Analysis on “Maintenance of Dependents”

Ramyata Dass

The literal meaning of the term maintenance according to the Cambridge Dictionary is ‘Continuing to have’ or ‘Preserving’. Maintenance can be referred to as the right to be supported or taken care of. The right to maintenance is recognized under various personal laws in India.

Maintenance is the obligation of a man, which is recognized by law, to look after and support the people who are dependent on him. This obligation is based on the premise that the dependent is unable to maintain or support himself/herself. Courts on various instances have stated that the right to maintenance does not mean mere right to survival.

The present article briefly analyses the provisions of maintenance contained in the acts mentioned below. The view of courts on the concept of maintenance is also studied briefly.

  1. the Criminal Procedure Code, 1973- A central legislation applicable irrespective of religion of person.
  2. the Protection of Women from Domestic Violence act 2005- A special legislation for women.
  3. the Maintenance of Parents and Senior Citizens Act 2007- A special legislation for the protection of aged parents.
  4. Under personal law-
  • Hindu laws
  • Muslim laws
  • Christian laws
  • Parsi laws

PURPOSE OF MAINTENANCE

The concept of maintenance has a social purpose. It is to give legal recognition to a moral obligation of a man which is to provide maintenance to the people who are dependent on him such as his children, wife and aged parents. The inability of the dependents to maintain themselves could lead to a plethora of social problems.

The state here is obligated to enact provisions supporting the dependents which otherwise could lead a multitude of problems as they would be left destitute and without any support from anywhere.

The concept of maintenance given in the above stated acts is in consonance with Part IV Article 39 of the act which clearly states that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood, and that the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength and are protected against exploitation and against moral and material abandonment.

Maintenance can be rightfully claimed by persons under their personal laws owing to the fact that such claims are of civil in nature. When maintenance is claimed under the CrPC, it is of criminal in nature and any person regardless of their religious background can claim maintenance under this.

MAINTENANCE UNDER THE CRIMINAL PROCEDURE CODE, 1973

Section 125 of the CrPC lays down Order for maintenance of wives, children and parents. If any person having sufficient means neglects or refuses to maintain-

  1. His wife, unable to maintain herself, or
  2. His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
  3. 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
  4. His father or mother, unable to maintain himself or herself.

From the provision it can be inferred that the dependents according to CrPC are wife, children (legitimate or illegitimate) married or unmarried, and parents. It should be noted that the provisions of personal laws are not in conflict with the provisions of CrPC.

A person can claim maintenance under personal laws as well as under the central legislation although the fact that maintenance has already been claimed under a personal law could be taken into consideration by the magistrate while awarding the quantum of maintenance under the CrPC. Claiming maintenance under this section is to provide a speedy, effective and inexpensive remedy to the dependents.

Burden of Proof: The burden of proof initially is on the dependent claiming the maintenance to prove that the other party has a moral duty of maintenance toward the dependent and that he has sufficient means to maintain him/her. Moreover that the dependent was ‘neglected’ or the other party has ‘refused to maintain’ him/her.

PRECEDENTS FOR MAINTENANCE UNDER SECTION124 OF CRPC

In Savitaben Somabhai Bhatiya v. State of Gujrat, (2005) 3 SCC 636; the court held that the term ‘wife’ as provided in section 125(1) means a legally wedded wife. The word ‘wife is not defined in the act anywhere except for the explanation provided in section 125 which is inclusive in nature and covers a divorcee also.

And the stance taken in this case was that a woman cannot be a divorcee unless there was a marriage preceding in the eyes of law. Marriage with a woman when there is a wife living is null and void and not voidable. Thereby it was said in this case that the second wife will not be entitled to maintenance.

However, the court in further Judgements has relaxed this criterion. In the case of Chanmuniya v.Virender Kumar Singh Kushwaha, (2011) 1 SCC 141; the court extended the right to maintenance under section 125 of CrPC to people living in marriage like relations also.

In the recent case of Kamala and ors. v. M.R. Mohan Kumar, 2018 SCC OnLine SC 2121; the court reiterated an already settled principle of law that unlike other proceeding of marital nature, when maintenance is under question a strict proof of marriage is not essential. If the parties have been living together as husband and wife it will be presumed that they are legally married for the purpose of maintenance.

In Shailja & Anr. v. Khobanna, (2018) 12 SCC 199; it was stated by the supreme court that the wife’s capability to earn could not be a reason to reduce the maintenance awarded to her. The difference was pointed out that capability to earn and actually earning are two very different factors.

In Alphonsa Joseph v. Anand Joseph,2018 SCC OnLine Ker 5012; the high court of Kerala made an observation that the claim of maintenance cannot be out rightly rejected owing to the fact that the wife is earning. There should be an application of minds

Similar assessment was made in Sunita Kachwaha and ors. V. Anil Kachwaha, (2014) 16 SCC 715; where the court went ahead and explained that maintenance is not restricted to for the wife to live a life in poverty neediness. She is entitled to live a life she had at her husband’s house with respect and dignity. Here the husband cannot contend that he was not prepared to pay maintenance to his wife or children.

In a landmark judgement the court in Badshah v. Sou. Urmila Badshah Godse & Anr, Crim. Misc. Petition No. 19530/2013 on 18 Oct. 2013; held that the second wife is also entitled to maintenance under circumstances where the man and woman have been living together for a long time without the marriage being legally valid. Further the circumstances should be that there was a misrepresentation made by the man to be unmarried, in such a situation the wife is validly entitled to maintenance under 125 of CrPC.

Maintenance of Children under the Act: In the case of Ram Chandra Giri v. Ram Suraj Giri, 2010 (4) APLJ (HC) 178;  the father of the child refused/ neglected to provide any maintenance for the minor. Subsequently a petition was filed under the section 125 of CrPC. The father’s contention was that the son had a good physical built and was in a situation to look after himself.

The court rejected the father’s contention and upheld that the potential/ capability of earning power of a minor child cannot be taken into consideration for denying maintenance. Doing so would defeat the purpose of the legislation.

Can a Husband claim Maintenance: Yes, a husband can also claim maintenance. The courts have from time to time stated that the husband can claim maintenance too owing to the precondition that he is incapable or a handicap.

In the case of Nivya V.M. v Shivprasad N.K., KOP (FC).No. 26 of 2015 (R); the Kerala high court held that husband can claim maintenance from wife under section 24 of the Hindu Marriage Act, 1955 only when the husband is able to prove that he is a handicap or incapable.

In the case of Kanchan v. Kamlendra, 1992 Bom 493; the same stance was reiterated where the husband is entitled to claim maintenance from wife in case of physical or mental incapacity.

MAINTENANCE UNDER PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005.

Section 20 of the act talks about the monetary reliefs –

(1) While disposing of an application under subsection (1) of Sec. 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to, –

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

In the case of Rajesh Kurre v. Safurabai & Ots, 2009(1)MPHT37(CG); the court settled the question of law by stating that section 20 of the act is not dependent upon S. 125 of the CrPC. The Court is competent to award maintenance to the aggrieved person and child of the aggrieved person in accordance with the provisions of S. 20 of the Act and the aggrieved person is under no obligation to establish his case in terms of S. 125 of the Code any other provisions of the Family Courts Act 1984 or any other Act relating to award of maintenance.

THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007

Section 4 Of the Act deals with Maintenance of Parents and Senior Citizens.

(1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under Section 5 in case of-

  • parent or grand-parent, against one or more of his children not being a minor;
  • a childless senior citizen, against such of his relative referred to in clause (g) of Section 2.

(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.

(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.

(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen: Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.

MAINTENANCE UNDER HINDU LAW

Maintenance under the Hindu Adoption and Maintenance act, 1956, can be claimed by:

  1. the wife,
  2. daughter-in-law,
  3. children,
  4. elderly parents and
  5. Other dependents have a right to claim maintenance.

The relief of maintenance is available upon, divorce, restitution of conjugal rights or judicial separation etc. Generally under matrimonial laws if the husband is ready to cohabit with the wife, the claim of maintenance by the wife is defeated.

However, under the Hindu law, if the wife wants claims maintenance while residing separately and does not seek any other matrimonial relief she is entitled to maintenance. The act takes into consideration the situation where a woman is unable to reside at her matrimonial home without wanting to break the matrimonial ties for reasons like social stigma.

The following situations are when she can avail maintenance:

  1. Desertion by husband
  2. When the wife has been subjected to cruelty and the situation is as such that living with the husband has become endangering.
  3. When the husband is suffering from a contagious or incurable disease
  4. When the husband has a concubine or mistress in the same house as that of the wife or he lives with his mistress at some other place
  5. Conversion of husband to some other religion or any other reasonable ground which the court considers reasonable.

In the case of Smt. Anita Thaukral v. Shri Satbir Singh Thaukral, 2011 (1) Bom CR 107; the wife was a working woman who had a source of income of her own. But she was unable to pay her medical expenses. In such a situation it was held by the court that the wife can use the husband’s debit card with an undertaking that only a reasonable amount can be withdrawn which might be necessary for covering the medical expenses.

The court held that wife’s source or income or holding of property is no excuse for the husband to deny maintenance to his wife for necessary medical expenses.

Under the Hindu Marriage Act, 1955, the husband or the wife can apply for an interim maintenance. Such claim is based on the premise that the party claiming such maintenance has no independent income to support himself/ herself. The provision of this act does not speak about the quantum of maintenance and thereby it is left up to the discretion of the court.

Quantum of Maintenance under it: Determination of Quantum of maintenance should be based on the means and capacity of the husband. Following are the points which should be considered while determining quantum of maintenance

  1. The wife’s income
  2. The property held by the husband and the income earned by him
  3. Expenses
  4. The expenses from his dependents.

Further there are two types of maintenance under the Hindu law

  1. Interim maintenance
  2. Permanent maintenance

Interim Maintenance: this is the maintenance which is awarded when the proceedings of the court is going on i.e. maintenance pendente lite. Maintenance is payable under interim maintenance from the date of filing of application till the dismissal of the case. The reason behind this is so that the wife is enabled to pay the legal expenses incurred by her.

The circumstances where the wife has absolutely no other source of income the court can award interim maintenance. The quantum of maintenance depends on the circumstances of each case.

In the case of Manokaran v. Devaki, AIR 2003 Mad 212; it was held that if the wife shows at any point during the proceeding that she is unable to maintain herself through her independent income then she will be entitled to interim maintenance.

Permanent Maintenance: This type of maintenance is paid in case of divorce. Section 25 allows the court to pay the maintenance either in form of lump sum or monthly amount throughout her lifetime (or till she gets remarried)

Wife not entitled to Maintenance when-

  1. She converts to other religion
  2. She commits adultery (unchaste )
  3. She remarries

In the case of Chitra v. Dhruba, AIR 1988 Cal 98; it was held by the court that maintenance does not mean providing for bare existence. The quantum of maintenance should be decided according to the lifestyle the dependent had before the disruption of matrimonial relations.

Maintenance of Children: Section 20 of the Hindu Adoptions and Maintenance Act, 1956 deals with the maintenance of children which puts an obligation on both the parents to maintain the children (legitimate or illegitimate). Section 20(2) enables the child to avail maintenance during his/her minority. Whereas the maintenance of daughter is extended till she gets married.

Maintenance of Parents: Section 20 of the act also enables the parents who are old and infirm to maintain themselves through their own earning or property. This obligation of maintenance of parents is gender neutral. Both the daughter and the son are under obligation to maintain their parents. This extends only when the parents are unable to maintain themselves.

MAINTENANCE UNDER MUSLIM LAW

The dependents under muslim law are:

  1. Wife
  2. Children
  3. Parents/ grandparents
  4. Other relations

Nafqah in literal terms mean what a man spends over his children. Under the law it means food, clothing and shelter. These are things which are necessary to support life. A Muslim man is obliged to pay maintenance to his wife during the period of iddat. This right to maintenance under Muslim law is absolute. However a Muslim woman looses her right to maintenance under the following condition:

  1. She has not attained puberty i.e. incapable of consummation.
  2. If she abandons her husband without any reasonable cause.
  3. If she elopes with some other man.
  4. If she disobeys a reasonable command of her husband.

Quantum of Maintenance under it: The quantum of maintenance is to be decided by the court based on the financial condition of husband and wife. Shia law decides maintenance according to the requirements of wife. This quantum of maintenance can be understood through a series of cases.

In the landmark case of Mohammed Ahmed Khan v. Shah Bano Begum, 1985 AIR 945; it was said that Mehr is paid to the wife as a mark of respect which is paid to the wife by the husband. It was settled in this case that mehr does not come under section 127 (3) (b) of the CrPC.

Soon the Muslim women (Protection of Rights on Divorce) Act, 1986 was passed which provided for fair and reasonable provisions for the maintenance paid to wife in the period of iddat.

This act was challenged in the court of law in the case of Danial Latifi v Union of India, (2001) 7 SCC. 740; where the court held that this act was constitutionally valid. Maintenance should be paid to wife and it should be paid within the Iddat period and it should be sufficient to maintain her throughout her life.

Further in a case in 2001, the court in Abdul Latif Mondal v. Anuwara Khatun, (2002) 1 CLJ 186; it was settled that Muslim women can claim maintenance under the provisions of section 125 of CrPC also as it is speedier, effective and inexpensive.

MAINTENANCE UNDER CHRISTIAN LAW

Section 36 of the Indian Divorce Act, 1869 governs the rules regarding maintenance for Christian women. This section bears resemblance to section 24 of the Hindu Marriage Act.

However, under the Indian Divorce act interim maintenance can only be claimed by the wife. If a woman applies for maintenance under section 37 of the Indian divorce act, 1869 the husband is obligated to pay alimony to the wife for lifetime. The quantum of maintenance is up to the discretion of the court and may differ from facts and circumstances of the case.

In the case of Divyananda v. Jayarai, 1984 Cr LJ NOC 10 (Mad); two Roman Catholics entered into marriage by way of Hindu traditions and customs. The wife after a period of 5 months conceived a child. After which the wife filed for maintenance.

It was held that since the marriage was according to Hindu religious customs and the same was done so without converting to Hindu religion therefore the marriage will be considered as void ab initio. Thereby the wife’s claim of maintenance was rejected albeit the right of maintenance of the child was allowed.

MAINTENANCE UNDER PARSI LAW

Section 41 of the Parsi Marriage and Divorce Act, 1936 bears resemblance with section 38 of the Indian Divorce Act, 1869 which states that the amount of alimony can be paid to the wife or her trustees. It is the discretion of the court to modify or vary the order reasonably as it deems fit according to the facts and circumstances of the case.

If the wife has remarried or the husband committed adultery then the court can modify the order accordingly.

CONCLUSION

The courts in India have from time to time given a lenient interpretation when it comes to maintenance. The judiciary recognises that it is a form of social justice and a moral obligation which is given a legal status. The dependents who generally are the wife, children, old and infirm parents, daughter-in-law are provided legal support from the legislation so that they are not left destitute and a state of beggary.

Even though India has a vivid religious background all the personal laws with slight deviations support this stance. A dependent irrespective of his/her religious background can approach the court under section 125 of CrPC for speedy, effective and inexpensive remedy.

*Cambridge Dictionary (2020). MAINTENANCE | meaning in the Cambridge English Dictionary 

*The Constitution of India.Art 39

*The Code of Criminal Procedure, 1973.S. 125 

*The Protection of Women from Domestic Violence Act, 2005.S 20

*The Maintenance of Parents and Senior Citizens Act, 2007.S. 4 

*The Hindu Marriage Act, 1955.S 25

*The Hindu Adoptions and Maintenance Act, 1956.S 20

*Toppr-guides. (2019). Maintenance Under Muslim Law: Aspects of Maintenance In Muslim Law 

*The Indian Divorce Act, 1869.S 36 The Parsi Marriage and Divorce Act, 1936.S 41 

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