Maintenance Laws in India

Section 3 (b) of the Hindu Adoption and Act 1956 defines as, “(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;

(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage”

GENERAL LAW

In matrimonial disputes, maintenance is a claim made by the wife seeking financial claims from her husband unless the latter is in a position unable to pay. The husband gets maintenance only in rare cases where he has a severe disability and is incapable of earning on his own. Unlike previously the whole concept of maintenance has gone through a drastic and significant change. It now not only includes amount for sustenance but also support for medical expenses, children and residence. The sole aim of this purpose is to put the wife along with the children at a status equal to if she was still living with her husband before separation.

Law of Maintenance in India is governed by following laws/Acts:

• Section 125 Cr.P.C. ( Code of Criminal Procedure)

• Protection of women from Domestic Violence Act

• Section 24 of the Hindu Marriage Act

• Section 18 of Hindu Adoption and Maintenance Act

Maintenance laws in India

Hindu marriage act 1955

section 24: order for maintenance can be made by court for pendente lite (temporary) and expenses of proceedings

section 25: regarding permanent and maintenance

section 26: regarding interim maintenance of children

1973

Section 125  If any person with sufficient means refuses to maintain-

 (a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself

The magistrate of first class on proof can order to pay monthly allowance. The provision also covers the right of a wife professing Islam or any other religion. (Shamima Farooqui Vs Shahid Khan and Shamim Bano Vs Asraf Khan)

The Supreme Court also held that the expression ‘wife’ as per Section 125 Cr.P.C. refers only the legally married wife and not the second wife or a woman living as ‘wife’. The marriage being void or annulled under section 12 of the Hindu marriage act will not entitle the wife to maintenance (Krishan Copal Vs Usha Rani, 1982 Cr.L.J. 901 Del.) However, it was held that the illegitimate children from the second wife are entitled to such maintenance. With the commencement of family courts act, all proceeding relating to section 125 take place before it.

Hindu adoption and maintenance act 1965

Having a personal/legal obligation, the husband under section 18 has to maintain his wife during her lifetime regardess of being married before or after the commencement of the act.

18(1) -applicable to all hindu wives living with her husband regardless of being married before or after the commencement of the act

18(2) A Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance,- (a) if he is guilty of desertion/wilfully neglecting her; (b) if he has treated her with cruelty if he has treated her with such cruelty (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house or resides ; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying her living separately 

18 (3) A Hindu wife  not entitled to separate residence and maintenance if she ceases to be a Hindu by conversion to another

Section 19 talks about the obligation falling on the father-in-law to provide maintenance to the daughter-in-law after the death of the husband, unless she has means of her own earnings or other property or estate of her husband/ father/ mother or from her son or daughter or his/her estate. The obligation ceases to exist if the father in law has no property, means to compensate or the daughter in law or she remarries.

Maintenance laws in India

Protection of woman from domestic violence act 2005

It has brought about the concept of right to residence, involving the husband providing the wife with the matrimonial/shared/ alternate accommodation. This not only covers the wife but also every other woman living in the relationship in the nature of marriage. Maintenance granted under section 20 the act also provides for monetary relief to meet losses suffered and incurred by the victim.

Under section 23 the court has discretion to determine what and how much maintenance with regard to factors like position and status, reasonable wants of the claimant, value of property etc. With there being no fixed formula to decide the amount the court requires the parties to disclose assets, income and expenditure (bank statements, income tax returns, title deeds etc)

The court sometimes also uses the rule of Resource cake where the income is divided into number of proportion of claimants with one additional proportion going to the one being asked to pay maintenance. In most cases the policy of giving 1/3 of the income of the husband. Recently the apex court held that 25% of the husbands income was sufficient.

Maintenance Case can be filed by the wife in the following places:

1. The place where the claim falling under section 24 of the Hindu marriage act.

2. Where respondent is residing in claim falling under section 125 CrPC

3. Where wife is residing or working in cases of domestic violence.

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