Maintenance

This session deals with the maintenance under 3 different heads:

1. concept of maintenance,
2. the object behind having it incorporated under various provision spread across different laws and
3. ahead dealing with these laws.

Beginning with the basic concept of maintenance.

• The concept of maintenance

The dictionary meaning of the term maintenance is ‘support’. The same is not defined under any marriage laws.

Reasons behind claiming maintenance

The entitlement of claiming maintenance is based on the assumption that the claimant doesn’t have the sufficient means to support herself. It generally covers the expenses for necessities essential for the substance of life. However, it is not merely a right for survival of the claimant.

While determining the amount of maintenance the Courts take into consideration various circumstances likewise: the possession of the property of both, the husband and the wife, ability of the husband to earn, conduct of the parties, the status of the parties and the standard of their life enjoyed by them during the subsistence of marriage.

• Object of maintenance

To ensure moral obligation of a man that he owes towards his wife, children and parents are performed. To ensure that the neglected wife and children are not left beggared in the hands of society and there after driven to a life of immorality and crime for their survival. The inability of the wife, child and father or mother to maintain themselves could lead to social problems and therefore, it becomes the duty of the state to disallow such social problem and its magnitude. Further in order to support women the Indian Constitution U/A 15 (3) clearly states, “Nothing in this article shall prevent the State from making any special provision for women and children.”

• Laws dealing with maintenance

• Maintenance is deal under the following laws:
• Maintenance under Code of Criminal Procedure 1973
• Maintenance under Hindu Law
• Maintenance under Muslim Law
• Maintenance under Christian Law
• Maintenance under Parsi Law
• Maintenance under Protection of women from Domestic violence Act, 2005
• The Maintenance and Welfare of Parents and Senior citizens Act, 2007

We shall deal with the provisions of above mentioned laws in detail that deal with maintenance.

Maintenance under CODE OF CRIMINAL PROCEDURE 1973 CrPC

S.125.Order for maintenance of wives, children and parents.-

(1) If any person having sufficient means neglects or refuses to maintain-

• His wife, unable to maintain herself, or
• His 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

*the provision relating to maintenance under any personal law is distinct and separate. There is no conflict between the two provisions.

Landmark case:

Mohd. Ahmed khan v. Shah bano Begum & other [ AIR 1985 SC 945]

The appellant, a Muslim, was married in 1932 and in 1975 he drove her out of the matrimonial home. The respondent filed a petition under section 125 cr pc in April 1978 against the appellant claiming maintenance at the rate of Rs. 500 per month. The appellant divorced the respondent by an irrevocable talaq in November 1978. His defence to the respondent’s petition was that she had ceased to be his wife by reason of the divorce granted by him, that he was therefore under no obligation to provide maintenance for her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period of idiot. The question was whether the respondent was entitled to maintenance. In application for revision filed by the respondent High Court enhanced the amount of Rs. 25 as maintenance fixed by the magistrate to Rs. 179.20 per month. In appeal a two judge Bench of the Supreme Court referred the month to the present Bench. Dismissing the husband’s appeal with costs and adding that it would be open to the respondent to make an application under section 127{1} of the code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section, supreme court held that section 125 was application to all irrespective of their religion clause {B} of section 125{1} contains no words of limitation so as to justify exclusion of 18 Muslim women.

Maintenance under Hindu Law

Under S.24 of Hindu Marriage Act, 1955 (HMA), 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.

GROUNDS FOR AWARD OF MAINTENANCE

Only upon proving that at least one of the grounds mentioned under the Act, exists in the favour of the wife, maintenance is granted. These grounds are:

1.  The husband has deserted her or has willfully neglected her;
2. The husband has treated her with cruelty;
3. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
4. The husband has any other wife living;
5. The 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;

QUANTUM OF MAINTENANCE

 The means and capacity of a person against whom the award has to be made should be taken into consideration for determining the quantum of maintenance. In fact, in case of the husband, it is not only the actual earning, but also his potential earning capacity, which must be considered i.e. there is a presumption that every able-bodied person has a capacity to earn and maintain his wife. The income of the husband is a significant factor to be considered by the court in fixing the quantum of maintenance.

MAINTENANCE OF CHILDREN:

Section 20 of HAM ACT imposes an obligation upon the parents – mother and father, both equally to maintain the children – both legitimate and illegitimate.

S.20 (2) of Hindu Adoption and Maintenance Act, 1956 (HAM ACT) lays down that the children are entitled to maintenance during their minority. This right of maintenance for the daughter is extended till she gets married. The parents are obliged to bear her marriage expenses. However even after marriage a minor married daughter, if she is unable to maintain herself then she can claim for maintenance under S.125 CrPC.

Case:

In Ram Chandra Giri v. Ram Suraj Giri, where the father of a minor son neglected to provide maintenance, a petition was filed under section 125 of CrPC. Thereupon the father contended that the son has a good physic and was healthy and hence he had the ability to fend for himself. The Court rejected the contention and stated that the concept of potential earning capacity cannot be applied to, minor children as that would defeat the very purpose legislation.

MAINTENANCE OF PARENTS

S. 20 of HAM ACT also lays down an obligation of maintenance of old and infirm parents who are not able to maintain themselves out of their own personal earnings and property. The HAM ACT is the first statue in India, which imposes an obligation on the children to maintain their parents. The obligation to maintain is not only limited to the sons but it also extends to the daughters.

Maintenance under Muslim Personal Law

‘Nafaqa’ literally means which a man spends over his children, in law it means feeding, clothing and lodging; in common use it signifies food. Maintenance comprehends food, raiment, lodging, though in common parlance it is limited to first.

MAINTENANCE OF WIFE

It is incumbent on a husband to maintain his wife, whether she is Muslim or Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old. However the wife is too young for matrimonial intercourse she has no right to maintenance from her husband, whether she is living in his house or with her parents.

Where the marriage is valid and the wife is capable to render marital intercourse it‘s the husband‘s duty to maintain his wife even though she may have means to maintain herself. But if she unjustifiably refuses to cohabit with her husband then she loses her right for maintenance. The right of maintenance would also be lost if the wife refuses to obey the reasonable commands of the Husband but not so if disobedience is justified by circumstances or if she is forced to leave husband‘s house on account of cruelty, so that of the husband refuses to maintain his wife without any lawful reasons/causes the wife may sue him for maintenance. She is not however entitled to past maintenance. Maintenance is payable from the date of the decree unless the claim is based on specific agreement. Where a wife is turned out or ill treated so as to make her impossible to stay or live together with her husband, or where the breach between the wife and husband is irremediable she is entitled to maintenance by living separate from him whether the question arises u/s. 125 of the Code of Criminal Procedure 1973.

To summaries, the wife loose the right to maintenance in the following circumstances:-

1. She is minor, incapable of consummation.
2. Refuse free access to the husband at all reasonable times.
3. Is disobedient.
4. Never visited his 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.

MAINTENANCE OF CHILDREN

The father is bound to maintain his sons until they attain puberty and his daughter until they are married. He is also responsible for the upkeep of his widowed or divorced daughter, or a child in the custody of the mother. The father is not bound to provide separate maintenance for a minor or an unmarried daughter who refuses to live with him without reasonable cause. An adult son need not to be maintained unless he his infirm. The father is not bound to maintain a child who is capable of being maintained out of his or her own property. If the father is poor or infirm then the mother is bound to maintain the children. And failing her it is the duty of the parental grandfather.

Case:

Danial Latifi & another Vs Union of India II (2001) DMC 714 (SC) : 2001(6) ALD 63 (SC):2001 (2) ALD (Cri) 787 (SC) : 2001 Supreme 297.

A divorced Muslim woman who has not remarried and who is not able to maintain herself after Iddat period can proceed as provided under section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim Law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

Maintenance under Christian Laws

The Indian Divorce Act, 1869 governs the maintenance rights of a Christian wife. Under Section 37 of the Indian Divorce Act, 1869, she can apply for maintenance in a Civil Court or High Court. The husband will be liable to pay maintenance for her lifetime. 

Maintenance under Parsi Laws

The Parsi Marriage and Divorce Act, 1936 gives the right to maintenance to a Parsi woman. The court can award a maximum of one-fifth of the husband’s net income as maintenance. The court considers factors like the husband’s capability to pay, property, and other assets owned by the wife and the personal conduct of the husband and wife.

The husband is liable to pay maintenance to the wife for her lifetime only if she remains unmarried and chaste after the divorce process

Under Protection of women from Domestic Violence Act, 2005

Section 20. Monetary reliefs :- (1) While disposing of an application under subsec. (1) of Sec. 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to, –

1. the loss of earnings;
2. the medical expenses;
3. the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
4. the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

(4) The Magistrate shall send a copy of the order for monetary relief made under sub-sec. (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.

(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-sec.(1). 21

(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-sec. (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the Court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

Under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Section 4 Of the Act deals with Maintenance of Parents and Senior Citizens. Sec.4. Maintenance Of Parents And Senior Citizens :-

(1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under Section 5 in case of-

(i) parent or grand-parent, against one or more of his 22 children not being a minor;

(ii) a childless senior citizen, against such of his relative referred to in clause (g) of Section 2.

(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.

(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.

(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen: Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property. This was all about maintenance and its all its related aspects.