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Matrimonial Issue (Maintenance)

What is marriage?

When two people tie their knots with one another with a promise to live their lives together, to share the responsibility of one another, to look after each other, and to share their joys and sorrows.

From a legal standpoint
The right to marry is part of the Indian constitution's Right to Life, which states that "no individual shall be deprived of his life or personal liberty unless in accordance with the method established by law."

The Universal Declaration of Human Rights, which was adopted in 1948, acknowledged this right. Stated in Art. 16 of the same:
  1. Men and Women of full age without any limitation due to race, nationality, or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during the marriage , and at its dissolution.
  2. Marriage shall be entered into only with the free and full consent of the intending spouses.
  3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

Types of Marriage


Polygyny is a type of marriage in which a single guy marries multiple women at the same time. It was used by the majority of ancient civilizations. It was widely used by ancient Hebrews, Assyrians, Babylonians, Indians, and other peoples. It is currently popular among primitive cultures, but it is mainly restricted to the wealthy. It is used by Eskimo cultures, Crow Indians, and Afri-Canadians.

Types of Polygyny

Sororal Polygyny is a sort of polygyny in which the wives are always sisters. It's commonly referred to as sororate.' Sister is represented by the Latin word ‘Soror.' The sororate is a practise in which numerous sisters are simultaneously or possibly the spouses of the same guy.

Non-Sororal Polygyny:

As the name implies, this is a sort of marriage in which the bride and groom are not sisters. For social, economic, political, and other reasons, both the types are practiced by some people

Causes of Polygyny

Several research have been conducted by sociologists and anthropologists to determine the causes of polygyny. They identify the following as some of the factors:
Enforced celibacy: During pregnancy and while the infant is being breastfed, men do not approach the women. A second marriage was contracted as a result of the long period of celibacy.

Females aged earlier: in the uncivilized tribesmen remarried several times because the ladies aged early.

Women as badges of distinction: A man's social status among some tribals is typically judged in terms of the number of spouses he has. The greater the number, the higher the status.
Taste of variety: Men have a taste for diversity, which leads them to pursue several women.

Polygyny has been deemed unlawful in civilized nations because of the greater negative impacts of polygyny on family life. Polygyny has been considered a crime in India under the Hindu Marriage Act of 1955.


Polyandry refers to a marriage in which a woman marries multiple men at the same time. It is practiced by Tibetans, Polynesians from the Marquesa Islands, African The Bahamas, Samoan tribals, and others. Polyandry is practiced by Indian tribes such as the Tiyan, Toda, Kota, Khasa, and Ladhaki Bota. Previously, Kerala's Nairs were polyandrous. It is, however, a rather uncommon sort of marriage, and it is usually an impromptu response to unusual and extreme circumstances.

Types of polyandry

Fraternal Polyandry:

In this type of polyandry, one woman is considered the wife of brothers with whom she has sexual contact. Adelphic polyandry is another name for it. The children are treated as the elder brother's offspring. The term "levirate" refers to the practice of being a real or possible partner to one's husband's brother. It's very common among the Todays.

Non-fraternal polyandry: This sort of polyandry does not require the spouses to have a close relationship previous to marriage. The woman visits each husband for a short period of time. The others have no rights to a woman as long as she lives with one of her husbands. One of these was Nair polyandry. If a kid is born from such a connection, a specific rite selects a husband to be the child's social parent.

Causes of Polyandry

No universal generalizations can be made with regard to the causes of polyandry. Still factors that cause polyandry are:
Polyandry is found when the number of women in a community is smaller than the number of males, according to Westermark. For example, among the Todas of Nilgiri, polyandry was the reason for this type of marriage.


Polyandry arose in locations where natural resources were scarce, allowing many men to support one woman and her children.

Bride Price:

Polyandry arises when the bride price is high in society due to the smaller number of women.


Polyandry is most commonly encountered in locations far apart from the center of culture and progress.

So, polyandry is generally considered an obstacle in the way of social progress. It causes harm to married life and creates several other psychological problems. It is on this account that polyandry has come to an end in those societies also wherein it once prevailed.


Monogamy is a type of marriage in which only one man marries only one woman at a time. This is the most common kind of marriage among both primitives and civilized people, and it is the most common form of marriage. It provides the most intense feelings of love and devotion. “Monogamy is, has been, and will be the sole true type of marriage,” according to Malinowski. It is practiced by indigenous groups such as the Kadar's, Santals, Khasis, Canella, Hopi, Iroquois, Andaman Islanders, and a few more.
Monogamy has a long and illustrious history. Monogamy, according to Westermarck, is as old as humanity. Only monogamous marriage was recommended by the ancient Greek philosopher Aristotle. Monogamy was considered the most ideal type of marriage by ancient Hindus.

Laws Governing Maintenance In India

A person has a right to basic necessities such as food, clothing, shelter, and other necessities for a dignified life. According to social justice ideas, it is a man's natural duty to offer these luxuries in the form of maintenance to his wife, parents, and children.

In India, the maintenance law establishes a man's obligation to support his parents, wife, and children when they are unable to support themselves.

The sum paid to the dependent wife, kid, or parents to help them support themselves is known as maintenance in law. The amount can be paid in one lump sum or in monthly installments.

The notion of maintenance in India is defined under Section 125 of the Code of Criminal Procedure, 1973, as well as many personal laws that extend the right of maintenance to not only the wife but also her parents and children.

People of certain religions are covered by personal laws relating to maintenance in India, but anyone, regardless of religion or caste can submit a maintenance claim under Section 125 of the CrPC.

The law of maintenance in India lays out the steps for claiming maintenance for a child or a wife in India.

Maintenance under Hindu Laws

Is it possible for a wife to sue her husband for spousal support? The Hindu Adoption and Maintenance Act of 1956 establishes a right for a wife to seek maintenance from her husband.
When a wife in India is unable to support herself financially, she can initiate a maintenance lawsuit against her husband under the Act.
Before granting maintenance to the wife, the court will evaluate the husband's financial situation as well as the grounds for her separation from him.
A wife who seeks maintenance under personal laws, on the other hand, cannot seek maintenance under criminal procedural laws.
In India, Hindu law recognizes the rights of a wife, children, elderly parents, and widowed daughters.
If the husband is willing to cohabit with the wife, the wife's claim to maintenance is dismissed under matrimonial law.
The Hindu Adoptions and Maintenance Act of 1956, however, allows a Hindu wife to live away from her husband without jeopardizing her maintenance claim.

The Act envisions situations in which it may become impossible for a wife to continue to live and cohabit with her husband, but she may not wish to end their marriage for a variety of reasons, including growing children and societal stigma.

There is a common misperception that a working woman is not entitled to maintenance because she is able to support herself.

The Indian courts have recognized a working woman's right to maintenance, ruling that an estranged wife can seek maintenance from her husband even if she generates a monthly salary that is insufficient to support herself.

As a result of India's family law, and earning woman is entitled to maintenance under the country's maintenance regulations. Top Family Lawyers will aid and guide you through the Indian maintenance system and case law procedures.

Child maintenance law in India

Section 125 of the CrPC recognizes child maintenance in India. It has been stipulated that the child can sue the father for maintenance in India. Hindu law also allows for child support under Section 26 of the Hindu Marriage Act.

The provision of the Act says that a minor child is entitled to support from the father if custody of the child is awarded to the mother through the divorce case or otherwise.
Recently, Indian courts ruled that a significant kid, whether a daughter or a son, is entitled to maintenance from his or her father under Indian family law if they are financially reliant on their parents.

Dependence on parents indicates that they are unable to support themselves, either because they are studying or because of a medical condition.

Maintenance under Parsi Laws

A Parsi woman has the right to support under the Parsi Marriage and Divorce Act of 1936. Maintenance might be awarded up to one-fifth of the husband's net income by the court.
The husband's ability to pay, the wife's property and other assets, and the husband and wife's personal conduct are all considerations considered by the court.
Only if the wife remains unmarried and chaste following the divorce procedure is the husband obligated to pay her maintenance for the rest of her life.

Maintenance under Christian Laws

The Indian Divorce Act, 1869 governs the maintenance rights of a Christian wife. Under Section 37 of the Indian Divorce Act, 1869, she can apply for maintenance in a Civil Court or High Court. The husband will be liable to pay maintenance for her lifetime.

Maintenance under Muslim Laws

The Muslim Women (Protection of Rights on Divorce) Act of 1986 provides for the maintenance of a wife under Islamic law. A divorced Muslim woman is entitled to maintenance in the following circumstances, according to the Act:

The wife must be paid reasonable and equitable maintenance during the iddat period. Mehr that was agreed upon at the time of marriage must be returned.
Maintenance must be paid for a period of two years when the lady must support herself and her children. If the child is born after the divorce, the two-year period starts on the day of the child's birth.

The woman must be paid the amount of Mehr or dower agreed upon at the time of marriage or after the marriage.
All of her possessions were given to her by her relatives, friends, or husband before, during, or after the divorce.
The definition of maintenance in Islamic law is comparable to the commonly understood definition.
If a divorced Muslim woman is unable to support herself after the period of iddat, the Magistrate can order her heirs to pay her maintenance as determined by the Magistrate.
When the woman's children or relatives are unable to pay her maintenance, the Magistrate might order the State Wakf Board, formed under the Wakf Act of 1995, to do so.

Maintenance under Section 125 of the Code of Criminal Procedure, 1973

The entitlement to maintenance under Indian family law extends not only to the wife and dependent children, but also to poor parents and divorced wives, according to Section 125 of the Code of Criminal Procedure, 1973. The husband's ability to offer sufficient resources is a determining factor in the maintenance claim.

'What is the maximum maintenance under Section 125?' is a frequently requested question. Previously, the magistrate could only give Rs. 500 per month in maintenance, but today the magistrate can award any amount of maintenance they see fit.

When there is convincing proof of the man's neglect and failure to sustain his wife, kid, father, or mother, a Class I Magistrate may order him to pay a monthly allowance for their maintenance.

A wife, on the other hand, will not be entitled to maintenance if she has committed adultery, refuses to reside with her husband, or splits from him by mutual consent under Section 125 of the CrPC.

Important Judgments on Maintenance

Kamala and ors. v. M.R. Mohan Kumar:
The Supreme Court in this recent case has reiterated the settled principle of law that unlike other matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance under Section 125 CrPC.

The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record allowed the appeal holding that there was a valid marriage between the parties and moreover a strict proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC.

The other observations made by the Apex Court in the case are as under:
The Supreme Court also made reference to its judgment in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, wherein it was held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offense under Section 494 IPC. It was also noted in the case that an application under Section 125 does not really determine the rights and obligations of the parties as the section is enacted with a view to providing a summary remedy to neglected wives to obtain maintenance.

The apex Court in the case also remarked that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.

Shailja & Anr. v. Khobanna:
In this case, the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.

What should be the Quantum of Maintenance?

The Supreme Court answered this question in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy by holding that 25% of the husband's net salary would be just and proper as maintenance to wife.

The Supreme Court while deciding the review petition made reference to the case of Dr. Kulbhushan v. Raj Kumari & Anr, wherein it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent-wife.

Other remarkable observations made by the Court in the case were:
That the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.
That maintenance is always dependant on the factual situation of the case and the Court would be justified in molding the claim for maintenance passed on various factors.
A similar observation has been recently made by the High Court of Kerala in the case of Alphonsa Joseph v. Anand Joseph, wherein the Court remarked that Maintenance to Wife can't be rejected on grounds that she is earning.

The High Court thus, while making reference to Apex Court's judgment in Sunita Kachwaha and ors. V. Anil Kachwaha noted that even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright.

It was also stated by the High Court that as held by the Apex The court in a catena of decisions, the concept of sustenance does not necessarily mean to live life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity.

That the husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.

Bheekha Ram v. Goma Devi and Ors:
The Rajasthan High The court ruled that the deserting wife is not entitled to maintenance. The right to maintenance is derived from the fulfillment of marital obligations. If there is no evidence of mistreatment by the husband and the woman has no legitimate reason to live apart, she is not entitled to maintenance.

Kalidas v. Parwatibai:
It was decided that if a wife leaves her husband without reasonable cause and against his will, she is not entitled to the benefit of support under section 125 of the CrPC.

Award Winning Article Is Written By: Mr.Bijesh Kumar Gupta
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