The Hindu : New Delhi News : Residence is part of right to maintenance: apex court

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Wednesday, Nov 26, 2008
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Residence is part of right to maintenance: apex court

Legal Correspondent

‘Husband cannot execute will to defeat this right’

Maintenance must include food, clothing and a roof over the head
Bench remits matter to Kerala High Court for fresh consideration

New Delhi: Right to residence is part and parcel of the wife’s right to maintenance and the husband cannot throw away his divorced spouse without ensuring this right, the Supreme Court has held.

“A wife is entitled to be maintained by her husband, whether he possesses property or not. When a man, with his eyes open, marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style. Maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less to which she was accustomed,” said a Bench consists of Justices Arijit Pasayat and Mukundakam Sharma.

“The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and money for other necessary expenditure.”

Husband can’t defeat it

Writing the judgment, Justice Pasayat said: “A Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to a separate residence if by reason of her husband’s conduct or by his refusal to maintain her in his own place of residence or for other just causes she is compelled to live apart from him. Right to residence is part and parcel of the wife’s right to maintenance. The right to maintenance cannot be defeated by the husband executing a will to defeat such a right”

Claims right

In the instant case, Komalam Amma obtained a decree for maintenance against her husband and claimed a right to reside in the matrimonial residence. Both a trial court in Kerala and the High Court held that since the property was purchased by the husband with his own funds, she could not claim a right over that property. Disposing of her appeal is against this judgment, the apex court pointed out that the High Court did not consider the issue of the wife’s right of residence.

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