Assignment On:

 
Critical analysis of Alimony and maintenance as an independent
remedy

Submitted By:
 
Division: A
Roll No.: 17
Subject: Family Law II
Semester: III
Year: S.Y. L.L.B. 2020-2021

Submitted to:

Purba Ganguly
KC Law College, Mumbai.
Introduction

Definition of Maintenance: Right to get necessities which are reasonable. Section 3(b) of the Hindu
Adoptions and Maintenance Act, 1956:

i. provision for food, clothing, residence, education and medical attendance and treatment,
ii. in unmarried daughter, expenses of an incident to her marriage
iii. “minor” means a person who has not completed eighteen years.

Hindu law recognizes that a Hindu has a personal obligation to maintain certain near relations, such as wife,
children, and aged parents and that the one who takes another’s property has an obligation to maintain the
latter’s dependents. Maintenance does not mean unreasonable expectations or demands. Thus husband has a
direct obligation to maintain his wife. In modern system of law, the obligation exists even after the
dissolution of marriage. Thus, a wife has right to maintenance in following situation:
 When the wife lives with her husband.
 When the wife lives separate from her husband, and
 When the wife lives separate under a decree of the court or when is dissolved.

Relevant sections and acts

There are two relevant acts regarding maintenance: The Hindu Adoptions and Maintenance Act, 1956, in
Section 18, 19, 23, 24, 25. The Hindu Marriage Act, 1955, under Section 23a, 24, 25.

The Hindu Adoptions and Maintenance Act, 1956

 Section 18(1) declares that whether married before or after this act, a Hindu wife shall be entitled to
claim maintenance by her husband during her lifetime.
 Sec 18(2) says that a wife is entitled to live separately without forfeiting her right to claim
maintenance in certain situations.
1. Desertion
2. Cruelty
3. Leprosy
4. Bigamy / adultery
5. Concubine residence
6. Conversion
7. Any other reasonable cause.

 Sec 18(3) says that a wife shall not be entitled to separate residence and maintenance of she is
unchaste or ceases to be a Hindu.
How much maintenance
 Section 23(1) says that courts will have complete discretion upon whether and how much to
maintenance should be given. While deciding this, the courts shall consider the guidelines given in
sections 23(2) and 23(3).
 Section 23(2) says that that while deciding the maintenance for wife, children, and aged or infirm
parents, the courts will consider:

1. the position and status of the parties.

2. the reasonable wants of the claimants.
3. If a claimant has a separate residence, is it really needed.
4. the value of the estate and the income derived from it or claimant's own earning, other income.
5. the number of claimants.

Maintenance of widowed daughter-in-law (Section 19)

(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be
maintained after the death of her husband by her father-in-law:
PROVIDED she is unable to maintain herself out of her own earnings or other property or, where she has no
property of her own, is unable to obtain maintenance-
(a) from the estate of her husband or her father or mother, or
(b) from her son or daughter, if any, or his or her estate.
(2) Any obligation under sub-section (1) shall not be enforceable if the father-in law has not the means to do
so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any
share, and any such obligation shall cease on the re-marriage of the daughter-in-law.

Maintenance (Alimony) under Hindu Marriage Act, 1955

Temporary Maintenance (pendente lite) 

Temporary maintenance is granted by the court during the pendency of proceeding for divorce or separation
to meet the immediate needs of the petitioner. Under section 24 of the act, either of the spouses, husband or
wife can be granted relief if the court is satisfied that the applicant has no independent income sufficient
for his or her support and necessary expenses of the proceedings pending under the Act.

The words “wife having no independent income insufficient for her support” suggest that income of the wife
must be independent and must be sufficient for her support. So, even if the wife’s parents are affluent, the
wife has no independent income of her sufficient to support her is entitled to maintenance pendente lite
under Section 24 of the Act. The plea of having no job when the husband is qualified and he refuses several
offers of job on the pretext that it would not suit him is not available as a defence against a petition for
alimony pendente lite by wife.
It is noticeable that Sec. 24 only refers to income and not other property. So in case of alimony pendente lite
other property of the spouses should not enter judicial consideration. Therefore immovable property yielding
no income cannot be considered. Only the income out of it received by the applicant can enter judicial
consideration. In order of alimony pendente lite should be supported by reasons and the applicant is to
establish that he or she has no independent income sufficient for his or her support and for necessary
expenses of the proceeding

Permanent Maintenance 

It is the maintenance granted permanently after the disposal of the proceeding for divorce or separation.
Hindu Marriage Act, 1955 section 25– Applicant, either wife or husband is entitled to receive from the
spouse for his/her maintenance and support a gross sum or monthly or periodical sum for a term not
exceeding the applicant’s lifetime or until he/she remarries or remains chaste.

This section differs from the provisions of similar legislations on this issue to the effect that under analogous
laws permanent alimony is granted only to the wife, but this section recognizes this right for both the
spouses alike following the legal principle of equality before law. A problem arising under Section 25(1) is
of ascertaining the income and property of the parties for fixing the quantum of alimony and maintenance. In
practice the difficulty comes in ascertaining the income and property of the respondent. The applicant is not
generally aware of or is not in possession of documents from which the income of respondents can be
ascertained. Such documents are accessible to the respondent only. It is, therefore, suggested that
matrimonial statutes themselves should contain specific provisions which would make it obligatory on the
parties of maintenance proceeding to produce documents particularly ‘Income-tax Return”.

Case Laws
 Maintenance was defined In Mangat Mal v. Punni Devi, (1995) 6 SCC 88 necessarily must
encompass a provision for residence. Maintenance is given so that the lady can live in the manner,
more or less, to which she was accustomed. The concept of maintenance must, therefore, include
provision for food and clothing and the like and take into account the basic need of a roof over the
head.
 Interim maintenance case: In Purusottam Mahakud v. Smt. Annapurna Mahakud, Supreme
Court held that the right to claim interim maintenance in a suit is a substantive right under section 18
of the Act. Since no form is prescribed to enforce the said right civil court in exercise of its inherent
power can grant interim maintenance.
 In the case of Rajathi vs Ganesan 1999 SC, it was held that keeping or living with a concubine are
extreme forms of adultery.
 In the case of Meera vs Sukumar 1994 Mad., it was held that wilful neglect of the husband
constitutes desertion.
  In the case of Ram Devi vs Raja Ram 1963 Allahabad, if the husband treats the wife with contempt,
resents her presence and makes her feel unwanted, this is cruelty.
 In the case of Dattu vs Tarabai 1985 Bombay, it was held that mere cohabitation does not by itself
terminate the order of maintenance passed under 18(2). It depends on whether the cause of such an
order still exists.
 In the case of Kesharbai vs Haribhan 1974 Mah, it was held that any cause due to which husband's
request of restitution of conjugal rights can be denied could be a good cause for claiming a separate
residence as well as maintenance.
 In the case of Laxmi vs Maheshwar 1985 Orrisa, it was held that if the husband fails to obey the
order of restitution of conjugal rights, he is liable to pay maintenance and separate residence
 In the case of Kulbhushan vs. Raj Kumari wife was getting an allowance of 250/- PM from her
father. This was not considered to be her income but only a bounty that she may or may not get.
However, income from inherited property is counted as the claimant’s earning. 

Conclusion

The concept of ‘permanent alimony’ is not an indigenous concept grown on the soil and there was no law of
divorce amongst Hindus in the country.

Sections 24 and 25 should be available for husband only in a rare case like physically or mentally unfit to
earn. However, wife should be given more liberty to get alimony even if she is leading an adulterous life,
because the right of maintenance should be treated a separate subject. It is entirely different from the ground
of divorce, validity of marriage etc. First wife should be given an opportunity to live the life properly
thereafter other matter should be taken into consideration as without opportunity live the existence of wife is
nothing.

The principle is that one who is unable to maintain oneself, has a right to be maintained. The object is not to
publish but to make realize one’s legal liability, to provide for those who are unable to support themselves,
to make the weaker section of the society to exist the live, to prevent destitution on public grounds and on
the basis of moral support as well, the subject is legally acknowledged.

If balance is maintained among these doctrines, the right to maintenance may be protected in a proper way
can be utilized for the betterment of women’s position at par with the respondent, which ultimately leads to
women’s development in a holistic perspective.

References:
 The Hindu Adoptions and Maintenance Act, 1956.

 The Hindu Marriage Act, 1955.

 www.legalservicesindia.com

 Lawsikho.com

 Advocatespedia.com

 Modern Hindu law : Codified and uncodified, Paras and Piyushi Diwan, 24th edition, 2019.

 AK Jain : Family Law 1

 Shodhganga.inflibnet.com
 Legalserviceindia.com
 Casebriefs.com