Legal Framework of Maintenance: Is it gender-neutral or

gender biased?

INTRODUCTION

"The soul has no gender, then why should the law?"-Anonymous. This quotation correctly
highlights the concept of gender equality. As everyone knows, women had a very difficult time
in the past, which led to the passage of numerous laws that catered to their needs, such as India's
current maintenance laws.

The French term "mentenir" which means shelter or protection, is where the word "maintenance"
originated. Later on, the phrase came to refer to providing the necessities for living a healthy life.
According to Black's Law Dictionary, maintenance is the act of preserving, upholding, and
supporting one's means of subsistence and livelihood. The controversial phrase "maintenance"
refers to "support" or "the financial assistance provided to a spouse when they are unable to
support themselves." Since maintenance is not only a man's obligation but also his right to
demand it from his wife if he is unable to support himself, the term that appears to be used most
frequently in divorce cases between men and women is misunderstood as the woman's right to
demand and the man's obligation. Accordingly, the law is not being properly understood.
Although society expects men to take care of their wives, children, and parents, but not the other
way around, a male claiming maintenance from a woman would actually offend the social
sentiments of the community.

Making sure that the law is understood and applied effectively, addressing societal barriers and
beliefs that make the path to equality and equal rights for both genders simple, rather than simply
making one gender subservient to the other because it views them as weak, is important because
the law has a responsibility to empower such communities without limiting their potential.
Although women are entitled to rights and protection in society, this should not make them
reliant on men. When women are given equal opportunities to exercise their rights, but also
when they are held accountable and subject to duties, this is a true manifestation of their
empowerment.
NATIONAL LAWS

1. The Code of Criminal Procedure

'Section 125' of the 1973 Code of Criminal Procedure deals with the idea of maintenance. This
section discusses the Order for Maintenance of Wives, Children, and Parents, which
acknowledges a man's legal obligation to provide for his wife, children, and parents. If a wife is
unable to support herself, the court may provide her maintenance from her husband under this
provision. However, before granting maintenance, the court must determine if the husband is
competent to support his wife. This section's primary goal is to accomplish a social objective by
ensuring that the husband provides the wife with all of her needs.

Instead of providing for the wife's wellbeing, the law subordinates women to their husbands,
renders them dependent, and robs them of their individuality. Aside from that, this section
makes no mention of maintenance to the husband since, in situations when the husband is unable
to support himself, the woman may be exempt from paying maintenance even if she has enough
money on hand, unlike the husband.

The wellbeing of the husband is entirely neglected in this CrPC clause, which leans entirely in
favor of the wife's welfare. The nation-wide code is meant to encourage equality, yet the
aforementioned part subtly encourages inequality by granting privileges to the wife but not to the
husband.

2. Under Hindu Law

The Hindu Marriage Act of 1955 and the Hindu Adoptions and Maintenance Act of 1956 are the
two separate legislation under which maintenance may be awarded in Hindu law. According to
Section 24 of the Hindu Marriage Act, either the husband or the wife may petition for
maintenance if they are unable to support their livelihoods or sustain themselves. Following an
analysis of the claimant's source, the court grants the respondent maintenance on the wife's or
husband's application. Given that both the husband and the wife may seek support under the
Hindu Marriage Act of 1955, it can be concluded that the Act is gender neutral in this regard.

Only the wife, widowed daughter-in-law, children, aged parents, and other dependents are
eligible for maintenance under the Hindu Adoption and Maintenance Act of 1956. According to
section 18(2) of the Act, the wife may request maintenance on any of the grounds listed. In the
event that a woman becomes unchaste or converts to another religion, she loses her right to
maintenance. Children and elderly parents may also be eligible for maintenance under section
20 of the aforementioned Act. Both illegitimate and legal children are included. Both the mother
and the father are required by this section to raise their children, whether they are illegitimate or
legitimate, until they reach majority age.

Since only the woman has the right to claim support under section 18 and the Hindu Adoption
and support Act, 1956 makes no provisions for the husband's maintenance, it can be argued that
this law is gender biased in awarding maintenance to the husband.

3. Under Muslim Law

The term "maintenance" in Muslim law is called "Nafqah," which translates to "what a person
spends over his family." According to Muslim law, the wife, children, parents, and other
relatives can all claim maintenance, and a Muslim woman can also claim maintenance from her
husband during the iddat period under section 3 of the Muslim Women (Protection of Rights on
Divorce) Act 1986. A Muslim woman has the absolute and unconditional right to claim
maintenance, and the husband is obligated to provide for his children if he is unable to do so,
followed by the mother and, if he is unable to do so, the maternal grandfather. Thus from the
above discussion, it can be seen that Muslim personal laws do not recognise the right of the
husband to claim maintenance and therefore it is a gender-biased law.

4. Under Christian Law

The Indian Divorce Act, 1869 deals with the provisions of Christian maintenance. Under this
Act, both civil and criminal suits can be filed by the wife. Section 36 of the said Act and section
24 of the Hindu Marriage Act are both similar in terms of maintenance but only the difference is
under section 36 only the wife can claim maintenance pendente lite and interim maintenance and
not the husband. Under section 37 of the aforementioned Act, a Christian wife who is unable to
support herself may petition for alimony or maintenance in a civil or high court, and the court
will mandate that her husband pay the maintenance sum for the duration of her life. According
to this law, the court may, at its discretion, suspend, lower, or even dispose of the amount until
the husband is able to support his wife once more if he is unable to earn a living or becomes
incapable of doing so on any given occasion.

5. Under Parsi Law

Parsis have the option of pursuing maintenance from their spouse through either civil or criminal
proceedings. Since the parties are free to pursue both civil and criminal processes at the same
time, there is no legal prohibition against interested parties doing so. Unlike civil processes, the
parties' faith has no bearing on the criminal proceedings.

The Parsi Marriage and Divorce Act of 1936 governs the idea of support under Parsi law. The
Act addresses a wife's entitlement to maintenance in the form of "pendente lite" and "permanent
alimony." While the court considers all relevant factors, including whether the husband is able to
provide maintenance to the wife, whether the wife owns any property or assets, and the personal
conduct of both husband and wife, the maximum amount of maintenance that can be granted to
the wife is one-fifth of the husband's income.

Sections 24 and 25 of the Hindu Marriage Act are remarkably similar to Sections 39 and 40 of
the Parsi Marriage and Divorce Act, 1936, when it comes to pendent lite and interim
maintenance. The Parsi Act, which was passed after the Hindu Marriage Act's provisions were
added, gives both husband and wife the rights and responsibilities to provide maintenance to the
other party who is unable to do so. By allowing both husband and wife to seek maintenance
under the Act's provisions, the Parsi Marriage and Divorce Act of 1936 has also taken a step
toward the implementation of gender-neutral laws.

6. Under Special Marriage Act

Those whose marriage was consummated in accordance with this statute are covered by it. The
aforementioned Act is gender biased since the wife may seek maintenance while the case is
pending under section 36 and permanent maintenance or a monthly sum under section 37.
CASE LAWS
1. Anil Jain v. Smt. Sunita 2016 SCC Online MP 6368 (India)

In this case, the wife spent just 12 days in her marital residence. The wife did not report any
abuse during this period, and there were no allegations that her in-laws had harassed her. She
later left the marital residence. The wife then submitted a maintenance application, claiming that
she was harassed by her mother-in-law and husband while they were there, forcing her to leave
the house. The court concluded that “there was insufficient evidence to support the wife's claims.
Consequently, the wife's maintenance claim was denied by the court. Because the wife's
behaviour made it obvious that she had made up a case to get maintenance from her husband.”

2. Smt. Ritu @ Ridhima & Anr. v. Sandeep Singh Sangwan, 2022 LiveLaw (PH) 44 (India)

Despite being an assistant professor, the wife kept her employment status a secret during the
entire process. She had the opportunity to correct the mistake during the proceedings, but she
chose not to do so. However, the income and employment status were revealed during the cross-
examination. As a result, the court determined that the woman intended to use false information
to get support from her husband. The court went on to say that “the party seeking support has an
obligation to reveal her financial situation since it aids the court in calculating the amount of
maintenance.”

3. Nivya V M v. Shiva Parsad M K 2017 (2) KLT 803

The Kerala High Court ruled in the case of Nivya V M v. Shiva Parsad M K that a wife may give
maintenance for her husband if she is competent to do so and he is unable to do it for himself.

4. Lalit Mohan v. Tripta Devi, AIR 1990 J K 7

Once more, the husband requested maintenance after suffering injuries in an accident. The
husband is entitled to maintenance from his wife for the rest of his life, according to the Jammu
and Kashmir High Court, which also granted pendent lite.
INTERNATIONAL LAWS

Maintenance laws in US

In the United States, maintenance laws are referred to as spousal support or alimony, depending
on the state in which the spouse resides. After a divorce or separation, maintenance is frequently
given. The following variables are taken into account when determining alimony payments: the
spouses' income and expenses, the length of their marriage, their age and health, and their
contributions—both financial and non-financial—during the marriage.

Maintenance laws in UK

Spousal support is referred to as a maintenance order in the UK. After a divorce, the payment is
made for a predetermined period of time. Spousal support may occasionally be required until the
other spouse passes away or the couple remarries. The sum is determined after taking into
account a number of variables, including the claimant's earnings, needs, and income. However,
if the spouse quits their job or finds a better-paying position, the maintenance orders could be
changed.

Maintenance laws in Canada

In Canada, spousal support is provided following a divorce or separation, much as maintenance

rules in the US. Monthly maintenance is customary in Canada, but some couples also receive
lump sum payments to make up for childcare expenses, reimburse a spouse who gave up their
earning potential during the marriage, and guarantee a spouse's financial security following a
divorce.

CONCLUSION

Gender equality and community empowerment are not necessarily the outcomes of every action
taken to defend and advance women's rights. Surprisingly, women's protection laws consider
women as inferior to men and are not only directed against them. The main cause of the
infrequent use of the law worldwide is men's needless arrogance in patriarchal societies. It is
advised to raise knowledge of the existence of laws that grant men rights when necessary in
addition to obligations. Because society still favors and values masculinity, which prevents males
from being reliant on women, it is a truth that men will not try to assert their rights. Society will
accept the truth that gender roles have evolved. In the long term, maintaining neutrality is
hampered by the societal belief that men are superior and women inferior. By putting the rule
into effect, society's patriarchal tendencies would be eliminated, resulting in feminism in its
purest form. Thus, this would be a good time to include the gender-neutral clause in the national
legislation.

Women's advancement should not be equated with discrimination against men; if it is, it cannot
be referred to constitute development as upholding one creed cannot mean suppressing another.
It's time to acknowledge and comprehend that men have the same rights as women and can make
maintenance claims. However, the only thing standing in the way of men's rights and women's
obligations are so-called social standards and the institutionalized tendency toward men's
needless dominance. It is recommended that women's clubs and organizations promote the same
rights and responsibilities that apply to men and women. and ignore sociocultural elements like
masculinity in order to help men feel comfortable asserting their rights.

LEGALLANDS assist in services related to Family Law Matters, International Dispute

Resolution, Recovery Suits, Contract Conveyancing, Vetting Contracts, Corporate Services,
Joint Ventures, Merger Acquisitions, Business Set Up and Management Services, Foreign Trade
Policies, Immigration Services, Regulatory Compliances, Legal Compliances, Logistics Support,
Trade Regulations, and many more. We also assist in Due Diligence, Risk Assessment etc. Feel
free to connect with us at connect@[Link]. For further information visit our website on
[Link].