INTRODUCTION

The whole concept of maintenance was initiated in order to see that if there is a
spouse who is not independent economically than the other spouse should help him/her in
order to create the living of other person doable and independent. The maintenance may be
in gross sum or periodical or on month to month basis. The income and property of the non-
Applicant shall be considered while ascertaining the permanent alimony. The interim
maintenance is payable from the date of presentation of the petition until the date of
dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the
instant needs of the petitioner.

This paper deals with Maintenance of Wife under Hindu Marriage Act, 1955. The concept of
maintenance aims at putting the wife back to the same position of comfort and lifestyle as
she was at the time when her marriage existed. There is no fixed amount of maintenance
that the husband is liable to pay to his wife, and it is upon the discretion of a family court to
fix the amount of maintenance that the husband needs to pay either on a monthly basis or in
form of lump sum. Maintenance to wife is a very complicated issue under Hindu Marriage
Act. It is often stated as a mean to exploit the husband by asking alimony for life. Section
24 of Hindu Marriage Act, 1955 (The Act) states that either husband or wife may claim
maintenance pendent lite i.e. maintenance till the proceedings are in process. Further,
section 25 of the Act states the grounds for permanent alimony. Maintenance to wife refers
to the payments, which husband, under certain circumstances is under an obligation to pay.
The maintenance is either paid during the subsistence of the marriage or after its dissolution.
The most vital part of the maintenance is that the spouse which depends on maintenance has
no other source of income to support himself/herself. The quantum of maintenance and the
expenses of proceedings are not defined under any Matrimonial law except the Divorce Act.

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RESEARCH PROBLEM

The major problem which is faced by women regarding maintenance is that they are not
getting the adequate maintenance amount. A women who is dependent on her husband for Commented [SB1]: aintenance

all her needs, is not getting the right amount of maintenance from her husband after the
divorce. It is very difficult for non-working women to afford her legal expenses of the
application of divorce. Since she cannot afford a good lawyer for herself, it becomes very
difficult for her to claim the right amount of maintenance.

RESEARCH QUESTIONS

1. Whether all women get maintenance under Hindu Marriage Act?

2. On what basis is the amount of maintenance decided?

RESEARCH METHODOLGY

The present study is based on the collection of data from secondary sources. Secondary data is
obtained from various published and unpublished records, books, magazines and journals.

HYPOTHESIS

H1: There is no significant change in maintenance under Hindu Marriage Act

H2: There is significant change in maintenance under Hindu Marriage Act.

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REVIEW OF LITERATURE

For the purpose of research, following literature has been used:

1. A study of maintenance under Hindu marriage Act by S. Manoj Vasanth

The journal deals with the Hindu laws relating to marriage and maintenance. The
author explains the provisions with the relevant case laws. Each provision regarding
the maintenance has been explained briefly with the suitable examples. The author
has deeply analyzed the maintenance laws in India. The author has explained in
detail the rights available to a Hindu women regarding the maintenance.

2. Women’s Right of Maintenance: Study of the various personal laws and social
welfare legislation
This paper gives a clear and accurate analysis of the maintenance laws in India. It
discusses about the maintenance laws of the various religion. The paper explains the
maintenance laws of each religion in detail. The paper also cites various case laws where
it shows the conflict of decisions of various High Courts and how the law has been
evolved where the maintenance has also been granted to second wife. It helped me to
understand the law better and to analyze it. It helped the researcher to be able to
understand the difference between Hindus and Muslims Personal laws regarding
maintenance.

3. The concept of ‘maintenance’ under Indian law by Kamni Ahuja, Vasundhara Ravi
The paper briefly explains the maintenance laws in India. The authors of this paper have
analyzed the maintenance laws of each religion in detail. The author has also dealt with
the problems faced by the women in live in relationships. The author has explained the
court’s view regarding the live in relationship and under which circumstances they can be
awarded the maintenance. The author also explains how there is still social stigma that
the husband is obliged to give maintenance but not to receive it. The paper has been a
useful resource for writing this draft, as it explains what are the problems faced by the
women regarding the maintenance.

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CONCEPT OF MAINTENANCE

The right to claim maintenance is a right recognized under different laws in India, each one is
different from other in main and another particulars. The child, wife, aged parents, divorced
wife, other near relations must obtain some subsistence for themselves. Maintenance in most
cases is due to the fact of marriage. Family tie and family obligations of more or less pressing
type, call for the need of maintenance. Litigations to obtain maintenance take the shape of legal
battles in various countries, so also in India Government tries to solve the problem by way of
certain Acts passed in the legislature. Statutory enactments try to solve the problem for
mitigating the hardships of unemployed wife, children, and old and infirm parents who are
unable to maintain themselves, obviously, for the reason that they have no income of their own.
The anti-vagrancy measures adopted by government of India can be better utilized at the
initiative of victims and for this, people in general should be legally conscious and active to
obtain their statutory benefits. Maintenance provisions among various communities in India are
enshrined mainly (a) in the personal laws of Hindu and Muslims who constitute the bulk
population in India and also (b) in the Code of Criminal Procedure, 1973.

PERSONS ENTITLED TO RECEIVE MAINTENANCE

Maintenance may be allotted to dependent children, parents and legally wedded

wives, counting but not limited to a divorced spouse, mistress, illegitimate children, etc.

In specific cases under personal laws, the court have adopted indulgent view and allowed
the husband the right to receive maintenance. Such right however, is conditional and
restricted normally given to the husband, just in the event that he is debilitated because of
some mishap or illness and rendered unequipped for procuring a job. Such an entitlement is
not available toan able person, doing nothing for a living or a „wastrel‟.

The remedy under section 125 of CrPC is speedy and inexpensive, as compared to personal
laws. However, the provisions given under any personal laws are different and separate
from section 125.there is no contention between both the legal provisions. A person is

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entitled to receive maintenance under Section 125 regardless of having gotten it under the
specific personal law. The Act foresee certain situations in which it becomes impossible for
a wife to continue to reside and cohabit with the husband but she might not want to break
the matrimonial tie for various reasons ranging from growing children to social stigma.
There is misapprehension that a working woman is not entitled to profess maintenance as
she is earning and is thus able to maintain herself. The Indian Courts have granted the right
to maintenance to working woman and held that an antagonized woman can claim can claim
maintenance from her husband even if she earns a monthly income, which is not enough for
her to maintain herself. Hence, earning wife is entitled to maintenance under maintenance
law for wife in India. The issue of right to maintenance to the second wife has been dealt
differently by the High Courts and Supreme Court depending on the facts and circumstances
of each case, thus providing the diverse interpretation to the expression “wife” under
Section 125 of the Code of Criminal Procedure.

TYPES OF MAINTENANCE UNDER HINDU LAW

Under the Hindu maintenance laws, there are 2 types of maintenance that can beclaimed by
the wife. When the wife files a maintenance petition through her divorce attorney, the
burden to declare his income shifts to the husband, who has the right to defend the
maintenance petition.

The types of maintenance under Hindu laws are as follows:

 Interim Maintenance
When the wife files a maintenance petition, the court could award her interim
maintenance that the husband should pay from the date on which the application was
filed by the wife till the date of dismissal through her divorce law advocate. It is also
known as Maintenance Pendente Lite and is paid so that the wife can pay for the legal
expenses incurred by her.
Interim Maintenance is granted by the Courts in the cases where wife has absolutely
no source of income to maintain herself. There are no laws that lay down the amount of
this type of maintenance andit is completely upon the discretion of the court to

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 determine how much maintenance is sufficient for the wife to sustain during the
proceedings.
Section 24 of the Hindu Marriage Act, 1955 lays down that both the husband and
wife can file an application for interim maintenance through their divorce advocate.

 Permanent Maintenance
Permanent maintenance is paid by the husband to his wife in case of divorce, and the
amount of the maintenance is ascertained through the petition filed by the advocate.
Section 25 of the Act states that the court can grant maintenance to wife in form of a
lump sum or monthly amount for her lifetime.
However, the wife will not be entitled to any maintenance under the following
circumstances:
a) She has ceased to be a Hindu by converting to another religion.
b) She is guilty of adultery i.e. she is unchaste and indulged in physical relations with
another man.
c) She has remarried after the divorce

MAINTENANCE TO WIFE

Earlier, it was the obligation of the head of the family to take care of the women of the family i.e.
their wives and their daughters until they were married. The unchastity on part of the women
excluded them to maintenance. Their remarriage ended the claim and the amount of
maintenance depended upon numerous factors just like the status of the family,
necessary needs, wants, age, etc. Section 24 of Hindu Marriage Act, (HMA) 1955 allows for
maintenance.

Under this Act, only a wife is granted maintenance. The Hindu husband is legally obligated to
maintain his wife during his lifetime. There are certain exceptions to it, where a Hindu wife is
not entitled to maintenance in the case where a wife ceases to be Hindu or lives individually.
Also, a Hindu wife under this act shall not be entitled to separate accommodation and
maintenance from her husband if she converts into any other religion or if she is unchaste.

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Wife can claim separate residence in the situation where husband remarries and the other
also lives in the same premise. Under section 19 of the Act, wife after the death of her
husband is entitled to be maintained by her Father in-law, if she has no means of her own
earnings. However, the maintenance cannot be granted if her Father in- law does not have means
to do so or if she re marries.

Maintenance of Wife under Section 18, the Hindu Adoptions and Maintenance Act, 1956

Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her spouse
for lifetime i.e. she will be getting maintenance till she dies or her husband dies. A Hindu
wife is allowed to live separately from her husband without affecting her right to
maintenance. The grounds under which she can live separately are:

(1) Husband is guilty of desertion

(2) The Husband has treated her with cruelty

(3) The husband is agonizing from a virulent form of leprosy

(4) The husband has any other wife living.

(5) The husband keeps a concubine elsewhere

(6) The Husband has halted to be a Hindu by conversion to another religion and

(7) If there is some other reason defending living independently

QUANTUM OF MAINTENANCE

Besides, food, clothing and shelter maintenance also includes other necessities. The quantum and
type of necessities included in the scope of maintenance depends upon the status, financial
position and number of dependents, etc. and is at the discretion of the court. Antecedent to

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passing an order under Section 125, the court does take cognizance of the amount of
maintenance already granted under the personal law. The reasoning relies on the premise that
he wife is entitled to live as per the standard and status of her husband.

The amount of maintenance to be paid depends upon different factors. The courts rely on the
provision of Section 23 of the Act while asserting the total maintenance that the husband needs
to pay to his wife. The provision lays down the following factors that must be considered to fix a
maintenance amount:

 The position and status of the husband and wife,

 Whether the wife has an actual claim for maintenance.
 If the wife is living separately, whether the reason to do so is justified.
 The wife’s total property and income.
 The husband’s total property, income generated from this property, and his other income.
 The total number dependents and their expenses borne by the husband. The personal
expenses of the husband.
 The net value of the estate of the deceased after providing for payment of debts .
 The provision, if any made under a will of the deceased.

The claim of a dependent for maintenance does not impose any change on the estate of
deceased unless a will mandates the same.

Under Section 24 of the Hindu Marriage Act, 1955, relief may be provided by way of
maintenance and litigation expenses to either of the spouse if he/she is unable to maintain
herself during the pendency of proceedings. Under Section 25of the Act, 1955 both husband
and wife may be granted maintenance and permanent alimony after passing a decree of
restitution of conjugal rights, judicial separation, divorce and annulment of marriage under
the said Act, if the husband or wife is unable to maintain himself/ herself.

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JUDICIAL PRECEDENTS

1. Bhuvan Mohan Singh vs. Meena1

Maintenance of wife for her ‘sustenance’ does not mean animal existence but signifies
leading life in a similar manner as she would have lived in the house of her husband.
Husband is duty bound to enable his wife to live life with dignity according to their social
status and strata.

2. Badshah vs. Urmila Badshah Godse2

The Supreme Court in this case held that the victim of bigamous marriage is entitled
to maintenance. The Court held that if a man deceitfully marries a woman hiding the
subsistence of earlier marriage, he is obliged to pay maintenance to her under Section 125
of Code of Criminal Procedure. The standard of proof of marriage in such proceeding is
not as strict as is required in a trial of offence under section 494 of the IPC. If the claimant
in proceedings under s.125 of the Code succeeds in showing that she and the respondent
have lived together as husband and wife, the court can presume that they are legally
wedded spouse, and in such a situation, the party who denies the marital status can rebut
the presumption. Once it is admitted that the marriage procedure was followed then it is
not necessary to further probe into whether the said procedure was complete as per the
Hindu Rites in the proceedings under S.125, Cr.P.C.

3. Vanamala vs. H.M. Ranganatha Bhatta3

The meaning of ‘wife’ under Sections 125(1) and 125(4) CrPC is different. Section
125(4) contemplates a married woman. Wife living separately from husband with mutual
consent does not mean wife who obtains divorce by mutual consent and lives separately
and therefore cannot be denied maintenance on this ground.

1
(2015) 6 SCC 353.
2
(2014) 1 SCC 188
3
1995 SCC (5) 299, JT 1995 (5) 670

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RECENT JUDGEMENTS ON MAINTENANCE

There is a spate of judicial precedents on the concern of maintenance. Until recently, the term
‘wife’ was interpreted in a narrow manner, since the intention of the judiciary was to protect
destitute and harassed women. The Indian courts held that only a lawfully wedded woman was
entitled to claim maintenance.

 Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy4,

In this case, the Supreme Court dealt with the issue of enhancement of maintenance
under section 25(2) of the Hindu Marriage Act, 1955. This provision confers discretion
on the Court to vary, modify or rescind maintenance order in such manner as the court
deems fit. There must be some change in the circumstances of either party which must be
considered when an application is made under section 25(2) of the Act for variation,
modification or rescission of the order as the Court may deem just.
In the case, the Respondent- wife filed review petition. In the earlier order the Court
had awarded a maintenance of Rs.16, 000/- to the respondent-wife further on her
minor son.
However, later on the husband’s net salary increased to Rs. 95,527/-. The court held
that 25% of the husband’s net salary would be just and proper to be awarded as
maintenance to the respondent-wife. The Court also observed that the maintenance is
always dependent on the facts of the case and the court would be justified in molding the
case on the changing circumstances. Thus, it was held that the High Court id justified in
increasing the amount of maintenance.

 Shailja & Anr. v. Khobanna5

In this case, the Supreme Court, made the observation that maintenance of wife cannot be
reduced merely because of the reason that wife is capable of earning and said that
whether a wife is capable of earning and is actually earning are two different factors.

4
CIVIL APPEAL NO. 5369 OF 2017
5
CRIMINAL APPEAL NOs. 125-126 of 2017

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  Manoj Kumar v. Champa Devi6
In the case, the husband had contended that as the decree of divorce had been passed he
was under no obligation to pay maintenance to the wife as contemplated under Section
125(4) of CrPC. However, the High Court held that a divorced woman continues to enjoy
the status of ‘wife’ for claiming maintenance under Section 125 of CrPC.

 Nivya V.M. v. Shivaprasad N.K7

In this case, the Kerala High Court dismissed husband’s claim for maintenance from
his wife holding that maintenance under Section 24 of Hindu Marriage Act, 1955 is
to be paidto the husband only if he's able to prove any incapability or handicap.
The court also remarked that husband getting maintenance from his wife is an
exceptional situation, otherwise it is usually husband who is bound to pay maintenance to
his wife.

 Anil v. Mrs. Sunita8

In this case, wife left her matrimonial home and went to her father’s home. The husband
went to bring her wife but she refused to come back and demanded for the maintenance
of Rs.5000.
The husband asserted that the wife without any specific reason refused to stay with him
and also she was working and capable of earning.
In view of the aforementioned facts, the Madhya Pradesh High Court denied maintenance
to the wife and ascertained from the facts that the wife lived in her marital home for the
first time for 7 days and second time for 12 days and it is affirmed that in these 12 days
she was harassed. It is practically impossible that she could have been so harassed that it
is impossible for her to live in her marital home as after 12 days she went with her
brother with a view to select the girl for him for the marriage. Thus, it can be said that she
was not forced to leave the matrimonial home. Therefore, she was not granted
maintenance under section125 of CrPC.

6
Special Leave to Appeal (Crl.) No(s).10137/2015, decided on April 06, 2017
7
OP (FC).No. 26 of 2015 (R), decided on February 14, 2017
8
Criminal Revision No.829 of 2014

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 The change in the perception of the social relationships and the growing trend of live-in
relationships has influenced the Indian mindset. This is apparent to recent cases which
were taken by the Courts and have granted the maintenance to women in live-in
relationships also.

 Velusamy vs. Patchaiammal9

Supreme Court allowed a live-in relationship to come within the ambit of Domestic
Violence Act (DV Act), 2005, subject to fulfillment of some additional conditions:
1. The couple must be of legal age to get married.
2. The both of them should qualify for marriage i.e. they should be unmarried.
3. The couple must hold to the society as they are married.
4. They must have voluntarily cohabitated
If all of these guidelines are fulfilled, then complaint can be filed under DV Act and
maintenance can be granted.

 Ajay Bhardwaj vs. Jyotsana10

The petitioner Jyotsana was awarded maintenance from Ajay even though they were not
married and were in live in relationship. The court still granted maintenance knowing that
the Jyotsana got the permanent alimony from her first husband.

CONCLUSION AND SUGGESTION

From the analysis of decisions articulated by different High Courts and the Supreme Court,
it is obvious that clashing choices have been given on the issue of granting maintenance to
the second wife whose marriage according to Hindu law is void. However, in the case of
Narinder Pal Kaur Chawla (2008) the Delhi High Court gave the liberal understanding to the
expression 'wife', therefore allowing the second wife the right to maintenance. Yet, the law,

9
(2010) 10 SCC 469
10
Crl. Revision No. (F) 166 of 2015 (O & M) Decided On, 23 November 2016

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till date still perceives the second marriage as void, if the first marriage still subsists. Thus,
the second wife isn't qualified for any of the privileges of a legitimate wife including that of
maintenance.

It is evident from the recent judicial choices that the Indian courts are progressively liberal
in deciding cases pertaining to maintenance. While it shows from the decisions passed under
the personal laws that the same may be possible, judicial decisions relating to Section 125
continue to uphold the view that maintenance can be claimed only by a legally wedded wife.
It is clear from therefore going that though, over a period of time improved rights are
bestowed upon Indian Hindu women, the rights available to them do not match with the
rights required. It is evident from the foregoing provisions that though, over a period of time
improved rights are bestowed upon Indian Hindu women, the rights available to them do not
match with the rights required.

Women have been bestowed with many more privileges in comparison to men and husbands
have been granted a lot more of responsibilities and obligations. Although the given laws may
sound unjust to a few but pragmatically they seem to be correct as in our country even till date
women do not have the social status equal to that of men. Hence, it won’t be incorrect to
extrapolate that Law makers while formulating these provisions must have kept in mind the
situation of the women in the patriarchal society of India. The women of both the communities
are suffering due to being poor, being women and then being a part of the patriarchic society.

Maintenance should be a concern of not only for weaker sections but of the society as well.
It is very important for both the spouses to be aware of their rights regarding maintenance
so that it can achieve its main objective.

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BIBLIOGRAPHY

Statues

 Marriage and Divorce Laws, Bare Act

Books and Journals Referred:

 Procedure of Determination of Amount of maintenance under Hindu Law by Akshay

Koundal
 Hindu Marriage as a Samskara: A resolvable conundrum by B.N. Sampath
 Family Law In India by Prof. G.C.V. Subba Rao

Websites

 http://www.shareyouressays.com/knowledge/procedure-of-determination-of-amount-
of-maintenance-under-hindu-law/117813
 https://acadpubl.eu/hub/2018-120-5/3/249.pdf
 http://shodhganga.inflibnet.ac.in/bitstream/10603/166360/8/08%20chapter%203.pdf
 https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=5be1285c-2dfc-4513-
88c2-acc7e2a0c04e
 https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-
in-relationships
 https://www.livelaw.in/women-live-relationships-entitled-maintenance-akin-legally-
wedded-wives-punjab-haryana-hc/
 https://www.vakilno1.com/legal-news/landmark-judgments-2017-maintenance.html
 https://blog.ipleaders.in/cases-on-maintenance-rights/

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