Maintenance Laws in India

Introduction

There has been an increase in the number of divorces cases in India. Subsequently, the awareness regarding the procedure of divorce along with a very important aspect of divorce, ‘maintenance’, has increased. Generally, in Family Law, maintenance is often used along with terms like alimony, spousal support. In the past alimony was meant as only the duty of the husband to maintain his wife monetarily. There are various aspects that need to be kept in mind while deciding the maintenance. Factors like the financial need of the wife, how much the husband himself pays, the age and medical conditions of both the spouses, the living standard, the time for which the marriage lasted, whether the wife is able to earn something on her own or not,  and other non-monitory contributions made by the parties.

Maintenance during Ancient Times and British Era

The maintained that is given is usually not permanent and stops after a fixed period of time. Later the parties agree on one amount with the help of court; while taking into consideration the various criteria mutually decided on. At times the parties involved agree to waive off their right of maintenance by their ex-spouse, through a written contract.

Taking up views of different Hindu sages, Manu holds that the old parents, a virtuous wife and an infant child deserve husband’s maintenance irrespective of all the wrongs done. Brihaspati holds a belief that a man gives what remains after the food and clothing of the family; and the one who leaves his family naked and unfed, may taste honey at first but later, finds poison. As per the Mitakshara, if a person inherits no property and all he has is a self-acquired property; then people maintained from that property are the parents, wife, and minor children.

During the British Era, it was clear that a man is to maintain his wife, son, and aged parents.  They define maintenance as the amount the spouse pays to the other spouse, for the child or for both. Generally, children till the age of 21 are dependent on parents unless they have attained the age of 23. Though a legal aid has to be taken in this matter. Some children from the age of 18 to 23 may not considerably dependent; while some children may remain dependents even after attaining the age of 23; and some even after that due to circumstances like physical disability or mental illness.

Though, in recent times, the women are more independent as they are starting to work on their own. It is now more commonplace for women to continue to work after marriage and children; spousal support per se is less common, notwithstanding the disparity in income. But it is still the right of a woman for attaining maintenance from the man if they bear a child; or even if they acquire property together with each other’s contribution. In India, still a large number of women don’t work; or are not capable of earning enough to maintain themselves or the children. In the same way, the old parents deserve entitlement to maintenance. They spent their entire life looking after their children; hence they should be bound to pay their parents reasonable maintenance.

Maintenance Laws in India

Following are various categories of the maintenance laws in India:

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.

MAINTENANCE UNDER HINDU LAW

The receiving of maintenance in the Hindu law is in cases of divorce, restitution of conjugal rights, and judicial separation.  Only in Hindu law, a woman can have the right to live alone and claim maintenance without filing for divorce. Under the Hindu Adoptions and Maintenance Act, 1956, a wife can live separately while using her right of claiming maintenance. The Act contains situations in which it is impossible for the wife to live or cohabit with her husband; and she chooses not to break her marriage, hence she lives alone.

Maintenance of Wife

Under S.24 of the 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.  Though the provision doesn’t make it clear as to what should be the amount, hence it depends on the discretion of the court. The claimant only gets the maintenance if there is no independent income. The claimant also gets the amount of litigation. The interim maintenance is payable from the date of the presenting of petition till the passing of the decrees; and it is for meeting the immediate requirements of the claimant.

As per S. 3(b) (I) of Hindu Adoption and Maintenance Act, 1956(hereinafter mentioned as HAM ACT) maintenance includes provision for food, clothing, residence, education, and medical attendance and treatment.” In the case of an unmarried daughter, it also includes her marriage expenses.

Grounds for Maintenance

Any of the one ground should favor the wife for claiming maintenance. These grounds of maintenance are as follows:

1. The husband has left the wife and has neglected her;
2. The husband’s attitude is cruel towards the wife;
3. Husband is suffering from a virulent form of leprosy/venereal diseases or any other infectious disease;
4. The husband has any spouse who is alive;
5. Husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
6. The husband has ceased to a Hindu by conversion to any other religion;
7. Any other cause justifying her separate living.

Maintenance of children

Section 20 of the Hindu Adoptions and Maintenance Act makes it necessary that the parents have to maintain the child equally no matter if he is legitimate and illegitimate. S.20 (2) of the Act states that the children receive maintenance unless they are major; while the daughter needs maintenance unless she gets married and the parents bear her marriage expenses. However, even after marriage of a minor married daughter, if she is unable to maintain herself then she can claim for maintenance under S.125 CrPC. If the filing of application is under section s24 and 25 of the Hindu Marriage Act, the children also need maintenance.

Maintenance of Parents

S. 20 of the Hindu Adoptions and Maintenance Act puts an obligation of maintaining the old parents who are unable to maintain themselves. The Act is the first statue in India, which imposes an obligation on the children to maintain their parents. Even the daughters have to maintain their parents.

Maintenance under Muslim Law

―Namaqua in Urdu means the amount spent by a man on his family, especially children and parents. Thus, a person is liable to maintenance. The main principles of maintenance may be if he has no property or he comes in the obligor in prohibited degrees or if the wife or child, and the obligor is in position to support him depending on his/her financial condition.

PERSONS ENTITLED TO MAINTENANCE

1. Wife
2. Children
3. Parents
4. Other relations

Maintenance of Wife

The husband must maintain his wife, no matter she is a Muslim or Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old. But there is no entitlement of maintenance, if the wife is too young for sexual intercourse with the husband. It does not matter if she lives with the husband or not. In Muslim, the husband has to pay maintenance only if the wife is faithful and obeys him.

In the case of Strachy and Badruddin Tyabji, JJ the court came to a similar conclusion. A disobedient wife doesn’t require maintenance. Strachy, J. holds that where the wife makes occasional visits to the husband’s home and returns to maternal home during night has no entitlement to receive any sorts of maintenance. In Muslim Law, if the marriage is valid and the wife is capable of marital intercourse then the husband has to maintain the wife even if she has resources to maintain herself. If the wife, without any justification ,refuses to cohabit then she holds no entitlement to maintenance. The women lose their right to maintenance if they disobey the reasonable commands of man; but if she follows the man’s order and her husband treats her with cruelty, she has the right to claim maintenance.

If the wife is ill or does not get proper treatment from her husband, who make it impossible to stay , the wife gets the maintenance; and she can live separately from the husband. The question regarding section 125 of the Code of Criminal Procedure 1973 (corresponding section. 488 of the Code of Criminal Procedure 1998 or restitution of conjugal right arises.

The wife loses the right to maintenance in the following cases:

1. If she is minor and is not capable of consummation;
2. Does allow the husband to meet her during a reasonable period;
3. Is disobedient;
4. Never visited husband’s house;
5. Refuses to cohabit with him without reasonable excuse;
6. Abandon conjugal home without reasonable reasons;
7. Deserts him;
8. Elopes with another person.

The spouses or their guardian also Have the choice to enter into an agreement that if a particular event happens, then the husband will be bound to pay the wife such as ignorant attitude, another marriage of husband, etc but the agreement in the marriage contract that the wife would not be entitled to maintenance is void. The agreement so made should not be against the public policy or Muslim law.

Conditions of a valid contract are as follows:

1. Treatment of cruelty by the husband, then the women can claim maintenance and live separately.
2. If he does second marriage which makes it default for the wife to live with him.
3. If he does so, the wife can live with his father and should be minted.
4. In case of disagreement with each other, he will give her maintenance for her separate residence.

In Muslim Law, if the wife gets divorced then she has to maintain the period of Ida after which her entitlement of maintenance ends.

If the widow receives property through will or inheritance from the husband, then she has no entitlement to maintenance.

 Maintenance of Children

If the child is legitimate then the father needs to maintain him. Thus, a father is in obligation to maintain his sons till puberty and his daughter until marraige. He is also responsible for the upkeep of his widowed or divorced daughter, or a child in the custody of the mother. If the daughter refuses to live with the father without proper reasons, she will not have entitlement to maintenance. The father is not bound, If the child can maintain himself using his property . If the father is not able to maintain the child, then it is the duty of the mother to maintain the children, failing to do so, the paternal grandparents have to maintain the child.

In the case of Illegitimate Children, Muslim Law the father has no obligation to maintain illegitimate children. U/S 488 of the Criminal Procedure Code, 1908 (as amended up to 1955), however, did bound the father to pay a reasonable amount even him the mother refuses to surrender the illegitimate child to him. It is, however not open to a Court to award maintenance u/s. 488 of the CrPC unless expressly asked for.

MAINTENANCE UNDER CHRISTIAN LAW

A Christian woman can claim for maintenance through both criminal proceedings or/and civil proceedings. Section 36 of the Indian Divorce Act, 1869 (IDA) are similar to S.24 of the Hindu Marriage Act, however, S. 36 of the Indian Divorce Act allows to claim interim maintenance only from wife but not from the husband. As per Section 37 of the Indian Divorce Act Act, a Christian woman can apply for maintenance in the court and the husband has to pay maintenance. The Indian Divorce Act applies to Christian wives only.

The provisions of the Indian Divorce Act, 1869, are herein covered under part IX -S.36 – S.38.  The court also gives orders to pay the wife monthly maintenance at reasonable times. If, in case, the husband is unable to pay the wife due to some financial circumstances, maintenance is adjourn-able for the time being. As per Section 38 of the Indian Divorce Act, 186 the maintenance is payable to the wife directly or to the trustee.

MAINTENANCE UNDER PARSI LAW

Maintenance is claimable through both civil and criminal proceedings. In a criminal proceeding, religion is no bar but in civil, it is. The court can send the husband to jail if he refuses to pay after the court’s orders and can be jailed as long as he doesn’t start paying. At the filing of the suit, the provisional amount for maintenance is one-fifth of the husband’s income. In case of deciding the permanent maintenance, As per section 40 of the Parsi Marriage and divorce act, the court takes in consideration the financial state of husband, the assets wife owns and the conduct of parties; and the claim continues as long as the woman is unmarried and chaste. In the case of pendent lite and interim maintenance sections, 39 of the Parsi Marriage and Divorce Act, 1936 (PMDA) is similar to S.24 of the Hindu Marriage Act.

 MAINTENANCE UNDER CODE OF CRIMINAL PROCEDURE 1973

Section S.125.The order provides the maintenance of wives, children, and parents. The grounds are as follows:

• His wife, who is unable to maintain herself, or
• Husband‘s  legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
• 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
• His father or mother, unable to maintain himself or herself,

Section 125 of Cr.P.C. is distinct in any other personal law. There is no conflict between the two provisions. A person may sue for maintenance under S.125 of Cr.P.C. 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. A person can refuse to abide by the order by proving that he has no means to provide maintenance to the said party.

Section 125 gives statutory recognition to the moral, legal, and fundamental duty of a man to maintain his wife, children, and aged parents. The sections fulfill the provision of Article 15(3) and Article 39 of the Indian Constitution in which it is the duty of state where special provisions are possible for the welfare of children and women and that both man and woman get equal opportunity to earn.

Section 125 does not consider nonpayment of maintenance as a criminal offense and a person of any religion can demand maintenance. The words any person in section 125 consists of people belonging from the undivided family even though the proceeding is stern towards oneself concern, neglecting the welfare of the undivided family. But the judges may take into consideration, the joint property at the time of determining the maintenance. 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.

CASE LAWS

MAINTENANCE TO WIFE

In the case of Divyananda   v.   Jayarai,[1]  two   Roman   Catholic entered into Suyamaryadhai which is a Hindu form of marriage form of marriage and lived together as husband and wife for a period of five months in the course of which the wife conceived a child. After which they got separated and the woman filed for divorce, demanding maintenance. It was held that they were Christian and they didn’t marry as per the Christian traditions nor they converted into Hindus hence the marriage was void ab initio, thus the woman cannot claim maintenance under section 125 of Crpc but her son who is illegitimate can claim maintenance under the said section.

In the case of K. Sivarama v. K. Bharathi,[2] the judges held that any marriage contravening Section 5 & 11 of the Hindu Marriage Act, cannot be considered to be the valid marriage and that she cannot claim maintenance

In the case of Ambaram v. Reshambai,[3] the court held that if a woman enters into a marriage, without knowing that the husband already has a second wife though deserves sympathy, but claiming maintenance under section 125 of Cr.P.C. is still in question.

In the case of Abdul Salim v. Nagima Begam,[4] the Court held that the sentence fails to maintain her doesn’t mean that the woman is in utterly poor condition and is forced to beg on streets. If she owns no property from where she can earn or no other source of income, then it is understandable that she cannot maintain herself hence requires maintenance.

MAINTENANCE FOR LIVING TOGETHER

In S.P.S. Balasubramanyam v Suruttayan Andalli Padayachi & Ors.,[5]  the SC held that as per section 114 of Evidence Act, it was held that it will be assumed that the children born through such relations are legitimate. Hence they deserve the maintenance and the share in the property.

In Abhijit Bhikaseth Auti v. State Of Maharashtra and Others,[6] The Malimath Committee recommended that if a woman is in a living in a relationship for a long time, the woman is considerably the lawful wife.

MAINTENANCE TO CHILDREN

In Ram Chandra Giri v. Ram Suraj Giri,[7] where the father of a minor son refused to pay the maintenance stating that the son was physically fit and healthy and that he should do some work and maintain him. The court rejected the plea stating that the minor children should be maintained by their parents. This way, the objective of section 125 of Cr.P.C. can be fulfilled.

MARRIED DAUGHTER‘S LIABILITY

Vijaya Manohar Arbat v. Kashiram Rajara Sawai,[8] the Supreme Court in a landmark judgment held that the married daughter is liable to provide maintenance to their aged parents if they are unable to maintain themselves. In this case Mr. Dutta & Mr. OjhaJJ, held that married daughter does not cease to be daughter on her getting married. The court also said that if a daughter has no liability to maintain her parents, then those with daughters and no son fill be forced to beg, due to their incapability to maintain themselves.

ALTERATION IN ALLOWANCE (S.127 OF THE Cr.P.C.)

In the case of  Bai Tahira v. Ali Hussain Fissali,[9]  the court held that the amount that was given in the form of Mehr is enough for survival in the lifetime of wife then any maintenance claimed under section 125 of croc should be deemed canceled under section  127(3).  The  same was held in the case of Fuzlumbi v. K. Khader Ali.[10]

Later in the case of Shah Bano Begum v. Mohd. Ahmed  Khan,[11] the  SC held that the amount paid as Mehr given in the consideration of money and not of divorce thus it fails to fulfill the condition of Section 127(3)(b). Thus, no matter how much amount is paid in the form of mehr, it doesn’t free the husband from paying maintenance.

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References:

[1] 1984 Cr LJ NOC 10 (Mad)

[2] 1986 Cr LJ 317 (AP)

[3] AIR 1976 SC 2196

[4] 1980 Cr LJ 232

[5] AIR 1992 SC 756

[6] AIR 2009 (NOC) 808 (BOM)

[7] 1980, CrLJ (Mad)

[8]AIR 1987 SC 110

[9]AIR 1979, SC 362

[10]AIR 1980 SC 1730

[11]AIR 1985 SC 945