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Maintenance and Alimony

Marriage is seen as a social compulsion in India. But today countless homes are broken and more marital knots are loosened and untied as divorce is deemed legal and problematic marriage is seemingly becoming an accepted culture. And the laws relating to divorce and its after-effects are necessary to be gone through.

Our Indian law has laid some special sections which deals with alimony and maintenance and its after effects.

These are as follows:
  1. Section 13B of Hindu Marriage Act 1955
  2. Section 24 of Hindu Marriage Act 1955
  3. Section 25 of Hindu Marriage Act 1955
  4. Section 18 of Hindu Adoption And Maintenance Act 1956
  5. Section 125 of Code of Criminal Procedure 1973

Understanding The Meaning Of Alimony And Maintenance

In simple language alimony means:
Financial support that a person is ordered by a court to give to their spouse during separation or following divorce.

In simple language maintenance means:
Financial support provided for a person's living expenses no matter.

We will discuss both of these terms and their difference in detail later in this article.

Section 13B of Hindu Marriage act states:

  1. Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
     
  2. On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

The essential ingredients of section 13B are:

  1. Both husband and wife need to file a petition stating:
    • They have been living separately for a period of one year, or more.
    • They have not been able to live together.
    • That they mutually agree that marriage should be dissolved
  2. For six months petition will lie in court
  3. After six months but before eighteen months
    • The person may withdraw his application
    • Both parties have to file another petition, the averments in the petition stating the marriage should be dissolved, referring to earlier petition.
  4. Only at the time of second petition the averments in the petition shall be seen by the court
  5. The consent must not be attained by force, fraud or undue influence.

Some of the important Case Laws under this section are:
Case Law
[Sureshtha Devi Vs. Om Prakash. (1992) SC 1904]:
"They have not been able to live together", means that there is state of complete breakdown of marriage.

Case Law
[K.K. Rao Vs. Kamalakshmi (1993) Kant. 2351]
If no motion is moved within 18 months, the petition shall stand dismissed. The period of 18 months is an upper limit for the withdrawal of petition.

An important question with regard to the time of the existence of mutual consent for the grant of divorce has been taken differently by different high courts, Bombay. Delhi and Madhya Pradesh High Courts holding that mutual consent is relevant only till the first petition whereas Kerala, Punjab and Haryana and Rajasthan High Courts holding that the mutual consent must prevail till the divorce is granted. The issue has been settled by the Supreme Court in

Case Law (Sureshta Devi Vs. Om Prakash AIR (1992) SC 19041

The issue framed by the Supreme Court was whether a party to petition for divorce by mutual consent can unilaterally withdraw the consent or whether the consent once given is irrevocable The Supreme Court observed that an interregnum of six to eighteen months was given to the parties to reflect on their move and seek advice In this transitional period one of the parties may have second thoughts and change his mind not to proceed with the petition. There is nothing in Section 13B to prevent such a course.

The Court held that mutual consent is the sine qua non for passing a decree of divorce under section 13B and this mutual consent should continue till the divorce decree is passed. Thus, it has been held that a party could withdraw her or his consent unilaterally the views of eminent author, Dr. Paras Diwan, the view expressed by Supreme Court is not correct in the light of our social background. It should not be ignored that in such cases marriage has in fact broken down irretrievably and no use will be served keep it alive.

However, In [Ashok Hurra V/s Rupa (1997) 45CC 2261, Supreme Court asked for a reconsideration of Sureshta Devi's case and expresses views in accordance with author's view mentioned above. Hence, it granted divorce even though the wife had unilaterally withdrawn the consent as the marriage was found to be irretrievably broken down.

Section 24 of Hindu Marriage Act 1955

States:
Maintenance pendente lite and expenses of proceedings Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

Maintenance refers to payments which a husband is under an obligation to make to a wife either during the subsistence of a marriage, separation or divorce, under certain circumstances or vice-versa in Hindu law the maintenance can be claimed by any of the spouse i.e. either husband or wife.

The expression pendente lite as is used. by the Hindu Marriage Act means maintenance during the pendency of the proceedings. It is also known as interim maintenance or temporary maintenance. The claim for maintenance can be made by either of the parties to the marriage.

Claim may be made for:
  1. Personal maintenance of the claimant and
  2. Expenses of the proceedings.


Basis for the grant of interim maintenance:

The only requirement is that the claimant should establish that he or she has no independent income sufficient for his or her maintenance and support and he or she cannot meet the expenses of proceedings.

Fixation of interim maintenance:

For the fixation of the amount of interim-maintenance, consideration is given by courts to the following matters:
  1. Income of the claimant and non-claimant:
    Sec. 24 uses the word 'income'. The court in Gita Chatterji Vs. Prabhat Kumar (1988) Cal. 981 held that the word 'income' in Sec. 24 would not include other property or assets, thus in fixing the amount of maintenance pendente lite the court will have regard only to the income of the applicant and not her other assets or property no yielding any income. However, Sec. 25 uses words "income and other property". Thus, if the claimant has no sufficient means for her or his maintenance, the court should pass an order for interim maintenance.
    Similarly, the income' and 'means of the respondent is to be taken into consideration.

    Case Law [Rajambal V/s Murugappan (1985) Mad. 284]
    Held that the respondent has no means, no income, then the court need not fix any amount of maintenance.
    An order passed without considering the income of both parties is illegal. The main test for the fixation of the interim maintenance is "whether the applicant has no sufficient means to support himself or herself".

    Goodwill or Charity or relations and friends cannot be taken into consideration.

    Case Law [Rampal Vs. Nisha (1994) Raj. 2041
    If claimant has sufficient means to maintain herself no amount of maintenance can be granted to her.
     
  2. Conduct of the parties, number of the members to be maintained by non-claimant, needs of claimant are:
    some other factors for court to consider while granting maintenance.

    Denial of Maintenance:
    In Gurmeet Vs. Gurraj (1989) P&H 223: Held, that the court cannot misuse its powers by denying maintenance with the object of coercing the claimant into reconciliation.

    Withdrawal of petition:
    Though Sec. 24 does not say anything affirmatively with regard to withdrawal of petition so as to defeat the application of interim maintenance but, the courts in number of cases have held that if a just case of maintenance is made out then it cannot be defeated by withdrawing the main petition.

    Stay proceedings or striking out the defence: If the non-applicant is the petitioner and he refuses to pay maintenance, then the court may stay all further proceedings till he or she pays the amount and if the non-applicant happens to be the respondent, then the court may strike out his/her defence.

Section 25 of Hindu Marriage Act 1955 states:

Permanent alimony and maintenance

States:
  1. Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant [, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
     
  2. If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
     
  3. If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].
Section 25 of Hindu Marriage Act 1955 provide laws relating to permanent maintenance i.e. alimony
Alimony in legal sense means:
Alimony refers to court-ordered payments awarded to a spouse or former spouse within a separation or divorce agreement. The reason for alimony is to provide financial support to the spouse who makes a lower income, or in some cases, no income at all

Permanent Maintenance and Alimony:

On the application of either spouse the court may pass an order for permanent alimony and maintenance.
  1. at the time of passing of the decree granting the petition or
  2. at any time after the passing of the decree granting the petition.

This indicates that an order for maintenance cannot be passed if the main petition is dismissed.

The position regarding it has been clarified:
In Chand Dhawan Vs Jwahar Lal (1993) 3 SCC 406 Held, if the main petition is dismissed, the court has no jurisdiction to award permanent maintenance.

Jurisdiction:
In Jagdish V/s Bhanumati 1983 Bom. 297 The Bombay High Court held that maintenance proceeding being ancillary proceedings must be filed in the court where the original petition seeking matrimonial relief in any matrimonial cause has been filed.

Fixation of Maintenance:

In fixing the amount of maintenance the court is required to consider the following matters:
  1. the income and property of the claimant; at the time of fixation of maintenance, the income and any other property possessed by the claimant is taken in account. In case of wife, the amount is fixed in accordance with the status of husband and not father.
  2. the income and property of non-claimant; Similarly, non-claimants income and property is taken into account. A husband cannot waive off his liability of giving maintenance by stating he hasn't got job, the wife is sufficiently qualified to get a job or is supported by the father.

Case Law [Krishna V/s Padma (1968) Mys 226]
The basis of claim of maintenance is that claimant has no sufficient means to maintain herself. When a wife is qualified but has no employment or other income, the court may allow her maintenance.

Conduct of parties: 'Conduct' here is used in a wider sense. It includes:
  1. Conduct of the parties towards each other.
  2. Conduct of parties towards the marriage i.e. which party was responsible for the breakdown of the marriage.
  3. Conduct of parties towards the court.
Earlier, under English law the party guilty for the breakdown of marriage was not allowed maintenance but today it is not so though the quantum of maintenance may be affected i.e. less than the usual maintenance may be granted.

In India, the same law is applied though a conservative approach has been followed if the marriage is dissolved on account of adulterous conduct of wife.

Case Law [Raja Gopalan V/s Rajamma (1966) KLT 891]
The Kerala High Court held that if the marriage is dissolved on account of wife's adultery, she cannot claim any maintenance.

However, in Gulab vs 1985 Bom 88, The Bombay High Court, has submitted that a wife is entitled to maintenance even if the decree was passed on the ground of her adultery. This view is right as in accordance to the social conditions because a woman once divorced on the ground or proved unchasity should not be left to the resources of immorality.

The English Courts follow the practice of awarding one-third of income of non-claimant as maintenance to claimant. However, this rule of one-third is a mere guide line for India Courts. They haven't followed it rigidly. Depending on the circumstances, the court may grant more or less.

It is to be noted that after deciding a fair amount for alimony or maintenance the couple can go for divorce on mutual consent as mentioned under section 13B of the Hindu Marriage Act 1955
 
S.no Basis Alimony Maintenance
1 Meaning The term alimony, which is derived from the Latin term Alimonia, means sustenance. It is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce.
2 How to be Paid It is  one-time payment It is paid on monthly basis
3 When it is given It is given only after the divorce Divorce is not essential to get maintenance
4 Mode of payment It can be given in lump sum cash or in form of property It can be paid in form of cash or kind but not property
5 Types Alimony is one-time payment Having no types It has two types interim and permanent
6 Amount given It can be 1/3 or 1/5 of the gross earning amount of the spouse It can be 20%- 25% of the monthly Salary of the spouse 
7 Decided by It is decided by both husband and wife It is decided by the court of law 

Section 18 of Hindu Adoption And Maintenance Act 1956

States:

Maintenance of wife:

  1. Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
     
  2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:
    1. if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;
    2. if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
    3. if he is suffering from a virulent form of leprosy;
    4. if he has any other wife living;
    5. if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
    6. if he has ceased to be a Hindu by conversion to another religion;
    7. if there is any other cause justifying living separately.
       
  3. A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

    Hindu Adoption and Maintenance Act 1956:
    A Hindu wife has the advantage of an additional statute viz, the Hindu Adoption and Maintenance Act 1956. Under s.18 of this Act a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance, provided her claim to maintenance, provided her separate living is justified which means that the husband:
    1. Is guilty of desertion;
    2. Has treated her with cruelty,
    3. Is suffering from a virulent form of leprosy.
    4. Has any other wife living;
    5. Keeps a concubine in the same house or is living or habitually resides with a concubine elsewhere
    6. Has ceased to be a Hindu by conversion to another religion or
    7. If there is any other cause justifying living separately

The section provides two specific bars which would disentitle a wife from claiming maintenance under this act:
  1. If she is unchaste or
  2. If she ceases to be a Hindu by conversion to another religion.
It is pertinent to mention here that to claim maintenance under this statute, it is not necessary to have matrimonial ligation subsisting between husband and wife.

Section 125 of Code of Criminal Procedure 1973

States:
Order for maintenance of wives, children and parents
  1. If any person having sufficient means neglects or refuses to maintain:
    1. his wife, unable to maintain herself, or
    2. his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
    3. his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
    4. his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
    Explanation: For the purposes of this Chapter:
    1. Minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
    2. Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
       
  2. Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
     
  3. If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
    Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
    Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

    Explanation: If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.
     
  4. No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
     
  5. On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Apart from the personal laws, the Code of Criminal Procedure, 1973 also provides for maintenance for wives. Unlike the personal laws which are applicable only to persons belonging to particular religions, the provisions of Code of Criminal Procedure, 1973 are applicable to all irrespective of religion Relief under this code is speedy and available irrespective of whether or not any matrimonial proceedings are pending.

The salient features of the provision are:
  1. A wife includes a divorced wife
  2. Only lawful wife is entitled to maintenance under this section.
  3. A wife may seek maintenance even without any matrimonial litigation.
  4. She may stay separate if there are sufficient grounds justifying that and yet get maintenance.
  5. There must be neglect or refusal on part of husband to maintain her.
  6. Wife must be unable to maintain herself.
  7. The court can grant interim maintenance also.
  8. The amount may be varied or cancelled if there is change in circumstances.
  9. In certain situations a wife may be debarred from claiming maintenance.
  10. Her right terminates on remarriage.
  11. The proceedings are summary and expeditious.

Object
The Supreme Court in the case of Chaturbhuj v Sitabhai (AIR 2008 SC 530) emphasized that the provision under s.125 Code of Criminal Procedure is a measure of social justice specially enacted to protect women and children, it does not aim to punish a person for his past neglect but to prevent vagrancy and destitution by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support.

Conclusion
Thus, all personal statutes as well as the Code of Criminal Procedure, 1973 provide for maintenance of wives. Thus sums the circumstances under which the husband is liable to maintain his wife.

Maintenance of Parents:

See 20 of HAM act also lays down an obligation for maintenance of old and infirm parents who are not able to maintain themselves out of their own personal earnings and property. The HAM act is the first statute in India, which imposes an obligation on the children to maintain their parents. The obligation to maintain is not only limited to the sons but also extends to the daughters Under HAM act both father and mother have an equal right to claim maintenance.

To explanation to this section also includes stepmother in the term parent. However it is important to note that the section imposes an obligation to maintain only those parents who are unable to maintain themselves and therefore the obligation to maintain the parents other than those infirm, and unable is only moral.

Conclusion
Hence we are able to understand that section 13B of Hindu Marriage Act deals with divorce on mutual consent .Section 24 deals with maintenance. Section 25 deals with permanent alimony. Section 18 of Hindu Marriage and Adoption act lays how wife can live separately from her husband without suspending her right to maintenance. At last Section 125 of CRPC 1973 deals with maintenance for Divorced wife, wife of void marriage, parents and father from a married daughter.

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