The Law pertaining to maintenance is a very essential piece of legislation

protecting the rights of women and advancing justice to estranged wives. The
right to claim maintenance can particularly be found in Section 125 of Code of
Criminal Procedure, which also confers the right to claim maintenance on
parents and minor children. Apart from law enumerated under Section 125
CrPC, an aggrieved wife can also claim maintenance under the relevant
provisions of the Hindu Marriage Act, 1955 and the Protection of Women against
Domestic Violence Act, 2005.

In this article we have demonstrated some cases which aid in understanding the
law and its interpretation by the Indian Judiciary.

Maintenance Case- Strict Proof of Marriage not

required u/Section 125 CrPC- Supreme Court
Case name: Kamala and ors. v. M.R. Mohan Kumar

The Supreme Court in this recent case has reiterated the settled principle of law
that unlike other matrimonial proceedings, a strict proof of marriage is not
essential in claim of maintenance under Section 125 of CrPC and that
when the parties live together as husband and wife, there is a
presumption that they are legally married couple for claim of
maintenance under Section 125 CrPC.

The Two-Judge Bench of the Supreme Court in view of the evidence and
material available on record allowed the appeal holding that there was a valid
marriage between the parties and moreover a strict proof of marriage
was not a pre-requisite for claiming maintenance under Section 125 of
CrPC. The other observations made by the Apex Court in the case are as under:

The Supreme Court also made reference to it’s judgment in the case
of Dwarika Prasad Satpathy v. Bidyut Prava Dixit, wherein it was held
that the standard of proof of marriage in a Section 125 proceeding is not
as strict as is required in a trial for an offence under Section 494 IPC. It
was also noted in the case that an application under Section 125 does not really
determine the rights and obligations of the parties as the section is enacted with
a view to provide a summary remedy to neglected wives to obtain maintenance.

The apex Court in the case also remarked that a broad and expansive
interpretation should be given to the term “wife” to include even those cases
where a man and woman have been living together as husband and wife for a
reasonably long period of time, and strict proof of marriage should not be a
precondition for maintenance under Section 125 CrPC, so as to fulfil the true
spirit and essence of the beneficial provision of maintenance under Section 125.

Merely because the wife is capable of earning it

is not a reason to reduce the maintenance
awarded to her
Case name: Shailja & Anr. v. Khobanna

In this case, 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.

What should be the Quantum of Maintenance?

The Supreme Court answered this question in the case of Kalyan Dey
Chowdhury v. Rita Dey Chowdhury Nee Nandy by holding that 25% of the
husband’s net salary would be just and proper as maintenance to wife.
The Supreme Court while deciding the review petition made reference to the
case of Dr. Kulbhushan v. Raj Kumari & Anr.[3], wherein it was held
that 25% of the husband’s net salary would be just and proper to be
awarded as maintenance to the respondent-wife.

Other remarkable observations made by the Court in the case were:

 That the amount of permanent alimony awarded to the wife must be

befitting the status of the parties and the capacity of the spouse to pay
maintenance.
 That maintenance is always dependant on the factual situation of the
case and the Court would be justified in moulding the claim for
maintenance passed on various factors.

A similar observation has been recently made by the High Court of Kerala in the
case of Alphonsa Joseph v. Anand Joseph, wherein the Court remarked
that Maintenance to Wife can’t be rejected on ground that she is earning

The High Court thus, while making reference to Apex Court’s judgment
in Sunita Kachwaha and ors. V. Anil Kachwaha, noted that even if the
wife was earning some amount that may not be a reason to reject her
application for maintenance outright.

It was also stated by the High Court that as held by the Apex Court in a catena
of decisions, the concept of sustenance does not necessarily mean to live
the life in penury and roam around for basic maintenance. The wife is
entitled in law to lead a life in the same manner as she would have lived
in the house of her husband with respect and dignity.

That the husband is not entitled to contend that he is not prepared to pay any
maintenance and the courts are not expected to accept the blatant refusal
of the husband with folded hands. If the Family Court decides to deny
interim maintenance to the wife or pay a lesser amount than claimed to
the minor child, it can only be on legally permissible reasons and not on
the strength of a memo filed by the husband.

Maintenance Order under Domestic Violence

Act cannot be substituted by Maintenance
under Section 125 CrPC- Bombay HC
Case name: Prakash Babulal Dangi v. The State of Maharashtra

In this case, the wife had initially claimed maintenance under Section 125 CrPC
and the Court had awarded maintenance of Rs. 6000 to the wife and Rs. 4000
to her minor daughter. While the case under Section 125 of CrPC was pending,
a case was filed and an interim maintenance was sought by the wife
under Domestic Violence Act, whereby the husband was directed to pay
maintenance of Rs. 8000 and Rs. 5000 to wife and daughter respectively.

In view of the aforesaid context, the Bombay High Court made reference
to Section 36 of Domestic Violence Act, 2015 which entails that the provisions
of the Act shall be in addition to, and not in derogation of the provisions
of any other law and held that that the amount of maintenance awarded
under the Domestic Violence Act cannot be substituted to the order of
maintenance under Section 125 of CrPC.

Can Husband Claim Maintenance?

Yes, a husband can claim maintenance, however, the Courts have time and
again remarked that maintenance is to be paid to husband only if he is
incapable or handicap. In a recent case of Nivya V.M. v. Shivaprasad N.K.,
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
paid to the husband only when he is able to prove any incapability or handicap.
The Court also observed that in absence of such circumstances as enumerated
above, endowing maintenance on the husband would only promote idleness.

The Court also remarked that a husband seeking maintenance from the wife
can be treated only as exceptional case as normally he has got the
liability or obligation to maintain the wife and vice versa is only
exceptional.

Husband’s Foremost Duty is to Maintain Wife &

Child- He may Beg, Borrow or Steal- Punjab &
Haryana HC
Case name: Rajesh v. Sunita & ors.

The High Court of Punjab & Haryana has held that if the husband fails to pay
maintenance then the defaulter i.e. the husband has to suffer
imprisonment on each default to pay the maintenance.

The High Court while pronouncing it’s verdict in the case heavily relied on
Supreme Court’s verdict in the case of Shantha v. B.G.
Shivnanjappa, wherein the Apex Court had observed that the arrears of
maintenance which is payable to the respondents is for about 45 months.
Sentencing a person to jail is a ‘mode of enforcement’. It is not a ‘mode of
satisfaction’ of the liability. The liability can be satisfied only by making actual
payment of the arrears. The whole purpose of sending to jail is to oblige a
person liable to pay the monthly allowance, who refuses to comply with the
order without sufficient cause, to obey the order and to make the payment. The
purpose of sending him to jail is not to wipe out the liability which he has
refused to discharge. Monthly allowance is paid in order to enable the wife and
child to live by providing with the essential economic necessities. Neither the
neglected wife nor the neglected child can live without funds for purchasing food
and the essential articles to enable them to survive. The first and foremost
duty of the husband is to maintain the wife and the child. He may beg,
borrow or steal.

It was thus concluded by the Court that the maintenance claim has to be
construed continuing liability which becomes due at the end of every month. So,
the defaulter has to suffer imprisonment on each default to pay the
maintenance. On undergoing imprisonment in default of maintenance will not
wipe out the liability which shall subsist till the payment is made.

Can a Divorced or Judicially Separated Wife

claim Maintenance?
Judicially Separated Wife is also entitled to Maintenance

Case name: Sanju Devi v. State of Bihar

In this the Supreme Court, the Court rejected High Court’s order whereby the
Petitioner was disentitled from maintenance under Section 125 of the Code of
Criminal Procedure, 1973 on the ground that the husband and wife had already
judicially separated. The Court also remarked that that if a divorced wife is
entitled for maintenance then there is no reason why a wife who is
judicially separated is not entitled for maintenance.

Maintenance under Section 125 CrPC cannot be denied to a Divorced

Wife

Case name: Manoj Kumar v. Champa Devi

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.

Even a Live-in-Partner can Claim Maintenance

Estranged Wife or Live-in-Partner can Claim Maintenance u/Domestic
Violence Act- Supreme Court

Case name: Lalita Toppo v. State of Jharkhand & anr.

The Three-Judge Bench of the Supreme Court headed by Chief Justice Ranjan
Gogoi, in this recent case has categorically held that maintenance can be
claimed under the provisions of the Protection of Women from
Domestic Violence Act, 2005 (Domestic Violence Act) even if the
claimant is not a legally wedded wife and therefore not entitled to claim of
maintenance under Section 125 of Code of Criminal Procedure.

The Bench explained that the provisions contained in Section 3(a) of the DVC
Act, 2005 which defines the term “domestic violence” also constitutes
“economic abuse” as domestic violence. The Court further opined that under
the provisions of the Domestic Violence Act, the victim i.e. estranged
wife or live-in-partner would be entitled to more relief than what is
contemplated under Section 125 of the CrPC i.e. to a shared household
also.

Wife living separately from Husband without

any reason cannot claim maintenance under
Section 125 CrPC
Case name: Anil v. Mrs. Sunita
In this case, the wife left her husband’s home and resided at her matrimonial
home. In the case, the husband also claimed that he went to bring her wife
back but she refused. The wife in the case had claimed maintenance from her
husband of Rs. 5000.

The husband in the case claimed that the wife without any sufficient reason was
refusing to stay with him and also that she was an advocate and capable of
earning and still was demanding maintenance.

In view of the aforesaid facts, the Madhya Pradesh High Court denied
maintenance to the wife and observed that in view of the facts of the case, wife
resided in her matrimonial home for the first time for 7 days and second time
for 12 days and it is alleged 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 matrimonial home. After 12 days she had voluntarily gone
with her brother with a view to select a girl for marriage of her brother. Thus, it
cannot be held that she was thrown with force from her matrimonial home or
she was forced to leave her matrimonial home.

Maintenance u/Section 125 of CrPC- Wife can

Maintain Petition at any Place she is Residing
Case name: Sachin Gupta v. Rachana Gupta

In the case, the Petitioner has challenged the Trial Court’s order, whereby
petitioner’s application objecting Respondent wife’s claim for maintenance under
section 125 of CrPC on the ground of territorial jurisdiction has been rejected.
Here it would be relevant to mention that the Respondent had instituted
application for maintenance in Delhi and the Petitioner opposed the same on the
ground that in all proceedings except in these proceedings the Respondent has
mentioned her residential address as Aligarh.
The Respondent on the other hand contended that though Aligarh is her
parental home, she was residing in Delhi and had filed the petition in Delhi as
she is living with her brother in Delhi.

The High Court of Delhi in dismissed the petition and made the following
observations in the case:

The High Court of Delhi referred to Section 126 (1) of CrPC which stipulates that
the proceedings under 125 CrPC may be filed in any district where the
respondent resides or where his wife resides or where the respondent last
resided with his wife, or as the case may be, with the mother of the illegitimate
child.

In view of the facts of the instant case, the High Court of Delhi noted that
keeping in view of the fact that the wife can maintain a petition at any
place where she is residing and the fact that the respondent has placed on
record copies of her Aadhar Card, Voter ID Card, which reflect the address of
Delhi, the Trial Court did not commit any error in rejecting the application of the
petitioner holding that the Trial Court has territorial jurisdiction.

Agreement to Waive Right to Maintenance by

Wife is Unenforceable- Bombay HC
Case name: Ramchandra Laxman Kamble vs. Shobha Ramchandra
Kamble And Anr.

In an interesting judgment, the Bombay High Court has ruled that an

agreement wherein the wife waives her right to claim maintenance
under section 125 of Code of Criminal Procedure is opposed to Public
Policy and hence in unenforceable.
It was also observed by the Court that the consent decrees made by the courts
are in effect of nothing but contracts with the seal of the court superadded to
them. Accordingly, if the term of the contract is itself opposed to public
policy then, such term, is void and unenforceable. If the term is severable
then, only the term can be declared as void. If the term is not severable, then,
perhaps, the entire contract may fall.

Also read What is Public Policy?

The Court thus stated that an agreement, in which the wife gives up or
relinquishes her right to claim maintenance at any time in the future, is
opposed to public policy and, therefore, such an agreement, even if
voluntarily entered, is not enforceable.