Maintenance is the amount of money
which is paid by one person to the other person to fulfill certain basic
amenities of life, which include clothing, sufficient food, shelter and other
important facilities which are necessary for the survival of a person and for
securing his/her dignity.
A man has a duty to fulfill the basic
needs of his wife, children, and parents when they are not in a state to maintain themselves. In maintenance,
one person is bound by the law for the performance of an obligation which arises out of the relationship
such person is in with the other person. People following different faiths may
claim maintenance under their personal laws.
GOVERNING MAINTENANCE IN INDIA
THE CODE OF CRIMINAL PROCEDURE, 1973
Section 125 of
the Code of Criminal Procedure, 1973,
deals with the provisions relating to the maintenance of wives, children, and parents. The Section provides:
"Order for maintenance of wives, children, and parents:
(1) If any person having sufficient means neglects or refuses to
(a) his wife when she is unable to maintain herself, or,
(b) his legitimate or illegitimate minor child is unable to maintain itself whether married or unmarried, or,
(c) his legitimate or illegitimate child (not being a married daughter)
who has attained majority, where such child is, by reason of any physical or
mental abnormality or injury unable to maintain itself, or,
(d) his father or mother is unable to maintain himself or herself,"
such situation, a Magistrate of the first class
may order such a person to pay monthly
allowance to his wife, or child, or father or mother.
any person fails to comply with the
order passed by the Court without
sufficient cause, then the Magistrate
may issue a warrant for levying
a fine or sentence such person to imprisonment for a term which may extend to 1
(one) month or until the payment, if sooner, is made.
The essentials to claim Maintenance
person who is liable to pay maintenance has sufficient means, that is, the person
has enough money to maintain himself & his dependants.
2. Such a person neglects or refuses to maintain:-
his wife when she is unable to maintain herself; or
his legitimate or
illegitimate minor child; or
a legitimate or illegitimate child who
has attained the age of majority; or
his father or mother who are unable to maintain themselves.
Case: Savitri W/O Shri Govind Singh V.
Shri Govind Singh Rawat Interim maintenance under Sec. 125 of
v UNDER HINDU LAW
Permanent alimony and maintenance
The Hindu Marriage Act, 1955
Section 24 deals
with Interim maintenance during
If in any proceeding, either the
wife or the husband has no independent income sufficient for her or his support
and the necessary expenses of the proceeding, the court may, on the application
by either the wife or the husband, order the respondent to pay to the
petitioner the expenses of the proceeding, and during the proceeding such sum
monthly as, having regard to the petitioner's own income and the income of the
respondent, it may seem to the court to be reasonable.
25 deals with the Permanent
alimony and maintenance.
the time of passing any decree or at any time subsequent thereto, on an
application made by either the wife or the husband, as the case may be, the Court may order the respondent
to pay maintenance amount to applicant monthly or yearly, while the applicant
Case: Kalyan Dey Chowdhury V. Rita Dey
Chowdhury Nee Nandy
26 deals with the maintenance of a child under the Hindu law.
The minor child is entitled to get the benefit of maintenance from his father if his
parents are getting divorced.
Recently, Indian judges held that a
major son or daughter are also entitled
to get maintenance from his/her father if such children are dependent on their parents and are not in a state to earn money.
The Hindu Adoption and Maintenance Act, 1956
The provisions relating to
maintenance are enshrined in Sections 18 to 28 of the Act.
Section 18(1) of the Act,
states that a wife is entitled to receive maintenance from her husband during
Under Section 18 of the Act, a Hindu wife is entitled to live
separately from her husband without forfeiting her right to claim
Some grounds under which a wife may live separately are:-
is guilty of desertion; or
Husband has treated her with cruelty; or
Husband is suffering from a virulent form of leprosy; or
Husband has any other wife living; or
Husband keeps a concubine elsewhere; or
Husband has ceased to be a Hindu by conversion to another religion; or
there is any other cause justifying living separately.
But the wife cannot claim maintenance
from her husband in 2(two) situations, which are:
she is unchaste , that is, if the wife is
engaged in extramarital activity; or
she ceases to be a Hindu by conversion to another religion.
Determining award of maintenance
maintenance is to be awarded to the wife,
children, or aged or infirm parents, the amount will be determined on the basis
of the following factors:
the status and position of parties;
reasonable wants of the claimant;
whether the claimant is justified in living separately;
the value of the claimant's property and any income
generated from such property, or from the claimant's own earning or from any
the number of persons entitled to maintenance under
Case - Kulbhushan Kumar vs Raj
Kumari & Anr
maintenance is to be awarded to a dependent, the amount
will be determined on the basis of the following factors:
the net worth of the deceased after making payment
of his debts;
any provision made under a will of the deceased
the degree of relationship between both individuals;
the wants of the dependent must be reasonable;
the relations of both dependent and deceased in the
the value of dependent's own property and any income
generated from such property, or from his or her earnings or from any other
the number of dependents entitled to maintenance under
People entitled to maintenance under the Hindu Adoption and
Maintenance Act, 1956, are as follows:
daughter-in-law: Section 19
and aged parents: Section 20
& illegitimate son,
b) Legitimate and illegitimate daughter,
c) Aged and infirm parents,
of the deceased, which include:
the son, son of a predeceased son and the son of a
predeceased son of a predeceased son of the deceased,
his unmarried daughters, the unmarried daughters of a
predeceased son and the unmarried daughters of a pre-deceased son of a
his widowed daughter,
the widow of the son and the widow of the predeceased
son of a predeceased son,
his minor illegitimate sons,
his unmarried illegitimate daughters.
III. Quantum of maintenance
decided on the basis of many factors. These form the core ingredients in
deciding the correct sum of maintenance. These include food, clothing, shelter,
and other necessary amenities. It may depend on the number of dependants, status in the society, and financial position
of the parties. There is a presumption that every person physically and
mentally able is capable to earn income. It is considered to be an important
factor in many cases. In case a women is involved in some kind of adulterous
activity or if she changes her religion and ceases
to be a Hindu, then she will not be entitled to claim relief.
v UNDER MUSLIM LAW
The persons who
are entitled to claim maintenance are:
children of either sex
daughter if she is poor
son if he is indigent
According to the Chapter
XV of Hedaya, maintenance may be denied
to women only in some situations, which are:
case she hadn't attained the age of
the wife left her husband?s domicile without any cause; or
she disobeys the reasonable commands of
her husband; or
case she is forcibly carried off.
The Muslim Women (Protection of
Rights on Divorce) Act, 1986 provides that a divorced Muslim woman is validated to
maintenance in such following situations:
Sec. 3(1) (a): During the iddat period,
a fair and reasonable maintenance is to be paid to the divorced Muslim woman.
Sec. 3(1) (b): The divorced husband has
to pay maintenance for 2 (two) years to his divorced wife as she has to
maintain herself and her children. If a child is born after the divorce, then
such 2 (two) year period starts from the child's date of birth.
Sec. 3(1) (c): The woman shall be entitles to any amount in the form of Mehr
or dower agreed at the time of their marriage or after their marriage has to be
paid back to the wife.
Sec. 3(1) (d): The woman shall be entitles to all such property which was
given to women by her relatives, friends or husband before, at the time or
after her marriage.
If any person doesn't
comply with the order passed by the court without sufficient cause, then the
magistrate may issue a warrant for levying a fine or sentence such a person to imprisonment for a term which may extend to
1 (one) year or until payment, if sooner, is made.
In situations where the children or any
relatives of the woman are unable to pay maintenance to her, then the Magistrate within its jurisdiction can
order the State Wakf Board to pay her maintenance.
Case: Badshah v. Urmila Badshah Godse,
Shabana Bano vs Imran
v UNDER THE
A woman belonging to Christian religion can claim maintenance
through a civil suit and criminal suit. In
a criminal suit, religion of the parties is irrelevant, unlike in civil suits.
· Section 36 of The Indian Divorce Act, 1869 states
that the wife can present a petition for
alimony pending the suit.
Section 36 of Indian Divorce Act, 1869, is similar in nature
to Section 24 of the Hindu Marriage Act, 1955. But in case of Section 36 of
Indian Divorce Act, 1869, a major difference is that only the wife can claim
interim alimony, not the husband. The
right to claim maintenance is only available to the wife, including alimony
pendente lite and permanent alimony. However, similar rights are not given to
husbands. One-fifth of the net income of the husband is the maximum amount that
can be decreed by the Court as alimony.
· Section 37 relates
to the power to order permanent alimony. When a decree of dissolution of the
marriage or judicial separation is obtained by the wife, the District Court may
order that the husband shall pay to the wife such gross sum or annual sum of
money for any term not exceeding her lifetime. The section states that wife has right to apply for alimony before the Civil Court or High Court.
· Section 38 deals
with all cases in which Court passes a decree, or order to be paid to wife. The court may order the husband to make such
payment, weekly or monthly whichever Court decides.
v UNDER PARSI LAW
Parsi Marriage and Divorce Act, 1936, provides for the provisions relating to maintenance.
· Parsi people are given
right to claim maintenance through both civil and criminal suits. The Parsi
Marriage and Divorce Act, 1936 provides Parsi women the right to maintenance.
However, in a criminal suit, religion is
not a factor which is considered.
· The Court can grant a
maximum award of one-fifth of the husband's net income as maintenance. There
are some factors which the Court considers, such as the husband?s financial
position to pay, property and assets owned by the wife and personal conduct of
both husband and wife.
· The wife is entitled to
claim maintenance when she remains unmarried and if she is abstaining,
uncontaminated from an extramarital
affair or sexual intercourse after the divorce.
· In case the husband
refuses to give maintenance to the wife, the Court may order the husband to pay or sentence the husband to
imprisonment until he agrees to pay such sum. The Court can also pass an order
to detain the husband unless he pays maintenance.
Section 39 of the
Parsi Marriage and Divorce Act, 1936, states
that the Court, with its discretionary power, may pass an order on an application by the plaintiff for necessary
expenses of the suit. Plaintiff shall be paid by
the defendant for her/his maintenance and such amount shall not exceed the life of the plaintiff.
alimony and maintenance
Section 40 of the
Parsi Marriage and Divorce Act, 1936, states that the Court, with its
discretionary power may pass a decree on
an application by the plaintiff for maintenance.
A gross sum would
have to be paid monthly or periodically to the plaintiff by the defendant for
her/his maintenance and such amount shall not exceed the lifetime of the plaintiff.
v UNDER "THE
MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007"
The essentials to claim maintenance
are as follows:-
if the children or
relatives neglect or refuse to maintain;
only senior citizen or
parents are entitled to maintenance;
if a person is incapable of filing for
maintenance, then any other authorized person may file an application.
a tribunal can grant a maximum
amount of INR 10,000 per month for maintenance.
Any parents or
senior citizens who are unable to maintain themselves
may file an application before a tribunal
to claim maintenance from children (not
Ø A claimant may file an application for maintenance under section 5 of this Act.
CONSEQUENTIAL VIEW ON MAINTENANCE WITH REGARD TO THE LIVE-IN RELATIONSHIPS
In the past, a formal relationship with a man was an essential ground for
a woman claiming maintenance from her husband; a woman was not given the right
to claim maintenance unless she was married to the person.
But today, judiciary is recognizing
the concept of ;live-in relationships' with a positive attitude. This enables
the courts to address issues between parties who are in a live-in relationship.
The scenario has changed over the last few decades, with a sudden
increase in live-in relationships, which makes the judiciary think about
maintenance rights in such relationships. Such kind of a change in the social world, where social relationships have become
a new trend need to be governed by laws too. A recent judgment by the Supreme
Court, with the bench comprising of Justice M.Y.
Eqbal and Justice Amitava Roy, has affirmed that continuous cohabitation of a
couple will raise a presumption of a
valid marriage. However, the presumption can be rebutted by leading,
unimpeachable evidence. A heavy burden lies on the party which seeks to deprive
the relationship of legal origin.
is clearly visible that our judicial system is progressively growing in
direction of liberalization with respect
to personal laws. During my research, I
found various personal laws governing maintenance in India. I observed and
concluded that maintenance under Hindu personal laws is more progressive as
compared to the Muslim personal laws prevailing in the country. In mu opinion,
maintenance laws in India give the upper
hand to women as compared to men. This may be because women
in the Indian society have been kept away from education and other services for
many centuries. It is presumed that over a period of time, laws have evolved as
per the needs of the society and I sincerely hope that maintenance laws will
improve as per the needs of the society.