Maintenance as a concept when considered from the point of view of law refers to
the kind of financial assistance given to either of the litigating parties on an
application made by them and only through an order passed by the court having
jurisdiction to do so and upon execution of decree in this regard.
It is often referred to as “alimony” or a kind of monetary support from the
spouse i.e. spousal assistance. Maintenance on the other hand, is an act of
bearing the financial expenses or reducing the burden of the spouse whose
burden increases and economical position gets materially changed on the decree
Further, the main purpose of granting maintenance is to maintain the standard of
living of the spouse equivalent to that of the other spouse and in accordance
with status prior to the separation. It is granted during the proceeding of
decree or after the decree of divorce and ceases to exist on the death or
remarriage of the alimony holder. The spousal maintenance is determined on the
existence of various factors by the court as follows:
- No separate source of income. The most important factor to be considered
before granting maintenance or alimony is to check whether the spouse
seeking maintenance has any separate source of income or not or is solely
dependant on the income of his/her spouse
- Standard of living of both the litigating parties before separation.
- Expenses required to maintain children.
- Requirement to maintain the same standard of living of the spouse as it
was before the separation.
- Skills, capabilities and educational background of the spouse to earn
his/her living and maintain themselves etc.
Types Of MaintenanceOn consideration of factors by the competent court, maintenance can be
granted on the following basis
- Temporary Maintenance:
It is also referred to as maintenance pendente
lite which is awarded by the courts during the continuation of proceedings of
the divorce. The purpose is to meet the necessary and immediate expenses of the
spouse who is a party to the proceedings. On satisfaction, the court may grant
it. Section 24 of Hindu Marriage Act,1955 deals with this kind of maintenance.
Further can be claimed under Section 125(1) of CrPC.
- Permanent Maintenance:
As the term suggests, it refers to the granting
of a sum on a periodical basis or on a continued basis once the proceedings have
been disposed of. Section 25 of Hindu Marriage Act, 1955. Either of a spouse is
entitled to receive it.
Prior Status of Right of Maintenance
Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 initially
dealt with the provisions of granting maintenance. The Hindu Marriage Act was
formed in the year 1955 and applies specifically on individuals who are Hindus
including Sikh, Jains and Buddhists and persons who come under the ambit of
Section 2 of Hindu Marriage Act, 1955.
Also children whose either of a parent is
a Hindu, Sikh, Jains or Buddhist and are brought up under the same religion will
also be considered as a Hindu and will be entitled to maintenance. Under old
Hindu law, a Hindu male was under an obligation to maintain the following
- His wife
- Unmarried daughter,
- Legitimate sons,
- Illegitimate sons, and
- Aged parents.
Thus, only hindus (the applicability of which could be checked from Section 2 of
Hindu Marriage Act, 1955) are covered under this Act.
From the ancient times women have been kept at a disadvantaged position which
not only weakens their stake in the society but also leads to an unequal
treatment with them. The Code of Criminal procedure came into force in the year
1973 and according to Section 125 of this code, maintenance is granted to wives,
children and parents irrespective of any religion or personal laws. Hence, it
has provided for a better status to women by granting rights in a dignified
Maintenance Under Section 125 Cr.P.C
According to this Section magistrate of first class has the power to order the
person to provide monthly allowance to
- His parents
- Wife, or
- To his legitimate or illegitimate minor children who are unable to
- Legitimate or illegitimate major child not being a married daughter, who
are unable to maintain themselves due to any physical injury or abnormality
- Married daughter till she attains her majority if her husband is unable
to maintain her
- His or her father or mother if they are unable to maintain themselves,whoever neglects or refuses to do so.
Magistrate may issue warrants for levying the amount due, in case of
non-compliance with the order. Making of an application is mandatory to the
court for levying such amount within a period of one year from the date on which
the amount was due, otherwise warrant cannot be issued.
Where in case a wife is living separately without any sufficient reason or is
living in adultery or they have separated through a mutual consent, then in such
cases she is not entitled to receive allowance.
This case was criticised by various muslim communities on the ground that it was
against the provisions of muslim law and Quran. Thus, in the year 1986 the
congress government decided to enact Muslim Women (Protection of rights of
Divorce) Act, 1986, the purpose of which was to provide protection and safeguard
the rights of divorced muslim women. The other objective of enacting this Act
was due to the backward status of muslim women in comparison to other women in
Thus, it was the need of the hour to bring them at par in status
with the women of other religion. This act aimed at providing adequate
protection and safeguard of rights and reasonable amount of maintenance to the
wife and her children. This act was enacted by Rajiv Gandhi.
From the plethora of judgements it can be concluded that Section 125 of Cr.P.C
provides for stringent means to comply with the provisions of maintenance. It
not only breaks the barrier of religion which acts as a hurdle in providing
justice to people but also provides for equal protection of law and justice for
all irrespective of religion followed by an individual.
Religion cannot overcome
the principles of justice and equity
. The concept of maintenance is
interpreted in different ways under different statutory provisions yet the
purpose of it is to grant support. Thus, Code of Criminal Procedure
through Section 125 aims at providing individuals following different religions
to seek alimony through a uniform way.
Written By Dhea Prakash