File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Law of Maintenance, A law to protect Vulnerable

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 Maintenance includes:
  1. in all cases, provisions for food, clothing, residence, education and medical attendance and treatment;
  2. 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, 1956.
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 strata.

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
  • 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.

Often a question which is often asked is whether an earning wife entitled to maintenance?
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 .

  • 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.

Written By: Dr. Kiran Gardner

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly