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Contemporary Study Of Maintenance Under Various Laws In India

The dictionary meaning of the term maintenance is support or sustenance. The term maintenance is not defined in the marriage laws of any of the religious communities. But the entitlement of claiming maintenance is certainly based on the assumption that the claimant doesn't have the sufficient means to support herself .The maintenance generally covers the expenses for necessaries or essentials for the substance of life.

Before fixing the maintenance to claimant there would various parameter would took into the consideration look into the possession of the property of both, the husband and the wife, ability of the husband to earn, conduct of the parties and other circumstances to decide the amount of maintenance. Before fixing the amount of maintenance the status of the parties and the standard of their life enjoyed by them, during the subsistence of marriage will have to be taken into consideration.

Maintenance Law In Various Provinsion Of Law

  1. Maintenance under Hindu Law.
  2. Maintenance under Muslim Law.
  3. Maintenance under Christian Law.
  4. Maintenance under Parsi Law.
  5. Maintenance under Code of Criminal Procedure 1973.

Need Of Maintenance Law In India

The object of all these provision is to compel a man to perform the moral obligations, which he owes to the society in respect of his wife, children and parents. By provisions a simple and speedy but limited relief, These provision seek to ensure that the neglected wife and children are not left beggared and destitute on the scrapheap of society and there by driven to a life of vagrancy, immorality and crime for their subsistence.

Therefore, the parliament in its desire to find a solution to this problem evolved a procedure which has found expression in chapter IX of Criminal Procedure Code.1973.This enactment is fully consistent with ARTICLE 15{3} of the constitution of India which state that the prohibition contained in the constitution of India which states that the prohibition contained in the article shall not prevent the state from making any special provision for women and children.

Grounds For Award Of Maintenance

Even a wife who has been divorced is entitled to claim maintenance from her husband provided that she has not re-married. Whether such a wife has been divorced by her husband or she has obtained divorced or the marriage was divorced by mutual consent, she would still be entitled to claim maintenance under the maintenance act. However by the enactment of the Muslim women act, 1986 these provisions have been made inapplicable to the Muslim woman and her former husband can choose to be governed by the provision of this chapter of the code.

A child up tills the age of eighteen years, legitimate or illegitimate whether married or not, would be entitled to claim maintenance from his or her father. The father of a minor female child can be ordered to pay maintenance to such a child until she attains her majority, if the magistrate is satisfied that the husband of such a minor female child is not possessed of sufficient means. Even a child who has attained the age of majority has been enabled to claim maintenance if by reason of any physical or mental abnormality or injury is unable to maintain itself.

Such a child may be legitimate or illegitimate. A son may be married, but a daughter who's has attained the age of majority but is married is not covered by this act .A father or a mother have been conferred the statutory right to claim maintenance from his or her son or daughter. The provisions of this act are not in the nature of penal provision but are only intended for the enforcement of a duty, default, which may lead to vagrancy. This act is really intended for ensuring some supply of food, clothing& shelter to the deserted wives, neglected children& parents.

The right to maintenance is circumscribed by certain factors:
  1. the relationship of husband is and wife should be proved,
  2. she must be unable to maintain herself,
  3. the husband must be having sufficient means and
  4. it should be proved that the husband has neglected or has refused to maintain wife.

Maintenance Under Hindu Law

The relief of maintenance is considered an ancillary relief and is availableonly upon filing for the main relief like divorce, restitution of conjugal rights orjudicial separation etc. Further, under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial relief has been recognized in Hindu law alone.

A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act envisages certain situations in which it may become impossible for a wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial tie for various reasons ranging from growing children to social stigma.
  1. Maintenance Of Wife

    Under S.24 of Hindu Marriage Act, 1955 ,either the wife or husband can apply for interim maintenance. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. The provision is silent on the quantum of maintenance and it is upon the discretion of the court to determine the quantum. Similarly, maintenance pendente lite is to be provided to the claimant who does not have an independent income and the financial need of litigation expenses has to be provided by the other spouse.

    The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the petitioner. S. 3(b) (i) of Hindu Adoption and Maintenance Act, 1956 defines maintenance as "provision for food, clothing, residence, education, and medical attendance and treatment." In the case of unmarried daughter, it also includes her marriage expenses. The provisions for permanent maintenance are present in all the personal laws and are substantively similar. However there are some differences between the personal laws.
  2. Maintenance Of Children

    Section 20 of Hindu marriage act imposes an obligation upon the parents � mother and father, both equally to maintain the children � both legitimate and illegitimate. This is a unique feature of the Hindu law where both the parents are equally responsible to maintain the children. Section 20 (2) of Hindu marriage act lays down that the children are entitled to maintenance during their minority. This right of maintenance for the daughter is extended till she gets married. The parents are obliged to bear her marriage expenses.

    However even after marriage a minor married daughter, if she is unable to maintain herself then she can claim for maintenance under S.125 CrPC. When an application has been filed under section Section 24 and 25 of Hindu marriage act, the children are also entitled to get maintenance if the claimant has the responsibility of maintaining them. Section 26 of Hindu marriage act also provides that in any proceeding under the Act the court can from time to time pass interim orders and make provisions in respect of the custody, maintenance and education of the minor children.

    In Ram Chandra Giri v. Ram Suraj Giri where the father of a minor son neglected to provide maintenance, a petition was filed under section 125 of CrPC. Thereupon the father contended that the son has a good physic and was healthy and hence he had the ability to fend for himself. The Court rejected the contention and stated that the concept of potential earning capacity cannot be applied to, minor children as that would defeat the very purpose legislation.
  3. Maintenance Of Parents

    Section 20 of HAM ACT also lays down an obligation of maintenance o f old and infirm parents who are not able to maintain themselves out of their own personal earnings and property. The HAM ACT is the first statue in India, which imposes an obligation on the children to maintain their parents. The obligation to maintain is not only limited to the sons but it also extends to the daughters.Under HAM ACT, both the mother and the father have an equal right to claim maintenance.

    The explanation to this section also includes stepmother in the term parent. However it is important to note that the section imposes an obligation to maintain only those parents, who are unable to maintain themselves and therefore the obligation to maintain the parents other than those infirm and unable, is only moral. In the case of K.Sivarama vs K.Bharathi that any marriage in contravention of Section 5 & 11 of the Hindu Marriage Act, cannot be considered to be the valid marriage. Such a woman cannot recourse maintenance U/S. 25 of the Hindu Marriage Act for claiming maintenance.

Maintenance Under Muslim Personal Law

It is incumbent on a husband to maintain his wife, whether she is Muslim or Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old. However the wife is too young for matrimonial intercourse she has no right to maintenance from her husband, whether she is living in his house or with her parents. Where the marriage is valid and the wife is capable to render marital intercourse it's the husband's duty to maintain his wife even though she may have means to maintain herself. But if she unjustifiably refuses to cohabit with her husband then she loses her right for maintenance.

The right of maintenance would also be lost if the wife refuses to obey the reasonable commands of the Husband but not so if disobedience is justified by circumstances or if she is forced to leave husband's house on account of cruelty, so that of the husband refuses to maintain his wife without any lawful reasons/causes the wife may sue him for maintenance. She is not however entitled to past maintenance. Maintenance is payable from the date of the decree unless the claim is based on specific agreement.

The husband and wife or their guardian may enter into agreement whereby the wife is entitled to recover maintenance from her husband, on the happening of some special event such as ill- treatment, disagreement, husband's second marriage etc. but the agreement in the marriage contract that the wife would not be entitled to maintenance is void.The key consideration is that the agreement should not be opposed to the public policy and Muslim Law.

Imaintenance Of Children

In case of Legitimate Children the maintenance of the children is rest upon the fatherThus a father is bound to maintain his sons until they attain puberty and his daughter until they are married. He is also responsible for the upkeep of his widowed or divorced daughter, or a child in the custody of the mother. The father is not bound to provide separate maintenance for a minor or an unmarried daughter who refuses to live with him without reasonable cause. An adult son need not to be maintained unless he his infirm. The father is not bound to maintain a child who is capable of being maintained out of his or her own property.If the father is poor or infirm then the mother is bound to maintain the children. And failing her it is the duty of the parental grandfather.

Maintenance Under Christian Law

A Christian woman can claim maintenance from her spouse through criminal proceeding or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings, simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties does not matter at all, unlike in civil proceedings.Section 36 of the Indian Divorce Act, 1869 (IDA) are similar to S.24 of HM ACT However S. 36 of IDA differs in the respect that the maintenance pendente lite and interim maintenance can only be claimed by the wife and not by the husband. If a divorced Christian wife cannot support her in the post divorce period she need not worry as a remedy is in store for her in law.

Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which is only applicable to those persons who practice the Christianity religion inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance. The provisions of the Indian Divorce Act, 1869, are produced herein covered under part IX -S.36 - S.38.

The power of order monthly or weekly payments:
In every such case, the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and supportas the Court may think reasonable: Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part as to the Court seems fit.

Under section 38 of the Indian Divorce Act, 1869, in all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court expedient so to do.

Maintenance Under Parsi Law

Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter at all unlike the civil proceedings. If the Husband refuses to pay maintenance, wife can inform the court that the Husband is refusing to pay maintenance even after the order of the court.

The court can then sentence the Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so long as he does not pay. The Parsi Marriage and Divorce Act, 1936 speaks about the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount can be decreed by court as alimony during the time a matrimonial suit is pending in court is one-fifth of the husband's net income.

In fixing the permanent maintenance, the court will determine what is just, bearing in mind the ability of husband, wife's own assets and conduct of the parties and this order will remain in force as long as wife remains chaste and unmarried. In case of pendent lite and interim maintenance sections 39 of the Parsi Marriage and Divorce Act, 1936 (PMDA) is similar to S.24 of HM ACT. S.40. of Parsi Marriage and Divorce Act says that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the defendants own income and other property.

If any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the defendant.

The Court if it is satisfied it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just and if the Court is satisfied that the partly in whose favour, an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just.

Maintenance Under Code Of Criminal Procedure 1973

S.125.Order for maintenance of wives, children and parents:
  1. If any person having sufficient means neglects or refuses to maintain:
    1. His wife, unable to maintain herself, or
    2. His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
    3. 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
    4. His father or mother, unable to maintain himself or herself
It should be kept in view that the provision relating to maintenance under any personal law is distinct and separate. There is no conflict between the two provisions. A person may sue for maintenance under s.125 of CrPC. If a person has already obtained maintenance order under his or her personal law, the magistrate while fixing the amount of maintenance may take that into consideration while fixing the quantum of maintenance under the Code. But he cannot be ousted of his jurisdiction. The basis of the relief, under the

concerned section is the refusal or neglect to maintain his wife, children, father or mother by a person who has sufficient means to maintain them. The burden of proof is on him to show that he has no sufficient means to maintain and to provide maintenance. Section 125 gives a statutory recognition to the moral, legal and fundamental duty of a man to maintain his wife, children and aged parents. Although this

section also benefits a distressed father, the main thrust of this section to assist women and children. Article 15(3) of the Indian constitution envisaged that the state can make special provision for woman and children. Section 125 is also along the lines of Art.39 of the Indian Constitution that states that the State shall direct its policy towards ensuring that all citizens both men and women have equal access to means of livelihood and children and youths are given facilities opportunities in conditions of freedom and dignity. At the time of enactment of this code section 125 is intended to be applicable to all irrespective of their personal Laws although maintenance is a Civil remedy yet it has been made a part of this Code to have a quick remedy and

proceedings and S.125 is not a trail as non-payment of maintenance is not a criminal offence. The word any person u/s. 125 includes a person belongs to the undivided family although the proceedings strictly against the individual 17 concern and not the undivided family. However, the Magistrate may take into consideration the joint family property is determining the amount of maintenance that should be payable by such person..; it also includes a person, a father, an adult son and a married daughter. But not include a mother or a wife or an unmarried daughter.

By virtue of judicial pronouncements and other steps, rights of women has been restored but it will become fruitful only when under lying thinking are changed, the women should emancipate themselves educationally, economically and socially for their well being only and then they can understand their rights and worth and thereafter the social upliftment of the whole community is possible. We should always remember that mother is the first teacher and mentor of his child. It is a historical fact that no society ever lived in peace until their women folk are at peace.

Although Maintenance should be gender neutral and should be applicable both for husband and wife respectively for the greater perspective of the society but still many women are being denied to claim their rights of maintenance. Proper implementation is necessary to abide by the Law of the Land and ultimately to make it a grand success.

  • The hindu marriage act 1955
  • Code of Criminal Procedure 1973
  • Hindu Adoptions and Maintenance Act, 1956
  • Indian Divorce Act, 1869
  • Parsi Marriage and Divorce Act, 1936

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