Maintenance is an integral part of matrimonial proceedings. Maintenance is a monetary relief granted by the court under which husband needs to pay to his wife when she is unable to sustain financially on her own during the divorce proceedings as well as post divorce. Maintenance is paid by the husband either on a monthly basis on in a lump sum so that the wife can avail the basic amenities of life such as food, clothing, shelter etc.
The law relating to maintenance differs from religion to religion. The amount of maintenance is not fixed. It depends on various aspects such as income of the husband, number of people dependent on husband for their survival and living standard of the wife etc. Recently Supreme Court said that maintenance should be at least 25 % of the income of the husband.
Maintenance Laws in India:-
There are various laws that govern the matters related to maintenance in India. Some of them are following:-
- The Hindu Marriage Act.
- The Hindu Adoption and Maintenance Act.
- Muslim Women (Protection of Rights on Divorce) Act
- Indian Divorce Act
- The Parsi Marriage and Divorce Act
- Section 125 of the Cr.P.C.
Claim of maintenance can be filed under more than one provision like under Section 125 of Cr.P.C. as well as under Section 24 of Hindu Marriage Act. The law is well settled that petitioner would be entitled for higher maintenance if two courts have passed different amounts towards maintenance. However, petitioner will not be entitled to have maintenance of total sum from two courts. The higher amount is to be paid and not cumulative.
Who can claim maintenance?
Wife can file a claim for maintenance for herself as well as for children from the husband. Parents and minor children also can claim maintenance. However, major children can claim maintenance if he/she is unable for livelihood due to physical or mental abnormality.
Can husband claim maintenance?
Section 24 of the Hindu Marriage Act makes both husbands and wives as liable to make claim. Man can claim maintenance from his wife who is financially sound and earning more, if he is unable to sustain himself financially. So husband can claim interim maintenance from his wife during the pending proceedings under this Act.
What if wife is earning?
Notion of working women can’t claim maintenance is not true. According to Supreme Court ruling, even if a wife is earning, she can claim maintenance from her husband if her income is not sufficient for livelihood. The Section 125 of Cr.P.C. provides that wife can claim maintenance even if she is living separately and not divorced. Husband can’t deny for maintenance by saying that he is jobless or is not earning.
Where maintenance proceedings can be filed?
Wife can file maintenance proceedings at one of the following places:-
- Where husband resides or carries on his business.
- Where wife resides.
- Where husband wife last resided together.
- Where the matrimonial proceedings are pending.
Parents can file maintenance case in any place where:-
- They resides.
- The child resides.
Maintenance under Hindu Law:-
The Hindu Marriage Act and the Hindu Adoption and Maintenance Act give women the right to claim maintenance after divorce. Under Hindu Marriage Act, there are two types of maintenance i.e. interim or permanent. Under Section 24 of the Hindu Marriage Act, interim maintenance is granted by the court during the pendency of the case in the court. Permanent maintenance is governed by Section 25 of the Act. Such maintenance is awarded when the whole case is finally decided.
As per Section 18 of Hindu Adoption and Maintenance Act, Hindu wife can claim maintenance from her husband is she living separately from her husband due to valid reason. Divorce or other pending matrimonial proceedings are not necessary under this Act to claim maintenance.
Maintenance under Muslim Law:-
A divorced Muslim woman can claim maintenance within the iddat period under the Muslim Women (Protection of Rights on Divorce) Act. The amount of Mehr or dower has to be paid to the wife. Husband is required to pay maintenance to the children of 2 years of age born before or after the divorce.
Maintenance under Indian Divorce Act:
A Christian divorced wife can claim maintenance for life under Indian Divorce Act by filing case in Civil Court or High Court. Wife can obtain maintenance during the pending suit under Section 36 of this Act. Such interim maintenance shall not exceed the 1/5th of husband’s average net income of next preceding 3 years from the date of order. Permanent maintenance can be granted under Section 37 on dissolution of marriage.
Maintenance under Parsi Marriage and Divorce Act:-
Parsi law recognizes both interim and permanent maintenance. The maximum amount that can be granted for maintenance during pendency of suit is 1/5th of husband’s net income.
Maintenance under Section 125 of Code of Criminal Procedure:-
Section 125 of Cr.P.C. being a secular provision makes members of all communities eligible to get maintenance including wives, children and parents if they are unable to maintain livelihood. Only a divorced wife and who has not remarried can claim maintenance under this Section. Wife can’t claim maintenance if she lives in adultery, left the husband without sufficient reason, or both spouse are living separately by mutual consent.
Under his provision parents and minor children can also claim maintenance. Major Child can only claim maintenance if he/she is unable to maintain livelihood due to physical or mental abnormality. Both legitimate and illegitimate children can take the benefit of this legal provision.
Maintenance is often seems to be biased favour granted to woman, but looking at the miserable condition of woman her dignity and needs are to be protected in the best way possible. The amount of maintenance varies as per the condition of both husband and wife. In certain cases the court may reduce the amount taking into consideration the financial condition of wife. Husband can also get maintenance in exceptional cases under some personal laws in India.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali