Supreet Kaur
Maintenance laws have been enacted as a measure of social justice to provide recourse to dependents for their financial support, so as to prevent them from falling into destitution and vagrancy.
In India, we have both statutory and personal laws governing maintenance. For Hindus we have Hindu Marriage Act,1955, Hindu Adoption and Maintenance Act,1956; For Muslim women, Muslim Women Protection of Rights on Divorce Act,1986; Statutory laws: Section 125 CrPC, Special Marriage Act,1956, Domestic violence Act,2005.
These laws contain different provisions for maintenance to different relations, so their interpretation rests with judiciary which has from time to time laid down some rules and guidelines to be followed.
QUANTUM OF MAINTENANCE
It means what should be the amount of maintenance and what factors are considered while deciding the amount of maintenance was first answered by privy council in Ekdeshwari v. Homeshwar, 56 I.A. 182; wherein some clear rules and principles emerged. Privy council held that : amount of maintenance varies from case to case depending upon the facts , the amount of free estate, past life of married parties and necessities and rights of the members, possibility of change in circumstances in the future, regard to the scale and mode of living, habits, wants of parties.
In Jasbir kaur Sehgal v. District Judge, Dehradun, 1997 7 SCC 7; S.C. laid down some factors which determines the amount of maintenance. These are status of parties, reasonable want of claimant , income of claimant and if that income is sufficient to enable her to maintain the same standard of living as she had in her matrimonial home; expenses of proceedings for a non-working wife.
In Manish Jain v. Akanksha Jain, 2017 15 SCC 80; The question which arouse in this case was whether the wife is entitled to claim maintenance from her husband if her parents have sufficient income to maintain her, wherein Supreme Court held that the financial resources of wife’s parents are not sufficient factors but it would be husband’s income and financial resources and his obligation to maintain other family members that would affect the amount of maintenance to be granted to the wife.
Other factors which determines the amount of maintenance are:
Age and employment of parties : If the parties have been in a marital tie for longer time and they are beyond the age of getting any sufficient employment , it would be a relevant factor that can be taken up by courts while deciding the amount of maintenance.
Right to residence: Section 19 (1)(f) of the Domestic Violence Act 2005 provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
When wife is earning : Even if wife is capable of earning , there is no bar to claim maintenance from her husband. If she is earning, still she can claim maintenance. It is for court to decide the amount which must be granted to her depending upon her income and expenses. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself.
Maintenance of minor children: A minor child is entitled to maintenance. His necessities include expenses on education, medical treatment, clothing etc. Unnecessary expenses may be excluded by the court.
Ill health: If the claimant is suffering from a disease and need medical treatment, its expenses can be claimed in a maintenance petition.
DATE FROM WHICH MAINTENANCE IS TO BE AWARDED
There has been a controversy among High Court that whether the maintenance should be granted from date of filing of application or the date on which petition is disposed. This position become clear in Rajnesh v. Neha wherein Supreme Court held that the maintenance should be granted from the date of filing the application for maintenance so that the claimant must not bear the delay caused by courts.
ENFORCEMENT OF ORDER OF MAINTENANCE
The order or decree of maintenance either passed by a magistrate or family court is to be executed like any other decree of civil court.
OVERLAPPING JURISTICTION
(i) Since there are different laws governing maintenance and the claimant can approach the court under any such law. If he has claimed maintenance under one law, he can still approach the court under different law if he is not satisfied with the award. But in such case, the amount granted to him previously would be taken into account by subsequent court.
(ii) It is a obligation on part of claimant to disclose the amount passed under previous proceedings.
Under Muslim law :
After passing of Muslim Women Protection of Rights on Divorce Act, 1986 , a controversy arose that whether Section 125 of CrPC is still applicable to Muslims or not. This was finally settled by S.C. in Shabana Bano v. Imran Khan, AIR 2010 SC 305; Supreme court held that Section 125 of CrPC would be applicable to a divorced woman for purpose of claiming maintenance against her husband even after expiry of iddat as long as she doesn’t remarry.
In Iqbal Bano v. State of UP, 2007 6 SCC 785; S.C. held that 1986 Act was applicable only to a divorced woman. Also, proceedings under 125 CrPC are civil in nature. Even if a women has made application under Section 125 CrPC, it was open to court to treat the same as petition under 1986 especially since proceedings under 125 CrPC and 1986 Act are tried by the same court.
INTERIM MAINTENANCE
S.C. in Manohar lal v. Rao Raja Seth Hiralal, 1962 S.C. 527; took the view that interim orders for maintenance could be passed by courts when court felt that such orders were necessary to meet the ends of justice and to prevent abuse of process of courts.