What are the Conditions under which a Hindu Wife is entitled to Maintenance and Separate Residence?

Ordinarily a wife is entitled to maintenance only when she is in the matrimonial home under her husband’s protection. If she withdraws herself wilfully from the husband’s house and defaults in her wifely duties her claim to maintenance becomes suspended. If there is a justifiable ground, she can claim maintenance while in separate residence. The justifying grounds are the following:

(1) Husband’s Desertion:

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For the nature of desertion, see Notes to s. 9 of Hindu Marriage Act, 1955.

(2) Husband’s Cruelty:

It is not every act of unkindness that can be regarded as legal cruelty. Ordinary quarrels between husband and wife do not afford ground to the wife to live separately. The cruelty must be such that it should be harmful or injurious to the wife to live with her husband. Only then will the wife be justified in setting up a separate residence for herself.

After reviewing Smritis and case law, it was decided in Maharaja Nadar v. Muthukani Ammal, AIR 1986 Mad. 346, that if the husband is guilty of cruelty, the wife is entitled to separate residence and maintenance.

(3) Husband’s leprosy.

(4) Husband Having another Wife Living:

This of course is a situation conceivable only when the husband married more than one woman before the Hindu Marriage Act came into force in 1955, for that Act has laid down the rule of monogamy.

(5) Husband Keeping a Concubine:

A wife cannot claim a right to separate maintenance when her husband keeps his concubine elsewhere and not in house where the wife resides. Kesarabai v. Haribhau, AIR 1975 Bom. 115.

When the husband is keeping a concubine in his house (but it is not the same house in which his wife is living) cl. (e) of s. 18 (2) does not apply, but under the residual clause (g) the wife can claim separate maintenance: Subbegowda v. Honnamma, AIR 1984 Kant. 41. It is not necessary to plead specifically that the claim is made under cl. (g). Though cl. (g) is not mentioned in the plaint, the court may award maintenance under that clause: Subbegowda v. Honnamma, AIR 1984 Kant. 41.

(6) Husband’s conversion to another religion.

(7) Any Other Justifying Cause:

A residuary jurisdiction resides in the court to allow the wife to live separately without losing her claim to maintenance. Thus the impotence of the husband may be treated as other justifying cause. Malla Reddy v. Subbamma, AIR 1956 AP 237.

In Bipta Devi v. Chandar, 2004 (2) HLR 563 and Banshidhar Mohanty v. Smt. Jyoshnarani Mohanty, 2003 (1) HLR 441 (Ori), the courts held that once the respondent is given maintenance under the provisions of Hindu Maintenance and Adoptions Act she is not legally entitled to claim for maintenance under section 125 Cr.PC.

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