A brief note on maintenance and alimony laws in India.
The range of personal laws in India has a very important role in governing the relationship between husband and wife. Under these laws, particular attention is paid to the aspect of maintenance after divorce. Maintenance is an amount paid to the wife after divorce for her maintenance and well-being. This article focuses on the scope of maintenance rights for divorced women in India and how to claim maintenance.
According to the Hindu Marriage Act, divorce maintenance is the provision of financial assistance by the husband towards the wife’s living expenses. Generally, it is not only the wife but the children and her parents who are equally entitled to receive financial support from the father/husband/son-in-law.
There are certain rules which give the wife the right to claim maintenance from her husband. Section 125 of the Code of Criminal Procedure (CrPC), 1973 provides an effective remedy for seeking maintenance for neglected persons, particularly a spouse in India.
The law lays down certain rules to be followed while providing certain amount of maintenance due to applicable terms and conditions, let’s go over them.
Maintenance rights of a divorced woman in India.
Maintenance laws and rules vary from religion to religion. The amount of maintenance fixed by the court depends on the monthly income of the husband, the income of the wife and her financial status. India being a democratic country provides various laws which are necessary for its citizens to earn livelihood. A woman is considered the legal “wife” of a man, and their marriage is null and void. From the right to live in her husband’s house to an equal share in the property, a legally married wife has several rights.
According to maintenance laws and rights, it is the duty of the husband to pay a lump sum or monthly amount of money to the wife called maintenance without divorce or after divorce. The amount of maintenance is determined by a mutual settlement between the spouses or by an order obtained from the court. It is the right of women after divorce in India.
“Maintenance law is a measure of social justice. It ensures that the needy party is not deprived of basic needs. Sometimes people misunderstand the maintenance law as woman-centric, which is wrong. If in fact the law before the court is correct. It helps the provider to control the level of social justice”
Legal rights of wife.
Right of Woman :
Sreedhan is the property a woman receives at the time of marriage, as distinct from dowry, which is a voluntary gift given to the wife before and after marriage and has no element of coercion. Courts have made it clear that women have absolute rights over their husbands, even if they are in custody of their husbands or in-laws.
Right to maintenance by husband :
Under Section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife is entitled to claim maintenance from her husband if he has suffered cruelty, desertion, polygamy or venereal disease. Her Rights in Divorce. It provides for permanent alimony and spousal and child maintenance under Section 25 of the Act. This section allows any court having jurisdiction under this Act, on receipt of an application from the aggrieved spouse, to make an order to pay the applicant for the support and maintenance of the applicant.
Right to live with dignity and self-respect :
A wife has the right to live her life with dignity and to follow the same lifestyle as her husband and mother-in-law. She has the right to live free from any mental or physical torture.
Right to Child Maintenance :
Husband and wife have to provide maintenance for their minor child. If the wife is unable to earn, the husband should provide financial support to her.
Claiming maintenance under different laws.
A secular country, India has a population that follows various religions. To understand the legal framework behind maintenance management in religion, one must look at the individual laws in force.
Maintenance under Hindu Law :
According to the Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956, a divorced woman is entitled to claim maintenance under Hindu law.
Under the Hindu Marriage Act, in any proceeding under this Act, if the court comes to the conclusion that either the wife or the husband has no separate source of income sufficient for their support, the petitioner may be ordered to pay monthly maintenance. by the defendant.
Maintenance under Muslim Law :
Under Muslim law, a husband is required to maintain his wife and family, and the term maintenance refers to the amount he is required to pay.
The term used for maintenance under Muslim law is called nafaqa and includes food and lodging.
A wife has the right to receive maintenance from her husband even if she has reasonable means of maintaining herself.
The law governing the maintenance of divorced women is the Muslim Women (Protection of Rights on Divorce) Act, 1986.
A wife has claimed a reasonable amount of maintenance from her ex-husband within a given iddat period
The husband has to pay ‘Meher’ or ‘Dower’ as promised during or at any time after the marriage.
At the time of divorce, if the wife is pregnant, a reasonable amount can be asked as maintenance amount for at least 2 years from the date of birth of the child.
If they have a child during the divorce, the spouse can claim maintenance for that child until remarriage or until the child is dependent.
The marriage contract may also stipulate special payments by the husband, and in the presence of these, it is the duty of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc.
Maintenance under Christian Law :
Under Christian law and maintenance, the Indian Divorce Act plays an important role.
The law dictates that the amount of maintenance mentioned shall not exceed one-fifth of the husband’s income. A pre-condition is that the girl should not remarry.
The amount of permanent maintenance depends on factors such as husband’s income, wife’s own income, assets, behavior of both wife and husband.
Maintenance under Parsi Law :
Under Parsi law, maintenance is generally similar to Christian law, but here the husband can also claim maintenance and the court cannot award maintenance beyond the life of the person paying the maintenance.
The usual condition of chastity is followed and the amount should not exceed one-fifth of the husband’s wife’s income.
Marriages under the Special Marriage Act, 1954 :
The Special Marriage Act, 1954 allows a divorced wife to get maintenance and support by levying a quantum on the husband’s property depending on the husband’s property, wife’s own property, property and assets, conduct of both parties and others. Just circumstances. A District Court of appropriate jurisdiction to which an application for maintenance is presented may set aside or vary its order/decree at any time after the order is made or if the divorced woman believes that there is a change in circumstances.
Filing of maintenance application.
You can do this by submitting your marriage certificate along with your wedding photographs. This petition can be filed by stating the birth certificate of the child born out of wedlock and the reason why maintenance is required.
How to file an application for maintenance?
This can be done by submitting the marriage certificate along with the relevant documents of your marriage. To fulfill these essential requirements you can file a case under section 125 CrPC before the Family Court or Judicial Magistrate near your residence.
Where can an application for maintenance be filed?
An application for maintenance under Section 125 CrPC can be filed before a Judicial Magistrate in the district where the husband or wife resides.
When can an application for maintenance be filed?
After getting a divorce or during the divorce process, an application for maintenance or file for divorce can be filed.
Interim maintenance What is Interim maintenance?
In divorce proceedings, if the Court is satisfied that the applicant’s income is insufficient under Section 24 of the Hindu Marriage Act, 1955, the husband or wife may seek relief. Further, interim relief may be granted to the applicant. Her immediate needs. This relief is known as ‘interim maintenance’.
According to the Hindu Marriage Act, 1955, interim maintenance can be claimed by the wife regarding monthly allowance for maintenance under Section 125 of the Code of Criminal Procedure.
If the wife has no independent source of income, under Section 36 of the Special Marriage Act, 1954, the wife can claim expenses from her husband under Sections V and VI of the Act.
If proceedings are pending under the Parsi Marriage and Divorce Act, 1869, one of the spouses may seek relief under Section 39 of the Act.
This provision is similar to Section 36 of the Special Marriage Act, 1954. Christians can seek interim relief under Section 36 of the Divorce Act.
Every application filed for interim maintenance must be disposed of within 60 days of the notice being sent to the respondent. This provision is the same in all the laws mentioned above.
What is permanent maintenance?
Permanent maintenance is granted by the court as per the personal laws in force in India. Once the divorce proceedings are over, permanent maintenance is awarded under the following rules :
- Section 25, Hindu Marriage Act, 1955 – Under this section the applicant is entitled to maintenance from the spouse. It is to be paid at regular intervals or in one lump sum till the applicant remarries or throughout his lifetime.
- Section 18, Hindu Adoption and Maintenance Act, 1956 – Under this section, the wife is entitled to maintenance from her husband. Further, this provision defines the right to claim separate residence in addition to the maintenance of the husband/wife when any of the conditions of Section 18(2) of the Act (allocation, cruelty, leprosy, husband/wife residing in the same place. house, conversion of religion or any other reasonable cause) until she becomes pure or converts to another religion. Following this, Section 19 of the Act provides for the maintenance of widowed wives and this responsibility rests on her father-in-law.
- Section 3, Muslim Women (Protection of Rights on Divorce) Act, 1986 – This section provides for fair and reasonable maintenance to a Muslim wife by her ex-husband during the Idda period. This amount should be equal to the amount of mahr or dowry paid at the time of marriage. In addition to this amount, the wife, before or at the time of marriage or after marriage, is entitled to all the property through her relatives or friends or the husband or the husband’s relatives or his friends. If the husband fails to pay the maintenance, the Magistrate has the power to order it to be paid to the husband.
- Section 37, Special Marriage Act, 1954 – This provision is identical to Section 40 of the Paris Marriage and Divorce Act, 1869. Under the Special Marriage Act, only the wife can claim maintenance from the husband in a court having jurisdiction under Chapters V and VI of the Act. This order can be changed or revoked if the wife remarries or does not lead a chaste life.
- Section 37, Divorce Act, 1869 – Under this section, the District Court is empowered to order the husband to pay a reasonable sum during her lifetime when the husband obtains a decree of dissolution or decree or judicial separation. Further, it is the duty of the court to consider the fortunes of the wife, the solvency of the husband and the conduct of the parties before passing such an order. The court may modify or amend the order if the husband is unable to pay a reasonable amount (as determined by the court) in future.
Main Conditions for Grant of Maintenance.
Reasonable needs of spouse seeking maintenance
Position of both parties
Independent income and property owned and held by the spouse claiming maintenance
Number of persons to maintain, other than the spouse providing the maintenance, the claimant.
The lifestyle the spouse seeking maintenance enjoys in his/her matrimonial home.
Responsibilities of the Maintenance Spouse.
Provisions for the basic needs of the spouse seeking care, such as food, shelter, clothing, medical needs, etc.
The court will make its award when all specific sources of income of the maintenance spouse are not disclosed.
The court may exercise its discretion when all specific sources of income of the spouse providing maintenance are not disclosed.
The maintenance spouse must pay the litigation costs of the divorce proceedings.
What are the criteria for decision making.
After examining all the conditions and taking due consideration, the court will arrive at a decision in the alimony case.
What are the criteria for determining the amount of maintenance?
An application for spousal maintenance under Section 125 CrPC includes:-
Any details of a maintenance order previously obtained under personal laws.
Husband’s behavior and habits.
Details of children, if any.
Details of divorce and separation period.
Financial independence of the applicant and his family.
Reason for asking for maintenance.
Income declaration of husband.
Marriage details and length of their married life.
When will the maintenance rights cease?
If a divorced woman remarries or falls in love with another person, her maintenance rights are terminated. The husband, in such a case, can bring the matter before the court for modification or annulment of the maintenance order.
She is not entitled to divorce maintenance while she is employed and earning enough to maintain a stable life. The definition of sustainable living is subjective in nature.
On what grounds can maintenance of wife be denied?
Notwithstanding the above discussion, there are certain circumstances in which a spouse may be denied maintenance:
Adultery – If the wife commits adultery during the marriage, her right to maintenance is forfeited.
Refusal to reside – In a situation where the wife refuses to live with her husband without valid reason, the reason for the same has to be satisfied in court.
Separate Residence – If both wife and husband live separately by mutual consent, the wife is not entitled to any maintenance.
Important Other case details like this :
Bhagwan Dutt v. Kamala Devi, (1975) 2 SCC 386.
In this case, the income of the wife has to be taken into account while determining the amount of maintenance payable to the wife and it is not an absolute right of a neglected wife to receive maintenance nor is it an absolute obligation of her to support her husband in all circumstances.
Bhuvan Mohan Singh v. Meena, (2015) 6 SCC 353.
In this case, maintenance of a wife for her ‘life’ does not mean a mere animal existence, but it means leading a life similar to that in her husband’s house. Also, the husband has a duty to lead his wife to live with dignity according to her social status and strata.
Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299.
In this case, the meaning of ‘wife’ under Sections 125(1) and 125(4) CrPC has been treated differently. The Court held that Section 125(4) contemplates a married woman living separately from her husband by mutual consent and does not refer to a wife divorced by mutual consent and living separately, hence maintenance cannot be denied on this ground.
Shabana Bano v Imran Khan, AIR 2010 SC 305.
In this case, the Supreme Court held that under Section 125 of the CrPC, a Muslim woman who is unable to support herself can claim maintenance even after the end of the Idha period.
Order for Maintenance of Spouses, Children and Parents.
The duty of the husband to maintain his wife arises from the condition of marriage, and is a form of personal law. It is important to note that the right to maintenance applies not only to the wife, but also to dependent children and parents who are unable to take care of themselves, but the claim for maintenance depends on whether the husband has sufficient means. No. The most important factor of maintenance is that the party relying on maintenance should not have any other source of income and should not be dependent on anyone.
The person claiming maintenance can claim even if he/she owns movable or immovable property, but the property should not yield any income.
If the claimant’s assets can generate any income, he/she cannot claim maintenance.
The amount of maintenance is not fixed under any law, it depends on the discretion of the court and the financial status of the maintainer and the condition and comfort of the maintenance recipient.
When is maintenance payable to wife?
Under various maintenance laws in India, maintenance can be awarded to a wife after divorce only for the following reasons :
If the husband has deserted her or neglected her of his own free will.
If the husband has tortured her or treated her cruelly.
If the husband is infected with a virus or venereal disease.
If the husband lives with another wife.
If the husband keeps a concubine in the same dwelling as his wife, or if he lives with her elsewhere.
If the husband has converted to another religion.
If there is any other reasonable reason for separation from husband.
Below is the answer to the question people ask me most about alimony and maintenance.
Frequently Asked Questions :
Are working women also eligible for maintenance claim?
No, working women are not entitled to claim maintenance because the precondition of maintenance is that the person claiming maintenance should not have a regular source of income. As working women are already employed, they are not dependent on their spouse.
What is the difference between alimony and maintenance in India?
Alimony and maintenance are very different because alimony is usually paid in a lump sum after a divorce, while maintenance is paid over a series of periods for the purpose of supporting the spouse.
What are the rights of the husband to get maintenance from his wife?
If the husband is unable to earn and is physically or mentally challenged, he can seek maintenance from his wife. He has to prove his inability to earn before the court.
“It is possible for men to receive care through individual laws, and this shows that some laws are gender-neutral.”
What is the woman’s right if her husband refuses to accept the court order?
In case of non-payment of maintenance without sufficient reason, the wife can approach the court and file a criminal case against him. The court can get an order placing a charge on his property.
The right to spousal maintenance is one of the most powerful legal tools in the hands of neglected wives, divorced women or women living apart from their husbands. It helps them to establish their lives with dignity and respect. Also it is recommended to get divorce maintenance in lump sum or monthly amount.
Can wife claim maintenance without divorce under Section 125 CrPC?
Section 125 of the Code of Criminal Procedure, 1973 states that if a man has sufficient means and does not have reasonable means to support his wife, children and parents, he shall pay maintenance for them. themselves or suffer from physical or mental disability. There is no minimum or maximum limit of maintenance under the said Section 125, which depends on the economic status and discretionary power of the court.