WHO ALL ARE ENTITLED TO RECEIVE MAINTENANCE ?
Maintenance may be allotted to
- Dependent children,
- Parents
- legally wedded wives
- a divorced spouse,
- Mistress
- Legitimate or illegitimate children, etc.
MAINTENANCE PROVISIONS IN INDIA
Maintenance provisions for various communities in India are provided mainly :-
(a) within the personal laws of Hindu and Muslims who constitute the bulk population in India and also
(b) within the Code of Criminal Procedure, ( CrPC ) 1973.
MAINTENANCE UNDER VARIOUS INDIAN LAWS
a. Maintenance under The Hindu Law
b. Maintenance under The Muslim Law
c. Maintenance under The Code of Criminal Procedure (CrPC),1973
d. Maintenance under Christian Law
e. Maintenance under Parsi Law
f. Maintenance under The Protection of Women from Domestic violence Act, 2005
g. The Maintenance and Welfare of Parents and Senior citizens Act, 2007
WHAT ARE THE TYPES OF MAINTENANCE REMEDIES AVAILABLE UNDER THE HINDU LAW?
MAINTENANCE REMEDY -I
UNDER THE HINDU MARRIAGE ACT, 1955
This remedy is available to Both Husband and Wife.
TWO TYPES OF MAINTENANCE CAN BE CLAIMED :-
1.INTERIM MAINTENANCE
(SECTION 24)
(Maintenance Pendente Lite) - During pendency of litigation
If the Husband or Wife doesn’t have income to support the required expenses of the proceedings in court, then court can order the respondent to pay the petitioner the expenses of the proceedings and a reasonable amount depending upon the income of the petitioner and the respondent.
Section 24 of Hindu Marriage Act,1955 deals with such kind of maintenance. Also it can be claimed under Section 125(1) of CrPC
- Both Husband and Wife can file application for Interim Maintenance
- Relief may be provided by way of maintenance and litigation expenses to either of the spouse
- If he/she is unable to maintain himeself /herself during the pendency of proceedings.
- It is given from the date the application is filed and till the date of dismissal of petition
- Payment to be made within 60 days of service of notice
- Can also be given in proceeding so as to declare marriage null or void
- No Amount Specified under the Law
- Depends Completely Upon the Discretion of the Court
(A valid marriage is not an essential requirement under Section 24)
According to this Section The Hindu husband has a legal obligation to maintain his wife during his lifetime.
But Wife cannot claim Maintenance if :-
- A wife ceases to be Hindu or
- Lives individually under no legal grounds
- She is unchaste or converts to another religion.
However, Wife can claim separate residence only if husband remarries and the other wife stays in the same house.
2. PERMANENT MAINTENANCE
(SECTION 25)
Section 25 of the Hindu Marriage Act, 1955 states the grounds for permanent alimony.
It provides that if either of the spouse is unable to maintain himself/ herself then under this Section 25, both the husband and wife may be granted maintenance and permanent alimony after passing a decree of Restitution of conjugal rights (Sec-9), judicial separation, divorce and annulment of marriage under the said Act.
-Ordered by the court at the time of passing of the decree or at any time subsequent to it that the respondent shall pay to the applicant for his/her maintenance and support.
-A gross sum or a sum monthly/ periodically not exceeding the life of the applicant.
-The sum is decided keeping in mind the income and property of respondent and petitioner.
-The order could be modified/rescinded in case of change of circumstances. Also, the order may be modified or rescinded if the party in whose favor the order is passed
(a) gets married or
(b) has sexual intercourse out of the wedlock
MAINTENANCE REMEDY -II
UNDER HINDU ADOPTION AND MAINTENANCE ACT, 1956
(Maintenance to wife, Daughter in-law, Mother and father, Children and dependants)
Under section 18 of the HAMA,1956 Act a Hindu wife is entitled to live separately from her husband without affecting her right to claim maintenance. The grounds under which she can live separately are:-
(1) The Husband has deserted the wife without any reasonable cause
(2) The Husband has treated her with cruelty
(3) The husband is suffering from leprosy of virulent form
(4) The husband has any other living wife
(5) The husband keeps a concubine somewhere else
(6) The Husband ceased to be a Hindu by conversion to another religion
(7) If there is any other cause justifying living separately
Under the Section 18(1) of the HAMA,1956 wife is entitled to maintenance by her spouse for lifetime i.e she will be given maintenance until she dies or her husband dies.
Exceptions- The wife is not entitled to claim maintenance in below 3 circumstances :-
i) She has ceased to be a Hindu by converting to another religion.
ii) She is guilty of adultery i.e. she is unchaste and indulged in physical relations with another man.
iii) She has remarried after the divorce.
CALCULATION OF MAINTENANCE UNDER HINDU LAWS
Section 23 Of HAMA, 1956
Section 23 lays down the following factors that must be considered while granting Maintenance :
1. The position and status of the husband and wife,
2. Whether the wife has an actual claim for maintenance.
3. If the wife is living separately, whether she has a justifiable reason to do so.
4. The wife’s total property and income.
5. The husband’s total property, income generated from his property and his other income.
6. The total number dependents and their expenses borne by the husband and also the personal expenses of the husband.
FACTORS TAKEN INTO CONSIDERATION WHILE DETERMINING THE AMOUNT OF MAINTENANCE
1. The net value of the estate of the deceased after providing for payment of debts.
2. The provisions made under a will of the deceased (if any)
3. Degree of relationship with the dependant.
4. Reasonable wants of dependant.
5. No. of dependants.
The claim of a dependant for maintenance doesn't impose any change on the estate of deceased unless a will mandates the same.
WIDOWED WIFE IS ALSO ENTITLED TO MAINTENANCE FROM HER FATHER IN LAW AFTER THE DEATH OF HER HUSBAND
SECTION 19, HAMA, 1956
Under this act (Section 19), a Hindu wife after the death of her husband is entitled to be maintained by her Father in-law, if she has no means of her own earnings.
However, this right cannot be enforced if her Father in-law does not have means to do so and if :-
- If the wife remarries.
- If the wife has already claimed share in the coparcenary properties in partition.
SECTION 20
Children and aged Parents
A Hindu is bound to maintain his/her children and aged or infirm parents
- Whether legitimate or illegitimate children
- Children can claim maintenance till they are minor
- Obligation to maintain umarried daughter and infirm/aged parents so long as they are unable to maintain themselves.
MAINTENANCE REMEDY - III
SECTION 125 CrPC, 1973
According to this Section Magistrate of first class has the power to order the person to provide monthly allowance to:
i) His parents
ii) Wife
iii) To his legitimate or illegitimate minor children who are unable to maintain themselves
iv) Legitimate or illegitimate major child not being a married daughter who are unable to maintain themselves due to any physical injury or abnormality
v) Married daughter till she attains her majority if her husband is unable to maintain her
vi) His/her father or mother if they are unable to maintain themselves, whoever neglects or refuses to do so.
Magistrate may issue warrants for levying the amount due just in case of non compliance with the order. Time Limit for Making of an application is within a period of 1 year from the date on which the amount was due, otherwise warrant cannot be issued.
Exceptions: When Wife not entitled to receive Allowance
1- Wife is living separately without any sufficient reason or
2- Wife is living in adultery or
3- They have been separated through a mutual consent.
WHETHER A UNIFORM CODE ?
SECTION 125 CRPC, 1973
Mohd Ahmed Khan V. Shah Bano Begum (1985)
A landmark case in the history which clarified the scope of Section 125 and proved to be a milestone specifically in the struggle for the rights of muslim women.
The Court held that Section 125(3) applies to Muslim women too.
- The concept of muslim husband’s responsibility towards his wife only till the iddat period cannot override the rule laid down in Section 125 CrPC.
- Merely a triple talaq cannot take away the right of divorced Muslim women from seeking maintenance if she is not in a condition to maintain herself and her children because of no independent source of income.
CLARIFICATION OF SECTION 125 CRPC WITH OTHER PROVISIONS OF PERSONAL LAWS
- Provisions of Maintenance under any Personal law and Section 125 CrPC are both separate and distinct
- There is no conflict between both the legal provisions.
- The remedy under Section 125 is prompt and inexpensive as compared to personal laws
- A person is entitled to maintenance under Section 125 despite having obtained an order under the applicable personal law.
Reason Behind Invoking Section 125 CrPC - There are certain situations in which it may become unbearable for a wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial tie for various reasons starting from growing children to social stigma.
MAINTENANCE REMEDY - IV
Under Protection of Women from Domestic Violence Act, 2005
DV Act also provides remedy to wife in the form of Maintenance as well as for Interim Maintenance.
Wife can primarily claim maintenance from the husband under Domestic Violence Act and she can also make an application for grant of Interim Maintenance under the Provisions of Domestic Violence Act
Section 20 of the DV Act talks about the monetary relief which could be granted to the wife and also states that such relief should be adequate, fair and reasonable and also with regard to her standard of living.
- Can claim Interim Maintenance as well
- Interim Maintenance under DV act does not preclude the right to claim maintenance under Section 125 of CrPC
MAINTENANCE PROVISIONS UNDER THE MUSLIM LAW IN INDIA
In India, Maintenance under Muslim law is known as “Nafqah” which means what a man spends over his family.“Nafqah” basically includes food, clothing and lodging. A Mohemaddan is bound to maintain his wife under Muslim law. Her right to maintenance is absolute and not conditional as to whether she can maintain herself or not. Maintenance can be denied to a wife only under the below mentioned situations :-
1. She has not obtained the age of puberty.
2. She abandons conjugal domicile without any proper valid cause.
3. She is disobedient to reasonable commands of her husband.
4. If she has eloped with somebody.
Social status of the parties and economic condition of the husband are taken into consideration while determining the quantum of maintenance.
However, according to all schools of Muslim law, If the Husband has promised to pay any maintenance allowance to his wife under any separate agreement then the wife can claim indebtedness of past maintenance also from her husband. Such kind of agreements are generally made to assure a wife to receive a regular pocket-allowance called Kharch-i-pandan or, Mewakhori. Moreover a Wife is also entitled to get indebtedness of maintenance in a case where maintenance was ordered by the court but it still remained unpaid.
MAINTENANCE UNDER MUSLIM LAW IN COMPARISION WITH HINDU LAW
-A Hindu woman is more privileged than Muslim women.
-A Hindu woman is entitled to maintenance by her husband throughout her life but a Muslim women is entitled to maintenance by her husband only during the iddat period.
HISTORICAL ASPECT
The Indian Judiciary has tried to provide women of both the communities with equal opportunities and rights to maintenance throughout the life, But as common in the case of Indian democracy the Congress Government bowed in front of the vote bank politics and brought in the “The Muslim Women (Protection of Rights on Divorce) Act,1986”. This act completely took away the right of the Muslim women to maintenance beyond the period of iddat by the husband.
Hindu women can ask for award of maintenance under Section 125 of the CrPC but in case of a Muslim women she can file a case under the same but will be awarded maintenance under this act only if the husband recognizes this in a way.
But After the Case of Mohd. Ahmed Khan v. Shah Bano Begum (1985) , Section 125 CrPC is also additionally applicable to Muslim Women in India as well.
OVERALL JUDICIAL VIEW OF MAINTENANCE LAWS IN INDIA
It can be clearly seen from the recent Judicial decisions of the Indian courts that they have been progressively liberal in deciding cases pertaining to maintenance. The main controversy which still exists is that whether a paramour can become entitled to receive maintenance merely from the factum of living with a married man and also with the dispute as to whether the bigamy is legally permissible. It clearly appears from the decisions passed by the courts under the personal laws that the same may be possible but the judicial decisions pertaining to Section 125 still continue to uphold the view that maintenance can be claimed only by a legally wedded wife.
Therefore it can be conclusively said that over a period of time, improved rights are bestowed upon Indian Women but the rights presently available to them do not match with the rights required. Maintenance has always been a concern of not only of the weaker sections but also of the whole society as well. For weaker sections it is still a problem in the sense that their very survival rest on the provision made available as maintenance.
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