Claiming Maintenance in India

By Mohit Kapoor

             


Mohit Kapoor

UNDERSTANDING MAINTENANCE


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.

 

 

LAWS GOVERNING MAINTENANCE IN INDIA


v  UNDER 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 maintain.-

 

(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,"                   

 

In 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.

If 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 are:  

                                                                                                                         

1.   The 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:-

a)      his wife when she is unable to maintain herself; or

b)      his legitimate or illegitimate minor child; or

c)      a legitimate or illegitimate child who has attained the age of majority; or

d)     his father or mother who are unable to maintain themselves.

 

Case: Savitri W/O Shri Govind Singh V. Shri Govind Singh Rawat[1]- Interim maintenance under Sec. 125 of  CrPC.

 

 

v  UNDER HINDU LAW


Kinds of maintenance:

 

1.      Interim maintenance

2.      Permanent alimony and maintenance


I.         The Hindu Marriage Act, 1955

 

1.      Section 24 deals with Interim maintenance during litigation.

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.

 

2.      Section 25 deals with the Permanent alimony and maintenance.

At 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 remains unmarried. 

Case: Kalyan Dey Chowdhury V. Rita Dey Chowdhury Nee Nandy[2]

 

 

3.      Section 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.

 

II.            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 her lifetime.

Under Section 18 of the Act, a Hindu wife is entitled to live separately from her husband without forfeiting her right to claim maintenance.  

                                    

Some grounds under which a wife may live separately are:-

1.      husband is guilty of desertion; or

2.      the Husband has treated her with cruelty; or

3.      the Husband is suffering from a virulent form of leprosy; or

4.      the Husband has any other wife living; or

5.      the Husband keeps a concubine elsewhere; or

6.      the Husband has ceased to be a Hindu by conversion to another religion; or

7.      if there is any other cause justifying living separately.

 

But the wife cannot claim maintenance from her husband in 2(two) situations, which are:

1.      if she is unchaste , that is, if the wife is engaged in extramarital activity; or

2.      if she ceases to be a Hindu by conversion to another religion.

 

Determining award of maintenance

 

1.      When 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:

a)      the status and position of parties;

b)      reasonable wants of the claimant;

c)      whether the claimant is justified in living separately;

d)     the value of the claimant's property and any income generated from such property, or from the claimant's own earning or from any other source;

e)      the number of persons entitled to maintenance under this Act.

Case - Kulbhushan Kumar vs Raj Kumari & Anr[3]

 

2.      When maintenance is to be awarded to a dependent, the amount will be determined on the basis of the following factors:

a)      the net worth of the deceased after making payment of  his debts;

b)      any provision made under a will of the deceased regarding dependent;

c)      the degree of relationship between both individuals;

d)     the wants of the dependent must be reasonable;

e)      the relations of both dependent and deceased in the past;

f)       the value of dependent's own property and any income generated from such property, or from his or her earnings or from any other course;

g)      the number of dependents entitled to maintenance under this Act.

 

People entitled to maintenance under the Hindu Adoption and Maintenance Act, 1956, are as follows:

1.      Wife: Section 18

2.      Widow daughter-in-law:  Section 19

3.      Children and aged parents: Section 20

a)      Legitimate & illegitimate son,

b)      Legitimate and illegitimate daughter,

c)      Aged and infirm parents,

4.      The dependants of the deceased, which include:

a)      his father,

b)      his mother,

c)      his widow,

d)     the son, son of a predeceased son and the son of a predeceased son of a predeceased son of the deceased,

e)      his unmarried daughters, the unmarried daughters of a predeceased son and the unmarried daughters of a pre-deceased son of a predeceased son,

f)       his widowed daughter,

g)      the widow of the son and the widow of the predeceased son of a predeceased son,

h)      his minor illegitimate sons,

i)        his unmarried illegitimate daughters.

 

III. Quantum of maintenance

 

Maintenance is 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:

 

1.   Descendents (Legitimate)

a)      Minor children of either sex

b)      Unmarried daughter

c)      Married daughter if she is poor

d)     Adult son if he is indigent

2.      Ascendants

a)      Parents

b)      Grand parents

3.   Collaterals

4.      Wife

 

According to the Chapter XV of Hedaya, maintenance may be denied to women only in some situations, which are:

         in case she hadn't attained the age of puberty; or

         if the wife left her husband?s domicile without any cause; or

         if she disobeys the reasonable commands of her husband; or

         in 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.

         Sec. 3(4): 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. 

         Sec. 4(2): 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[4], Shabana Bano vs Imran Khan[5]

 

 

v  UNDER THE CHRISTIAN LAW

 

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.


Alimony Pendente Lite


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.

 

Permanent 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 minor children).

 

  A claimant may file an application for maintenance under section 5 of this Act.

 

A 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.

 

 

CONCLUSION

 

It 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.



[1] 1986 AIR 984, 1985 SCC (4) 337

[2] 5369 OF 2017

[3] 1971 AIR 234, 1971 SCR (2) 672

[4] (2014) 1 SCC 188

[5] 2009AIRSCW7490; AIR2010SC305; 2010(1)BomCR752; 2010CriLJ521; 2010(1)MPHT446(SC); 2010(I)OLR(SC)5; RLW2010(1)SC566; 2009(14)SCALE331; 2010(1)LC186(SC)


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