(Author: Shivani Agrawal, pursuing LLB from Faculty of Law, University of Delhi.)
The provisions of “maintenance” in India are a measure of social justice, especially for the protection of women and children and to ameliorate their social and economic conditions. The right to claim maintenance also extends to old and infirm parents and any other dependents who are unable to maintain themselves.
The word “maintenance” has a wide connotation but section 3(b) of Hindu Adoption and Maintenance Act, 1956 defines it as “in all cases, provisions for food, clothing, residence, education, and medical attendance and treatment; in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.” The Code of Criminal Procedure, 1973 along with several personal laws has provisions of maintenance for wife, children, and other dependents, however, unlike all the personal laws, the provisions of Cr.P.C are secular and can be evoked by all Indians irrespective of their religion.
Maintenance under Code of Criminal Procedure, 1973
The provisions under sections 125[i], 127[ii] and 128[iii] of Cr.P.C. are to provide, an effective, speedy and inexpensive remedy against persons having sufficient means, neglecting and refusing to maintain his-
- Wife, unable to maintain herself
- Legitimate or illegitimate minor child, whether married or not, unable to maintain itself
- Father or mother, unable to maintain himself or herself.
A magistrate of the first class can direct such a person to make a monthly allowance to his wife, children, and destitute parents. The definition of wife has however been altered by the courts throughout various judgements and includes legally wedded wives, divorced and second wives.
In Savitaben Sombhai Bhatiya v. State of Gujrat, the term wife included only a legally married wife, while later in judgements of D Velusamy v. D Patchaiammal and Chanmuniya v. Virendra Kumar Singh Kushwaha, the apex court ruled that even if a man and woman are living together for a long time, without a valid marriage, the woman should be entitled to maintenance. The Supreme Court also in the landmark judgement of Badshah v. Sou. Urmila Badshah Godse & Anr. ruled that second wives who are living under the pretext of misrepresentation by their husbands are entitled to maintenance. The apex court has extended the sweep of the provisions and strict proof of marriage is not a pre-requisite for maintenance under this section.
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In Savitaben Sombhai Bhatiya v. State of Gujrat, the term wife included only a legally married wife, while later in judgements of D Velusamy v. D Patchaiammal and Chanmuniya v. Virendra Kumar Singh Kushwaha, the apex court ruled that even if a man and woman are living together for a long time, without a valid marriage, the woman should be entitled to maintenance. The Supreme Court also in the landmark judgement of Badshah v. Sou. Urmila Badshah Godse & Anr. ruled that second wives who are living under the pretext of misrepresentation by their husbands are entitled to maintenance. The apex court has extended the sweep of the provisions and strict proof of marriage is not a pre-requisite for maintenance under this section.
In case of the breach of the order by the person so ordered to make the allowance, the magistrate may issue a warrant for levying the amount due in the manner for levying fines. He may also sentence such person to imprisonment for a term extending to one month or until the payment of the due amount.
It must be noted that the provisions of maintenance under this law are independent of all the personal laws. There is no conflict among any two provisions. A wife, child, or a parent can sue for maintenance under this law even if he has already obtained maintenance under any personal law. The magistrate might consider that while fixing the quantum of the maintenance but he cannot deny him the jurisdiction. The proceedings under this law are civil. The provisions of this act are secular but are also gender-specific. A husband cannot claim for maintenance from his wife under this section even if he is unable to maintain himself.
Maintenance under Hindu Law
Under the Hindu personal law, maintenance can be claimed under the Hindu Marriage Act, 1955, and the Hindu Adoption and Maintenance Act, 1956.
- Maintenance of Wife
As per Section 18 of the Hindu Adoption and Maintenance Act, a legally wedded wife is entitled to be maintained by her husband. This section does not include a divorced wife and is only limited to a married wife. The act clearly states that the husband must maintain his wife, unable to maintain herself, during her lifetime. The HMA also recognises the right of a woman to reside separately from her husband and claim maintenance. There might be certain situations where it might be difficult for a woman to cohabit with her husband but also break the matrimonial tie pertaining to the social stigma. The right to maintenance under this act is also gender-specific and is only available to the wives. The right of the wife is however forfeited in case the husband wants to cohabit with the wife or the wife becomes unchastised or changes her religion.
As per Section 25 of the Hindu Marriage Act, both husband and wife are entitled to claim for maintenance. However, the parameters deciding whether or not the claimant will receive maintenance is gender-specific. In the case of Kanchan v. Kamlendra, it was ruled that a husband is only eligible for maintenance from his wife if he is mentally and physically unfit to earn an independent income. While in Manokaran v. Devaki it was held that a woman is entitled to maintenance if she does not have an independent income irrespective of her abilities to work.
Under HMA, either spouse can claim interim maintenance which is payable from the date of presentation of the petition till the dismissal of the suit or passing of the decree. The basis of the claim is that the claimant has no individual income to maintain himself/herself. The quantum of such maintenance is entirely on the discretion of the magistrate considering the financial status or the earning capacity of the other party. Likewise, maintenance “pendente lite” is for the payment of the litigation expenses of the claimant. The court at the time of passing the decree may ask either of the parties to pay a gross amount or a monthly allowance to the other party for a term not exceeding the lifetime of the claimant. The court may also modify the order, as it deems fit, on being satisfied with the changed circumstances like remarriage of either of the parties or change in the employment status.
- Maintenance of Children
Section 20 of the Hindu Adoption and Maintenance Act, imposes a statutory obligation on parents, both father, and mother, equally, to maintain their legitimate or illegitimate child until the age of majority. In the case of a daughter, the parents are under the duty to maintain her until the majority and also bear the expenses in the incident of her marriage. If a minor daughter is married, she can still claim for maintenance under section 125 of Cr.P.C if she is unable to maintain herself. The claim for maintenance for children can also be filed under Sections 24 and 25 of the Hindu Marriage Act.
- Maintenance of Parents
Section 20 of the Hindu Adoption and Maintenance Act lays down the obligation of a man to maintain his destitute parents, who are unable to maintain themselves. Under this section, both parents, mother, and father are both equally entitled to claim maintenance. This is the only statute that puts an obligation on both sons and daughters to maintain their parents. However, this section only deals with parents who are unable to maintain themselves our of their earnings and property, the obligation to maintain parents other than that is just moral.
Maintenance under Muslim Law
The term “maintenance” is defined by Hedaya as “All those things that are necessary to support life, such as food, clothes, and lodging; may confine solely to food.”
- Maintenance of Wife
A Muslim man is incumbently entitled to support his wife whether she is a Muslim or a Kitabiyyah. However, if the wife is too young for matrimonial intercourse, the husband is not legally entitled to maintain her. A Muslim husband is also not under any obligation to maintain his divorced wife post the period of Iddat.
As per the Muslim Women (Protection of Rights on Divorce) Act, 1986, if a woman is not granted maintenance, she can approach the Wakf Board. the provisions of the act enable a woman to claim maintenance from her husband, if the husband denies, the woman can claim maintenance from the relatives, who will inherit her property, failing which she can claim it from the board. Women under Muslim law are also entitled to the amount of Mehr or Dower which was paid by the husband or was agreed to be paid at the time of marriage or later.
In the case of Bai Tahira v. Ali Hussain, it was ruled that the amount of “dower” came under the definition of “sum payable” of section 127 of Cr.P.C and therefore a woman was not entitled to any further maintenance under section 125 of Cr.P.C. However, in the landmark case of Shah Bano Begum, it was ruled that “Mehr” is not a part of “sum payable” under section 127 [iv]and is an obligation of the husband and the amount paid by him to his wife as a sign of respect and not maintenance.
- Maintenance of Children
Under Muslim law, the obligation for the maintenance of legitimate children is vested mainly upon the father. The father is entitled to maintain his sons until they attain puberty and daughters until they are married. A father need not maintain a child who is capable of maintaining himself from his property. In case the father is old or infirm, it is the duty of the mother to maintain their children, failing which it becomes the duty of the parental grandfather.
Maintenance under Christian and Parsi law
As per the Christian law, only divorced and judicially separated wives can claim for maintenance under the Indian Divorce Act, 1869. The quantum of maintenance is decided based on the husband’s ability to earn and the conduct of the parties.
The law of maintenance for a Parsi is given under the Parsi Marriage and Divorce Act, 1936. Section 40 of the PMDA is similar to that of section 5 of HMA. Both husband and wife have equal right to claim maintenance and the quantum is decided based on the earnings of the other party. If either of the parties turns unchaste, the amount of maintenance can be altered, suspended, or cancelled.
[i] Section 125 is the substantive provision by virtue of which a Magistrate may pass an order for payment of maintenance against a person having sufficient means but who neglects or refuses to maintain his family members.
[ii] Section 127 deals with alteration of allowance once ordered by a Magistrate.
[iii] Section 128 provides, inter alia, that the order could be enforced by any Magistrate in any place where the person against whom it is made may be.
[iv] Section 127(3) (b)was added under which that if a divorced woman receives an amount due to customary or personal laws of the community, the magistrate can cancel any order for maintenance in her favour.
