Maintenance

Maintenance on the other hand, is an act of bearing the financial expenses or reducing the burden of the spouse
whose burden increases and economical position gets materially changed on the decree of divorce.

Rationale behind Law of Maintenance –

➢ Failure or Neglect to maintain “someone” who is in “relation.”
➢ Natural duty to maintain.
➢ Equitable or Moral Obligation.

Case Laws –
Bhagwan Dutt Vs. Kamala Devi (1975) -
- it was observed that: “The object of these (Sec.125 and 126 of Cr.P.C. provisions is to compel a man to
perform his moral obligations which he owes to the society in respect of his needy dependents so that
they are not left beggared and destitute on the scrap heap of the society thereby driven to a life of
vagrancy, immorality and crime for subsistence.

Madhu Kishwar vs. State of Bihar -

- Women have always been discriminated against and have suffered and are suffering discrimination in
silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected
to all inequalities, indignities, and discrimination”. --Justice K. Rama Swamy.

Requirements for claim –

• Inability of person to maintain himself/herself.
• Failure or neglect by the person under obligation.
• Persons must be ‘related’.
• Statutory Obligation to maintain.

Factors relevant –
• Position, income, and status of the parties.
• Reasonable want of the claimant towards food, clothing, shelter, medical expenses, education, and the
like.
• number of persons of the opposite party whom he is obliged to maintain.
• May be claimed for brothers and sisters if they are completely dependent on the party.

Maintenance under Hindu marriage act –

• The maintenance provisions under the Hindu Marriage Act,1955 ensure that the rights of each of the
party is not hampered.

Types Of Maintenance -
On consideration of factors by the competent court, maintenance can be granted on the following basis-

1. Maintenance pendente lite - Sec.24

2. Alimony and Permanent Maintenance - Sec. 25

 Temporary Maintenance- It is also referred to as maintenance pendente lite which is awarded by

the courts during the continuation of proceedings of the divorce.

- Under Section 24 of the act if the court considers fit and is satisfied that either wife or husband does
not have an independent income, then it can order the respondent to pay the maintenance to the
petitioner in accordance with the provisions of this Section. Thus, the claimant can be a husband as
well.

 Permanent Maintenance- As the term suggests, it refers to the granting of a sum on a periodical
basis or on a continued basis once the proceedings have been disposed of. Section 25 of Hindu
Marriage Act, 1955. Either of a spouse is entitled to receive it.
 - Further, according to the provisions of Section 25 of the Act, which deals with the granting of alimony
on a permanent basis, the court may on the application made by the respondent , order to provide for
maintenance either in the form of periodical payments or a gross sum to be provided. Thus, in this case
as well the respondent can either be a wife or a husband.

The purpose of interpreting the provision in this way is to avoid the discrimination because both husband and
wife are equal in the eyes of law.

Objective behind section 24 –

• Maintenance under this section is granted during the rationale of the Sec.24 is to provide financial
assistance to the spouse who is unable to maintain himself/herself.
• the time of proceedings if the party is not able to maintain himself or herself.

Interim maintenance under section 24 , HMA –

• Can be filed by either wife or husband
• Any proceeding- TP Sudeesh Babu v. Sherly
• Includes maintenance for the pending litigation between parties and for his/her support
• Should be disposed of within 60 days from the date of service of notice to the respondent (added by
amendment of 2001)
• In fixing interim maintenance regards to be given to income of respondent and petitioner, means with
respondent, number of members to be maintained by respondent
• Petitioners conduct is immaterial
• Support of petitioner by family and friends is immaterial
• Order under section 24 is interlocutory order
• Shashika Pandey v. Ramesh Pandey

Scope of section 24 HMA –

• The scope of this section is very limited, and it facilitates the matrimonial proceeding for the party who
does not have a separate source of income.
• It must be claimed only when a proceeding is pending before the court and not otherwise.

Scope and Objective of Section 25,HMA –

- Scope
• The rights under this section are special, independent, and conditional to the spouse.
• These rights can only be exercised only when there is a decree existing under the Act affecting the
matrimonial relations between the parties.
- Objective
• The objective was to provide maintenance to the needy woman or the deserving spouse after a decree
has been passed by the court. (Chand Dhawan V. Jawaharlal Dhawan, 1993)
Permanent alimony and maintenance –
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time
subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may
be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or
such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the
respondent's own income and other property, if any, the income and other property of the applicant , the conduct
of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment
may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made
an order under sub-section (1), it may at the instance of either party, vary, modify, or rescind any such order in
such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favor an order has been made under this section has re-married
or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had
sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or
rescind any such order in such manner as the court may deem just.

- The Court generally investigates the income and property of the parties, the conduct of the parties, and
any other circumstances which may be just.
- There is no fixed norm for the court to follow to grant alimony it differs from case to case.
- In case the of decree of divorce is awarded by a High Court then the permanent alimony can be granted
by High Court only, this was opined in the case of Poonam Meheta v Naresh Prasad,2009.
- When the application of permanent alimony and the maintenance is pending, in such cases, the court
opined that wife could apply for alimony pendente lite till the disposition of the marriage, this was
opined in the case of Y. Prashad v Jyoti.

Conclusion & Overview of maintenance under HMA –

1. Suit For Matrimonial Remedy
2. Maintenance Under S.24
3. Passing of Decree
4. Maintenance Under S.25

Guidelines to determine quantum of maintenance –

1. Means and capacity – Atar Singh v. Jasoda
2. Income of the Non-applicant- Reeta Sharan v. Shelendra Sharma
3. Income of the applicant- Indu Singh v. Ranjeet Singh, Madhu V. P.S. Pundir, Manokaran v. M. Deavke
4. Educational qualification of non-applicant- Swaran Singh v. Raj Kumar
5. Needs of the applicant- jasbir Kaur Sehgal v. District Judge
6. Conduct of the applicant- Gulab v. Kamat, Jagdish v. Manjula
7. Appeal Against main decree
8. No waiver of right even by consent
9. Date of maintenance- Popai v. Teerath Singh, Jaspal Singh v. Harjinder Singh
Objective of provisions under Crpc –
• Socio, Economic & Moral purpose
• Prohibition of Discrimination based on ‘Sex’ & ‘Religion.’
• Protective Discrimination
• Prevention of Criminal activities
• Speedy disposal of case of Maintenance

Maintenance Under Section 125 C.D.C.

According to this Section magistrate of first class has the power to order the person to provide monthly
allowance to:

 His parents,
 Wife, or
 To his legitimate or illegitimate minor children who are unable to maintain themselves
 Legitimate or illegitimate major child not being a married daughter, who are unable to maintain
themselves due to any physical injury or abnormality
 Married daughter till she attains her majority if her husband is unable to maintain her
 His or her father or mother if they are unable to maintain themselves, whoever neglects or refuses
to do so.

Chapter IX order for maintenance of wives, children and parents –

Section 125 – order for maintenance of wives, children and parents.
Section 126 – procedure.
Section 127 – alteration in allowance.
Section 128 – enforcement of order of maintenance.

Nature of proceeding –
• Criminal Proceeding of civil nature.
• Proceedings of Summary nature.
• Orders as it thinks fit.
• Ex-parte orders can be made.
• Orders made u/personal laws or u/civil suits may be taken into consideration u/criminal suit &
Vice- versa.

Person’s liable to pay maintenance Section 125(1) –

1. Husband – to his wife
2. Father – to his children
3. Son/Daughter – to his/her parents
Wife’s entitlement under CrPC –

When she is entitled –

1. Legally wedded marriage as per their religion.
+
Husband has neglected or refused her to maintain.

2. Wife has been separated from her husband on reasonable cause.

+
Unable to maintain herself.
+
Husband has sufficient means.

When she is not entitled –

1. Living in adultery.
2. Has sufficient means.
3. Refuses to live with her husband without sufficient reasons.
(If the husband has contracted marriage with another women, or keeps a mistress, it shall be considered
to be just ground for his wife’s refusal to live with him)
4. Living separately by mutual consent.
5. Remarries after divorce.

Case laws –
• In re Kandasalmi- capacity to earn
• Valliammal v. Dharmalinga- even if a beggar, in debt or means are slender
• Ishar v. Soma Devi- relevance of neglect
• Bhikaiji v. Monecki-refusal to maintain can be expressed or implied
• Muhammad Yar v. Ali Muhammad- child’s ability to maintain itself cannot negate father’s obligation to
maintain
• Chantan v. C. Mathu- father’s obligation to maintain child is personal in nature
• Mukta v. Dutta – maintenance in void marriages

Maintenance under HAMA –

Right To Maintenance of Hindu Women Under Hindu Adoption and Maintenance Act
• The right of maintenance arises from the concept of an undivided family. The head of such family is
bound to maintain its members, their wives, and their children. It is declared by Manu that “the aged
mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred
misdeeds.”

Definition of Maintenance: It is a right to get necessities which are reasonable. Section 3(b) of the
Hindu Adoptions and Maintenance Act, 1956 defines maintenance. According to this section
 Maintenance include

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment,
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage,
(c) “minor” means a person who has not completed his or her age of eighteen years.

In State of Haryana v. Smt. Santra, it was held that it is a liability created by Hindu Law and arises out of jural
relation of the parties.

Maintenance can be claimed by wife under Hama, when –

1. Lives with the husband.
2. Lives separate from the husband.
3. Lives separate under decree of court or marriage has been dissolved.

When wife lives separate from her husband-section 18 –

• She can claim maintenance and separate residence only when there is a justifiable cause to leave
separate:- (whether married before or after commencement of the Act)
1. Desertion
2. Cruelty
3. Leprosy-removed
4. Another wife is living
5. Keeps a concubine
6. Conversion
7. Any other justifiable reason- has same meaning as reasonable cause under desertion of HMA.

Limitation under section 18(4) –

Section 18 (4) - Where the husband is unable to provide for his wife, on account of physical disability, mental
disorder, disappearance, renunciation of the world by entering any religious order or other similar reasons, the
Hindu wife is entitled to claim maintenance during her lifetime, from members of the joint Hindu family of the
husband, except where the husband has received his share in the joint family property.

When wife’s right is defeated –

1. An unchaste wife.
2. Who has ceased to be Hindu by Conversion.
3. Wife who has resumed co-habitation with husband-dissenting view.

Maintenance of daughter-in-law (section 19) –

• Marriage whether solemnized before or after commencement of this act.
• Shall be entitled from father-in- law after death of her husband.
• Only if she is unable to maintain herself out of her own earnings/property or if she has no property of
her own then from property of her husband, father, mother, son or daughter.
• Father-in- law can provide such maintenance only from coparcenary property.
• Her right shall be defeated on her becoming unchaste or conversion.

Case- Law –
• Raj Kishore Mishra v. Smt. Meena Mishra, Court held that the obligation of father-in-law shall not be
enforceable if he has no means to maintain his daughter-in-law from any coparcenary property in his
possession out of which the daughter-in-law has not obtained any share. The object of this Section is to
make it clear that the widowed daughter-in-law can claim maintenance from her father-in-law only
where she is unable to maintain herself out of her own property or from the estate of her husband,
father, mother, son, or daughter. It is also provided that the father-in-law shall be under no obligation to
maintain his daughter-in-law except in cases where there is some ancestral property in his possession
from which the daughter-in-law has not obtained any share.

Maintenance of children under HAMA-section 20 –

• Who has an obligation to maintain children?
• Legitimate and adopted sons
• Illegitimate children
• Legitimate and adopted daughters
• Major unmarried daughter
 Section 20 of Hindu Adoption and Maintenance Act, 1956 lays down an obligation on a hindu male or
female to maintain their legitimate/ illegitimate minor children and aged/ infirm parents, the amount of which is
to be determined by the competent court on the following factors-:

1. Economic position and status of the litigating parties.

2. Reasonable wants and needs of the parties.
3. Dependence of the parties, etc.

Points to remember –
• No dependant can claim maintenance, if he/she ceases to be a Hindu.
• Amount of maintenance may be altered if there is change of circumstances.
• The act includes maintenance awarded either by decree of court or by way of agreement.
• Act also included alteration of maintenance awarded before commencement of the act.
• Debts of deceased should have priority over the claims of dependants.
• Right of maintenance out of estate of deceased when it is transferred subsequently to a bonafide
purchaser with value and with notice.
• Dependant’s claim shall not be a charge on the state of the deceased unless it is created.