This time is the worst of economic times the world is facing and the world will be going to face recession after the threat of the COVID 19 pandemic is lifted. In order to curb the spread of the deadly virus there is a country wide lockdown in India till 3rd May, 2020. This implies that the people are unable to go to their work places for earning their livelihood which could very well lead to their employers retrenching or firing them.        

But what does it entail for the working population of men who are engaged into legal battles with their respective estranged wife and are required to pay maintenance to them for their sustenance.

Maintenance is an amount payable by the husband to his wife who is unable and incapable to maintain herself upon separation or divorce.

The amount of maintenance is either fixed by the Court or it is agreed mutually between the parties before finalizing the divorce.

Under the Section 125 of the Code of Criminal Procedure, 1973 and various personal laws which differ from religion to religion, the husband is liable to pay maintenance to the wife if :-

  1. Wife files an application stating that she does not have resources to maintain herself.
  2. In the application the wife states that the husband has sufficient means to maintain the wife.
  3. The husband is neglecting his duty to maintain the wife.

Thereafter post deliberation and giving weightage to arguments of both parties the Court may pass a maintenance order directing the husband to pay a monthly sum of money to the wife.  If husband fails to do so, then can be imprisoned also.

But the lockdown has created a new problem wherein it is a possibility that the husband loses his job and source of income and is rendered incapacitated to pay maintenance to his wife.

 In such cases the husband can move an application under Section 127 of the Code of Criminal Procedure, 1973 by showing change in circumstances and get the maintenance order against him altered or modified by approaching the Court which passed the order.

For getting the order modified under the law, the husband has to show the following documents:-

  1. Termination letter stating that the applicant has been terminated from his job/ services due to the low demand of workforce in the industry.
  2. The financial statements of the applicant from the date of termination till the application is filed.
  3. An application under Section 127 duly signed and verified accompanied by an affidavit and filed through a duly licenses legal practitioner.
  4. Proof of payment of entire maintenance arrears till the date on which application under Section 127 is filed.          
  5. Copy of the maintenance order sought to be modified.    

Effect of modification in the maintenance order on the ground of losing job in the lockdown

 If the Court considers the changed circumstances and modifies the maintenance order then the operation of the changed order will come into force from the date on which order has been passed.

In other words, the husband has to pay the entire arrears before filing the application under Section 127 Cr.PC. and the modified order will operate from the date on which it has been passed.

Way ahead for the Courts while deciding the applications of such nature

Since there are very extraordinary times we can see if courts can get sensitive towards the issue that Husband who becomes unemployed or losses his job after lock down and recession or suffers a huge loss in his business which renders him unable to pay the maintenance thereafter. The role of Courts in resolving the controversy becomes all together very vital.

It is because the situation is unprecedented and the black letter of law can not be directly applied but the legal principles of justice and equity can be along with the sound legal doctrines. The Courts may take a sympathetic view if all the documents are submitted to the subjective satisfaction of the Court.

A progressive approach can be adopted wherein the operation of the maintenance order can be deferred or stopped for the time being till the husband can find a new job for himself and later can be in a position to pay the maintenance. Since, payment of maintenance is a statutory mandate and a duty of the husband towards his wife. A mere difficulty of temporary nature should not be sufficient enough to absolve the husband from paying maintenance to his wife.

A pragmatic approach to balance the difficulty of the husband and the rights of the wife can be adopted that can hold on to the fabric of justice which the Indian legal system strives to for.

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