Now that Ruchika's case has brought so much of social and judicial upheaval let me share with you all, some more apathy this Indian Judicial system has to offer to women who are socially and economically marginalized. There is yet another complex issue attached to our judicial system and that is "Execution Procedure" of the Court orders,,,,,,,,,,,,,,,,,, so here it goes.
While the courage of the ladies who come to Honorable Court seeking justice, by breaking all the social and economic saddles is truly commendable, and their plights equally heart breaking, our existing legal system often leaves them disappointed. I would like to highlight some of the problems faced by women litigants in matrimonial issues, which still haunts me like a nightmare.
In most of the cases Honorable Court does a good job by granting adequate relief's, my concern is that of execution procedure and in particular to that of maintenance petitions filed by women under various existing laws. The execution of these maintenance orders from the Civil/Magistrate Courts become great task, and very often the orders remain merely on papers, defeating the entire purpose of getting these orders. In majority of these matters women praying for maintenance are those who do not want to dissolve their marriage and just wish to get some financial support from their husband who desert them and their children.
I would like to bring to your attention following flaws in execution procedure of payment of maintenance orders obtained through Honorable Court both under Civil (Hindu Adoption and Maintenance Act, 1956, The Hindu Marriage Act 1955) and Section 125 of the Criminal Procedure Code, which are as follows;
1. Women who apply for maintenance under relevant provisions of Hindu Adoption and Maintenance Act, 1956, get civil order of maintenance either from the District or Family Court. If the husband against whom this order has been obtained is a working/service man, then during the execution procedure Court orders the amount of maintenance can be attached i.e. deducted from the salary and deposited in the Honorable Court, from where the wife can withdraw the same and use the maintenance amount for herself or her children as the case may be. SO far everything sounds very good,,, but then what happens when a husband is a business man? in most of such cases husband can and in fact does swindle his earnings and then the same cannot be attached, leaving the final option of civil imprisonment of the husband open to the wife, which she rarely opts for, and even if she opts for civil imprisonment for her husband, she is the one who has to pay for the daily expenses of her husband for the number of days he spends in civil imprisonment. This provision in itself is defeating the purpose of obtaining maintenance order from the Court, as wife comes to the Honorable Court because she is not financially able to maintain herself and her children and after spending some couple of years in the Court when she finally gets such maintenance order which she is not able to execute properly,,, what is she left with? well that's civil imprisonment to her husband wherein she has to pay daily for his maintenance in civil imprisonment. From where will she get this money? Sounds funny ha,,,,, further even is she manages civil imprisonment to be imposed on her husband, what happens to the arrears of the maintenance money against which she has got the imprisonment for her husband? does she get it? Well to my understanding she has to forgo that money as she has managed to sufficiently punish her husband in the eyes of law.
2. When a Hindu wife opts for interim maintenance under The Hindu Marriage Act, 1955, the wording of the section defeat the quantum of maintenance as the section speaks that she is eligible to get maintenance only if she is not able to support herself. What we need to remember that although Indian women have obtained some level of economic independence, in most of the cases there is vast difference between the earning capacity of the spouses and although there are judgments from different Honorable Courts granting half the husbands monthly earning towards maintenance of wife, quantum by and large becomes discretion of Court due to these wordings in the Act, often forcing wife to settle for mere maintenance amount as opposed to the financial status she enjoyed when she was married. These wordings of section 24 of The Hindu Marriage Act, 1955 are opposed to our Hindu Vedic School of thought too, as a wife is considered as Arthangani of her husband as has right to enjoy equal status as that of her husband.
Under these circumstances the law makers can certainly looks at bringing following amendments to the existing laws;
1. Law to provide for a provision where by, both the parties at the outset of the matrimonial proceedings must declare to the Court their financial status, and the Court without waiting for the interim maintenance application to be filed by wife, must first as a mandatory provision decide maintenance to the wife and children. The discretion of the Court to grant quantum of maintenance must be limited to granting the one half of the earnings of husband as the maintenance to the wife and in case of children the amount of maintenance be raised to 2/3rd of his earning. It must be made mandatory that the Court maintains the same financial status of wife which she enjoyed before the proceedings began. There must be severe criminal and or civil implications if either party makes false representation to the Court with respect to their financial status.
2.In case where the husband is having joint family business and where the earnings of the husband cannot be separated from the total monthly earning of the family, the Honorable Court must take the entire family earnings into consideration, while maintaining the financial status quo of the wife and children.
3. Where the husband is a salaried person, Honorable Court must without seeking for separate execution procedure, must mention in the maintenance order itself, that the quantum of maintenance amount be at once attached be deposited in the Court.
4. Where the wife obtains maintenance order through Hindu Adoption and Maintenance Act 1956, execution provision must be amended to the effect that the civil imprisonment be scraped and either be converted into State (criminal) imprisonment through special judicial power to the Honorable Court or the cost of lodging the husband in Civil Imprisonment be borne by the respective State Government, further the amount for which the husband has been lodged in Civil imprisonment must not be foregone and the same must be added to the fresh arrears of maintenance.
5. Family Courts must be given powers where the service of warrant or notice on the husband under the provisions of 125 of the Criminal Procedure Court can be done by the Court bailiff as opposed to wife going to respective police station for getting warrant served.
6. The provision of attachment of husbands property in execution applications must be speedy and each State government must have its financial board which would financially support pauper wife by bearing miscellaneous judicial expenses. This board must be established in addition to existing free legal aid provided by respective States, as law makers must understand that the lawyers fee are not the only expenses that the litigant has to be bear and that there are additional judicial expenses like the Court fees, service of summons through paper advertisement for which money is required.
7. There is an Act by the name Muslim Women (Protection of Rights on Divorce) Act, 1986, which allows a divorced Muslim woman to claim permanent maintenance from her husband, but she needs to file this case in the respective Magistrate Court. Although there is a provision for speedy disposal of such cases by the Magistrate Courts, under the present scenario, where the Magistrate Courts are very often flooded with cases, the purpose of speedy trial and disposal is not at all achieved. Further the lady in question is often surrounded with the remand accused in such Courts, putting her to immense stress and humiliation, which is not at all required, considering the fact that the relief that she is seeking is Civil in nature. Hence the said Act be brought under the District or Family Court ambient instead of Magistrate Court and quasi-criminal powers be granted to these Civil Courts for dealing matters under the said Act.
8. And last but not the least, execution provision for maintenance under section 125 of the Criminal Procedure Code, requires fresh add on execution application annually without provision for condonation of delay, which once again leave the whole process of obtaining maintenance frustrated, and thus this provision be converted to filing execution of maintenance order only once as opposed to fresh filing annually.
These provisions are needed to make women financially secure, in their matrimonial proceedings. If we can have special provisions for the under privileged of our society by the way of reservations for them, then why cant we have special legal provisions for women who have been for long ages oppressed, suppressed and exploited.
I hope these legal issues see some light of Hope, some day soon.
Thank you for your time,
Sonal
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