Maintenance Laws in India

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Last Updated on June 15, 2018 by Legalseva.net

  1. INTRODUCTION

A person must get the basic requirements/amenities of life like food, clothing, shelter and other necessary requirements to live a dignified life. It is the natural duty of man to provide these amenities to his wife, parents and children as maintenance when they are unable to maintain themselves.

  1. STRUCTURE OF MAINTENANCE LAWS IN INDIA

The maintenance laws deals with the matrimonial law. The maintenance laws in India provide the right to claim maintenance even before the divorce reaches the stage of finality. The law of maintenance in India is provided under Section 125 of Code of Criminal Procedure, 1973 and the Personal Laws i.e.; Mohammedan Law and Hindu Law. Maintenance Laws differs in Personal and Secular Laws as Secular laws does not necessitate thematrimonial litigation. The structure is provided in detail:

. Hindu Adoption and Maintenance Act,1956

. Hindu Marriage Act, 1955

. Shariyat Act, 1937/Quran/Muslim Women (protection of rights on Divorce)Act, 1986

.Dissolution of Muslim Marriage Act, 1939

. Indian Christian Marriage Act, 1872

. Parsi Marriage and Divorce Act,1936

. Section 125 to 128 Of Code of Criminal procedure

. Maintenance and welfare of Parents and senior Citizens Act, 2007

Also Read- 498 A NOW AND THEN.

  1. MEANING OF MAINTENANCE-

The right to maintenance means right to be supported and cared for by another. It is the duty to look after and support those members of the family who are unable to look after themselves. It is declared by Manu that “the aged mother and father, the chaste wife and an infant child must be maintained even by doing a hundred misdeeds’’.

The term maintenance is defined under section 3(b) of the Hindu Adoptions and Maintenance Act,1956. It includes: (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment, (ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.

Under Muslim Law Maintenance is called the “nafaqua” and it includes food, raiment and lodging.

  1. REQUIREMENTS FOR CLAIM OF MAINTENANCE

i) Inability of person to maintain himself/herself.

ii)Failure or neglect by the person under obligation.

iii) Persons must be ‘’related’’.

iv) Statutory Obligation to maintain.

  1. WHEN MAINTENANCE CAN BE CLAIMED?
  2. During the subsistence of marriage.
  3. During the pendency of the any matrimonial relief.(maintenance pendent lite)
  4. After obtaining decree of divorce

Also Read- SEND LEGAL NOTICE FOR A DIVORCE

 

  1. OBJECTIVES OF MAINTENANCE LAWS

It was held in the case of BhagwanDutt Vs. Kamala Devi(1975 CrLJ 40), “The object of these sections 125 and 126 of Cr.P.C. provisions is to compel a man to perform his moral obligations which he owes to the society in respect of his needy dependents so that they are not left beggared and destitute on the scrap heap of the society thereby driven to a life of vagrancy, immorality and crime for subsistence’’.

  1. MAINTENANCE UNDER HINDU LAWS

The Hindu laws recognize the right of a wife, children, aged parents and widowed daughter or daughter in law to receive maintenance.

The right of a wife to claim the maintenance from husband is provided under Hindu Adoption and Maintenance Act,1956. When a wife is unable to maintain herself then the husband is liable to maintain her. To claim maintenance there must be no cohabitation between the spouse. It is wrong to say that a working woman is not entitled to receive maintenance.

Maintenance not only includes food, clothes and residence but also things which are necessary for receiving comfort and status which fulfills the right to live. The maintenance is not only provided to the wife upon divorce but also to the dependent person including children or aged parents or daughter or widowed daughter or daughter in law. For a wife the relief of maintenance is given upon filing relief like divorce, restitution of conjugal rights or judicial separation etc.

  1. GROUNDS FOR AWARD OF MAINTENANCE-

The maintenance is granted upon proving that at least one of the grounds mentioned under the Act, exists in favour of the wife. These grounds are as follows:

  1. The husband has deserted her or has willfully neglected her;
  2. The husband has treated her with cruelty;
  3. The husband is suffering from venereal/leprosy diseases or any other infectious disease;
  4. The husband has any other wife living
  5. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
  6. The husband has ceased to a Hindu by conversion to any other religion;
  7. Any other cause justifying her separate living.

It must also be noted that if a marriage is not a legal one then there will be no right of maintenance to the wife. The provision to maintain wife is provided under section 18 of Hindu Adoption and Maintenance Act, 1956.

  1. OTHER DEPENDANTS WHO CAN CLAIM MAINTENANCE-

A Widowed daughter in law is entitled maintenance from her father-in-law to the extent of the share of her deceased’s husband in the said property. (Section 19)

The minor children of a Hindu whether legitimate or illegitimate are entitled to claim maintenance from their parents.The aged, infirm parents or an issuless stepmother is also entitled to claim maintenance from their children. (Section 20)

Also Read-MAINTENANCE IS YOUR RIGHT WHEN YOU CAN’T.

 

  1. MAINTENANCE UNDER MUSLIM LAW

The spouses can enter into an agreement that the husband will pay special allowance to his wife. According to Mulla. ‘’Kharcha-i-Pandaan’’ means beatel box expenses and is a personal allowance to the wife, customary among muslim families of rank.

Kharcha-i-pandaan is the absolute property of the wife and she is at liberty to use it according to her sweet will. The husband has no control over that money.

  1. REQUISITE FOR CLAIM-

The general rule in regard is that only such person is entitled to maintenance.

  1. Who has no property of his own
  2. Who is related within prohibited degrees to the person
  3. The person from whom he claims is in easy circumstances.
  1. EXCEPTIONS-

The above general rule does not apply the following-

  1. When the claimant is wife
  2. When the claimants are minor sons or unmarried daughter except he has no means.

Under Women protection of rights on divorce act 1986 gives the aim of the act as “The protection of the rights of muslim women who have been divorced by, or have obtained divorce from, their husbands’’. If the women is not granted maintenance can approach the Wakf board.

 

  1. PROTECTION TO DIVORCED WOMEN UNDER SECTION 3(1)-

A divorced muslim women is entitled to-

  1. A reasonable and fair provision to be made and paid to her within iddat period by her former husband.
  2. Where she herself maintains the children born to her before or after divorce.
  1. PERSONS ENTITLED TO MAINTENANCE-
  1. A father is liable to provide maintenance to following-

. minor children

.unmarried daughter, if she is poor

. adult son, if he is indigent

  1. When father has no means and is indigent the mother is liable to maintain her children but she is entitled to recover the expenses from father when circumstances permit.
  2. If parents fail to maintain their children it is the duty of the grandparents maternal or paternal to provide for their maintenance.
  3. Under the Hanafi Law an illegitimate child is entitled to maintenance from his mother but not from his father. But under Shia law illlegitamate child cannot claim maintenance from parents.

 

  1. MAINTENANCE UNDER CHRISTIAN LAW

Indian Divorce Act, 1936 contains provision for the maintenance of minor children, but there is no independent right like Hindu Law for Children. It is awarded only when there is matrimonial litigation between the parties. Parents do not have any right to claim maintenance. Section 125 of Cr.P.C is the only recourse

  1. MAINTENANCE UNDER PARSI LAW

Parsi marriage and Divorce Act, 1936 contains provision for the maintenance of minor children, but there is no independent right like Hindu Law for the children. The act recognizes the right of wife to maintenance-both alimony pendent lite and permanent alimony.

 

Also Read- PROCEDURE IN DOMESTIC VIOLENCE CASES IN TRICITY

 

  1. MAINTENANCE UNDER DOMESTIC VOILENCE ACT

Resort to Domestic Violence Act can be done only where there is urgent requirement, rendered homeless and she had lost source of maintenance. The amount of maintenance awarded under the D.V Act cannot be substituted to the order of maintenance under section 125 of Cr.P.C. Wife is not eligible to claim maintenance under Protection of Women from Domestic Violence Act in the absence of proof regarding domestic violence.

 

  1. MAINTENANCE UNDER CODE OF CRIMINALPROCEDURE-

Under section 125 of this Act it provides an effective remedy for neglected persons to receive maintenance as social justice. A person of any religion(child/wife/parents) can apply for maintenance under this section.

Maintenance orders can be heard only by the Judicial Magistrate of First Class. The Maintenance is decided after considering the income of the person. Maintainace is payable either from the date of order of payment or from the date of application. Defendant is bound to maintain even though under Personal Law he or she has no such obligation.

 

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This post is written by Kirtika Bakshi, student of Chaudhary Charan Singh University, BA LLB Course.

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