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How to claim Maintenance without Divorce under Maintenance Rights

Indian Laws for a married woman states that only a legally wedded woman is considered as the Wife and it is her right to get the amount of maintenance, without divorce, as she was the responsibility of her husband after marriage. If the husband refuses to comply with the court's order to finance his wife, the wife can file a criminal complaint against him.
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Published on
12-Sep-2019

As per the Hindu Marriage Act, divorce maintenance is about the husband providing financial support for his wife’s living expenses. Generally, it’s not just the wife but the children and her parents are equally entitled to receiving financial aid from the father/husband/son-in-law.

There are some provisions which give the wife the right to claim maintenance from her husband. Section 125 of the Criminal Procedure Code (CrPC), 1973(3) provides an effective remedy for neglected persons to seek maintenance, especially for a wife in India.

The law has laid down certain rules to follow in case of providing a specified amount of maintenance, which is applicable due to terms & conditions. It is also not necessary to seek a divorce, the wife can get maintenance without divorce.

Maintenance Rights of a Woman in Divorce in India

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, the income of the wife, his financial status, among other things. India being a democratic country provides its citizens with various laws which are essential in earning a livelihood. A woman is considered as a 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.

As per the maintenance laws & rights, it is the duty of the husband to pay 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.

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 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 clearly say 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 the husband: Under Section 18 of the Hindu Adoption and Maintenance Act, 1956(1) 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 to 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 as that of her husband and in-laws. She also has the right to live free from any mental or physical torture.
  • Right to child maintenance: The 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.

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(2) 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, earning status, etc. 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 the law of maintenance.

Maintenance under Christian law: Divorced Christian women can claim maintenance under the Indian Divorce Act, 1869. (4) 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 behaviour of both the wife and husband, etc.

Maintenance under the Parsi law: The Parsi Marriage and Divorce Act(5), 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(6): 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 a wife’s right on the husband’s property in India.

Can a wife claim maintenance without divorce under Section 125 of CrPC?

Section 125 of the Code of Criminal Procedure, 1973 lays down the provision that states that when a man has sufficient means, he is liable to pay for the maintenance of his wife, children, and parents if they do not have any reasonable means to support themselves, or suffer from any physical or mental incapacity. 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 the 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

How much alimony does a wife get?

The amount of maintenance that a woman receives according to Indian law is not fixed and differs with each case. The amount is decided by the court, keeping in consideration all the relevant factors like the husband’s earnings, property, expenses, dependents’ needs, liabilities, wife’s earning & property ownership, and conduct of both 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 relationships. 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 if deems fit and reasonable. This amount can be in the 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.

When does Maintenance Rights Cease?

Maintenance rights of a divorced woman cease when she remarries or is romantically involved with someone else. The husband can raise the matter before the court to modify or rescind the order of maintenance.

When the wife has a job and earns enough for maintaining a standard life, she is not entitled to divorce maintenance. The definition of standard life differs from place to place and from situation to situation.

What is the right of a woman if the husband refuses to comply with the 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 most 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.

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External Links:

[1] Hindu Adoption and Maintenance Act, 1956A detailed view of the Hindu Adoption and Maintenance Act, 1956

[2] The Hindu Marriage Act, 1955 - A sitemap to The Hindu Marriage Act, 1955

[3] Criminal Procedure Code (CrPC), 1973 - A detailed view of the Criminal Procedure Code (CrPC), 1973

[4] Indian Divorce Act, 1869 - A site view to the Indian Divorce Act, 1869

[5] The Parsi Marriage and Divorce Act, 1936 - A deep view of The Parsi Marriage and Divorce Act, 1936

[6] Special Marriage Act, 1954 - A PDF of the Special Marriage Act, 1954