SYNOPSIS ON

RIGHT TO MAINTENANCE OF WIFE LIVING

INDESTINNATION AND ITS PROVISION
RELATING TO CRPC – A SOCIO LEAGL
STUDY CONDUCTED IN CHNADRAPUR

SBUMITED BY; - Adv AMOL MAROTI RAMTEKE

LLM 3RD SEM (G)
Contents
INTRODUCTION..................................................................................................................................................................... 3
Introduction...................................................................................................................................................................... 3
Territorial Jurisdiction:......................................................................................................................................................3
Theoretical Background....................................................................................................................................................4
Latest Position...................................................................................................................................................................6
RESEARCH METHODOLGY.....................................................................................................................................................8
Title of the study;-.............................................................................................................................................................8
OBJECTIVES:.................................................................................................................................................................... 10
HYPOTHESIS:................................................................................................................................................................... 10
SOURCES AND STUDY METHOD:.....................................................................................................................................11
RESEARCH QUESTION:.....................................................................................................................................................11
CONCEPT OF MAINTENANCE..............................................................................................................................................12
MAINTENANCE UNDER VARIOUS LAWS..........................................................................................................................12
Persons entitled to receive maintenance........................................................................................................................12
Types of Maintenance under Hindu Laws.......................................................................................................................13
Interim Maintenance:..................................................................................................................................................13
Permanent Maintenance:............................................................................................................................................14
Calculation of Maintenance under Hindu Laws...............................................................................................................14
The personal expenses of the husband...........................................................................................................................15
MAINTENANCE OF WIFE:................................................................................................................................................15
Quantum of maintenance...............................................................................................................................................16
Judicial precedents..........................................................................................................................................................17
MAINTENANCE UNDER MUSLIM LAW IN COMPARISION WITH HINDU LAW:.................................................................17
CONCLUSION....................................................................................................................................................................... 19
 INTRODUCTION
Introduction

This paper deals with Maintenance of wife under Hindu Marriage Act. The concept of maintenance aims
at putting the wife back to the same position of comfort and lifestyle as she was at the time when her
marriage existed. There is no fixed amount of maintenance that the husband is liable to pay to his wife,
and it is upon the discretion of a family court to fix the amount of maintenance that the husband needs to
pay either on a monthly basis or in form of a lump sum. Maintenance to wife is a very complicated issue
under Hindu Marriage Act. It is often stated as a mean to exploit the husband by asking alimony for life.
Section 24 of Hindu Marriage Act, 1955 (The Act) states that either husband or wife may claim
maintenance pendent lite i.e. maintenance till the proceedings are in process. Further, section 25 of the
Act states the grounds for permanent alimony. Maintenance to wife refers to the payments, which a
husband, under certain circumstances is under an obligation to pay. Obligation of payment of
maintenance can either during the subsistence of the marriage or after the dissolution of the
marriage. The most important aspect of maintenance is that the party which relies on maintenance has
no independent source of income to support himself/herself.

Territorial Jurisdiction:

Prior to 1973 the place where the wife resided after desertion or divorce was not material for granting
jurisdiction to the court in a maintenance proceeding. This caused a lot of hardship to the wife’s who
had to go all the way to the place where the husband resided or where they last resided together. A
recommendation was therefore made by the Law Commission to amend the provision and remove this
hardship. Consequently changes were made and the present position is that proceedings under section
125may be taken against any person in any district - (a) where he is , or (b) where he or his wife resides,
or (c)where he last resided with his wife, or as the case may be , or with the mother of even illegitimate
child. Of late , it has been held by the Supreme Court that maintenance application may be filed in any
court where husband or wife is residing even temporarily (but not casually).
Theoretical Background

The whole concept of maintenance was initiated in order to see that if there is a spouse who is not
independent economically than the other spouse should help him/her in order to make the living of the
other person possible and independent. The maintenance may be in a gross sum or on periodical or
monthly basis. In no case, the maintenance shall be owed beyond the life of the non-Applicant. The
income and property of the non-Applicant shall be considered while determining the permanent
alimony. The interim maintenance is payable from the date of presentation of the petition till the date of
dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the instant needs
of the petitioner. The aim of the study in this research to analysis whether women really needs
maintenance.
Temporary maintenance is granted by the court during the pendency of proceeding for divorce or
separation to meet the immediate needs of the petitioner.

Under Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife can be granted
relief if the court is satisfied that the applicant has no independent income sufficient for his or her
support and necessary expenses of the proceedings pending under the Act.
Interim maintenance may also be claimed under Section 125 CrPC by the wife during the pendency of
proceeding for regarding monthly allowance for maintenance under Section 125(1) CrPC.
Furthermore, Section 36 of Special Marriage Act, 1954 also makes provision for the wife to seek
expenses from the husband if it appears to the district court that she does not have independent income
sufficient for her support and necessary expenses of proceedings under Chapters V or VI of that Act.Still
further, under Parsi Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to claim
expenses where the proceeding is pending under the Act. Section 39 of the Act which is substantially the
same as Section 36 of the Special Marriage Act makes a provision in this behalf. Also, under  Section 36
of Divorce Act, 1869 which applies to persons professing Christain religion, a wife is entitled to
expenses of proceeding under the Act and maintenance while the suit is pending.
All these provisions specify that the application for interim maintenance has to be disposed of within
sixty days of service of notice on the respondent.

Permanent Maintenance
It is the maintenance granted permanently after the disposal of the proceeding for divorce or separation.
Hindu Marriage Act, 1955, Section 25 – Applicant, either wife or husband is entitled to receive from the
spouse for his/her maintenance and support a gross sum or monthly or periodical sum for a term not
exceeding the applicant’s lifetime or until he/she remarries or remains chaste.
Hindu Adoption and Maintenance Act, 1956, Section 18 – Hindu wife is entitled to be maintained by her
husband during her lifetime. Wife also has a right to separate residence and maintenance if any of the
condition in Section 18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same
house, conversion of religion or any other reasonable cause] is fulfilled until she remains chaste or does
not convert to other religion. It may also be noted that Section 19 of this Act makes a provision for a
widowed wife to be maintained by her father-in-law.
Criminal Procedure Code, 1973, Section 125 – This section provides for maintenance not only to the
wife but also to child and parents. Court may order a husband who has sufficient means but neglects or
refuses to maintain his wife who is unable to maintain herself to provide monthly maintenance to her.
However, wife shall not be entitled to receive maintenance if she is living in adultery, or refuses to live
with husband without any sufficient reasons, or living separately with mutual consent.
Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 – A divorced Muslim woman is
entitled to a reasonable and fair provision and maintenance to be paid to her within the iddat period by
her former husband; an amount equal to the sum of mahr or dower agreed to be paid to her at the time of
her marriage or at any time thereafter according to Muslim law; and all the properties given to her before
or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives
of the husband or his friends. If husband fails to provide her the above mentioned then Magistrate can
order for payment of the same.
Parsi Marriage and Divorce Act, 1936, Section 40 – A Parsi husband or wife may apply to the Court
under this section whereupon the Court at the time of passing any decree under the Act or anytime
subsequent thereto order that the defendant pay the plaintiff a gross or monthly sum for his/her
maintenance and support. Such order may also be modified subsequently if the Court is satisfied that
change in circumstances warrants so. The order may also be rescinded or modified if the party in whose
favour the order was made remarries; or in case of wife, she does not remain chaste; or in case of the
husband, he has sexual intercourse with any woman outside the wedlock.
Special Marriage Act, 1954,  Section 37 – This section is also similar to Section 40 of the Parsi Marriage
and Divorce Act. The difference being that under this section maintenance may be claimed only by a
wife against the husband from a court exercising jurisdiction under Chapters V or VI of the Act. An
order made under this section may be modified or rescinded by the district court at the instance of the
husband if it is shown that the wife has remarried or is not leading a chaste life.
Divorce Act, 1869,  Section 37 – This section empowers the district court to order the husband to secure
a reasonable gross sum to the wife or annual sum not exceeding her lifetime when a decree of
 dissolution or decree or judicial separation is obtained by the wife. While passing such order, the court
may have regard to fortune of the wife, ability of the husband and conduct of the parties. The court may
also order the husband to pay such monthly or weekly sum to the wife for her maintenance as the court
may think reasonable. If subsequently, the husband becomes unable to make such payments, the court
may discharge or modify such order.

Latest Position

The Law pertaining to maintenance is a very essential piece of legislation protecting the rights of women
and advancing justice to estranged wives. The right to claim maintenance can particularly be found in
Section 125 of Code of Criminal Procedure, which also confers the right to claim maintenance on
parents and minor children. Apart from law enumerated under Section 125 CrPC, an aggrieved wife can
also claim maintenance under the relevant provisions of the Hindu Marriage Act, 1955 and the
Protection of Women against Domestic Violence Act, 2005.

In this article we have demonstrated some cases which aid in understanding the law and its interpretation
by the Indian Judiciary.

Maintenance Case- Strict Proof of Marriage not required u/Section 125 CrPC- Supreme Court

Case name: Kamala and ors. v. M.R. Mohan Kumar

The Supreme Court in this recent case has reiterated the settled principle of law that unlike other
matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under
Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption
that they are legally married couple for claim of maintenance under Section 125 CrPC.

The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record
allowed the appeal holding that there was a valid marriage between the parties and moreover a strict
proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC. The
other observations made by the Apex Court in the case are as under:

The Supreme Court also made reference to it’s judgment in the case of Dwarika Prasad Satpathy v.
BidyutPrava Dixit, wherein it was held that the standard of proof of marriage in a Section 125
proceeding is not as strict as is required in a trial for an offence under Section 494 IPC. It was also noted
in the case that an application under Section 125 does not really determine the rights and obligations of
the parties as the section is enacted with a view to provide a summary remedy to neglected wives to
obtain maintenance.

The apex Court in the case also remarked that a broad and expansive interpretation should 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, and strict proof of marriage should not be a
precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the
beneficial provision of maintenance under Section 125.Merely because the wife is capable of earning it
is not a reason to reduce the maintenance awarded to her

Case name: Shailja&Anr. v. Khobanna

In this case, the Supreme Court made a remarkable observation by stating that merely because the wife
is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a
wife is capable of earning and is actually earning are two different factors.

What should be the Quantum of Maintenance?

The Supreme Court answered this question in the case of KalyanDey Chowdhury v. Rita Dey
Chowdhury Nee Nandy by holding that 25% of the husband’s net salary would be just and proper as
maintenance to wife.

The Supreme Court while deciding the review petition made reference to the case
of Dr.Kulbhushan v. Raj Kumari&Anr.[3], wherein it was held that 25% of the husband’s net salary
would be just and proper to be awarded as maintenance to the respondent-wife.

Other remarkable observations made by the Court in the case were:

 That the amount of permanent alimony awarded to the wife must be befitting the status of the
parties and the capacity of the spouse to pay maintenance.
 That maintenance is always dependant on the factual situation of the case and the Court would be
justified in moulding the claim for maintenance passed on various factors.
A similar observation has been recently made by the High Court of Kerala in the case of Alphonsa
Joseph v. Anand Joseph, wherein the Court remarked that Maintenance to Wife can’t be rejected on
ground that she is earningThe High Court thus, while making reference to Apex Court’s judgment
in SunitaKachwaha and ors. V. Anil Kachwaha, noted that even if the wife was earning some amount
that may not be a reason to reject her application for maintenance outright.It was also stated by the High
Court that as held by the Apex Court in a catena of decisions, the concept of sustenance does not
necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled
in law to lead a life in the same manner as she would have lived in the house of her husband with respect
and dignity.That the husband is not entitled to contend that he is not prepared to pay any maintenance
and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the
Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the
minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the
husband.
 RESEARCH METHODOLGY

Title of the study;-

Section 125 of CrPC provides for maintenance of wives, children and parents. It states as under:
o (A)If any person having sufficient means neglects or refuses to maintain-
 His wife, unable to maintain herself, or
o (b)His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
o (c)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
o (d)His father or mother, unable to maintain himself or herself,
o 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 rate16 [***] as such magistrate thinks fit, and to pay the same to such person as
the Magistrate may from time to time direct::
o Provided that the Magistrate may order the father of a minor female child referred to in clause
(b) 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.
o Provided17 further that the Magistrate may, during the pendency of the Proceeding regarding
monthly allowance for the maintenance under this sub-section, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother, and
the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same
to such person as the Magistrate may from time to time direct:
o Provided also that an application for the monthly allowance for the interim maintenance and
expenses for proceeding under the second proviso shall, as far as possible, be disposed of within
sixty days from the date of the service of notice of the application to such person]
o Explanation. For the purposes of this Chapter,
o (a)Minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875)
is deemed not to have attained his majority;
o (b)"Wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.
 o (2)Any Such allowance for the maintenance or interim maintenance and expenses for proceeding
shall be payable from the date of the order, or, if so ordered, from the date of the application for
maintenance or interim maintenance and expenses of proceeding, as the case may be. 
o (3)If any Person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole, or any part of
each month's 19 allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment
for a term which may extend to one month or until payment if sooner made:
o Provided that no warrant shall be issued for the recovery of any amount due under this section
unless application be made to the court to levy such amount within a period of one year from the
dare on which it became due:
o Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, ifhe is
satisfied that there is just ground for so doing.
o Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it
shall be considered to be just ground for his wife's refusal to live with him.
o (4)No wife shall be entitled to receive an allowance from her husband under this section she is
living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or
ifthey are living separately by mutual consent.
o (5)On proof that any wife in whose favour an order has been made under this section is living in
adultery, or that without sufficient reason she refuses to, live with her, husband, or that they are
living separately by mutual consent, the Magistrate shall cancel the order.

OBJECTIVES:
To study the maintenance under Hindu Marriage Act

To analyse whether women get satisfying maintenance

To examine whether women really need maintenance

HYPOTHESIS:

Ho: There is no significant change in maintenance under Hindu Marriage Act.

 Ha: There is significant change in maintenance under Hindu Marriage Act.
2984

SOURCES AND STUDY METHOD:

The study is doctrinal in nature and the sources are secondary sources which includes books, articles,
journals and internet sources.

RESEARCH QUESTION:

Problem: Whether all women get maintenance from their spouse after divorce?

Intervention: Hindu Marriage Act

Comparison: On Hindu and Muslim Law

 CONCEPT OF MAINTENANCE

The right to claim maintenance is a right recognised under different laws in India, each one is
different from other in main and another particulars. The child, wife, aged parents, divorced wife, other
near relations must obtain some subsistence for themselves. Maintenance in most cases is due to the fact
of marriage. Family tie and family obligations of more or less pressing type, call for the need of
maintenance. Litigations to obtain maintenance take the shape of legal battles in various countries, so
also in India Government tries to solve the problem by way of certain Acts passed in the legislature.
Statutory enactments try to solve the problem for mitigating the hardships of unemployed wife, children,
old and infirm parents who are unable to maintain themselves, obviously, for the reason that they have
no income of their own. The anti-vagrancy measures adopted by government of India can be better
utilized at the initiative of victims and for this, people in general should be legally conscious and active
to obtain their statutory benefits. Maintenance provisions among various communities in India are
enshrined mainly (a) in the personal laws of Hindu and Muslims who constitute the bulk population in
India and also (b) in the Code of Criminal Procedure, 1973.

MAINTENANCE UNDER VARIOUS LAWS

 Maintenance under Hindu Law.

 Maintenance under Muslim Law.
 Maintenance under Christian Law. d. Maintenance under Parsi Law.
 Maintenance under Code of Criminal Procedure 1973.
 Maintenance under Protection of women from Domestic violence Act, 2005. g. The Maintenance
and Welfare of Parents and Senior citizens Act, 2007.

Persons entitled to receive maintenance

Maintenance may be allotted to dependent children, parents and legally wedded wives, counting
but not limited to a divorced spouse, mistress, illegitimate children, etc.

In certain cases under personal law, the Indian courts have adopted a lenient view and granted the
husband the right to receive maintenance. Such right however, is conditional and typically conferred
upon the husband, only if he is incapacitated due to some accident or disease and rendered incapable of
earning a livelihood. Such an entitlement is not available to an able person, doing nothing for a living or
a „wastrel‟.
 The remedy under Section 125 is prompt and inexpensive, as compared to personal laws. The provision
relating to maintenance under any personal law is however, distinct and separate from Section 125.
There is no conflict between both the legal provisions. A person is entitled to maintenance under Section
125 despite having obtained an order under the applicable personal law. The Act predict certain
positions in which it may become unbearable for a wife to continue to reside and cohabit with the
husband but she may not want to break the matrimonial tie for various reasons ranging from growing
children to social stigma. There is a misapprehension that a working woman is not entitled to profess
maintenance as she is earning and is thus able to maintain herself. The Indian courts have recognised the
right of maintenance of a working woman and held that an estranged woman can claim maintenance
from her husband even is she earns a monthly income, which is not enough for her to maintain herself.
Thus, earning wife is entitled to maintenance under maintenance law for wife in India. The issue of right
to maintenance to the second wife has been faced by various High Courts as well as the Supreme Court,
and the courts have given different views depending upon the facts and situations of each case, thus
giving diverse interpretation to the expression “wife” under Section 125 of the Code of Criminal
Procedure. The interim maintenance is payable from the date of presentation of the petition till the date
of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate
needs of the petitioner.

Types of Maintenance under Hindu Laws

Under the Hindu maintenance laws, there are 2 types of maintenance that can be claimed by the wife.
When the wife files a maintenance petition through her divorce attorney, the burden to declare his
income shifts to the husband, who has the right to defend the maintenance petition.

The types of maintenance under Hindu laws are as follows:

Interim Maintenance:

When the wife files a maintenance petition, the court may award her interim maintenance
that the husband must pay from the date on which the application was filed by the wife till the
date of dismissal through her divorce law advocate. It is also known as Maintenance Pendent
elite and is paid so that the wife can pay for the legal expenses incurred by her.

Interim maintenance is awarded by the court if the wife has absolutely no source of income to
maintain herself. There are no laws that lay down the amount of this type of maintenance and it
is completely upon the discretion of the court to determine how much maintenance is sufficient
for the wife to sustain during the proceedings.
 Section 24 of the Hindu Marriage Act, 1955 lays down that both the husband and wife can file an
application for interim maintenance through their divorce advocate.
Permanent Maintenance:

Permanent maintenance is paid by the husband to his wife in case of divorce, and the amount is
determined through a maintenance petition filed through a divorce law lawyer in India. Section
25 of the Act states that the court can order the husband to pay maintenance to his wife in form
of a lump sum or monthly amount for her lifetime. However, the wife may not be eligible for
maintenance if there are any changes in her circumstances.

Under Section 18 of the Hindu Adoption and Maintenance Act, 1956, a wife has the right to live
separately from her husband without affecting her right to claim maintenance. Under this law, a
wife can live separately from her husband in the following cases:

o The husband has deserted the wife without any reasonable cause.
o The husband has subjected the wife to cruelty.
o The husband is suffering from leprosy of virulent form.
o The husband has extra-marital affairs.
o The husband has converted to another religion.

However, the wife is not entitled to claim maintenance in the following circumstances:

o She has ceased to be a Hindu by converting to another religion.

o She is guilty of adultery i.e. she is unchaste and indulged in physical relations with
another man.
o She has remarried after the divorce.

Calculation of Maintenance under Hindu Laws

The amount of maintenance to paid depends upon different factors. The courts rely on the provision of
Section 23 of the Act while asserting the total maintenance that the husband needs to pay to his wife.
The provision lays down the following factors that must be considered to fix a maintenance amount:

o The position and status of the husband and wife,

o Whether the wife has an actual claim for maintenance.
 o If the wife is living separately, whether the reason to do so is justified.
o The wife‟s total property and income.
o The husband‟s total property, income generated from this property, and his other income.
o The total number dependents and their expenses borne by the husband.

The personal expenses of the husband.

MAINTENANCE OF WIFE:

The right of maintenance under Hindu law is very ancient and it was one of the primary
necessities of the joint family system. According to my understanding the maintenance of the women in
the joint family system was an important system and this was followed as a tradition which governed the
families. It was the responsibility of the head of the family (karta) to look after the women of the family
i.e. their wives and their daughters until they were married. Latter when the women grew older it was
the duty of their children to mother and other old women of the family. The unchastity on part of the
women excluded them to maintenance. Their remarriage ended the claim and the amount of
maintenance depended upon various factors like the status of the family, necessary requirements, wants,
age, etc. Section 24 of Hindu Marriage Act, (HMA) 1955 allocates for maintenance.

Under this Act also, only a wife has a right to claim maintenance. The Hindu husband has a legal
obligation to maintain his wife during his lifetime. However, if a wife ceases to be Hindu or lives
individually under no legal grounds she looses the right to claim maintenance too. Also, a Hindu wife
under this act shall not be entitled to separate accommodation and maintenance from her husband if she
is unchaste or converts to another religion. Wife can claim separate residence only if husband remarries
and the other wife stays in the same house. Under this act (Section 19), a (Hindu) wife after the death of
her husband is entitled to be maintained by her Father in-law, if she has no means of her own earnings.
However, the right cannot be enforced if her Father in-law does not have means to do so and if the wife
remarries. The liabilities of a Hindu to maintain others are personal liability and liability dependant on
possession of property where the former arises from mere relationship between the parties and the latter
arises due to possession of property.

Maintenance of Wife under Section 18, the Hindu Adoptions and Maintenance Act,1956

Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her spouse for
lifetime i.e. she will be given maintenance until she dies or her husband dies. Under section 18 of this
 Act a Hindu wife is entitled to live separately from her husband without cancelling her right to claim
maintenance. The grounds under which she can live separately are:-

o Husband is guilty of desertion

o The Husband has treated her with cruelty
o The husband is agonizing from a virulent form of leprosy
o The husband has any other wife living.
o The husband keeps a concubine elsewhere
o The Husband has halted to be a Hindu by conversion to another religion and
o if there is any other cause justifying living separately

But there are two bars which will prevent a wife from claiming maintenance from her husband i.e. (i) if
she is unchaste or (ii) if she halts to be a Hindu by conversion to another religion.

In determining the amount of maintenance the following has to be considered;

o The net value of the estate of the deceased after providing for payment of debts.
o The provision, if any made under a will of the deceased.
o Degree of relationship with the dependant.
o Reasonable wants of dependant.
o No. of dependants.

The claim of a dependant for maintenance does not impose any change on the estate of deceased unless
a will mandates the same. Under Section 24 of the Hindu Marriage Act, 1955 relief may be provided by
way of maintenance and litigation expenses to either of the spouse if he/she is unable to maintain herself
during the pendency of proceedings. Under Section 25 of the Act, 1955 both husband and wife may be
granted maintenance and permanent alimony after passing a decree of restitution of conjugal rights,
judicial separation, divorce and annulment of marriage under the said Act, if the husband or wife is
unable to maintain himself/ herself.

Quantum of maintenance

Maintenance covers not merely food, clothing and shelter, but also includes other necessities. The
quantum and type of necessities covered within the scope of maintenance may vary, depending on the
 status, financial position and number of dependents, etc and is at the discretion of the court. Antecedent
to passing an order under Section 125, the court does
take cognizance of the amount of maintenance already ordered under the personal law. The reasoning is
based on the premise that the wife is entitled to live as per the standard and status of her husband.

Judicial precedents

There is a spate of judicial precedents on the concern of maintenance. Until recently, the term
„wife‟ was interpreted in a narrow manner, since the intention of the judiciary was to protect destitute
and harassed women. The Indian courts held that only a lawfully wedded woman was entitled to claim
maintenance.

The change in perception vis-à-vis social relationships and the growing trend of live-in relationships has
influenced the Indian mindset. This is apparent from a recent case decided by the Delhi High Court, in a
personal law matter, wherein the couple had lived like a married couple for 14 years and the man had
concealed the fact that he was already married. Furthermore, the woman had taken the responsibility of
running the household as a housewife, treated the man as her husband and had borne and bred two of his
children. The view taken by the court was that on account of the nature of the relationship and the
aforementioned facts, the woman should not be deprived of her right to maintenance, under the personal
law relevant to Hindus (which constitutes almost 80 per cent of Indians). The court further expressed
that denial of maintenance under such circumstances would amount to putting a premium on or
rewarding the man for defrauding the woman by concealing his first marriage. It was further recorded
that for the purpose of granting maintenance under the personal law, women placed in the position of
second wife, can be treated as legally wedded wives and are entitled to maintenance.

In a case decided on 14 November 2008, the Apex Court has recently ruled that maintenance necessarily
encompasses a provision for residence and has therefore ordered that the woman be provided with a
residential facility similar to that which she had been accustomed in the past.

MAINTENANCE UNDER MUSLIM LAW IN COMPARISION WITH HINDU LAW:

A Hindu woman is more privileged than Muslim women. On the basis that, a Hindu woman is
entitled to maintenance by her husband throughout her life but in case of Muslim women, she is entitled
to maintenance by her husband only during the iddat period. The court tried to make both the
communities on the same line and tried to provide women of both the with communities with
maintenance throughout the life. The judiciary tried to allocate women of both communities with equal
opportunities and rights. But as usual in the case of Indian democracy the congress government bowed
in front of the vote bank politics and brought in the „The Muslim Women (Protection of Rights on
Divorce) Act, 1986.‟ This act completely took away the right of the women to maintenance beyond the
period of iddat by the husband. Hindu women can ask for award of maintenance under Section 125 of
heCrPC but in case of a Muslim women she can file a case under the same but will be awarded
maintenance under this act only if the husband recognizes this in a way.

Under maintenance laws in India, maintenance under Muslim law is known as “Nafqah” which means
what a man spends over his family. “Nafqah” basically includes food, clothing and lodging.
A mohemaddan is bound to maintain his wife under Muslim law. Her right to maintenance is absolute
and not conditional to whether she can maintain herself or no. maintenance can be denied to a wife only
under the following circumstances:

o She has not obtained puberty.

o She abandons conjugal domicile without any valid cause.
o She is disobedient to reasonable commands of her husband.
o If she has eloped with somebody.

Social status of the parties and economic condition of the husband are taken into consideration while
determining the quantum of maintenance.

However, according to all schools of Muslim law, the wife can claim indebtedness of past maintenance
if any maintenance allowance to her was promised by husband under any separate agreement. Such
agreements are generally made to assure a wife to receive a regular pocket-allowance called Kharch-i-
pandan or, Mewakhori. She is entitled to get indebtedness of maintenance also in a case where
maintenance was ordered by the court but remained unpaid.
 CONCLUSION

It is evident from the recent judicial decisions that the Indian courts have been progressively liberal in
deciding cases pertaining to maintenance. The bone of contention however is whether a paramour can
become entitled to receive maintenance merely from the factum of living with a married man, coupled
with the dispute as to whether the bigamy is legally permissible. While it appears from the decisions
passed under the personal laws that the same may be possible, judicial decisions pertaining to Section
125 continue to uphold the view that maintenance can be claimed only by a legally wedded wife. It is
clear from the foregoing that though, over a period of time improved rights are bestowed upon Indian
Hindu women, the rights available to them do not match with the rights required. Maintenance has been
a concern of not only weaker sections but of the society as well. For weaker sections it is a problem in
the sense their very sun/ival rest on the provision made available as maintenance.