WHAT IS MAINTENANCE ?

The provisions of maintenance are provided in several laws. Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. The legislations which have been framed on the issue of maintenance are the Special Marriage Act 1954 (“SMA”), Section 125 of the Cr.P.C. and the Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”) which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities.

The provisions of maintenance are prescribed under section 125 to 128 of the Criminal procedure code 1973, under the Hindu marriage act 1955, under the Hindu Adoption and Maintenance act 1956, Under the Protection of women from Domestic Violence Act 2005 and the Maintenance and Welfare of Parents and Senior citizens Act 2007. The object of all these provision is to compel a man to perform the moral obligations, which he owes to the society in respect of his wife, children and parents. It has been observed in many cases that estranged wife have filed a case for maintenance u/s 125 Cr.P.C or under Domestic Violence Act only to put pressure on the opposite party so that matter could get settle in the way as she wants as such true and real purpose of the Act became meaningless.

What is pre-condition for maintenance?:-

The entitlement of maintenance is depend on certain factors which are required to be fulfilled to grant the maintenance i.e (a) the relationship of husband and wife should be proved, (b) she must be unable to maintain herself, (c) the husband must be having sufficient means and (d) it should be proved that the husband has neglected or has refused to maintain his wife without any valid reason. Even a wife who has been divorced is entitled to claim maintenance from her husband provided that she has not re-married. A wife who has been divorced by her husband or she has obtained divorced or the marriage was dissolved by mutual consent even then she would still be entitled to claim maintenance under the maintenance act.

MAINTENANCE UNDER SECTION 24 OF HINDU MARRIAGE ACT:-

Section 24 of HMA provides Maintenance pendente lite and expenses of proceedings.—

Where in any proceeding under this Act is pending before the Court and on an application filed by the either party and  it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable. Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.”

The proviso to Section 24 providing a time line of 60 days for disposal of

It is to be noted that under section 24 of HMA either the wife or husband can apply for interim maintenance. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. The provision is silent on the quantum of maintenance and it is upon the discretion of the court to determine the quantum. Similarly, maintenance pendente lite is to be provided to the claimant who does not have an independent income and the financial need of litigation expenses has to be provided by the other spouse. The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the petitioner. And maintenance pendente lite is for providing the litigation expenses to the claimant.

GROUNDS FOR GRANT OF MAINTENANCE TO THE WIFE:- Only upon proving that at least one of the grounds mentioned under the Act, exists in the favour of the wife, maintenance is granted. These grounds are:- a. The husband has deserted her or has willfully neglected her; b. The husband has treated her with cruelty; c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease; d. The husband has any other wife living; e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere; f. The husband has ceased to a Hindu by conversion to any other religion; g. Any other reason justifying her separate living.

FACTOR TO BE CONSIDERED TO FIX THE AMOUNT OF MAINTENANCE:-

The means and capacity of a person against whom the award has to be made should be taken into consideration for determining the quantum of maintenance. In fact, in case of the husband, it is not only the actual earning, but also his potential earning capacity, which must be considered. There is a presumption that every able-bodied person has a capacity to earn and maintain his wife. The income of the husband is a significant factor to be considered by the court in fixing the quantum of maintenance. It is disposable income and not the gross income, which is to be considered. Section 23(2) of HAM ACT states the factors to be considered in determining the amount of maintenance payable to the wife, children and aged parents, and they are as follows – the position of and status of the parties, the reasonable wants of the claimant, the claimant if living separately is justified or not, the income of the claimant and the value of the claimant‘s property and the number of persons entitled to maintenance under the Act.

PERMANENT ALIMONY?:-

Section 25 of the Hindu marriage Act provides Permanent alimony and maintenance which speaks as under —

(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 favour an order has been made under this section has remarried 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.” Section 26 of the HMA provides that the Court may from time to time pass interim orders with respect to the custody, maintenance and education of the minor children.

MAINTENANCE OF CHILDREN:-

Section 20 of HAM ACT imposes an obligation upon the parents – mother and father, both equally to maintain the children – both legitimate and illegitimate. This is a unique feature of the Hindu law where both the parents are equally responsible to maintain the children. S.20 (2) of HAM ACT lays down that the children are entitled to maintenance during their minority. This right of maintenance for the daughter is extended till she gets married. The parents are obliged to bear her marriage expenses. However even after marriage a minor married daughter, if she is unable to maintain herself then she can claim for maintenance under S.125 CrPC. When an application has been filed under section s24 and 25 of HM ACT, the children are also entitled to get maintenance if the claimant has the responsibility of maintaining them i.e. the claimant‘s right to maintenance also includes the right of maintenance of the children. Section 26 of HM ACT also provides that in any proceeding under the Act the court can from time to time pass interim orders and make provisions in respect of the custody, maintenance and education of the minor children.

MAINTENANCE UNDER SECTION 125 OF Cr.P.C?:-

S.125.Order for maintenance of wives, children and parents.- (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 It should be kept in view that the provision relating to maintenance under any personal law is distinct and separate. There is no conflict between the two provisions. A person may sue for maintenance under s.125 of Cr.P.C. If a person has already obtained maintenance order under his or her personal law, the magistrate while fixing the amount of maintenance may take that into consideration while fixing the quantum of maintenance under the Code. But he cannot be ousted of his jurisdiction. The basis of the relief, under the concerned section is the refusal or neglect to maintain his wife, children, father or mother by a person who has sufficient means to maintain them. The burden of proof is on him to show that he has no sufficient means to maintain and to provide maintenance. Section 125 gives a statutory recognition to the moral, legal and fundamental duty of a man to maintain his wife, children and aged parents. Although this section also benefits a distressed father, the main thrust of this section to assist women and children. Article 15(3) of the Indian constitution envisaged that the state can make special provision for woman and children. Section 125 is also along the lines of Art.39 of the Indian Constitution that states that the State shall direct its policy towards ensuring that all citizens both men and women have equal access to means of livelihood and children and youths are given facilities opportunities in conditions of freedom and dignity. At the time of enactment of this code section 125 is intended to be applicable to all irrespective of their personal Laws although maintenance is a Civil remedy yet it has been made a part of this Code to have a quick remedy and proceedings and S.125 is not a trail as non-payment of maintenance is not a criminal offence. The word any person u/s. 125 includes a person belongs to the undivided family although the proceedings strictly against the individual concern and not the undivided family. However, the Magistrate may take into consideration the joint family property is determining the amount of maintenance that should be payable by such person. it also includes a person, a father, an adult son and a married daughter. But not include a mother or a wife or an unmarried daughter.

MAINTENANCE UNDER DOMESTIC VIOLENCE (D.V) ACT 2005:-

Protection of women from Domestic Violence Act, 2005: Section 20. Monetary reliefs :- (1) While disposing of an application under sub sec. (1) of Sec. 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 Sec. 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-sec. (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-sec.(1). 21 (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-sec. (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.