MAINTENANCE
Maintenance of wife
➢ Maitnenace under HMAct, only during pendency
➢ Hindu wife has another remedy: HAMAct.
➢ Section 18
➢ But meaariage should be subsisting
➢ A dioverced wife is not entitled to claim maintenance under section188
➢ A claimant is not entitled to get maintenance under all Acts simultaneously and from
all the persons who are under the law, obliged to maintain.
➢ Section 20(3) obligation of children to maintain parents arises only when the parent is
unable to maintain himself/ herself andin this case, the husband of the being alive and
in a postiion to maintian, so son wont be directed to pay.
➢ Guidelines and consideration
o No rigid mathematical rule to define quantum of maintenance
o At the outset applications under section 24 and 125 crpc are independent of
each other but amount given in one can be taken into consideration
o Rejection under section 24 has no bearing on 125 crpc
➢ Means and capacity of a person against whom the award has to be made is very
important. Its not the actual earning but also his potentioa earning capacity which
must be considered.
➢ There is a presumption that every able bodied persom has a capacity to earn and
maintain his wife.
➢ The court held that it has to assess the carry home salary of the husband after
compulsory deductions for example, income tax, provident fund, group insurance,
professional tax.
➢ Man cannot challenge the wifes claim that he has another wife to maintain
➢ The wife and children shall enjoy the same standard of living as the husband but there
is no intention to peg or freeze it to the date of separation
➢ Income of the applicant
o The idea behind maintenance provision is to prevent destitution of the wife
o It is in no way meant to be a penalty for one and a reward for the other
o Wide being supported by parents will not discharge the husband
o Wife is carrying on some business can be taken into consideration while fixing
the amount but it is not a complete bar to her claim for maintenance
➢ Needs of the applicant/respondent
o The needs of the wife and the status and standard she was used to in her
husband’s house is t obe kept in the mind
o It’s the status of the husband and not the wifes parents which should be
consdered.
o Medical expenses incurred by the wife can also be claimed.
o Section 3(b)(i) of HAMAct
o Right of residence is included in the term maintenance
o Provison for residence may be given either by giving a lump sum in money or
property in lieu thereof.
o Domestic violence act provides an explicit provision for residence order in case
of domestic violence.
➢ Conduct of the applicant
o Under section 24: only consideration is inability to maitian herself for want of
finances.
o Liability to pay maintenance and litigation expenses cannot be denied on the
ground that wife was facing trial under the immoral traffcik prevention act and
that she was twice married before, which fact she had concealed from her
husband.
o Wife living away without reasonable ground, is no bar under section 24.
o Unchastity is a bar under section 24 as well as section 18
➢ The fact that the appeal against the divorce decree is pending, is no bar to a claim for
maintenance
➢ A wife who agees to give up her claim for any maintenance in future in terms of a
consent divorce decree is not debarred from claining maintenance thereafter.
➢ The court held that the power to grant maintenance has been conferred on the court
by parliament under the act and the parties cannot by agreement oust the courts
jurisdiction.
➢ Permanent alimony and maintainance are larger part of right to life so such consent
clause would be against public policy.
➢ Death of the husband does not extinguish alimony order
o Objection that it is not a charge and so the liability will extinguish with his
death
o But court held that the estate of the deceased husband is liable for the
satisfaction of the maintenance order
➢ Section 125 crpc
➢ Salient features under crpc are:
o Wife includes divorced wife
o Only lawful wife is entitled to maintenance under this section
o A wife may seek maintenance even without any matrimonial litigation
o She may stay separate if there are suffcient grounds justifying that and yet get
maintenance
o There must be neglect or refusal on part of the husband to maintain her
o Wife must be unable to maintain herself
o The court can grant interim maintenance also
o The amount may be varied or cancelled if there is change in circumstances
o In certain situations the wife may be debarred from claiming maintencnace
o Her right terminates on remarriage
o The proceedings are summary and expeditious.
