- 1 Introduction
- 2 Maintenance Under Hindu Law
- 3 Maintenance Of Wife
- 4 Maintenance Of Children And Parents
- 5 Maintenance Under Various Laws
- 6 Legal Provisions
- 7 Landmark Judgements
- 8 Recent Case Laws
- 9 Comparative Study With Other Nations
- 10 Conclusion
- 11 Frequently Asked Questions (FAQs)
The concept of the law of maintenance is an old institution that excited during ancient times as well. Maintenance is also known as spousal alimony or support. Traditionally, “Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. The provisions of the Maintenance act are intended to fulfill a social purpose. The main purpose behind the act is to maintain the standard of living. Spousal maintenance is governed by various factors as follows:
- If the spouse has any other source of income
- Standard of living of both the parties before separation
- Expenses required to maintain children
- Property of both the parties
The basis of maintenance was originally originated from joint families. In joint families, the head of the family was supposed to take care of all the members of the family including slaves too. All the members were entitled. to maintenance During ancient times, only male members were allowed to work and earn money. They used to provide and take care of all essentials that were required by the family members. In Manu Smriti also, there is a mention that the male adult of the family was supposed to maintain his wife, children, and parents. In Hindu law, there is a mention that the husband is in direct obligation to maintain the wife. But in modern law, the obligation exists after the dissolution of marriage i.e., divorce.
Maintenance Under Hindu Law
The concept of maintenance arises from the theory of the Hindu Joint Family. In a Hindu Joint Family, the Karta of the family is supposed to look after everyone. He is under obligation to maintain all the members of the Hindu joint family. All the members of The Hindu undivided family are entitled to maintenance. Under Hindu law, a person has a personal obligation irrespective of whether he possesses property or not to maintain his wife, children, and parents.
Manu declared that the aged parents, a virtuous wife, and an infant child must be maintained even by doing a hundred misdeeds. Maintenance can be allowed only for the filing of divorce, judicial separation, and restitution of conjugal rights. However, a married woman can reside separately and ask for maintenance without filing anything. This matrimonial relief is only recognized under Hindu law. Spousal maintenance may be temporary or permanent.
Temporary maintenance is also knowns as pendente lite and is paid to the wife so that she can pay for her legal expenses during the proceeding of divorce. Section 24 of the Hindu Marriage Act, 1955 deals with temporary maintenance. The object of this provision was to provide alimony or financial aid. The court cannot refuse to grant interim maintenance on the plea that the petitioner is not likely to succeed in the main dispute.
By the 2001 Amendment Act, a proviso was inserted. The application for the payment of the expenses of the proceedings shall be disposed of within60 days from the date of service of notice on the wife or the husband as the case may be.
Section 25 of the Hindu Marriage Act, 1955 deals with the power of the court to grant a right to claim permanent alimony. Before Hindu Marriage Act, this right was only available to the wife. But after the act, the husband is also allowed to ask for alimony. However, the wife is not entitled to claim maintenance in the following circumstances:
- She has ceased to be a Hindu by converting to another religion.
- She is guilty of adultery
- She has remarried after the divorce.
Maintenance Of Wife
Under Section 125 of CrPC Wife means a legally wedded wife and also a divorced wife. Section 125(1) explanation (b) of CrPC, 1993 defines a wife as a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried. It should be noted that only a legally wedded wife is entitled to maintenance. The wife loses the right to maintenance under the following conditions:
- Is disobedient
- Is minor
- Has never visited the husband’s house
- Refuse free access to husband at all reasonable time
- Deserts him
- Eloped with another person
- Abandoned conjugal home without any reasonable reason
- Refuses to cohabit with him without any reasonable reason
Grounds For Award Of Maintenance
Section 18 of the Hindu Adoption and Maintenance Act, 1956 says that a Hindu wife shall be maintained by her husband during her lifetime which means she will be given maintenance until she dies or her husband dies. Under this section, the wife is allowed to live separately without canceling her right to claim maintenance. She can live separately under the following grounds:
- The Husband is guilty of desertion
- The Husband has treated her with cruelty
- The husband is agonizing from a virulent form of leprosy
- The husband has no other wife living.
- The husband keeps a concubine elsewhere
- The Husband has halted to be a Hindu by conversion to another religion
- And if there is any other cause justifying living separately
Quantum Of Maintenance
The means and capacity of a person against whom the award has to be made should be taken into consideration for determining the quantum of maintenance. In determining the quantum of maintenance following grounds are taken into consideration:
- The position and status of the parties
- The reasonable wants of the claimant
- If the claimant is living separately, whether she is justified in doing so;
- The value of the claimant’s property or any income derived from such property, or from claimant’s earnings or any other source;
- The number of people entitled to maintenance under the Act.
Maintenance Of Children And Parents
Section 26 deals with Hindu Marriage Act deals with custody, education, and maintenance of minor children. Under this section, the court can make interim orders or provisions from time to time concerning custody, education, and maintenance of minor children. Under Section 20 of the Hindu Adoption and Maintenance Act, both father and mother, legitimate or illegitimate, are under obligation to maintain the children. Children here include minor boys and unmarried minor girls. However, even after marriage to a minor married daughter loses if she cannot maintain herself, she can claim for maintenance under Section 125 CrPC. Section 20 of the Hindu Adoption and Maintenance Act, 1956 lays down an obligation on a Hindu male or female to maintain their aged or infirm parents. The obligation to maintain the parents isn’t only limited to the sons but is also extended to the daughters.
Maintenance Under Various Laws
Maintenance is called nafaqa under Muslim law. It was introduced to support those people who can’t maintain themselves. It includes the basic requirements like food, clothing, shelter, education, and other necessities of life. The main principles of maintenance may be as follows:
- A person is entitled to maintenance if he has no property,
- Is related to the obligor in prohibited degrees, or is the wife or child, and
- The obligor is in a position to support him.
Exception: It is only in the case of a wife that the obligation is absolute. The husband is required to maintain his wife irrespective of her financial position even if the husband is not in a position to support her.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 deals with the maintenance of the wife. Under this act, a divorced woman is entitled to maintenance under the following cases:
- Entitled to be paid within the iddat period.
- Mehr agreed at the time of the marriage has to be given back
- All the properties that were given to her by her family, husband, and relatives at the time of marriage, before or after the marriage have to be given back.
- If a husband fails to provide her with the above-mentioned then Magistrate can order for payment of the same.
The Parsi Marriage and Divorce Act, 1936 deals with the maintenance of Parsi women. Factors like the husband’s capability, his property, and other assets are taken into consideration by the court before deciding the maintenance amount. The decision given by the court can be modified under the following circumstances:
- If the party in whose favor the judgment was made remarries
- In the case of the wife, she does not remain chaste
- In the case of the husband, he had sexual intercourse with any woman outside wedlock.
The husband is liable to pay maintenance to her wife for a lifetime only if she remains unmarried and chaste after divorce.
The Indian Divorce Act, 1869 deals with the maintenance of Christian women. Under Section 37 of The Indian Divorce Act, 1869, the wife can apply for maintenance in civil court or high court. Under this section, the husband is liable to pay her wife the maintenance amount as decided by the court for a lifetime. If the husband is not able to provide the maintenance to his wife, the court may discharge or modify such an order.
Criminal Procedure Code, 1973
Section 125 to 128 deals with the proceedings for maintenance under CrPC. Section 125 provides speedy and summary remedy so that women, children, or parents needing financial remedy get justice expeditiously. The object of this provision was to prevent vagrancy and destitution by the means of summary remedy. Who can claim Maintenance under Section 125
- Wife, who is not able to maintain herself
- Legitimate or illegitimate minor children, married or unmarried, who are not able to maintain themselves
- Married daughter (if the husband is not able to maintain her)
- Father or mother not able to maintain themselves
A judicial magistrate of the first class can decide the petition for maintenance. Order of any other magistrate is null and void.
Hindu Marriage Act, 1955
- Section 24: Section 24 of the Hindu Marriage Act, 1955 entitles both men and women to claim maintenance. Under Section 24, the husband can also claim for maintenance if he shows he has no independent source of income or if he’s mentally or physically handicapped. The object of this section was to provide alimony to the weaker party. The court cannot refuse to grant interim maintenance on the ground that the petitioner is not likely to succeed in the main dispute. Section 24 empowers the court to grant two specific reliefs to the petitioner:
- Expenses of the proceedings in respect of which the relief is sought
- Monthly maintenance allowance during the proceedings
- Section 25: Section 25 of the Hindu Marriage Act, 1955 deals with permanent maintenance. Under Section 25, the court can grant a right to both of the spouses to claim for permanent alimony. Section 25(1) empowers the court to award maintenance of the following application:
- A gross sum
- A monthly sum
- A periodical sum for a term not exceeding the life of the application
Hindu Adoption and Maintenance Act
Section 18: Section 18 deals with provisions related to maintenance of wife:
- A Hindu wife is entitled to maintenance amount provided by her husband for the lifetime
- A Hindu wife is allowed to live separately without forfeiting her claim to maintenance.
- A Hindu wife would not be entitled to maintenance amount if she is unchaste or ceases to be a Hindu by converting into another religion.
Ramesh Chander Kaushal v. Veena Kaushal, 1978
In this case, the importance and nature of maintenance under section 125 of CrPC were discussed. It was held that section 24, which deals with interim maintenance of the Hindu Marriage Act, is not a final determination and is entitled to consideration in a proceeding for maintenance under Section 125 of CrPC. In this case, it was held that Section 125 of CrPC is a measure of social justice and was specially enacted to protect the rights of children and women.
Amar Kanta Sen v. Sovana Sen, 1960
In this case, the scope and nature of Section 25 of the Hindu Marriage Act were discussed. The legal position of an unchaste wife was discussed in this case. If the wife completely renounces her immoral course of conduct, her husband is liable to provide her bare maintenance. The burden to prove that the wife has returned to purity is on the wife itself. Therefore, an unchaste wife is only entitled to the bare minimum which is food and raiment just sufficient to support her life.
Padmja Sharma v. Ratna Lal Sharma, 2000
In this case, the meaning of the term ‘Maintenance’ and the obligation to maintain a minor child was discussed. Section 20 of the Hindu Adoption and Maintenance Act deals with the maintenance of minor children and aged parents. A minor child can ask for maintenance from his father and mother. The father is under the obligation to maintain the minor as well as the mother but if both the parents are working, then both of them are under the obligation to provide the maintenance amount.
Mohd. Ahmed Khan v. Shah Bano Begum, 1985
In this case, the scope of Section 125 of CrPC was discussed. It was held that Section 125 of CrPC applies to Muslim Women too. The triple talaq cannot take away the right of the wife to claim for maintenance for her as well as her children if she has no other source of income. Thus, it was held that Uniform Civil Code applies to all individuals irrespective of their religion.
Recent Case Laws
Kamala vs M.R.Mohan Kumar, 2018
In this case, it was held under Section 125 CrPC, strict standard of proof is not necessary as it is summary in mature meant to prevent vagrancy. Usually in matrimonial proceedings, strict proof of marriage is essential. Hence the appellants were given the liberty to approach the family court for further maintenance if required.
Shailja & Anr. vs Khobbanna, 2018
In this case, it was held merely because the wife is employed is not a reason to not give her maintenance. Whether the wife is capable of earning or whether she is earning, both are different requirements. The capacity of the wife to earn cannot be a ground to deny interim maintenance.
Nivya V.M vs Shivaprasad, 2017
In this case, whether a husband can claim for maintenance or not was held. It was held yes he can claim for maintenance only in the cases, where he is incapable or handicap. Seeking maintenance from a wife is allowed only under exceptional cases, not under ordinary circumstances.
Comparative Study With Other Nations
In other countries, the focus is just not given on the maintenance amount but also on other factors like the happiness and health of the children. The emphasis is given to provide a developmental surrounding for the children that helps the child to grow with utmost care. The quality and quantity of the children symbolize the future of the country and in no way, they should feel neglected. In the UK, the aim is to promote responsibility rather than ensuring a child’s financial needs. Whereas in other countries, the parents have a shared financial responsibility to meet the needs of the child. In countries like Finland and Iceland, child maintenance is guaranteed. In most daughter loss countries, gender patterns are widening the scope of maintenance. Both the parents have a shared responsibility to maintain their child.
The main purpose of the Maintenance Act has always been to provide support to the weaker spouse, who is not able to sustain himself/herself. By the virtue of different provisions and judicial pronouncements, the rights of women have been restored. Both the husband and the wife can apply for the maintenance. The concept of maintenance is different under personal laws but justice and equity overrule religion under Section 125 of CrPC. The scope of maintenance has widened up by recent amendments and the judiciary has always played an important role in determining the maintenance amount. For the weaker section, maintenance must be restored as their survival is based on these provisions and judicial pronouncements.
Frequently Asked Questions (FAQs)
Is the Husband entitled to Stridhan after divorce?
No, the husband is not entitled to any part of the Stridhan after divorce. Stridhan is your personal property and therefore he cannot ask for its division.
What are the relevant factors for deciding maintenance?
Income and liabilities of parties, capacity, and status of both parties, conduct, and dependents are the main factors.
How to claim maintenance for a child in India?
By filing an application under section 26 of the HMA and under section 125 CrPC too.
When maintenance can be rejected/canceled?
If the wife is living in adultery, or she has left the company of the husband without valid reason or with mutual consent, or if she has changed her religion or if she remarries.
Till what age children are entitled to get maintenance?
Till they obtain the age of 18 or if they are mentally or physically unfit. Adult unmarried daughters can also claim maintenance.