Table of Contents
What is Maintenance
Maintenance is the financial assistance provided by the husband to his wife during the divorce proceedings and post-divorce proceedings, in a scenario where she is unable to sustain herself financially. It can be paid by the husband on a monthly basis or as a lump sum.
The main aim of maintenance is to restore the wife’s comfort and lifestyle to the same position as of the time she was married. The amount of maintenance to be paid is not fixed. It is decided by the family court on a case to case basis taking into account a number of factors.
Maintenance of Women under Hindu Law
A wife living separately from husband can claim maintenance on the following grounds under Section 18 of the Hindu Maintenance and Adoption Act:
Abandonment or neglect by the husband against her wishes
Husband has treated her with cruelty
The husband is suffering from a virulent form of leprosy
If he has any other wife living
If he has a concubine is his own house or habitually lives with one elsewhere
If he has converted religion without the consent of his wife
Any other reason which can be justified
Maintenance in case of the death of the husband
If a husband dies and the wife is unable to maintain herself from the estate of her husband, mother and father or son and daughter, she is entitled to get maintenance from her father-in-law. Such obligation shall cease in case she decides to remarry.
Interim maintenance during proceedings under Hindu Marriage Act
In case, either the wife or husband has insufficient means to his or her support and the necessary expenses of the proceedings, it may order the other partner to pay a lump sum or monthly expenses as it deems reasonable under Section 24 of the Act.
Maintenance under 125 Cr.P.C
Section 125 of the Criminal Procedure Code provides for maintenance rights to a woman during marriage, divorce proceedings and post the divorce. It is a secular provision and can be availed by all women irrespective of religion. A ‘wife’ who is unable to maintain herself is not maintained by a husband having sufficient means and income can bring about a suit under this act to claim maintenance.
‘Wife under this section also includes a woman who has divorced from her husband but not remarried.
Section 128 of the Cr.P.C allows the Magistrate to give directions for the enforcement of maintenance order.
Procedure to get maintenance under 125 Cr.P.C
An application for maintenance is to be filed before the magistrate in one of the following places:
The district where the husband is at present.
The district where he last resided with his wife
The district of residence of the husband or his wife
Post the application to the magistrate, the facts of the case are examined and if it satisfies the required conditions under the Section, maintenance is granted.
The circumstances when maintenance cannot be claimed
Wife is in an adulterous relationship
Refusal to live with husband without a valid reason
Living separately with mutual consent
Remarriage of wife after divorce
How to get an alteration of order under Section 127 Cr.P.C due to change of circumstances
Whenever there is change of circumstances, the magistrate can make an alteration of the order given under Section 125. The following powers are given to the magistrate under this Section taking into consideration any change in circumstances
Reduce, increase or set aside the monthly.
Vary or cancel the order of the Civil Court
Civil Court can cancel the order in the following circumstances:
If the women has remarried
The women has received the whole sum which she was entitled to, before or after the order
The women has voluntarily surrendered her right to maintenance
An application has to be filed before the magistrate specifying the change in circumstances. The factors are taken into consideration and decision is given accordingly.
Maintenance under Special Marriage Act, 1954
Under Section 36 of the Special Marriage Act, if the Court feels that the wife does not have sufficient income and means to pay the expenses of the proceedings, it can order the husband to pay the expenses of such a proceeding on a weekly or monthly basis or in lump sum. This can be done on application to the Court and taking into consideration the income of the husband.
Maintenance under the Domestic Violence Act, 2005
Section 20 of the Domestic Violence Act empowers the magistrate to order the respondent to pay monetary relief to the aggrieved person in order to meet the expenses incurred and compensate for the losses suffered as a result of Domestic Violence. The relief includes, but is not limited to, the following:
The loss of earnings
Any loss arising due to the destruction, damage or removal of any property from the control of the affected person
Maintenance for the affected person and her children. This can be in addition to the order of Maintenance under Section 125 of Criminal Procedure Code. The same was held by the Delhi High Court in Shome Nikhil Danani v. Tanya Banon Danani (2019 SCC OnLine Del 8016).
Maintenance in a live-in relationship
In the case of D Velusamy Vs D Patchaiammal (AIR 2011 SC 479), the Hon’ble Supreme Court laid down conditions for a ‘relationship in the nature of marriage’.
The image of the couple in the society should be akin to spouses
They should be above the age of majority for marriage
They must be qualified to enter into a legal marriage in addition to the above condition
They have voluntarily co-habited the same space and have held out to the world as being akin to spouses for a significant period of time
If a couple fulfils the above conditions laid down by the Supreme Court, the female can claim maintenance under the relevant sections of the Domestic Violence Act.
Maintenance claim from a husband living abroad as an NRI
A wife is entitled to claim maintenance from an NRI husband under the relevant above mentioned provisions of Indian Law. These include Hindu Marriage Act, Hindu Maintenance and Adoption Act, Criminal Procedure Code, Domestic Violence Act etc.
In Jagir Kaur v Jaswant Singh (AIR 1963 SC 1521), it was held by the Hon’ble SC that if a person who deserts a wife or child leaving them helpless in a particular district and goes to a distant place (domestic or foreign) and returns to a district or neighbouring one even for a temporary visit, the wife can take advantage of this and file a petition in the district where he is. If such a person is always on the move, the wife can catch him at a convenient place and file a petition under Section 488 of the Code.
In Vikas Aggarwal v Anubha (AIR 2002 SC 1796), the Hon’ble SC held that the court can order a husband to be physically present and can also order a restraint against proceedings in a foreign nation.
Maintenance claim of second wife
As per law, a person cannot remarry under the Hindu Marriage Act. A marriage with a second wife, without obtaining divorce from the first, is legally invalid. However, the Supreme Court has held that if a person concedes that he is married to someone and the second wife has been kept in the dark about it, she is entitled to claim maintenance from the husband in the same manner as the first wife. The relevant sections under Criminal Procedure Code, 1973 and Hindu Marriage Act will both be available to her. In addition to this, she can also file an application for divorce under Section 13(1) of the Hindu Marriage Act if she is married under the Act.
In Badshah v. Urmila Badshah Godse and Another ((2014) 1 SCC 188), the Supreme Court held that a victim of a bigamous marriage is entitled to maintenance under Section 125 of Cr.P.C.