maintenance
Image source - http://bit.ly/2XiXjLO

This article is written by Himank Dewan a 5th-year student at Bharati Vidyapeeth Deemed to be University, Pune. This article talks about maintenance which is provided to the parents, wife, and children, it also talks about the amendments which have been made in the different states regarding maintenance to parents, wife, and children.

Introduction

Not every living person has a happy beginning, some children never know their fathers after their birth and have to adapt to the world without the help of a father figure. Some women are not living a happy married life, or are subjected to cruelty, or are not even provided basic amenities by their husbands, and the parents who have looked after their children’s happiness all their life are left abandoned by their children, with no one to look after them or no way to look after themselves.

Under this topic, I will be discussing maintenance and its provision and the amendments which have been made by different states.

Statutory Provision

Hindu Adoption and Maintenance Act, 1956 – Under Section 3(b) of the Act maintenance includes an arrangement for nourishment, clothing, residence, teaching and medical attendance and treatment.

Criminal Procedure Code, 1973Section 125 of the Act empowers wives, children and parents to claim maintenance from their husband, father or son who has adequate means, either neglect or ignores to maintain them. Upon such consideration, a law officer of the first class may, upon proof of such neglect or rejection, order such individual to offer a monthly leeway for the support of his spouse or such child, father or mother, at such monthly rate in that capacity Magistrate thinks fit.

Who can claim maintenance?

The following individual can claim maintenance under Section 125 of Crpc from husband, father or son or daughter:

  • Spouse of the husband who is unfit to look after herself.
  • A legitimate or an ill-conceived kid who is below the age of 18 years and who is unfit to look after themselves.
  • A legitimate or an illegitimate kid who has attained the age of 18 years however for reasons unknown is unfit to look after itself due to their psychological or physical deformity, or until they can maintain themselves. Daughters who are married are barred from this clause.
  • Father or mother of an individual who is unable to look after themselves.

Others who can claim maintenance and from whom?

  • Daughter is liable to pay maintenance to parents: It is simply not the son that is required to look after his parents, the same and equal obligation lies on his sister or on the parent’s daughter. The primary condition for them claiming maintenance is that they are unfit to care for themselves or are unfit to maintain themselves. The crucial factor while considering the maintenance claim of parents from the daughter for the court is that they should be pleased by the knowledge that the daughter has appropriate means of her own and is independent of her husband.
  • An adoptive mother can claim maintenance: In the case of Baban Alias Madhav Dagadu Dange v. Parvatibai Dagadu Dange, the High Court of Bombay observed that according to the definition given under the General Clause Act, the term “Father” includes both biological as well as an adoptive father. Whereas the General Clause Act has not expressed the term “Mother”, that does not mean that the term should be taken in a restrictive sense. Now if the term “father” and “son” is given a wider interpretation, then there is no valid reason that the term “mother” shouldn’t be given the same wider interpretation so as to include “adoptive mother as well”.
  • Stepmother can claim maintenance: In the case of Kirtikant D. Vadodaria v. State of Gujarat and Ors., the Hon’ble Supreme Court held that “a childless stepmother may guarantee support from her step-son provided she is a widow or her mate, if living, is unequipped of supporting and looking after her”. However, the Hon’ble High Court of Karnataka in Ulleppa v. Gangabai provided its view to the judgment pronounced by the Hon’ble Supreme Court in the case. The court observed that if it is proved that the stepmother has alternative modes of supporting herself she may be unable to get support from her stepsons. 

Factors for Claiming Maintenance

Conditions required for claiming maintenance is firm on various factors:

  • No separate source of income- When the wife, child or the parent don’t have another source of income, then they can claim maintenance from their spouse, father or child. But the most critical issue to consider before conceding divorce settlement is to ensure whether the spouse claiming maintenance has any other source of income or is absolutely subject to the income of the individual. 
  • Expenditures compulsory to maintain the offspring or parents who are unfit to care for themselves.
  • To maintain a specific way of living which was given to the wife, before the separation. 
  • Providing maintenance to the spouse for developing abilities, capacities and providing educational background so that he/she can acquire a living and maintain themselves.

Who cannot claim maintenance

Maintenance cannot be asserted by the following people:

  • A spouse, child or parents who are able to look after themselves cannot claim maintenance.
  • A spouse who has been separated and has remarried.
  • In the event that the partner is living in infidelity or with no ample reason refuses to live with her mate or has been mutually separated with her mate.
https://lawsikho.com/course/diploma-entrepreneurship-administration-business-laws
              Click Above

Types of Maintenance

Maintenance is of following types-

  • Temporary Maintenance – It has been seen that maintenance continuing under section 125 takes a long period of time to deliver relief to the distressed party. That is the reason the court has given an express arrangement wherein the motivation behind Temporary Maintenance to meet the vital and immediate expense of the distressed party. This is further provided under Section 24 of the Hindu Marriage Act, 1955.
  • Permanent Maintenance – This is the last maintenance that is given after the procedure has been disposed of. In this, the maintenance can be allowed on a periodical basis or on a one-time basis or on a continuous basis.

Amendments made by different states

Under Section 125 of the Criminal Procedure Code, the following amendments have been made by different states:

  • Madhya Pradesh– In its submission to the State of Madhya Pradesh, 
    1. The words “five hundred rupees” under subsection 1 has been substituted with “three thousand rupees”.
  • Maharashtra- In its application to State of Maharashtra, 
    1. The word “not exceeding five hundred rupees” under sub-section (1) has been substituted with “not exceeding fifteen hundred rupees”.
    2. The accompanying proviso has been embedded before the existing proviso, “Given that, the Magistrate on an application or admission being made, upheld by an affidavit by the individual who has applied for the maintenance under this subsection, for instalment of interim maintenance, on being fulfilled that there is a first sight ground for making such order, may coordinate the person against whom the application for upkeep has been made, to pay a reasonable amount by way of interim support to the candidate, pending the final disposal of the support application:
      • Given further that, such request for compensation of interim maintenance may, in an appropriate case, likewise made by the Magistrate ex-parte, pending administration of notice of all the admission, subject, nonetheless, to the condition that such a request shall be capable to be changed or even void after the respondent is heard in the issue:
      • Given also that, subject to the upper limit laid down under this subsection, the sum of interim maintenance shall, as far as practicable, be at 30% of the monthly income of the defendant”.
    3. The following provision has been embedded after subsection 2,“(2-A) Despite anything generally contained in sub-section (1) and (2), where an application is made by the spouse under provision (a) of sub-section (1) for the support allowance, the candidate may seek relief that the order may be made for instalment of support allowance in lieu of the payment of monthly support remittance, and the magistrate may, in the wake of mulling over all the circumstances obtaining in the case including the variables like the age, physical condition, financial conditions and other liabilities and commitment of both parties, pass a request that the respondent shall pay the support allowance in lump sum in lieu of the monthly upkeep allowance, covering a specified period, not surpassing five years at a time, or for such period which may surpass five years, as might be mutually consented to by the parties”.
    4. The following “either under sub-section (1) or sub-section (2-A), as the situation may be,” has been embedded in subsection 3 after the words “ so ordered”.
    5. The following words “or, as the case may be, the lump sum allowance to be paid in lieu of the monthly allowance” has been embedded after “each month’s allowance”.
  • Rajasthan– In the submission to the State of Rajasthan,
    1. The word “five hundred” occurring after the words “at such month to month rate not surpassing” and before the words “rupees in an entire” substitute “two thousand five hundred”. 
  • Tripura– In the application to the State of Tripura,
    1. The words “ five hundred rupees” shall be substituted for “one thousand five hundred rupees”.
  • Uttar Pradesh– In the submission to the State of Uttar Pradesh,
    1. The words “rupees five hundred” under sub-section (1) have been substituted with “ rupees five thousand”.
    2. The following has been embedded after sub-section (5) “(6) Where in a procedure under this section it gives the impression to the Magistrate that the individual claiming maintenance is in need of quick relief for his support and the essential expenses of the procedure, the justice may, on his application, request the person against whom the upkeep is claimed, to pay to the person asserting the upkeep, during the pendency of the procedure such month to month remittance not exceeding five thousand rupees and such expenses of the procedure as the Magistrate considers reasonable and such order shall be enforceable as an order of upkeep”. 
  • West Bengal– In the application to the State of West Bengal,
    1. The words “rupees five hundred” under sub-section (1) have been substituted with “rupees one thousand five hundred”.
    2. The accompanying proviso shall be embedded after the following proviso “Provided further that wherein a procedure under this section it appears to the justice that the spouse alluded to in clause(a) or the minor kid alluded to in clause (b) or the child (not being a married daughter) mentioned in clause (c) or the father or mother mentioned in clause (d) in need of prompt relief for her or its or his support and the vital expenses of the procedure, the Magistrate may, on the application of the spouse or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, request the individual against whom the stipend for upkeep is asserted, to pay to the litigant, pending the decision of the procedure, the expense of the procedure, and month to month during the procedure such remittance as, having regard to the income of such individual, as it may seem to the Justice to be sensible”.

Amount reasonable for the wife as maintenance

In the case of Kulbhushan Kumar vs Raj Kumari & Another, the Hon’ble Supreme Court observed as follows-

That the Maintenance given to the wife was determined by the court as the decision was taken keeping in mind about the situation, that the wife was receiving money from her father.

Facts of the case 

The appellant-husband and the respondent-wife married in the month of May 1945. At some point later, the husband did not have any desire to live with the wife, and there was a complete disaffection between both of them. A daughter was conceived in August 1946. 

  • In the year 1951, the respondent sent a registered letter asking support, on behalf of herself and the girl, and by the year 1954, she had filed a suit for maintenance.
  • During the procedure, the Hon’ble High Court considered that the litigant was a Reader in Medicine accepting an income of about Rs.700 and more than Rs.250 consistently by way of private practice. The date of the establishment of the case was fixed by the High Court for the payment of the maintenance to the respondent.
  • The Hon’ble High Court decreed, fixed the maintenance payable to the respondent, under the Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956, at Rs.250 subject to a further reaches of 25% per month of the pay of the appealing party as directed by the income-tax authorities, and Rs. 150 as the support of the young lady.
  • In this appeal to the Supreme Court by the respondent bought up the question for the loyalty of the maintenance payable to the wife.

Judgement of the case 

The Court held that:

  1. irrespective of the circumstances that the wife had received some money from her father consistently, it can only be perceived as a gift, not as her income. In this manner, it couldn’t be considered under Section 23(2)(d) of the Act in deciding the amount of support;
  2. There was no sign of her acquiring any property of her father on his demise;
  3. The amount payable by a method of maintenance relies upon the realities of each case and the Judicial Committee, in Mt. Ekradeshwari v. Homeshwar, did not set out any guidelines identifying to the degree of the husband’s ‘free-income’ which would be payable as upkeep to the wife.

In the conditions of this case, no omission could be taken to the sum fixed by the High Court as well as the date, from which the maintenance would be claimable. In deciding the limit at 25% of the ‘free income’ of the appellant, a sum payable towards income tax, compulsory provident fund, and other expenses for maintaining the vehicle for professional purposes as permitted by the income tax authorities ought to be allowed as deductions from the husband’s total salary.

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

LEAVE A REPLY