What is Maintenance?

Maintenance is the financial support that a husband needs to pay to his wife

• when she is unable to sustain financially on her own
• during the divorce proceedings as well as post-divorce.
• Maintenance is paid by the husband either on a monthly basis or in a lump sum
• so that the wife can avail the basic amenities of life such as food, clothing, shelter, etc.
• The concept of maintenance aims at putting the wife back to the same position of comfort and lifestyle as she was at the time when her marriage existed.
• There is no fixed amount of maintenance.

Maintenance under Hindu Laws

• The Hindu Adoption and Maintenance Act lays down the provisions relating to maintenance rights of a woman under Hindu laws.
• Under the Act,
  a) the wife,
  b) daughter-in-law,
  c) children,
  d) elderly parents and
  e) other dependents have a right to claim maintenance.
• In case of divorce, the wife has a right to claim maintenance from her husband when she is unable to maintain herself financially.
• The fact whether the wife is working and earns some income or not, does not affect her right to claim maintenance from her husband.

However, the quantum of maintenance that the husband is required to pay to her wife depends upon

1. the income earned by the wife,
2. the income and property of the husband,
3. his personal expenses and
4. the expenses borne by him from his dependents.

Types of Maintenance under Hindu Laws

Under the Hindu maintenance laws, there are 2 types of maintenance that can be claimed by the wife.

1. Interim Maintenance
2. Permanent Maintenance

When the wife files a maintenance petition through her divorce attorney, the burden to declare his income shifts to the husband, who has the right to defend the maintenance petition.
The types of maintenance under Hindu laws are as follows:

1. Interim Maintenance:

• When the wife files a maintenance petition,
• the court may award her interim maintenance
• that the husband must pay
• from the date on which the application was filed by the wife
• till the date of dismissal through her divorce law advocate.
• It is also known as Maintenance Pendente Lite and
• is paid so that the wife can pay for the legal expenses incurred by her.
• Interim maintenance is awarded by the court
• if the wife has absolutely no source of income to maintain herself.
• There are no laws that lay down the amount of this type of maintenance and
• it is completely upon the discretion of the court
• to determine how much maintenance is sufficient for the wife
• to sustain during the proceedings.

2. Permanent Maintenance:

• Permanent maintenance is paid by the husband to his wife in case of divorce,
• and the amount is determined through a maintenance petition.
• Section 25 of the Act states that the court can order
• the husband to pay maintenance
• to his wife
• in form of a lump sum or monthly amount for her lifetime.
• However, the wife may not be eligible for maintenance if there are any changes in her circumstances.

Under Section 18 of the Hindu Adoption and Maintenance Act, 1956:

1. a wife has the right to live separately from her husband
2. without affecting her right to claim maintenance.
3. Under this law, a wife can live separately from her husband in the following cases:
4. The husband has deserted the wife without any reasonable cause.
5. The husband has subjected the wife to cruelty.
6. The husband is suffering from leprosy of virulent form.
7. The husband has extra-marital affairs.
8. The husband has converted to another religion.

However, the wife is not entitled to claim maintenance in the following circumstances:

1. She has ceased to be a Hindu by converting to another religion.
2. She is guilty of adultery i.e. she is unchaste and indulged in physical relations with another man.
3. She has remarried after the divorce.

Calculation of Maintenance under Hindu Laws

• The amount of maintenance to paid depends upon different factors.
• The courts rely on the provision of Section 23 of the Act while asserting the total maintenance that the husband needs to pay to his wife.

The provision lays down the following factors that must be considered to fix a maintenance amount:

1. The position and status of the husband and wife,
2. Whether the wife has an actual claim for maintenance.
3. If the wife is living separately, whether the reason to do so is justified.
4. The wife’s total property and income.
5. The husband’s total property,
   # income generated from this property, and
   # his other income.
6. The total number dependents and their expenses borne by the husband.
7. The personal expenses of the husband.

The factors that are taken into consideration by the Courts for granting interim maintenance have been reiterated by the Delhi High Court in the case of Manpreet Singh Bhatia vs Sumita Bhatia:

1. The reasonable needs of the spouse claiming maintenance
2. The status of the parties
3. The independent income and property possessed by the spouse claiming maintenance
4. The number of persons the spouse providing maintenance has to maintain apart from the claimant
5. The lifestyle that spouse claiming maintenance used to enjoy in her matrimonial home
6. The liabilities of the spouse providing maintenance
7. The provisions of the basic necessities of the spouse claiming maintenance such as food, shelter, clothing, medical needs, etc.
8. The payment capability of the spouse providing maintenance
9. The Court may use its discretion when all specific sources of income of the spouse providing maintenance are undisclosed
10. The spouse paying maintenance must discharge the cost of litigation of the divorce proceedings
11. The amount awarded under Section 125 is adjustable against the amount awarded under Section 24 of the Hindu Marriage Act, 1955. The Delhi High Court further stated that the Court must grant interim maintenance in appropriate cases as a discharge of judicial duty so as to ensure that the indigent spouse doesn’t suffer at the hands of the affluent spouse.

How to Claim Maintenance under Hindu Laws?

• A wife is required to file a maintenance petition in a family court which has appropriate jurisdiction to deal with the matter.
• The maintenance petition must be filed with the assistance of a good divorce advocate in India and must contain all the requisite facts and remedy sought from the court.
• The maintenance petition is filed with some necessary documents like an affidavit, documents relating to the income of both, the husband and wife, etc.

Written By: Er Khaliqul Azam, MS Law College, Motihari
Ph no: 7762900229, Email: [email protected]