The term ‘maintenance’ is defined as 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 terms \’maintenance\’ and \’alimony\’ have been used interchangeably, the term alimony means an allowance or amount which a court orders the husband to pay to the wife for her sustenance. The husband must maintain his wife and this obligation arises in marriage. Such obligations are imposed on him by operation of law.
In India, majorly five communities are identified including Hindus, Muslims, Christians, Jews, and Parsi. These communities have their laws derived from customs/traditions and laws. The law on maintenance and alimony varies from one community to another. For instance, under the Hindu Marriage Act, 1955, both the wife and the husband are legally entitled to claim maintenance but under the Special Marriage Act, 1954, only the wife can claim permanent alimony and maintenance.
According to Section 18(1) of the Hindu Adoptions and Maintenance Act 1956, the wife can claim maintenance and it is her legal right. Further, Section 18(2) of the said Act provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has any other wife living. The right to claim maintenance is also provided under Section 125 of the Code of Criminal Procedure(CrPC). A wife can also claim maintenance under the Protection of Women against Domestic Violence Act, 2005.
Factors to determine the amount of maintenance/ alimony
Husband’s income and status: The court decides the amount of maintenance or alimony that is to be paid by the husband to his wife based on his status and position, income, assets, and lifestyle. Husband’s income and financial status play very important factors while deciding a justified amount to be awarded as alimony/maintenance.
Reasonable needs of the wife: The wife\’s need is not limited to food and to keep her alive, other conditions are also taken into account such as a child living with the mother, the necessities of the child, etc. The court also considers the qualification of the wife, whether she is capable to earn, etc.
Now, let’s discuss when maintenance can be denied to a wife by the court.
Denial of maintenance
Following are the grounds that the court may consider while granting maintenance to a wife[i]:
- Wife is living separately from her husband without sufficient cause;
- Wife living in adultery;
- Wife is professionally well-qualified and she is capable of earning
- Couples are separated by mutual consent
- My wife is earning well
- Wife remarries or there is a change in circumstance
Wife living separately without sufficient cause: The onus of proof lies on the wifeto explain why she is living separately from her husband. In the case of Smt. Teja Bai v. Chiddu Armo, Jabalpur, 2019[ii] the High Court stated that her husband does not work due to illness, and hence she left the house and shifted to her parental home with the child. The court stated that it is not a sufficient ground to live separately with the husband. She is not entitled to maintenance.
In another case of Rohtash Singh v. Smt. Ramendri & Ors.[iii]: The court observed that a wife cannot, without any sufficient reason, refuse to live with her husband. The High Court stated that the expression “Sufficient reasons” has to be interpreted differently in each case. In such cases, maintenance cannot be awarded to the wife.
Wife living in Adultery: The onus of proof lies on the husband to prove that the wife is living in adultery and she is not entitled to maintenance.
Professionally qualified wife-Capable of earning: A wife who is well-qualified and iscapable of earning is not entitled to maintenance. In Smt. Mamta Jaiswal v. Rajesh Jaiswal [iv], a woman was extremely qualified and held a degree of MSc, M.C. M.Ed was not working. A divorce petition was filed and she was awarded alimony of Rs. 800/- as pendente lite. On appeal, the court ordered the wife to find a suitable job and held that the maintenance order is valid for 1 year only.
In another case of Padmja Sharma v. Ratan Lal Sharma, 2000 [v]: Both the husband and wife were employed. The court held that the mother is equally obliged to contribute to the maintenance of the child.
In Sri R Ravindra v. Smt. N. Anitha, 2018 [vi]: The court ordered that the father has to bear 75% of the expenses of his child and as the mother is capable to earn hence she also has to bear 25% of the expenses of her child.
In Dr. E. Shanthi v. Dr. H.K Vasudev, 2005 [vii]: The court observed that when the woman who was a doctor is capable of earning as she has the qualification of a doctor and she was also working as a doctor before marriage. Hence, there cannot be any difficulty for her to continue the same profession. It was held by the court that Section 24 of the Hindu Marriage Act will not apply in such cases and rejected the petition.
Separated by mutual consent: If the husband and wife get separated by mutual consent, the court usually does not decide the amount of maintenance or alimony, such issues are mutually decided amongst the parties. The court pass the decree of divorce on terms agreed between the couple. The decree binds the couple and is capable of being enforced by the court.
Wife is earning well: In the cases where the wife is earning well, the court considers that she is not entitled to maintenance. As the maintenance is for those who are dependent and are unable to maintain themselves. In Chaturbhuj v. Sita Bai, 2007[viii]: The court held that the test to determine the entitlement of maintenance is that the wife should be capable to earn enough for her survival. The test is whether the wife is in a position to maintain her in the way she was used to in the place of her husband. In another case of Bhagwan v. Kamla Devi [ix]: It was observed by the court that the wife should be able to maintain a standard of living that is neither luxurious nor penurious but what is consistent with the status of a family.
Wife adamant to not work: The court also considers such situations where a wife is well-qualified and is capable to earn but is adamant that she won\’t work. Recently, the court observed that the law does not expect such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose, held the Madhya Pradesh High Court [Mamta Jaiswal Case (supra)].
Wife remarries or changes in circumstance: If the wife remarries[x], then in that case the husband is absolved to maintain her. Also, if there is any change in circumstances such as any financial crisis or wife starting earning and drawing a decent salary. The husband may file a petition for the same and the court shall take into account the facts, and evidence prevailing.
The Court determines various factors while granting alimony to a wife, the prime factors are the husband\’s status and his income. Whereas the court also takes into consideration whether the wife is educated and capable to earn, if so, then it decides the alimony/ maintenance according to the same. You need to fight your case wisely and take legal advice before putting forth any claims in court.
[i] https://www.businesstoday.in/magazine/cover-story/story/divorced-how-to-best-negotiate-for-good-alimony-amount-37957-2013-03-25
[ii] https://indianlawportal.co.in/maintenance-under-crpc/
[iii] (2000) 3 SCC 180
[iv] II (2000) DMC 170
[v] AIR 2000 SC 1398
[vi] https://indiankanoon.org/doc/90789132/
[vii] AIR 2005 Kant 417
[viii] AIR 2008 SC 530
[ix] AIR 1975 SC 83
[x] https://www.businesstoday.in/magazine/cover-story/story/divorced-how-to-best-negotiate-for-good-alimony-amount-37957-2013-03-25
