In India, ending a marriage is traumatic for most individuals. The situation becomes worse for women who must navigate settlement terms and follow up on maintenance money for their and their children’s wellbeing, adding to the complexity of the stigma of divorce. Nihala was 24 years old, with a toddler, when she decided to walk out of her marriage. “I had already suffered in a turbulent marriage and had no emotional energy to fight my ex-husband for maintenance. I just wanted out,” she says, recalling the entire ordeal.
Maintenance is the allowance a spouse must pay the other spouse when they are unable to meet their monthly expenses. Maintenance also applies to children, if any, so that caregiving expenses for the child are not disproportionately borne by one parent alone. In India, maintenance can be claimed under personal laws like the Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Muslim Personal Law, Muslim Women (Protection of Rights on Divorce) Act 1986, etc. Under some personal laws like the Hindu Marriage Act, the husband is also entitled to maintenance. But these laws only permit individuals belonging to the specified religions to file for maintenance. Section 125 of the Criminal Procedure Code (CrPC) also provides for maintenance. This is a secular provision under which women of all religions can file for maintenance.
“The main objective of Section 125 CrPC is to prevent the destitution of the woman after divorce. So when a woman approaches the court for maintenance, it is with a lot of hope, and one must underline that the courts have been supportive in most cases. But the effective implementation of a maintenance order always depends on the man who is supposed to pay,” says senior lawyer and human rights litigant Sandhya Raju.
Though maintenance, in the broad sense, is a legal right designed to ensure that women have some financial support after a divorce, very few women are able to successfully claim this right and access the money. “My lawyers explained to me that maintenance is my legal right. I was aware of that. But my ex-husband said that if I claim maintenance, he would not give me a divorce. I was stressed about the divorce itself being prolonged, as it was affecting my child’s emotional well-being also. It was excruciating,” recalls Nihala, who hails from Kannur in Kerala, elaborates.
Under the CrPC, a wife who is unable to maintain herself is legally entitled to maintenance in all scenarios. However, there are a few exceptions — if she is living with another man, if she refuses to live with the husband without any reason, if she remarries, or if the husband and wife are living separately by mutual consent. The law also provides for women in live-in relationships to claim maintenance.
In Rajnesh vs Neha, the Supreme Court listed some broad guidelines with respect to maintenance — before determining the amount of maintenance to be paid, the court should assess the financial status of both parties. The SC also said the court should also evaluate their educational backgrounds, and order both parties to file an affidavit detailing their assets and liabilities.
Chennai-based advocate Manoj, who deals extensively with family law cases, elaborates that the law favours maintenance for women because it takes into account what really happens in the lives of most women. “Typically, women are married off when they attain a socially accepted marriageable age. Especially women from rural and semi-urban settings may not have the opportunity to complete their education and be financially independent before marriage. In the marriage, they do all the housework and care work – which is invisible labour – for which they receive no compensation. When such a woman decides to end her marriage, she finds herself in a situation where she has nobody and nothing to rely on. This is why the husband is legally required to pay maintenance, because the woman has spent her time and labour in the marriage, building the family, with nothing else to cushion her. There has to be some support when she decides to separate,” Manoj says.
Many factors contribute to why women are unable to access maintenance money even when there is a court order directing the man to pay a specific amount to his ex-wife and children. Advocate Sandhya feels that the root cause is definitely our patriarchal mindset which stigmatises divorce to such an extent that when women walk out of marriages, the society believes they deserve no aid.
Shylaja (name changed), who has been married for 10 years with two children, says that her family was not in support of her decision to file for divorce. “I walked away from the marriage and lived with my parents right after the separation. But I received no support, I had to seek the help of a social support group for accommodation. And my divorce proceedings are still going on. Filing for the divorce itself has been so turbulent. It took me a year to file a petition because I did not have access to the required documents. Fighting for maintenance has been doubly hard for me given my situation,” says the 29-year-old from Chennai.
Sandhya attests that the courts have been sensitive to women who seek divorce and maintenance. “Getting a maintenance order from a court is not the difficult part usually. It is getting the ex-husband to pay up that is tedious. Most women have a court order allowing maintenance, but not many actually get the money,” she says.
“My ex-husband did not sign the papers for nearly two years after I decided to get a divorce, only because I asked for maintenance. Later, he agreed to pay only for my child’s expenses but said he would not pay me anything. I had to compromise because otherwise, it would only prolong the process,” says Nihala.
She also feels that the restitution of conjugal rights — a legal provision where one spouse can approach the court citing that their spouse left them without cause and that their right to cohabitation is violated — is abused by men who have no intention to pay maintenance. “When I filed for maintenance, my ex filed for restitution of conjugal rights, claiming that if I lived with him he was willing to look after me. That made it look as if I was asking for a divorce for no serious reason. He knew I would not go back, so he used the law to have me run around in circles,” Nihala adds.
Manoj says that procedurally, the court can pass an order for the attachment of property or salary of the ex-husband if he refuses to make payment. “If that also does not work, the court can further order civil imprisonment and have the man taken into custody for non-payment. But what usually happens is that when a man does not want to pay, he absconds. Some men also make up excuses about losing their jobs or not being paid salaries, to evade payment of maintenance,” he adds. He also notes that in situations where the ex-husband is absconding, an ex-parte divorce (divorce in the absence of one spouse) is granted by the court. This further complicates the process of getting maintenance and women then have the additional onus of tracing their absconding spouses, in which they are often unsuccessful.
While looking at the legality of maintenance, alimony is one term that often seems similar. Alimony is a lump sum amount paid as a final settlement during a divorce proceeding, whereas maintenance is a monthly amount paid for the daily sustenance of a divorced woman who is unable to look after herself. “In many cases, people also use settlement as a loophole to delay payment. They insist that they are willing to pay a lump sum to their ex-wife instead of a monthly allowance and keep dragging the negotiation procedure to push the payment. What happens here is that the woman suffers, especially when she has no other income and has children to look after,” says Sandhya.
Shylaja also says that women who decide to push for maintenance face a lot of gaslighting. “Everyone told me that men are bound to be problematic and that we women must compromise. They tried to water down my efforts to get a divorce and maintenance by emotionally confusing me with questions like ‘how will you survive with two kids and no other support in the absence of a husband’. These things sometimes get to us, making us doubtful about our own rights,” she says.
The Protection of Women from Domestic Violence Act (PDV), 2005 is another legislation in India that provides for maintenance. “Women who suffer domestic violence and dowry harassment are entitled to claim maintenance. But when such a case is filed, the husband immediately campaigns that the woman is making a false claim of abuse just to extort money,” says Sandhya.
“There are different forms of domestic violence that women experience. When we look at Dalit women, in the case of marriage with men from other religions or dominant castes, there is caste-based violence as well. But the key problem with domestic violence is that by the time the woman files a case, there is barely any physical evidence to prove it,” observes Manoj.
Both Manoj and Sandhya assert that the normalisation of violence in marriages encourages women to cover it up and suffer generationally, due to which there is no recorded evidence of the violence. “Women who seek medical attention because of domestic abuse also seldom tell doctors the real reason behind their injuries. Besides, families and society urge them to stay in the marriage. When such women finally decide to claim maintenance under the PDV Act, there is no evidence of the abuse. There are no witnesses also since these things happen in private. It then becomes easy for the husband to say that the woman is making a fake claim to extort money from him,” says Manoj.
Josephine (name changed), a mother of two who has been married for seven years, says that she faced severe domestic abuse and that her husband would not provide for her and their children. “He filed for divorce, but nobody appeared from his end at the court, and consequently, the case got dismissed. I approached the court later for maintenance, but there was no representation from my husband’s side and he was not willing to accept the court notice either. I did not know his address or where he was working to make sure that he received the notice since I had moved to my parents’ place by then. So, I was not able to file for maintenance,” she says.
Manoj notes that women who claim maintenance are seen as capitalising on the breakdown of their marriage. “To address the issue of shaming women who claim maintenance, we must first understand why the law provides for maintenance,” he says.
Many people feel that maintenance is an ‘undue advantage’ sanctioned to women through the law to ‘loot’ their ex-husbands. Therefore, when a maintenance petition is filed, the woman is accused of wanting her ex-husband’s money despite not wanting to live with him anymore. “My ex-husband said ‘You don’t want me, but you want my money?’” recalls Shylaja. “Everyone accused me of wanting to access my ex’s wealth. Nobody even felt that maintenance is my right, that I would need help to raise my kids and sustain myself. The comments got so painful that at one point I thought about dropping the attempt to claim maintenance. I’m still processing my thoughts,” she says.
“It is a double-edged sword in any case. If the woman has any source of income, the defence will cite that to not pay maintenance. We do not look at marriage in terms of the years spent and the labour invested in it, which deserves compensation. We think maintenance is quick, easy money that women claim so they can live off their ex-husband’s money. Even women internalise it sometimes and shame themselves, or feel reluctant to ask for maintenance, slogging every day with whatever they can manage,” says Sandhya.
The attitude of shaming women who seek divorce or maintenance exists even within the judiciary, notes 31-year-old Meenakshi. “When I was in court for my divorce proceeding, I witnessed a young woman being reprimanded by the judge for even filing for a divorce. She shamed the woman for being financially independent, saying that when women earn for themselves they do not want to ‘adjust’ in marriages. It is an attitude problem,” she says, adding that she is ‘fortunate enough’ to have had the emotional support to walk out of a troubled marriage.
Most women seem to want the ordeal to end, and choose to settle for whatever they can get after a divorce despite having to rebuild emotionally and financially. “I’m educated, and I can try to build a life for myself and my child even though my ex refused to pay me any money. But what about women who are not like me? Even in my case, it is my right to get maintenance but I was forced to accept a divorce without it because I just wanted the process to end. I wanted peace,” recalls Nihala.
“A woman I knew, who was a domestic worker, put together everything she had and got her daughter married. The son-in-law abused her daughter and took away all her gold and money. But the woman and daughter were so traumatised and exhausted that they did not have the strength or the resources to pursue the case legally,” recalls Sandhya.
In the absence of facilitating mechanisms and community support, most women just drop their claim for maintenance, accepting defeat against a system that simply fails to help them access a legal right. “I don’t have a job but I need to raise my kids, sustain myself, and fight the case in court. Whether my husband appears in court or not, if I want to file a maintenance case I need to hire a lawyer, which is a financial burden on me. So I dropped the idea of getting maintenance. I am making myself believe that I won’t get anything anyway, so I remain silent about it and focus on looking after my kids,” says Josephine.
Sandhya says that financial independence is the key to ensuring that women do not get entangled in judicial red tape. “I always encourage young women to try to be financially stable before they get married. Money makes decision-making easier if the marriage falters. Even working women face divorce stigma, but at least while they fight the system they have something that is their own to fall back on,” she says.
“It is surely unfair to put the burden of an ineffective justice system on women by suggesting that they must look out for themselves, especially those who have no privilege, but this is how we can ensure that women are better placed at this point, while we continue to interrogate and reform the system,” she adds.
This reporting is made possible with support from Report for the World, an initiative of The GroundTruth Project.