Mumbai HC asks divorced father to pay alimony even if by going to jail

A recent judgment by Mumbai HC should be a cautionary tale to those who take the issue of maintenance lightly, and believe that they can get an upper hand by simply not paying and then will see what happens.

Note: this case is about permanent alimony to wife (not interim under DV Act, CrPC 125, or pendente lite under section 24 of Hindu Marriage Act).  But the lessons may be applicable to other maintenance related litigations too.

Lack of job no grounds to avoid paying alimony: Bombay HC

A man, though jobless, must pay maintenance to his wife as ordered by courts in cases of divorce, the Bombay high court (HC) has ruled. A bench of justices Ranjit More and Anuja Prabhudessai, in a recent order, held that a man cannot plead penury in order to evade his liability to pay alimony.

HC further said that if the man was unable to find a job, “he could go to jail and participate in the various programmes conducted there for the inmates, earn money and thus, provide for his wife and child.”

The order was delivered by a 2 judge bench, so it will carry even more weight.  I really doubt that work inside prison can pay so much, I don’t think it will be more than 3000-4000 per month.  So from that point of view, the main thrust of the judgment to every non-paying husband is not that there is a guaranteed good income waiting inside prison for every husband who is unable to find a job outside prison, but that unless you enjoy the jail premises more than life outside, better find a higher paying work outside prison!

Further it says:

According to the woman’s plea, she and her husband got divorced in 2010 and the family court awarded her a monthly maintenance amount of Rs6,000, including Rs3,000 for their minor daughter. In 2013, however, the family court allowed a revision plea filed by the husband and reduced the maintenance amount to Rs3,000.

Now here is something I want to disclose as a secret to every husband who dreams of bringing wife down to her knees by not paying the ordered interim or final maintenance in CrPC 125 or DV Act.  An amount of Rs 6000 for living expenses of two people: a wife and kid in this case, is not exactly something which will provide them with a life of luxury and riches.  If one calculates just basic expenses of food, clothing, and shelter, it is not easy to live within that amount of money.  And you have to add child’s education as another basic expense, which may make that amount look even inadequate depending on amount of school fees and other expenses.

And I want to disclose one more secret which many fathers also are somehow unable to grasp: no matter what kind of cruel or uncooperative wife you had to live with earlier; having a child in marriage will automatically shift his/her responsibility to you and you can’t escape it even if the wife is earning (in that case, child’s expenses can be shared).  So I really don’t see much sense when a man with a child is trying to fight till last breath trying to reduce the maintenance to as low figure as possible.  The courts will not give a sympathetic hearing, and I think that’s exactly what happened in this case.  An able-bodied man won’t be allowed to sit easy and give excuses about being out of job.

Further the news says:

The man, on the other hand, told the HC that he had stopped paying alimony because he had lost his job as a security guard after the divorce and had been unsuccessful in finding another job since. He said he took up odd jobs on a daily basis and made about Rs3,000 per month and, thus, was not in a position to pay alimony.

The HC junked his plea saying that despite all circumstances, the maintenance of his divorced wife and daughter was his responsibility. “You are an able-bodied man. Find some work and if you fail to follow the court’s order, you will have to go to jail. You can live off the state then and earn money through its programmes and pay up,” the bench said.

Many men facing cases of CrPC 125, DV Act and others possibly 498A, 406 etc give the reason that due to mental tensions and harassment, they are unable to find a job or keep a job (in case of many hearings).   Hence, they should be excused from paying maintenance.  That logic somehow is not convincing since I know many who have kept a job and got salary increases and promotions while fighting all cases.  It can have some impact on one’s earnings, but to convince the courts that your income will come down from 35,000 to 0 per month will be very, very difficult.

One more factor which may have gone husband in this case is that he is already divorced, and naturally he is not facing any of the other cases by now either.  For him, an excuse of mental tension and ‘torture’ etc also will not be there.

Moral of the story: Don’t try to use legal tricks which go against common sense, especially if there are children involved.