FAMILY LAW-2

UNIT-7 ALIMONY AND MAINTENANCE

INTRODUCTION
In simple words, maintenance is an amount which is given in the form of financial
assistance to either of the party.
All the provisions of Hindu law shall apply to Hindus including Sikh, Jains and
Buddhists as defined in Section 2 of Hindu Marriage Act, 1955.
According to Section 3 (b)1 , “Maintenance” includes
(i) in all cases, provision for food, clothing, residence, education and medical
attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of an
incident to her marriage.
The basic motive of providing the maintenance is to maintain an equitable standard of
living of the spouse or any other dependent personality as it was before the separation.

TYPES OF MAINTENANCE
1. Interim Maintenance: It is additionally known as maintenance pendente lite that
the court awards while the proceedings for divorce are still going on.
The aim is to provide the claimant the income for support and necessary expenses
of proceedings.
Section 24 of Hindu Marriage Act,1955 deals with such kind of maintenance.
Either of the spouses can claim such maintenance.
2. Permanent Maintenance: It means the granting of maintenance in the form of
either periodical or monthly sums once the proceedings are done with.
It is given in Section 25 of Hindu Marriage Act, 1955. Either of the spouses can
claim such maintenance.

PRIOR STATUS OF RIGHT OF MAINTENANCE

Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 initially
dealt with the provisions of granting maintenance.
The Hindu Marriage Act was formed in the year 1955 and applies specifically on
individuals who are Hindus including Sikh, Jains and Buddhists.
Also children whose either of a parent is a Hindu, Sikh, Jains or Buddhist.
Under old Hindu law, a Hindu male was under an obligation to maintain the following
persons:
  His wife,
 Unmarried daughter,
 Legitimate sons,
 Illegitimate sons, and
 Aged parents.
Thus, only hindus (the applicability of which could be checked from Section 2 of
Hindu Marriage Act, 1955) are covered under this Act.
From the ancient times women have been kept at a disadvantaged position which not
only weakens their stake in the society but also leads to an unequal treatment with
them.
The Code of Criminal procedure came into force in the year 1973 and according to
Section 125 of this code, maintenance is granted to wives, children and parents
irrespective of any religion or personal laws.
Hence, it has provided for a better status to women by granting rights in a dignified
manner.

MAINTENANCE OF WIFE:
Either the wife or the husband may request interim maintenance under Section 24 of
the Hindu Marriage Act of 1955 (hence referred to as the HM Act).
The absence of an independent source of income for self-support is the foundation of
the claim for interim maintenance.
The amount of maintenance is not specified in the clause, and the court will use its
discretion to calculate it.
Grounds for award of maintenance: Only upon proving that at least one of the grounds
mentioned under the Act, exists in the favour of the wife, maintenance is granted.
These grounds are as follows:-
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any
other infectious disease;
d. The husband has any other wife living;

MAINTENANCE OF CHILDREN
According to Section 20 of the HAM Act, both the mother and the father are equally
obligated to support all children, both biological and adopted.
The Hindu legal system is unique in that both parents are equally liable for raising the
children.
According to Section 20(2) of the HAM Act, minor children have a right to
maintenance. Until the daughter gets married, she is still entitled to maintenance.

MAINTENANCE OF PARENTS
In addition, S. 20 of the HAM Act establishes a maintenance responsibility for elderly
and disabled parents who are unable to care for themselves using their own resources,
including property and earnings.
The first law in India to require children to support their parents is known as the
“HAM ACT.”
Daughters are likewise subject to the need to maintain, in addition to sons.
Both the mother and the father are entitled to maintenance claims under the HAM Act.
The explanation to this section also includes stepmother in the term parent.

MAINTENANCE UNDER SECTION 125 CR.P.C

According to this Section magistrate of first class has the power to order the person to
provide monthly allowance to:
 His parents,
 Wife, or
 To his legitimate or illegitimate minor children who are unable to maintain
themselves
 Legitimate or illegitimate major child not being a married daughter, who are
unable to maintain themselves due to any physical injury or abnormality
 Married daughter till she attains her majority if her husband is unable to
maintain her
 His or her father or mother if they are unable to maintain themselves,whoever
neglects or refuses to do so.
Magistrate may issue warrants for levying the amount due, in case of non-compliance
with the order.
Making of an application is mandatory to the court for levying such amount within a
period of one year from the date on which the amount was due, otherwise warrant
cannot be issued.
Where in case a wife is living separately without any sufficient reason or is living in
adultery or they have separated through a mutual consent, then in such cases she is not
entitled to receive allowance.

MUSLIM LAW

INTRODUCTION
Maintenance is known as “Nafqah” which means what a man spends on his family
which includes food clothing and lodging.
The concept of maintenance was introduced to provide support to those people who
are not capable to maintain themselves the principle of maintaining these include
financial support means of livelihood and educational facilities.
In marriage, the husband should maintain the wife and provide her with all necessities.
The whole concept of maintenance is to protect the rights of wife and protect her a
dignified life and even after dissolution of marriage
the husband is in the liability to provide maintenance to his wife if she is not able to
maintain herself.
It is not only provided to the wife but also to children parents grandparents and
grandchildren and other relation by blood.

WHO ARE ENTITLED FOR MAINTENANCE

 The wife
 The children
 The parents and grandparents
 The other relations

MAINTENANCE OF WIFE
Under Muslim law men’s are considered as superior to women and women in all cases
is considered to be dependent on men.
It is the liability of husband under Muslim law to maintain his wife even after divorce.
The husband obligation to provide maintenance to the wife starts by the wife has
attained 15 years of age not before.
His obligation to provide maintenance is even after the dissolution of marriage.
Whether a wife is a Muslim or a non- Muslim, rich or poor, healthy or unhealthy she
is entitled to get maintenance from husband in all circumstances. The wife has
absolute right to get maintenance.

DIVORCED WIFE RIGHT TO MAINTENANCE UNDER MUSLIM LAW AND

SECTION 125 OF CRPC
Under Muslim law the rights of the wife to get maintenance during the marriage is
absolute but after the dissolution of marriage her rights are limited.
She is entitled to maintenance from husband after diverse is only till Iddat period
( Iddat is a period of three menstrual courses aur three lunar months).
Muslim law does not provide maintenance to wife after Iddat period is over.
In Hanafi school of Law a divorced Muslim wife is entitled to maintenance during
Iddat period whereas in Shefai law a divorced muslim wife is not even entitled to
maintenance.

SHAH BANO VS MUHAMMAD AHMAD KHAN.

Facts Shah Bano Begum A 62 year old lady fill a petition under section 125 of CrPC
before Judicial Magistrate of Madhya Pradesh.
The petition stated that her husband has pronounced Talaq to her and she has not even
remarried and thirst she was entitled to maintenance.
For which her husband had stated that he had no liability to provide maintenance to
her as under Muslim law a divorced wife has no right of maintenance after Iddat
period.
Held Supreme Court rejected the appeal and stated that Muslim wife is entitled to
maintenance even after the period of Iddat if she is not able to maintain herself.
This judgement even increased the controversy as a result of which the legislature
have to make a new law to govern Muslim divorce i.e Muslim women (protection of
rights on divorce )Act 1986
This act has enacted some provisions in support of Muslim personal law and has
restricted the application of section 125 of CrPC regarding the maintenance of Muslim
wife.
If the wife is not able to maintain herself after Iddat period then in that case she can
seek maintainance through wakf Board or relatives of her or her husband.
This act has not mention anything clearly and has created various confusions in the
judicial system and was considered as vague.

MAINTENANCE OF CHILDREN
Children are the responsibility of their parents and they should be taken care of.
They are entitled to proper and adequate maintenance from their parents and specially
the father.
As under Muslim law men are considered as superior and are in the obligation to
maintain his family, and maintenance of the child is his primary responsibility.
 According to Wilson the son is entitled to get maintenance from his father until
he gets the age of majority under the Indian majority act.
 According to Mulla and faizi, the son is entitled to get maintenance from his
father untill he get the age of puberty.
 The father is responsible for maintenance of his daughter until she gets
married.
 Widowed or divorcee daughter is also entitled to get maintenance from her
father.
 Father is not bound to maintain his son or unmarried daughter if they refuse to
live with him without any reasonable cause.
 Under Muslim law father is under no obligation to maintain his ill legitimate
child.
 Under section 125 of crpc if the father has sufficient means, he’s under
obligation to maintain his child whether legitimate or not.