Alimony and Maintenance

Alimony and Maintenance are similar concepts that refer to an allowance made to a wife,
required by law, out of the husband’s estate for her support either during a matrimonial suit or
on the termination of such suit where it has been established that she is entitled to some
maintenance. Maintenance can be claimed by wives, for themselves and their children, under
all matrimonial statutes except Dissolution of Muslim Marriage Act as an ancillary relief
during matrimonial proceedings.

Hindu Marriage Act

Section 24 of the Hindu Marriage Act, 1955 talks about the maintenance pendente lite and
expenses of proceedings. Here, the term maintenance refers to the provision of basic needs to
a dependent spouse and ‘pendente lite’ is a Latin term that means “while a suit is pending” or
“while litigation continues”. Thus, it can be understood that ‘maintenance pendente lite’
refers to the provision of living expenses and financial support to the spouse (either wife or
husband) while a suit is pending.
Section 24 of Hindu Marriage Act, 1955

Section 24 of the Hindu Marriage Act, 1955 (hereinafter ‘HMA,1955’) states that in any
proceeding under the HMA, 1955, if a court believes that either the husband or the wife has
no source of independent income to provide for his or her support and the required expenses
of the proceedings then the court may, on the application of such dependent spouse, order the
other spouse to pay –

The expenses of the proceedings

The monthly sum during such proceedings as the court finds reasonable with regard to
the income of both the spouses.

In the case of the Special Marriage Act, 1954 a similar provision has been made under
Section 36 with a key differentiation that under this Act, the alimony pendente lite (alimony
during pendency of the suit) can only be claimed by the wife, it does not apply to the
husband.

Further, Section 125 of the Criminal Procedure Code, 1973 also talks about the provision of
interim maintenance to the wife by the husband. The provision of interim maintenance under
Section 24 applies to the cases of restitution of conjugal right (Section 9), judicial separation
(Section 10), void marriages (Section 11), voidable marriages (Section 12) and divorce
(Section 13). Either the husband or the wife may claim interim maintenance for himself or
herself or their child irrespective of the fact as to which party started the proceedings. The

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 primary condition for grant of interim maintenance is that one party to the proceeding does
not have sufficient independent income for their support and the required expenses of the
proceedings. By the virtue of Section 24, the court can exercise the power conferred upon it
even if the Respondent denies the factum of marriage.
Case Laws:

The courts have recourse to methods apart from the Civil Procedure Code, 1908 for the
enforcement of orders regarding interim maintenance and expenses of proceedings. In
the case of Narinder Kaur v. Prilam Singh (1985), an employed husband who denied
obeying the order to pay maintenance pendente lite was punished for contempt and given
a sentence of four months.

The effect of non-compliance of order on pending appeal has been discussed in the case
of Banso v. Sarwan (1978), where the Punjab and Haryana High Court ordered the
husband for payment of maintenance pendente lite on the preference of an appeal by the
wife after her petition for judicial separation was dismissed by the court below. The
husband disobeyed the order of the Court. On this ground, the High Court allowed the
appeal.

Section 25

In India, maintenance laws are stringent and applicable to all citizens. The maintenance laws
in India, provide support to those parents, wives, and children who are unable to maintain
themselves. It is the duty of the man to provide for maintenance.

Perhaps the most important provision for the right of maintenance, under the Hindu Law is
mentioned in Section 25 of the Hindu Marriage Act, 1955. Before analyzing this provision,
let us first look at what it says:
This Section talks about permanent alimony and maintenance stating that:

Any court that has jurisdiction under this Act shall on an application made by either the
wife or the husband for grant of maintenance, order the non-applicant to pay for the
maintenance and support of the applicant, either a yearly or monthly sum for a term not
exceeding the life of the applicant, with regards to the non-applicant’s income and
property, and any such payment may also be secured by charging the non-applicant’s
immovable property.

If the court is satisfied that there is a change in the current situation after passing the
order, then the court may modify, or rescind the order at the instance of either party.

If the court is satisfied that the party in whose name the order is placed has re-married, or
if the wife has not remained chaste, or if the husband has had sexual intercourse with any
another woman, then the court at the instance of the party may modify, rescind the order.

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 Types of maintenance
Now, the Hindu Marriage Act, mentions two types of maintenance, which are as follows:

Interim maintenance

Section 24 of the Act, talks about interim maintenance or maintenance pendente lite. It states
that if a situation arises where the wife or the husband does not have sufficient income to
support his or her daily and necessary expenses, the court may on an application grant the
non-applicant to pay to the applicant the expenses required monthly, during the proceedings,
taking into consideration the income of both the parties. The amount granted in such a case is
not fixed and entirely depends on the court to decide. Thus, interim maintenance is given
during the course of the court proceedings.

Permanent maintenance

Permanent alimony and maintenance are given under Section 25 of the Act, as mentioned
above. This type of maintenance is given at the time of passing an order for divorce.

Alimony is a one-time payment made to either the husband or wife whereas maintenance can
be monthly, annually or instalments fixed by the court. Further, alimony is mostly referred to
when divorce is done by mutual consent. Maintenance is given in cases where one party has
filed for divorce and the other party has contested it in court.

Case laws

In the case of Umarani v D. Vivekannandan, (2000), the parties filed for divorce under
Section 13 of the Hindu Marriage Act. The petitioner applied for interim alimony and
other expenses under Section 24 of the Act. She argued that her husband(respondent)
deserted her and her child, and was capable enough to pay for her maintenance. A
question arose, whether a written application is needed under Section 25 to claim
alimony and maintenance. Hence, the Court granted monthly maintenance to the
petitioner and her child and held that a written application is not necessary under Section
25.

In the case of Patel Dharamshi Premji v Bhai Sakar Kanji (1950), both parties were
married to each other and had a son. Soon, they separated, and the respondent(Bhai
Sakar Kanji) went away to stay with her father. The issue was whether either of the
parties can apply for maintenance after passing the order for divorce. The Court allowed
the appeal and held that either the husband or wife can file for permanent alimony after
passing the order for divorce under Section 25 of the Act. The Court also changed the
order of the Lower Appellate Court and increased the amount of maintenance to be given
to the son by the appellant.

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 Provisions Of ‘Maintenance’ of The Hindu Wife Under Hindu
Adoptions And Maintenance Act (Hama), 1956
Section 18, 19 & 20
Under matrimonial laws, a woman can obtain maintenance from her husband only as an
adjunct to proceedings for divorce or judicial separation. But if woman is a Hindu, then she
can claim maintenance and the right to live apart from her husband without having to file a
petition for judicial separation or divorce. 19 Under Section 18 of HAMA, 1956 a woman
can claim maintenance from her husband on any of the following grounds:

Maintenance: Section 18, Maintenance Of Wife.-

Maintenance of Wife: Section18 of the Hindu Adoptions and Maintenance Act, 1956 deals
with the maintenance and separate residence of the wife.

1. a Hindu wife, whether married before or after the commencement of this Act, shall be
entitled to be maintained by her husband during her lifetime.

2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her
claim to maintenance

3. If he is guilty of desertion,

4. if has treated her with such cruelty as to cause a reasonable apprehension in her mind
that it will be harmful or injuries to live with her husband.

5. If he is suffering from a virulent form of leprosy. (d) If he has any other wife living.

6. If he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere.

7. If he has ceased to be a Hindu by conversion to another religion.

8. If there is any other cause justifying living separately.

9. A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Interim maintenance: 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.
Maintenance pendente lite: After considering the status of the husband the wife should be
awarded maintenance pendente lite, even though there is no separate provision in the Act for
grant of maintenance pendente lite. The obligation to maintain the wife remains on the
husband even though the wife might be living separately.

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 Maintenance to wife/widow: Widow has no charge on separate property of husband. Neither
section 18 relating to maintenance of wife nor section 21 dealing with widow provides for
any charge for maintenance on separate property of husband.

Section 19, Maintenance of widowed daughter-in-law

Section 19 of the Hindu adoption and Maintenance Act, provides that a widowed daughter-
in-law is entitled to be maintained by her father–in –law. It states that 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 and to the extent that she is unable to
maintain herself out of her own earnings or other property.
In Raj Kishore Mishra v. Meena Mishra, it was held that where from the estate of the
parents, the daughter-in-law can maintain herself; question of father-in-law does not arise.

Maintenance of children and aged, infirm parents.

Under Section 20 of the Act not merely the father but mother is also under a legal obligation
to maintain Son or illegitimate son.
Provisions under S. 20:

A Hindu is bound to maintain his/her legitimate/illegitimate children and aged or infirm

parents.

Children of the person can only claim maintenance as long as they are minor.

The obligation of a person to maintain his or her aged or infirm parent or daughter who
is unmarried extends so far as the parent or the unmarried daughter, as the case may be,
is unable to maintain himself or herself out of his or her own earnings or other property.

'Parent' also includes a childless stepmother.

Maintenance of dependents: Section 21 of the Hindu Adoption and Maintenance Act deals
with the rights of the dependents of the deceased to claim maintenance from the heir of the
deceased.

CrPC and Maintenance

Section 125 of CrPC

The person is only liable to compensation to the following persons as mentioned in the
section 125(1) ;

His wife – The person (husband, man) is only liable to pay compensation to the legally
wedded wife. If the Marriage is invalid or illegal, it would be the husband's
responsibility to provide maintenance. Also if the parties are living together and not

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 married would be subject to the proof of the Marriage in court to be eligible for the
maintenance. In the case of Samir Mandal v. State of Bihar, the Supreme Court held
that the woman alleging bigamy under sec. 494(IPC) failed to establish her Marriage or
second Marriage to another woman could result in the denial of her claim for
maintenance.

His legitimate or illegitimate child – This sub-section provides for the maintenance of
children irrespective of legality of marriage. Whether the child is legitimate or
illegitimate the father is liable to maintain them. In the case of a female child she may be
entitled to claim maintenance from her husband after attaining majority or from both
subjects to the fulfillment of other necessary conditions.

His legitimate or illegitimate abnormal child after attaining majority- Such child
who by any reason of abnormality is unable to maintain itself, they are entitled to
maintenance under this section.

His mother or father – The person is liable to provide maintenance to his parents. It is
unclear whether adopted parents also included under this some judgments have been in
favor while some are not. The parents can claim maintenance from any of the children in
case of more than one child .

Essential conditions for granting maintenance;

The person must be able to provide maintenance to whom maintenance is claimed – the
person who is able bodied and healthy must hold a means to support his wife, children
and parents.

Neglect or refusal to maintain – the person must have neglected to maintain the Person
or persons against whom maintenance is claimed. The refusal may not only be by words
or conduct, it can also be implied.

The person claiming maintenance must be able to maintain himself or herself – A person
who himself is unable to maintain himself or herself is not liable to provide maintenance
to his wife, children and parents.

Special provision for minor married girls- A minor married girl with insufficient means
can claim maintenance from her husband given that he is able. If the husband is not
sufficient enough to provide her maintenance she can claim maintenance from her father.

Section 126 of CrPC

A magistrate is competent to entertain an application for maintenance against a person who

works for gain within the territorial jurisdiction of such magistrate, although he may or may
not have permanent address/residence within such jurisdiction.

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 The section 126(2) provides that it is mandatory that all evidence in such proceedings shall
be taken in the presence of the person against whom it is proceeded or his pleader. An order
passed under section 125 is no bar to a suit for maintenance in civil court. In case of
inconsistencies between criminal and civil court decisions the latter shall prevail.

Section 127 of CrPC

Under this section the magistrate after scrutinizing and weighing the evidence and listening
both the parties and upon satisfaction of the provided essential conditions for granting
maintenance under section 125 may order the person against whom the proceedings began to
pay a monthly allowance for the maintenance or as hee deem suitable way for the
maintenance to his wife, children and parents.
Section 128 of CrPC

The section 128 of the criminal procedure code,1973 which is also the last section in the
maintenance provisions to the wife, children and parents oversees the enforcement of the
order of maintenance passed under section 125. In this a copy of the order is provided free of
the cost to the other party in whose favor it is granted.

It is enforceable anywhere in India irrespective of territorial jurisdiction.

Maintenance in Muslim Law

We shall discuss the aspects of maintenance in Muslim law from the viewpoint of the persons
who are eligible for maintenance. Such persons are:

1.Wife

1. Children- Both boy and girl

2. Parents and Grandparents and

3. Any other relatives

Maintenance for Wife

Under Muslim law in India, maintenance is known as ‘Nafqah’. ‘Nafqah’ is the amount that a
man spends on his family. The right to maintenance of a Muslim woman is absolute and not
conditional on whether she can maintain herself or not.
Hence all the Muslim women earning or not earning are eligible for the right to maintenance
which is contrary to most of the other religious acts where only dependent women are
eligible for the maintenance.

It is the duty and liability of the husband to provide adequate maintenance to his wife in all
the circumstances irrespective of his financial condition. However, a Muslim woman cannot

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 claim maintenance from her husband in the following cases:

She has not attained puberty.

She has abandoned her husband and marital duties with sufficient reason.

Where she elopes with some other man.

In a case where she disobeys the reasonable commands of her husband

Quantum of Maintenance

The quantum of maintenance is not prescribed under any personal law. The court decides the
quantum on the basis of the financial condition of husband and wife and any other
circumstances relevant to the case.

The Shia Law decides the quantum of maintenance by taking into consideration the
requirements of the wife. The Shafei Law determines the quantum of maintenance by the
post of the husband. Thus, the basis of determination of quantum of maintenance is different
for different sub-castes of Muslims.

Maintenance under Anti- Nuptial Agreements

A Muslim marriage is construed as a contract, an agreement that is made between the parties
to the marriage (nikah) which prescribes the rights & duties of both husband and wife. In this
agreement, the wife can stipulate some conditions for husband and in case of breach of such
conditions; she has a right to live separately and is also eligible to receive maintenance.
The quantum of the maintenance and the terms are to be agreed and settled at the time of
marriage itself. The wife can stipulate the contract of the marriage in case the husband ill-
treats her/ or takes a second wife or keeps a concubine.

In such a case, she has the right to live separately from her husband and she is also eligible to
claim maintenance against the husband. However, it has to be noted that the husband’s
liability is limited only till the iddat period and the wife can claim maintenance only during
the period of iddat and not beyond that.

Maintenance to Muslim Divorced Woman until Her Remarriage

In terms of Section (3) (a) of the Muslim Women (Protection of Rights on Divorce) Act,
1986, a Muslim husband is liable to make reasonable and fair provision for the future of the
divorced wife.
This includes her maintenance as well. Accordingly, the husband has to make a fair and
reasonable provision for the maintenance of the wife beyond the iddat period as per the terms
of Section 3 (1) (a) of the Act.

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 A divorced Muslim woman who has not remarried and who is not able to maintain herself
after iddat period can claim maintenance under Section 4 of this act from her relatives who
are entitled to her property after her death. This has provided additional rights to Muslim
women.

Maintenance of the Children

Muslim Father is under the obligation to maintain his legitimate child until he attains the
puberty age. Under Muslim Law, the father has to maintain his son only until he attains
majority.

While he has to maintain his daughter until her marriage and till the time she goes to her
husband’s home. Under the law, the father is not under a duty to maintain the illegitimate
child.
Thus after perusing the above-mentioned facts, it can be easily concluded that the
maintenance provisions of Muslim Law are different from other personal laws and are very
unique.

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