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Concept of Maintenance in Hindu Marriage Act, 1955

June 13, 2019
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Image source- Legal Dictionary

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:

  1. 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.
  2. Standard of living of both the litigating parties before separation.
  3. Expenses required to maintain children.
  4. Requirement to maintain the same standard of living of the spouse as it was before the separation.
  5. 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-

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:

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.

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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.

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.

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-:

  1. Economic position and status of the litigating parties.
  2. Reasonable wants and needs of the parties.
  3. 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:

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:

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:

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:

Critical Analysis

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.

Conclusion

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.

 

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