This article is written by Pooja Kapur, a 5th year law student from Amity Law School, Noida. She has discussed the concept of maintenance along with the provisions and case laws.
Maintenance as a concept when considered from the point of view of law refers to the kind of financial assistance given to either of the litigating parties on an application made by them and only through an order passed by the court having jurisdiction to do so and upon execution of decree in this regard.
It is often referred to as “alimony” or a kind of monetary support from the spouse i.e. spousal assistance. Maintenance on the other hand, is an act of bearing the financial expenses or reducing the burden of the spouse whose burden increases and economical position gets materially changed on the decree of divorce.
Further, the main purpose of granting maintenance is to maintain the standard of living of the spouse equivalent to that of the other spouse and in accordance with status prior to the separation. It is granted during the proceeding of decree or after the decree of divorce and ceases to exist on the death or remarriage of the alimony holder. The spousal maintenance is determined on the existence of various factors by the court as follows:
- No separate source of income. The most important factor to be considered before granting maintenance or alimony is to check whether the spouse seeking maintenance has any separate source of income or not or is solely dependant on the income of his/her spouse.
- Standard of living of both the litigating parties before separation.
- Expenses required to maintain children.
- Requirement to maintain the same standard of living of the spouse as it was before the separation.
- Skills, capabilities and educational background of the spouse to earn his/her living and maintain themselves etc.
Types Of Maintenance
On consideration of factors by the competent court, maintenance can be granted on the following basis-
- Temporary Maintenance- It is also referred to as maintenance pendente lite which is awarded by the courts during the continuation of proceedings of the divorce. The purpose is to meet the necessary and immediate expenses of the spouse who is a party to the proceedings. On satisfaction, the court may grant it. Section 24 of Hindu Marriage Act,1955 deals with this kind of maintenance. Further can be claimed under Section 125(1) of CrPC.
- Permanent Maintenance- As the term suggests, it refers to the granting of a sum on a periodical basis or on a continued basis once the proceedings have been disposed of. Section 25 of Hindu Marriage Act, 1955. Either of a spouse is entitled to receive it.
Prior Status of Right of Maintenance
Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 initially dealt with the provisions of granting maintenance. The Hindu Marriage Act was formed in the year 1955 and applies specifically on individuals who are Hindus including Sikh, Jains and Buddhists and persons who come under the ambit of Section 2 of Hindu Marriage Act, 1955. Also children whose either of a parent is a Hindu, Sikh, Jains or Buddhist and are brought up under the same religion will also be considered as a Hindu and will be entitled to maintenance. Under old Hindu law, a Hindu male was under an obligation to maintain the following persons:
- His wife,
- Unmarried daughter,
- Legitimate sons,
- Illegitimate sons, and
- Aged parents.
Thus, only hindus (the applicability of which could be checked from Section 2 of Hindu Marriage Act, 1955) are covered under this Act.
From the ancient times women have been kept at a disadvantaged position which not only weakens their stake in the society but also leads to an unequal treatment with them. The Code of Criminal procedure came into force in the year 1973 and according to Section 125 of this code, maintenance is granted to wives, children and parents irrespective of any religion or personal laws. Hence, it has provided for a better status to women by granting rights in a dignified manner.
Obligation To Maintain Wife, Children And Parents In India
The statutory provisions laid down under various acts and Cr.P.C makes it mandatory to maintain the dependant spouse, children and spouse in India.
Hindu Marriage Act, 1955
Obligation To Maintain Wife
Section 24 and Section 25 of the said act deals with the provisions of allowing pendente lite and permanent maintenance respectively. In Dr. Kulbhushan v/s Raj Kumari and Anr, the court while deciding the amount of maintenance observed that it is determined based on the facts of each case and declared that if the court enhances or moulds the amount of maintenance, then such a decision would be justified. It was further held in this case that it would be fair to provide wife with 25% of husband’s net salary as maintenance.
- Under Section 24 of the act if the court considers fit and is satisfied that either wife or husband does not have an independent income, then it can order the respondent to pay the maintenance to the petitioner in accordance with the provisions of this Section. Thus, the claimant can be a husband as well.
- Further, according to the provisions of Section 25 of the Act, which deals with the granting of alimony on a permanent basis, the court may on the application made by the respondent , order to provide for maintenance either in the form of periodical payments or a gross sum to be provided. Thus, in this case as well the respondent can either be a wife or a husband.
- The purpose of interpreting the provision in this way is to avoid the discrimination because both husband and wife are equal in the eyes of law.
Delhi High Court recently in the case of Rani Sethi v/s Sunil Sethi, ordered wife( respondent) to pay maintenance to her husband (petitioner) of Rs 20,000 and Rs.10,000 as litigation expenses. Further a Zen car was ordered to be given for the use of the petitioner.
- Wife on being aggrieved by the same order approached the High Court, where the scope of Section 24 of HMA was construed and it was held that the purpose of this Section to provide support to the suppose who is incapable of earning his/her independent income.
- Further it was held that the term “support” shall not be construed in a narrow sense and thus, it includes not only bare subsistence. It aims to provide a similar status as that of the respondent spouse. Thus, considering all the facts and circumstances, the appeal of wife was dismissed.
- Though Section of the above said Act provides sufficient right to both husband and wife to move an application before the court for seeking maintenance, if they do not have an independent source of income and have been solely dependant upon his/her spouse. But this Section cannot be invoked in such a manner as to where husband though capable of earning does not continue to do so intentionally for the sole purpose of depending on his wife. In such a case husband cannot move an application for seeking maintenance. This was held by the Madhya Pradesh High Court in the case of Yashpal Singh Thakur vs Smt. Anjana Rajput where husband incapacitated himself by stopping to run an auto rickshaw. Hence, where a person intentionally incapacitates himself he loses the opportunity to file an application for seeking maintenance.
Obligation To Maintain Children And Parents
Section 26 of the same act deals with the custody, maintenance and education of minor children. Court may, as it considers necessary and deems fit, from time to time pass interim orders in this regard and at the same time has the power to revoke, suspend or vary such an order. Obligation to maintain lies on both father and mother of the child or on either of the parents as ordered by the court. Section 20 of Hindu Adoption and Maintenance Act, 1956 lays down an obligation on a hindu male or female to maintain their legitimate/ illegitimate minor children and aged/ infirm parents, the amount of which is to be determined by the competent court on the following factors-:
- Economic position and status of the litigating parties.
- Reasonable wants and needs of the parties.
- Dependence of the parties, etc.
In Sukhjinder singh saini v/s Harvinder kaur, certain observations were made by the Delhi High Court while dealing with the issue of deciding the maintenance to be granted for a child:
- Both the parents have a legal, social and a moral obligation to maintain their children and provide them with the best standard of living, depending on the financial footing of the parties.
- They are equally obligated to provide means for best education.
- It was further held that even if the child is living with the spouse whose income is sufficient enough to maintain the child cannot be taken as a good ground by the other spouse of not maintaining the child or taking care of the child’s welfare.
Maintenance Under Section 125 Cr.P.C
According to this Section magistrate of first class has the power to order the person to provide monthly allowance to:
- His parents,
- Wife, or
- To his legitimate or illegitimate minor children who are unable to maintain themselves
- Legitimate or illegitimate major child not being a married daughter, who are unable to maintain themselves due to any physical injury or abnormality
- Married daughter till she attains her majority if her husband is unable to maintain her
- His or her father or mother if they are unable to maintain themselves,whoever neglects or refuses to do so.
Magistrate may issue warrants for levying the amount due, in case of non-compliance with the order. Making of an application is mandatory to the court for levying such amount within a period of one year from the date on which the amount was due, otherwise warrant cannot be issued.
Where in case a wife is living separately without any sufficient reason or is living in adultery or they have separated through a mutual consent, then in such cases she is not entitled to receive allowance.
Landmark Judgement Of Section 125 Cr.P.C
Mohd Ahmed Khan V. Shah Bano Begum– This has been a landmark case in the history which clearly dealt with the clarifying the scope of Section 125 and which proved to be a milestone specifically in the struggle for the rights of muslim women. Facts of the case are as follows:
- In the year 1975 , at the age of 62 years , with 5 children, shah bano was disowned by her husband.
- Her husband Mohd Ahmed refused to grant her maintenance on the ground that there was no specific provision in the muslim law for providing maintenance to muslim divorced women.
- She had no separate source of income and at this age it was impossible for her to maintain herself and to take care of the welfare of her children at the same time. Thus she filed a suit claiming maintenance.
Main issue that raised before the court was whether Section 125 applies to muslim women or not and whether uniform civil code applies to individuals of all religions or not. Supreme court on the following reasons rejected Mohd Ahmed’s plea of not granting alimony:
- The court held that without any discrimination, Section 125(3) applies to muslim women too.
- The concept of muslim husband’s responsibility towards his wife only till the iddat period cannot suffice to contemplate the rule laid down in Section 125 CrPC.
- Merely a triple talaq cannot take away the right of divorced muslim women from seeking maintenance if she is not in a condition to maintain herself and her children because of no independent source of income.
This case was criticised by various muslim communities on the ground that it was against the provisions of muslim law and Quran. Thus, in the year 1986 the congress government decided to enact Muslim Women ( Protection of rights of Divorce) Act, 1986, the purpose of which was to provide protection and safeguard the rights of divorced muslim women. The other objective of enacting this Act was due to the backward status of muslim women in comparison to other women in the country. Thus, it was the need of the hour to bring them at par in status with the women of other religion. This act aimed at providing adequate protection and safeguard of rights and reasonable amount of maintenance to the wife and her children. This act was enacted by Rajiv Gandhi.
From the plethora of judgements it can be concluded that Section 125 of Cr.P.C provides for stringent means to comply with the provisions of maintenance. It not only breaks the barrier of religion which acts as a hurdle in providing justice to people but also provides for equal protection of law and justice for all irrespective of religion followed by an individual. Religion cannot overcome the principles of “justice” and “equity”. The concept of maintenance is interpreted in different ways under different statutory provisions yet the purpose of it is to grant support. Thus, Code of Criminal Procedure through Section 125 aims at providing individuals following different religions to seek alimony through a uniform way.