THE CONCEPT OF MAINTENANCE UNDER HINDU LAW

The term maintenance is defined as providing financial support to the dependents.  Maintenance is governed differently by different religions but there are secular laws in terms of maintenance which are applicable to all the citizens of India irrespective of their religion which are as following: –

1. Special Marriage Act,1954
2. Section 125 of the Cr.P.C. 1973
3. Protection of Women from Domestic Violence Act, 2005

Maintenance under various laws are: –

1. Section 18 read with 23,24,25,26 of Hindu Law –
2. Section 125 of the Code of Criminal Procedure 1973
3. Section 20(1)(d) and 20(6) under the Protection of women from Domestic violence Act, 2005

 

MAINTENANCE UNDER HINDU LAW

Maintenance under Hindu law is governed by the Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956.

The Hindu Marriage act is a code which provides for the rights, liabilities and obligations that arises out of a marriage between two Hindus. Maintenance is provided under Section 24, 25 and 26 of the Act. The sections being gender-neutral provisions, entitle both the husband and the wife to raise a claim for maintenance on the ground that the applicant does not have a sustainable income and is unable to maintain himself or herself. In Lalit Mohan v. Tripta Devi (1988)¹ the Jammu & Kashmir High Court held that the husband did not have an independent income. Hence, the wife was ordered to pay Rs. 500/- as court expenses, Rs. 100/- per month as maintenance pendente lite and permanent alimony to the husband, from the date of application till his death or remarriage.

Section 24 of the Hindu Marriage Act talks about the provision of maintenance ‘pendente lite’. In this, the court directs the respondent to pay the expenses that arise during the proceeding along with the payment of a monthly amount which is reasonable and is in accordance with the income of both the parties.

Section 25 of the Act elaborates the provisions on ‘maintenance’ and ‘permanent alimony’. In this, the court may direct the respondent to pay the applicant a fixed amount on a monthly basis or a lumpsum, considering the income of the respondent.

Section 26 of the Act states that the court may pass interim orders with regard to the custody, maintenance and education of the minor children, from time to time.

Hindu Adoption and Maintenance Act, 1956 (HAMA) was specially enacted to amend and codify Hindu laws relating to adoption and maintenance.  Section 18 read with section 23 provides for the maintenance laws under HAMA. They state the pre-requisites for deciding the quantum of maintenance which is to be paid. Section 18 states that a Hindu wife has a right to be maintained by her husband. She is also entitled to make a claim to live separately without losing her claim to maintenance. However, the right to maintenance and living separately would not be available if the wife has been unchaste or has converted to another religion.

When we look at the both HMA and HAMA, the interplay of maintenance was taken into consideration by the Supreme Court in Chand Dhawan v Jawaharlal Dhawan². Here the Supreme Court held that Section 18 (1) of HAMA provides the wife with the right to claim maintenance during her lifetime and Section 18 (2) provides the wife with the right to live separately without having to give up the claim for maintenance. However, under HMA the wife does not have the right to permanent alimony under Section 25 till the divorce petition is approved but can claim maintenance pendente lite, which is dependent on the pendency of the petition.

HAMA also provides for the maintenance of a widowed daughter-in-law by the father-in-law. Section 19 of HAMA states the requisites for the claim of maintenance which are: –

1. She is unable to maintain herself out of her own independent income or other property
2. She has no property of her own or is unable to maintain herself from
3. The estate of her husband, father or mother
4. Her son or daughter

Section 20 of HAMA provides for maintenance of children and aged parents. It also places an obligation on a Hindu male to maintain his unmarried daughter, if she is not able to maintain herself out of her income or other property.

In Abhilasha v Parkash & Ors.³ the Supreme Court pointed out the obligation of father to maintain his unmarried daughter under the HAMA but under Section 125 of Cr.P.C., the claim for maintenance is available till the child attains majority. However, if the unmarried daughter is suffering from any physical or mental abnormality, or injury and hence, is unable to maintain herself, then the father is obligated to maintain her even after the attainment of majority.

 

SECTION 125 OF Cr.P.C.

Chapter IX of Code of Criminal Procedure, 1973 provides for the maintenance of wife, children and parents. Maintenance under this section can be claimed by eligible individuals irrespective of their religion. It can be claimed under two conditions: –

1. The husband/father/son has sufficient means, and
2. He further neglects to maintain his wife/children/parents, who is/are unable to maintain herself/themselves.

The Amendment Act of 2001 further brought in a series of changes. Before the Amendment Act of 2001, there was a fixed amount of Rs. 500 being awarded as maintenance. Looking at the inflation rates, this fixed amount was removed. The Amendment also brought in the provision for interim maintenance so that the dependent wife/children/parents do not have to wait for indefinite periods to receive maintenance.

Another prevalent issue is the question of maintenance when the parties are in a live-in relationship for a long period of time.  In the case Chanmuniya v Virendra Kumar Singh Kushwaha & Anr⁴ the Supreme Court held that when a man and woman have cohabited for a considerable amount of time such a woman will be entitled to maintenance.

ISSUES

After looking at these provisions for maintenance, a few issues have come to the notice of courts.

Overlapping jurisdiction: Overlapping jurisdiction here refers to a situation where a wife simultaneously claims maintenance under different statutes. Some High courts have taken the stance that each proceeding is different and is also independent of each other. The fact that the two proceedings were initiated by one person does not imply that one proceeding has to be adjusted or set-off.  However, the High Courts of Bombay and Delhi held that in such cases of simultaneous proceeding, adjustment or set-off should take place.

Interim maintenance: Section 24 and 125 of the Cr.P.C. provides for a deadline of 60 days for the proceedings of interim maintenance. Despite such provisions, the deadline is often not met and the proceedings remain pending for years due to severe backlog of District Courts. Another contemporary issue is that the interim maintenance is decided on the basis of pleadings and both the parties do not disclose true information, making it difficult for the court to discern the truth. The issue further extends to the criteria of eligibility of women for the claim of maintenance.

Quantum of maintenance: The sole purpose to provide for maintenance is to ensure that spouse is able to maintain himself or herself, but maintenance should not be considered as a punishment to the other spouse.

Date from which maintenance is to be awarded: There is no provision provided in the HMA with regards to the date from which maintenance becomes payable. Even section 12 of the D.V. Act, is silent on this issue.

CONCLUSION

The court has given directions on these issues which are: –

Overlapping jurisdiction: If maintenance is provided to the wife in any previous proceeding then she will be under a legal obligation to disclose the same in the next proceeding which can be under a different statute. While deciding the maintenance, the court must consider the maintenance awarded in any previous proceedings and then further determine the quantum of maintenance. If previous orders passed require any modification or variation, the party must move to the concerned court in the previous proceeding.

Payment of interim maintenance: The court has made it necessary to follow a procedure for the proceedings. A wife who is unable to maintain herself will have to borrow from her parents or relatives to maintain herself and her children until she starts receiving interim maintenance. Further, the court has framed guidelines in exercise of its powers under Article 136 read with Article 142 of the Constitution, which are: –

1. The Affidavit of Disclosures of Assets and Liabilities should be filed by both the parties in all maintenance proceedings which also includes pending proceedings before the concerned court.
2. The applicant making the claim for maintenance is required to file an application which will be accompanied with the Affidavit of Disclosures of Assets.
3. The respondent should submit the reply along with the Affidavit of Disclosure within a deadline of four weeks. The court might not grant more than two opportunities for the submission of the same.

However, if the respondent does delay in the filing of the reply along with the Affidavit and seeks more than two adjournments, then the court might consider exercising their power to strike off the defense of the respondent, if the conduct is found to be willful and contumacious in delaying the proceedings.

Further, on failure to file the Affidavit in the given time, the Family Court can proceed to decide the application for maintenance based on the Affidavit filed by the applicant and the pleadings of the record.

Quantum of maintenance: Keeping this the court has provided for some factors in deciding the quantum of merit. The factors are:

1. The reasonable need of the wife and children
2. Whether the applicant is educated and qualified professionally

• Whether the applicant has any other source of income

1. Whether the income is sufficient to maintain herself in the same standard of living as she was accustomed to in her matrimonial home
2. Whether the applicant was employed prior to her marriage
3. Whether she was working during the subsistence of marriage

• Whether the wife was required to sacrifice her employment opportunities for the family, children and to look after the adult members of the family.
• Reasonable costs of litigation for a non-working wife

Further we also look at the:

1. Financial capacity of husband
2. His actual income

• Reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law,

1. Liabilities, if any, would be required to be taken into consideration.

Hence, the court must also take into consideration the standard of living of the husband as well as the inflation rates.

Date from which maintenance is to be awarded: Section 125 of the Cr.P.C. is the only provision which provides for the date of maintenance, the magistrate may award the maintenance either from the date of the order, or from the date of application.  In such absence, the views from the Family Courts are: – first, from the date of application for maintenance was filed; second, the date of the order granting maintenance; third, the date on which the summons was served upon the respondent.