This article on ‘Women And Maintenance: A Legal Interpretation – All You Need To Know‘; is written by Kashish Goyal. She is Content Writer & Legal Researcher at Legal Thirst.
“To achieve social justice , equality and for better economic conditions of the women”
Table of Contents
Abstract
In this article, I have discussed when a woman is entitled to claim maintenance from her husband; and what the basic objective of providing the allowance is. In India, There are many laws which govern the maintenance for women. I have given briefs about the relevant provisions under various laws. Judiciary also plays a vital role in providing maintenance by various landmark judgments which I have discussed below.
Introduction
Maintenance basically means a duty of the husband to provide the assistance to the wife during the divorce or after the divorce proceedings. There are some basic necessities of human life to live a dignified life. It is the natural duty of the men to provide such basic amenities such as food, clothing, shelter and other things which are necessary. It is generally given when the wife is not able to maintain herself. The amount of maintenance is not fixed as it depends upon the facts of the each case.
Objectives of Maintenance
- To restore the position of wife as it was when she was married.
- To maintain the standard of living of the spouse.
- In order to prevent destitution.
- To serve a social purpose and empower the dignity of an individual.
Grounds of Maintenance [1]
- They are living separately
- The husband treated her wife with cruelty.
- He has any other wife living
- If, he is suffering from venereal diseases.
- He has wilfully neglected her.
Statutes of Maintenance to Women
- The Hindu Marriage Act 1955
- The Hindu Adoption and Maintenance Act 1956
- Protection of Women from Domestic Violence Act 2005
- The Code of Criminal Procedure Act 1973
- Muslim Women (Protection of Rights on Marriage ) 2019
- The Indian Divorce Act 1869
- Special Marriage Act 1954
Relevant Positions Under Laws
Hindu Marriage Act 1955
According to the Section 24 of Hindu Marriage Act 1955:-
If during the proceedings of the case, the court thinks that either the husband; or wife has no sufficient independent income to pay the necessary expenses of the proceedings. Then the court will order either wife or husband to pay the expenses.
According to Section 25 of the Hindu Marriage Act 1955:-
When any application is made to the court for the maintenance wither by wife or the husband; the court shall order the party to pay the applicant for support and maintenance; from the income or property of the respondent by monthly or gross or periodically; for a term not exceeding the life of the applicant. If during the case, the court thinks in whose favour the order of maintenance has been made; has remarried or the wife has not remained chaste or the husband had sexual intercourse with another woman; then the court may modify the order.
Hindu Adoption and Maintenance Act 1956
According to the Section 18 of Hindu Adoption and Maintenance Act 1956:-
A Hindu wife can claim maintenance from her husband during the lifetime.
As per the Section 19 of Hindu Adoption and Maintenance Act 1956:-
A Hindu wife is entitled to claim maintenance from father in law. If her husband is died she is unable to maintain herself on her own earnings or property. She is unable to maintain herself from the estate of husband, father, mother, son or daughter[2].
Special Marriage Act 1954
As per the Section 36 of the Special Marriage Act 1954:-
If during the proceedings of the case, the district court thinks that the wife has no sufficient independent income to pay the necessary expenses of the proceedings. Then the court will order the husband to pay the expenses whether weekly or monthly on the basis of income of the husband.
Section 37 of the Special Marriage Act 1954:-
When any application is made to the court for the maintenance by wife, then the court shall order the party to pay the wife for her support and maintenance from the income or property of the husband by monthly or gross or periodically for a term not exceeding the life of the wife. If during the case, the court thinks she has been remarried or is not leading a chaste life, then the court may modify the order.
Indian Divorce Act 1869
Section 36 of Indian Divorce Act 1869:-
The wife may file a petition for expenses of proceedings or pending alimony in any suit instituted by the husband or wife or she has or not obtained the order of protection, the court if satisfied may order the husband to pay the alimony or expenses.
The section 37 of Indian Divorce Act 1869:-
If the decree of the dissolution of the marriage or judicial separation is obtained by the wife from the court, the district court may order the husband to pay her wife a gross sum, annual sum, weekly or monthly sums for a term not exceeding the life of the wife as per the ability of the husband.
Section 38 Indian Divorce Act 1869:-
If the decree of alimony has been made by the court, the court may direct to pay the amount to the wife or a trustee on her behalf with some reasonable restrictions.
Domestic Violence Act, 2005
Section 20 of The Protection of Women from Domestic Violence Act 2005:-
The magistrate may order the respondent to pay the Monterey relief including loss of earning, medical expenses, losses suffered by the aggrieved person due to domestic violence and the maintenance for the aggrieved party [3].
Other Statutory Provisions:-
Also, Section 5 of The Muslim Women (Protection of Rights on Marriage), 2019:-
A Muslim Married women is entitled to subsistence allowance from her husband upon the pronouncement of the talaaq which will be determined by the magistrate.
Section 125 of The Code of Criminal Procedure, 1973
The Magistrate of First class may order the person to pay a monthly allowance of five hundred rupees. In the whole for maintenance for wife, child, mother, father; if the person refuses to maintain.
Under this Section those person who will be entitled to claim maintenance are:
- Wife who is unable to maintain herself or his child (illegitimate child or legitimate), (married or not) or they are also not able to maintain themselves.
- Legitimate or Illegitimate children who are major, but they are unable to maintain due to any injury.
- Father or mother who are not able to maintain.
- If the Wife is living in adultery or without any reason refuses to live with her husband or if they are separated by mutual consent then she will not be entitled to receive allowance;
- If in case the order of allowance is made then the magistrate shall cancel the order
It is also provided that if there is a minor female child and her husband is not having such sufficient means, then the magistrate may order to pay such allowance [4].
Live In Relationship Or Husband Residing Abroad [5]
A female can claim maintenance under the provisions of ‘Protection of Women from domestic Violence Act (2005)’; if they fulfils the condition laid down by the supreme court; in case of D. Velusamy V. D. Patchaiammal (2010):
- The reputation of the couple should be of similar character in the society.
- Both should be above the age of majority
- They have voluntarily cohabited the same space.
- Both are qualifies to enter into legal marriage
- A wife can claim maintenance from the husband who is living abroad under the Indian Laws; including Hindu laws, Cr.P.C., Protection of Women from Domestic Violence Act 2005.
In one of the judgments named Jagir Kaur & Another vs, Jaswant Singh (1963) [6]; “if a husband deserts his wife and goes to another place; and comes back to the same place on a temporary basis; then the wife can claim maintenance under Section 125 of Cr.P.C. in the district where he is.“
Landmark Judgements [7]
#1. Mohd. Ahmed Khan V. Shah Bano Begum (1985) [8]
The question was whether the Section 125 of Code of Criminal Procedure applies to all the religions or not? The Supreme Court upheld that Shah Bano is entitled to maintenance under this Section. As she filed a petition in the court of Judicial Magistrate for maintenance for her and children of Rs. 500 per month. The Court also increased the amount of maintenance.
#2. Savitri W/O Shri Govind Singh vs. Shri Govind Singh Rawat(1985) [9]
In this case, the main question arises whether the section125 of Code of Criminal procedure provides for Interim Maintenance. The court interpreted this provision and concluded that this section provides for the preventive remedy for securing the payment of maintenance in deserving cases. If the magistrate is satisfied on the basis of the affidavit, he may order for interim maintenance.
#3. Badshah vs. Sou. Urmila Badshah Godse & Another (2013)
Whether the victim of bigamous marriage is entitled to maintenance or not? The Court held that women will be entitled to maintenance under Section 125 of CRPC.
#4. Shabana Bano vs. Imran khan (2009)
Under this case, whether after the divorce, a wife is entitled to maintenance or not? The petition filed by the appellant is maintainable under Section 125 of CRPC until she does not remarry.
[1] https://www.legalserviceindia.com/articles/hmcp.htm
[2] https://www.legalserviceindia.com/legal/article-441-indian-laws-relating-to-maintenance.html
[3] https://www.mondaq.com/india/divorce/1034554/women-and-maintenance#:~:text=Section%2020%20of%20the%20Protection,any%20other%20law%20in%20force.
[4] https://blog.ipleaders.in/maintenance-crpc-personal-laws-comparative-study/
[5] https://nrilegalconsultants.in/provisions-of-maintenance-of-women-under-indian-law/
[6] Jagir Kaur & Another vs, Jaswant Singh, 1963 AIR 1521, 1964 SCR (2) 73
[7] https://blog.ipleaders.in/cases-on-maintenance-rights/
[8] Mohd. Ahmed Khan vs. Shah Bano Begum , 1985 AIR 945,1985 SCR (3) 844
[9] Savitri W/O Shri Govind Singh vs. Shri Govind Singh Rawat, 1986 AIR 984 , 1985 SCC (4) 337
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