Maintenance laws in India

Introduction

Women not only in India but all around the world has suffered for a long time at the hands of
the Patriarchal society and patriarchal dominance where almost all rights of women were
curbed by the society. If the law failed to provide justice to women, isn’t it being too harsh on
them? After living many decades in a way where the man provides all these basic necessities
of life to his wife, kids, and parents.

Every human being is entitled to have basic amenities and necessary requirements like food,
shelter, health facilities, right to live a dignified life. Maintenance is often referred to as
‘alimony’ or a ‘kind of monetary support’ from either spouse.

Now the question arises why do we need to provide maintenance to women?

Can men seek maintenance under Indian laws?

We all know the concept of equality didn’t hit as hard in India as it did in West and East Asia
as a result of this most women are engaged in household activities rather than getting a job
and earning pay, which in results makes them dependable on males, including their Father,
brother, husband, son for financial purposes eventually they become emotionally and socially
dependent on men. If the husband moves her out or in case of divorce, she is doomed if she is
not financially stable on her own because no money- no life. At some point in life, she
decides to claim maintenance, and then society judges them.

As the judiciary is liberal now even man can claim for maintenance if he is unable to
maintain himself. Either the spouse who does not have sufficient resources to maintain
themselves can move to the respective court and receive a sum of the amount decided by the
court.
 What is Maintenance?

Maintenance is precisely described under section 3 (b) of the Hindu Adoption & Maintenance
Act, 1956.1 Which reads as -

(b) “Maintenance” includes—

(1) in all cases, provision 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 is actually classified into two parts

1 Interim maintenance

2 Permanent maintenance

Interim Maintenance

Section 24 of The Hindu Marriage Act 19552 states that ~

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. During the monthly proceeding, such sum,
having regard to the petitioner's own income and the income of the respondent, may seem
reasonable to the court.

In the majority of cases, the wife receives this support if she has no means to support herself
financially. The court may order the husband or spouse, who has more income and is

1
Hindu adoption & maintenance act, (1956).
2
Hindu marriage act § 24 (1955).
financially independent, to provide a monthly allowance and pay the expenses of
proceedings. This lies in the idea of giving maintenance to the weaker party which should not
lose due to financial problems.

The amount is particularly given during the pendency of the court proceedings.

Permanent Maintenance

A fixed amount of alimony is provided to the party after the passing of the final decree and
ceases to exist till the death of the alimony holder.

Section 25 of the Hindu Marriage Act 19553 states that ~

Any court exercising jurisdiction under this Act may, at the time of passing any decree or at
any time subsequent thereto, on the 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, it may seem to the
court to be just. Any such payment may be secured, if necessary, by a charge on the
immovable property of the respondent.

It can be modified later if either of the spouse’s circumstances changes; for instance, an
increase in salary, the standard of living, etc., could increase in maintenance amount. it may,
at the instance of either party, vary, modify, or rescind any such order in such manner as the
court may deem just.

The sum is granted on a periodic basis or in continuation once the proceedings have been
disposed of. The Court considers the standard of living of both spouses before separation in
order to execute proper alimony to the weaker party under section 25 of The Hindu Marriage
Act 1955 after that the spouse receives permanent alimony.4

3
Hindu Marriage Act § 25 (1955).
4
Hindu marriage act § 25 (1955).
While passing the final decree on permanent maintenance the court consider the following
things~

o Relationships must be proved.

o Each spouse’s present income.
o Each spouse’s future earning capacity.
o Education qualification of each spouse.
o Contributions made by either spouse in support of the other spouse’s career or
education.
o Standard of living established during the marriage before separation.
o Needs of either spouse.
o The amount and kind of property each spouse holds, including shares.
o Health of spouses.
o Age of spouses.

~ Cancellation of alimony

o The Court may terminate an existing order on a plea of permanent alimony or turn
down the plea related to it in certain circumstances, such as
o If the wife started earning enough it enables her to maintain a standard of living on
her own, on par with that of her marital years.
o The remarriage of the spouse receiving permanent maintenance.
o The death of either party.

Maintenance is the allowance a spouse must pay the other spouse when they are unable to
meet their monthly expenses. Maintenance also applies to children, if any, so that caregiving
expenses for the child are not disproportionately borne by one parent alone. Maintenance is
the allowance a spouse must pay the other spouse when they are unable to meet their monthly
expenses. Maintenance also applies to children, if any, so that caregiving expenses for the
child are not disproportionately borne by one parent alone.
Rehabilitative

Rehabilitative Alimony is only paid when the non-earning spouse is actively looking for
employment or other sources of income to support themselves. It is a temporary arrangement
to aid the non-earning spouse in developing skills or locating secure employment for
themselves.5

Reimbursement

Reimbursement alimony is the payment made to the spouse who incurred particular costs,
such as those related to their schooling or those that increased the other spouse's income.6

Laws providing maintenance in India

Maintenance is provided to women through different laws in India.

1. Protection of Women from Domestic Violence Act 2005

2. Muslim personal law
3. Hindu Marriage Act
4. Parsi Marriage and Divorce Act, 1936
5. Criminal Procedure Code, 1974
6. Special Marriage Act, 1954 etc.

Satish Ahuja v/s Sneha Ahujai7

This case has given a landmark judgment for securing the rights of women aggrieved by
domestic violence. The interpretation of ‘shared household’ was changed in an ironical
manner – “intent of parties to reside in the said residence with certain permanency.” Under

5
Alimony Under Personal Laws, https://www.legalserviceindia.com/legal/article-10484-alimony-under-
personal-laws.html.
6
Alimony Under Personal Laws, https://www.legalserviceindia.com/legal/article-10484-alimony-under-
personal-laws.html.
7
Satish Ahuja v/s Sneha Ahuja AIR 2020, SC 2483
section 17 of the Protection of Women from Domestic Violence Act, 2005. – the right to
reside in a ‘shared household’.

17. Right to reside in a shared household. —

(1). Notwithstanding anything contained in any other law for the time being in force, every
woman in a domestic relationship shall have the right to reside in the shared household,
whether or not she has any right, title, or beneficial interest in the same.

(2). The aggrieved person shall not be evicted or excluded from the shared household or any
part of it by the respondent save in accordance with the procedure established by law.

The court held that the right to residence is paramount for the wife whether she is working or
not.

Maintenance under Hindu Law

If we talk about Hindu Law, there are certain acts that deal with it as The Hindu Marriage Act
of 1955 & The Hindu Adoption &Maintenance Act of 1956. These acts are applicable to
Hindus, Sikhs, Jain, and Buddhists. They are entitled to maintain the following members of
his family.

o Wife
o Legitimate son
o Illegitimate son
o Unmarried daughter
o Parents

Rani Seth v/s Sunil Seth ii

Delhi high court ordered the wife to pay alimony to her husband. It is the purpose of section
24 that the wife or the husband who has no sufficient source of income for her or his support
or for the expenses of the proceedings must be provided with a reasonable sum that strikes
equity between the spouses.8

Section 26 of The Hindu Marriage Act of 1955 9deals with the maintenance of minor
children. Obligation to maintain minor lies on both the father and mother or either of the
parents as ordered by the court.

Section 19 provides maintenance to the widowed daughter-in-law from her father-in-law

under The Hindu Adoption &Maintenance Act of 1956.10

Section 20 of The Hindu Adoption &Maintenance Act of 195611 deals with the maintenance
of minor children and aged parents by the respective party on the following grounds which
are given in sec 23 of The Hindu Adoption &Maintenance Act of 1956,12

o The position and status of the parties.

o Duration of marriage.
o Health condition of the parties.
o Age of the parties.
o The reasonable wants of the claimants.
o If a claimant has a separate residence.
o Claimant’s income.
o Number of claimants.

Maintenace under Special Marriage act 1954

8
Rani Seth v/s Sunil Seth 179 (2011) DLT 414
9
The Hindu Marriage Act § 26 (1955).
10
Hindu Adoption &Maintenance Act § 19 (1956)
11

12
Section 37 of the Special Marriage Act,1954, provides that the maintenance can only be
claimed by the wife. The order made under this can be modified by the court if the court is
satisfied that the wife is remarried or is not leading a chaste life. This section is also similar to
Section 40 of the Parsi Marriage and Divorce Act.

Section 37 provides a grant of permanent alimony and section 36 provides for maintenance to
support her for legal expenses she has incurred during the proceedings.

 Section 125 of the Criminal Procedure Code

Section 125 Order for maintenance of wives, children, and parents

(1) If any person having sufficient means neglects or refuses to maintain--

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or

(c) 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

(d) 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 a such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct;

It further provides the definition of the wife: “wife” includes a woman who has been divorced
by, or has obtained a divorce from, her husband and has not remarried.

Section 125 deals with granting maintenance to wives, children, and parents.
In Rajnish vs Nehaiii (2020) 13Supreme Court in this judgment set down certain guidelines.

Criteria include-

o Status of the parties

o Applicant’s needs
o Respondent’s income and property
o Claimant’s liabilities and financial responsibilities
o Age of the parties
o Employment status
o Standard of living of the parties
o Any illness or disability

This judgment also laid down that “ if the wife is earning, it cannot operate as a bar from
being awarded maintenance by the husband.” It is to determine whether she is able to have a
sustaining life.

The purpose of section 125 is to achieve social justice for the marginalized member of the
society-destitute wife, children, and parents.

Section 125 is declared to be a secular provision as it is applicable to the whole of India

without the interference of any personal law but after the judgment of the Shah Bano case
personal laws are preferred in maintenance cases e.g. Muslim Women ( Protection of Rights
on Divorce)Act, 1986, was enacted because of the agitation and unrest occurred due to the
judgment of the Supreme Court as the Muslim community thought supreme court is
interfering with their personal law. According to them, this kind of secularism is a threat to
their religion.

In Sunita Kachwaha vs Anil Kachwahaiv, the Supreme Court ruled that a woman would not
be denied support just because she possesses a source of income.14

Case Law related to Section 127 of CrPC - Alteration in allowance

Bai Tahira v. Ali Hussain Fissaliv,

13

14
The SC held that if the amount of deferred ‘Mehar’ paid at the time of divorce is sufficient to
support the wife during her lifetime, an order of maintenance U/S.125 shall be liable for
cancellation in accordance with S.1277 (3). In Fuzlunbi v. K. Khader Alivi, the same
viewpoint was upheld.

Can second wife also get maintenance?

In the case of Narinder Pal Kaur Chawla v. Manjeet Singh Chawla15vii, the husband did not
disclose the fact that he is already married and he married the petitioner as per the ceremonies
of the Hindu Marriage Act of 1955. The Delhi high court in this case held that the second
wife, whose marriage is void has a right to be maintained under section 18 of the Hindu
Adoptions and Maintenance act of 1956 because she was not knowing the fact that the
defendant is already married and if maintenance is not provided then this would encourage
the defendant to defraud the second wife.

In Badshah v. Urmila Badshah Godse16viii -The court held that the husband hides maintenance
from the previous marriage while marrying the second wife. He did not disclose the fact that
he is already married. Thus, a false representation was given to the respondent by the
petitioner, therefore the wife is entitled to get maintenance as per section 125 of CRPC.

In the judgments, we can see that court protected the rights of the second wife but the
provisions are not clear it can be easily exploited by the husband even in section 125 CRPC it
is nowhere mentioned that the second wife is entitled to get maintenance.

In my opinion, if there is false representation by the husband to the second wife then sec. 125
of CRPC must be amended in order to bring proper justice to the second wife. The rights of
the second wife should be protected by making amendments to the Hindu Adoptions and
Maintenance Act of 1956. As of now, there is no such clarity in the act that specifies that the
right of the second wife is protected and she is entitled to get maintenance.

15

16
 Conclusion

The concept of maintenance is interpreted in different ways under different statutory

provisions, yet the purpose of it is to grant support. The Court attempted to strike a balance
between the parties’ rights, responsibilities, and interests in such matrimonial disputes.

In the absence of facilitating mechanisms and community support most women usually just
drop their claim for maintenance, the struggles they went through while being in marriage all
they want is separation, and yet the pressure of society they end up getting no maintenance.
Legal bodies, NGOs, and practicing lawyer are trying their best to deal with such cases and
bring justice to such women and either spouses who suffered in the marriage. New guidelines
are being issued and lots of landmark judgments are paving the way for the rights of women
i.e. Shah Bano case. Recent judicial decisions have been progressively liberal in deciding
cases whether it is about the rights of women or the rights of men or the rights of kids related
to maintenance.

The purpose of alimony was to provide financial assistance to the financially disabled spouse
in order to enable him or her to live a pleasant and respectable life. But in my opinion, our
society severely abuses the provision of alimony. It is no longer so much of a necessity as a
way of life. The purpose of alimony was to provide financial assistance to the financially
disabled spouse in order to enable him or her to live a pleasant and respectable life. But in my
opinion, our society severely abuses the provision of alimony. It is no longer so much of a
necessity as a way of life.
i
References

SATISH CHANDER AHUJA vs SNEHA AHUJA AIR 2020, SC 2483

ii
Rani Seth v/s Sunil Seth -179 (2011) DLT 414
Rajnish v. Neha Criminal Appeal No. 730 of 2020
iii

iv
Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715
v
Bai Tahira v. Ali Hussain Fissali, (1979) 2SCC 316
vi
Fuzlunbi vs K. Khader Vali And Anr AIR 1980 SC 1730, 1980 CriLJ 1249, (1980) 4 SCC 125,
1980 3 SCR 1127
vii
Narinder Pal Kaur Chawla v. Manjeet Singh Chawla Civil 2606 of 2004
viii
Badshah v. Urmila Badshah Godse (2014) 1 SCC 188 or Criminal Miscellaneous Petition No
19530/2013
 https://www.scconline.com/blog/post/2022/07/11/satish-chander-ahuja-v-sneha-ahuja-the-
progress-of-any-society-depends-on-its-ability-to-protect-and-promote-the-rights-of-its-
women/
 https://thelawcommunicants.com/recent-guidelines-of-supreme-court-on-maintenance-law/
 https://www.scconline.com/blog/post/2022/07/11/satish-chander-ahuja-v-sneha-ahuja-the-
progress-of-any-society-depends-on-its-ability-to-protect-and-promote-the-rights-of-its-
women/
 https://tripakshalitigation.com/maintenance-laws-in-india/
 Special marriage act, 1954
 Hindu Marriage Act, 1955
 Hindu Adoption and Maintenance Act, 1956
 Muslim Women (Protection of Rights on Divorce) Act, 1986
 CRPC, 1973
 Parsi Marriage & Divorce Act, 1936
 https://indiankanoon.org/doc/806295/#:~:text=%E2%80%94On%20any%20petition
%20presented%2047,give%20evidence%20of%20or%20relating