Maintenance rights for divorced women are governed by various religious personal laws in India. It makes it a duty of the husband to pay to his wife a lump sum or monthly payment, known as maintenance, after their divorce or separation. The amount of maintenance is either decided by a mutual settlement between the husband and wife, or in accordance with the order received from the court. It is the women’s right after divorce in India.
Who can claim Maintenance under different laws?
In case, you need any Legal HELP! Request a FREE callback here to Consult an Expert Lawyer Now!
“There is no maintenance without divorce!”
If you have to pay maintenance for a wife without divorce, India provides you with the rights for that as well. can also be filed in the court.
As per Hindu marriage act, divorce maintenance is about providing financial support to a person's living expenses, or to your wife. Generally, it’s not only the wife who is entitled to get divorce and maintenance payments in India, but even the parents and children are also supposed to get it.
There are some provisions which give the wife the right to claim maintenance from her husband. As per Section 125 of Criminal Procedure Code (CrPC), 1973 provides an effective remedy for neglected persons to seek maintenance, especially to a wife in India. There are certain rights and laws to follow in case of providing a specified amount of maintenance and which are applicable with due terms & conditions. It is not necessary to seek a divorce, the wife can get maintenance without divorce.
Maintenance Rights of Women under Indian Laws
Maintenance laws and rules differ from religion to religion. The amount of maintenance fixed by the court depends upon the monthly income of the husband, an income of the wife, his financial status and keeping other things in mind.
India being a democratic country provides its citizens with various laws which are essential to earning means of livelihood. A woman is considered as legal “Wife” of a man, only if their marriage hasn’t proved to be null and void. From the right to the residence at the house of her husband to have an equal share in the property, a legally wedded wife enjoys many rights.
There are certain maintenance rights governed by various religious personal laws in India under divorce. However, marriage may be made in heaven, though in reality, they don’t always enjoy the heavenly and fantasy fate as imagined.
As per the maintenance laws & rights, it is a duty of the husband to pay to his wife a lump-sum or monthly payment, known as maintenance, where the maintenance without divorce or after a divorce has to be paid.
The amount of maintenance is either decided by a mutual settlement between the husband and wife, or in accordance with the order received from the court. It is the women’s right after divorce in India.
Table of Content:
Consult: Best Divorce Lawyers in India
Legal Rights of a Wife
The Constitution has provided many rights to the wife. Some of the key rights are:
Right to Streedhan: Streedhan is the property which a woman obtains at the time of her marriage, it is different from the Dowry in a way that it is voluntarily gifts given to the wife before or after her marriage and there is no element of coercion. The Courts have clearly said that women will have absolute rights over their streedhan even if it is placed in the custody of her husband or in-laws.
Right to residence: A wife has the absolute right to reside in a matrimonial household where her husband resides, irrespective of whether it is an ancestral house, a joint family home, a self-acquired home or a rental house.
Right to a committed relationship: A Hindu male is bound not to marry any other girl or have an affair with anyone else unless he is legally divorced. In case if the husband is having any relationship with any other woman then he will be charged with adultery under section 497 of IPC. His wife has the right to file for divorce on the ground of having an extra-marital relationship with any other woman.
Right to maintenance by husband: Under section 18 of the Hindu Adoption and Maintenance Act, 1956 a Hindu wife is entitled to claim maintenance from her husband in case if he is guilty of cruelty, desertion, polygamy or has a venereal disease, thereby enforcing her rights in divorce. Under section 25 of this act, it provides for permanent Alimony and Maintenance of wife and child. This section allows any court which has jurisdiction under this Act may pass an order upon receiving an application from the aggrieved spouse directing the respondent to pay the applicant for her support and maintenance.
Right to live with dignity and self-respect: A wife has the right to live her life with dignity and to have the same lifestyle that of her husband and in-laws have. She also has the right to live free from any mental or physical torture.
Right to child maintenance: Husband and wife must provide for their minor child. If the wife is incapable of earning, then the husband must provide her with financial support.
What are the grounds of divorce under the Hindu Laws on Marriage?
As per this Act, divorce maintenance was originally based divorce on the fault theory and enshrined nine fault grounds in Section 13 (1) on which either the husband or wife could sue for divorce, and two fault grounds in section 13 (2) on which wife alone could seek a divorce.
In 1964, by an amendment, certain clauses of Section 13 (1) were amended in the form of Section 13 (1A), thus recognizing two grounds of the breakdown of a marriage. The 1976 amendment Act inserted two additional fault grounds of divorce for wife & a new section 13 B for divorce by mutual consent.
The various grounds on which a decree of divorce can be obtained are as follows-
Though, adultery may not have been recognized as a criminal offence in all countries. According to this Act, adultery is a valid ground of divorce.
In adultery there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of the marriage. Since adultery is anoffence against marriage, it is necessary to establish that at the time of the act of adultery the marriage was subsisting.
Also, it follows that unless one willingly consents to the act, there can be no adultery. The offence of adultery may be proved by:
- Circumstantial evidence
- Contracting venereal disease
The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the basis of its own set of facts.
While physical cruelty is easy to determine, Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts the pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted.
Related Read: Legal Guide on Divorce
In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the state of mind. Some Instances of Cruelty are as follows:
- false accusations of adultery or unchastity
- a demand of dowry
- refusal to have marital intercourse/children
- birth of child
- a threat to commit suicide
- wife’s writing false complaints to an employer of the husband
- incompatibility of temperament
- irretrievable breakdown of marriage
The following do not amount to cruelty:
- ordinary wear & tear of married life
- wife’s refusal to resign her job
- outbursts of temper without rancor.
Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation.
The following 5 conditions must be present to constitute a desertion; they must coexist to present a ground for divorce:
- the factum of separation
- intention to desert
- desertion without any reasonable cause
- desertion without the consent of another party
- statutory period of two years must have run out before a petition is presented.
In Bipinchandra v. Prabhavati the Supreme Court held that where the respondent leaves the matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently, he shows an inclination to return & is prevented from doing so by the petitioner.
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.
Insanity as a ground of divorce has the following two requirements:
- The respondent has been incurable of unsound mind
- The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Contagiousness of leprosy and repulsive outward manifestations are responsible for creating a psychology where a man not only shuns the company of lepers but looks at them scornfully. Thus, it is provided as a ground for divorce. The onus of proving this is on the petitioner.
At present, it is a ground for divorce if it is communicable by nature irrespective of the period for which the respondent has suffered from it. The ground is made out if it is shown that the disease is in communicable form & it is not necessary that it should have been communicated to the petitioner (even if done innocently).
“Renunciation of the world” is a ground for divorce only under Hindu law, as a renunciation of the world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek divorce if the other party has renounced the world and has entered a holy order. A person who does this is considered as civilly dead. Such renunciation by entering into a religious order must be unequivocal & absolute.
Presumption Of Death:
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent is not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact. A decree of divorce granted under this clause is valid & effective.
Wife’s Special Grounds For Divorce:
Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce under Section 13(2) of this Act. These are as follows:
a. Pre-Act Polygamous Marriage - This clause states the ground for divorce as, “That the husband has another wife, alive at the time of the solemnization of the marriage of the petitioner.
For example, in the case of Venkatame v. Patil where a man had two wives, one of whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left only with one wife, and the petition should be dismissed. The Court rejected the plea.
Suggested Read: Guide on Divorce Laws In India
Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife) should be present at the time of filing of the petition. However, today this ground is no more of practical importance.
b. Rape, Sodomy Or Bestiality - Under this clause, a divorce petition can be presented if the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
c. Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance - If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been resumed between parties after one year or upwards, then this is a valid ground for suing for divorce.
d. Repudiation Of Marriage - This provision provides a ground for divorce to the wife when the marriage was solemnized before she attained the age of fifteen years, and she has repudiated the marriage, but before the age of eighteen.
Such repudiation may be express (written or spoken words) or may be implied from the conduct of the wife (left husband & refused to come back).
Moreover, this right (added by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the fact that the marriage was solemnized before or after such amendment.
Irretrievable Breakdown Of Marriage
Irrespective of the three remedies available to parties that are:
restitution of conjugal rights,
judicial separation, and
the judiciary in India is demanding this as a special ground for divorce, as sometimes courts face difficulties in granting divorce due to some technical loopholes in the existing theories of divorce.
Both Supreme Court and Law Committee consider the implementation of such a theory as a boon to parties who for one or the other reasons are unable to seek the decree of divorce.
Under this Act, primarily there are three theories under which divorce is granted:
Guilt theory or Fault theory,
Supervening circumstances theory.
The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in legal jurisprudence, based on the principle that marriage is a union of two persons based on love affection and respect for each other.
The breakdown of a relationship is presumed de facto.
The fact that parties to marriage are living separately for a reasonably long period of time (say two or three years), with any reasonable cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the unwillingness of the parties or even of one of the party to live together) and all their attempts to reunite failed, it will be presumed by law that relationship is dead now.
Recently Supreme Court has recommended an amendment to the Act, whereby either spouse can cite unwillingness to cohabit as a reason to seek a divorce.
Expressing the concern that divorce could not be granted in a number of cases where marriages were virtually dead due to the absence of the provision of irretrievable breakdown, the court strongly advocated incorporating this concept in the law in view of the change of circumstances.
The Court observed that public interest demands that the married status should, as far as possible, as long as possible and whenever possible, be maintained.
What is Interim Maintenance?
As per the Hindu maintenance laws, Interim maintenance can be sought by the divorced wife, who does not have any source of independent income or any money to support her living.
The calculation of amount is not prescribed in the law and is based on the court’s discretion and understanding of the divorce and maintenance payments in India.
Interim maintenance has to be paid from the date when the petition is presented before the court until the date it is dismissed or decree is passed by the court. It is the amount that is given to meet her basic yet immediate needs for the time the case is pending in court.
Top Read: Step-by-Step Divorce Procedure in India
Who can claim Maintenance under different laws?
As there are different personal laws that deal with marriage, divorce, and maintenance in different religions, there are distinct provisions regarding maintenance in law after divorce in India.
- Maintenance under Hindu law: The Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956 grant the right to women to claim maintenance after divorce.
Under Hindu laws, the quantum of maintenance amount is based on several factors like husband’s financial income, assets, liabilities, wife’s employment and earning status etc.
For any divorce-related matters, consult the best divorce lawyers. The maintenance will not include the Stridhan. Stridhan is the right of the wife, and maintenance is independent of that.
Maintenance under Muslim Personal Law: There are different kinds of divorce in Islam. The law that governs maintenance of divorced women is the Muslim Women (Protection of Rights on Divorce) Act, 1986. A wife has a claim over the following under the Act:
A fair amount of maintenance by her ex-husband within the given iddat period.
The husband is required to provide ‘Meher’ or ‘dower’ as promised at the time of the wedding or anytime later.
If during the divorce, the wife is pregnant, she can claim a fair amount of maintenance for at least 2 years from the date of birth of a child.
If they had a child at the time of divorce, a wife can still claim maintenance for the child till the time she remarries or until the child is dependent.
The properties as given to the wife by her relatives, parents, and husband or his family, friends or relatives.
If the wife is unable to maintain her living after iddat period, the Magistrate can order her relatives who would receive her property after her demise, to make suitable provisions to maintain her under law of maintenance and divorce laws in India.
Maintenance under Christian law: Divorced Christian women can claim maintenance under the Indian Divorce Act, 1869. The Act prescribes one-fifth of the husband’s income as the maximum maintenance amount. The amount of permanent maintenance depends upon factors like husband’s income, wife’s own income, their property, the behavior of both wife and husband, etc.
Maintenance under the Parsi law: The Parsi Marriage and Divorce Act, 1936 provides the right of a wife to claim maintenance from her husband as one of the rights of wife after divorce in India. The maximum amount of maintenance for the period during which the case is pending is one-fifth of the husband's net income.
Marriages under the Special Marriage Act, 1954: As per the Special Marriage Act, 1954 a divorced wife can claim spousal support and maintenance from her husband on the basis of his financial ability, property, miscellaneous assets, wife’s current earning, etc. There is a provision of wife’s right on husband’s property in India. To know about divorce maintenance rules and your rights in detail, always consult a divorce lawyer.
Can wife claim maintenance without divorce under Section 125 of CrPC: Section 125 of the Code of Criminal Procedure, 1973 lays down the provision for maintenance of wives, children, and parents if they do not enough and reasonable means to maintain themselves, or suffer from any physical or mental incapacity.
Section 125 of CrPC states that when the man has sufficient means, he is liable to pay maintenance to his wife, children, and parent who cannot maintain themselves.
Under Section 125, even a wife who has not divorced her husband has the right to get maintenance from her husband. There is no limit of minimum or maximum maintenance under section 125 mentioned, it depends on the economic condition and discretionary power of the court.
When is Maintenance granted to Wife?
Under the various maintenance laws in India, it can be deferred that maintenance after divorce is granted to the wife only on the following grounds:
If the husband has abandoned her or neglected her on his own will.
If the husband has tortured her or subjected her to cruel treatment.
If the husband is suffering from a virulent or venereal disease.
If the husband is living with another wife.
If the husband has a concubine which he keeps in the same residence where his wife lives, or he lives with the concubine at some other place.
If the husband has changed his religion to any other religion.
Any other reason that is justifiable for living in separation with her husband.
For knowing the rights of a divorced wife, specifically suitable for your situation and case, you can always consult a divorce lawyer.
How much alimony does a wife get?
The amount to how much maintenance to wife in India is not fixed and differs with each case. The amount is decided by the court, keeping in consideration all the relevant factors like husband’s earnings and property, expenses, dependents’ needs, liabilities, wife’s earning and property ownership, and conduct of both the parties. There is no specific formula or method of calculating the maintenance amount.
Generally, the amount of maintenance for a divorced wife is calculated as one-third of the husband’s salary, provided that the wife stays single and does not indulge in any romantic relationship.
The court can order the husband to disclose his salary, IT returns, insurance, shares, fixed deposits, bank balance, lifestyle expenses, credit card ownership, vehicle ownership, etc. as proof of his ability to maintain himself.
A wife can claim maintenance for all her reasonable needs like food, home, medicine, and shelter. If the wife has children, she can claim for their education as well. The court having appropriate jurisdiction can decide the maintenance amount it deems fit and reasonable.
This amount can be in form of a monthly amount or a lump sum amount and can be modified later on the behest of the wife if there is a change in situations i.e. there is a change in income of the husband, inflation, marital status of wife, etc.
For the best knowledge regarding your divorce and maintenance rights as per the divorce laws, consult the divorce lawyers.
Further Read: How to file for mutual & contested divorce online
When does Maintenance Rights Cease?
Maintenance rights of a divorced woman cease when she get re-married or romantically involved with someone else. The husband can raise the matter before the court to modify or rescind the order of maintenance.
When a wife has a job and earns enough for maintaining a standard life, no earning wife is entitled to maintenance. The definition of standard life differs from place to place and from situation to situation. Thus the salary of the wife also affects the right to maintenance in a Divorce.
What is the right of a woman if the husband refuses to comply with court’s order?
In case of non-payment of maintenance money without any sufficient cause, the wife can approach the court and file a criminal case against him. The court can secure the award by putting a charge on his property.
Maintenance rights of a wife are one of the powerful legal tools in the hand of neglected wives, women who are divorced or women living separately from their husbands. It enables them to sustain their life with pride and respect. It is suggested to consult a divorce lawyer to claim maintenance either in a lump sum or as monthly payments.