Marriage

This article was written by Ishan Arun Mudbidri and further updated by Debapriya Biswas. This article deals with permanent alimony and maintenance under Section 25 of the Hindu Marriage Act, 1955, focusing on its essentials, constitutionality and need. The article also details the objective of maintenance and why it is given while exploring the application of Section 25 through several case laws. In the end, it deals with the recent guidelines established by the judiciary regarding maintenance and some FAQs to clarify any further questions. 

Introduction 

Marriage is considered a ceremony that brings two people together for life. Many even believe marriage to be a pre-destined event mandated by the heavens. However, in reality, such is not the case and people can fall out of love or become dissatisfied with their marriage with time. This can make the lives of the two people involved and their family members difficult. In such cases, if the spouses decide to separate, they can legally dissolve their marriage by divorce in front of any competent court of law. 

However, just like marriage, divorce has certain rights and obligations that bind the parties involved despite the separation. One such right is the right to claim maintenance, which was initially only claimed by the wife since, historically, women were the ones financially dependent on their husbands. Nevertheless, the law has changed with the times and now maintenance can be claimed by both spouses under certain provisions. In this article, we will study in detail the need and essentials of maintenance, specifically under Section 25 of the Hindu Marriage Act, 1955 (hereafter referred to as the HMA).

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Meaning of maintenance 

Sometimes, a marriage can go sideways. The last resort in such a case is either judicial separation or divorce. In both situations, the spouses start living in separate quarters, and the custody of the children is given to either of them, most often the mother if the children are especially young. It may become difficult for a single parent to provide for all the basic requirements of life, like food, shelter, clothes, education, etc., for themselves as well as the kids, especially in cases of women who were previously housewives. Hence, as the principles of social justice talk about resources and equity, it becomes the duty of the husband to provide for these basic needs. This concept, in legal terms, is called maintenance.

In India, maintenance laws are stringent and applicable to all citizens. The maintenance laws in India provide support to parents, wives, and children who are unable to maintain themselves or are financially dependent on someone else. As per Section 3(b) of the Hindu Adoption and Maintenance Act, 1956, the term ‘maintenance’ includes all the basic needs of an individual, such as food, clothing, shelter, education and necessary medical expenses. In the case of an unmarried daughter as a dependent, the expenses of her marriage may also be considered maintenance as long as it is within reasonable bounds. 

Thus, in simpler terms, maintenance can be defined as an allowance required by law to be made by an individual to the people who are financially dependent on them. These dependents can be their spouse (current or divorced), children and parents. 

Objective of maintenance

The question that now arises is what is the objective of giving maintenance. The Indian Judiciary has answered this question in various judicial precedents. In the case of Badshah vs. Sou. Urmila Badshah Godse and Anr (2013), the Supreme Court held that the laws regarding maintenance are established to protect and empower the destitute, achieve social justice, and maintain the dignity of the individual. 

In simple words, maintenance is established to protect those completely dependent on another for their finances and basic needs, such as children or housewives. Separation or negligence from the one providing for their finances could lead to dire consequences and injustice. Thus, to avoid this, the right to claim maintenance was established in law, especially for those who are unable to support themselves. 

The legal provisions for maintenance align with the ideology behind Article 15(3) of the Indian Constitution. This constitutional article empowers the state to make laws protecting the rights and interests of women and children. Hence in India, there are several legislations as well as personal laws (for people belonging to their respective religions) that protect the rights of women, children, and parents for claiming maintenance.

Maintenance provisions are often regarded as laws made for women, which is because in most cases, the duty of maintenance falls upon men as the father/husband/son. However, with changing times, this is also changing since women have started to become independent as well and have started earning on their own rather than merely staying as housewives dependent on their husband’s income. 

Thus, maintenance laws are slowly becoming gender-neutral in their application, where both spouses can claim maintenance if they are unable to support themselves financially. Even under the Indian Constitution, Article 39(a) states that both men and women equally have the right to an adequate means of livelihood, and the state must direct its policies to secure the same. 

On the other hand, Article 39(f) empowers the state to direct policies to ensure that children are given opportunities and facilities that help them grow in a healthy manner with dignity and care. This includes protection from financial abuse and negligence, which maintenance laws can help.

Types of maintenance

There are two types of maintenance under the Indian laws: 

Interim maintenance

As already established before, maintenance is usually claimed by dependents who are unable to support themselves without financial assistance. In such circumstances, it is unfair to expect that the claimant would be able to support the expenses of the lawsuit, or even support themselves during the litigation process. Thus, during these times, the court may grant the claimant temporary or interim maintenance for the duration of the lawsuit.

In simpler terms, interim maintenance is a type of maintenance that is given for the duration of legal proceedings to the claimant who may not have sufficient income to support his or her daily necessary expenses. It is temporary and is usually calculated based on the income of both parties. The amount granted in such maintenance is not fixed and entirely depends on the court’s decision. 

Interim maintenance is paid by the financially independent party or spouse to the other one who is dependent and unable to support themselves. It will also cover the legal expenses and other expenses that might occur during the court proceedings, including the basic needs of the dependent party. Once the court proceedings end, the interim maintenance will also end. This is why this type of maintenance is also known as the ‘pendente lite’ maintenance, which directly translates into ‘during litigation’ maintenance. 

Permanent maintenance

Once the court proceedings end, the claimant can file an application for permanent maintenance instead. As the term suggests, permanent maintenance is the type of maintenance that is paid for the financial support of dependents for their whole lives. In other terms, this maintenance is paid throughout the lives of the dependents unless they either remarry (for the divorced wife or widowed daughter-in-law), reach the age of majority (for children), get married to someone financially stable (disabled children) or after their death.

This type of maintenance is also known as ‘alimony’ when given to the ex-wife at the end of the divorce proceedings. It can be paid either as a lump sum or in instalments, and the amount of the payment is calculated based on the income and property of both parties. 

Maintenance provisions in India 

The Preamble of the Indian Constitution declares India to be a secular country where equal status and dignity of every citizen is promoted and protected by the state. Based on this ideology, India has enacted different legislations for each personal law, including the divorce and maintenance provisions. 

Due to different legislations based on different personal laws, maintenance in India is dealt with through several legal provisions. Some of these legislations and provisions are given below:

As discussed earlier, maintenance in India can be claimed by one’s wife, children, parents, as well as their widowed daughter-in-law. The abovementioned provisions cover the maintenance laws for all the dependants an individual may find themselves financially responsible for.

However, the thing that is most noticeable in the aforementioned provisions is that they are more women-centric, and the mention of the husband being eligible for maintenance is almost nonexistent. Only the Hindu Marriage Act, 1955 and the Parsi Marriage and Divorce Act, 1936 have maintenance provisions that can be interpreted in a gender-neutral manner for both spouses. 

Section 25 of Hindu Marriage Act, 1955

The most important provision for the right of maintenance, specifically for the husband and wife under Hindu law, is Section 25 of the Hindu Marriage Act, 1955. Before analysing this provision, let us first look at what it states.

This Section talks about permanent alimony and maintenance, stating that:

  • After either spouse files an application under Section 25, any court that has jurisdiction under this Act has the power to order the respondent to pay for the maintenance in support of the applicant or claimant. This maintenance or alimony can be paid either in a yearly or monthly sum for a term not exceeding the life of the applicant. The amount of maintenance to be paid shall be fixed based on the respondent’s income and property.
  • If the court is satisfied that there is a change in the current situation after passing the order, then the court may modify or rescind the order at the instance of either party.
  • If the court is satisfied that the claimant, in whose name the order of maintenance was made, has re-married, or if the wife has not remained chaste, or if the husband has had sexual intercourse with any other woman, then the court, at the instance of the party may modify or rescind the order.

Based on the aforesaid clauses, it can be concluded that either of the spouses can file an application for alimony or maintenance under Section 25 to the same court where the original jurisdiction of their previous matrimonial case lies. This matrimonial case can be a divorce, judicial separation, restitution of conjugal rights or even the declaration of the marriage as void. 

Section 25 mostly focuses on the alimony and maintenance that is to be given after the matrimonial case is decreed and not on the maintenance that was given during the litigation or even before the case was filed. 

Alimony, in this context, refers to the one-time payment made to either the husband or wife after the divorce or judicial separation. It is given in lump sum and is not taxable at the hands of the recipient. On the other hand, maintenance is a recurring alimony that is given to the dependent spouse monthly, annually, or in instalments fixed by the court or the parties’ mutual decision. 

Furthermore, alimony is mostly awarded when the divorce between the parties is with mutual consent, while maintenance is given in cases where one party has filed for divorce and the other party has contested it in court. Section 25 deals with both maintenance and alimony after the divorce (or any other matrimonial case) has already been decided and the spouses are living separately after such an order. 

Essentials of Section 25

While Section 25 of HMA has only three subsections, it has several elements to it that need to be fulfilled before one can be eligible for alimony or permanent maintenance under this provision. Some of these essential elements are given as follows: 

Matrimonial case needs to be decreed

In simpler terms, the matrimonial case (divorce, judicial separation, etc) needs to be decided and decreed before alimony or maintenance under Section 25 can be sought. This is because subsection (1) of this Section explicitly states that permanent maintenance or alimony can only be claimed at the time of passing of the decree or any time subsequent to. Any maintenance given before the matrimonial case is decided will be dealt with under Section 24 of the HMA instead. 

As seen in the case of Patel Dharamshi Premji vs, Bai Sakar Kanji (1967), in which both parties were married to each other and had a son. Soon, they separated, and the respondent (Bhai Sakar Kanji) went away to stay with her father. The issue was whether either of the parties could apply for maintenance after passing the order for divorce. The court allowed the appeal and held that either the husband or wife could file for permanent alimony after passing the order for divorce under Section 25 of the Act. The court also changed the order of the lower appellate court and increased the amount of maintenance to be given to the son by the appellant.

Filing separate application

To claim alimony or maintenance under Section 25, a separate application, specifically under this Section, has to be filed after the matrimonial case is decided. Such an application is to be filed under the same court where the original jurisdiction of the matrimonial case lies.

Furthermore, as per the case of Umarani vs. D. Vivekannandan, (2000), the application under Section 25 can be filed both in written and oral form to avoid excessive litigation expenses, especially for the dependents who are unable to support themselves. 

In this case, the parties filed for divorce under Section 13 of the Hindu Marriage Act. The petitioner applied for interim maintenance and other expenses under Section 24 of the Act. She argued that her husband, the respondent, deserted her and her child despite being capable enough to pay for the maintenance. The question that arose in front of the Madras High Court was whether a written application is needed under Section 25 to claim alimony and maintenance. The court held that a written application is not necessary under Section 25 and granted monthly maintenance to the petitioner and her child.

Fixation of maintenance

Unlike what one may think, neither Section 24 nor Section 25 of HMA gives a formula or calculation for the amount of maintenance one can receive in the respective provisions. In fact, no legal provisions provide any such calculations for alimony or maintenance, mostly because it can depend on case to case. 

Since the income, property, living expenses and even circumstances of each couple and the case may vary, the quantum of maintenance and its fixation is often left at the discretion of the court. However, even though it is at the discretion of the court, there are some factors that can greatly affect the amount of maintenance awarded under Section 25, some of which are given below: 

Income and property of the parties

Unlike Section 24, which mostly only focuses on the income of the spouses, Section 25 accounts for both the income and property (both movable and immovable) of both parties. This is done so as to calculate which spouse may need the maintenance and to what degree while also observing if the other spouse has the means to provide for the maintenance or not. 

For instance, A and B are getting divorced and A demands maintenance from B, citing that A’s income is more than B’s. However, if B has several properties or land in their name that has much more value than A’s income, the court may adjust the maintenance accordingly. This is because properties are also assets that can generate income. 

Capacity of income

The court focuses on the capacity of income of the spouses and the potential income that they can earn in their field. For instance, while the wife may have a medical degree, if she has not worked in the field for several years and has only worked as a housewife for the past few years, then her income capacity would be counted as none. 

Similarly, if the spouse is working in a high-paying field with the potential of earning crores but their salary is not that high, that does not mean the maintenance would be calculated based on how high the earning capacity of the field is. The court cannot impose an order of maintenance that exceeds the spouses’ current capacity. The potential of the spouses’ income is different from their current capacity. Calculating maintenance based on how much they could earn potentially would be both unfair and unreasonable to the husband. 

Thus, only based on the current income and its capacity would the quantum of maintenance or alimony be fixed. If there is any change in income, another application can be filed for such change. 

Custody of children 

One of the biggest deciding factors in the amount of alimony or maintenance one may get is the custody of children. The one who has custody of the children would most likely receive maintenance. Furthermore, the number of children would also play a significant role in the amount along with the fact of how the custody arrangement looks. 

If the child stays full-time with the father, then the father would get maintenance. However, if the custody is shared half and half, then the calculation would be completely different. 

Dependents on the spouse 

Other than the children, the court also accounts for the number of other dependent members on the parties who they may have to financially support. For example, during the divorce, it is found that B earns much less than A. However, A has two aged parents and one disabled sibling. In such a case, the court would also consider the dependents on A and the financial strain that takes on A to provide for a fair and reasonable fixation of maintenance. 

Another example would be if the spouse providing the maintenance has remarried and has another family to support. In the case of Dr. Kulbhushan Kumar vs. Raj Kumari & Anr (1970), it was held by the court that a minimum of 25% of the current salary of the husband should be kept for maintenance for the estranged wife. The court believed that a quarter of the net income would be just and reasonable for maintenance in case the husband got remarried and had to tend to a new family. The same would be applicable to the counterpart spouse, where if the wife remarried, then her priority would be to take care of her family, and the maintenance paid to her divorced husband would decrease accordingly. 

Status of parties 

Another factor that the court accounts for during the fixation of maintenance is the status of both the spouses after and before divorce. If the spouses were upper class during marriage and one of the spouses’ status fell to the middle class after the divorce, the court would favour the spouse with the lower status to receive maintenance. This is to provide an equal standard of living for the dependent spouse while not compromising the income of the earning spouse completely. 

Conduct of the parties 

Under subsection (1) of this Section, it is mentioned that the conduct of the parties would also affect the fixation of maintenance. This conduct may include the behaviour of the spouse during the marriage or even during the litigation process. 

For instance, if A earns more than B but B is found guilty of abusing A during the course of the marriage, then the court would be more obliged to reduce the maintenance given to B. The same is the case if the dependent spouse was found committing adultery during their marriage. 

Subsection (3) of Section 25 deals with other conducts of the party that may result in a decrease or even cancellation of maintenance and alimony. These conducts include: 

  • If the dependent spouse or the spouse in whose favour maintenance was made has remarried,
  • If the wife did not remain chaste,
  • If the husband had an affair or sexual encounter outside the wedlock.

In any of the aforesaid cases, the parties can approach the court to modify or rescind the previous maintenance order. However, the parties themselves need to raise such objections or else it would not be applicable.

Residuary considerations 

Section 25 also mentions ‘other circumstances’ that the court may consider when calculating the amount of maintenance to be awarded. These residuary considerations, which are not included or covered in the other categories, usually differ from case-to-case circumstances that can help the court to arrive at a fair, just and reasonable fixation of maintenance. 

Period of fixation 

As mentioned earlier, while alimony is a one-time payment, maintenance is recurring. The fixation of maintenance under Section 25 is periodical, which can either be monthly, quarterly (once in three months) or annually (once in twelve months). It can also be paid in a gross sum/lump sum, but that would be legally referred to as alimony rather than maintenance. 

The period of fixation is usually decided upon the fact that the spouse would be able to pay maintenance altogether. If payment of the gross sum is not possible, the period is decided at the convenience of both parties. 

The court, if deemed necessary, can make the periodical amount of maintenance a secured order to ensure that there is no lapse in payment. A secure order is a type of order which has the property of the respondent attached to it for the better enforcement of the decree. 

By passing a secure order, the court can make sure that the respondent doesn’t neglect their legal obligation (especially if they have a history of it) and that, in case of default, the maintenance would be paid out of the property attached. 

Duration of maintenance

The biggest question that often arises in the context of maintenance is how long one is supposed to pay for such an allowance. Unlike Section 24 of HMA, where the maintenance is supposed to last only until the duration of the litigation, Section 25 deals with permanent maintenance that is supposed to last for the whole life of the dependent spouse. 

In simpler terms, if the claimant does not commit adultery or remarry after the divorce, then they would receive maintenance for till the end of their life. Obviously, the maintenance would not go beyond the life of the claimant and their legal heir cannot claim the same. 

Even alimony is calculated for the approximate average age of the claimant and the subsequent amount they may need to secure their living status for the rest of their life. 

Variations and alterations of maintenance

Subsection (2) of Section 25 talks about the modifications that can be made to the order of maintenance if there are any significant changes in circumstances. 

As discussed earlier, circumstances for people may change with changing times, and that can make the maintenance order outdated and often unfair. For instance, A was ordered to pay heavy maintenance to his wife upon the divorce since he had a very well-paying job. However, his company downsized due to the pandemic and that led to him being let go. In such a scenario, if his unemployment continues for a longer while, he can file an application to get his maintenance order altered. 

Such alterations can also be made if the income of the respondent had increased, in which case the court would adjust the new maintenance order proportionate to the new income. In a nutshell, the change can be negative or positive in nature. 

If the claimant has remarried, then the respondent can also get the maintenance order rescinded. 

Need for reforms

The sole motive of Section 25 of the Hindu Marriage Act is to ensure that even after divorce, both the husband and the wife are looked after financially. Hence, subsection (1) of the said Section serves this purpose, and grants maintenance to the one needing financial assistance, be it the husband or the wife. However, subsections (2) and (3) might seem fair at first glance but may not be so upon a closer look. 

In the case of subsection (2), it covers the option of moderation and alteration of the maintenance amount depending on the change of circumstances. This can both be a boon and a curse since it can be used to modify the maintenance order for a genuine reason, such as the loss of employment or a pay cut in the salary. On the other hand, it can also be used to harass the other party and somehow adjust the maintenance in their favour. It is a double-edged sword that stands as a necessary evil and can only be resolved at the court proceedings.

Meanwhile, subsection (3) has its problems since it deals with the modification or even cancellation of maintenance in case the spouse remarries or has other sexual relations. Let us take a closer to understand the same in detail.

Constitutionality of Section 25(3) of Hindu Marriage Act

Section 25(3) of HMA needs a revisit. This subsection states that the court may change or cancel the order for granting maintenance on three conditions:

  • if the wife has not remained chaste,
  • if the husband has had sexual intercourse with another woman, 
  • if either party has re-married.

This subsection erases the line between sexual intimacy and financial survival, which are two very different concepts with their own circumstances. Should a woman remain without sexual autonomy without her own will, especially after the divorce is finalised? If so, then this will make the other party (husband) gain unjust control and advantage over the woman and the maintenance proceedings.

Furthermore, since this Section is gender-neutral, neither the husband nor the wife can get into sexual relationships after divorce or judicial separation for fear that they might lose their maintenance. This subsection is not clear on exactly when such relations are not permitted and can affect the maintenance. In addition, since the language used in the subsection indicates modifications or cancellations after the maintenance order is made, it can be interpreted that it is applicable even after the divorce is settled. 

Most women in India still like financial independence and autonomy, which makes it difficult for them to maintain themselves. In the case of Sachindra Nath Biswas vs. Smt. Banamala Biswas & Anr (1960), the court observed that having sexual intercourse by a woman or a man with people apart from their husband or wife is a sin of ethics and morality. Now, it may seem that this subsection does not violate Article 14 and Article 15 of the Indian Constitution, which talk about equality without any discrimination since they are gender-neutral. But if we consider the unjust restriction of sexual intimacy or potential relations with other partners after divorce, that would not be the case.

Moreover, Article 21 of the Constitution talks about the right to life and personal liberty. Hence, shouldn’t personal liberty include the right to choose one’s own partner, sexual or romantic? Shouldn’t sexual intimacy be part of the same right? A divorced woman who already faces many challenges can’t be burdened with the issue of not granting maintenance just because she had sex with a person apart from her husband after the divorce or even during the lengthy divorce proceedings that may stretch up to years. Just as the Constitution decriminalised the practice of adultery on the grounds that it violated the Constitutional provisions in the case of Joseph Shine vs. Union of India (2018), doesn’t this Section need a relook as well?

Maintenance for the second wife

Another issue that needs to be looked into is how the second wife is not usually entitled to maintenance under this Section or even the Hindu Marriage Act at all. It is both unfair and unreasonable, especially if the second wife was not made aware of the man’s previous marriage. There are many discrepancies and contradictions in the precedents regarding this, with the most popular being the holding of the Bombay High Court in the case of Mangala Bhivaji Lad vs. Dhondiba Rambhau Aher (2010). In this case, the court observed that only the legally recognised wife under Hindu law would be entitled to maintenance under Section 25 of the Hindu Marriage Act or Section 18(1) of the Hindu Adoption and Maintenance Act. Thus, the second wife would not be qualified for the same.

On the other hand, cases like Smt. Narinder Pal Kaur Chawla vs. Shri Manjeet Singh Chawla (2007) and Badshah vs. Sou. Urmila Badshah Godse & Anr (2013) held the maintenance in favour of the second wife on the basis that the husband was at fault for not disclosing the knowledge of his first marriage and actively defrauding the second wife. In cases like Rameshchandra Rampratapji Daga vs. Rameshwari Rameshchandra Daga (2004), the Supreme Court had also established that while second marriage under Hindu law is illegal, they are not ‘immoral’ and hence, the second wife who is unable to support herself financially should not be denied maintenance solely on this ground.

It wasn’t until in the case of Loyola Selva Kumar vs. M. Sharon Nisha (2023) that the Madras High Court established that the second wife and family can seek maintenance under Section 125 of the CrPC even if not recognised legally as a wife. The Bombay High Court later reiterated this view in the case of X vs. the State of Maharashtra (2024), where it was held that the husband, who knowingly married the second wife without legally dissolving the first marriage, was not to be allowed to deny maintenance to the second wife and the child from her. The court emphasised that the husband should not be allowed to take advantage of his wrongs like this.

Keeping the same ideology in mind, Section 25 of the HMA should also be reformed to accommodate void marriages such as the second marriage to prevent such defrauding from occurring. 

Recent guidelines by the Supreme Court

The Supreme Court of India laid down certain guidelines to regulate maintenance payments in matrimonial cases while delivering the judgement in the case of Rajnesh vs. Neha (2020). In this case, a Family Court had ordered Rajnesh, the appellant, to pay interim maintenance to the respondent, Neha. Aggrieved, the appellant then approached the Supreme Court and contended that he was not in a position to pay for maintenance. Summarised below are the observations and holding of the Supreme Court In the present case: 

  • In India, there are various legal provisions governing the right of maintenance. Hence, the Supreme Court observed that every maintenance proceeding shall be separately read, resulting in the multiplicity of proceedings. To avoid this, the person filing the claim for maintenance shall mention whether he/she has been granted maintenance before in another proceeding.
  • Furthermore, the maintenance shall be granted from the date the application has been filed and not earlier than that.
  • As for the quantum payment for the maintenance, the Supreme Court stated that the details of the parties like status, income, needs and wants, liabilities, job, age, etc., should be considered. Section 25(1) of the HMA mentions the list of the factors essential for the fixation of maintenance or alimony. 
  • As per the court, the duration of the marriage should also be considered. This is to avoid defrauding the husband in case the wife marries for money and aims to get high alimony or maintenance in divorce. The longer the duration of the marriage, the lesser the chance of such fraud will be. 

Difference between Section 24 and Section 25 of Hindu Marriage Act

While both Sections 24 and 25 cover the concept of maintenance, there are some vital differences between the two that one should know before filing an application under either of them. 

These differences between the sections are summarised below:

S.NoBasis of DifferentiationSection 24 of HMASection 25 of HMA
1Nature of maintenanceSection 24 covers maintenance pendente lite and any expenses incurred during the litigation process by the financially dependent spouse. It is an interim order.Section 25 covers alimony and permanent maintenance, which refers to the type of maintenance that is to be provided till the end of the dependent spouse’s life. 
2Period of maintenanceThe period of maintenance under this Section is only till the pendency of the court proceedings.Under this Section, the maintenance is to be provided for the rest of the life of the dependent spouse unless it is rescinded or paid in a gross sum.
3When the application is to be filedAny time during the litigation proceedings of the matrimonial case.At the end of the matrimonial case or any time subsequent to it.
4Calculation of maintenanceOnly the income of both spouses is considered when calculating the maintenance to be paid under this Section.The income, as well as any existing property under the name of the spouses, are to be accounted for while calculating the quantum of maintenance under this Section.
5Factors affecting fixation of maintenanceAs per Section 24, only two factors affect the fixation of maintenance: the income of both parties and whether the claimant is able to support themselves or the proceedings financially.Under Section 25, many factors affect the fixation of maintenance, such as the income and property of the parties, who has custody of the children, the capacity of income of the parties, the status of the parties, their conduct, etc. 
6Period of fixationMaintenance under this Section is to be paid monthly during the court proceedings.Alimony is to be paid in a gross sum. Meanwhile, maintenance can be paid periodically through monthly, quarterly or annual payments. 
7Alteration or cancellation Section 24 does not cover any scope of alteration or cancellation of the maintenance order given under this provision.Subsections (2) and (3) cover the scope of modifications and even cancellations of the maintenance order in case either of the spouses remarries, have sexual relations with another person or have significantly different circumstances affecting their financial capacity.

There are even significant similarities in both provisions, both being gender-neutral in their application and are applicable to Hindu spouses only. Both Sections also allow for periodical payment of maintenance, such as payment in monthly, quarterly or annual instalments. The period and frequency of the payment would be decided upon the convenience of the parties or the order of the court. Another similarity that is often overlooked is how the income of the spouses is accounted for in the calculation of maintenance under both sections. However, for Section 25, there are some additional factors to be considered as well, which differ heavily from Section 24. 

Relevant case laws 

Shailja vs. Khobbanna (2017)

In this case, a special leave petition was filed in the Supreme Court by the wife for the enhancement of the amount of maintenance. Initially, the Family Court had ordered Rs 15,000 to be paid monthly to the wife as maintenance in addition to the Rs 10,000 that is paid for the son. However, the High Court of Karnataka had reduced the amount to Rs 6000 each upon appeal since it was observed that the wife was working as a teacher.

The Supreme Court, upon reviewing all the facts and the incomes of both spouses, held that decreasing the quantum of maintenance solely on the fact that the wife is working is both unjust and unreasonable. Her employment should not be punished with less maintenance, especially given how women already face great injustice during their employment due to gender disparity as well as discrimination. Thus, with the aforesaid rationale, the Court restored the previous maintenance amount, citing that working women also have the right to maintenance.

Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy (2017)

In the aforesaid case, the parties have been entangled in several litigations, which initially started with an application under Section 9 of the Hindu Marriage Act, 1955 by the husband (appellant), which was followed by the wife (respondent) filing a case under Sections 498A and 406 of the Indian Penal Code, 1860 against the husband and his parents. The wife stayed at her matrimonial house for a while, claiming maintenance under Section 125 of CrPC for her son and herself. In 2003, the wife filed for judicial separation under Section 10 of HMA as well as permanent maintenance under Section 25 of the Act at the same time. At the time, she was awarded maintenance amounting to Rs 2,500 per month and Rs 2,000 per month to her (then) minor son.

In 2007, the husband filed for divorce under Section 13(1)(ia) of the HMA, along with which the wife filed for enhancement of maintenance under Section 25(2). This resulted in the quantum of maintenance being increased to Rs 8,000 per month for herself. In 2010, an application was made for further amendment under Section 25(2), based on which the court adjusted the amount of maintenance to Rs 6,000 for both wife and her son.

Aggrieved, the wife appealed against the amendment in 2015, where the High Court decreed the maintenance amount to be Rs 16,000 monthly to both the wife as well as her minor son. The husband filed for a revision against this decree, resulting in the court enhancing the amount further to 23,000. Aggrieved by the revised decree, the husband filed an appeal in the Supreme Court, contending that the enhanced maintenance was unreasonable.

The Supreme Court observed that the husband had received an increase in his salary and now earned a respectable amount of about Rs 95,000 per month, while the wife only earned 30,000 per month and had custody of their son. The son, however, had attained the age of majority and was (at the time) pursuing college. Furthermore, the husband had also remarried and was asking the same to be considered.

Thus, in view of the above facts and observations, the Supreme Court held that the wife is entitled to the enhancement of maintenance if there is an increase in the salary of the husband. However, since their child is no longer a minor and the husband has married again, the court adjusted the amount to Rs 20,000 instead of restoring it back completely to the previously decreed amount.

Jaspreet Kaur and Others Revisionists vs. State Of Uttarakhand and Anr (2019)

In this case, the wife (the appellant) had initially filed for maintenance for her two children under Section 125 of CrPC after being kicked out of her matrimonial home along with her children in 2014. The application of maintenance under Section 125 was partially allowed in 2019. However, the Family Court of Dehradun rejected the aforesaid application later on upon revision filed by the appellant on the ground that the wife was already awarded maintenance under Section 25 of the HMA. 

The Supreme Court held the judgement in favour of the appellant, stating that the maintenance awarded under Section 25 of HMA to the wife is a completely separate matter from the maintenance awarded under Section 125 of the CrPC for the children. In view of the aforesaid rationale, the court overturned the previous decree and allowed the revision filed by the appellant in front of the family court.

Conclusion

India is a diverse nation with a variety of religions spread across its planes. As a secular state, each individual is governed by the personal civil law of their religion, each of which has their own divorce and maintenance laws. Section 25 of the Hindu Marriage Act, 1955, is one such provision under the Hindu law that governs the law for alimony and permanent maintenance. The benefit of this provision is that it applies to both husband and wife. 

This gender-neutrality of the Section has led to many progressive precedents along with the people of India evolving and trying to come out of their 50s and 60s mindset. In today’s world, both men and women have equal legal status. Provisions like Section 25 helped a lot in bridging the gap for both genders. However, there is still scope for reformation under the provision, which includes subsections (2) and (3) of Section 25 of the Hindu Marriage Act 1955.

Frequently Asked Questions (FAQs)

What are the legal provisions under which maintenance can be claimed?

In India, there are separate legal legislations for each personal law. Since each personal law has its provisions for divorce and maintenance, many varied legal provisions for maintenance are followed and applicable in India. The legal provisions that specifically deal with maintenance are given below:

  • Sections 125 to 128 of the Code of Criminal Procedure, 1973, which is now directly replaced by Sections 144 to 148 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
  • Sections 24 and 25 of HMA.
  • Sections 18 to 20 of the Hindu Adoption and Maintenance Act, 1956.
  • The Muslim Women (Protection of Rights on Divorce) Act, 1986.
  • Sections 39 and 40 of the Parsi Marriage and Divorce Act.
  • Sections 36 and 37 of the Special Marriage Act.
  • Sections 36 and 37 of the Divorce Act, 1869.
  • Section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 
  • Section 20 (1) of the Protection of Women from Domestic Violence Act, 2005.

Why is maintenance given?

Maintenance is a type of legal allowance that is paid to the claimant who is unable to financially support themselves and is dependent on the respondent for their basic needs such as food, shelter, clothing, education as well as medical expenses. It is provided to prevent financial injustice and abuse from happening to dependents or family members in the event of separation. 

What is the difference between maintenance and alimony?

Alimony is a one-time payment made to the claimant after a divorce or judicial separation. Maintenance, on the other hand, is a recurring type of alimony that is paid in instalments. Furthermore, alimony is only paid to the spouse, while maintenance can be paid to any dependent of an individual, whether it be their child, spouse or parents. 

In addition to this, alimony is usually awarded in cases where divorce between the parties has happened with mutual consent, while maintenance is given when one of the parties files for the application in the court. 

Can the husband claim maintenance?

Under Sections 24 and 25 of HMA, the husband can also claim maintenance. It was also backed by judicial precedents like Nivya V.M vs. Shivaprasad N.K (2014) and Rani Sethi vs. Sunil Sethi (2011), where it was held that if the husband does not have an independent income, it is unfair to deprive him of the right to maintenance that the wife would have received if she was in the same financial position. 

Which court has the jurisdiction to hear the application filed under Section 25?

The court with original jurisdiction of the matrimonial case that entertained and decreed the said case would also have the jurisdiction to hear the application filed under Section 25 of HMA. In simple words, the court where the case of divorce, judicial separation, etc., was heard and decreed, the same court would have the jurisdiction for the subsequent application of maintenance.

Can a wife claim maintenance without getting divorced?

Yes, a wife can claim maintenance without getting divorced from the husband. Even before the divorce, if the wife has separated from her husband, she can claim maintenance. However, the only criteria for which the wife is not entitled to claim maintenance are as follows:

  • If the wife is living with another man, she cannot claim maintenance under Section 25 of the Hindu Marriage Act,
  • If the reason for separation is unclear or found to be disingenuous, then maintenance might not be awarded as such by the court.
  • When the husband and wife are living separately by mutual consent, they cannot claim for maintenance.

References

  • Dr. Paras Diwan, Family Law, Allahabad Law Agency, 2022.
  • K. Desai, Indian Law of Marriage & Divorce, LexisNexis, Edition 12th, Vol 1.
  • M. Seervai, Constitutional Law of India, Universal Law Publishing Co., Reprint 2013.
  • M. Bakshi, The Constitution of India, Universal Law Publishing Co., 2014.
  • M.P. Jain, Indian Constitutional Law, Wadhwa and Company, Nagpur, Fifth Edition 2008. 

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