Wife’s right to Claim Maintenance in India - Lawwatch : Resources for Learners

What does maintenance mean?

Maintenance refers to the amount payable by a husband to the wife (or wife to husband) who is unable to maintain herself. It can be claimed either during the marriage or after the divorce.

The objective of granting maintenance is to ensure that the dependent spouse should not be lead to destitution or vagrancy but it should not be a punishment to the other.

Maintenance should include as food, clothing, and shelter and other essential needs for a normal living.

The laws governing Maintenance

The laws governing Maintenance to wife are:

Hindu Marriage Act, 1955
Hindu Adoption and Maintenance Act, 1956
Muslim Women (Protection of Rights on Divorce) Act, 1986
Parsi Marriage and Divorce Act, 1936
Indian Divorce Act, 1869
Special Marriage Act,1954
The Protection of Woman from Domestic Violence Act, 2005
Criminal Procedure Code (CrPC), 1973

Types of maintenance: interim & permanent

Interim Maintenance is the one which is provided during the pendency of proceeding of divorce or separation. It is paid from the date of filing the petition till the divorce decree is ordered. It intends to cover the immediate needs of the spouse.

The provisions of law that enable the spouse to obtain temporary maintenance are:

Section 24 of Hindu Marriages Act, 1955,
Section 125 (1) of Criminal Procedure Code (CrPC),
Section 36 of Special Marriage Act, 1954
Section 39 of Parsi Marriage and Divorce Act, 1936
Section 36 of Divorce Act, 1869
Section 20 (1) (d) of the Protection of Woman from Domestic Violence Act, 2005

Interim maintenance, under the Sections stated above, is paid by the financially sound spouse to the other who is dependent. It will also cover the expenses of the proceedings and other ones that might occur during the divorce proceeding.

Permanent Maintenance is the amount granted after the issue of divorce decree. It can be a gross sum or periodical or monthly payment as decided in the court order.

The legal provisions governing permanent maintenance are:

Section 25 of Hindu Marriages Act, 1955,
Section 125 of Criminal Procedure Code (CrPC),
Section 37 of Special Marriage Act, 1954
Section 40 of Parsi Marriage and Divorce Act, 1936
Section 36 of Divorce Act, 1869
Section 20 (1) (d) of the Protection of Woman from Domestic Violence Act, 2005

Basis of calculating maintenance

The court shall have the discretion in determining the amount of maintenance. But the Court will have to consider the following things to arrive at a fair amount of maintenance:

Social status and position of both husband and wife
The basic and reasonable needs of the spouse claiming maintenance.
The income and/or financial independence of the spouse claiming the maintenance
The lifestyle of the spouse
The liability of the spouse providing maintenance
The value of the movable and immoveable properties of the spouse claiming maintenance
The income of the spouse providing maintenance
The number of members who are financially dependent on the spouse providing maintenance

This list is not an exhaustive one but an indicative one. The Section 23 of the Hindu Adoption and Maintenance Act, and the Section 125 of Criminal Procedure Code (CrPC) provide for criteria that the court may have to consider while determining the amount of maintenance.

A wife can claim maintenance without getting a divorce

As per the Section 18(2) of Hindu Adoption and Maintenance Act, 1956, the wife, living separately from the husband, is also entitled to get maintenance.

If the husband is liable for desertion.
If the husband is liable for cruelty.
If the husband is suffering from leprosy.
If the husband is liable for bigamy.
If the husband converts his religion without the consent of the wife.

The Section 125 (1) (a) of Criminal Procedure Code (CrPC) also provides for a wife who is unable to maintain herself to be granted maintenance if she is neglected or refused maintenance by her spouse who has sufficient means to provide maintenance.

Can a husband deny maintenance to wife?

In some specific circumstances such as adultery and remarriage, the husband can deny maintenance to wife.

Adultery: According to Section 125 (4) of the Criminal Procedure Code (CrPC), wife is not entitled to maintenance if she is liable of adultery, refusing to live with her husband without any sufficient reason or if the divorce is sought by mutual consent.

Remarriage: A wife is not entitled to maintenance if she remarries or if the divorce is by mutual consent. The wife continues to get maintenance from husband until the time set by the court comes to an end.

The husband can deny maintenance based on one of the above grounds by providing sufficient proof about it in the court.

Calculation of the amount of maintenance

No pre-fixed formula is there for calculating the maintenance. Various factors are considered by the Courts including the living standards of the husband and the rational needs of the wife.

However, the Supreme Court, in a case, has ordered that 25% of the husband’s net salary be paid as maintenance to his estranged wife. The court believes that this 25% will be the just and proper amount as the husband needs to take care of his family, if he has remarried.

Working wife can claim maintenance

Yes. If the woman is earning but her income is not sufficient, she can still claim maintenance from her husband.

Usually, it is a common belief that working woman cannot claim maintenance but it does not hold true when the wife’s earnings are not enough for her own well-being.

Just because wife is working her rights to claim maintenance cannot be denied. It is up to the court to decide whether a woman actually requires maintenance or not and it depends upon the facts of each case.

When wife gets equal amount of salary

It depends on the case. The earning status of both the parties will be considered during maintenance proceedings.

Since both the husband and wife are earning equally there is no legal obligation for the husband to provide maintenance to wife. But if the wife is holding custody of the minor child, the expenses of the child should be shared equally by the husband.

If a woman is earning much more than her husband, she is not entitled to claim maintenance.

What is the difference between alimony and maintenance in India?

Alimony is a one-time payment usually made once the divorce is finalised and is mostly preferred in mutual consent divorces, whereas maintenance can be temporary or permanent and will be paid for continuous period either monthly or periodically for the sustenance of the spouse.

How to file an application for maintenance?

A case can be filed under Section 125 CRPC before the family court or judicial magistrate nearest to the husband or wife’s current residence or where they resided as a couple along with essential documents such as photographs of marriage and marriage certificate as evidence.

An application for maintenance can be filed during the divorce proceeding or after getting the divorce decree.

SC guidelines in maintenance

In regard to maintenance case being agitated in different courts under different provisions of law leading to multiple of cases on the same issue, the SC issued some guidelines in Rajnesh v Neha, as follows:

Issue of overlapping jurisdiction

Maintenance may be claimed under one or more statutes since each of them provides a distinct remedy.

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings under different provisions of law, the Family Courts/District Courts/Magistrate Courts must follow uniformity in procedures throughout the country, as follows:

where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set- off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

Affidavit of assets & liabilities to be filed

The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of the judgment in Rajnesh v Neha, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

Determining the quantum of maintenance

For determining the quantum of maintenance payable to an applicant, the court shall consider the criteria enumerated in Part B – III of the above said judgment.

The guidelines stated in the judgement are not exhaustive. The concerned court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case while determining the quantum of maintenance.

Execution of the order

After getting the order of the Magistrate granting maintenance, the applicant will have to file an execution petition before the court at the place where the opposite party liable to pay maintenance resides. The application for execution can be filed under Section 28A of the Hindu Marriage Act, Section 18 of the Family Court Act, Order 21 rule 94 of the Civil Procedure code ( CPC), Section 24 of the Hindu Marriage Act, Section 20(3) of the Protection of Woman from Domestic Violence Act and Section 128 of the CrPC.

The order or decree of maintenance may be enforced like a decree of a civil court through civil detention, attachment of property etc and contempt proceedings for wilful disobedience.

Section 125(3) of the CrPC provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier.

If there is no payment of maintenance due for `n’ number of months the defaulter in one Execution Petition can be sentenced to imprisonment up to a maximum of `n’ months, provided `n’ does not exceed 12.

If there is breach of payment of maintenance due for one particular month – notwithstanding the fact that such payment was not made for `n’ months from the date on which it became due, the defaulter can be sentenced only to maximum imprisonment for one month and not `n’ months. Even when the breach in respect of one particular month continues for any length of time, the maximum sentence for breach of the liability to pay one month’s maintenance continues to be one month only.

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