Indian Laws on Maintenance

Khushi Lunawat

The dictionary interpretation of the word ‘maintenance’ is help or preserving. The word maintenance is not specified in any of the religious communities’ marriage laws. The right to seek maintenance, however, is definitely based on the premise that the claimant does not have adequate means of sustaining herself.

A person is entitled to basic necessities in order to live a dignified life, such as food, clothes, shelter and other required requirements. It is the natural obligation of a man, under the principles of social justice, to provide his wife, parents and children with these facilities in the form of maintenance.

‘Maintenance’ is a term with broad connotation. The maintenance usually includes the costs of life’s substance necessaries or essentials. However, it is not merely the claimant’s right to exist. As the court with instructions specifies the factors to be taken into account in deciding the amount of maintenance.

The court is to investigate the ownership of both the husband and the wife’s land, the husband’s ability to gain, the parties’ actions and other circumstances to determine the amount of maintenance. The status of the parties and the quality of their lives enjoyed by them would have to be taken into account during the subsistence of marriage before determining the amount of maintenance.

Maintenance under various laws

Maintenance under Hindu Law

The maintenance relief is considered an ancillary relief and is only available upon filing for the main relief, such as divorce, restitution of conjugal rights or separation from the courts, etc. Furthermore, under marriage laws, if the husband is prepared to cohabit with the wife, the wife’s claim is usually defeated.

In Hindu law alone, however, the right of a married woman to live separately and claim maintenance, even if she does not seek divorce or any other substantial marital relief, has been recognized.

Without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956, a Hindu wife is entitled to live separately from her husband.

The Act envisages such circumstances in which it may be difficult for a wife to continue residing and cohabiting with the husband, but for different reasons ranging from growing children to social stigma, she may not want to sever the marriage relationship.

Some important case laws:

Ram Chandra Giri v. Ram Surat Giri, (1982)

In this case, a petition was filed under section 125 of the CRPC for the father of a minor son who failed to provide maintenance. The father then argued that the son had a good physics and was strong and therefore he had the capacity to fend for himself. The Court dismissed the claim and claimed that it was not appropriate to apply the principle of future earning ability to minor children as it would defeat the law for the same reason.

K. Sivarama Krishna Prasad vs K. Bharathi And Anr, (1986) Cri LJ 317

In this case, the court ruled that, in contravention of any marriage, it cannot be treated as a legitimate marriage under Sections 5 & 11 of the Hindu Marriage Act. Such a woman can’t resort to maintenance under section 25 of Hindu Marriage Act.

Chandaram Bunkar Vs Smt. Ramadevi, AIR (2010) Raj 176

The court held that up to the extent of Rs.1/5th of spousal income, maintenance can be awarded. Husband received a salary of approximately Rs.35,000/- per month and a sum of Rs.3,000/- per month was awarded by way of maintenance of life. The husband received a provisional pension of Rs.15,115/- per month after retirement. Order of Family Court keeping the sum of Rs.3,000/- not inappropriate as maintenance to the wife even after the husband’s retirement.

Maintenance under Muslim Law

All the items required to sustain life, such as food, clothes and housing, are too limited to food. Nafaqa literally means that a man spends on his children; it means eating, clothes, and lodging in law; it means food in common usage.

Maintenance includes food, raiment, accommodation, although it is restricted to first in common parlance. Thus, the main principles of maintenance can be recounted as follows: (i) a person is entitled to maintenance if he has no land,

(ii) is in a prohibited degree relevant to the obligor, or is a wife or infant, and

(iii) is in a position to support the obligor. The maintenance responsibility is often protected by their economic situation as a factor.

Persons entitled to Maintenance

I) Maintenance of Wife

II) Maintenance of Children

III) Maintenance of Parents, and

IV) Other relations

Some important case laws

Gulam Rashid Ali Vs Kaushar Praveen & another, (2010) DMC 371

The court held, that even a divorced Muslim woman will be entitled to demand security from a Muslim husband until she is unmarried. As this is a positive piece of legislation, divorced Muslim women would benefit from the advantage.

Mumtazben Jushabbhai Sipahi Vs Mahebubkhan Usmankhan Pathan & Anr., II (1999) DMC 71

A divorced woman is entitled to obtain maintenance from her family such as her children or parents or from the ‘Wakf’ Board under Section 4 of the Muslim Women Act if she is not able to hold herself after the iddat era from the provision and maintenance rendered and paid by her former spouse.

In the Muslim Women Act, there is no clause that nullifies the orders passed by the Magistrate under Section 125 or 127 of the CRPC. Ordering the husband to pay the divorced woman for maintenance or to revoke the vested rights that are crystallized by the orders given under Section 125 or 127 of the Cr.P.C.

Maintenance under Christian Law

By criminal proceedings or/and civil proceedings, a Christian woman may demand maintenance from their spouse. Involved parties can jointly seek both criminal and civil proceedings, as there is no legal bar to the proceedings.

The faith of the parties does not matter at all in criminal cases, unlike in civil proceedings. S.24 of HM ACT is identical to Section 36 of the Indian Divorce Act, 1869 (IDA). However, S. 36 In the sense that the maintenance pendente lite varies from the IDA 36, only the wife and not the husband may demand maintenance and interim maintenance.

In the post-divorce period, if a divorced Christian wife cannot help her, she need not worry as a solution for her in law is in store.

Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the court may order, till her lifetime.

Important Case Law

Divyananda v. Jayarai

In this case, two Roman Catholics joined ‘Suyamaryadhai’, form of marriage and lived together for 5 months as husband and wife in the course of which the wife gave birth to a child. Since she was not a legally wedded partner, the Court dismissed the woman’s appeal. The Court held that, being Christian, their marriage without any conversion was void ab-initio in accordance with Hindu customs and hence the woman was not a wife in the eye of the law. As such, under section 125, a woman may not demand maintenance, although her children would be entitled to maintenance under section125.

Maintenance under Parsi Law

By criminal proceedings or/and civil proceedings, Parsi may demand maintenance from the spouse. Involved parties can seek criminal as well as civil proceedings at the same time as there is no legal bar to the proceedings.

In criminal cases, unlike civil proceedings, the religion of the parties does not matter at all. If the husband refuses to pay maintenance, the wife will tell the court that, even after the court’s order, the husband refuses to pay maintenance. If he decides to pay, the court will then sentence the partner to incarceration. As long as he does not pay, the husband will be held in prison.

The Parsi Marriage and Divorce Act, 1936, both pendente lite and permanent alimony, addresses the wife’s right to maintenance. At the time a matrimonial suit is pending in court, the maximum sum can be decreed by the court as alimony is one-fifth of the net income of the husband.

The court will decide what is fair when repairing the permanent maintenance, taking into account the capacity of the husband, the wife’s own property and the actions of the parties, and this order will remain in effect as long as the wife remains chaste and unmarried. Sections 39 of the Parsi Marriage and Divorce Act, 1936 (PMDA) is equivalent to S.24 of HM ACT in the case of pendent lite and interim maintenance.

Maintenance under Code of Criminal Procedure, 1973

Section 125 (1) of the act says:

(1) If any person having sufficient means neglects or refuses to maintain

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, 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, unable to maintain himself or herself,

Section 125 gives legal recognition to a man’s religious, legal and fundamental obligation to safeguard his wife, children and elderly parents. While a troubled father still profits from this section, the primary purpose of this section is to assist women and children. Article 15(3) of the Indian Constitution specifies that special arrangements can be made by the State for women and children.

Section 125 also follows Art.39 of the Indian Constitution, which states that the State shall guide its policy to ensure that both men and men are all citizens. Women have fair access to livelihoods and, under conditions of equality and dignity, children and young people are given opportunities to provide services.

Section 125 is meant to be applied to anyone regardless of their personal laws at the time of enactment of this code even though maintenance is a civil remedy, but a simple remedy and proceedings have been made part of this Code and S.125 is not a trail as non-payment of maintenance is not a criminal offense.

Some important Case Laws

Mohd. Ahmed khan v. Shah bano Begum & other, (1985) 2SCC 556

A lawyer by profession, married to Shah Bano Begum (the respondent) in 1932, Mohd Ahmed Khan (the appellant party) had three sons and two daughters from this union. She was disowned by her spouse in 1975, when Shah Bano was 62 years old, and was thrown out of her marital home along with her children.

In 1978, in the presence of the Judicial Magistrate of Indore, she lodged an appeal because she was relieved of the maintenance of Rs. 200 per month, which was promised to be given by him. She requested Rs. 500 for maintenance per month.

Subsequently, on November 6, 1978, the husband gave her irrevocable triple talaq and used it as a shield in order not to pay maintenance. In August 1979, the magistrate ordered the husband to pay the full sum of Rs 25 per month for maintenance.

In July 1908, Shah Bano made a plea to the M.P. High Court to alter the amount of maintenance to Rs. 179 per month, and the high court increased the maintenance to that amount, i.e. Per month, Rs. 179. The same was challenged in the Supreme Court by the spouse as a special leave petition to the judgment of the High Court.

The Supreme Court clarified that the law provision applies to all people irrespective of their religion and, accordingly, Section 125(3) of the Criminal Procedure Code is also applicable to Muslims without discrimination of any type.

The court further clarified that if there is any dispute between the two, Section 125 overrides personal law. It makes clear that there is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the responsibility of the Muslim husband to provide maintenance for a divorced wife who is unable to support herself. I

In this case, the Supreme Court duly held that since the duty of the Muslim husband to his divorced wife is limited to the degree of ‘Iddat’ period, in fact, although this situation does not contemplate the rule of law set out in Section 125 of CRPC., 1973, and subsequently the duty of the husband to pay the wife’s maintenance extends beyond the iddat period in the event.

The court further claimed that this rule was against humanity under Muslim law or was incorrect because a divorced wife was not in a position to sustain herself here. The husband’s payment of Mehar for divorce is not sufficient to exclude him from the wife’s obligation to pay maintenance.

The Supreme Court finally concluded that the legal responsibility of the husbands will come to an end if a divorced wife is competent to retain herself. However, this situation will be changed in the event that the wife is unable to maintain herself after the Iddat period, she will be entitled to receive maintenance or alimony under CRPC Section 125.

Case Law related to Section 127 of CrPC

Alteration in allowance

Bai Tahira v. Ali Hussain Fissali, (1979) 2SCC 316

The SC held that if the amount of deferred ‘Mehar’ paid at the time of divorce is sufficient to support the wife during her lifetime, an order of maintenance U/S.125 shall be liable for cancellation in accordance with S.1277 (3). In Fuzlumbi v. K. Khader Ali., the same view point was upheld.

Maintenance under Protection of women from Domestic violence Act, 2005

Section 20(1) of the act says:

1) While disposing of an application under sub-section (1) of section 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 section 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.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent

Some important Case laws

Rajesh Kurre v. Safurabai & Ots, (2009) Cri.L.K. (NOC) 446 (Chh.)

It was held that, the terms of the rules under Section 20 of the Act are simple, transparent and clear.  The protections are separate and are applicable to the aggrieved, in addition to any other remedy, in any judicial case before the Civil Court, the Criminal Court or the Family Court.

The regulations do not rely on Section 125 of CRPC or any other provisions of the 1984 Family Courts Act or any other maintenance award statute. The court is qualified to grant maintenance to the aggrieved person and child under the provisions of the Act in the event of an award of maintenance to the aggrieved person and child under the provisions of the Act.  In compliance with the provisions of Section 20 of the Act, the aggrieved person’s child.

Mohd. Maqeenuddin Ahmed and other vs. State of AP., (2007) SCC 1072

It was held that, if the petition alleges that he refused to pay medical bills and also failed to support her and her son, the court is not inclined to quash the proceedings against him.

Maintenance and welfare of Parents and Senior citizens Act, 2007

Section 4 of the acts deals with maintenance, which is as follows:

(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–

(i) parent or grand-parent, against one or more of his children not being a minor;

(ii) 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 citizen or he would inherit the property of such senior citizen:

Provided that where more than one relative is 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.

Conclusion

Women’s rights have been restored by judicial pronouncements and other measures, but it will only become fruitful when modified by lying thought, women can emancipate themselves for their well-being only educationally, economically and socially, and then they will realize their rights and worth, and after that the social upliftment of the entire society is feasible.

We should still note that the mother is the child’s first teacher and tutor. It is a historical fact that once their female folk are at peace, no culture has ever existed in peace. While maintenance should be gender neutral and should be relevant to the greater perspective of society for both husband and wife alike, many women are still refused to assert their maintenance rights.

In order to abide by the Law of the Land and eventually make it a great success, proper implementation is necessary.