This article is written by Kanisha Goswami, a law student from Guru Gobind Singh Indraprastha University, Delhi. This article provides an in-depth analysis of the legal maxim pendente lite and its usage under different legislations.
it has been published by Rachit Garg.
Pendente lite means a pending legal suit in court or pending lawsuit. It is a temporary comfort that the court awards to the parties to suit. A hearing is generally scheduled within three or four months of the filing of a complaint. Pendente lite applies when court orders are temporarily in effect while the case or matter is undecided. The main aim of this maxim is to protect the rights of both parties. It is temporary maintenance awarded by the court during the continuation of lawsuits.
In the case of a divorce, a pendente lite rule is often used to help the spouse who has zero earnings or who is unable to sustain while the legal procedure moves ahead. It is a temporary relief to establish financial or parental rights or responsibilities.
Application of pendente lite in case of maintenance in India
Maintenance from the law point of view refers to the financial support given to either of the disputing parties on the basis of the application made by them. The main purpose of maintenance is to help the dependent party manage his/her standard of living who has no other source of income. In India, maintenance entrusts the duty of a male to give support to his wife, parents, and child when they are not capable of maintaining themselves. It is also required to provide the same standard of life to the child as they had before separation. The amount can be compensated either by way of monthly instalments or by lump sum payment. The court will examine the financial stability of the husband and the ground for which the wife wants to separate from her husband, before awarding maintenance to her. The husband can also claim maintenance under Section 24 of the Hindu Marriage Act if he satisfies the court that he is incapable of supporting his living or providing himself with a standard life due to his physical or mental illness. So, maintenance pendente lite is a grant to the needy party.
Statutory provisions with respect to pendente lite
Code of Criminal Procedure, 1973
According to Section 125 of the Code Of Criminal Procedure (CrPC), a magistrate of the first class has the authority to order the person to give a monthly allowance to his spouse, old parents, legitimate or illegitimate child. The application will be registered when the husband denies maintaining his spouse, who is incapable of maintaining herself. If the husband proposes that he will maintain his wife on the condition that she has to live with him, but she refuses. Here the magistrate will consider her ground of refusal and stand by her side. The wife shall not be entitled to demand allowance if she lives in adultery.
Maintenance is awarded to the wife based on the husband’s income or financial capability and other major factors. Interim maintenance will be granted within sixty days from the date of a notice served to the respondent. Maintenance claim for all the dependents should be not less than Rs 500 per month but it has been increased now the magistrate has authority to exercise his power and grant a reasonable amount.
The magistrate may order the father of a minor daughter to facilitate her quality of life until she attains the age of majority. Such allowance should be paid right after the date of order passed by the magistrate. A woman can claim maintenance at the time when she found that her husband has been married to another woman or he deserted her or he treated her with cruelty or when he changed his religion or ceased to be a Hindu.
Mohd. Ahmed Khan v. Shah Bano Begum (1985), was the most controversial maintenance lawsuit and a landmark case in India. Shah Bano Begum and her husband married in 1932 and they had three sons and two daughters out of that wedlock. In 1975, her husband drove her out of their matrimonial home. In 1978, she filed for maintenance under Section 125 of CRPC. She demanded 500 Rs per month as her husband was a professional lawyer and was able to give her a monthly allowance. Her husband denied it and said he was paying 200 Rs to her for the past two years. The Supreme Court delivered the judgment in favour of an aggrieved Muslim woman and said a Muslim woman has an absolute right to maintenance. The Court held Section 125 applies to every person regardless of gender, race, caste, religion, etc. It ruled that maintenance money, similar to alimony, would be paid to Shah Bano.
Hindu Marriage Act, 1955
Section 24 of the Hindu Marriage Act, 1955 entitles the wife as well as husband to claim maintenance pendente lite after showing that he/she doesn’t have any independent source of income. However, the husband has to prove his mental or physical disability to satisfy the court that he is incapable of earning and supporting his living. The court is empowered to award two specific relief, to the party:
- Monthly allowance during the proceedings.
- Expenses at the time of proceedings in respect of which relief is granted. Expenses of proceedings consist of travelling expenses, lawyer’s fees, clerical charges, etc.
The court cannot deny the grant expenses of proceedings and interim maintenance under this provision.
Either wife or husband can get this maintenance for their own or their child also. Maintenance will be granted upon the fact that one party is proving that he/she doesn’t have any source of income for the basic expenses in daily life.
Maintenance pendente lite can also be commenced under Section 36 of the Special Marriage Act, 1954, but only the wife can claim maintenance here. She needs to prove the fact that she is indigent.
In Rani Sethi v. Sunil Sethi(2011), Appellant (husband) filed an application that sought maintenance from his wife as she was running a business of paying guest hotels which means she was independent and financially stable. The husband was thrown out of the house and gave his belongings to him in court. They had a 26-year-old unmarried son and a 24-year-old unmarried daughter. The Court held that the respondent has to pay Rs. 20,000 per month and Rs. 10,000 for litigation expenses and provides a Zen car for their use.
Who can claim maintenance pendente lite
The wife, children, or aged parents who are unable to maintain their livings can claim maintenance under different provisions of the acts, but the husband is entitled to claim under Section 24 of the Hindu Marriage Act only. The court has to be satisfied that the person who is refusing or neglecting to maintain is capable of maintaining the others or has sufficient means.
Wife has the right to claim maintenance from her husband when she is not independent or she is not able to maintain herself or she has children to feed. She cannot claim maintenance if she is living in adultery or if she denies living with her husband without any acceptable reason or if they are mutually agreed on separation.
A child who is legitimate or illegitimate, whether married or not, can claim maintenance but only when they are unable to maintain themselves. Section 26 of the Hindu Marriage Act states that the court will from time to time pass interim orders for the maintenance and education of the minor children. Even if they have attained their majority, they can claim maintenance. The married daughter has no right to claim such maintenance.
In Smt. Jasbir Kaur Sehgal v. District Judge (1997), the wife was awarded maintenance under Section 24 at the rate of Rs. 1500 per month appealed against the judgment which she was granted. The husband was a retired army officer and after that a director in the oil and natural gas commission. The wife filed a case and stated that the husband has not mentioned the true account of assets and income and she said a father must maintain his unmarried daughter which is mentioned under the Hindu Adoption & Maintenance Act, 1956. Here, the Supreme Court held that the wife has a right to claim maintenance which includes her maintenance and her unmarried daughter’s expenses who is living with her under Section 24 of the Hindu Adoption and Maintenance Act.
Section 20 of the Hindu Adoptions and Maintenance Act, states that the person who is aged or infirm or unable to maintain himself or herself can claim maintenance under this Section. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 established a legal obligation for the children and legal heirs to provide maintenance to aged parents. Here, maintenance includes food, residence, clothing, and medical facilities.
In Dr. (Mrs.) Vijaya Manohar Arbat v. Kashi Rao Rajaram Sawai (1987), the appellant who is a medical practitioner at Kalyan is the daughter of the respondent, by his first wife who died in 1948 and then he remarried and he has a son from his second wife. The respondent claimed maintenance from his son and daughter both as he is unable to maintain himself and his wife. The daughter is married and independent. His father demanded maintenance at the rate of Rs. 500 from his daughter. The Court held that it is an obligation of a son as well as a daughter to maintain their parents. Section 125 of the Criminal Procedural Code imposes a duty on son and daughter both and the expression ‘his’ under this Section doesn’t exclude the parent’s right of claiming maintenance from his daughter.
Husband can claim maintenance under Section 24 if he proves his inability to earn or he proves that he has no sufficient means to maintain himself. The burden of proof lies on the husband as he has to satisfy the magistrate that he cannot support his living, either due to some mental or physical disability, thus, he is qualified to award maintenance from his wife.
Maintenance pendente lite and permanent alimony
Maintenance pendente lite
Maintenance pendente lite will be granted under Section 24 of the Hindu Marriage Act, 1955 when the court is satisfied that the claimant is not in a position to maintain himself or herself. It depends on the court, the power to grant maintenance and the cost of the proceedings to the spouse who is unable to maintain his or her living. Proviso under this Section provides that the application for the payment of expenses of proceeding and interim maintenance shall be disposed of within the 60 days from the date on which notice of service is addressed to the party.
In Chitra Lekha v. Ranjit Rai on 30 July, (1977), It has been mentioned that the motive behind this Section is to provide financial aid to indigent party to maintain himself or herself during the pendency of the litigation so that the spouse does not need to suffer because of the financial crises.
Section 25 of HMA, 1955 authorises the court to award a right to either party to claim maintenance and permanent alimony. Such alimony or maintenance will be granted at the time of passing any decree. This provision empowers the court to grant a gross sum, periodical sum, or monthly sum.
In Savitaben Somabhai Bhatiya v. the State Of Gujarat (2005), the Supreme Court held that the marriage is void on the ground of bigamy. Here, the wife is not entitled to maintenance under Hindu Marriage Act.
Landmark case laws where pendente lite was granted
In Gulab Chand v. Sampati Devi on 19 November(1986), the wife applied in the Court and demanded maintenance from her husband. The Court granted maintenance to the wife as she is unable to maintain herself and the Court also granted maintenance to her minor children as they are living with her. It was argued by the respondent that no specific application which states maintenance for children was filed under Section 26. The Court held that they are entitled to grant maintenance to not only the spouse but also to the children who are living with her and dependent upon her. The Court granted Rs. 150 for litigation expenses and Rs. 200 per month as maintenance.
In Sandeep Kumar v. the State of Jharkhand and Another (2003), the application was filed by the petitioner(husband) against the order passed by the family court in Ranchi which was in favour of the wife. He challenged the judgment and said that his wife (2nd respondent) is running a music school and she is independent. It has been disputed by the wife and she said that the music centre is being run by her sister-in-law who she helps and she is not a salaried employee there. The Court ordered maintenance pendente lite to the wife and allowed a litigation cost of Rs. 2,500 and Rs. 1000 per month for maintenance.
In Smt. Kanchan W/O Kamelendra v. Kamalendra Alias Kamalakar (1992), the husband demanded maintenance from his wife as he is unemployed and idle. The wife is an employee and she has to maintain her 10-year-old child. The husband is a mentally and physically well-bodied person. The Court held that Section 24 of the Hindu Marriage Act states that the husband can claim maintenance when he satisfies the court that he is mentally or physically disabled and he can’t earn or support his living. So, pendente lite maintenance was not granted to the husband here as the court states if maintenance is granted to a person who can earn then it will promote idleness to a skilled person.
The object of this maxim is to provide financial support or standard life to the person who is unable to maintain it. When it comes to entitlement and justice, the needy wives are entitled to maintenance under different statutes, but Section 24 of the Hindu Marriage Act gives equal rights to both husband and wife to claim maintenance and other provisions grant the right to the children, wife, and aged parents to claim for maintenance. The court calls upon the parties to file documents like an income tax return, statement of accounts, lease deeds, etc. before granting any sum as maintenance will be granted upon the fact that one party of the proceeding does not have any sufficient source of income. The court can order a monthly amount or lump sum.
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