“Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. It is given to the spouse to fulfill the basic needs. In this modern era of times Maintenance is also given by the wife to his husband, if husband is unable to sustain his life. The maintenance shall be given to the legally wedded wife. If husband is unable to maintain his wife it not a valid ground for divorce. The main purpose of the maintenance is to maintain the standard of living as she was before marriage.
The three main legislations of maintenance are as follows:
• Hindu Marriage Act, 1955
• Hindu Adoption and Maintenance Act, 1956
• Criminal Procedure Code, 1973
Maintenance includes
▪ Food, clothing, residence, medical treatment, education
▪ In case of unmarried daughter all the expensed incurred in her marriage shall be given
The spousal maintenance is determined on the existence of various factors by the court as follows:
I. The first and foremost thing is to be checked whether a spouse seeking maintenance has any separate source of income or he/she is totally dependent on his/her spouse. II. Standard of living of both the litigating parties before separation.
III. The Expenses required to maintain children
IV. Requirement to maintain the same standard of living of the spouse as it was before the separation
V. Any skills, capabilities of the spouse etc.
The Hindu Adoption and Maintenance act lays down the provision relating to maintenance rights of a woman under Hindu Laws. Under this act, it includes
• The wife
• Daughter in Law
• Children
• Elderly Parents
• Other dependents have right to claim maintenance
Types of Maintenance
1. Temporary Maintenance (pendente lite): Temporary maintenance or interim maintenance is the maintenance awarded by the court during the continuation of the litigation process. Basically it is given by the either party, who is insufficient to give litigation fees. It is mentioned in section 24 of Hindu Marriage Act, 1955. Temporary maintenance may also be claimed under section 125 crpc. Interim maintenance has to be disposed of within sixty days of service of notice on the respondent.
2. Permanent Maintenance: It is the maintenance which is awarded by the court permanently. According to section 25 of the Hindu Marriage Act, 1955, petitioner either wife or husband is entitled to receive maintenance either monthly or gross or periodical sum for a term not exceeding the petitioner’s lifetime. According to section 18 of Hindu Adoption and Maintenance Act ,1956, Hindu wife shall be entitled to get maintenance from her husband during her lifetime. While living with her husband.
Wife also has a right to separate residence and maintenance if any of the condition in Section 18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same house, conversion of religion or any other reasonable cause] is fulfilled until she remains chaste or does not convert to other religion. Section 19 of this Act makes a provision for a widowed wife to be maintained by her father-in-law.
Section 125 of Criminal Procedure Code, 1973, provides for maintenance not only to the wife but also to child and parents. Court may order a husband who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself to provide monthly maintenance to her.
Wife is not entitled to get maintenance
• If she is living in adultery
• If she remarries
• If she converts into another religion
• If she is in Live in relationship
Cases:
• In Shailja & Anr. v. Khobanna[ CRIMINAL APPEAL NOs. 125-126 of 2017], the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.
• In Padma Sharma v. Ratan lal Sharma, It was held that Hindu earning mother is also obliged to maintain her children. Both, a Hindu Divorcee father and a Hindu divorcee earning mother are obliged to contribute for maintenance of their children under the Hindu Adoption and Maintenance Act, 1956. Father is not exclusively responsible to maintain children regardless of mother being affluent.
Conclusion
The concept of maintenance is old but women didn’t have rights to claim her maintenance. Section 125 of Crpc changed the concept of it. It has rights to women who are unable to maintain herself and their children. This change has been the revolutionary change for women in India and whenever the court talks about maintenance the shahbano’s case is the landmark judgment under section 125 crpc.
-Isha Singh
IMS Law College, Noida
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