Maintenance as per Hindu Law

INTRODUCTION

The dictionary meaning of the term maintenance is support or sustenance. A person is entitled to basic amenities like food, clothing, shelter, and other necessary requirements to live a dignified life. Under the principles of social justice, it is the natural duty of a man to provide these amenities to his wife, parents and children in the form of maintenance. The amount can be paid either by doing one lump sum payment or by way of monthly instalments.  It is clear from the provisions under act which provides guidelines to the court by stating the factors to be taken into consideration for fixing amount of maintenance.

The court is to look into the possession of the property of both, the husband and the wife, ability of husband earn, conduct of the parties and other circumstances to decide the amount of maintenance.

 

LAW APPLICABLE ON MAINTENANCE: –

1. Section 125 of CRPC
2. Hindu Marriage Act 1955
3. Hindu Adoptions and Maintenance Act
4. Maintenance and Welfare of Parents and Senior Citizen Act,2007\

Maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy

Article 15(3) of the Constitution of India provides that: Nothing in this Article shall prevent the State from making any special provision for women and children. Article 15 (3) reinforced by Article 39 of the Constitution of India, which envisages positive role for the State in fostering change towards the empowerment of women, led to the enactment of various legislations from time to time.

 

SECTION 24 OF HINDU MARRIAGE ACT 1955: – Maintenance pendente lite and expenses of proceedings: – 

Whenever it appears before 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 proceedings, 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 court deems fit.

 

SECTION 25 OF HINDU MARRIAGE ACT 1955: – Permanent Alimony and Maintenance: –

Whenever the application made to the court either by the wife or the husband as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross amount monthly or periodical for a term not exceeding the life of the applicant. While granting the amount court consider the respondent’s income and other property if any and also consider the income and property of the petitioner.  If there is a change in the circumstances of either party at any time after the order passed the court at the instance of either party modify, vary or rescind the order if courts deem fit. 

If court satisfied that the party in whose favor an order has been made under this section has re-married if she is a wife or she has not remained chase or if such party is a husband, that he has sexual intercourse with any women outside wedlock, then on the instance of the other party the court vary, modify or rescind the order in such manner as the court deem just.

 

SECTION 26 OF THE HMA

provides that the Court may from time-to-time pass interim orders with respect to the custody, maintenance and education of the minor children.

 

SECTION 125 OF CRPC: –   When any person neglects or refuse to maintain: –

1. Wife
2. Children (whether 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,
3. Parents

They can claim maintenance by filing an application before magistrate. a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct.

Provided that the Magistrate may order the father of a minor female child referred to in clause (2) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

However, a wife cannot claim maintenance in case she is living in adultery or she without any sufficient reason refuses to live with her husband. If she remarries, after the date of her divorce, she cannot claim any such maintenance. On any of these grounds, a husband may apply for cancellation of any such order of maintenance.

Under Sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application.

Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days’ from the date of service of notice on the Respondent

The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would give rise to a claim Under Section 125 Code of Criminal Procedure came up for consideration in Chanmuniya v. Virendra Kumar Singh Kushwaha and Anr.3 before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term “wife,” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a pre-condition for grant of maintenance Under Section 125 Code of Criminal Procedure. The Court relied on the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which recommended that evidence regarding a man and woman living together for a reasonably long period, should be sufficient to draw the presumption of marriage.

 

SECTION 18 OF HINDU ADOPTIONS AND MAINTENANCE ACT: –

1. Subject to the provisions of this Section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance- (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or willfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living;.
3. A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. ‟ Under the Hindu Adoptions and Maintenance Act, 1956 as it stands today, even if the husband is a member of a joint family, his wife has no right to maintenance against the relatives of her husband who is incapacitated and therefore unable to maintain her. Under such circumstances, the aggrieved woman has only two alternative remedies available to her: i) a suit for partition in respect of her husband’s estate, or ii) a divorce petition for claim of maintenance.

 

SECTION 19 – MAINTENANCE OF WIDOWED DAUGHTER-IN-LAW: –

1. A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained, after the death of her husband, by her father-in law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance- (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in law has not the means to do so from any coparcener property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.”

 

SECTION 4 – MAINTENANCE OF PARENTS AND SENIOR CITIZENS: –

The application for maintenance may be made under section 4 of the act to the tribunal either by:

• The parent/senior citizen; or
• In case they are incapable of doing so, any voluntary association registered under The Societies Registration Act 1860 or any other law may appeal on their behalf.
• By the tribunal on its own motion.
• Parties against whom the application can be filed:

The application may be filed against one or more persons, which include child/relative or any other concerned parties. For the purpose of the act ‘Relative’ would mean any legal heir of a childless senior citizen who is not a minor.

 

QUANTUM OF MAINTENANCE

However, the quantum of maintenance depends upon

• The income earned by the wife,
• The income and property of the husband,
• His personal expenses and
• The expenses borne by him from his dependents.

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