NATIONAL LAW UNIVERSITY ODISHA

LECTURE NOTE- 1

in

PERSONAL LAW-1

Prepared by:
A. NITHYA MUKTTHA REDDY
[2019/BALLB/012]

Under the guidance of:

DR. PRIYANKA ANAND
[ASSISTANT PROFESSOR OF LAW]
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TOPICS TO BE COVERED IN THE CLASS:

1. Difference between Alimony and Maintenance

2. What is the meaning and objective behind providing maintenance?
3. What are the various modes of awarding maintenance according to Indian Law?
4. Maintenance pendente lite according to Hindu Marriage Act, 1955
a. The Definition
b. Application of section 24 of HMA, 1955
c. Sufficiency of Maintenance
5. Criticism of Section 24 of the Hindu Marriage Act, 1955
a. Regarding the relevance of the Conduct of Parties
b. Regarding the interpretation of ‘Income sufficient to support themselves’

CASES TO BE COVERED IN THE CLASS:

1. T.P. Sudheesh Babu v. Sherly P [AIR 2010 Ker 37]

2. Dinesh Mehta v. Usha Mehta [AIR 1979 Bom 173]
3. Munnibai v. Jagdish Rathore [AIR 1998 MP 3600]
4. Kiran v. Chandra Shekhar [AIR 1998 MP 69]
5. Mamta Jaiswal v Rajesh Jaiswal [(2000) 2 DMC 170]
6. Swaran Singh v. Raj Kumar [AIR 2006 J&K 94]

LEARNING OUTCOMES:

After the lecture, the students would be able to understand the basic differences between the
concept of Alimony and Maintenance. Further, they would be able to understand the intent and
objectives behind awarding maintenance to a party. They would also have a fair idea of the
various tools and legislations available in India to claim Maintenance. The students would be
fully aware of the concept of Interim Maintenance under the Hindu Marriage Act, 1955 by
understanding its definition, application, scope and interpretation along with case laws.
Further, they would be able critically analyze the section as well.

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I. DIFFERENCES BETWEEN ALIMONY AND MAINTENANCE

ALIMONY MAINTAINANCE

Alimony refers to the court-ordered Maintenance is also court-ordered

Meaning
financial support one spouse is financial support but can be awarded
required to pay to the other spouse. to any dependent person- such as
children, elderly parents, etc.
Applicability Alimony is applicable only in cases Maintenance is awarded in a wide
of Divorce. range of cases such as Divorce,
Judicial Separation, and even during
the Pendency of cases.
Duration Usually, alimony is awarded for a Maintenance is awarded either on a
specific period of time or until the temporary or permanent basis.
spouse remarries.

However, the terms “Maintenance” and “Alimony” are used interchangeably in the Indian context.

II. WHAT IS MAINTENANCE?

Maintenance is a means of subsistence, supply of necessities and conveniences, aid,
support, assistance, the support that one person who is bound by law to do so, gives to
another for his living and includes in all cases, provision for food, clothing, residence,
education, medical attendance and treatment and in the case of an unmarried daughter also
the reasonable expenses of incidents to her marriage.

III. MODES OF AWARDING MAINTENANCE IN INDIA:

1) U/s 24, 25, and 26 of the Hindu Marriage Act, 1955
2) Under the Hindu Adoptions and Maintenance Act, 1956
3) U/s 125 of the Code of Criminal Procedure, 1973
4) Under classical Muslim Law

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5) Under the Muslim (Protection of Rights on Divorce) Act, 1986

6) Under the Protection to Women from Domestic Violence Act, 2005

IV. MAINTENANCE UNDER THE HINDU MARRIAGE ACT, OF 1956

A. INTERIM MAINTENANCE OR MAINTENANCE PENDENTE LITE
B. PERMANENT MAINTENANCE
C. MAINTENACE TO CHILDREN

A. INTERIM MAINTENANCE:

24. 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.

a) UNDERSTANDING THE SECTION:

Under S.24 of the Hindu Marriage Act, 1955 (hereinafter mentioned as HMA), either the wife
or husband can apply for interim maintenance. The basis of the claim for interim maintenance
is that the claimant has no independent income of his/her own to support himself/herself. The
provision is silent on the quantum of maintenance and it is at the discretion of the court to
determine the quantum. Similarly, maintenance pendente lite is to be provided to the claimant
who does not have an independent income, and the other spouse must provide the financial
need of litigation expenses.

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The interim maintenance is payable from the date of presentation of the petition till the date of
dismissal of the suit or passing of the decree. However, since maintenance pending litigation
can be granted only during pendency of proceedings. Once these are disposed of, payment of
maintenance also ends, and the party cannot insist on payment beyond date of disposal of the
main proceedings. Maintenance pendente lite can be granted even before first making effort
for reconciliation.

b) APPLICABILITY OF THE SECTION:

It is significant to note that the words used in s. 24 are "where in any proceedings under the
Act". Thus, it could be proceedings for any relief such as

 Restitution of Conjugal Rights- Section 9

 Judicial Separation- Section 10
 Void Marriage- Section 11
 Voidable Marriage- Section 12
 Divorce proceedings- Section 13
 Appeal Proceedings

In T.P. Sudheesh Babu v. Sherly P [AIR 2010 Ker 37], a husband had filed a petition under
s. 12 of the Act for declaration that the marriage was a nullity; thereupon the wife filed an
application under s. 24. The issue was, whether s. 24 is applicable when the proceedings before
the court are under s. 12 for declaration of nullity of the marriage. The court held that s. 24
applies to "any proceeding" under the Act and no exception can be carved out for proceedings
under s. 12 of the Hindu Marriage Act, 1955.

If Interim maintenance is not paid by the partner against whom the order is made, then there is
a risk of the original application getting struck down. Further, this conduct of the respondent
is taken into consideration while deciding the main petition under which Interim maintenance
was granted.

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c) SUFFICIENCY OF MAINTENANCE
The needs, status and standards of the applicant should be kept in mind while awarding
maintenance. However, few agree that the maintenance awarded should be sufficient for the
basic frugal needs of the applicant. But this position is settled through various case laws. An
example could be Dinesh Mehta v. Usha Mehta [AIR 1979 Bom 173], the High Court of
Bombay held that Section 24 of HMA, 1955 deals with the deciding of a reasonable amount
for the interim maintenance. Thus, the fixing of a reasonable amount is more about finding a
balance among several competing claims. The Court further stated that reasonableness
necessarily means that the wife must be ensured of similar comforts and amenities same as she
was getting when residing with her husband excluding the reduction resulting from the
separation and creation of two different establishments.

d) CRITICISM OF SECTION 24 OF HMA, 1955

I) RELEVANCE OF CONDUCT OF PARTIES
There are contradicting viewpoints when it comes to the relevancy of conduct while
granting maintenance under Section 24 of the HMA. In Munnibai v. Jagdish Rathore
[AIR 1998 MP 3600], the court observed that “s. 24 of the Act provides neither the
occasion nor the stage for the count to enquire into the veracity or the weight to be attached
to the allegations and counter-allegations of the parties in the pleadings relating to the
merits of the claim regarding the decree sought for under s 9 to 13 of the Act by the plaintiff,
and to go into such allegations would clearly introduce extraneous considerations and
amount to pre-judging the main issue.”

However, in the case of Kiran v. Chandra Shekhar [AIR 1998 MP 69], a husband had
obtained a decree of restitution which remained uncompiled and so he filed a petition for
divorce. The wife’s application under s. 24 was dismissed on the ground that despite the
restitution decree, she remained with her parents. The court conceded that it did not lack
jurisdiction to grant relief to the wife but held that it was a matter of discretion and this was
not a fit case to exercise discretion in favor of the wife.

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II) INTERPRETATION OF ‘INCOME SUFFICIENT TO SUPPORT THEMSELVES’

A lot of discretion is given to the courts when it comes to awarding maintenance. For
example, in the case of Mamta Jaiswal v Rajesh Jaiswal [(2000) 2 DMC 170], a pendente
lite application is made by a highly educated lady with M.Sc., M.C., and M.ed., degrees,
wherein the court remarked, that section 24 is not meant for creating an army of such
persons who would be sitting idle waiting for a 'dole' to be awarded by the husband who
has got a grievance against wife and who has gone to court for seeking relief against her.
Section 24 has been enacted for such spouses who are incapable of supporting themselves
in spite of sincere efforts. A spouse qualified to get service immediately with fewer efforts
is not expected to squeeze out his/her purse by a cut in nature of pendente lite.

A different, rather diametrically opposite approach can be seen in some other cases.
Mention may be specially made of the following observations of the court in Swaran Singh
v. Raj Kumar [AIR 2006 J&K 94]: "The status of equality guaranteed under law entitles
the wife to claim an equal share in the husband's earnings like his fortunes and misfortunes.
Even if the wife would have been qualified but would have chosen not to work, it would
be immaterial for the purposes of this petition… If a wife chooses to divert her energies to
the household work that will not deprive the wife from claiming her share of her husband's
income."

One cannot intentionally incapacitate themselves to claim maintenance. Further, the burden
of proof that the applicant doesn’t have any independent income to sustain herself/ himself
is upon the applicant whereas the onus of proof that there is no sufficient income to provide
maintenance is upon the Respondent.

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