Maintenance
Q. What is Maintenance and what is the rationale behind making it legally valid? Compare
the provisions of maintenance in all the available laws.
Q. Explain the salient features of Maintenance and Welfare of Parents and Senior Citizens Act,
2007.
Q. Explain the provisions regarding Maintenance of female under the Hindu Adoptions and
Maint Act, 1956.
Q. Explain the provisions of Maintenance under Sec 125 of CrPC.
Q. Explain different provisions under different statutes under which a Hindu wife can claim
maint.
In India, the right to seek maintenance is a statutory right (right which is legally enforceable)
that cannot be waived by an agreement. Maintenance may be provided through court
proceedings (maintenance pendente lite) or after the proceedings are completed
(maintenance final), which is permanent maintenance. Wives, children, and parents all have
the right to seek maintenance. Under special personal laws, even husbands (who are not able
to maintain themselves) are eligible to seek maintenance.
The legal definition of maintenance is the monetary support paid by one ex-spouse to the
other following a formal separation or divorce. This financial assistance is for the wife’s or
divorced wife’s livelihood, her children, property upkeep, and, in some situations, even to
allow her to be appropriately represented in the dispute.
Grants of maintenance are a metric of social justice. A man’s essential obligation is to
provide for his wife, kids, parents, close relatives, etc, while they are incapable of providing
for themselves. Preventing immorality and poverty while improving the economic standing
of women and children is the motive behind the concept of maintenance. The obligation is
unquestionably lawful and binding on the person.
Various laws governing maintenance are as follows:
for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956
for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986
for Parsis – Parsi Marriage and Divorce Act, 1936
for Christians – Divorce Act, 1869
secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954
The Protection of Women from Domestic Violence Act, 2005 provides an additional avenue
for women to claim maintenance and compensation from their husbands and live in
partners.
These laws are under the jurisdiction of the Family Courts, which were established according
to the Family Courts Act of 1984. The following are the statutes under which maintenance is
provided in Hindu Law:
The Hindu Marriage Act, 1955
The Hindu Adoption and Maintenance Act, 1956
The Code of Criminal Procedure
The Hindu Marriage Act was formed in the year 1955 and applies specifically on individuals
who are Hindus including Sikh, Jains and Buddhists and persons who come under the ambit
of Section 2 of Hindu Marriage Act, 1955. Also, children whose either of a parent is a Hindu,
Sikh, Jains or Buddhist and are brought up under the same religion will also be considered as
a Hindu and will be entitled to maintenance.
Maintenance, according to Section 3(b) of the Hindu Adoption and Maintenance Act,
1956 (HAMA) consists of:
- Provision for food, clothing, housing, education, and medical attention and treatment in all
situations.
- The section also says that if the maintenance is to be provided to an unmarried daughter, it
shall also cover all the reasonable expenses required in her day to day life till the day she
gets married.
Types of maintenance
Temporary maintenance - Section 24 of the Hindu Marriage Act of 1955
It is also known as maintenance pendente lite, because it is given by the courts while the
divorce processes are still ongoing. The goal is to supply the claimant with enough money to
cover his or her living expenses as well as the costs of the procedures. The court can order
the payment of maintenance to either the husband or the wife under this section, based on
the facts of the case, such as whether the spouse requesting maintenance is employed and if
the earnings of the spouse seeking maintenance are sufficient. The amount of support due
under Section 24 is determined by the petitioner’s and respondent’s respective incomes.
Permanent maintenance - Section 25 of the Hindu Marriage Act, 1955
As the name implies, it relates to the awarding of an amount on a regular basis or on a
monthly basis after the proceedings of the court have been concluded. Section 25(1)
provides for permanent support for either the husband or wife, depending on the situation.
Sections 25(2) and 25(3) allow for the modification of the original maintenance order issued
under Section 25(1) owing to a change in circumstances. The distinctive characteristic of
these rules is that they allow a husband to demand maintenance from his wife if he is unable
to work.
The Trial Court in Rani Sethi v. Sunil Sethi (2011) held that the wife must pay maintenance
and ordered her to pay the respondent Rs. 20,000/- and Rs. 10,000 as litigation expenses, as
well as providing him with a Zen car for his use and convenience, based on the
circumstances and facts of the case.
Who can claim maintenance is given in HAMA, 1956
Maintenance can be claimed by:
Wife, u/s 18
Children (legitimate and illegitimate sons, unwedded legitimate and illegitimate daughters,
married daughter who is unable to support herself), u/s 20
Parents, u/s 20
Other dependants u/s 22
The fact whether the wife is working and earns some income or not, does not affect her right
to claim maintenance from her husband.
Maintenance for wife under HAMA
The Hindu Adoption and Maintenance Act of 1956, Section 18(1), grants the woman the right
to claim maintenance from her husband for the rest of her life.
Section 18(2) of the same Act says that a married Hindu woman is entitled to maintenance if
she lives apart from her husband with his agreement.
Conditions under which a wife can live separate from her husband and receive maintenance:
(a) if he has deserted her, that is, abandoned her without good cause and without her
permission or against her will, or if he has intentionally neglected her;
(b) if he has treated her with such harshness that she has a reasonable fear that living with
her spouse will be hurtful or dangerous to her;
(d) if he has another living wife;
(e) if he keeps a concubine in the same residence as his wife or resides with a concubine
elsewhere on a regular basis;
(f) if he converted to another religion after ceasing to be a Hindu;
(g) if there is any other reason for them to live apart.
Section 18(3) – If a woman becomes chaste or converts to another religion and ceases to be
a Hindu, she loses her right to claim a separate home and support. In addition, if one
remarries after a divorce, entitlement to maintenance is lost.
Maintenance of widowed daughters-in-law under HAMA
A husband is liable to pay maintenance to his wife after they get divorced. However, if the
husband is dead, it is the obligation of his father to pay maintenance to his daughter-in-law.
Section 19 of the Hindu Adoption and Maintenance Act states the same, but the father-in-
law shall only be liable to pay maintenance if:
• His daughter-in-law has no sources of income;
• She has no property to sustain herself on her own;
• If she has some property, it is insufficient to meet her basic expenses.
• In case she has no property of her own and any property of her husband, parents or
children are not fetching her any maintenance.
The second clause of Section 19 also states:
That a father-in-law shall not be liable to pay any maintenance if:
• He is not able to do so from any coparcenary property in his possession;
• The daughter-in-law has no share in that property, and such obligation will end if she
gets remarried.
Maintenance of children and aged parents
People who cannot earn money for themselves due to reasonable grounds need to be given
maintenance in order to meet their basic necessities. Such people can include children and
old people.
Section 20 of the act states:
- A Hindu male or female is obligated to maintain their children whether they are legitimate
or illegitimate.
- Children shall claim for maintenance from their parents as long as they are minor.
- An unmarried daughter shall be entitled to maintenance even after attaining the age of
majority, till the day she gets married.
The section further prescribes that:
Parents who are old or have physical or mental weakness need to be maintained if they are
not able to maintain themselves.
A childless stepmother will also be considered a ‘parent’ in the context of this section.
Maintenance under section 125 of the CrPC
Section 125 of the Criminal Procedure Code provides for the maintenance to the wife, child,
and parents. Procedures provided under Section 125 of CrPC apply to everyone regardless of
caste, creed, or religion. The court after the party has invoked Section 125 of the Code, may
order the respondent, that is the husband, to maintain the wife who is unable to maintain
herself by providing monthly maintenance to her.
Whenever the judgment is passed in favor of the wife, the court has to make sure that the
husband has sufficient means to provide maintenance to the wife. The court also needs to
make sure that the wife after the separation does not have enough money to maintain
herself.
Under Section 125 of the code, the provision is available for interim maintenance which
means that during the pendency of an application in the court of law, the order may be
passed by the magistrate directing the husband to pay the monthly allowances to the wife.
However, the magistrate has the right to alter the amount of the maintenance to be paid, if
he thinks that there is a change in the circumstances of the individual who has been paying
or either receiving the monthly allowances.
Essential conditions for granting maintenance:
Sufficient means for maintenance are available.
Neglect or refusal to maintain after the demand for maintenance.
The person claiming maintenance must be unable to maintain himself/herself.
Quantum of maintenance depends on the standard of living.
Section 125 of the CrPC is designed with the following features:
Need for sufficient means for maintenance
The most important requirement is that a person cannot be ordered to pay maintenance to
another person unless they themselves have ‘adequate resources to support’ the person who
has the claim and neglects or refuses to do so. The person asserting that he lacks sufficient
means to sustain has the burden of evidence. The fact that he is unemployed does not
excuse him from the requirement.
In the instance of Hardev Singh v. State (1974), the Apex Court held that if a person cannot
pay such maintenance allowance because he is a monk, then it is his obligation to cast off
the yellow robe and labour.
Neglect and refusal to be maintained
The term ‘neglect’ fundamentally refers to a disregard of responsibility that may be either
unintentional or purposeful and is used to refer to a failure to maintain even when no such
demand is made against the maintainer. Whereas, the ‘refusal’ to maintain occurs when there
is a clearly stated purpose to not carry out his responsibility. This intention may be expressed
or even suggested by the husband’s behaviour. The claimant has the onus of establishing
this.
Quantum of maintenance
The rate can occasionally be changed in accordance with Section 127, but it must be fixed,
predictable, and not gradually growing. If both the wife and the child are suing the same
individual, it is against the law to pay them both jointly, instead, each has a distinct claim that
can be paid separately.
Who can get maintenance u/s 125 CrPC
Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”.
According to Section 125(1), the following persons can claim and get maintenance:
Wife
A wife can claim and get maintenance from her husband in the following conditions:
• She is divorced by her husband, or
• Obtained divorce from her husband, and
• She has not remarried, and
• She is not able to maintain herself.
A wife cannot claim and get maintenance from her husband in the following conditions:
• Wife living in adultery, or
• Refuses to live with husband without any valid reasons, or
• Living separately by mutual consent.
Legitimate or illegitimate minor child
Son
‘Minor’ means a person who, under the provisions of Section 3 of the Indian Majority Act,
1875 is deemed not to have attained his majority i.e., above the age of 18 years.
Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of
Cr.PC.
Daughter
If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get
maintenance from her father and if she is married, then she is also entitled to get
maintenance from his father but the magistrate has to be satisfied that her husband has not
essential and sufficient means for the maintenance of his minor wife.
Legitimate or illegitimate abnormal child who has attained majority
If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then
the father of that child has to maintain him and he can claim maintenance on this ground of
abnormality.
Father or mother
Natural father and mother can claim maintenance.
Mother includes adoptive mother; she can claim maintenance from adoptive son.
Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated by
pleading that the father failed to fulfil his parental obligation.
A childless stepmother can claim maintenance.
Jurisdiction of Magistrates to deal with maintenance proceedings
According to Section 125(1)(d), If any person neglects or refuses to maintain his wife,
children or parents, then a Magistrate of the First Class can order such person to make a
monthly allowance for the maintenance of his wife, children or parents, at such monthly rate
as such Magistrate thinks fit, and to pay the same to such person as the direction of
magistrate.
According to Section 125(2), If a court order for such allowance for maintenance or interim
maintenance and expenses of the proceeding, then it should be payable from the date of the
order or if so ordered, then it shall be payable from the date of application for maintenance
and expenses of proceedings.
According to Section 125(3), If any person fails to comply with the order without sufficient
cause, then Magistrate can order to issue a warrant for levying the amount with fines. If the
person again fails after the execution of the warrant, then the punishment of imprisonment
for a term which may extend to one month or until payment of sooner made is awarded.
Maintenance under Muslim Law
In Arabic, the word “maintenance” is equal to the word “Nafaqah”, which literally means ‘an
amount spent by a person over his family’. According to many Muslim legal scholars,
maintenance include all those things which are essential to lead a life such as food, clothing
and residence.
The Muslim husband is not obligated to pay any amount of maintenance to his wife if the
marriage is invalid or irregular unless there were insufficient witnesses. Because of the status
of their marriage’s legitimacy and pre-nuptial arrangements, traditional Muslim law provides
for maintenance to the woman from the husband.
Under The Muslim Law of Maintenance (Nafaqah) following persons are entitled to
maintenance:
- Wife
- Children
- Parents
- Other relations with prohibited Degrees
However, a Muslim wife is not entitled to maintenance in following circumstances:
• If she abandons the conjugal domicile and her husband without any reasonable
causes
• If she elopes with some other man.
• If she has been Imprisoned.
• If she is a minor and because of that the marriage cannot be consummated.
• If she disobeys the reasonable commands of her husband.
The Muslim Women (Protection of Rights of Divorce) Act 1986 was enacted by the then-
Congress administration led by Rajiv Gandhi in order to pacify the outraged muslim
fundamentalists after the Shah Bano case judgment.
The Muslim Women (Protection of Rights on Divorce) Act of 1986 is statutory legislation of
Islamic divorce law. It codifies critical maintenance rules. It specifies the amount of support
that the wife is entitled to during her iddat period. It also allows a Muslim wife to get her
unpaid Mehr or dower, as well as other special possessions, enforced.
This act’s Section 3 states:
▪ A Muslim lady is only allowed to be maintained within her period of iddat.
▪ If she has children before or after the divorce, she is allowed to get maintained for a
term of two years from the date of the children’s birth.
▪ If her spouse fails to provide for her needs, she is entitled to compensation from the
relatives who are supposed to receive her property when she passes away.
In the case of Iqbal Bano V. State of U.P 4, Supreme court held that Muslim Women
(Protection of Rights on Divorce) Act, 1986 only applies to a divorced woman and not to
women who is not divorced. Moreover, it was also mentioned that proceedings under
section 125 of CRPC are civil in nature so if court notices that if a woman has made an
appeal under section 125 of CRPC, court can treat the same as a petition under The Muslim
Women (Protection of Rights on Divorce) Act, 1986 because proceedings under section 125
of CRPC and claims under 1986 Act are tried by the same court.
Maintenance for a divorced Muslim woman till she remarries
A Muslim husband is obligated to provide adequate and equitable provision for the future of
his divorced wife under Section (3)(a) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986. This also encompasses her maintenance. As a result, under Section 3 (1)
(a) of the Act, the husband must provide a fair and reasonable provision for the wife’s
support within the iddat period.
A divorced Muslim woman who has not remarried and is unable to support oneself after the
iddat period can seek maintenance from her relatives who are entitled to her property
following her death under Section 4 of this act.
Maintenance for children
Father’s responsibility to maintain children
- A father has a responsibility to support the following people:
- Until his son reaches adolescence;
- His daughter, who is still unmarried;
- If his married daughter’s spouse is unable to provide for her;
- If his major son is crippled, insane, or incapable of supporting himself.
According to Muslim law, a father has no obligation to care for his children if they refuse to
live with him for no rational reason. A daughter’s right to demand support from her father is
restricted; she can only do so in exceptional situations.
According to Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act,
1986, a Muslim woman can claim a reasonable maintenance amount from her husband, if
she maintains children born to her, before or after divorce, for two years from the date of
birth of such children.
It should be noted that this right of a woman has no relation with the independent right of
the children. It does not matter whether the children were born before or after the divorce,
the wife can compel her former husband to provide maintenance to the children. This right
of a divorced wife (mother) is separate from the right of children to claim maintenance from
their father.
Mother’s responsibility to maintain children
Varied schools of Muslim law have different views on a mother’s responsibility to support her
children. According to Hanafi Law, if the father is unable to financially support his children,
the responsibility for their maintenance is given to the mother. However, according to Shefai
Law, if the father is unable to care for his children, the responsibility for their maintenance is
shifted to the grandfather, even if the mother is economically sound and capable of
maintaining her children.
If a child lives with his mother after the divorce of one’s parents takes place, the mother is
entitled to support from the father until her boy reaches maturity and her daughter legally
marries.
Maintenance under Parsi Laws
Under Sections 39 and 40 of the Parsi Marriage and Divorce Act, 1936 recognizes the right of
either husband or wife to claim maintenance-both alimony pendente lite and permanent
alimony.
Precondition that says the wife should remain unmarried and chaste.
Temporary maintenance – Sec 39
It is also known as maintenance pendente lite, because it is given by the courts while the
divorce processes are still ongoing. The goal is to supply the claimant with enough money to
cover his or her living expenses as well as the costs of the procedures. The court can order
the payment of maintenance (weekly or monthly) to either the husband or the wife under
this section, based on the facts of the case, such as whether the spouse requesting
maintenance is employed and if the earnings of the spouse seeking maintenance are
sufficient.
Permanent maintenance – Sec 40
Such permanent maintenance may be in the form of a gross sum or a monthly amount or a
periodical amount for a term not exceeding the life of the applicant. Section 40(1) provides
for permanent support for either the husband or wife, depending on the situation.
Sections 40(2) and 40(3) allow for the modification of the original maintenance order issued
under Section 40(1) owing to a change in circumstances.
Maintenance under Christian Laws
The Indian Divorce Act governs the law relating to maintenance in Christians.
Precondition that says the wife should remain unmarried and chaste.
Under Sections 36 and 37 of the Divorce Act, 1869 recognizes the right of a Christian wife to
claim maintenance-both alimony pendente lite and permanent alimony. The amount
depends on the wife’s income, husband’s property and his income and various other factors.
Temporary maintenance – Sec 36
Under Section 36, a Christian wife can claim interim maintenance. The Court can direct the
husband to bear the expenses of the proceedings and provide such alimony
Permanent maintenance – Sec 37
An order directing the husband to pay permanent maintenance to his wife can be passed by
the Court under Section 37.
Such permanent maintenance can be in the form of a gross sum, or an annual sum or
monthly or weekly sums for any term not exceeding the life of the applicant.
Maintenance under Special Marriage Act, 1954
Under Sections 36 and 37 of the Divorce Act, 1869 recognizes the right of the wife to claim
maintenance-both alimony pendente lite and permanent alimony.
Temporary maintenance – Sec 36
Also known as alimony pendent lite. It is given by the courts while the divorce processes are
still ongoing. The goal is to supply the claimant with enough money to cover his or her living
expenses as well as the costs of the procedures. The court can order the payment of
maintenance (weekly or monthly) to the wife under this section, based on the facts of the
case, such as whether the spouse requesting maintenance is employed and if the earnings of
the spouse seeking maintenance are sufficient.
Permanent maintenance – Sec 37
Section 37(1) provides for permanent support for the wife. Such permanent maintenance
may be in the form of a gross sum or a monthly amount or a periodical amount for a term
not exceeding the life of the applicant.
Sections 37(2) and 37(3) allow for the modification of the original maintenance order issued
under Section 37(1) owing to a change in circumstances. Precondition that says the wife
should remain unmarried and chaste.
Maintenance and Welfare of Parents and Senior Citizens Act, 2007
Ministry Of Law And Justice drafted a legislature titled ‘The Maintenance and Welfare of
Parents and Senior Citizens Act’. The Act mentions that the person would be considered as a
‘senior citizen’ if he is a citizen of India and has attained the age of 60 years or above.
Who is entitled to claim maintenance under this Act (Section 4)
Section 4 of the Act mentions that a senior citizen including a parent who is unable to
maintain himself from his own earning or property owned by him can claim maintenance.
The Act further states that, if the person claiming the maintenance is a parent or
grandparent, then he can do so against one or more of his children not being a minor.
However if the claimant is a childless senior citizen, then he can do so against his relative.
Here ‘relative’ would mean any legal heir of the childless senior citizen who is not a minor
and is in possession of or would inherit his property after his death.
Extent of the liability
In determining the extent of the obligation, it has been stated that the obligation of the
children or relative, as the case may be, to maintain a senior citizen or parent (either father or
mother or both) extends to the needs of such citizen or parent so that the claimant may lead
a normal life.
This Act, however, doesn’t seek to make it an absolute obligation on the relatives of a senior
citizen. The Act states that a relative from whom such maintenance is being claimed must
have sufficient means to maintain such claimant. Further, the Act also attaches a proviso to it,
which states that such person should either have the possession of the property of such
senior citizen, or he would inherit the property of such senior citizen. On fulfilling the above-
mentioned conditions only, the relative can be asked to maintain the senior citizen.
The Act, contains another proviso, which talks about the proportionate payment by all
relatives if there are more than one and all 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.
Application for maintenance
An application for claiming maintenance as mentioned under section 4, before a Tribunal as
constituted under Section 7 of the Act, may be made[3] –
• by a senior citizen or a parent, as the case may be; or
• if he is incapable, by any other person or organisation authorised by him; or
• the Tribunal may take cognizance on its own (suo motu).
The maximum maintenance allowance which may be ordered by such Tribunal should be
prescribed by the State Government, but the amount in no case can exceed ten thousand
rupees per month.
Protection of life and property of Senior citizens
In the situations where a senior citizen after the commencement of this Act, has transferred
his property( movable or immovable), by way of gift or any such transfer, but the condition
that the transferee shall provide him basic amenities and physical needs, is attached with the
transfer, and thereafter such transferee refuses or fails to fulfill such condition, such transfer
of property shall be deemed to have been made by fraud, coercion or undue influence and
the Tribunal can declare such transfer as void.
Maintenance under Protection of Women from Domestic Violence Act, 2005
The Protection of Women from Domestic Violence Act, 2005 provides an additional avenue
for women to claim maintenance and compensation from their husbands and live in
partners. Under these provisions, maintenance can be obtained without the necessity of
initiating proceedings for a primary matrimonial relief.
Section 20 of the Act talks about monetary reliefs to be given to the aggrieved person and
any child of the aggrieved person as a result of the domestic violence. This order of
maintenance can be under or in addition to the order of maintenance under Sec 125 of CrPC
or any other law.
The maintenance granted can be a lump sum or a monthly payment and shall be adequate
enough for the standard of living of the aggrieved person.
There had been some recent judgements under these provisions of the act which says that
no monetary relief under section 20 of the act could be granted unless the domestic violence
is proved. If a woman fails to establish domestic violence against her by the husband, then
her children cannot be given monetarily relief under the Protection of Woman against
Domestic Violence, the high court recently ruled.
