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Laws Relating to Maintenance in India

A person is entitled to basic amenities like food, clothing, shelter, and other necessary requirements to live a dignified life. Under the principles of social justice, it is the natural duty of a man to provide these amenities to his wife, parents and children in the form of maintenance.
Written by:
Antim Amlan
Published on
13-Sep-19

A person is entitled to basic amenities like food, clothing, shelter and other necessary requirements to live a dignified life. Under the principles of social justice, it is the natural duty of a man to provide these amenities to his wife, parents and children in the form of maintenance.

The maintenance law in India lays down the duty of a man to provide maintenance to his parents, wife, and children when they are unable to maintain themselves.

Maintenance in law is defined as the amount which is paid to the dependent wife, child, or parents to maintain themselves. The amount can be paid either by doing one lump sum payment or by way of monthly instalments.

Section 125 of the Code of Criminal Procedure, 1973 lays down the concept of maintenance in India, along with the different personal laws that extend the right of maintenance to not only the wife but also to her parents and children as well.

Personal laws relating to maintenance in India are applicable to people belonging to those religions, whereas the maintenance claim under Section 125 of the CrPC can be filed by anyone regardless of religion or caste.

Law of maintenance in India lays down the procedure as to how to claim maintenance for a child in India and also for a wife.

Maintenance under Hindu Laws

Can a wife claim maintenance from her husband? Maintenance under the Hindu Adoption and Maintenance Act, 1956 is provided as a right to a wife to claim maintenance from her husband.

A wife can file a maintenance case under the Act in India against her husband when she is unable to maintain herself financially.

The court will consider the financial position of the husband and reason for which the wife is separated from her husband, before awarding maintenance to her.

However, a wife who claims maintenance under personal laws cannot claim maintenance under criminal procedural laws. 

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

Under matrimonial laws, if the husband is ready to cohabit with the wife, the wife’s claim to maintenance is rejected.

However, a Hindu wife is entitled to reside separately from her husband without forfeiting her maintenance claim under the Hindu Adoptions and Maintenance Act, 1956.

The Act envisages certain situations in which it may become impossible for a wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial tie for various reasons ranging from growing children to social stigma.

There is a misconception that a working woman is not entitled to claim maintenance as she is earning and is thus able to maintain herself.

The Indian courts have recognised the right of maintenance of a working woman and held that an estranged woman can claim maintenance from her husband even is she earns a monthly income, which is not enough for her to maintain herself.

Thus, under the family law in India, an earning wife is entitled to maintenance under maintenance laws in India. Top Family Lawyers will help assist and guide you throughout the procedure of Indian maintenance system and case laws.

 

Child maintenance law in India

Child maintenance in India is recognised under Section 125 CrPC. It has been provided that the child can claim maintenance from the father in India. Section 26 of the Hindu Marriage Act also provides for maintenance of child under Hindu law.

The section of the Act states that a minor child is entitled to get maintenance from the father if during the divorce proceeding the custody of a child has been awarded to the mother or otherwise also.

Recently, Indian courts have also said that a major child whether daughter or son, under the family law in India, is also entitled to get maintenance from his/her father if they are dependent on their parents.

Dependency on parents means that they are not in a position to earn themselves either because they are studying or due to any disease.

Maintenance under Muslim Laws

Maintenance of wife under Muslim law has been provided under the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Act states that a divorced Muslim woman is entitled to maintenance in the following cases:

  • During the iddat period, reasonable and fair maintenance has to be paid to the wife. Mehr agreed at the time of marriage has to be given back
  • When the woman had to maintain herself and her children, maintenance has to be paid for a period of 2 years. If the child is born after the divorce, then the 2 year period begins from the child’s date of birth
  • The amount of Mehr or dower agreed at the time of marriage or after the marriage has to be paid to the wife
  • All property was given to her by her relatives, friends or husband before, at the time or after

Definition of maintenance under Muslim law is similar to the generally accepted definition of maintenance.

If the divorced Muslim woman is unable to maintain herself after the period of iddat, the Magistrate can order her relatives who will inherit her property, to pay maintenance to her as deemed fit.

When the children or relatives of the woman cannot pay maintenance to her, the Magistrate can order the State Wakf Board established under the Wakf Act, 1995 to pay her maintenance. 

Maintenance under Parsi Laws

The Parsi Marriage and Divorce Act, 1936 gives the right to maintenance to a Parsi woman. The court can award a maximum of one-fifth of the husband’s net income as maintenance.

The court considers factors like the husband’s capability to pay, property, and other assets owned by the wife and the personal conduct of the husband and wife.

The husband is liable to pay maintenance to the wife for her lifetime only if she remains unmarried and chaste after the divorce.

Maintenance under Christian Laws

The Indian Divorce Act, 1869 governs maintenance rights of a Christian wife. Under Section 37 of the Indian Divorce Act, 1869, she can apply for maintenance in a Civil Court or High Court. The husband will be liable to pay maintenance for her lifetime. 

Maintenance under Section 125 of the Code of Criminal Procedure, 1973

Under Section 125 of the Code of Criminal Procedure, 1973, right of maintenance, under the family law in India, extends not only to the wife and dependent children but also to indigent parents and divorced wives. The maintenance claim depends upon the husband’s capability to provide sufficient means.

One question that is generally asked is 'What is the maximum maintenance under Section 125?' Previously, the maintenance claim was limited to Rs. 500 per month but now the magistrate has the power to award a reasonable amount of maintenance as they deem fit. 

A Class I Magistrate may order a person to pay a monthly allowance for the maintenance of his wife, child, father, or mother when there is valid proof of neglect and refusal by the man to maintain them.

However, under Section 125 of the CrPC, a wife will not be entitled to receive maintenance if she has committed adultery, refuses to live with her husband or separates from her husband by mutual consent.

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External Link:

[1] Maintenance Laws in India - The maintenance law in India lays down the duty of a man to provide maintenance to his parents, wife and children when they are unable to maintain themselves.

[2] Code of Criminal Procedure, 1973 - An Act to consolidate and amend the law relating to Criminal Procedure.