Maintenance in itself is a measure of social justice. It is regarded as a
fundamental duty of a man to maintain his wife, children, parents, and near
relations, etc. so long as they are unable to maintain themselves. Maintenance
of a person to whom an individual with sufficient needs owes a duty is more than
mere financial support, maintenance as a legal concept is the measure of social
justice and an outcome of the natural duty which a man owes to maintain his
wife, children, and parents when they are unable to maintain themselves.
object of maintenance is to prevent immorality and destitution and to ameliorate
the economic condition of women and children. Maintenance law in India relating
to Hindu females can be classified into two types. The first type envisages
maintenance following a divorce, or some other matrimonial remedy, such as,
nullity of marriage and can be claimed under Section 25 of Hindu Marriage Act
1955. The second type envisages maintenance during the subsistence of
marriage and it can be claimed Section 125 of CrPC and Hindu Adoption and
Maintenance Act, 1956.
The reason why Parliament and the State Legislature has retained and amended
suitably the provision of maintenance in Code of Criminal Procedure, 1973 can be
understood from duties cast upon them by Directive Principles of State Policy,
which endeavors to strive for social and economic welfare in the administration
of our country. It is imperative to state that the right to maintenance derives
its origin from Art. 21’s right to live with dignity and has a wide impact on
the social-economic welfare of the society.
Furthermore, when fundamental rights
are read and harmoniously construed along with Directive Principles of State
Policy, it makes the duty of the state enforceable, thereby making the right to
maintenance an implied fundamental right under Art. 21, which is actionable
against in case of non-observance as the state now owes a duty for maintaining
socio-economic welfare in the society through maintenance. In order to
achieve this purpose, the state requires both able men and women to assist it by
paying the due maintenance if the circumstances of a particular situation
require it to do so.
This paper aims to analyze whether the law of maintenance was solely made with
an intent to cast a primary duty on the Male to maintain their dependents or the
intent was to cover both men and women within the ambit of law, considering the
fact that women were breaking themselves away from the shackles of patriarchy
and establishing themselves as an equal member of the society so they should
also be held liable to pay maintenance to their husbands in cases they’re unable
to maintain themselves and thus demanding gender equality in all maintenance
laws. Although the HMA seems to be gender neutral but again all other laws such
as Section 125 of CrPC, Hindu Marriage and Adoption Act are still gender-biased
and imposes a duty upon only men to maintain his wife and children. Also, in
this paper, I’ll be looking into whether a woman is liable for maintaining her
parents or not.
Analysis Of Maintenance Laws
Maintenance under Hindu Marriage Act, 1955
It deals with only maintenance of spouse either male or female.
Section 24 of Hindu Marriage Act, 1955 states that either husband or wife may
claim maintenance pendent lite i.e. maintenance till the proceedings is in
process. If a husband or wife does not have the income to support the necessary
expenses of the proceeding in court, the court can order the respondent to pay
to the petitioner the expenses of the proceedings, the the amount would be
reasonable depending on the income of the petitioner and respondent.
Further, section 25 of the Act states the grounds for permanent alimony. It is
ordered by the court at the time of passing of the decree or at any time
subsequent that the respondent shall pay to the applicant for his/her
maintenance and support. A gross sum or a sum monthly/periodically not exceeding
the life of the applicant.
The sum would be decided to keep in mind the income and property of respondent
and petitioner. The order can further be or rescinded if the party in whose
favor the order is passed
Maintenance under Hindu Adoption and Maintenance Act, 1956 (HAMA) 
- Gets remarried
- Or has sexual intercourse out of wedlock
It deals with the maintenance of persons including:
- wife (sec 18
- widowed daughter in law (sec 19),
- children and aged parents (sec 20), or
- Dependents as defined (sec 21).
Also HAMA, 1956 does not include the maintenance of males but only females.
Under section 18 of HAMA, the wife is entitled to get maintenance from her
husband. In some cases the wife is entitled to get maintenance even if she
doesn’t live with her husband and her separate living is justified by any of the
above circumstances that occur because of the husband i.e Desertion, Cruelty,
Any other living wife of the husband, Concubine in the same house or husband
habitually resides with a concubine elsewhere, Conversion, or due to any other
cause. The wife would be ineligible for maintenance under this section if she is
unchaste, or converts her religion from Hinduism.
Section 19 talks about the maintenance of a widowed daughter-in-law by the
father-in-law in case of the death of her husband.
Section 20 talks about the maintenance of children and aged parents, where a
Hindu is bound to maintain his/her legitimate/illegitimate children and aged or
And dependents under sections 21 and 22 include the relatives of the diseased.
The distinction between maintenance under HMA and HAMA
Maintenance under Section 125 Code of Criminal Procedure, 1973
- The right under Section 18 of HAMA is available during the subsistence
of a marriage, without any matrimonial proceeding pending between the parties.
Once there is a divorce, the wife has to seek relief under Section 25 of HMA.
- Under HMA, either the wife or the husband, may move for judicial
separation, restitution of conjugal rights, dissolution of marriage, payment of
interim maintenance under Section 24, and permanent alimony under Section 25 of
the Act, whereas under Section 18 of HAMA, only a the wife may seek maintenance.
According to this Section magistrate of first-class has the power to order the
person to provide a 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
is 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.
The 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, a 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 mutual consent, then in such cases she is not
entitled to receive the allowance.
Thus, under CrPC also maintenance is only provided to females and doesn’t
- V.M. Arbat v. K.R. Sawai 
In this case, the appellant, Mrs. Vijaya Arbat is a medical practitioner and
married daughter of the respondent. Respondent sought maintenance of ₹500 from
the appellant on monthly basis. Appellant contested that she is not obliged to
maintain her father under Section 125(1)(d) of CrPC. The Judicial Magistrate
overruled her objection in this case and held that the appellant is bound to
give due maintenance to her father. Then the appellant made a revision
application in the High court. High Court reaffirmed the order of the judicial
magistrate. After which the appellant filed a Special Leave Petition under Art.
136, the appellants emphasized the word ‘his’ in Section 125(1) (d), which makes
the only the son liable to maintain his parents.
The Supreme Court rejected this contention by instating that the word ‘his’,
which is not defined in Cr. P.C but derives it’s meaning from §8 of Indian Penal
Code and Section 13(1) of General Clauses Act, which includes female gender
within the male gender. The Supreme Court furthermore held that “it is the moral
obligation of a son or a daughter to maintain his or her parents. The Indian
society casts a duty on the children of a person to maintain their parents if
they are not in a position to maintain themselves. It is also their duty to look
after their parents when they become old and infirm”.
- Vivek Bhatia v. Smt. Anju Bhatia, 2017 
The petitioner, Vivek Bhatia, is a former Jet Airways employee. The petitioner
and the respondent got married in 2011, and had a child out of the wedlock. In
2013, the petitioner filed for divorce on the ground of mental and physical
cruelty, and had sought custody of the child. A divorce decree was passed by a
Family Court in Dehradun in 2015. However, the Court refused to grant the
petitioner custody of the child. Both husband and wife then filed appeals
against this order. While the petitioner husband prayed for custody of his minor
son, the respondent wife sought restitution of conjugal rights.
The wife had
also filed a petition for maintenance under Section 24 of the Hindu Marriage Act
before the Uttarakhand High Court. In September 2017, the wife approached the
Family Court seeking maintenance under Section 125 CrPC. The judge ordered the
petitioner to pay a sum of Rs 7,000 per month to the respondent, and Rs 8,000
per month for the maintenance of the minor son. The petitioner challenged the
appeal in the The High Court, and it directed the petitioner to pay a sum of Rs.
30,000 per month to the respondent pending the disposal of the appeals against
the Family Court order.
This chain of events prompted the petitioner to approach the Supreme Court to
challenge the vires of Section 125 CrPC. The petitioner, who lost his job after
the closure of Jet Airways, has approached the Supreme Court against an order to
pay maintenance to his more qualified ex-wife, saying the role of spouses must
be re-looked in contemporary society. He challenged the validity of Section 125
of the Criminal Procedure Code, saying it should be declared unconstitutional as
it was gender-biased and violated the right to equality and non-discrimination.
He argued that the provision has put additional burden on him, even though he
was fighting for his own sustenance. “Providing maintenance might be the role of
husband at one point of time, but in the contemporary society where equality is
considered the first pillar of the basic structure of our Constitution, the role
of spouses in the marriage (both during its subsistence and afterwards) need to
be re-looked and reconsidered,” he contended.
The petitioner, who stays in Mumbai, contended he was just a high school
graduate with a diploma in aircraft maintenance and was currently unemployed due
to shut down of Jet Airways. But he has been ordered to pay “excessive”
maintenance of Rs 30,000 per month to the divorced wife, who herself was a
graduate and could make her own “respectful” living. She has refused to work and
wanted to harass him by misusing the gender-based provision of Section 125 of
the CrPC, his plea stated.
There is a prima facie discrimination on the basis of
gender without any reasonable classification under Section 125 of the CrPC,
specifically with regard to the presumption that a husband, father, or son is
considered to have the ability to earn and maintain his dependents if he is
healthy and able-bodied,” he pointed out. “While a mother or a daughter is only
liable to maintain if she has a separate income of her own independent of her
husband's income. Such unreasonable classification in today’s contemporary
society is prima facie violative of Articles 14 and 15 of the constitution.
Our Judiciary has taken a direction towards gender justice and gender neutrality
through its Judicial Activism; therefore, it is necessary that gender justice is
done for not only one but both the genders equivocally and without any prejudice
and bias. Hence, providing maintenance might be the role of only the husband at
one point of time, Thus, it has been prayed that Section 125 CrPC be struck down
as unconstitutional for being violative of Article 14. Alternatively, a prayer
has been made to read down Section 125 so that it does not discriminate between
a man and a woman.
The essence of the abovementioned cases when understood in terms of legal
perspective, there exists a primary duty of maintaining remains gender-neutral,
i.e. both son and daughter owes a legal as well as a moral duty to maintain
their parents, as seen from the above mentioned cases and co-relating it with
Indian circumstances, generally sons had the duty to maintain his parents, now
the judicial interpretation has extended the ambit to both daughters and sons.
The main reason behind including daughters within the ambit of maintenance was
in light to changing roles of women in society, now in India there is equal
participation from both genders.
Drawing inference from above mentioned points, it is clear that women are also
in a position to maintain a dependent, then why amendment has not been made by
the parliament to include husbands as person of neglected means (financially)
and thereby liable to be maintained by his wife. As far as the Indian Statutory
Laws goes in this regard, the only legislation that supports this claim in
Section 24 of the Hindu Marriage Act 1955. This leaves husbands of other minor
religions such as Muslims with no remedy to claim for maintenance.
Also, when we are demanding equality in everything and everywhere, then why not
in such laws? We want women to be treated equally to men, then why not a man is
treated equally to women in provisions of laws. Today we live in a society where
the majority of laws inclined towards women, for their protection and safety are
being misused by them for many different reasons such as for taking revenge from
the husband and family or maybe to harass the husband.
Therefore, laws should
treat both genders equally, because it’s not always the men who are guilty and
women who are victims, at times it can be visa-versa too. Similarly, maintenance
law under Section 125 of CrPC, Hindu Marriage, and Adoption Acts should also
include men in its ambit.
Section 125 of CrPC has made a laudable move for enforcement of maintenance
order, yet the section is primarily sustaining itself on a moral duty which a
person with sufficient means owes to his/her dependents. It can be concluded
that Section 125 is gender-neutral when it comes to the maintenance of parents
but is gender-biased when it comes to the maintenance of spouses. The impacts of
this gender-bias ness will be another challenging question of law if same-sex
marriage is made legal in India.
- Hindu Marriage Act, 1955
- Hindu Adoption and Maintenance Act, 1956
- Criminal Procedure Code, 1973
- Dhruval Singh, Maintenance, a gender-neutral
law? http://lawtimesjournal.in/maintenance-a-gender-neutral-law/ (accessed on
17/03/2021 at 03.01 pm
- Section 25 of Hindu Marriage Act 1955.
- Section 125 of Code of Criminal Procedure, 1973.
- Hindu Adoption and Maintenance Act, 1956.
- Supra note 1.
- Hindu Marriage Act, 1955.
- Section 24 of Hindu Marriage Act, 1955
- Supra note 4.
- Supra note 3.
- W. Syngkon, Maintenance for Wives and Children: Section 125 of Code of
Criminal Procedure, JBM&SSR 4, 4 (2017).
- V.M. Arbat v. K.R. Sawai, 2 SCC 218, (1997)
- Vivek Bhatia v Smt. Anju Bhatia, 2017 SCC Online Utt 1303.