This article is written by Ishan Arun Mudbidri from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the concept of maintenance in India.
This article has been published by Abanti Bose.
Marriage is considered a ceremony that brings two people together for life. Many say marriage is a pre-destined event. But, personal grudges or lack of satisfaction in a relationship, can make the lives of the two people involved and also their family members difficult. In such a case, god forbid a divorce happens, then there arises a question of financial support to either the husband or wife. This concept is known as maintenance.
Concept of maintenance in India
Sometimes, a marriage can go sideways. The last resort in such a case is divorce. After getting divorced, the wife must take care of herself and if she’s a mother, then her children. Hence, it may become difficult for a single parent to provide for all the basic requirements of life like food, shelter, clothes, education, etc. Hence, as the principles of social justice talk about resources, and equity, it becomes a duty of the man to provide for these basic needs. This concept in a legal sense is called maintenance.
In India, maintenance laws are stringent and applicable to all citizens. The maintenance laws in India, provide support to those parents, wives, and children who are unable to maintain themselves. It is the duty of the man to provide for maintenance.
So why is maintenance given? The Indian Judiciary has answered this question in various judgments. In the case of Badshah v Urmila Badshah Godse and Anr (2013), the Supreme Court held that the laws regarding the concept of maintenance are established, to project and empower the destitute, achieve social justice, and maintain the dignity of the individual.
The Indian Constitution has in its Article 15(3) given the states the power to make laws protecting the rights and interests of women and children. Hence in India, there are separate laws as well as personal laws for people belonging to their respective religions, that protect the rights of women, children, and parents for claiming maintenance.
Section 25 of Hindu Marriage Act, 1955
Perhaps the most important provision for the right of maintenance, under the Hindu Law is mentioned in Section 25 of the Hindu Marriage Act, 1955. Before analyzing this provision, let us first look at what it says:
This Section talks about permanent alimony and maintenance stating that:
- Any court that has jurisdiction under this Act shall on an application made by either the wife or the husband for grant of maintenance, order the non-applicant to pay for the maintenance and support of the applicant, either a yearly or monthly sum for a term not exceeding the life of the applicant, with regards to the non-applicant’s income and property, and any such payment may also be secured by charging the non-applicant’s immovable property.
- If the court is satisfied that there is a change in the current situation after passing the order, then the court may modify, or rescind the order at the instance of either party.
- If the court is satisfied that the party in whose name the order is placed has re-married, or if the wife has not remained chaste, or if the husband has had sexual intercourse with any another woman, then the court at the instance of the party may modify, rescind the order.
Types of maintenance
Now, the Hindu Marriage Act, mentions two types of maintenance, which are as follows:
Section 24 of the Act, talks about interim maintenance or maintenance pendente lite. It states that if a situation arises where the wife or the husband does not have sufficient income to support his or her daily and necessary expenses, the court may on an application grant the non-applicant to pay to the applicant the expenses required monthly, during the proceedings, taking into consideration the income of both the parties. The amount granted in such a case is not fixed and entirely depends on the court to decide. Thus, interim maintenance is given during the course of the court proceedings.
Permanent alimony and maintenance are given under Section 25 of the Act, as mentioned above. This type of maintenance is given at the time of passing an order for divorce.
Is there any difference between alimony and maintenance?
Section 25 of the Hindu Marriage Act, mentions the terms alimony and maintenance. So are they the same?
Alimony is a one-time payment made to either the husband or wife whereas maintenance can be monthly, annually or instalments fixed by the court. Further, alimony is mostly referred to when divorce is done by mutual consent. Maintenance is given in cases where one party has filed for divorce and the other party has contested it in court.
Can a wife claim maintenance without getting divorced?
After reading the above provisions, you must be wondering whether a divorced wife is the only one who can claim maintenance? This is not the case. Even before the divorce, if the wife has separated from her husband, she can claim maintenance. However, the only criteria for which the wife is not entitled to claim maintenance is as follows:
- If the wife is living with another man, she cannot claim maintenance under Section 25 of the Hindu Marriage Act
- If there isn’t any genuine reason for the separation between the wife and the husband, maintenance cannot be claimed.
- When the husband and wife are living separately by mutual consent, they cannot claim for maintenance.
In the case of Dr. Kulbhushan Kumar v Raj Kumari & Anr (1970), it was held by the Court that 25% of the current salary of the husband should be kept for maintenance.
In the case of Umarani v D. Vivekannandan, (2000), the parties filed for divorce under Section 13 of the Hindu Marriage Act. The petitioner applied for interim alimony and other expenses under Section 24 of the Act. She argued that her husband(respondent) deserted her and her child, and was capable enough to pay for her maintenance. A question arose, whether a written application is needed under Section 25 to claim alimony and maintenance. Hence, the Court granted monthly maintenance to the petitioner and her child and held that a written application is not necessary under Section 25.
In the case of Patel Dharamshi Premji v Bhai Sakar Kanji (1950), both parties were married to each other and had a son. Soon, they separated, and the respondent(Bhai Sakar Kanji) went away to stay with her father. The issue was whether either of the parties can apply for maintenance after passing the order for divorce. The Court allowed the appeal and held that either the husband or wife can file for permanent alimony after passing the order for divorce under Section 25 of the Act. The Court also changed the order of the Lower Appellate Court and increased the amount of maintenance to be given to the son by the appellant.
Need for reforms
The sole motive of Section 25 of the Hindu Marriage Act is to ensure that even after divorce, both the husband and the wife are looked after. Hence, clause 1 of the said Section serves this purpose, and grants maintenance to the needy, be it the husband or the wife. However, clauses 2 and 3 might seem fair but need to be looked at properly.
Is Section 25(2) absolutely fair?
Clause 2 of Section 25 grants the privilege to the Court to change or cancel the order for maintenance if either of the parties have changed their position. Now, this Section, as far as it sounds, is based on an assumption. Assuming that the parties will have in their circumstances, the Court shall modify or cancel the order in favour of either party. Suppose if, both the parents have a minor child who is currently in the custody of the mother, and in the near future it is assumed by the court that the husband will be capable enough to provide for both the wife and the child. In such a case, if the wife wants a modification in the initial order for maintenance, and wants an increase in the amount due to the education of the child, or personal needs, then such an order can be verified or accepted. However, many times it may so happen that the order might be asked to modify or cancel, due to vested interests. There’s no doubt that the court in such a case will ask for proof and only accept a valid change in circumstance. But in this process, so much time will be lost and the party who is providing for maintenance shall lose a lot of finance in spending the cost of court proceedings. Further, if the order for granting maintenance has already been passed under clause 1, is there a need to revisit it even after knowing the fact that the parties might file for a change in circumstances on a number of occasions? This can turn into a legal weapon for the parties, to harass each other. Hence, this clause needs stricter provisions, to ensure that the order is not getting modified for vested reasons.
The Constitutionality factor of Section 25(3)
Section 25(3) also needs a revisit. This clause states that the court may change or cancel the order for granting maintenance on three conditions:
- if the wife has not remained chaste,
- if the husband has had sexual intercourse with another woman,
- if either party has re-married.
Hence, doesn’t this sound like distinguishing between financial survival and sexual intimacy? Should a woman remain without sexual autonomy without her own will? If so, then this will make the other party(husband) gain control over the woman and the maintenance proceedings. I am not saying this will happen, but it might. This Section is gender-neutral, because any party, husband or wife, will not enter into sexual relationships after divorce, as a result of which they might lose their maintenance. However, most women in India do not have financial autonomy, which makes it difficult for them to maintain themselves. In the case of Sachindra Nath Biswas v Smt. Banamala Biswas & Anr (1960) the Court observed that having sexual intercourse by a woman or a man with people apart from their husband or wife is a sin of ethics and morality. Now, this might seem that this clause does not violate Article 14 and Article 15 of the Indian Constitution which talk about equality without any discrimination, as they are gender-neutral. However, my above explanation on this might weave a different story.
Further, Article 21 of the Constitution talks about the right to life and personal liberty. Hence, isn’t having sex with a person of their own choice, personal liberty? A divorced woman who already faces many challenges, can’t be burdened with the issue of not granting maintenance just because she had sex with a person apart from her husband. Just as the Constitution decriminalized the practise of adultery, on the grounds that it is violating the Constitutional provisions in the case of Joseph Shine v Union of India (2018), doesn’t this Section need a relook?
Supreme Court’s recent guidelines regarding maintenance
In the case of Rajnesh v Neha (2020), a Family Court had ordered Rajnesh (appellant) to pay interim maintenance to Neha (respondent). The appellant then approached the Supreme Court and contended that he was not in the position to pay for maintenance. The SC while delivering the judgment, laid down certain guidelines to regulate maintenance payments in matrimonial cases. Let us summarize them:
- In India, there are various laws governing the right of maintenance. Hence, the SC observed that every maintenance proceeding shall be separately read, resulting in the multiplicity of proceedings. The person requesting maintenance shall mention whether he/she has been granted maintenance before in another proceeding.
- Further, the maintenance shall be granted from the date the application has been filed.
- Next, the court gave its observations regarding the quantum of payment. It stated that the details of the parties like, status, income, needs and wants, liabilities, job, age, etc. should be considered.
- The court also added that the duration of the marriage should be considered.
All maintenance laws in India have different provisions. Section 25 of the Hindu Marriage Act is one such provision. India is a rapidly growing country. People are also evolving and trying to come out of the 50s 60s mindset. In today’s world, both men and women have equal legal status. However, there are still certain legal provisions that might have gone unnoticed, and need rejig. These include clauses 2 and 3 of Section 25 of the Hindu Marriage Act 1955.
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