following the Article 368 procedure. President shall not withhold constitutional amendment bill duly passed by parliament per Article 368.

If the President gives his assent, the bill is published in The Gazette of India and becomes an Act from the date of his assent. If he withholds his assent, the bill is dropped, which is known as absolute veto. If he withholds his assent, the bill is dropped, which is known as pocket veto. The pocket veto is not written in the constitution and has only been exercised once by President Zail Singh in 1986, over the postal act where the government wanted to open postal letters without warrant. If the president returns it for reconsideration, the Parliament must do so, but if it is passed again and returned to him, he must give his assent to it

 

Coming into force
Therefore, the last step in the law making procedure is the publication of the act in the Gazette of India; this is also termed as notification. In other words, the act has been notified to public at large when it is published in the Gazette of India.  Thus is the official way of informing the public of the new law, and they cannot plead ignorance of the same.

Commencement of the notification:

 

1.    The date of coming into force, if mentioned in the published act in the Gazette of India, would be the date when it shall become enforceable.

2.    If the date of coming into force is not mentioned in the published act in the Gazette of India, then the date it receives assent from the president shall be the date when it shall become enforceable.

3.    The date of coming into force can also be postponed by the government to any future date. In such a case, the entire enactments or parts thereof shall come into force on a date appointed by the government through a notification in the Gazette of India.

CASE: In Sanjiv Kumar V. M/s Ramwa chit funds (P) Ltd., the High Court stated,

“7. Section 5 of the General Clauses Act, 1987 states that any Central enactment not expressed to come into operation on any particular date, shall come into operation on the date it receives assent of the President. Therefore, a central enactment comes into force or operation on the date it receives presidential assent. This general rule is, however, subject to a specific provision in the enactment to the contrary. The legislature can postpone commencement of an Act to a future date. It can delegate and empower the appropriate government to decide and fix a date on which the entire enactment or parts thereof shall come into force.   The central government can also be permitted to fix different dates on which an enactment shall come into force in different parts of the country.”

 

Amendment of the constitution

The process of addition, variation or repeal of any part of the constitution by the Parliament under its constituent powers, is called amendment of the constitution. The procedure is laid out in Article 368. An amendment bill must be passed by each House of the Parliament by a majority of the total membership of that House when at least two-thirds members are present and voted. In addition to this, certain amendments which pertain to the federal and judicial aspects of the constitution must be ratified by a majority of state legislatures. Basic structure of the Indian constitution cannot be altered or destroyed through constitutional amendments under the constituent powers of the Parliament without undergoing judicial review by the Supreme Court.

In the case of Kesavananda Bharti v. State of Kerala, it over ruled Golaknath v. State of Punjab but did not reestablish parliamentary supremacy. It stated that fundamental rights may be amended by the parliament, but not all of them. Those fundamental rights which constitute the basic structure of the Constitution cannot be abridged. Golaknath gave primacy to fundamental rights. Keshvananda recognizes that some other provisions in the Constitution may be equally important; if they form the basic structure they are unamendable. Under Art.368 the parliament cannot rewrite the entire Constitution and bring in a new one.

Supreme Court

There is broad separation of powers under the Constitution, and hence one organ of the State should not interfere in the duties of another organ. The judiciary should not therefore seek to perform legislative or executive functions. But the Supreme Court can issue guidelines if no rule or law has been stated or exists. For example:

1.    The Supreme Court in Vishaka vs. State of Rajasthan (1997) 6 SCC 241, issued Guidelines to tackle sexual harassment in workplace as no law existed for the same.

2.    Supreme Court has put a cap of 50% on the percentage of reservation allowed in the country in any field be it education or employment.

The Supreme Court’s position on constitutional amendments laid out in its judgments is that Parliament can amend the Constitution but cannot destroy its “basic structure”.

Conclusion

The purpose of framing the Indian constitution is to serve with honesty, efficiency and impartiality for the betterment of its citizens by the people who are heading or representing the independent institutions created by the constitution such as judiciary, legislature, executive, etc. When one or more institutions are failing in their duty, the remaining shall normally take the lead in correcting the situation by using checks and balances as per the provisions available in the constitution. Thus the three heads, i.e. the legislature, executive and judiciary should work together and not interfere in each other’s work so allotted by the constitution so as to maintain peace and harmony.