Social Welfare Intent in law to settle alimony.
Preferring social welfare to legal technicality , the Supreme Court, in a major ruling, has held that even if a woman is disentitled to maintenance from her husband during the period of separation after deserting him, she will be entitled to it after divorce if she is unable to sustain herself.The judiciary has resorted to Section 125 of the Criminal Procedure Code irrespective of the religion of married couples, including in the Shah Bano case by the SC in 1985, to grant alimony to women during pendency of divorce proceedings or those facing destitution after divorce.
However, sub-section (4) of Section 125 provides three circumstances when a woman is not entitled to maintenance: if she is living in adultery, refuses to live with the husband without sufficient reason or if the couple, by mutual consent, decide to live separately .
A bench of Chief Justice J S Khehar and Justices D Y Chandrachud and Sanjay Kishan Kaul faced a dilemma when Manoj Kumar, through advocate Nisha Priya Bhatia, challenged a Himachal Pradesh HC order asking him to pay an alimony of Rs 3,000 per month to Champa Devi despite the divorce being granted on ground of desertion.
Bhatia argued that when a woman is not entitled to alimony under Section 125(4) if she had deserted her husband, how could she, after divorce on grounds of desertion, be entitled to alimony . The SC bench appeared to accept Bhatia’s arguments for the most part of the proceedings. “Grant of alimony in such a case would be in the teeth of Section 125 (4),“ she said. The bench appeared to have made up its mind when it told Champa Devi’s counsel Anil Nag, “If Section 125(4) was not there, we could have said whatever is the woman’s fault, she is entitled to maintenance to prevent destitution, especially when the state is not obliged to maintain her. But the legislation categorically says if it is adultery or desertion by free will, then she is not entitled to maintenance.“
From a hopeless position, Nag rallied to save the day for Champa Devi by citing an earlier SC judgment which had stressed on the social welfare intent of the legislation to prevent destitution of divorced women. Nag said a divorced woman had an indefeasible right to get maintenance ,irrespective of the ground for dissolution of marriage.
The SC in its March 2000 judgment had said, “ As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity , namely , as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce be comes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her.“
This retrieved Champa Devi from being denied alimony . The bench upheld the Himachal HC order granting her alimony and said it would not interfere in grant of alimony to divorced women under all circumstances, a logic that had consistently been the thread of SC rulings for last 25 years -to uphold social welfare intent of the legislation which was to prevent destitution among divorced women.
Supreme Court sets alimony benchmark: 25% of ex-husband’s net salary
NEW DELHI: The Supreme Court has set a benchmark for maintenance to be paid by a husband to his estranged wife, stating that 25% of his net salary might constitute a “just and proper” amount as alimony.
A bench of Justices R Banumathi and M M Santanagoudar made the observation while directing a resident of West Bengal’s Hoogly, earning Rs 95,527 a month, to set aside Rs 20,000 as maintenance for his former wife and their son, turning down the man’s plea that the amount was excessive. The court said the amount of maintenance or permanent alimony must be sufficient to ensure that a woman lived with dignity after separating from her husband.
Its order came on the man’s plea challenging a Calcutta high court order directing him to pay her Rs 23,000 per month. Though the apex court said there was nothing amiss in the high court order, it reduced the amount by Rs 3,000 on the ground that the man had remarried and hence needed to provide for his new family.
Twenty-five per cent of the husband’s net salary would be just and proper to be awarded as maintenance to the (former) wife. The amount of permanent alimony awarded to her must be befitting the status of the parties and the capacity of the spouse to pay maintenance, which is always dependant on the factual situation of the case… and the court would be justified in moulding the claim for maintenance passed on various factors,” the bench said.
While stating that the high court was justified in enhancing the maintenance on the basis of the husband’s salary, the SC bench noted : “However, since the appellant has also got married a second time and has a child from the second marriage, we think it proper to reduce the amount of maintenance of Rs 23,000 to Rs 20,000 per month as maintenance to his (former) wife and son,” the court said.
The couple has been fighting a legal battle over maintenance since 2003 when the district judge fixed the amount at Rs 4,500. The high court, however, awarded Rs 16,000 per month in 2015 and increased it to Rs 23,000 in 2016 as the husband’s salary went up from Rs 63,842 to Rs 95,527.
The apex court’s ruling follows its inclination to protect claims of women in matrimonial disputes affecting their financial status. “A Hindu woman’s right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property… . It is well settled that under the Hindu Law, the husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled to a right to be maintained out of such properties,” the apex court had said in a judgment it had delivered in 2016.
Anti-tobacco efforts cost NGO FCRA nod – Or is it Dr. Manmohan Singh, Ex – PM
The government has revoked the registration of Public Health Foundation of India (PHFI), an NGO funded by the Bill & Melinda Gates Foundation, under the Foreign Contribution (Regulation) Act over the alleged misuse of foreign funds for anti-tobacco lobbying, in violation of norms the law lays down. The home ministry’s revocation of the renewal of PHFI’s FCRA licence has rendered the NGO ineligible to receive any funding from abroad.
A source said the main charge against the NGO, which has also worked in partnership with the Union ministry of health and family welfare, is that it used foreign funds totalling Rs 43 crore to lobby with parliamentarians, the media and the government on tobacco-control issues, which is not among the five activities permitted under FCRA. The five activities for which NGOs can receive foreign contributions under the law include those of a social, cultural, religious, educational and economic nature.PHFI was registered under the FCRA under the head “social and educational“.
According to a home ministry official, PHFI received around Rs 43 crore for anti-tobacco lobbying, which it misrepresented as `research grants’ in its FCRA returns.The officer added that an NGO was not permitted to lobby for tobacco-control, which could only be done by an entity as a public relations company that must pay due taxes.
“Anti-tobacco lobbying is a valid and perfectly legal activity but not through zerotax NGOs,“ the officer told TOI. According to a source, PHFI received foreign contributions amounting to nearly Rs 150 crore in 2014-15 and Rs 200 crore in 2013-14. The Bill & Melinda Gates Foundation accounted for nearly onethird of its foreign funding, USAID for around 10%, while the remaining donors included some leading western pharmaceutical companies such as GlaxoSmithKline.
PHFI, in a release issued on Wednesday , said it had received a notification from the home ministry regarding the renewal of its FCRA registration. “Certain observations have been made by the ministry on utilisation of funds related to PHFI’s projects on tobacco, HIVAIDS and its financial reports. PHFI has submitted the requisite information and documents to the MHA on the observations raised in the notification and provided the needed clarifications.
“PHFI is seeking an early resolution of the issue and continuation of the FCRA registration, based on the clarifications provided,“ it stated.
According to the PHFI website, the NGO was launched by former Prime Minister Manmohan Singh in 2006.The NGO provides technical assistance to central and state governments in several areas of engagement including HIV prevention, access to drugs, tobacco-control and immunisation, etc. Many of these activities have been in partnership with the ministry of health and family welfare.