This article has been written by Ayush Tiwari, a student of Symbiosis Law School, NOIDA. In this article, the author has written briefly about the types of maintenance under Hindu and Muslim Law.
This article has been published by Shoronya Banerjee.
In India, the right to seek maintenance is a statutory right that cannot be waived by an agreement. Maintenance may be provided through court proceedings (maintenance pendente lite) or after the proceedings are completed (maintenance final), which is permanent maintenance. Wives, children, and parents all have the right to seek maintenance. Under special personal laws, even husbands (who are not able to maintain themselves) are eligible to seek maintenance.
The legal definition of maintenance is the monetary support paid by one ex-spouse to the other following a formal separation or divorce. This financial assistance is for the wife’s or divorced wife’s livelihood, her children, property upkeep, and, in some situations, even to allow her to be appropriately represented in the dispute. Varied laws have different regulations about maintenance. However, Section 125 of the Code of Criminal Procedure, 1973, has a secular rule of maintenance. Hindus’ maintenance rules are found in their personal laws, whereas Muslims’ maintenance regulations are found in the Muslim Personal Law.
Maintenance under Hindu Law
In terms of maintenance, traditional Hindu law has now been codified. Now, there are a number of laws that apply to the maintenance of spouses, children, and their dependents. These laws are under the jurisdiction of the Family Courts, which were established according to the Family Courts Act of 1984. The following are the statutes under which maintenance is provided in Hindu Law:
- The Hindu Marriage Act, 1955
- The Hindu Adoption and Maintenance Act, 1956
- The Code of Criminal Procedure
- Provision for food, clothing, housing, education, and medical attention and treatment in all situations.
- The reasonable expenditures of an event to her marriage in the case of an unmarried daughter.
Types of maintenance
It is also known as maintenance pendente lite, because it is given by the courts while the divorce processes are still ongoing. The goal is to supply the claimant with enough money to cover his or her living expenses as well as the costs of the procedures. The court may grant it if you satisfy the requirements. This type of maintenance is addressed under Section 24 of the Hindu Marriage Act of 1955. Section 125(1) of the CrPC can also be used to make a claim. Such maintenance can be claimed by either spouse.
As the name implies, it relates to the awarding of an amount on a regular basis or on a monthly basis after the proceedings of the court have been concluded. It is given in Section 25 of the Hindu Marriage Act, 1955. It is available to any of the spouses.
Who can claim maintenance
Maintenance can be claimed by:
- Children (legitimate and illegitimate sons, unwedded legitimate and illegitimate daughters, married daughter who is unable to support herself),
- Other dependants.
Criteria for calculating maintenance
According to Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956 the amount of maintenance given to a wife, children, or old or infirm parents is determined by the following factors:
- the parties’ position and status;
- legitimate needs of the claimant;
- if the claimant is living separately, if the separation is warranted;
- the claimant’s property worth and any income received from it, or from the claimant’s own income, or from any other source;
- the number of people who are entitled to maintenance under this Act.
According to Section 23(3) of the aforementioned act the amount of maintenance given to a dependant is determined by the following factors:
- the worth of a deceased person’s estate once all of his debts have been paid;
- the dependant’s provision, if any, under the deceased’s will;
- the degree to which the two are related;
- legitimate needs of the dependant ;
- the dependant’s and the deceased’s past relations;
- the value of the dependant’s property, as well as any income generated from it, his or her earnings, or any other source;
- the number of dependants who are eligible to support under this Act.
Obligation to maintain in marriages
Hindu Marriage Act, 1955
The provisions of Sections 24 and 25 of the Hindu Marriage Act, 1955 deal with the awarding of maintenance. Section 24 lays the path for interim maintenance to be granted. The court can order the payment of maintenance to either the husband or the wife under this section, based on the facts of the case, such as whether the spouse requesting maintenance is employed and if the earnings of the spouse seeking maintenance are sufficient. The amount of support due under Section 24 is determined by the petitioner’s and respondent’s respective incomes. Section 25(1) provides for permanent support for either the husband or wife, depending on the situation. Sections 25(2) and 25(3) allow for the modification of the original maintenance order issued under Section 25(1) owing to a change in circumstances. The distinctive characteristic of these rules is that they allow a husband to demand maintenance from his wife if he is unable to work. In the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy (2017), the plaintiff was Kalyan Dey Chowdhury. The panel of Justices R Banumathi and M M Santanagoudar determined that a man having a monthly salary of 95,527 had to pay up to 20,000 per month to his former wife.
The Trial Court in Rani Sethi v. Sunil Sethi (2011) held that the wife must pay maintenance and ordered her to pay the respondent Rs. 20,000/- and Rs. 10,000 as litigation expenses, as well as providing him with a Zen car for his use and convenience, based on the circumstances and facts of the case.
The Hindu Adoptions and Maintenance Act, 1956
The Hindu Adoption and Maintenance Act of 1956, Section 18(1), grants the woman the right to claim maintenance from her husband for the rest of her life.
Section 18(2) of the same Act says that a married Hindu woman is entitled to maintenance if she lives apart from her husband with his agreement. This Act lays forth the conditions under which a wife can live separate from her husband and receive maintenance:
- if he has deserted her, that is, abandoned her without good cause and without her permission or against her will, or if he has intentionally neglected her;
- if he has treated her with such harshness that she has a reasonable fear that living with her spouse will be hurtful or dangerous to her;
- if he has a particularly severe type of leprosy;
- if he has another living wife;
- if he keeps a concubine in the same residence as his wife or resides with a concubine elsewhere on a regular basis;
- if he converted to another religion after ceasing to be a Hindu;
- if there is any other reason for them to live apart.
Section 18(3) – If a woman becomes chaste or converts to another religion and ceases to be a Hindu, she loses her right to claim a separate home and support. In addition, if one remarries after a divorce, entitlement to maintenance is lost.
The spousal maintenance is determined on the existence of various factors by the court as follows:
- The duration of the marriage.
- There is no other source of income. Before granting maintenance or alimony, the most significant issue to evaluate is whether the spouse requesting maintenance has a separate source of income or is totally reliant on his or her husband’s income.
- Expenses associated with raising children.
- Both parties’ age and health conditions.
- Prior to the separation, both litigating parties standards of living.
- Wife’s and husband’s earnings, as well as other assets.
- Skills, abilities, and educational background of the spouse to support themselves and make a living, etc.
Obligation to maintain children, parents, and dependants
It is one’s responsibility to care for their child and elderly parents.
The Hindu Marriage Act of 1955
Under the HMA only maintenance for children is provided for. Under which, the court may issue orders relating to the custody, support, and education of children from time to time, or repeal any prior such order, according to Section 26. The court respects the preferences of the children while making such decrees.
The Hindu Adoptions and Maintenance Act of 1956
Under the HAMA maintenance of elderly parents as well as children are provided for. According to Section 20, it is the obligation of a Hindu, whether male or female, to support legitimate or illegitimate minor children, elderly parents, or an unmarried major daughter who are unable to support themselves by any means.
Section 21 and Section 22 of the HAMA — It gives some people, known as dependants, new rights. Dependents are relatives of a deceased Hindu who seek support from the deceased’s property held by heirs. All people to whom the deceased’s inheritance devolves are referred to as heirs. Dependants have a claim against the property, not against the heirs personally. It does not occur during the person’s lifetime; dependents are only identified after his or her death.
In the case of Abhilasha v. Prakash it was stated by the Court that “the ability of an unmarried daughter under Section 20 to seek maintenance from her father when she is unable to support herself is absolute, and the right provided to her under Section 20 is a personal law right that she can very effectively enforce against her father.”
In Padmja Sharma v. Ratanlal Sharma, the Court concluded that when a couple divorces and both of them earn well, it is not only the father’s responsibility to provide for the children’s support. In this situation, both the mother and the father are equally entitled to the child’s maintenance.
In the case of G.A. Kalla Maistry v. Kanniammal, it was found that an illegitimate child born of extramarital intercourse can make a valid demand for support under Section 20.
Maintenance under Muslim Law
Maintenance for wife
The notion of maintenance in Muslim personal law is different and stands in stark contrast to the conceptions expressed in other groups’ personal laws in India. Maintenance is referred to as ‘nafqah’ in Muslim law. Food, clothing, and housing are all included. A woman is entitled to maintenance if her marriage is completed according to Muslim law and she has reached the age when she may give conjugal rights to her husband. The Muslim husband is not obligated to pay any amount of maintenance to his wife if the marriage is invalid or irregular unless there were insufficient witnesses. Because of the status of their marriage’s legitimacy and pre-nuptial arrangements, traditional Muslim law provides for maintenance to the woman from the husband. This commitment to maintaining the wife is based on the woman’s income, but it is the husband’s responsibility to do so. However, such a duty is contingent on the woman remaining faithful to her husband and following his reasonable demands. This right of the woman is also subject to the condition that the wife is not obstinate or refuses to live with her husband without justification. Pre-nuptial agreements can be entered into by the separate parties to a marriage in addition to the husband’s responsibility.
The Muslim Women (Protection of Rights on Divorce) Act of 1986 is statutory legislation of Islamic divorce law. It codifies a number of critical maintenance rules. It specifies the amount of support that the wife is entitled to during her iddat period. It also allows a Muslim wife to get her unpaid Mehr or dower, as well as other special possessions, enforced. This statute clearly says that a husband’s obligation to provide for his wife continues until the end of the iddat period. If the woman is unable to support herself after the iddat period has expired, she can seek reasonable and equitable maintenance from her relatives, who will be entitled to receive her property after her death.
Maintenance for a divorced Muslim woman till she remarries
A Muslim husband is obligated to provide adequate and equitable provision for the future of his divorced wife under Section (3)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This also encompasses her maintenance. As a result, under Section 3 (1) (a) of the Act, the husband must provide a fair and reasonable provision for the wife’s support beyond the iddat period.
A divorced Muslim woman who has not remarried and is unable to support oneself after the iddat period can seek maintenance from her relatives who are entitled to her property following her death under Section 4 of this act.
When a Muslim woman does not have the right to maintenance under Muslim law
The instances in which a Muslim woman is not entitled to maintenance are as follows:
- If she hasn’t attained puberty
- When she has sufficiently abandoned her spouse and marital commitments and duties.
- When she married another man
- When she disobeys her husband’s fair demands.
Maintenance for children
Father’s responsibility to maintain children
The father’s responsibility to support his children is established by Muslim law. A father has a responsibility to support the following people:
- Until his son reaches adolescence;
- His daughter, who is still unmarried;
- If his married daughter’s spouse is unable to provide for her;
- If his major son is crippled, insane, or incapable of supporting himself.
According to Muslim law, a father has no obligation to care for his children if they refuse to live with him for no rational reason. A daughter’s right to demand support from her father is restricted; she can only do so in exceptional situations.
Mother’s responsibility to maintain children
Varied schools of Muslim law have different views on a mother’s responsibility to support her children. According to Hanafi Law, if the father is unable to financially support his children, the responsibility for their maintenance is given to the mother. However, according to Shefai Law, if the father is unable to care for his children, the responsibility for their maintenance is shifted to the grandfather, even if the mother is economically sound and capable of maintaining her children.
If a child lives with his mother after the divorce of one’s parents takes place, the mother is entitled to support from the father until her boy reaches maturity and her daughter legally marries.
Maintenance under Section 125 of the CrPC
A magistrate has the right under section 125 to order a person to pay maintenance if that person, although having sufficient resources, neglects or refuses to support the following people:
- A wife who is unable to care for oneself (including divorced and not remarried),
- His or her small child, whether legal or illegitimate, whether married or not unable to support oneself,
- His or her legitimate or illegitimate child (who is not a married daughter) who has reached the age of majority. Such a child is unable to support itself due to a physical or mental defect or damage,
- Married daughter until she reaches the age of majority if her husband is unable to support her.
- His or her father or mother is unable to support themselves.
The requirements of the Code of Criminal Procedure, 1973 include that a person should fulfill the moral commitment to society that he owes to his wife, children, and parents. The obligation is unquestionably lawful and obligatory on the individual. The provisions of the CrPC are secular, innocuous, and all-encompassing in character, and they apply to all groups in India, regardless of religion, caste, or creed. Whatever personal law the individual persons affected are led and regulated by, the requirements of Section 125 of the CrPC are enforceable.
The provisions in Chapter IX of the CrPC aims to protect the ignored wife, parent, and children (minor) from absolute poverty and devastation by providing a simple, quick, and effective limited relief. The CrPC’s Section 125 provides a quick solution for starvation and civil damage. It’s not the same as a husband’s civil liability. It acts as a stand-in for a simple summary method. It gives expression to a man’s basic fundamental obligation to support his wife, children, and elderly parents who are unable to support themselves. The primary concept underpinning the maintenance position under Section 125, CrPC is that no wife, small children, or elderly parents should be devoid of and subject to complete stress of desires in order to be lured to do crimes, etc. A Magistrate of the First Class is authorised to take quick action to avoid poverty under Section 125 of the CrPC.
Controversy regarding CrPC applying to Muslim women
The key topic of contention throughout the years was whether Section 125 applied to a Muslim woman wanting maintenance once her iddat period had ended. The full history of Muslim women’s judicial battles for their entitlement to maintenance under Section 125 has been examined in detail further.
Mohd Ahmed Khan v. Shah Bano
Mohd Ahmed Khan v. Shah Bano (1985) was the beginning of the fight for the right to maintenance. In this case, Shah Bano and Mohd Ahmad Khan decided to get married in Indore in 1932. Mohd Ahmed Khan married another woman who was much younger than him after 14 years of marriage. After marrying his second wife, Ahmed Khan asked Shah Bano and her 5 children to move to a separate residence in 1975. In April 1978, she filed an action for maintenance under Section 125, alleging that she was being denied the Rs 200 in maintenance that her husband had promised her. Shah Bano was separated by her husband in November 1978 after he said “Talaq” three times. In Muslims, such Talaq is irreversible.
In the trial court, the husband argued that Shah Bano was not entitled to support because she was no longer his lawfully married wife. He had previously given her the Mehr amount and taken care of her during her Iddat. The trial court dismissed the husband’s argument and directed him to pay her Rs 25 in maintenance each month. Shah Bano petitioned the Madhya Pradesh High Court to raise the maintenance payment from Rs 25 to Rs 179. The Madhya Pradesh High Court approved her appeal. Mohd. Ahmad Khan went to the Supreme Court, upset by the order.
- Whether a divorced Muslim lady is included in the “WIFE” definition?
- Whether it will take precedence over personal law?
- What is the sum payable on divorce? Whether the meaning of Mehr or dower is not summed payable on divorce?
- Whether there is a problem between Section 125 and Muslim Personal Law when it comes to a Muslim husband’s need to give maintenance for a divorced wife?
The appeal of Mohd Ahmad Khan was dismissed by the Court and ruled that Section 125 is a secular maintenance provision. According to the Apex Court, Section 125(3) of the Code of Criminal Procedure extends to all citizens irrespective of faith, and so Section 125(3) of the Code of Criminal Procedure extends to Muslims without discrimination. The Court went on to say that if there is a dispute between personal law and Section 125, Section 125 takes precedence. It makes it perfectly clear that the provisions of Section 125 and the Muslim Personal Law do not conflict when it comes to the Muslim husband’s responsibility to give maintenance for a divorced wife who is unable to support herself.
In this case, the Apex Court correctly held that because a Muslim husband’s responsibility to his divorced wife is limited to the extent of ‘Iddat,’ although this circumstance does not envisage the rule of law stated in Section 125 of the CrPc., 1973, the husband’s duty to pay maintenance to the wife stretches further than the iddat period if the wife does not have adequate funds to maintain herself. The court went on to say that this provision, according to Muslim law, was very much against humanity or incorrect because a divorced woman was unable to maintain herself. The payment of Mehar by the husband upon divorce is insufficient to relieve him of his obligation to give the wife maintenance.
After a lengthy legal battle, the Supreme Court eventually decided that if a divorced woman is capable of caring for herself, the husbands’ legal obligation ends. However, if the wife is unable to support herself after the Iddat period, she would be entitled to maintenance or alimony under Section 125 of the CrPC.
Post Shah Bano judgment
Muslim fundamentalists were outraged by the decision given in Shah Bano’s case, which they saw as being in direct opposition to their religion. The Muslim Women (Protection of Rights of Divorce) Act 1986 was enacted by the then-Congress administration led by Rajiv Gandhi in order to pacify this segment of society. This law overturned the court’s decision and formalised the Muslim Law on Divorce, which barred a Muslim woman from the ability to seek support from her ex-husband. This act’s Section 3 states:
- A Muslim lady is only allowed to be maintained within her period of iddat.
- If she has children before or after the divorce, she is allowed to get maintained for a term of two years from the date of the children’s birth.
- If her spouse fails to provide for her needs, she is entitled to compensation from the relatives who are supposed to receive her property when she passes away.
It’s ironic that the Act is called the Muslim Woman (Protection of Rights on Divorce) Act because it simultaneously deprived Muslim divorced women of any rights given by the Holy Quran.
Following this Adv. Danial Latifi, Shah Bano’s counsel, filed a case at the Apex Court challenging the Act’s applicability to divorced Muslim women following marriage. As a result, in Danial Latifi v Union of India (2001), the Court decided that Section 125 permits Muslim women seeking maintenance from their husbands for durations further than the Iddat and that any arrangements for the wife’s sustenance beyond the Iddat must be established by the husband during the Iddat. It was also done to give regard to the constitutional validity of Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The legislative provision should be interpreted in such a way that it does not contradict the Indian Constitution’s Articles 14, 15, and 21. This case struck the right balance between personal rights and secular obligations.
Both Hindu and Muslim personal laws feature provisions for maintenance that aim to guarantee that no one is denied a dignified life owing to a lack of financial means. Both faiths acknowledge the responsibility of family members to provide for those in the family who are entitled to it. Judicial declarations have modified and enlarged the Hindu Law of maintenance. However, there have been few revisions or disagreements over the legitimacy of a classical law. The Muslim Law on maintenance has been the topic of several legal disputes that have been resolved by the courts throughout the years. Other family members’ rights to maintenance have been protected in both personal laws on a nearly equal footing. Although much has changed in both throughout the years, the goal remains the same: to protect the rights of family members.
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- Family Law II: Prof. Kusum
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