This Article is written by Parshav Gandhi, a 3rd-year student, Indore Institute of Law. This article discusses the Maintenance of Wife under Hindu and Muslim law.

Introduction

The main reason behind the concept of Maintenance is to see that if one of the spouses is not independent financially so the other spouse help him/her in order to make the living of another person possible. In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. So that she/he can maintain their life as when they lived together.

Generally, Maintenance is the amount which the husband pays to his wife after divorce or the amount which the family member of the husband pays to the widow of their son. Maintenance includes basic necessities like:

  1. Food, Shelter, Clothing etc.
  2. The necessary thinks and comfort which a rational man expected to get.

Meaning and Concept of Maintenance

The maintenance is given by the person on whom the other person depends on. The amount of the maintenance is dependant on the earning of the person and the necessities which other person required and the necessities which a rational man needs to live a normal life.

According to the Hindu Adoption and Maintenance Act, the person who is entitled to get maintenance are wife, widow daughter in law, child, aged parents etc. and According to Muslim Law, the person who is entitled to get maintenance are, wife, young children, parents, another person within the prohibited degrees.   

Types of Maintenance

  1. Interim Maintenance
  2. Permanent Maintenance

Interim Maintenance

This maintenance is paid from the date of filing of the petition to the date of the dismissal of the suit. Its main purpose is to meet the immediate needs of the petitioner. It is the amount which is paid by the person who is financially independent and upon whom the other person is financially dependent. This amount includes the expenses of the proceeding as well as other expenses during the course of the proceeding.

Permanent maintenance

It is the amount which is been paid by one party to another after the judicial proceeding i.e. result is the dissolution of marriage or judicial separation.

Maintenance under Hindu Law  

In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. So that she/he can maintain their life as when they lived together. The maintenance is given by the person on whom the other person depends on. The amount to the maintenance is dependant on the earning of the person and the necessities which other person required and the necessities which a rational man needs to live a normal life.

Section 24 of the Hindu Marriage Act talks about the maintenance that how a wife/husband can claim Interim maintenance. Only under the Hindu Marriage Act and Parsi Marriage Act both husband and wife can claim for the interim maintenance. In other statutes, only the wife can claim the Interim maintenance. Under Section 36 of the Divorce Act, the wife may file the petition for Interim maintenance. Section 25 of the Hindu Marriage Act deals with the concept of Permanent Maintenance as the amount which a person has to pay to another person as maintenance in gross sum or periodically or monthly as per the orders of the court.

Maintenance of Wife under Section 18 of Hindu Adoption and Maintenance Act, 1956.

As per Section 18(1) of Hindu Adoption and Maintenance Act, 1956 the wife is entitled to get the maintenance amount from her husband until she dies or he dies. the Hindu wife is also entitled to take get maintenance even if she lives separately from her husband under following grounds:

  1. When the husband is liable for desertion.
  2. When the husband is liable for cruelty.
  3. When the husband is suffering from leprosy.
  4. The husband is liable for bigamy.
  5. The husband converts his religion without the consent of the wife.

Maintenance of Hindu wife under Section 125 of the Code of Criminal Procedure

As per Section 125 of the Code of Criminal Procedure, only a woman either take divorce or given divorce by her husband and who hasn’t remarried any other man is entitled to get maintenance. A married woman who refuses to live with her husband because her husband is liable for desertion or liable for cruelty or is suffering from leprosy or liable for bigamy or convert his religion without the consent of the wife can claim a special allowance under this Act.  

In D.Velusamy vs D.Patchaiammal

The wife filed a suit against husband demanding the maintenance as per Section 125 of the Code of Criminal Procedure. Here the court provides the Maintenance to the wife.

Under Section 125 of the Code of Criminal Procedure the person has to maintain:

  1. His Wife, who unable to maintain herself.
  2. His Legitimate or illegitimate minor child whether married or not married, who unable to maintain itself.
  3. His father and mother, who unable to maintain themselves.

In Gomaji vs Smt. Yashoda

In this case, the petitioner is the Husband and the Respondent is the wife. The Husband filed a case under Section 13 of the Hindu Marriage Act seeking a divorce from his wife. And the Respondent filed an application under Section 125 of Code of Criminal Procedure claiming Maintenance. Here the court accepts the divorce and passed the order against Husband to give monthly Maintenance to his wife.

Maintenance as an Award to Wife under Section 23(2) of the Hindu Adoption and Maintenance Act

Section 23 of the Hindu Adoption and Maintenance Act defines the people who can claim the maintenance and how the maintenance can be calculated.  The analysing factors of the amount are:

  1. Status and Position of the parties.
  2. The basic necessity of the claimant.
  3. The basic comfort which a reasonable man needs.
  4. The value of the property whether movable and immovable, of the Respondent.
  5. The income of the respondent.
  6. The number of members who depended financially on the respondent.
  7. The degree of relationship between the two.
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Maintenance under Muslim Law

As per theories of Muslim Law, they consider the man to be superior to the woman. They truly believed that the woman is not at all capable to maintain themselves as they are directly dependant on their husbands.  In Muslim Law, the relation of husband and wife is considered as the most important one. That relation exists only if the wife is faithful and obey her orders. In Muslim law, the married women have the right to get maintenance from her husband even if she refuses to access to her husband and cannot be consummated, but if she is too young and lives with her mother and father she is not entitled to get maintenance.

Muslim law provides the right to wife to get maintenance if she lives separately due to the cruel nature of her husband and non-payment of dower. But she cannot claim maintenance during the widowhood or iddat.

Prior the divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of mehr only. But the judgement given in the Shah Bano case enables divorced women to get maintenance from her husband on reasonable ground and from the family of the husband after his death.

Maintenance of Muslim Women under Section 125 of the code of criminal procedure, 1973

The provision of under the code of criminal procedure secular in nature. They also deal with the matter related to maintenance by a Muslim married woman. If a Muslim woman demands the maintenance under Section 125 of the code of criminal procedure, she can be entitled to get the maintenance only if she is not remarried.

In Mohd. Ahmed Khan v. Shah Bano Begum Case

In this case, the husband gives divorce to his wife, she was 68 years old and has five children. Under Muslim law,  divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of mehr only. the Shah Bano Begum files a case and claims the maintenance under the Section 125 of the Code of Criminal Procedure where she gets successful and gets the maintenance from her husband on reasonable ground and from the family of the husband after his death.

After this historical judgment of Shah Bano Begum, the Muslim Community started criticizing the court of law as according to them the judgment directly affect the provision of their personal law. According to their law, divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of mehr only.

But the government on that time under the pressure of the Muslim community bring a law which directly overrules the judgment. The government enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986. By the virtue of this Act, the old traditional law which was followed by the Muslim community gets the authority. In this Act, divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of meher only. Finally, all the case which are pending in court related to Muslim women and their right to Maintenance under Section 125 of Code of Criminal Procedure were disposed off.

In Danial Latifi & Anr vs Union Of India

In this case. The husband filed a petition against the order of the High Court of Madhya Pradesh, that he has to pay maintenance to his wife as per Section 125 of the Code of Criminal Procedure. He submits the fact that he paid the meher amount as well as the maintenance to his wife until her iddat period. Now as per his Muslim law he is not liable to pay any amount as a maintenance to his wife. The Supreme Court gives the judgment in husbands favour as their case comes under The Muslim Women (Protection of Rights on Divorce) Act, 1986 and the order of the High Court of Madhya Pradesh were as per the Section 125 of the Code of Criminal Procedure so the order of the High Court is not valid.

Similarly in Rahamathulla vs Piyare

The Muslim woman files a case against her Husband claiming Maintenance under Section 125 of Code of Criminal Procedure. The Court rejected the petition on the similar ground that she is entitled to get the Maintenance as per The Muslim Women (Protection of Rights on Divorce) Act, 1986.  

Maintenance of Wife under Hindu and Muslim Law: Comparison

A Hindu woman enjoys more rights than Muslim women. As per Section 18(1) of Hindu Adoption and Maintenance Act, 1956 the Hindu wife is entitled to get the maintenance amount from her husband until she dies or he dies. As per Section 125 of the Code of Criminal Procedure, only a Hindu Married women either take divorce or given divorce by her husband and who hasn’t remarried any other man is entitled to get maintenance. A married woman who refuses to live with her husband because her husband is liable for desertion or liable for cruelty or is suffering from leprosy or liable for bigamy or convert his religion without the consent of the wife can claim a special allowance under this Act.  

But, under Muslim Law, the divorced women does not the right to claim maintenance after the period of iddat and gets the amount of meher only and after The Muslim Women (Protection of Rights on Divorce) Act, 1986 came in picture the Muslim Woman cannot claim maintenance under Section 125 of Code of Criminal Procedure.

Conclusion

According to the Hindu Adoption and Maintenance Act, the person who is entitled to get maintenance are wife, widow daughter in law, child, aged parents etc. and According to Muslim Law, the person who is entitled to get maintenance are, wife, young children, parents, another person within the prohibited degrees.   

Under Muslim law, Prior the divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of mehr only. But the judgement was given in the Shah Bano from the family of the husband after his death case enables divorced women to get maintenance from her husband on reasonable ground and

But after the judgement of the case, The government enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986. In this Act, divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of meher only. Finally, all the case which are pending in court related to Muslim women and their right to Maintenance under Section 125 of Code of Criminal Procedure were disposed of.

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