MAINTENANCE FOR HINDUS

Maintenance means an amount that is paid by the husband to his wife when she is not able to maintain herself during the subsistence of the marriage and after separation and divorce. That amount of money provided should help her in all her basic needs which include providing her with a residence or a shelter. Various laws apply to the matters of maintenance of wives, children, and their dependent.

When a wife is required to file a Maintenance Petition under Hindu law, she can approach the court which has appropriate territorial jurisdiction to deal with the matters. It can be filed before the family court and the petition has to be filed with all the necessary documents. Under Hindu law, several acts deal with maintenance and they fall within the jurisdiction of the Family Courts. Those are governed under the Family Courts Act, 1984. Few acts that deal with family maintenance are the Hindu Marriage Act, 1955, Family Courts Act, 1984, Hindu Adoption and Maintenance Act, 1956, Code of Criminal Procedure, 1973 (Section 125-128)

Hindu Marriage Act, 1955

Under Sec. 24 of the Hindu Marriage Act[1], the husband can get maintenance pendente lite and expenses of proceedings. Under Sec. 25 of the Act[2] Husband has the right to get permanent alimony and maintenance.

Maintenance under the Hindu Marriage Act, 1955 is given under section 24 of the Act. This provision gives financial relief to the affected spouse after the divorce. When the spouse has no independent earning to support his/her life and the necessary expenses of the proceeding, then the affected party may initiate an application before the court of law. In this case, the court will order the respondent to pay to the petitioner the necessary expenses including the cost of litigation as it may seem to the court to be reasonable. The respondent shall also support a sum of amount every month or every year until the life of the applicant and that payment may be secured. Under this Section, not only a wife but even husbands can claim maintenance by proving that he has no independent source of income to support himself. This provides relief and relaxation to the parties seeking maintenance being unable to maintain him/her. Finally, after the order has been passed if there is any change in minds of the parties or due to the circumstances, if the parties are put into a different scenario then such order passed can be modified and may be brought before the family court.

The Kerala High court gave a judgment that a husband cannot be provided maintenance until he establishes that he is permanently disabled from getting any income he cannot seek maintenance from the wife.[3]

There is also one provision given under the matrimonial statute. Section 27 of the Hindu Marriage Act also deals with issues relating to property division. “Property presented at the time of marriage or after will be acquainted by both the husband and wife”

Hindu Adoption and Maintenance Act, 1956

Under this act, A Hindu wife can be given maintenance for her entire lifetime. It is dealt with under Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 in which section 18(2) deals with her right to live separately, which does not forfeit her right to maintenance when the husband is guilty of any of the misbehaviours or on any one of objectionable conditions as mentioned. Therefore this acts provides the wife to claim maintenance from her husband while sustaining her marriage and preserving her marital status. This matter will be brought to the Family courts for proceedings.

Code of Criminal Procedure, 1973

Section 125 of CrPC deals with maintenance. It says that the following persons can claim for maintenance

-Wife

-Legitimate or illegitimate minor child, whether married or not, unable to maintain itself

-Legitimate or illegitimate children (not a married daughter) attained majority but unable to maintain itself due to physical or mental abnormality.

-Father or mother, unable to maintain himself or herself

The word ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

Maintenance for children and parents

Maintenance can be obtained for aged parents and the expenses of children if any. Section 26 of the Hindu Marriage Act, 1955 deals with the custody, maintenance and education of minor children. In this scenario, it is said that the obligation to maintain the children falls on both the parents. The court may order as it considers necessary from time to time and pass interim orders at the same time and has the power to revoke, suspend or vary such order.

Under Section 20 of the Hindu Adoption and Maintenance Act, 1956 determine the obligation on a male or female to maintain their children whether legitimate or illegitimate, their minor children and aged parents, by providing an amount that has been determined by the competent court by considering few factors.

The financial position of the parties in litigation
Needs of the parties. For Example, Education expenses etc
Dependence of the parties
Economic background of the parties. For Example, Assets, properties etc

Certain observations were made by the Delhi High Court while dealing with the issue of deciding the maintenance to be granted for a child. Both the parents have a legal, social and moral obligation to maintain their children and provide them with the best standard of living, depending on the financial footing of the parties. They are equally obligated to provide the means for the best education.

It was further held that even if the child is living with the spouse whose income is sufficient enough to maintain the child, it cannot be taken as a good ground by the other spouse of not maintaining the child or taking care of the child’s welfare.[4]

Types of maintenance

Interim maintenance

This is called “Pendente lite”. Section 24 of the Hindu Marriage Act,1955 defines this kind of maintenance In this type of maintenance the wife may file a petition to the court against the husband asking for a source of income to maintain her. The court orders maintenance accordingly and it is the discretion of the court to decide upon the amount of maintenance that has to be provided to the wife to maintain herself during the processing of divorce. The purpose of this type of maintenance is to meet the necessary and immediate expenses of the spouse who is a party to the proceedings. This maintenance can also be claimed under Section 125(1) of CRPC.

Permanent Maintenance

In this type of maintenance, the husband supports the wife by paying a said amount prescribed by the court. This will be paid every month where the court orders the husband to pay maintenance to his wife to maintain herself. The amount will be determined by the court and decided accordingly which depends on the status of both parties. Through the petition of maintenance, the husband is bound to pay the amount monthly and this is determined as permanent maintenance.

However, if there are any other changes from the side of the wife claiming maintenance, then she may not be eligible for maintenance. Also, without any effect on the right to claim maintenance, a wife has the right to live separately from her husband.

Steps to file maintenance petition under Hindu law

Firstly, the wife has to approach the court and file a maintenance petition in a family court that has the jurisdiction to take the case. The contents in the petition have to be made with correct facts with a help of a family lawyer. The remedy needed has to be mentioned in the petition. The petition has to be attached with few other necessary documents like an affidavit, and other documents relating to the income of both the spouses. These income factors will be considered by the court to determine the amount of maintenance.

Other factors that have to be taken into consideration are given in a case. Certain observations were made by the Delhi High Court in this related issue while deciding the maintenance for a child. It is said that both parents have equal rights to maintain and take care of the child. They also have a legal, social and moral obligation to provide them with the best standard of living, depending on the financial footing of the parties. They equally share the obligation to provide the means for the best education. It was also held that even if the child is living with the father/mother whose income is sufficient enough to maintain the child cannot be taken as a good ground by the other spouse of not maintaining the child or taking care of the child’s welfare. [5]

[1] https://indiankanoon.org/doc/1449825/

[2] https://indiankanoon.org/doc/95286/

[3] Nivya Vs M V. Shivaprasad (2017)

[4] Sukhjinder Singh Saini v/s Harvinder Kaur

[5] Sukhjinder singh saini v/s Harvinder kaur Crl. Rev. P. No. 494 of 2015 and Crl. M.A. No. 11437 of 2015

MAINTENANCE UNDER MUSLIM LAW

Maintenance is providing support (financially) to those who are unable to support themselves. The concept of ‘Maintenance’ in Muslim personal law imposes an obligation on a husband to provide basic needs like food, clothing, shelter, etc. to his wife, children and parents. In Islam, maintenance is called ‘Nafaqah’ which means the support a husband provides to his family i.e. wife, children, parents, siblings if they can’t support themselves.[i]

Who are eligible for getting maintenance?

Under Muslim law 3 classes of people have the entitlement for maintenance. They are

-Wife

-Children

-Parents and Grandparents

Wife

In Muslim law the wife’s right to be maintained is absolute irrespective of whether she can maintain herself or not. Hence all Muslim women (earning and not earning) are eligible to claim maintenance. It is the duty of the husband to provide maintenance irrespective of his financial condition.The wife is also capable of receiving a special allowance known as Kharcha-i-pandan[ii], if given under an anti-nuptial agreement between the parties to the marriage. It is a kind of personal allowance given by the husband to the wife and is the absolute property of the wife

A Muslim woman cannot claim maintenance in the following cases:

If she has abandoned her husband and matrimonial duties.
If she elopes with another man.
If she does not obey the reasonable commands of her husband.

Maintenance of Muslim women can be discussed under three headings

– Muslim personal law

-Section 125 Criminal Procedure Code 1973 and

-The Muslim Women (Protection of Rights on Divorce) Act, 1986

Muslim personal law

As per Muslim personal law, a divorced Muslim woman can claim maintenance only while observing Iddat, three menstruating period or till delivery in case the woman is pregnant. The former husband’s liability to provide maintenance extends only till the Iddat period.

Section 125 Criminal Procedure Code 1973

Section 125 is also applicable to a divorced Muslim wife. Here the term ‘wives’ also includes ‘divorced wives’[iii]. Section 127(3) provides that the order of maintenance in favour of a divorced wife shall be cancelled, and such woman shall not be entitled to maintenance under the following circumstances:

-Where the divorced woman has remarried

-Where such woman has received the whole sum due to her on divorce under any customary or personal law, and

-Where the woman, after obtaining a divorce from her husband, has voluntarily surrendered the right to maintenance.[iv]

In Mohd. Ahmad Khan v. Shah Bano Begum[v], the Apex Court reiterated its stand and held that a divorced Muslim woman, as long as she has not remarried, is a wife for the purpose of section 125, and is entitled to maintenance from her former husband.

Maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986

-Maintenance during Iddat

A Muslim woman is entitled to reasonable and fair amount of maintenance during the Iddat period. It is her absolute right.

-Maintenance after Iddat

If a divorced Muslim woman remains unmarried and is unable to maintain herself, she should be given maintenance by her relatives who would receive inheritance upon her death. If there are no such relatives present, it is the duty of the Waqf board of the state she resides to provide her maintenance (Danial Latifi & Anr vs Union Of India)[vi]

Children

A Muslim father is obliged to maintain his legitimate son until he attains puberty age (age of majority under Muslim law). A Muslim father should maintain his daughter till she gets married. Under Muslim law, a Muslim father need not maintain his illegitimate children.

Parents and Grandparents

It is the obligation a man to provide maintenance for his father, mother and grandfather and grandmother if they cannot support themselves.

As per Shia Law, the right of the two parents is equal. So also the right of the parents and children are equal. Maintenance in each case must be divided equally. If the son is under the circumstance where he can support only one parent, the mother is preferred. When it comes between parents or grandparents, the parents are preferred to grandparents.

A son need not provide maintenance to his step-mother.

According to Shafei law, maintenance is due from all the descendants together but they are not equal in all respects. The obligation is on the nearest.

[i] http://www.oxfordislamicstudies.com/article/opr/t125/e1688

[ii] https://wayofsharia.wordpress.com/2011/10/03/maintenance-for-wife/

[iii] Section 125 of The Code Of Criminal Procedure, 1973

[iv] Section 127(3) of The Code Of Criminal Procedure, 1973

[v] AIR 1985 SC 945

[vi] https://indiankanoon.org/doc/410660/

Maintenance under Parsi Law

Maintenance of Parsi Wives and Children under the Parsi Marriage and Divorce Act, 1936

According to Section 37 of the Parsi Marriage and Divorce Act, 1936, the defendant in divorce case may make a counter-claim for any relief he or she may be entitled to under this Act.

As per Section 39 of the Parsi Marriage and Divorce Act, 1936, where in any suit of divorce under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the suit, it may, on the application of the wife or the husband, order the defendant to pay to the plaintiff, the expenses of the suit, and such weekly or monthly sum, during the suit, having regard to the plaintiff’s own income and the income of the defendant, it may seem to the court to be reasonable. But, the application for the payment of the expenses of the suit and such weekly or monthly sum during the suit, shall as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband as the case may be.

Permanent alimony and maintenance

-Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose, by either the wife or the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff having regard to the defendant’s own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, be a charge on the movable or immovable property of the defendant.

-The court if it is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.

-The Court if it is satisfied that the party, in whose favour an order has been made under this Section, has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any women outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just (Section 40).

Payment of alimony to wife or to her trustee

Under Section 41 of the Parsi Marriage and Divorce Act, 1936, in all cases in which the Court shall make any decree or order for alimony it may direct the same to be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court or to a guardian appointed by the Court, and may impose any terms or restrictions which to the Court may seem expedient, and may from time to time appoint a new trustee, or guardian if for any reason it shall appear to the Court expedient to do so.

Parsi property

According to Section 42 of the Parsi Marriage and Divorce Act, 1936, in any suit of divorce under this Act, the Court may make such provisions in the final decree as it may deem just and proper with respect to property presented at or about the time of marriage which may belong jointly to both the husband and wife.

As per Section 50 of the Parsi Marriage and Divorce Act, 1936, in any case in which the court shall pronounce a decree of divorce or judicial separation for adultery of the wife, if it shall be made to appear to the Court that the wife is entitled to any property either in possession or reversion, the Court may order such settlement as it shall think reasonable to be made of any part of such property, not exceeding one-half thereof, for the benefit of the children of the marriage or any of them.

Children of the parties

According to Section 49 of the Parsi Marriage and Divorce Act, 1936, in any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of eighteen years, the marriage of whose parents is the subject of such suit, and may, after the final decree upon application, by petition for this purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such final decree or by interim orders in case the suit for obtaining such decree were still pending. But the application with respect to the maintenance and education of such children during the suit, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.