Maintenance is an allowance, required by the law to be made to a wife, out of
her husband’s estate for her support either during the matrimonial suit or on
its termination where fact of marriage is established and she proves herself
entitled separate maintenance.
Maintenance can be claimed by wives under all matrimonial statutes except under
the Dissolution of Muslim Marriage Act, 1939, as an ancillary relief in
matrimonial proceedings. The right can be claimed only as subsidiary relief
while claiming a primary matrimonial relief such as divorce, judicial
separation, annulment of marriage, or restitution of conjugal rights.
The Protection of Women from Domestic Violence Act, 2005 provides an additional
avenue for women to claim maintenance and compensation from their husbands and
live in partners. Under these provisions, maintenance can be obtained without
the necessity of initiating proceedings for a primary matrimonial relief.
In the case of Vimala v. Veeraswamy
the honorable Supreme Court explained
the objective of providing maintenance as a limited relief, however the
provision seeks to ensure that the neglected wife and children needs to be taken
care of and are not rendered destitute, thereby they need to be saved from
immorality and crime and the same is to be done by maintaining them.
It is to noted that the provision of maintenance over the years has been
grounded within the Constitutional paradigm. Women and children over the years
were recognized as the vulnerable part of the society. If we look into the scope
of Article 15 of the Constitution of India specifically it talks about special
provisions for maintenance of women and children and maintenance has become one
of them over the past few years.
In the case of Chaturbhuj v. Sitabai
the honorable bench explained the
objective of maintenance as the following: - “The objective of Maintenance
proceeding is not to punish a person for his past neglect but to prevent
vagrancy, by compelling those who can provide support to those who are unable to
support themselves, and who have a moral claim to support. It provides a speedy
remedy for supply of food, clothing and shelter, to the deserted wife. It gives
effect to fundamental rights and the natural duties of a man to maintain his
wife, children and parents, when they are unable to maintain themselves.
The concept and the law of maintenance has been explained in several legal
statues. Under the scope Hindu Marriage Act, 1955, Section 25 defines
maintenance. It states that either wife or husband is entitled to receive from
the spouse for his/her maintenance and support a gross sum or monthly or
periodical sum for a term not exceeding the applicant’s lifetime or until he/she
remarries or remains chaste.
Under section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife
is entitled to be maintained by her husband during her lifetime. Wife also has a
right to separate residence and maintenance if any of the condition in Section
18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same
house, conversion of religion or any other reasonable cause] is fulfilled until
she remains chaste or does not convert to other religion. It may also be noted
that Section 19 of this Act makes a provision for a widowed wife to be
maintained by her father-in-law.
Under section 125 of the Criminal Procedure Code, 1973, it is mentioned that
maintenance is not only to the wife but also to child and parents. Court may
order a husband who has sufficient means but neglects or refuses to maintain his
wife who is unable to maintain herself to provide monthly maintenance to her.
However, wife shall not be entitled to receive maintenance if she is living in
adultery, or refuses to live with husband without any sufficient reasons, or
living separately with mutual consent.
Maintenance has been defined further in the case of Mangat Mal v. Punni Devi
- 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, Section 3(b), Hindu Adoption and Maintenance Act,
Under the wider scope of maintained in the case of Bhuwan Mohan Singh v. Meena.
Sustenance was defined which means that Maintenance of wife for her ‘sustenance’
does not mean animal existence but signifies leading life in a similar manner as
she would have lived in the house of her husband. Husband is duty bound to
enable his wife to live life with dignity according to their social status and
Maintenance has been one of the controversial topics but what often is missed
about it is that in the case of Bharat Hegde v. Smt. Saroj Hedge the honorable
bench mentioned eleven factors that are to be taken into consideration while
deciding the amount of maintenance.
The following are the eleven factors
Often a question which is often asked is whether an earning wife entitled to
- Status of the party
- Reasonable wants of the claimants
- The independent income and property of the claimant
- Number of persons the non- applicant has to maintain
- The amount should aid the applicant to live in similar life style as he/she
enjoyed in the matrimonial home
- Non- applicant liabilities if any
- Provisions for food, clothing, shelter, education, medical attendance and
treatment etc of the applicant
- Payment capacity of Non-Applicant
- Some guess work is not ruled out while estimating the income of Non- applicant
when all the sources or correct sources are not disclosed
- The non-applicant to defray the cost of litigation
- The amount awarded under section 125 of CrPC is adjustable against the amount
awarded under section 24 of the act.
In the case of Rosy Jacob v. Jacob A. Chakramakkal
wife was having a school of
her own and possessing wet lands and was in better financial position than
husband who is not doing well in his profession and has no land. Hence, it is
unnecessary to pay any maintenance to the wife.
Wife’s income to be accounted for determining maintenance
Furthermore, in the case of Bhagwan Dutt v. Kamla Devi
it was held by the
honorable court that wife’s income has to be considered while determining the
amount of maintenance payable to her. It is not an absolute right of a neglected
wife to get maintenance nor it is an absolute liability of husband to support
her in all the circumstances.
In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha
. The Supreme Court
expressed its opinion that a broad interpretation of “wife” should include cases
where man and woman live together as husband and wife for a reasonably long
period of time (live-in relationship/ presumed marriage/ de facto marriage/
cohabitation). A strict proof of marriage should not be a precondition for
maintenance under S. 125 CrPC so as to fulfill the true spirit and essence of
the beneficial provision of maintenance.
In the case of Lalita Toppo v. State of Jharkhand
it is held that a woman in a
live-in relationship has an efficacious remedy to seek maintenance under
Protection of Women from Domestic Violence Act, 2005 even if it is assumed that
she is not entitled to the same under Section 125 CrPC. In fact, under the
Domestic Violence Act, the victim would be entitled to more relief than what is
contemplated under Section 125 CrPC.
Hence it can be concluded that irrespective of law of maintenance being one of
the most controversial topic, has also had precedents which are inclined with
the basic structure of the constitution and so the delivery of justice under the
scope of law of maintenance to ensure that there is no misogynist and patriarchs
suppressing the rights of vulnerable .
Written By: Dr. Kiran Gardner
- Appeal No 1627 OF 2007 (Arising out of SLP (Crl.) No.4379 of 2006
- (1995) 6 SCC 88.
- (2015) 6 SCC 353
- (1973) 1 SCC 840
- (1975) 2 SCC 386.
- (2011) 1 SCC 141
- 2018 SCC Online SC 2301.