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Introduction
Obligation of a husband to maintain his wife arises out of the
status of
the marriage. Right to maintenance forms a part of the personal
law.
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of
maintenance extends not only to the wife and dependent children,
but
also to indigent parents and divorced wives. Claim of the wife,
etc.,
however, depends on the husband having sufficient means. Claim of
maintenance for all dependent persons is limited to Rs 500 per
month.
Inclusion of the right of maintenance under the Code of Criminal
Procedure has the great advantage of making the remedy both speedy
and
cheap. However, divorced wives who have received money payable
under
the customary personal law are not entitled to maintenance claims
under
the Code of Criminal Procedure.
Under Hindu Law, the wife has
an absolute right to claim maintenance
from her husband. But she loses her right if she deviates from the
path
of chastity. Her right to maintenance is codified in the Hindu
Adoptions
and Maintenance Act, 1956 (78 of 1956). In assessing the amount of
maintenance, the court takes into account various factors like
position
and liabilities of the husband. It also judges whether the wife is
justified in living apart from husband. justifiable reasons are
spelt
out in the Act. Maintenance pendente lite (pending the suit) and
even
expenses of a matrimonial suit will be borne by either, husband or
wife,
if the either spouse has no independent income for his or her
support.
The same principle will govern payment of permanent maintenance.
Under the Muslim Law, the Muslim Women (Protection of Rights on
Divorce) Act, 1986 protects rights of Muslim women who have been
divorced by or have obtained divorce from their husbands and
provides
for matters connected therewith or incidental thereto.
This Act
inter
alia provides that a divorced Muslim woman shall be entitled to
(a)
reasonable and fair provision and maintenance to be made and paid
to her
within the iddat period by her former husband; (b) where she
herself
maintains children born to her before or after her divorce, a
reasonable
and fair provision and maintenance to be made and paid by her
former
husband for a period of two years from the respective dates of
birth of
such children;
(c) an amount equal to the sum of mehr or dower
agreed to
be paid to her at the time of her marriage or at any time
thereafter
according to the Muslim Law and
(d) all property given to her
before or
at the time of marriage or after her marriage by her relatives or
friends or by husband or any relatives of the husband or his
friends.
In addition, the Act also provides that where a divorced Muslim
woman
is unable to maintain herself after the period of iddat the
magistrate
shall order directing such of her relatives as would be entitled
to
inherit her property on her death according to the Muslim Law, and
to
pay such reasonable and fair maintenance to her as he may
determine fit
and proper, having regard to the needs of the divorced woman,
standard
of life enjoyed by her during her marriage and means of such
relatives,
and such maintenance shall be payable by such relatives in
proportion to
the size of their inheritance of her property and at such periods
as he
may specify in his order.
Where such divorced woman has children, the Magistrate shall order
only
such children to pay maintenance to her, and in the event of any
such
children being unable to pay such maintenance, the magistrate
shall
order parents of such divorced woman to pay maintenance to her.
In the absence of such relatives or where such relatives are not
in a
position to maintain her, the magistrate may direct State Wakf
Board
established under Section 13 of the Wakf Act, 1995 functioning in
the
area in which the woman resides, to pay such maintenance as
determined
by him.
The Parsi Marriage and Divorce Act, 1936
recognizes the right of
wife
to maintenance-both alimony pendente lite and permanent alimony.
The
maximum amount that can be decreed by court as alimony during the
time a
matrimonial suit is pending in court, is one-fifth of the
husband's net
income. In fixing the quantum as permanent maintenance, the court
will
determine what is just, bearing in mind the ability of husband to
pay,
wife's own assets and conduct of the parties. The order will
remain in
force as long as wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights
of a
Christian wife. The provisions are the same as those under the
Parsi law
and the same considerations are applied in granting maintenance,
both
alimony pendente lite and permanent maintenance.
Maintenance under Hindu law:
Maintenance is a right to get necessities which are reasonable
from
another. it has been held in various cases that maintenance
includes not
only food, clothes and residence, but also the things necessary
for the
comfort and status in which the person entitled is reasonably
expected
to live. Right to maintenance is not a transferable right.
Maintenance without divorce
The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to livelihood when one is
incapable of sustaining oneself. Hindu law, one of the most
ancient
systems of law, recognises right of any dependent person including
wife,
children, aged parents and widowed daughter or daughter in law to
maintenance. The Hindu Adoptions and Maintenance Act, 1956,
provides for
this right.
Maintenance as main relief: for wife
The relief of maintenance is considered an ancillary relief and is
available only upon filing for the main relief like divorce,
restitution
of conjugal rights or judicial separation etc. Further, under
matrimonial laws if the husband is ready to cohabit with the wife,
generally, the claim of wife is defeated. However, the right of a
married woman to reside separately and claim maintenance, even if
she is
not seeking divorce or any other major matrimonial relief has been
recognised in Hindu law alone. A Hindu wife is entitled to reside
separately from her husband without forfeiting her right of
maintenance
under the Hindu Adoptions and Maintenance Act, 1956. The Act
envisages
certain situations in which it may become impossible for a wife to
continue to reside and cohabit with the husband but she may not
want to
break the matrimonial tie for various reasons ranging from growing
children to social stigma. Thus, in order to realise her claim,
the
Hindu wife must prove that one of the situations (in legal
parlance
'grounds') as stated in the Act, exists.
Grounds for award of maintenance
Only upon proving that at least one of the grounds mentioned under
the
Act, exists in the favor of the wife, maintenance is granted.
These
grounds are as follows:
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 cause justifying her separate living;
Bar to relief
Even if one of these grounds exists in favour of the wife, she
will not
be entitled to relief if she has indulged in adulterous
relationship or
has converted herself into any other religion thereby ceasing to
be a
Hindu. It is also important to note here that in order to be
entitled
for the relief, the marriage must be a valid marriage. In other
words,
if the marriage is illegal then the matrimonial relationship
between the
husband and wife is non-existent and therefore no right of
maintenance
accrues to wife. However, thanks to judicial activism, in
particular
cases the presumption of marriage is given more weightage and the
bars
to maintenance are removed.
Other dependents who can claim maintenance
Apart from the relationship of husband and wife other relations in
which
there is economic dependency are also considered to be entitled to
maintenance by the Hindu Adoptions and Maintenance Act, 1956.
Accordingly a widowed daughter-in-law is entitled maintenance from
her
father-in-law to the extent of the share of her diseased husband
in the
said property. The minor children of a Hindu, whether legitimate
or
illegitimate, are entitled to claim maintenance from their
parents.
Similarly, the aged and infirm parents of a Hindu are entitled to
claim
maintenance from their children. The term parent here also
includes an
issueless stepmother.
Maintenance Under Muslim Law
Under the "Women (Protection Of- Rights On Divorce) Act, 1986"
spells
out objective of the Act as "the protection of the rights of
Muslim
women who have been divorced by, or have obtained divorce from,
their
husbands." The Act makes provision for matters connected therewith
or
incidental thereto. It is apparent that the Act nowhere stipulates
that
any of the rights available to the Muslim women at the time of the
enactment of the Act, has been abrogated, taken away or abridged. The
Act lays down under various sections that distinctively lay out
the criterion for women to be granted maintenance. Section (a) of
the said Act says that divorced woman is entitled to have a reasonable and
fair
provision and maintenance from her former husband, and the husband
must
do so within the period of idda and his obligation is not confined
to
the period of idda.
it further provides that a woman , if not granted maintenance can
approach the Wakf board for grant as under section (b)which states
that If she fails to get maintenance from her husband, she can claim
it from
relatives failing which, from the Waqf Board.
An application of divorced wife under Section 3(2) can be disposed
of
under the provisions of Sections 125 to 128, Cr. P.c. if the
parties so
desire. There is no provision in the Act which nullifies orders
passed
under section 125, Cr. P.c. The Act also does not take away any
vested
right of the Muslim woman.
All obligations of maintenance however end with her remarriage and
no
claims for maintenance can be entertained afterwards. The Act thus
secures to a divorced Muslim woman sufficient means of livelihood
so
that she is not thrown on the street without a roof over her head
and
without any means of sustaining herself.
Protection to Divorced WomenSub-section (1) of Section 3 lays down
that
a divorced Muslim woman is entitled to:
(a) a reasonable and fair provision and maintenance to be made and
paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or
after the divorce.
Maintenance Under Christian Law
A Christian woman can claim maintenance from her spouse through
criminal
proceeding or/and civil proceeding.
Interested parties may pursue both criminal and civil proceedings,
simultaneously, as there is no legal bar to it. In criminal
proceedings,
the religion of the parties does not matter at all, unlike in
civil
proceedings.
If a divorced Christian wife cannot support her in the post
divorce
period she need not worry as a remedy is in store for her in law.
Under
S.37 of the Indian Divorce Act, 1869, she can apply for alimony/
maintenance in a civil court or High Court and, husband will be
liable
to pay her alimony such sum, as the court may order, till her
lifetime.
The Indian Divorce Act, 1869 which is only applicable to those
persons
who practice the Christianity religion inter alia governs
maintenance
rights of a Christian wife. The provisions are the same as those
under
the Parsi law and the same considerations are applied in granting
maintenance, both alimony pendente lite and permanent maintenance.
The provisions of THE INDIAN DIVORCE ACT, 1869 are produced herein
covered under part IX -s.36-s.38
IX-Alimony
S.36. Alimony pendente lite. -In any suit under this Act, whether
it be
instituted by a husband or a wife, and whether or not she has
obtained
an order of protection the wife may present a petition for alimony
pending the suit.
Such petition shall be served on the husband; and the Court, on
being
satisfied of the truth of the statements therein contained, may
make
such order on the husband for payment to the wife of alimony
pending the
suit as it may deem just:
Provided that alimony pending the suit shall in no case exceed one
fifth of the husband's average net income for the three years next
preceding the date of the order, and shall continue, in case of a
decree
for dissolution of marriage or of nullity of marriage, until the
decree
is made absolute or is confirmed, as the case may be.
37. Power to order permanent alimony -The High Court may, if it
thinks
fit, on any decree absolute declaring a marriage to be dissolved,
or on
any decree of judicial separation obtained by the wife, and the
District
judge may, if he thinks fit, on the confirmation of any decree of
his
declaring a marriage to be dissolved, or on any decree of judicial
separation obtained by the wife,
Order that the husband shall, to the satisfaction of the Court,
secure
to the wife such gross sum of money, or such annual sum of money
for any
term not exceeding her own life, as, having regard to her fortune
(if
any), to the ability of the husband, and to the conduct of the
parties,
it thinks reasonable; and for that purpose may cause a proper
instrument
to be executed by all necessary parties.
Power to order monthly or weekly payments. -In every such case,
the
Court may make an order on the husband for payment to the wife of
such
monthly or weekly sums for her maintenance and support as the
Court may
think reasonable:
Provided that if the husband
afterwards from any cause becomes unable to make such payments, it
shall be lawful for the Court to discharge or modify the order, or
temporarily to suspend the same as to the whole or any part of the
money so ordered to be paid, and again to revive the same order
wholly or in part as to the Court seems fit.
38. Court may direct payment of alimony to wife or to her trustee.
-In
all cases in which the Court makes any decree or order for
alimony, it
may direct the same to be paid either to the wife herself, or to
any
trustee on her behalf to be approved by the Court, and may impose
any
terms or restrictions which to the Court seem expedient, and may
from
time to time appoint a new trustee, if it appears to the Court
expedient
so to do.
Alternatively, as previously mentioned S.125 of Cr.P.C., 1973 is
always
there in the secular realm
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of
maintenance extends not only to the wife and dependent children,
but
also to indigent parents and divorced wives. Claim of the wife,
etc.,
however, depends on the husband having sufficient means. Claim of
maintenance for all dependent persons was limited to Rs 500 per
month
but now it has been increased and the magistrate can exercise his
discretion in adjudging a reasonable amount. Inclusion of the
right of
maintenance under the Code of Criminal Procedure has the great
advantage of making the remedy both speedy and cheap
Order For Maintenance Of
Wives, Children And Parents
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,
a Magistrate of the first class may, upon proof of such neglect or
refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother, at such
monthly
rate not exceeding five hundred rupees in the whole, as such
Magistrate
thinks fit, and to pay the same to such person as the Magistrate
may
from time to time direct:
Provided that the Magistrate may order the father of a minor
female
child referred to in clause (b) to make such allowance, until she
attains her majority, if the Magistrate is satisfied that the
husband of
such minor female child, if married, is not possessed of
sufficient
means.
Explanation. - For the purposes of this Chapter, -
(a) "minor" means a person who, under the provisions of the Indian
Majority Act, 1875(9 of 1875) is deemed not to have attained his
majority;
(b) "wife" includes a woman who has been divorced by, or has
obtained a
divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order,
or, if
so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to
comply
with the order, any such Magistrate may, for every breach of the
order,
issue a warrant for levying the amount due in the manner provided
for
levying fines, and may sentence such person, for the whole or any
part
of each month's allowance remaining unpaid after the execution of
the
warrant, to imprisonment for a term which may extend to one month
or
until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any
amount
due under this section unless application be made to the Court to
levy
such amount within a period of one year from the date on which it
became
due:
Provided further that if such person offers to maintain his wife
on
condition of her living with him, and she refuses to live with
him, such
Magistrate may consider any grounds of refusal stated by her, and
may
make an order under this section notwithstanding such offer, if he
is
satisfied that there is a just ground for so doing.
Explanation .- If a husband has contracted marriage with another
woman
or keeps a mistress, it shall be considered to be just ground for
his
wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance from her
husband
under this section if she is living in adultery, or if, without
any
sufficient reason, she refuses to live with her husband, or if
they are
living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made
under
this section is living in adultery, or that without sufficient
reason
she refuses to live with her husband, or that they are living
separately
by mutual consent, the Magistrate shall cancel the order.
The objective of this section as expressed by Krishna Iyer, J. is
?to
ameliorate the economic condition of neglected wives and discarded
divorcees?
Proceedings under S.125 are not civil, but criminal proceedings of
a
summary nature. But these criminal proceedings are of a civil
nature.
Thus, clause (3) of S.126 which empowers that Court to make such
orders
may be just.
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 criterion is not
whether a
person is actually having means, but if he is capable of earning
he will
be considered to have sufficient means. The burden of proof is on
him to
show that he has no sufficient means to maintain and to provide
maintenance.
Maintenance Under Parsi Law:
Parsi can claim maintenance from the spouse through criminal
proceedings
or/ and civil proceedings. Interested parties may pursue both
criminal
and civil proceedings, simultaneously as there is no legal bar to
it. In
the criminal proceedings the religion of the parties doesn't
matter at
all unlike the civil proceedings.
If the Husband refuses to pay maintenance ,wife can inform the
court
that the Husband is refusing to pay maintenance even after the
order of
the court. The court can then sentence the Husband to imprisonment
unless he agrees to pay. The Husband can be detained in the jail
so long
as he does not pay. The Parsi Marriage and Divorce Act, 1936
recognizes
the right of wife to maintenance-both alimony pendente lite and
permanent alimony. The maximum amount that can be decreed by court
as
alimony during the time a matrimonial suit is pending in court, is
one-fifth of the husband's net income. In fixing the quantum as
permanent maintenance, the court will determine what is just,
bearing in
mind the ability of husband to pay, wife's own assets and conduct
of the
parties. The order will remain in force as long as wife remains
chaste
and unmarried.
S.40. 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
an
application made to it for the purpose by either the wife or the
husband, order that the defendant shall pay to the plaintiff 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 plaintiff
as
having regard to the defendant?s own income and other property, if
any,
the income and other property of the plaintiff, 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 movable or immovable property of the defendant.
(2) The Court if it is satisfied that there is 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) The Court if it is satisfied that the partly 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,
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.
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