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.
Types of Maintenance
- Temporary/Interim Maintenance– This is also referred to as the maintenance of pendente litethat is granted by the courts during the continuation of proceedings of the divorce. It is granted to meet the necessary and immediate expenses of the needy party to the proceedings. Section 24 of the Hindu Marriage Act, 1955deals with it. This can also be claimed u/s 125 of the Criminal Procedure Code (CrPC).
- Permanent Maintenance– It refers to a sum on a periodical basis or continuously that is granted after the disposal of the proceedings. Section 25 of the Hindu Marriage Act, 1955, deals with it.This can be claimed by either of the spouses.
The Laws for Maintenance in India
The maintenance and the procedure are defined under various statutes and their sections. They are:
- Section 125 of Criminal Procedure Code, 1973
- Section 24 of the Hindu Marriage Act, 1955
- Section 18 and Section 20 of the Hindu Adoption and Maintenance Act, 1956
- Section 20 of The Protection of Women from Domestic Violence Act, 2005
- Other personal laws in India
Maintenance under Criminal Code (Secular Law)
In India, Section 125 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) deals with the concept of maintenance along with the different personal laws extending the right of maintenance not only to the wife but also to her parents and children. It must be noted that the wife, children, and parents can claim maintenance under the said legal provision. It is a secular law and applies to all irrespective of their religion[i].
Personal laws regarding maintenance apply to people belonging to different religions; however, the maintenance u/s 125 of the CrPC can be claimed by anyone irrespective of religion or caste. A wife can also claim maintenance under the Protection of Women against Domestic Violence Act, 2005.
In the case of Shantha v. B.G. Shivananjappa[ii]– It was held by the court that Section 125 CrPC is a measure of social legislation and is to be construed liberally for the welfare and benefit of the wife & children.
In the case of Vimla (K.) v. Veeraswamy (K.)[iii]– The court while discussing the basic purpose u/s 125 of the CrPC, opined that this provision is meant to achieve a social purpose. It aims to prevent vagrancy and destitution and ensures provide a speedy remedy for the supply of food, clothing, and shelter to the deserted wife.
In another case Prakash Babulal Dangi v. the State of Maharashtra[iv]– The court awarded the maintenance to the wife, wherein the proceedings u/s 125 of CrPC were pending and an application to claim interim maintenance was filed by the wife under Domestic Violence Act. The Court directed the husband to pay maintenance Rs. 8000 and Rs. 5000 to wife and daughter respectively. The Court stated that the maintenance shall be in addition to, and not in derogation of the provisions of any other law and held that “the amount of maintenance awarded under the Domestic Violence Act cannot be substituted to the order of maintenance under Section 125 of CrPC.”
Hindu Marriage Act, 1955
Section 25 states that the court can order the non-applicant to pay maintenance to the applicant in form of a lump sum or monthly amount for his or her lifetime. However, a party may not be eligible for maintenance if there are any changes in their circumstances. Under the said provision the maintenance can be granted either to the husband or the wife in either a lump sum amount or annually or monthly for the lifetime.
In the case of D.S. Seshadri v. Jayalakshmi[v], the court clarified that u/s 25 of the Act the court is vested with a discretion that is to be exercised judicially before making one party liable for the payment of alimony to the other. It specifically provides for the Court to take into consideration the conduct of the parties.
Recently, the High Court of Bombay asked a wife to pay alimony to her ex-husband and said either of the spouses can claim alimony under Section of the Hindu Marriage Act[vi]. Section 25 provides that a court can order the wife to pay maintenance and support such gross sum or monthly or periodically to the husband, where needed.
The High Court stated that “A conjoint reading of both the provisions, would reveal that both the sections in the Hindu Marriage Act of 1955 are enabling provisions and confer a right on the indigent spouse to claim maintenance either pendente lite i.e. depending on the outcome of the litigation) or like permanent alimony and maintenance[vii].”
Hindu Adoption and Maintenance Act, 1956
As per Section 18 of the Act a wife, who is born a Hindu, is entitled to get maintenance by her husband for her throughout her lifetime. It provides that a wife has a right to separate residence and maintenance, according to the provisions of 18(2) of the Act.
The Apex Court in the case of Abhilasha v. Parkash[viii], held that an unmarried daughter who is not able to maintain herself can claim maintenance from her father till she gets married as per Section 20(3) of the Act.
In the case of Kusum Sharma v. Mahinder Kumar Sharma[ix]– It was held by the court that the maintenance is not only a constitutional privilege but it is a part and parcel of universal human rights. It is awarded to avoid vagrancy arising from strained husband-wife relationships, and for ensuring that the indigent litigating spouse is not disabled due to a lack of money in defending or prosecuting the case.
Maintenance under Muslim Law[x]
A wife is entitled to get maintenance under the Muslim Law from her husband as per the provisions of the Muslim Women (Protection of Rights on Divorce) Act; which has been amended now. The amount of Mehr agreed at the time of marriage between the parties has to be given to the wife. Also, during her Iddat period, she is entitled to get a fair and reasonable amount as maintenance.
A Muslim woman seeking a divorce and is not able to maintain herself, after the Idaat period, an order can be passed to her relatives, who will pay deemed fit maintenance to her, will inherit her property. If the relatives couldn’t pay maintenance to the woman the Magistrate can order to pay the same to the State Wakf Board established under the Wakf Act, 1995.
Maintenance under Parsi Laws
In India, the Parsi Marriage and Divorce Act, of 1936 provide the right to maintenance to a Parsi woman. Various factors are considered while determining the maintenance of the wife such as the husband\’s earnings, his property, other assets, etc.
Maintenance under Christian Laws
Amongst Christians, the maintenance is governed by the Indian Divorce Act, 1869. As per Section 37 of the Act a wife can apply for maintenance in a Civil Court or High Court.
Maintenance and Domestic Violence
It must be noted that a wife is not liable for any kind of monetary relief if the domestic violence is not proven. If a woman is not able to prove domestic violence, then neither she nor her children are liable to get any monetary relief.
In Shashi Bala v. State of Uttarakhand[xi]– The applicant stated that her in-laws and other family members had been subjugated to violence after her husband died. However, it was found out that the case filled was forged and the claim of Domestic Violence was not applicable hence the court did not grant any maintenance to the woman.
In Savita Bhanot v. Lt.co. V.D Bhanot[xii]– The court held that the wife is entitled to maintenance even if the domestic violence has been committed before the Act came into force.
Guidelines by the Supreme Court
Rajnesh v. Neha & Anr.[xiii]– In this case, the court issued guidelines on certain aspects about payment of maintenance in matrimonial disputes. It laid down the following guidelines:
- The issue of overlapping jurisdiction under different enactments for payment of maintenance;
- Payment of interim maintenance;
- Criteria for determining the quantum of maintenance;
- Date from which maintenance is to be awarded; and
- Enforcement of orders of maintenance.
Payment of interim maintenance[xiv]
It has been often observed by the courts that both the parties to litigation submit false material and they do not disclose the correct details, wherein they suppress vital information that makes it difficult for the Family Courts to assess the income of the parties for granting interim maintenance.
Hence, the court in Rajnesh Case (supra) has directed that the Affidavit of Disclosure of Assets and Liabilities shall be filed in all maintenance proceedings by both the parties, including pending proceedings before the Family Court / District Court / Magistrates Court in India. In the said matter court also stated that the amount of maintenance that is awarded should be reasonable and realistic. The amount must be decided considering that the wife should neither be so extravagant which becomes oppressive and unbearable for the husband, nor should it be so meager that it drives the wife to penury. It was further stated by the court that the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
To sum up it can be stated that the concept of maintenance has subsisted as a measure to protect the interests of divorced women and to provide them with some basic economic measures to sustain a dignified life. The amount of maintenance or the parameters to grant maintenance to the wife is still the most doubted issue as there had been several judgments on it i.e. whether the wife should be given maintenance if she is well-educated, if yes, then how much amount should be awarded. The courts decide this issue by applying their judicial minds and it differs from case to case.
If an individual is capable of earning, irrespective of whether he actually has the means or not, it can be concluded that he has sufficient means. The onus then shifts onto the husband, to prove that he does not have sufficient means to provide the maintenance.With our legal expertise and sound knowledge on the subject matter, we at Delhi Divorce Lawyers provide the legal assistance for ensuring maintenance to the people in actual need and protecting those who are harassed because of misappropriation of the beneficial piece of legislation.At times people can get disappointed in themselves or may feel anger towards their spouse/partner, which is what we understand as this is probably the most difficult period of your lifeAt DelhiDivorceLawyers, we help our clients to develop strategies to guide them and their families through a very difficult time in their lives. Over the years a small but dedicated team has been carefully assembled to make that happen. We treat our client with dignity and respect that they deserve as human beings. We know how to fight for the rights of a person in the court of law and that’s what we do for our clients.
[i] Ahmad Khan v. Shah Bano Begum [1985 (1) SCALE 767
[ii] (2005) 4 SCC 468
[iii] (1991) 2 SCC 375
[iv] 2017 SCC OnLine Bom 8897
[v] AIR 1963 Mad 283
[vi] https://www.hindustantimes.com/india-news/woman-asked-to-pay-alimony-to-ex-husband-bombay-hc-says-either-spouse-can-claim-101648866948982.html#:~:text=Bombay%20high%20court%20has%20upheld,alimony%20to%20her%20ex%2Dhusband.&text=The%20Bombay%20high%20court%20has,of%20the%20Hindu%20Marriage%20Act.
[vii] https://timesofindia.indiatimes.com/city/aurangabad/hc-upholds-lower-courts-order-asking-woman-to-pay-alimony/articleshow/90529105.cms
[viii] Cr. Appeal No. 615/2020
[ix] 2017 SCC OnLine Del 11796
[x] https://www.indiafilings.com/learn/protection-of-women-against-domestic-violence-and-maintenance/
[xi] https://www.legalserviceindia.com/legal/article-1363-protection-of-women-against-domestic-violence-and-maintenance.html
[xii] Crl. M.C.No. 3959/2009
[xiii] Criminal Appeal No. 730 of 2020 arising out of SLP (Cri) No. 9503 of 2018)
[xiv] https://www.scconline.com/blog/post/2020/11/05/maintenance-of-wifehusband-doesnt-have-to-pay-maintenance-in-each-of-the-proceedings-under-different-maintenance-laws-explainer-on-supreme-court-guidelines/
