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Law of Maintenance in India - New
Law of Maintenance in India - New
MAINTENANCE
1. Maintenance of Wife
It refers to the payments which a husband, under certain circumstances is under an obligation
to make to a wife, either during subsistence of marriage or upon separation or divorce.
Basis Hindu Muslim Indian Parsi Criminal
Marriage Women(Prote Divorce Marriage Procedure Code
Act, 1955 ction of Right Act, 1869 and 1973 (sec. 125)
(sec. 25) on divorce) (sec. 37) Divorce
Act , 1986 (sec. Act 1936
4) (sec. 40)
1. Persons Either Divorced Divorced Either Neglected,
entitled to spouse can Muslim Wife or spouse can Deserted
claim claim judicially claim as divorced wife
maintenan separated per
ce wife amendmen
t 1988(Act
no. 5)
2. Persons From the 1.From the From the From the From the present
bound to other husband during husband other or former
pay spouse the period of spouse husband(as per
iddat, the case)
2.children
3.parents
4.other relatives
5. Wakf board
(from either of
them in an
order) after
iddat period.
3.Conditio If he or 1. Unable to Divorced Wife being 1. unable to
ns to she is maintain or chaste and maintain herself
claim unable to herself and/or judicially unmarried
maintain not being separated 2. not remarried
himself or remarried.(by wife in case of
herself husband during divorced wife
iddat)
2,3,4. if she is
unable to
maintain
herself
5. If children or
parents or
relatives are
unable to
maintain her.
4. Discretion Discretionary Discretion Discretion Discretionary (E
Quantum ary (for ary (for ary (for arlier before
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The Act talks about the ‘ability’ of non-claimant but not about the ‘income &
property’ of non-claimant. (In Hindu law if the wife is rich and able to maintain herself,
husband may be exempted from paying maintenance)
C. PARSI LAW
The Parsi marriage and Divorce Act 1936 provides for maintenance
pendente lite (Sec 39) and permanent alimony and maintenance (Sec. 40). Sec 41 says
that the Court may direct payment of alimony to wife or to her trustee.
Maintenance has been granted to a wife of void marriage in few cases.
D. MUSLIM LAW
Maintenance is called nafaqa under Muslim law which signifies food, daily
expenditure and logic.
Husband’s obligation to maintain his wife arises due to status arising out of a
valid marriage or a pre nuptial agreement.
Wife’s right of maintenance is a debt against husband & husband has to
maintain his wife even if she is rich. It is an absolute right of wife.
In Muslim law the obligation to maintain wife does not commence on
marriage. (But in Hindu law it commences with marriage)
==
Muslim personal Law
A husband is bound to maintain his wife after she attains puberty so long as
she is faithful to him & obeys his reasonable orders and is available to him at all reasonable
times. She is entitled to maintenance by virtue of her being a wife.
Husband is not bound to maintain a wife who refuses herself to him or is
disobedient. The wife’s right to maintenance is based on three conditions: (1) validity of the
marriage contract; (2) the wife granting her husband access to her at all lawful times
(tamkeen); and (3) the wife obeying her husband’s lawful commands. If the wife fails to
fulfill any of these conditions, she loses her right to maintenance.
The Dissolution of Muslim Marriage Act, 1939 gives a Muslim wife a ground
to seek dissolution of marriage if the husband neglects her or fails to provide her maintenance
for a period of 2 years
A husband‘s duty to maintain his wife extends only upto period of iddat (3
menstrual courses or 3 lunar months)
Wife is given priority on children as she is asl (root) & child is fas (branch)
It does not depend on solvency of husband or insolvency of wife.
If the wife is pregnant the iddat period extends till time of delivery or abortion.
A divorced wife is entitled to unpaid dower, which becomes payable
immediately after divorce.
The widow is not entitled to maintenance during the iddat of death as she is not
included in list of dependants.
In Hanafi law the rank & financial position of both the parties are considered
while in Shafei the position & needs of wife is considered & in Shia wife’s requirements are
considered.
In Mohammad Ahmed Khan v. Shah Bano Begum it was said that if a
divorced wife is able to maintain herself husband’s liability to provide maintenance is ceased
with expiration of iddat. But if the wife is unable to maintain herself after iddat she is entitled
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to recourse to Sec 125 (Cr.P.C) & claim maintenance. The controversies aroused by this case
led to codification of Muslim women (Protection of Right on Divorce) Act, 1986.
A Muslim wife is not entitled to claim past maintenance except in Shafei law.
A wife is not entitled to maintenance if she deserts husband.
Muslim Women (Protection of Right on Divorce) Act, 1986
This act applies only to divorced wife.
An application pending at the time of commencement of act is governed by the
act (Sec 7).
A woman who has been divorced prior to the act is entitled to seek relief under
it.
Under MWA a divorced wife is entitled to a reasonable and fair provision and
maintenance during period of iddat (Sec 3). If she maintains child born to her, maintenance
and reasonable provision would extend to 2 years. She is also entitled to mahr. The word
provision indicates that something has to be provided in advance for meeting the needs of
divorced wife.
Wife is not entitled to provisions of Cr P C (sec 125), unless both the parties
exercise their option to be governed by the code under Sec 5 of the MWA.
If husband fails to provide her maintenance she can file an application to the
magistrate who has to pass order in 1 month keeping in mind husband’s means & whether he
has failed or neglected to maintain her.
As per Sec 4 if a Magistrate is satisfied that a divorced woman has not re-
married and is not able to maintain herself after the iddat period, he may make an order
directing such of her relatives as would be entitled to inherit her property on her death
according to Muslim law to pay such reasonable and fair maintenance to her, and where such
divorced woman has children, the Magistrate shall order only such children to pay
maintenance to her, and in the event of any such children being unable to pay such
maintenance, the Magistrate shall order the parents of such divorced woman to pay
maintenance to her. If all of them are unable to pay her maintenance the Magistrate may, by
order, direct the State Wakf Board established under Section 9 of the Wakf Act, 1954, or
under any other law for the time being in force in a State, functioning in the area in which the
woman resides, to pay such maintenance as determined by him.
In Kunhammed v. K Amina it was held that wife is entitled to fair &
reasonable provision for her livelihood after the period of iddat apart from maintenance
during iddat period.
In the case of Danial Latifi & Anor v. Union Of India the confusion regarding
Sec 3 was cleared & it was held that it lays 2 obligations on husband i.e. to make fair and
reasonable provision for his wife extending beyond the iddat period till she remarries to be
made within iddat period and to provide maintenance to her which is not confined to iddat
period. It was also held by the Supreme Court that a woman who has not remarried and who
is unable to maintain herself after the iddat period can proceed against her relatives (including
children & parents) or else the wakf board. It was clearly said that the Act does not violate
Art 14, 15 and 21 of the Constitution. Thus this resulted in removal of discrimination &
hardship caused to Muslim women.
Sec 7 of the act clearly indicates that there is no inconsistency between act &
sec 125(Cr P C).
Agreements
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The obligation of parents to maintain children arises both out of blood relationship and moral
duty, which is reinforced by statues. The duty of maintaining aged parents is necessary to be
enforced legally as well as morally for happiness of our race.
Basis Hindu Muslim Indian Parsi Criminal
Adoption and Personal Law Divorce marriag procedure
Maintenance Act, 186 e and Code 1973
Act, 1956 9 Divorce (sec 125)
(sec. 20) (sec. 42) Act 1936
(sec 49)
1. Persons 1. legitimate 1. minor Minor Minor 1. Minor
entitled to or illegitimate legitimate children children child whether
claim children children legitimate or
maintenance 2. aged or illegitimate,
infirm parents 2. major whether
(parent legitimate married or
include step children unmarried
mother) 2. major
3. unmarried 3.illegitimate child whether
daughter children legitimate or
As per Hindu illegitimate,
marriage 4.parents and not being
Act1955(sec grandparents, married
26) paternal or daughter
1.minor maternal 3. parents,
children neglected or
2. parents refused to be
maintained
2. Persons 1.from parent 1. primarily on Left to Left to 1. father
bound to s father, the the having
maintain secondarily on discretion discretio sufficient
2.from mother else on of court n of means
children grandparents court
3. only the 2. father
3.from her mother is bound having
parents to maintain , sufficient
not father means
4. from
their sons 3. their sons
3.Conditions 1. so long as 1. if the - - 1. unable to
to claim he/she is children are maintain
minor unable to itself and in
maintain case of a
2. if they are themselves: in married
unable to case of sons till minor female
maintain they attain child if her
themselves majority and in husband is
case of unable to
3. if she is daughters till maintain her
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