Indian Laws Relating To Maintenance
DefinitionThe word maintenance is of wide connotation. The most precise definition of it
has been given under Section 3 (b) of the Hindu Adoption & Maintenance Act,
1956, which reads as under:-
"in all cases, provisions for food, clothing, residence, education and medical
attendance and treatment; in the case of an unmarried daughter, also the
reasonable expenses of an incident to her marriage."
There are four different types of provisions regarding maintenance:-
(A) Provisions under Code of Criminal Procedure, 1973.
(B) Provisions under the Hindu Marriage Act, 1955.
(C) Provisions under the Hindu Adoptions and Maintenance Act, 1956.
(D) Provisions under the Protection of Women from the Domestic Violence Act.
The provisions of maintenance in the Cr.P.C. and the Hindu Adoption and
Maintenance Act are independent reliefs. Although, the right to claim
maintenance under the Hindu Marriage Act is an independent right and it is not
being controlled by the Hindu Adoption and Maintenance Act, but the jurisdiction
of the Court cannot be ousted on the plea that the applicant under the Hindu
Marriage Act is already getting maintenance under the Hindu Adoption and
Maintenance Act, but while fixing the quantum of maintenance that may be taken
into consideration. Under the Hindu Marriage Act, either spouse can seek
maintenance, under the Code of Criminal Procedure and Hindu Adoption and
Maintenance Act, only the wife can claim maintenance.
(A) Provisions under the Hindu Marriage Act, 1955Under the Hindu Marriage Act, an order for maintenance may be made by the Court.
Firstly; for maintenance pendente lite (interim or temporary) and expenses of
the proceedings under Section 24, and
Secondly; for permanent maintenance and alimony under Section 25.
(B) Provisions under the Code of Criminal Procedure, 1973:Section 125 of the Code provides that " if any person, having sufficient means,
neglects or refuses to maintain....his wife, unable to maintain 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.
Provided 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 notwithstanding such
offer, if he is satisfied that there is just ground for so doing.
Explanation - "wife" includes a woman who has been divorced by, or has obtained
divorce from her husband and has not remarried.
If a 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.
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, if they are living separately by mutual
The provision is secular in nature and covers the right of a wife professing
Islam or any other religion. (Shamima Farooqui Vs Shahid Khan decided on
06.04.2015 by Hon'ble Apex Court and Shamim Bano Vs Asraf Khan decided on
16.04.2014 by Hon'ble Apex Court).
The sweep of provision has been extended by the Hon'ble Apex Court by observing
that strict proof of marriage should not be insisted as pre-condition for
maintenance under Section 125 Cr.P.C. It includes those cases where a man arid
woman have been living together as husband and wife for long period of time (Chanmuniya
Vs Virender Kumar Singh Kushwaha JT 2010 (11) SC 132).
The second wife or a woman living as 'wife' is not entitled to get maintenance.
If the marriage is void or annulled under Section 12 of the Hindu Marriage Act,
a wife is not entitled to maintenance. (Krishan Copal Vs Usha Rani, 1982 Cr.L.J.
Recently, the Hon'ble Supreme Court again held that the expression 'wife' as per
Section 125 Cr.P.C. refers only the legally married wife. The court observed
that "there may be substance in the the appellant wife that the law operates
harshly against the woman, who plea of unwittingly gets into a relationship with
a married man and Section 125 of the Code does not give protection to such
woman. This may be an inadequacy in law, which only the legislature can undo."
The Court, however, held that the illegitimate children from the second wife are
entitled to such maintenance.
C) Provisions under the Hindu Adoptions and Maintenance Act, 1956:The Hindu husband is under a duty to maintain his wife during life time.
Maintenance is a personal/legal obligation. It is an incident of the status or
estate or matrimony. The meaning of the term 'maintenance' is given in Section 3
(b) or the Act "maintenance" includes (i) in all cases,
provision for food, clothing, residing, education, and medical treatment and
(ii) in case of an unmarried daughter, also the reasonable expenses of an
incident to her marriage.
Section 18: Maintenance of wife(1) Subject to the provisions of this section, a Hindu wife, whether married
before or after the commencement of this Act, shall be entitled to he maintained
by her husband during her life time.
Section 18 (1) is applicable when the wife lives with her husband. A wife who
has ceased to be Hindu cannot claim maintenance. However, an unchaste wife who
lives with her husband can claim maintenance.
(2) A Hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance.
a) If he is guilty of desertion or of willfully neglecting her.
b) If he has treated her with such cruelty as to cause a reasonable apprehension
in her mind that it will be harmful or injurious to live with her husband.
c) If he is suffering from a virulent form of leprosy.
d) If he has any other wife living.
e) If he keeps a concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere.
f) If he has ceased to be a Hindu by conversion to another religion.
g) If there is any other cause justifying living separately.
(3) (Forfeiture of the claim of maintenance). A Hindu wife shall not be entitled
to separate residence and maintenance from her husband if she is unchaste or
ceases to be a Hindu by conversion to another religion.
Maintenance of widowed daughter-in-lawSection 19 of the Hindu Adoption and Maintenance Act provides that after the
death of her husband, a Hindu wife is entitled to be maintained by her
father-in-law, if she has no means of her own earnings or other property or
estate of her husband/ father/ mother or from her son or daughter or his/her
estate. However, this right cannot be enforced if the father-in-law does not
have the means to do so from any coparcenary property in his possession out of
which the daughter-in-law has not obtained any share. Further, his obligation
ceases when the daughter-in-law remarries.
Amount of Maintenance: Court's DiscretionUnder Section 23, it is in the discretion of the Court to determine whether any,
and if so what, maintenance should be awarded under the Act, in respect of the
wife, children, aged or infirm parents, the Court will have regard to:
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether he (or she) is justified in
(d) the value of the claimant's property and any income derived from such
property, or from the claimant's own earning or from any other source; and
(e) the number of persons entitled to maintenance under the Act
The amount of maintenance, whether fixed by a Court's decree or by agreement,
may be altered subsequently if there is a material change in the circumstance
(Section 25). A person cannot claim maintenance under the Act if he or she has
ceased to have a Hindu by conversion to another religion (Section 24).
(D) The Protection of Woman From Domestic Violence Act, 2005:This enactment provides for a specific and effective remedy to an aggrieved
person, who is victim of domestic violence while living in the shared household
along with the respondent including husband. The scope of legislation is wide as
it covers not only the wife but every women who has been living in the
relationship in the nature of marriage. Maintenance is to be granted under
Section 20 of the Act. While disposing of application under Section 12, the
Magistrate may direct the respondent to pay monetary relief to meet the expenses
incurred and losses suffered by the aggrieved person as a result of domestic
violence. The basic condition for claiming right under the Act is causing
Distinction between Section 18 of the Hindu Adoption and Maintenance Act and
Section 25 of the Hindu Marriage Act and Section 125 of the Code of Criminal
Procedure.(a). Under Section 18 of the Hindu Adoption arid Maintenance Act and Section 125
of the Code of Criminal Procedure only wife can claim maintenance, while under
Section 25 of the Hindu Marriage Act either
spouse can do so.
(b). Under Section 18 of the Hindu Adoption and Maintenance Act and Section 125
of the Code of Criminal Procedure, a wife can claim maintenance and live
separately from her husband while her marriage subsists. Under Section 25 of the
Hindu Marriage Act, either spouse can claim maintenance and permanent alimony
but that can be done only after judicial separation or after divorce.
When the marriage is subsisting there is no question of applicability of Section
25, Hindu Marriage Act but Section 18, Hindu Adoption and Maintenance Act. The
word "wife" does not have the same meaning in the two enactments. The Court
cannot grant the relief of maintenance in proceeding under one enactment in
proceedings under the other (Ramesh Chandru Daga Versus Rameshwari Daga AIR 2005
(c). Hindu wife contemplated under Section 18 of the Hindu Adoption and
Maintenance Act and Section 125 of the Code of Criminal Procedure includes only
the wife of a valid marriage. While under Section 25 of the Hindu Marriage Act
even a wife of void marriage can claim maintenance.
(d). Apparently Section 18 of the Hindu Adoption and Maintenance Act seems to
have overridden Section 25, Hindu Marriage Act because in both the sections a
similar provision exists and by virtue of Section 4, Hindu Adoption and
Maintenance Act, it is the Act of 1956 (i.e. HMA) which shall prevail and the
provisions of the Act of 1955 (i.e. HMA) vis-a-vis maintenance of a wife shall
cease to have any effect.
Apparently it seems so: but there is no inconsistency between
two sections as both do not deal with a similar provision (as noted in the
aforesaid differences). Both sections provide for separate and independent
reliefs. The Court's jurisdiction can’t be ousted on the plea that the applicant
for maintenance under the Hindu Marriage Act is already getting maintenance
under the Hindu Adoption and Maintenance Act though in fixing the quantum of
maintenance that may be taken into consideration. (e) The provisions of
maintenance in the Code of Criminal Procedure and the Hindu Adoption and
Maintenance Act are again independent relief.
Multiple Proceedings for Maintenance:In this regard the relevant judgments of Apex Court and various High Courts are
Sudeep Chaudhary Vs Radha Chaudhary decided on 31.01.1997, AIR 1999 SC
536, 1999 CLL.'. 466, JT 1998 (9) SC 473.
It was held by Hon'ble Apex Court that the jurisdiction for granting maintenance
under Section 125 of the Code of Criminal Procedure and Domestic Violence Act is
parallel jurisdiction and if maintenance has been granted under Section 125 of
the Code of Criminal Procedure after taking into account the entire material
placed before the Court and recording evidence, it is not necessary that another
Magistrate under Domestic violence Act should again adjudicate the issue of
The law does not warrant that two parallel courts should adjudicate same issue
separately. If adjudication has already been done by a Court of Magistrate under
Section 125 of the Code of Criminal Procedure, re-adjudication of the issue of
maintenance cannot be done by a Court of Magistrate under Domestic violence Act.
Smt. Premila Vs Shri Dharam Singh on 28 September 2011, P& H it was
“Facts relevant for the decision of present revision petition are that during
pendency of the petition under Section 13 of the Act filed by
respondent-husband, petitioner-wife filed an application under Section 24 of the
Act for interim maintenance and litigation expenses. The application was
contested by respondent-husband on the plea that petitioner-wife has already
been granted maintenance by the concerned Court in proceedings under Section 125
of the Code of Criminal Procedure and hence, it was held that petitioner-wife
was not entitled to claim maintenance in the present proceedings”
Moreover law is well settled that the maintenance can be awarded under Section
125 of the Code of Criminal Procedure as well as under Section 24 of the Act,
which are independent provisions and, however, from the maintenance awarded
under Section 125 of the Code of Criminal Procedure can be adjusted.
It must be understood that the Protection of Women from Domestic violence Act,
2005 does not create any additional right to claim Maintenance on the part of
the aggrieved person. It only puts the enforcement of existing right of
maintenance available to an aggrieved person on fast track. If a woman living
separate from her husband had already filed a suit claiming maintenance and
after adjudication maintenance has been determined by a competent court either
in Civil suit or by Court of Magistrate in an application under Section 125 of
the Code of Criminal Procedure she does not have a right to claim additional
maintenance under the Act. The Court of Magistrate under the Act has power to
grant maintenance and monetary reliefs on an interim basis in a fast track
manner only in those cases where woman has not exercised her right of claiming
maintenance either under it Court or under Section 125 of the Code of Criminal
procedure. If the woman has already moved Court and her right of maintenance hay
been adjudicated by a competent Civil Court or by a competent court of
Magistrate under Section 125 of the Code of Criminal procedure for any
enhancement of maintenance already granted, she will have to move the same Court
and she cannot approach Magistrate under the Protection of Women from Domestic
Violence Act by way of an application of interim or final nature to grant
Quantum of Maintenance:The following are the documents relevant for the Court to decide application for
(a) Income Tax returns
(b) Form 16 and Form 12BA
(c) Appointment letter
(d) Cost to company certificate
(e) Salary certificate
(f) Bank statement of all the bank accounts
(g) Credit/debit card statements
(h) Title deeds in respect of immovable property
(i) Registration certificate of vehicle
Burden of proving the income:The monthly income of the husband may not very often be within the knowledge of
the wife, particularly in a case where their relationship is considerably
strained and the spouses are living separate for a considerable period.
The assets, liabilities, income and expenditure of the parties are necessary to
be determined not only to fix the maintenance under Section 24, but also to
determine the permanent alimony under Section 25 of the Hindu Marriage Act and
right to the joint properties under Section 27 of the Hindu Marriage Act. it is,
therefore, necessary to formulate a format of the affidavit of assets, income
and expenditure and also specify the documents to be disclosed by them.
The Court has discretion in the matter as to from which date maintenance under
Section 24 of the Act should be granted. The discretion of the Court would
depend upon multiple circumstance which are to be kept in view. These could be
the time taken to serve the respondent in the petition; the date of filing of
the application under Section 24 of the Act; conduct of the parties in the
proceedings, averments made in the application and the reply.
Now to have a look upon the relevant factors to adjudicate the quantum:Law under Section 24 of the Hindu Marriage Act is well settled. The following
are the factor, which can be taken into account while awarding interim
(a) Status of the parties
(b) Reasonable wants of the claimant
(c) Number of the persons to be maintained by the husband
(d) Liabilities, if any, of the husband
(e) The amount required by the wile to live a similar life style as she enjoined
in the matrimonial home keeping in view food, clothing, shelter, educational and
medical needs of the wife and the children, if any, residing with the wife and
payment capacity of the husband.
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