Under the ambit of personal laws in India there is a very important role of
governing the relationship between a wife and a husband. Under these laws there
is specific focus on the aspect of maintenance after divorce. The term 'maintenance
includes a wide range of things for living such as food, clothes, residence and
the things necessary for the comfort and status in which the person is expected
to live. Maintenance may be allotted to dependent children, parents and legally
wedded wives, counting but not limited to a divorced spouse, mistress,
illegitimate children, etc.
The right to claim maintenance is a right recognized under different laws in
India, each one is different from other in main and another particular. The
whole concept of maintenance was initiated in order to ensure that if there is a
spouse who is not independent economically, then, the other spouse should help
him/her in order to make the living of the other person possible. The
maintenance may be in a gross sum or on periodical or monthly basis.
The income and property of the non-Applicant shall be considered while
determining the permanent alimony. 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 instant needs
of the petitioner. Both, the husband and wife, are entitled to claim maintenance
according to the Hindu Marriage Act.
Laws that provide maintenance to wife:
Every law which provides for maintenance, except the Hindu Marriage Act, speaks
about maintenance to the deserving wife alone. The laws which provide for
maintenance to wife are:
- The Criminal Procedure Code, 1973 (Chapter IX: Sections 125 to 128)
- The Divorce Act, 1869 (Section 36 & 37)
- The Special Marriage Act, 1954 (Sections 36 & 37)
- The Muslim Women Protection on Divorce Act, 1986 (Section 4)
- The Protection of women from Domestic Violence Act, 2005 (Section 20)
- The Hindu Adoption and Maintenance Act, 1956 (Section 18)
Laws that provide maintenance to husband:
The only marriage law which upholds mutual obligation of both partners of a
marriage - the husband and the wife - in the matter of providing maintenance is
the Hindu Marriage Act, 1955. Sections 24 and 25 make provision for maintenance
to a party who has no independent income sufficient for his or her support, and
necessary expenses. This is a gender-neutral provision, where either the wife or
the husband may claim maintenance. The prerequisite is that the applicant does
not have independent income which is sufficient for her or his support, during
the pendency of the case.
The Hindu marriage Act, 1955 (Section 24 & 25)
Section 24 of Hindu Marriage Act, 1955 providing for maintenance pendente lite and
expenses of proceedings states that where it appears to the Court that either
the wife or the husband, as the case may be, has no independent income
sufficient for her or his support and the necessary expenses of the proceeding,
it may, on the application of the wife or the husband, order the respondent to
pay to the petitioner the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner's own income and the
income of the respondent.
The grant of maintenance pendente lite is allowed either from the date of
original petition or from the date of service of summons on the other party or
on the date on which the decision is taken. In fixing the amount the court has
to consider the status of the parties, their respective needs, capacity of the
husband to pay having regard to his reasonable expenses for his maintenance. If
the husband claims that he has no independent income for his support, it is for
the wife to prove the contrary if what he claims is not true.
Section 25 of Hindu Marriage Act, 1955 providing for permanent alimony and
maintenance states that the Court may on an application made to it by either the
wife or the husband order that the respondent shall pay to the applicant for her
or his maintenance and support such gross sum or such monthly or periodical sum
having regard to the respondent's own income and other property, if any, the
income and other property of the applicant.
A claim under Section 24 of the Act does not bar a claim under Section 25 of the
Act, as each one is an independent right.
Agreement cannot prevent granting maintenance
In a mutual consent divorce under Section 13-B of the Hindu Marriage Act, even
if the party agrees not to claim maintenance the court can still grant
maintenance. An agreement between parties cannot prevent a court from
exercising its jurisdiction. The quantum of maintenance is decided on the facts
and circumstances of each case but the amount so fixed should not be excessive
or exorbitant in any case. Section 25 is a substantive provision.
Quantum of maintenance
Maintenance covers not merely food, clothing and shelter, but also includes
other necessities. The quantum and type of necessities covered within the scope
of maintenance may vary, depending on the status, financial position and number
of dependents, etc. and is at the discretion of the court. Antecedent to passing
an order under Section 125, the court does take cognizance of the amount of
maintenance already ordered under the personal law. The reasoning is based on
the premise that the wife is entitled to live as per the standard and status of
How is maintenance calculated?
There is no fixed formula or hard and fast rule for the calculation of alimony
that the husband needs to provide to his wife. The maintenance can be provided
as a periodical or monthly payment, or as a one-time payment in the form of a
If the maintenance is being paid on a monthly basis, the Supreme Court of India
has set 25% of the husband's net monthly salary as the benchmark amount that
should be granted to the wife. There is no such benchmark for one-time
settlement, but usually, the amount ranges between 1/5th to 1/3rd of the
husband's net worth.
Under Section 23 of the Hindu Marriage Act, it is in the discretion of the Court
to determine whether any, and if so what maintenance should be awarded under the
Act, in respect of the wife, children, aged or infirm parents, the Court will
have regard to:
- the position and status of the parties;
- the reasonable wants of the claimant;
- if the claimant is living separately, whether he (or she) is justified
in doing so;
- the value of the claimant's property and any income derived from such
property, or from the claimant's own earning or from any other source; and
- the number of persons entitled to maintenance under the Act
The amount of maintenance, whether fixed by a Court's decree or by agreement,
may be altered subsequently if there is a material change in the circumstance
(Section 25). A person cannot claim maintenance under the Act if he or she has
ceased to have a Hindu by conversion to another religion (Section 24).
Enforcement of orders of maintenance:
Enforcement of the order of maintenance is the most challenging issue, which is
encountered by the applicants. If maintenance is not paid in a timely manner, it
defeats the very object of the social welfare legislation. Execution petitions
usually remain pending for months, if not years, which completely nullifies the
object of the law.
An application for execution of an Order of Maintenance can be filed under the
- Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family
Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed
under Section 24 of the Hindu Marriage Act (before the Family Court);
- Section 20(6) of the DV Act (before the Judicial Magistrate); and
- Section 128 of Cr.P.C. before the Magistrate's Court.
Section 125(3) of the Cr.P.C provides that if the party against whom the order
of maintenance is passed fails to comply with the order of maintenance, the same
shall be recovered in the manner as provided for fines, and the Magistrate may
award sentence of imprisonment for a term which may extend to one month, or
until payment, whichever is earlier. Section 18 of the Family Courts Act, 1984
provides that orders passed by the Family Court shall be executable in
accordance with the CPC / Cr.P.C.
The Indian courts have been progressively liberal in deciding cases pertaining
to maintenance. Maintenance law is a gender-equal law under the Hindu Marriage
Act as it provides the right to Maintenance to both husband and wife. However,
other laws only give this right to wives, and therefore, there have been
petitions filed against other laws, such as Section 125 of CrPC in the Supreme
Court, claiming it to be gender-biased.