Protection of Women Against Domestic Violence and Maintenance

Regarded as a severe social offense, domestic violence in India records one of the highest numbers of incidences in the world. Millions of people face it, mostly women, regardless of their gender, status, religion, caste, sexual orientation, or age.

The term domestic violence is most commonly used to refer to violence occurring within a married relationship, where one partner, usually male or his family, uses a pattern of assault and intimidating acts to impose power and control over the other partner, typically female. Generally, such violence targets the victimization of women. Sadly, many women face this as a regular household problem and choose to keep quiet for family reputation.

As the offense is common in India, the government and authorities strive to protect women in every possible manner. The Protection of Women from Domestic Violence Act, 2005 and various amendments in Criminal Law have been implemented to safeguard the modesty and dignity of women.

The concept of maintenance supports a woman’s modesty by providing necessary economic means to sustain basic dignified life. Specifically, maintenance is explained under Section 3(b)(5) of the Hindu Adoptions and Maintenance Act, 1956. However, there are some substantial judgments questioning whether the wife should be provided maintenance under the Domestic Violence Act, 2005. Maintenance, also referred to as 'Monetary Relief,' is mentioned in section 2(k)(6) of the Domestic Violence Act, 2005, and is further explained under 20(1)(d) of the same.

The Concept of Maintenance Under Domestic Violence

As discussed, Monetary Relief (maintenance) is mentioned under section 2(k)(6) of the Domestic Violence Act, 2005, Section 24 of The Hindu Marriage Act, and Section 18 of Hindu Adoptions and Maintenance Act, 1956. Recent judgments clarify that under section 20 of the act, the wife is not liable for any monetary relief if domestic violence is not proved. One recent judgment by a High Court in India states that if the woman is unable to prove domestic violence, then neither she nor her children are liable to get any monetary relief.

Maintenance by Indian laws is covered under Section 125 of the Code of Criminal Procedure, 1973, and the personal laws. The term includes a right to food, clothing, and shelter, being available to wife, children, and parents. Maintenance is essentially an outcome of a man's social and moral responsibility to maintain the well-being of his wife, children, and parents, even after separating from them.

A common misconception is that a working woman is not entitled to maintenance or cannot claim it because she is earning and capable of maintaining her own family. The Indian laws and courts acknowledge the right of a woman to claim maintenance from her separating or divorcing husband, even if she earns a monthly income, considering that it may not be enough to maintain her and her children's life.

In the case of Savita Bhanot vs. Lt.co. V.D Bhanot, filed under Protection of Women Against Domestic Violence Act, 2005, the court's judgment was that the wife is entitled to maintenance even if the domestic violence occurred prior to the act coming into force.

Acts of gender-based violence affecting women, including physical, psychological, or sexual violence, are considered domestic violence. This includes threats of such acts, coercion, or arbitrary deprivation of her liberty in both public and private life. Hence, the Protection of Women against Domestic Violence Act, 2005, is present to safeguard women of all caste, creed, race, religion, and status in India.

The Laws for Domestic Violence

According to a recent survey, 70% of women in India have been or are victims of domestic violence. The Indian Penal Code, 1863 section 498(a) first addressed this issue, focusing on women's husbands and relatives subjecting them to cruelty.

The Protection of women against domestic violence, 2005 came into force on 26 October 2006, by the Parliament of India. This act differs from section 498(a) of IPC by providing a broader definition of Domestic Violence.

Various provisions have been made under different statutes, such as Section 304(b) of the Indian Penal Code, 1983, which also falls under domestic violence's definition. The criminal law amendment of 2013 was a landmark in this subject, as it amended sections of the Indian Penal Code, The Criminal Procedure Code, and the Indian Evidence Act. Under this amendment, terms like sexual assault and rape were clarified, and the penalties and punishments were made more severe. Acid attacks, stalking, public disrobing of women by force were also made punishable under the law.

The Laws for Maintenance in India

The maintenance procedures are defined under various statutes and sections:

Section 125 of Criminal Procedure Code, 1973
Section 24 of the Hindu Marriage Act, 1955
Section 18 of the Hindu Adoption and Maintenance Act, 1956
Other personal laws in India

The Criminal Procedure Code

Section 125 of the Criminal Procedure Code, 1983 (CrPC) defines maintenance procedures for the wife, children, and parents of a man. In separation or divorce cases, a court may order a husband with adequate earnings to provide maintenance to his wife, if she cannot maintain herself. This maintenance can be paid monthly, annually, or in a lump sum. The wife, however, is not entitled to maintenance if she is residing in adultery or refuses to live with the husband without a valid reason, or if they are living separately by mutual consent.

The Hindu Marriage Act, 1955

Section 25 of the Hindu Marriage act, 1955, describes maintenance, allowing the court to order either husband or wife to provide maintenance for the lifetime in lump sum or regular payments.

Hindu Adoption and Maintenance Act, 1956

According to Section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu-born wife is entitled to maintenance throughout her lifetime by her husband. The act gives her the right to separate residence and maintenance under conditions such as cruelty, desertion, leprosy, adultery, or forceful religious conversion. However, she is not entitled to maintenance if unwilling to consummate the marriage or has willingly converted. Section 19 specifies that a widowed woman is entitled to maintenance by her father-in-law.

Maintenance Under Personal Laws in India

Muslim Law

Under Muslim law, maintenance is covered under the Muslim Women (Protection of Rights on Divorce) Act. The agreed amount of Mehr during marriage must be given to the wife. During her Iddat period, a reasonable maintenance amount must be provided. If after the Iddat period, a divorced Muslim woman cannot maintain herself, the Judicial Magistrate can order her relatives to pay maintenance.

Christian Law

A divorced Christian woman can seek maintenance under The Indian Divorce Act, 1869. She can apply to a lower court or a high court under section 37(41), compelling the husband for lifetime maintenance.

Parsi Law

Per the Parsi Marriage and Divorce Act, 1963, under Section 40, a court can order a husband to pay maintenance up to a fifth of his net income. This takes into account the husband's capacity, wife's property and assets, and personal conduct of both. Maintenance lasts a lifetime, only if the wife remains unmarried and chaste after divorce.

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Frequently Asked Questions

Common questions about Protection of Women Against Domestic Violence.

The Protection of Women from Domestic Violence Act, 2005 provides a broad definition of domestic violence. It includes any act of gender-based physical, sexual, verbal, emotional or economic abuse against a woman by her partner or family members. Threats of violence and deprivation of liberty also constitute domestic violence under this act.

Yes, Indian laws and courts acknowledge a wife's right to claim maintenance from her husband even if she is earning. The courts consider that her income may not be sufficient to maintain her and her children's lifestyle adequately.

Under the Domestic Violence Act, 2005, a wife can claim 'monetary relief' or maintenance from her husband as part of the domestic violence case proceedings. The court can order the husband to pay a monthly, annual or lump sum amount as maintenance.

Yes, personal laws like the Hindu Marriage Act, 1955, Hindu Adoptions and Maintenance Act, 1956, and laws governing other religions like Muslim, Christian and Parsi communities, have separate provisions for wives to claim maintenance from their husbands in case of separation or divorce.

Yes, according to the Savita Bhanot vs. Lt.Col. V.D Bhanot case, a wife is entitled to maintenance even if the domestic violence was committed before the Domestic Violence Act came into force in 2005.

Courts consider various factors like the husband's income, assets, the wife's expenses and earning capacity, the standard of living during the marriage, and the conduct of both parties when determining the appropriate maintenance amount.

No, there is no specific time limit mentioned in the laws for a wife to claim maintenance from her husband. However, it is advisable to file the claim at the earliest after separation or divorce.

Yes, the Domestic Violence Act, 2005 allows children to claim maintenance or monetary relief from their father in domestic violence cases filed by the mother.

A wife may not be entitled to maintenance if she is residing in adultery, refuses to live with the husband without reasonable cause, or is living separately by mutual consent. Personal laws also specify certain grounds like willful conversion or remarriage when maintenance can be denied.

If the husband fails to pay the court-ordered maintenance amount, the wife can initiate execution proceedings against his movable and immovable properties to recover the dues. Repeated non-payment can also lead to imprisonment of the husband.