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This article is written by Chhavi Tripathi of 3rd Semester of Atal Bihari Vajpayee School of Legal Studies, an intern under Legal Vidhiya

ABSTRACT

Maintenance or spousal support is a legal concept that provides financial assistance to individuals, particularly in family and divorce law. The concept of maintenance under law is a dynamic and multifaceted area that continues to develop in response to the changes in society and the pursuit of fairness and equity. Maintenance under personal laws is a crucial aspect that plays a significant role in ensuring individuals’ financial well-being and support, particularly spouses, children and dependents. This article provides an overview of the topic of maintenance and highlights its importance within the broader context.

Maintenance is a legal obligation that arises when a person is legally obligated to provide financial support to another individual, typically a spouse or child either during marriage or after its dissolution. This obligation is governed by the personal laws that vary from one jurisdiction to another, often based on cultural, religious or customary practices. This article seeks to explore and compare these personal laws to shed light on their diverse approaches to maintenance.

Through a comparative analysis of maintenance provisions in personal laws, this study aims to provide a comprehensive understanding of the legal, social, and cultural dimensions of maintenance. It seeks to offer insights into the complexities and variations within this area of family law and their implications for individuals and society as a whole. Ultimately, this research contributes to the ongoing discourse on personal laws and their role in shaping family dynamics, financial security, and social justice.

Keywords: Maintenance, Spousal support, Legal obligation, Personal laws, Financial support, Cultural practices, Comparative Analysis, Social justice, Family dynamics, Financial security

INTRODUCTION

Marriage being the union of two individuals gives rise to the obligation of a husband to maintain his wife. The right to maintenance forms part of a personal law. Under the CrPC (Code of Criminal Procedure), 1973, the right to maintenance extends not only to the wife and the children but also to the indigent parents and divorced women. In India, the right to seek maintenance is a statutory right that cannot be waived by any agreement.

In non-professional terms, maintenance is support or sustenance. The term maintenance is support or sustenance. The term maintenance is not defined under any marriage law of any religious community. It is a general understanding that maintenance is generally based on the assumption that the claimant does not have sufficient means to support herself. It essentially covers all the expenses or necessities for the substance of life.

The provisions under the acts mentioned above give guidelines to the court by stating the factors to be taken into consideration such as possession of the property of both, the husband and the wife, the ability of the husband to earn, the conduct of the parties and other circumstances to decide the amount of maintenance.

II. MAINTENANCE UNDER DIFFERENT PERSONAL LAWS

The rules of maintenance are different for different religious communities. Hindu maintenance rules are found in their law whereas Muslim maintenance rules are found in Muslim personal laws.

MAINTENANCE UNDER HINDU LAW

According to Section 2 of the Hindu Marriage Act, 1955, any person who is Sikh, Jain, Buddhist and a follower of Arya Samaj is Hindu. Maintenance consists of provision for food, clothing, housing, education and medical attention and treatment in all situations as well as the reasonable expenditure in case of an unmarried daughter of an event to marriage.[1]

There are two acts under Hindu personal laws which provide for maintenance:

  1. Hindu Marriage Act, 1955
  2. Hindu Adoption and Maintenance Act, 1956

Before escorting ahead let’s discuss the types of maintenance:

  1. Temporary maintenance: as the name suggests, temporary maintenance is awarded during the continuation of proceedings of the divorce. It is also referred to as Pendente Lite. The purpose is to meet the necessary expenses of the spouse who is a party to the proceeding. Section 24 of the Hindu Marriage Act, 1955 deals with this kind of maintenance further it can be claimed under section 125(1) of crpc.
  2. Permanent maintenance: this type of maintenance is the opposite of temporary maintenance and is granted once the court proceeding has been disposed of. Also, unlike temporary maintenance, it is provided for a continuous period. As per Section 25 of the Hindu Marriage Act, 1955 either of the spouses is entitled to receive it.

PROVISIONS RELATED TO MAINTENANCE UNDER HINDU MARRIAGE ACT, 1955

Section 24 and section 25 of the Hindu Marriage Act, 1955 mention the provisions related to the maintenance. Section 24 mentions Maintenance pendente lite (Maintenance pending litigation) and expenses of proceedings as follows:

Section 25 talks about permanent alimony and maintenance which is ordered by the court at the time of passing of the decree or any time subsequent that the respondent shall pay to the applicant for his/her maintenance support. A gross sum or a sum as:

In the case of Kalyan Dey Chowdhury v Rita Dey Chowdhury Nee Nandy [3](2017), the plaintiff was Kalyan Dey Chowdhury. The panel of Justices R Banumathi and M M Santanagoudar held that a man who has a monthly salary of up to ninety-five thousand has to pay up to twenty thousand to his former wife.

THE HINDU ADOPTION AND MAINTENANCE ACT, 1956

According to section 18 of the H.A.M.A. Act, the wife is entitled to maintenance from her husband also in some cases, the wife lives separately and her separate living is justified because of any of the circumstances:

In the case of Neelam Malhotra v Rajinder Malhotra[4], it was highlighted in this case that maintenance pendent lite though not mentioned in section 18 of the H.A.M.A. Act could be granted by the court because a suit could take years to settle.

Section 19 of the Hindu Adoption and Maintenance Act, 1956 states maintenance of widowed daughter-in-law. Following are the provisions mentioned under section 19 of the H.A.M.A.

  1. In the case of her dead husband, her maintenance would be taken care of by her father-in-law.
  2. It is mentioned that if she is unable to maintain herself out of her earnings or other property or in case of no property of her own then she would be maintained from the estate of her husband or her father/Mother, son or daughter.
  3. Any obligation shall not be enforceable if the father-in-law has not the means to do so from any coparcener property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall not cease on the re-marriage of the daughter-in-law. [5]

The court has ruled that the father-in-law’s obligation to provide maintenance for his daughter-in-law will not be enforceable if he lacks the means to support her from any coparcenary property in his possession, from which the daughter-in-law has not received any portion. The intent behind this section is to make it clear that a widowed daughter-in-law is eligible to claim maintenance from her father-in-law solely in cases where she cannot sustain herself through her resources or the assets of her husband, father, mother, son, or daughter. Additionally, it is stipulated that the father-in-law is not obliged to maintain his daughter-in-law, except in situations where there is ancestral property in his possession from which the daughter-in-law has not received any share.[6]

According to section 20 of the H.A.M.A., a Hindu male or female should maintain a legitimate or illegitimate minor child or elderly parent. Provided that the children could only claim maintenance as long as they were minor. The expression ‘Parent’ also includes a childless stepmother.

Sections 21 and 22 of the Hindu Adoption and Maintenance Act (H.A.M.A.) introduce new rights for a specific group known as dependants. These dependants are individuals who are related to a deceased Hindu and seek support from the assets left by the deceased, which are held by the legal heirs. The legal heirs, in this context, are all those individuals who inherit the deceased person’s property. Importantly, dependants’ claims are against the property itself, not against the individual heirs personally. These rights become applicable after the death of the person, and dependants are identified only after the person’s demise.

In the case of Abhilasha v. Prakash[7], the court emphasised that an unmarried daughter’s right to seek maintenance from her father under Section 20 is absolute. This right, granted by Section 20, is considered a personal law right, which the daughter can effectively enforce against her father.

In Padmja Sharma v. Ratanlal Sharma[8], the court established that in situations where a married couple divorces and both parties are financially well-off, the responsibility for providing for the children’s support is not solely the father’s duty. In such cases, both the mother and the father have an equal entitlement to contribute to the child’s maintenance.

In the case of G.A. Kalla Maistry v. Kanniammal[9],  it was determined that even an illegitimate child born as a result of extramarital intercourse can make a valid claim for support under Section 20 of the law.[10]

III. MAINTENANCE UNDER MUSLIM PERSONAL LAW

Maintenance under Muslim Personal Law encompasses the necessities for sustaining life, including food, clothing, and shelter, primarily focusing on food. The key principles of maintenance can be summarized as follows:

(i) Maintenance is a right for individuals without property.

(ii) The claimant is closely related to the person obligated to provide maintenance, falls within prohibited degrees of relationship, or is the spouse or child.

(iii) The person obligated to provide maintenance has the financial means to support the claimant. The obligation for maintenance is also contingent on the economic condition of both parties.

PERSONS ENTITLED TO MAINTENANCE

 I) Maintenance of Wife

II) Maintenance of Children

III) Maintenance of Parents, and

IV) Other relatives

I)MAINTENANCE OF WIFE

A husband is responsible for maintaining his wife, regardless of her religious affiliation (Muslim or Kitabiyyah), financial status (poor or wealthy), marital status (enjoyed or unenjoyed), age, or whether she is residing in his household or with her parents. However, if the wife is too young for marital relations, she is not entitled to maintenance from her husband, irrespective of her place of residence. In cases where the marriage is valid and the wife is capable of consummating the marriage, it becomes the husband’s duty to provide maintenance, even if she possesses the means to support herself. However, if the wife unreasonably refuses to cohabit with her husband, she forfeits her right to maintenance. Furthermore, if she disobeys her husband’s reasonable commands, her right to maintenance is lost, unless her disobedience is justified by circumstances or if she is forced to leave her husband’s house due to cruelty. In cases where the husband unjustifiably refuses to maintain his wife without lawful reasons, the wife may file a claim for maintenance. However, she is not entitled to claim past maintenance. Maintenance is payable from the date of the decree unless specified in a prior agreement. If the wife is turned out or mistreated to the extent that living together becomes impossible, or if there is an irreparable breach between the wife and husband, she is entitled to maintenance even when living separately, as provided by Section 125 of the Code of Criminal Procedure 1973.

To summarise, the wife loses the right to maintenance in the following circumstances: –

a) She is minor, incapable of consummation.

b) Is disobedient.

c) Never visited his house.

d) Refuses to cohabit with him without reasonable excuse.

e) Abandon conjugal home without reasonable reasons.

f) Deserts him.

g) Elopes with another person.

An agreement made by the husband and wife, or their guardians, may specify conditions under which the wife is entitled to maintenance, such as in cases of ill-treatment, disagreements, or the husband’s second marriage. However, any agreement in the marriage contract that denies the wife’s right to maintenance is considered void. The key consideration is that the agreement should not be in opposition to public policy and Islamic law. An agreement between a Muslim man and his first wife, made after his second marriage, providing for maintenance in case of future conflicts with the second wife, is not void on the grounds of public policy.

The following are the valid conditions for an agreement:

  1. If the husband treats the wife with cruelty, then the wife has a right to separate residence and maintain to meet it.
  2. If he brings a subsequent wife and the previous wife is unable to with her, she will get a maintenance allowance to live separately or even at her father’s house.
  3. If he brings his other wife to the matrimonial home, she will reside at her father’s home and he will give her maintenance.
  4. In case of disagreement with each other, the husband will provide maintenance for the first wife’s separate residence.

After divorce, the Mohammedan wife is entitled to maintenance during the period of Iddat and also for the time, if any, that elapsed after the expiry of the period of Iddat and her receiving notice of Talak. After the expiry of the period Iddat the enforceability of the order of maintenance ceases. The wife has the right to initiate a maintenance suit at her current residence during the divorce and where she receives the divorce notice. In the case of divorced Hiba-jewels, the wife can file her suit in the location where she resides. It’s important to note that a widow cannot claim additional maintenance from her late husband’s estate if she is already entitled to her share through inheritance or his will.

II) MAINTENANCE OF CHILDREN

In the case of Legitimate Children, the maintenance of the children rests upon the father. In Hedaya, the following verse of the Koran, namely –The maintenance of woman who suckles an infant rest on him to whom the infant is born. The maintenance of an infant child rests upon the father, because, as maintenance is decreed to the nurse on account of her sustaining the child with her milk, As a logical consequence, the same obligation extends to the child, albeit with even stronger reason. Therefore, a father is obligated to provide maintenance for his sons until they reach the age of puberty and for his daughters until they are married. He is also responsible for the well-being of his widowed or divorced daughters and children under the custody of their mother. However, the father is not required to furnish separate maintenance for an unmarried daughter who refuses to live with him without reasonable cause. An adult son is not entitled to maintenance unless he is physically disabled. Moreover, if a child is capable of supporting themselves from their assets, the father is relieved of this obligation.

In cases where the father is impoverished or incapacitated, the responsibility for maintaining the children falls upon the mother. If she is unable to fulfil this duty, then it becomes the parental grandfather’s responsibility to provide for the children.

CASE LAWS

Gulam Rashid Ali v Kaushar Praveen and another[11] That even a Muslim divorced woman would be entitled to claim maintenance from a Muslim husband till she has not married.

Daniel Latifi & another Vs Union of India, A divorced Muslim woman, if she remains unmarried and cannot support herself after the Iddat period, can take legal action under Section 4 of the Act against her relatives responsible for her maintenance. These relatives, including her children and parents, are liable to provide support in proportion to their inheritance from her as per Muslim Law. In case any relative is unable to meet this obligation, the Magistrate can instruct the State Wakf Board established under the Act to provide the necessary maintenance. These provisions in the Act do not violate Articles 14, 15, and 21 of the Indian Constitution.

IV. MAINTENANCE UNDER CHRISTIAN LAW

Under Christian law, any Christian woman can claim maintenance against her spouse through criminal or civil proceedings. In criminal proceedings, it is universally applicable to all irrespective of the religion of any individual unlike in civil proceedings. Section 36 of the Indian Divorce Act, of 1869 differs from section 24 of the Hindu Marriage Act, of 1955 in the respect that only the husband can claim interim maintenance and pendente lite and not the wife.[12]

A Christian woman can apply for alimony/maintenance in a civil court or high court and the husband will be liable to pay her alimony such sum as the court may order, till her lifetime. [13].

The Indian Divorce Act, of 1869 which is only applicable to those persons who practice the Christianity religion inter alia governs the maintenance rights of a Christian wife. The provisions align with those in Parsi law, and similar considerations are applied when granting maintenance, both as alimony pendente lite (temporary) and permanent maintenance.

The court has the authority to order monthly or weekly payments by the husband to the wife for her maintenance and support, based on what the court deems reasonable. However, if the husband subsequently becomes unable to make these payments for any reason, the court has the discretion to modify, temporarily suspend, or reinstate the order in whole or in part as it deems appropriate.

According to Section 38 of the Indian Divorce Act of 1869, whenever the court issues a decree or order for alimony, it has the authority to designate the recipient of these payments. Alimony may be directed to the wife directly or to a trustee, subject to the court’s approval. The court can also establish specific terms or restrictions as it deems fit, and if necessary, appoint a new trustee at its discretion.

In Divyananda v. Jayarai, two Roman Catholics entered into the Suyamaryadhai form of marriage and lived together as husband and wife for 5 months in the course of which the wife conceived a child. The Court held that being Christian, their marriage by Hindu customs without any conversion was void ab initio and hence the woman was not a wife in the eye of law. As such the woman could not claim maintenance of, although her children are illegitimate would be entitled to maintenance.

V. MAINTENANCE UNDER PARSI LAW

Parsi can claim maintenance from the spouse through criminal proceedings or civil proceedings. The court will sentence the husband to imprisonment unless he agrees to pay the wife’s maintenance even after the order of the court. The Husband can be detained in jail so long as he does not pay. The Parsi Marriage and Divorce Act, of 1936 speaks about the right of a wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be declared by the court as alimony would be one-fifth of the husband’s income.

Section 40 of the Parsi Marriage and Divorce Act stipulates that the defendant must provide the plaintiff with financial support, either as a lump sum or regular payments, for a duration not exceeding the plaintiff’s lifetime. The court determines the amount, taking into consideration factors such as the defendant’s income and assets, the plaintiff’s income and assets, the parties’ behaviour, and other relevant circumstances. If required, these payments may be secured by placing a charge on the defendant’s movable or immovable property. The Court if it is satisfied may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just and 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 had sexual intercourse with any woman outside wedlock, The court, upon the request of either party, has the authority to amend, alter, or revoke such an order in a manner it deems equitable.

VI. MAINTENANCE UNDER THE CODE OF CRIMINAL PROCEDURE

Section 125, which pertains to the order for maintenance of wives, children, and parents, specifies that if an individual with sufficient means neglects their duty to support:

It is important to note that the provisions related to maintenance under various personal laws are distinct and separate. There is no conflict between these provisions. Under Section 125 of the Code of Criminal Procedure (CrPC), an individual can file a claim for maintenance. This section legally recognizes the moral, legal, and fundamental obligation of a person to support their wife, children, and elderly parents. While this section also extends protection to distressed fathers, its primary focus is to assist women and children

.In Badshah v Sou. Urmila Badsha Godse and another[14], the Hon’ble Supreme Court held that victims of bigamous marriage are entitled to maintenance. If a man deceitfully marries a woman hiding the substitution of an earlier marriage he is obliged to pay maintenance to her under section 125 of CrPC.

CONCLUSION

Maintenance is a vital mechanism designed to ensure financial support and stability for individuals, particularly spouses and children, during and after family-related transitions. It aims to address financial disparities and promote fairness within families, offering a safety net for those in need. Effective communication and legal guidance are essential in determining fair maintenance arrangements, while the system itself should continually adapt to evolving family dynamics to maintain its relevance and effectiveness. Under all the personal laws the main aim is to provide to the one who is unable to maintain his or herself and to promote financial stability and fairness this forms the crux of the whole point.

REFERENCES

  1. Legal Services India,  https://www.legalserviceindia.com/articles/hmcp.htm (Last Visited on November 3, 2023)
  2. Law Corner, https://lawcorner.in/maintenance-under-hindu-adoption-and-maintenance-act-1956/ (Last Visited on November 3, 2023)
  3. Blog I-pleaders, https://blog.ipleaders.in/an-exhaustive-overview-of-types-of-maintenance/ (Last visited on November 3, 2023)
  4. Law Insider, https://www.lawinsider.in/columns/landmark-judgements-on-maintenance-of-wife (Last Visited on November 3, 2023)

[1] Hindu Marriage Act, 1955, § 3(b), Act of Parliament, 1955 (India)

[2] Legal Services India,  https://www.legalserviceindia.com/articles/hmcp.htm (Last Visited on November 3, 2023)

[3] Civil appeal No. 5369 of 2017, 2017

[4] AIR 1994 Delhi 234

[5] Law Corner, https://lawcorner.in/maintenance-under-hindu-adoption-and-maintenance-act-1956/ (Last Visited on November 3, 2023)

[6] Raj Kishore Mishra v Smt. Meena Mishra

[7](2020)

[8] Civil Appeal 2462 of 1999, (2000)

[9] (1962) 2 MLJ 529

[10] Blog I-pleaders, https://blog.ipleaders.in/an-exhaustive-overview-of-types-of-maintenance/ (Last visited on November 3, 2023)

[11] (2010) DMC 371

[12] Law Insider, https://www.lawinsider.in/columns/landmark-judgements-on-maintenance-of-wife (Last Visited on November 3, 2023)

[13] The Indian Divorce Act, 1969, § 37, Act of Parliament, 1969

[14] (2013)

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