NATIONAL LAW UNIVERSITY ODISHA
LECTURE NOTE- 2
in
PERSONAL LAW-1
Prepared by:
A. NITHYA MUKTTHA REDDY
[2019/BALLB/012]
Under the guidance of:
DR. PRIYANKA ANAND
[ASSISTANT PROFESSOR OF LAW]
LECTURE NOTE- 2
TOPICS TO BE COVERED IN THE CLASS:
1. Permanent Alimony and Maintenance U/s 25 of the HMA, 1955
a. The Definition
b. Applicability of Section 25
c. When is permanent maintenance granted?
2. Criticism of Section 25 of the HMA, 1955
a. Regarding the discretion to modify orders [S 25(2)]
b. Regarding the constitutionality of Section 25(3)
3. Differences between Interim maintenance and Permanent maintenance
4. Maintenance to Children under HMA, 1955
a. Under Section 26
b. Under Section 24
CASES TO BE COVERED IN THE CLASS:
1. Surendra Kumar Bhansali v. Judge, Family Court [AIR 2004 Raj 257]
2. D.Thimmappa v. R. Nagaveni [AIR 1976 Kar 2015]
3. Jasbir Kaur Sehgal v. District Judge, Dehradun [AIR 1997 SC 3397]
4. S.Sumathi v. Shravanakumar [2017 SCC OnLine Del
11621]
LEARNING OUTCOMES:
After the lecture, students would be able to understand the meaning, scope and applicability of
Section 25 of the Hindu Marriage Act, 1955 which discusses about Permanent Maintenance. The
students would be able to determine the stage at which an application for permanent maintenance
or alimony could be made. Further, they would also be able to differentiate between the provisions
of Section 24 and Section 25 of the HMA, 1955. Furthermore, the students would be able to
critically analyze the provisions of Permanent Maintenance and suggest for reforms. Finally, they
would also learn how maintenance to a child can be provided under the Hindu Marriage Act, 1955.
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MAINTENANCE UNDER THE HINDU MARRIAGE ACT, OF 1956
A. INTERIM MAINTENANCE OR MAINTENANCE PENDENTE LITE
B. PERMANENT MAINTENANCE
C. MAINTENACE TO CHILDREN
B. PERMANENT MAINTENANCE
25. Permanent alimony and maintenance. —
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or
at any time subsequent thereto, on 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 [the conduct of the parties and
other circumstances of the case], it may seem to the court to be just, and any such payment
may be secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any
time after it has made an order under sub-section (1), it may, at the instance of either party,
vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this
section has re-married or, if such party is the wife, that she has not remained chaste, or, if such
party is the husband, that he has had sexual intercourse with any woman outside wedlock, it
may at the instance of the other party vary, modify or rescind any such order in such manner
as the court may deem just.
a) UNDERSTANDING THE SECTION
Section 25 of the Hindu Marriage Act, 1955 provides for the payment of maintenance or
alimony to either spouse by the other spouse after the dissolution of the marriage. According
to this section, either spouse may file a petition for maintenance to the court, and the court may
pass an order for payment of maintenance to the petitioner. The court may direct the respondent
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(the other spouse) to pay a specific sum of money for a specified period, which can be a lump
sum or periodic payment.
In determining the amount of maintenance, the court will consider various factors, including
the income and property of both parties, their financial needs and obligations, the standard of
living enjoyed during the marriage, and the physical and mental health of the parties.
It is important to note that the court may also modify or cancel the maintenance order if there
is a change in circumstances, such as an increase or decrease in the income of the parties or a
change in the financial needs of the petitioner.
b) AT WHAT POINT AN APPLICATION U/S 25 CAN BE MADE?
An application for maintenance under s. 25, Hindu Marriage Act, 1955 can be made at the time
of the passing of any decree or at any time subsequent thereto. The expression at the time of
passing of any decree' as used in the section includes a decree of nullity. It encompasses within
the expression all kinds of decrees such as restitution of conjugal rights under s. 9, judicial
separation under s. 10, declaring marriage as null and void under s. 11, annulment of marriage
as voidable under s. 12 and divorce under s. 13. However, a claim for permanent maintenance
cannot be granted if the original suit is dismissed.
But, when an appeal is made to the decision of an original suit after granting the divorce or
dissolution of marriage. maintenance. In Surendra Kumar Bhansali v. Judge, Family Court
[AIR 2004 Raj 257]," a husband obtained a divorce decree against his wife. After the decree,
the wife filed an application for permanent alimony under s. 25. She also filed an appeal against
the divorce decree. The husband challenged the maintenance application on the ground that an
appeal against divorce was pending. Maintenance was allowed. The husband then filed a writ
petition in the High Court with a prayer that the order of maintenance passed by the family
court be quashed. The husband's appeal was dismissed and it was held that an application under
s. 25 can be made at the time of passing of the decree or at any time subsequent thereto. In this
case, since the divorce was decreed and the marriage dissolved, the wife's application was
tenable.
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c) CRITICISM OF SECTION 25
I) REGARDING MODIFICATION OF ORDERS [SECTION 25(2)]
Section 25(2) grants the privilege to the Court to change or cancel the order for
maintenance if either of the parties has changed their position. Now, this Section, as far as
it sounds, is based on an assumption. Assuming that the parties will have in their
circumstances, the Court shall modify or cancel the order in favor of either party. By way
of example, an argument may be taken that an amount was decided by a Court in favor of
the wife, who also had a child of six years of age when the order under sub-section 1 of
Section 25 of the Act was passed.
The said order kept in mind the income and property of the husband at the time, assuming
that over the course of the next decade, the husband amasses substantial wealth and
properties and the wife moves the Court for a variation of the initial order for enhancement
of the amount so granted or the wife moves the Court for a variation of the initial order
citing high educational or medical expenses of the child. This, prima facie, appears to be a
fair and just scenario, where, it could be argued that the legislature has contemplated and
made appropriate provisions for a bona fide exigency as such.
However, the main concern is that it also opens up an equally strong channel for harassment
and misuse against a party besides the threat of being involved in constant litigation. This
channel is untrammeled and unfettered, so as to say, that even after the passing of a just,
fair, and appropriate order under sub-section 1, the threat of a challenge to that order is not
done away with. The untrammeled nature of sub-section 2 encourages litigation that may
severely fall foul of being characterized as "bona fide" and could often be used as a tool to
harass and arm-twist the other party. Legislative provisions should be watertight enough to
eliminate frivolous revisits to an order passed under sub-section 1 of the Act at the mere
whims and caprices of a party.
II) CONSTITUTIONALITY OF SECTION 25(3)
Section 25(3) of the Act mandates that the court may change or cancel the order for granting
maintenance on three conditions:
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if the wife has not remained chaste,
if the husband has had sexual intercourse with another woman,
if either party has re-married.
In the case of Joseph Shine v Union of India (2018), Adultery was decriminalized by a 5
judge constitutional bench. The significant impact and ripples of this decision have a
staunch, and perhaps, unexamined effect on the provisions of Section 25(3) of the Act. The
said section attempts to curtail the right of a woman in the event she fails to remain chaste,
the Section endows the Courts with the power to vary, modify or rescind any order made
under this Section in the eventuality that the wife has forgone her chastity. One cannot be
deprived of their legal entitlements if any of the party fails to remain chaste, when in most
cases, the marriage is already, for all purposes, met its nadir. Hence, Section 25(3) may be
required to be revisited by the legislature in light of the ambiguities that plague them.
d) DIFFERENCES BETWEEN INTERIM MAINTENANCE AND PERMANENT MAINTENANCE
MAINTENANCE PENDENTE LITE PERMANENT MAINTENANCE
Provides for interim maintenance or support Provides for maintenance or support after the
dissolution of the marriage
Can be applied for during the pendency of a Can be applied for during or after the
divorce case or judicial separation dissolution of the marriage
Conduct of the parties is irrelevant Conduct of the parties is relevant
Maintenance is paid monthly Maintenance is paid either monthly,
periodically or as a lump sum
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The court can grant maintenance at any stage The court can grant maintenance either during
of the proceedings or after the proceedings
No mechanism to secure the amount of The maintenance amount can be secured
maintenance charge created over an immovable property
Only the income of the parties is seen while Both income and assets of the parties is seen
granting maintenance while granting maintenance
60 days’ time limit is set to dispose of an No time limit set
application under Section 24
C. MAINTENANCE TO CHILDREN
26. Custody of children.—In any proceeding under this Act, the court may, from time to
time, pass such interim orders and make such provisions in the decree as it may deem just
and proper with respect to the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and may, after the decree, upon
application by petition for the purpose, make from time to time, all such orders and
provisions with respect to the custody, maintenance and education of such children as
might have been made by such decree or interim orders in case the proceeding for obtaining
such decree were still pending, and the court may also from time to time revoke, suspend
or vary any such orders and provisions previously made:
Provided that the application with respect to the maintenance and education of the minor
children, pending the proceeding for obtaining such decree, shall, as far as possible, be
disposed of within sixty days from the date of service of notice on the respondent.
e) UNDERSTANDING SECTION 26
Section 26 of the HMA, 1955 provides for passing interim orders with respect to the custody,
maintenance, and education of the minor child, consistently with their wishes, wherever
possible. This section states about custody, maintenance, and education of a minor child if any
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proceeding is pending under this act either regarding restitution of conjugal right, dissolution
of marriage, or any other proceeding. Either the trial court or the appellate court has the power
to pass interim maintenance orders.
98th Law Commission Report has given a recommendation that even without a formal
application interim maintenance for the children can be allowed but the irony is that the 98th
Law Commission Report was not fully implemented.
In D.Thimmappa v. R. Nagaveni [AIR 1976 Kar 2015], it was held that “The court is entitled
to grant maintenance not only for the wife but also for children in view of section 26 of the
Hindu Marriage Act. The object behind section 26 of the Hindu Marriage Act is to take care
of the minor children while granting decree under the Hindu Marriage Act.”
f) MAINTENANCE TO CHILDREN U/S 24 OF HMA, 1955
In exceptional cases, the court can order interim maintenance U/s 24 of HMA also for such
children who are dependent on and are living with spouse whose claim has been found justified
by the court. In Jasbir Kaur Sehgal v. District Judge, Dehradun [AIR 1997 SC 3397], the
Supreme Court has held that provisions under Section 24 cannot be given restricted meaning;
the wife’s right to claim maintenance pendente lite would include her own maintenance and
that of her unmarried daughter living with her.
In, S.Sumathi v. Shravanakumar [2017 SCC OnLine Del 11621] it was held by the Madras
High Court that Section 24 and Section 26 of the Hindu Marriage Act perform in different
angles, they do not overlap each other. If the wife wants to claim maintenance for the child,
separately, then she will have to make an application representing the minor child under
Section 26 of the Hindu Marriage Act.
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