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 that give the wife the right to claim maintenance from her husband. Section 125 of the Criminal Procedure Code (CrPC), 1973 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.
Table of content:
- Maintenance Rights of a Divorced Woman in India
- Legal Rights of a Wife
- Claiming maintenance under different laws
- Maintenance under Hindu law
- Maintenance under Muslim law
- Maintenance under Christian law
- Maintenance under the Parsi law
- Marriages under the Special Marriage Act, 1954
- Filing of the maintenance application
- How can you file an application for maintenance?
- Where can you file an application for maintenance?
- When can you file an application for maintenance?
- Draft of an application for maintenance
- What is INTERIM maintenance (pendente lite)?
- What is PERMANENT maintenance?
- Essential conditions for granting Maintenance:
- What are the criteria for determining the quantum of the Maintenance amount?
- When do Maintenance rights cease?
- On which grounds can the wife be refused the Maintainance?
- Landmark Cases:
- Order for Maintenance of wives, children, and parents:
- When is maintenance granted to the wife?
Maintenance Rights of a Divorced Woman 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.
"The Law of maintenance is a measure of social justice. It makes sure the needy party is not devoid of basic necessities. Sometimes people misunderstand the law of maintenance as women-centric, which is wrong. The law if rightly put before the court actually helps the maintenance giver to limit the extent of quantum," says Advocate Vikas Malik.
Legal Rights of a Wife
- Right to Streedhan: Streedhan is the property that 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 maintenance by the 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 to pass an order upon receiving an application from the aggrieved spouse directing the respondent to pay the applicant for her support and maintenance.
- The 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.
Claiming maintenance under different laws
India being a secular country has a population that follows different religions. In order to understand the legal structure behind the governance of maintenance in religion, we need to look at the personal laws in force.
Maintenance under Hindu law:
According to the Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 a divorced woman has a right to claim maintenance under the Hindu Law.
Under the Hindu Marriage Act, if in any proceeding under this Act, the Court comes to the conclusion that either the wife or the husband has no separate source of income sufficient for their support, it may order for the payment of monthly maintenance to the petitioner through the respondent.
Maintenance under Muslim law:
Under the purview of Muslim law, a husband is supposed to maintain his wife and family, and the term maintenance signifies the amount he is liable to pay for the same.
The term used for maintenance under Muslim Law is called nafaqa and it involves food, sustenance, and lodging.
The wife is usually entitled to obtain maintenance from her husband, despite the fact that she has the appropriate means to maintain herself.
The law that governs the maintenance of divorced women is the Muslim Women (Protection of Rights on Divorce) Act, 1986.
A wife has a claim over 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 marriage contract may also stipulate the payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc.
Maintenance under Christian law:
Under the purview of Christian Law and maintenance, the Indian Divorce Act plays an important role.
The amount of maintenance mentioned in the act dictates that it cannot be more than one-fifth of the husband’s income. The precondition here is that the woman should not remarry and stay chaste.
The amount of permanent maintenance depends upon factors like husband’s income, wife’s own income, property, the behavior of both the wife and husband, etc.
Maintenance under the Parsi law:
Under Parsi Law, maintenance is usually similar to the Christian law but here the husband can also claim maintenance and the court cannot offer maintenance beyond the life of the person paying maintenance.
The usual condition of chastity follows and the amount cannot be more than one-fifth of the spouse’s income.
Marriages under the Special Marriage Act, 1954
Special Marriage Act, 1954 also allows a divorced wife to claim maintenance and support by charging a quantum on husband’s property depending on the husband’s ability to pay, his property, wife’s own wealth, property and assets, the conduct of both the parties and any other just circumstances. The district court of apt jurisdiction where the application for maintenance is submitted can rescind, modify or vary its order/decree if it is convinced that there is a change in circumstances of either party at any time after the order is passed or if the divorced woman doesn’t remain chaste or single.
Filing of the maintenance application
How can you file an application for maintenance?
This can be done by submitting your marriage certificate along with the photos of your marriage as evidence. By following these essential requirements you can file a case under Section 125 CRPC before the family court or judicial magistrate nearest to your residence.
Where can you file an application for maintenance?
An application for maintenance under Section 125 CRPC can be filed before a Judicial Magistrate of First Class in the district where the husband or the wife resides or where they used to reside.
When can you file an application for maintenance?
After getting a divorce or during the divorce process, an application for maintenance or file for divorce can be filed.
Draft if an application for maintenance
What is INTERIM maintenance (pendente lite)?
In a divorce proceeding, either spouse can seek relief if the Court is convinced of the insufficiency of income of the applicant under section 24 of the Hindu Marriage Act, 1955. Furthermore, interim relief can be provided to the applicant in order to meet his/her immediate needs. This relief is termed as ‘interim maintenance’ or ‘pendente lite’.
In furtherance to the Hindu Marriage Act, 1955, interim maintenance can also be sought under section 125 of the Criminal Procedure Code by the wife regarding monthly allowance for maintenance.
In a case where the wife does not have an independent source of income, the wife, under section 36 of the Special Marriage Act, 1954, can seek expenses from her husband under Chapter V and VI of the Act.
Where the proceedings are pending under the Parsi Marriage and Divorce Act, 1869, either spouse can claim relief under section 39 of the Act.
- This provision is almost entirely similar to section 36 of the Special Marriage Act, 1954. Interim relief can be sought by Christians under section 36 of the Divorce Act.
Each application filed for interim maintenance has to be disposed of within 60 days of service of notice to the defendant. This provision is uniform in all the legislations mentioned above.
What is PERMANENT maintenance?
Permanent maintenance is granted by the court as per the personal laws in force in India. Once the divorce proceedings reach an end, permanent maintenance is awarded under the following provisions:
Section 25, Hindu Marriage Act, 1955 – The applicant under this section is entitled to maintenance from the spouse. It should be paid either periodically or as a sum till the applicant either remarries or for his/her lifetime.
Section 18, Hindu Adoption and Maintenance Act, 1956 – Under this section, the wife is entitled to maintenance from her husband. Further, this provision defines the right of the wife to ask for separate residence in addition to the maintenance in case of any conditions of section 18(2) of the Act (desertion, cruelty, leprosy, any other wife/ concubine living in the same house, conversion of religion or any other reasonable cause) exists till the time she remains chaste or converts to another religion. In furtherance to this, section 19 of this Act provides for the maintenance of widowed wives and the responsibility rests upon her father-in-law.
Section 3, Muslim Women (Protection of Rights on Divorce) Act, 1986 – This section provides that the Muslim wife be provided with fair and reasonable maintenance within the iddat period by her former husband. The amount should be equal to the amount of mahr or dower agreed to be paid at the time of marriage. In addition to this amount, the wife is also entitled to all the properties, her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. In case of failure on part of the husband to pay the maintenance, the Magistrate has the power to order the husband to pay the same.
Section 37, Special Marriage Act, 1954 – this provision is entirely similar to section 40 of the Paris Marriage and Divorce Act, 1869 with the only difference of applicability of the Act. Under the Special Marriage Act, only the wife can seek maintenance from the husband from a Court having jurisdiction under Chapters V and VI of the Act. The order may alter or rescind in case the wife remarries or is not leading a chaste life.
Section 37, Divorce Act, 1869 – Under this section, the District Court is empowered to order the husband to pay a reasonable amount to the wife till her lifetime when a decree of dissolution or decree or judicial separation is obtained by her. Moreover, it is the responsibility of the Court to consider the fortune of the wife, the ability of the husband to pay as well as the conduct of the parties before passing such order. The Court may discharge or modify the order in case the husband is unable to pay the reasonable amount (as determined by the Court) in the future.
Essential conditions for granting Maintenance:
- The reasonable needs of the spouse who is claiming maintenance
- The status of both the parties
- The independent income and property that is owned and possessed by the spouse who is claiming the maintenance
- The number of persons, the spouse who is providing maintenance, has to maintain apart from the claimant.
- The lifestyle that the spouse claiming maintenance used to enjoy in his/her matrimonial home.
- The liabilities of the spouse who is providing maintenance.
- The provisions of the basic necessities of the spouse who is claiming maintenance such as food, shelter, clothing, medical needs, etc.
- The Court may use its discretion when all specific sources of income of the spouse providing maintenance are undisclosed
- The spouse paying maintenance must discharge the cost of litigation of the divorce proceedings
What are the criteria for determining the quantum of the Maintenance amount?
The application by wife Under Section 125 of CRPC for maintenance will contain the following:-
- Any details of previously obtained maintenance order under personal laws.
- Conduct and behavior of the husband.
- Details of children, if any.
- Details of divorce and duration of separation.
- Financial independence of the applicant and her family.
- Grounds for asking maintenance.
- Income declaration of husband.
- Marriage details and length of their married life.
- Payment details of court fees.
- Verification statement by the applicant.
When do Maintenance rights cease?
The maintenance rights of a divorced woman shall cease when it is found that she has remarried someone or is involved with another person romantically. The husband, in such a case, can bring the matter before the court to modify or rescind the order of maintenance.
She is also not entitled to divorce maintenance when she has a job and earns enough for maintaining a standard life. The definition of standard life is subjective in nature.
On which grounds can the wife be refused the Maintainance?
In spite of the above discussion there are certain scenarios where the wife can be refused maintenance which are:
Adultery- If the wife has committed an act of adultery during her marriage then her right to maintenance would be taken away.
Refusal to reside- In scenarios where the wife has, without proper reasons, refused to reside with her husband then she has to satisfy the court of the reason to do so.
Separate residence- If by mutual consent, both the wife and husband have been living separately then the wife shall not be entitled to any maintenance.
Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386.
In this case, it was held that the wife’s income has to be taken into account while determining the amount of maintenance payable to her and it is not an absolute right of a neglected wife to get maintenance nor it is an absolute liability of husband to support her in all the circumstances.
Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.
In this case, the maintenance of a wife for her ‘sustenance’ does not mean mere animal existence but it signifies leading life in a similar manner as she would have in the house of her husband. Furthermore, the husband is duty-bound to enable his wife to live life with dignity according to their social status and strata,
Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299.
In this case, the meaning of ‘wife’ under Sections 125(1) and 125(4) CRPC was held to be different. The court held that Section 125(4) contemplates a married woman who is living separately from a husband with mutual consent does not mean a wife who obtains divorce by mutual consent and lives separately and therefore cannot be denied maintenance on this ground.
Shabana Bano v Imran Khan, AIR 2010 SC 305
The Supreme Court, in this case, had held that a Muslim woman, who has no means of sustaining herself, can claim the maintenance even after the iddah periods gets over, according to Section 125 of CrPC.
Order for Maintenance of wives, children, and parents:
The obligation of the husband to maintain his wife arises out of the status of marriage, and it is a form of personal law. It is pertinent to note that the right of maintenance does not only extend to the wife, but also to the dependent children and the parents who are unable to take care of themselves but the claim of maintenance essentially depends on whether the husband has sufficient means or not. The most important factor of maintenance is that the party who is relying on maintenance should not have any other source of income and is not dependent on anyone else.
- The person who is claiming maintenance can claim even if he/ she has a movable or immovable property, but the property should not yield any income.
- If any of the property of the claimant is able to yield income than he/she cannot claim maintenance.
- The amount of maintenance is not specified under any law, it merely depends on the discretion of the court and the financial condition of the maintainer and the status and comfort of the receiver of maintenance.
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:
Frequently Asked Questions:
Are the working women equally entitled to claim maintenance?
No, the working women are not entitled to claim maintenance as the prerequisite of maintenance is that the person claiming maintenance should not have a source of regular income. Since working women are already in employment they are not dependent on their spouse for their sustenance.
What is the difference between Alimony and Maintenance in India?
Alimony and maintenance are very different, as alimony is paid in lump sum amount usually after divorce whereas maintenance is paid over continuous periods of time for the purpose of sustenance of the spouse.
What are the husband’s rights to get maintenance from the wife?
A husband can get maintenance from his wife if he is unable to earn and is physically or mentally impaired to carry on an activity to earn income. He has to prove his incapability to earn before the court.
“It is possible for men to get maintenance via personal laws and that goes on to show that some legislations are gender-neutral," says Advocate Vikas Malik.
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.
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.