What are the Laws Related to Maintenance in India?

What are the Laws Related to Maintenance in India?

Date : 25 Feb, 2021

Post By Advocate Kajori Deb

Maintenance is defined as an amount payable to the wife by her husband who is unable to sustain herself either during the continuation of marriage or upon separation or divorce. Various laws governing maintenance in India are as follows:

  1. For Hindus, there is, The Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956

  2. For Muslims, there is, Muslim Woman (Protection of Rights on Divorce) Act, 1986

  3. For Parsis, there is, Parsi Marriage and Divorce Act, 1936

  4. For Christians, there is, Divorce Act, 1869

  5. The Criminal Procedure Code, 1973 and The Special Marriage Act,1954 are the related secular laws

Maintenance

Section 3(b), Hindu Adoption and Maintenance Act, 1956 says that maintenance includes:

  1. In all cases, provisions for food, clothing, residence, education and medical attendance and treatment;

  2. In the case of an unmarried daughter also the reasonable expenses of an incident to her marriage, Maintenance necessarily must encompass a provision for residence. 

In the case of Mangat Mal v. Punni Devi, it is provided that maintenance is to be given so that the lady can live in the manner to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need for a roof over the head.


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There are two types of Maintenance provided under Indian Law:-

Temporary Maintenance (pendente lite)

It is granted during the pendency of a proceeding for divorce or separation to cover the immediate needs of the petitioner. 

Section 24 of the Hindu Marriage Act, 1955 provides that either of the spouses whether husband or wife can be granted relief if the court is satisfied that the applicant doesn’t have any independent source of income sufficient to support the necessary expenses of the proceedings pending under the Act.

Section 125 CrPC also provides that interim maintenance may be claimed by the wife during the pendency of the proceeding regarding monthly allowance for maintenance under Section 125(1) CrPC.

Section 36 of the Special Marriage Act, 1954 also makes certain provisions for the wife to seek expenses from her husband if the court believes that she does not have an independent income source sufficient enough for her to support the necessary expenses of proceedings under Chapters V or VI of that Act.

Permanent Maintenance

Permanent Maintenance is, as the name suggests, granted permanently after the disposal of the case for divorce or separation.

Section 25 of the Hindu Marriage Act, 1955 provides that either spouse (wife or husband) is entitled to receive from the other spouse for his/her maintenance an aggregate sum or a monthly or periodical sum for a term that may extend to the applicant’s lifetime or till he/she remarries or remains chaste.

Section 18 of the Hindu Adoption and Maintenance Act, 1956 provides that Hindu wife is entitled to be maintained by her husband during her lifetime and the wife is also entitled to have a right to separate residence and maintenance if any condition provided under Section 18(2) of the act is fulfilled.

Section 125 of the Criminal Procedure Code, 1973 This section provides for maintenance not only to the wife but also to child and parents. Court can direct a husband who neglects or refuses to maintain his wife who is unable to maintain herself to provide monthly maintenance to the wife, provided the husband has sufficient means. However, if the wife is living in adultery, or refuses to live with husband without any sufficient reasons, or living separately with mutual consent then she shall not be entitled to receive maintenance 

Wife 

Acc. to Section 125 CrPC ‘Wife’ means a legally wedded wife and also includes a divorced wife.

Maintenance to legally wedded wife

A Hindu woman legally married to a Hindu male in accordance with all the customs shall be entitled to maintenance. However, according to Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, a Hindu woman married to a Hindu male having a living wife, is not entitled to maintenance as this marriage is void.

Maintenance to second wife

In Badshah v Urmila Badshah Godse it was held that when a husband conceals the subsistence of his earlier marriage while marrying to another woman, then he is liable to give maintenance to the second wife. However, this second wife is to be treated as a legally wedded wife only for the purpose of maintenance.

Wife ‘living separately with mutual consent’ not included in the divorced wife

‘Wife’ under Section 125(1) is a divorced woman, however; ‘Wife’ under Section 125(4) is a married woman. It was held in Vanamala v. H.M. Ranganatha Bhatta, wife living separately from a husband with mutual consent does not mean a wife who obtains divorce by mutual consent and lives separately and therefore cannot be denied maintenance on this ground.

Earning wife entitled to maintenance?

It was held in Rosy Jacob v. Jacob A. Chakramakkal that it is not necessary to pay any maintenance to a wife if she is earning and is in a better financial condition than the husband.

Maintenance of widowed daughter-in-law

Section 19 of the Hindu Adoption and Maintenance Act provides that if after the death of the husband a wife has no means of her own earnings or other property, then she is entitled to be maintained by her father-in-law. However, this right cannot be enforced if the father-in-law does not have the means to do so from any coparcener property in his possession out of which the daughter-in-law has not obtained any share. Further, the obligation to maintain is only till the daughter-in-law remarries.

The distinction between the Sections:-

  1. Under Section 18 of the Hindu Adoption and Maintenance Act and Section 125 of the Code of Criminal Procedure, only a wife can claim maintenance, while under Section 25 of the Hindu Marriage Act either the husband or the wife can do so.

  2. Under Section 18 of the Hindu Adoption and Maintenance Act and Section 125 of the Code of Criminal Procedure, a wife can claim maintenance and live separately from her husband while her marriage subsists. Under Section 25 of the Hindu Marriage Act, either spouse can claim maintenance and permanent alimony but that can be done only after judicial separation or after divorce. 

  3. Hindu wife contemplated under Section 18 of the Hindu Adoption and Maintenance Act and Section 125 of the Code of Criminal Procedure includes only the wife of a valid marriage. While under Section 25 of the Hindu Marriage Act even a wife of void marriage can claim maintenance.

  4. Apparently, Section 18 of the Hindu Adoption and Maintenance Act seems to have overridden Section 25, Hindu Marriage Act because in both the sections a similar provision exists, and by virtue of Section 4, Hindu Adoption and Maintenance Act, it is the Act of 1956 (i.e. HMA) which shall prevail and the provisions of the Act of 1955 (i.e. HMA) vis-a-vis maintenance of a wife shall cease to have any effect.

  5. There is no inconsistency between the two sections as both do not deal with a similar provision. Both sections provide separate and independent reliefs. The Court's jurisdiction can’t be ousted on the plea that the applicant for maintenance under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act though in fixing the quantum of maintenance that may be taken into consideration.

  6. The provisions of maintenance in the Code of Criminal Procedure and the Hindu Adoption and Maintenance Act are again independent relief.


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The following are the documents relevant for the Court to decide application for maintenance:-

  1. Income Tax returns

  2. Form 16 and Form 12BA

  3. Appointment letter

  4. Cost to company certificate

  5. Salary certificate

  6. Bank statement of all the bank accounts

  7. Credit/debit card statements

  8. Title deeds in respect of an immovable property

  9. Registration certificate of vehicle


Factors that are taken into account while awarding interim maintenance:-

  1. Status of the parties

  2. Reasonable wants of the claimant

  3. Number of the persons to be maintained by the husband

  4. Liabilities, if any, of the husband

  5. The amount required by the wife to live a similar lifestyle as she enjoined in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife and payment capacity of the husband.


How can Lawtendo help in the process?

If you are stuck in any legal trouble related to maintenance or alimony-related matters Lawtendo is the place where you can get the best Divorce lawyers near you. Contact Lawtendo for legal consultation.

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