Contents

ACKNOWLEDGEMENT.................................................................................2
INTRODUCTION...........................................................................................2
Types Of Maintenance......................................................................................3
Hindu Marriage Act, 1955.................................................................................5
Obligation To Maintain Wife..........................................................................5
Obligation To Maintain Children And Parents...................................................6
Maintenance Under Section 125 Cr.P.C...............................................................7
Landmark Judgement Of Section 125 Cr.P.C........................................................8
Critical Analysis..............................................................................................9
Conclusion...................................................................................................10
BIBLIOGRAPHY.........................................................................................11

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher

‘DR . VISHNUPATI TRIPATHI’ , who gave me the golden
opportunity to do this wonderful project of FAMILY LAW IIon
“MAINTENANCE UNDER HINDU LAW”, who also helped me in
completing my assignment. I came to know about so many new things
I am really thankful to them.

Secondly I would also like to thank my parents and friends who

helped me a lot in finalising this project within the limited time frame.

- Thanking you
- NEETIKA

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INTRODUCTION
Maintenance as a concept when considered from the point of view of law refers to the kind of
financial assistance given to either of the litigating parties on an application made by them
and only through an order passed by the court having jurisdiction to do so and upon execution
of decree in this regard.

It is often referred to as "alimony" or a kind of monetary support from the spouse i.e. spousal
assistance. 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.1

Further, the main purpose of granting maintenance is to maintain the standard of living of the
spouse equivalent to that of the other spouse and in accordance with status prior to the
separation. It is granted during the proceeding of decree or after the decree of divorce and
ceases to exist on the death or remarriage of the alimony holder. The spousal maintenance Is
determined on the existence of various factors by the court as follows:

1. No separate source of Income. The most important factor to be considered before granting
maintenance or alimony is to check whether the spouse seeking maintenance has any separate
source of income or not or is solely dependant on the income of his/her spouse.

2. Standard of living of both the litigating parties before separation.

3. Expenses required to maintain children.

4. Requirement to maintain the same standard of living of the spouse as it was before the
separation.

5. Skills, capabilities and educational background of the spouse to earn his/her living and
maintain themselves etc. 2

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

1
Guardianship under muslim law available at https://lawbhoomi.com/guardianship-under-
muslim-law/
2
Guardianship under muslim law available at https://blog.ipleaders.in/guardianship-child-
different-personal-laws/

3
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. The purpose is to meet
the necessary and immediate expenses of the spouse who is a party to the proceedings. On
satisfaction, the court may grant it. Section 24 of Hindu Marriage Act, 1955 deals with this
kind of maintenance. Further can be claimed under Section 125(1) of CrPC.3

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.4

Prior Status of Right of Maintenance

Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 initially dealt
with the provisions of granting maintenance. 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. Under old Hindu law, a Hindu male was under an obligation to maintain the
following persons:5

His wife,

Unmarried daughter,

Legitimate sons,

Illegitimate sons, and

Aged parents.

Thus, only hindus (the applicability of which could be checked from Section 2 of Hindu
Marriage Act, 1955) are covered under this Act.

From the ancient times women have been kept at a disadvantaged position which not only
weakens their stake in the society but also leads to an unequal treatment with them. The Code
of Criminal procedure came into force in the year 1973 and according to Section 125 of this

3
Paras Diwan, Family Law, Allahabd Law Agency
4
Guardianship under muslim law available at https://lawbhoomi.com/guardianship-under-
muslim-law/
5
Paras Diwan, Family Law, Allahabd Law Agency

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code, maintenance is granted to wives, children and parents Imespective of any religion or
personal laws. Hence, It has provided for a better status to women by granting rights in a
dignified manner

Obligation To Maintain Wife, Children And Parents In India

The statutory provisions laid down under various acts and Cr.P.C makes it mandatory to
maintain the dependant spouse, children and spouse in India. 6

Hindu Marriage Act, 1955

Obligation To Maintain Wife
Section 24 and Section 25 of the said act deals with the provisions of allowing pendente lite
and permanent maintenance respectively. In Dr. Kulbhushan v/s Raj Kumari and Ant, the
court while deciding the amount of maintenance observed that it is determined based on the
facts of each case and declared that if the court enhances or moulds the amount of
maintenance, then such a decision would be justified. It was further held in this case that it
would be fair to provide wife with 25% of husband's net salary as maintenance.

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.7

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.

Delhi High Court recently in the case of Rani Sethi v/s Sunil Sethi, ordered wife respondent)
to pay maintenance to her husband (petitioner) of Rs 20,000 and Rs. 10,000 as litigation
expenses. Further a Zen car was ordered to be given for the use of the petitioner.

6
Guardianship under muslim law available at https://blog.ipleaders.in/guardianship-child-
different-personal-laws/
7
Paras Diwan, Family Law, Allahabd Law Agency

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Wife on being aggrieved by the same order approached the High Court, where the scope of
Section 24 of HMA was construed and it was held that the purpose of this Section to provide
support to the suppose who is incapable of earning his/her independent income.

Further it was held that the term "support shall not be construed in narrow sense and thus, it
includes not only bare subsistence. It aims to provide a similar status as that of the respondent
spouse. Thus, considering all the facts and circumstances, the appeal of wife was dismissed. 8

Though Section of the above said Act provides sufficient right to both husband and wife to
move an application before the court for seeking maintenance, if they do not have an
independent source of income and have been solely dependant upon his/her spouse. But this
Section cannot be invoked in such a manner as to where husband though capable of earning
does not continue to do so intentionally for the sole purpose of depending on his wife. In such
a case husband cannot move an application for seeking maintenance. This was held by the
Madhya Pradesh High Court in the case of Yashpal Singh Thakur ve Smt. Anjana Rajput
where husband incapacitated himself by stopping to run an auto rickshaw. Hence, where a
person intentionally incapacitates himself he loses the opportunity to file an application for
seeking maintenance.9

Obligation To Maintain Children And Parents

Section 26 of the same act deals with the custody, maintenance and education of minor
children. Court may, as it considers necessary and deems fit, from time to time pass interim
orders in this regard and at the same time has the power to revoke, suspend or vary such an
order, Obligation to maintain lies on both father and mother of the child or on either of the
parents as ordered by the court. 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:10

1. Economic position and status of the litigating parties.

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

8
Guardianship under muslim law available at https://blog.ipleaders.in/guardianship-child-
different-personal-laws/
9
Guardianship under muslim law available at https://lawbhoomi.com/guardianship-under-
muslim-law/
10

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In Sukhjinder singh saini v/s Harvinder kaur, certain observations were made by the Delhi
High Court while dealing with the issue of deciding the maintenance to be granted for a child:

Both the parents have a legal, social and a moral obligation to maintain their children and
provide them with the best standard of living, depending on the financial footing of the
parties.

They are equally obligated to provide means for best education.

It was further held that even if the child is living with the spouse whose income is sufficient
enough to maintain the child cannot be taken as a good ground by the other spouse of not
maintaining the child or taking care of the child’s welfare.11

Maintenance Under Section 125 Cr.P.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 abnormality12

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.

Magistrate may issue warrants for levying the amount due, in case of non-compliance with
the order. Making of an application is mandatory to the court for levying such amount within
a period of one year from the date on which the amount was due, otherwise warrant cannot be
issued.

11
Paras Diwan, Family Law, Allahabd Law Agency
12
Guardianship under muslim law available at https://blog.ipleaders.in/guardianship-
child-different-personal-laws/

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Where in case a wife is living separately without any sufficient reason or is living in adultery
or they have separated through a mutual consent, then in such cases she is not entitled to
receive allowance.

Landmark Judgement Of Section 125 Cr.P.C

Mohd Ahmed Khan V. Shah Bano Begum-This has been a landmark case in the history which
clearly dealt with the clarifying the scope of Section 125 and which proved to be a milestone
specifically in the struggle for the rights of muslim women. Facts of the case are as follows:

In the year 1975, at the age of 62 years, with 5 children, shah bano was disowned by her
husband.

Her husband Mohd Ahmed refused to grant her maintenance on the ground that there was no
specific provision in the muslim law for providing maintenance to muslim divorced women.

She had no separate source of income and at this age it was Impossible for her to maintain
herself and to take care of the welfare of her children at the same time. Thus she filed a suit
claiming maintenance.13

Main Issue that raised before the court was whether Section 125 applies to muslim women or
not and whether uniform civil code applies to individuals of all religions or not. Supreme
court on the following reasons rejected Mohd Ahmed’s ples of not granting alimony:

The court held that without any discrimination, Section 125(3) applies to muslim women too.

The concept of muslim husband’s responsibility towards his wife only till the iddat period
cannot suffice to contemplate the rule laid down in Section 125 CrPC14.

Merely a triple talaq cannot take away the right of divorced muslim women from seeking
maintenance if she is not in condition to maintain herself and her children because of no
independent source of income.

Critical Analysis
This case was criticised by various muslim communities on the ground that it was against the
provisions of muslim law and Quran. Thus, in the year 1986 the congress government

13
Guardianship under muslim law available at https://blog.ipleaders.in/guardianship-
child-different-personal-laws/
14
Paras Diwan, Family Law, Allahabd Law Agency

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decided to enact Muslim Women ( Protection of rights of Divorce) Act, 1986, the purpose of
which was to provide protection and safeguard the rights of divorced muslim women. The
other objective of enacting this Act was due to the backward status of muslim women in
comparison to other women in the country. Thus, it was the need of the hour to bring them at
par in status with the women of other religion. This act aimed at providing adequate
protection and safeguard of rights and reasonable amount of maintenance to the wife and her
children. This act was enacted by Rajiv Gandhi.15

Conclusion

15
Paras Diwan, Family Law, Allahabd Law Agency

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From the plethora of judgements it can be concluded that Section 125 of Cr.P.C provides for
stringent means to comply with the provisions of maintenance. It not only breaks the barrier
of religion which acts as a hurdle in providing justice to people but also provides for equal
protection of law and justice for all irrespective of religion followed by an individual.
Religion cannot overcome the principles of “justice” and “equity”. The concept of
maintenance is interpreted in different ways under different statutory provisions yet the
purpose of it is to grant support. Thus, Code of Criminal Procedure through Section 125 aims
at providing individuals following different religions to seek alimony through a uniform way.

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BIBLIOGRAPHY

1. BOOKS :-
 Principle of Mahomedan Law – Mulla
 Paras Diwan, Family Law
 Tahir Mahmood- family Law in India

2. WEBSITES :-
 https://lawbhoomi.com/guardianship-under-
muslim-law/
 https://blog.ipleaders.in/types-of-bail/
 https://www.drishtijudiciary.com/ttp-muslim-law/
law-of-guardianship-under-muslim-law

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