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

Concept Of Maintenance Under Hindu Adoption And Maintenance Act 1956

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 of divorce.

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:
  1. 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
  2. Standard of living of both the litigating parties before separation.
  3. Expenses required to maintain children.
  4. Requirement to maintain the same standard of living of the spouse as it was before the separation.
  5. Skills, capabilities and educational background of the spouse to earn his/her living and maintain themselves etc.

Types Of Maintenance

On 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 persons:
  • 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 manner.

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 maintain themselves
  • 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.

Critical Analysis
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 the country.

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.

Conclusion
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

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

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

Titile

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

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

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

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly