GENDER BIAS IN MAINTENANCE LAWS OF INDIA

ABSTRACT
In India, the maintenance law establishes a man's obligation to support his wife, parents, and
children if they are unable to support themselves. The sum given to a dependent spouse,
child, or parent to support them is known as maintenance in legal terminology. In India, there
are numerous maintenance laws based on different religions. The majority of India's current
maintenance laws are gender discriminatory as a result of century-old traditions and
regulations. The maintenance rules are thoroughly examined in this research study from the
standpoint of gender. The research project analyses the need for gender neutrality in the
maintenance laws and then emphasises the need for gender-neutral maintenance laws. It also
compares the current religious personal laws. It aims to look at the position of gender bias in
the existing maintenance laws, the legislative intent behind it, and the cause of such a bias.

Keywords: Personal laws, gender neutrality, bias, maintenance law, and legislative intent.

INTRODUCTION
The idea of maintenance simply refers to a man's obligation to give his wife, daughter, son, or
parents money when they are unable to support themselves. There are numerous laws about
upkeep, including both secular and religious legislation. The majority of India's current
maintenance laws are gender biassed towards women, as they fail to acknowledge and respect
a husband's rights. In the developed world of today, when women are employed on an equal
basis with men in every sector of the economy, and where numerous laws and regulations
have been established to safeguard women's rights, as well as numerous judicial
advancements. However, the maintenance rules in India were still somewhat orthodox in that
they denied males the same rights to seek maintenance, while also discriminating against
women by tacitly implying that they were weaker than men. Therefore, we need
gender-neutral and gender-equal rules in all laws and legislation, not just maintenance laws,
in this modern period where women are even permitted to work in the army and other
defence tasks. This project is divided into two sections: the first part aims to provide an
overview of the various laws about maintenance laws, and the second part analyses the
husband's status under the laws, gender bias in the laws, and the necessity or importance of
taking a gender-neutral approach to the laws. The creation and application of maintenance
legislation that is gender neutral are the key foci of this research project.

REVIEW OF LITERATURE
1. “Family Law” by Dr.Paras Diwan – This book provides a detailed explanation of family
law's several ideas within the framework of India's many religions. It facilitates our analysis
of the subject in light of numerous statutes and acts that fall under one general heading. It
sheds light on our subject, which is upkeep through both certain standard rules and all
personal religious laws.

2. “Hindu Law” by Dinshah Fardunji Mulla – This book provides a detailed explanation of
each component of the Hindu Marriage Act, which aids in our understanding of how the
concept of maintenance fits into Hindu personal law. For a clearer interpretation and
comprehension of the ideas, it has also provided an explanation of the provisions together
with pertinent case laws.

3. “Gender Neutral Maintenance Needed: Revisiting Section 125 of Cr.P.C by Nitish Dubey
and Arjit Mishra – This article discusses and emphasises the creation of gender-neutral
maintenance legislation. It also analyses in detail section 125 of the Criminal Procedure
Code, which deals with the order of maintenance, from both a gender bias and a
constitutional standpoint. The position of husbands is also explained in depth in Section 125
of the 1973 Code of Criminal Procedure.

4. “ Women and Law: A Gender Perspective” by Mahua Bhattacharjee – This article

provides a detailed discussion of women's legal positions from a feminist standpoint. This
article gives us a broad understanding by analysing numerous laws from a gender viewpoint.
It also helps us understand one perspective on maintenance laws, which is that they are the
product of patriarchy and indirectly state that a woman cannot support a man.

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WHAT IS MAINTENANCE?
To put it simply, maintenance is the act of keeping something in proper working order. In
legal parlance, maintenance refers to a man's obligation to support his wife, father, kids, and
other dependents, or with a sum of money that he wishes to contribute on a regular basis to
support his spouse and any other dependents. The definition of maintenance is given as an
‘Act of maintaining, keeping up, supporting the livelihood and the means of sustenance’1 In
Mangat Mal v. Punni Devi2, the Rajasthan High Court defined maintenance as “Maintenance
necessarily must encompass a provision for residence. Maintenance is provided so that the
woman can live her life as she was accustomed to, essentially. Therefore, in addition to
accounting for the fundamental need of a roof over one's head, the concept of maintenance
must also encompass provisions for food, clothing, and other necessities.” No religious
organisation's marriage laws specify what maintenance is. Conversely, maintenance is
predicated on the idea that the claimant is incapable of providing for herself financially.

Generally speaking, maintenance pays for necessities or requirements for the material
components of life. But the claimant's right to survive is not the sole one. This is evident from
an analysis of many religious and secular maintenance laws in our nation.When deciding how
much maintenance to award, the husband's employment status, the couple's property
ownership, their conduct, and other factors will all be taken into consideration by the court.
When determining the amount of maintenance, the parties' circumstances and their lifestyle
during the marriage must also be taken into account. The provisions of the Maintenance Act
are intended to fulfil societal needs, but the fundamental goal of all current maintenance laws
is to force a husband to uphold his moral obligations to his parents, spouse, and kids.

A few prerequisites must be met in order to qualify for maintenance:

(1) the claimant must demonstrate that they are in a marital relationship with the recipient of
the claim;
(2) the claimant must be unable to support themselves;
(3) the husband must have enough assets or income to support the wife; and
(4) the claimant must demonstrate that the husband has neglected or refused to fulfil his duty
to provide for her.

1
Black's Law dictionary
2
AIR 1996 SC 172

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There are other exclusions as well. For example, a divorced wife may be eligible for
maintenance if she does not remarry, regardless of whether the divorce was finalised through
mutual consent or by another method.

MAINTENANCE UNDER VARIOUS LAWS

● Maintenance under Hindu law
Hindu Marriage Act, 1955 (sections 24 and 25) and Hindu Adoptions and Maintenance Act,
1956 are the two separate acts under which maintenance claims may be made. Either spouse
in a married relationship may file for maintenance under section 24 of the Hindu Marriage
Act, 1955, which is gender neutral. The Hindu Marriage Act of 1955 allows either the
husband or the wife to request interim maintenance under section 24 on the grounds that the
claimant does not have enough income to sustain themselves or their livelihoods.4. If there
are good reasons, the courts may decide to make an order compelling one spouse to give the
other interim support. To apply this discretion, the court considers the income of the spouse
who has requested interim support as well as the income of the spouse who must pay the
expenditures associated with it. The honourable high court of Kerala decided in the case of
Nivya V.M vs Shivaprasad N.K3that maintenance may be given to the husband if he is unable
to support himself and the wife is competent to do so. We can deduce that the Maintenance
under the Hindu Marriage Act of 1955 is gender neutral based on this case law. "Provision for
food, clothing, shelter, education, and medical attendance and treatment" is the definition of
maintenance given by the Hindu Adoptions and Maintenance Act, 1956.The costs of the
marriage are also involved for the daughter who is single. It talks about supporting the man's
other dependents, such as his mother and father, as well as his wife, daughter, son, widowed
daughter, and widowed daughter-in-law. This statute does not acknowledge the husband's
right to maintenance claims.

● Maintenance under Muslim personal law

"Nafkah" is the term for maintenance in Muslim law. According to the personal laws, it is the
amount that the spouse spends on the family. In contrast to Hindu regulations, a Muslim
woman has an unrestricted and complete right to request maintenance. Thus, in this case, the
wife's ability to support herself, her income, or her possessions are not taken into account
3
OP (FC).No. 26 of 2015 (R)

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while determining whether to award maintenance. However, there are some situations in
which a wife is not eligible to get maintenance, such as
1. not having reached puberty,
2. abandoning her husband for no apparent reason or failing to fulfil her marital
obligations,
3. eloping with another man, and
4. failing to follow instructions. The necessities of the wife are taken into consideration
while calculating the required amount of maintenance under Shia law. The husband's
standing determines the support amount under the Shafei Law. Maintenance may be
claimed by the divorced wife up until her second marriage. Thus, it is clear from the
preceding sentence that the right of the husband to request maintenance was not
recognized by Muslim personal law. Thus, the legislation is skewed against women.

● Maintenance under Christian law

The laws pertaining to Christian maintenance are governed by the Indian Divorce Act of
1869. It stipulates that a woman may receive support, but that it cannot exceed one-fifth of
her husband's income and that she must remain single and unmarried. In a criminal or civil
court, a Christian woman may file a spousal support lawsuit against her husband. Interested
parties may pursue concurrent criminal and civil proceedings without any legal limitations.
Section 24 of the Hindu Marriage Act, 1955 is remarkably similar to Section 36 of the Indian
Divorce Act, 1869 (IDA). However, only a wife may file for maintenance pendente lite and
interim maintenance under Section 36 of the Indian Divorce Act; a husband is not permitted
to do so. It also contains regulations regarding a widow's claim for maintenance. Because
only women are eligible to receive maintenance under Christian law, the notion of
maintenance is therefore skewed against women.

● Maintenance under the Parsi law

The Parsi Marriage and Divorce Act, 1936 is the law that governs Parsi marriage, divorce,
maintenance, and other marital matters. Similar to The Indian Divorce Act, 1869, this act
permits women to request maintenance, but the amount awarded cannot exceed one-fifth of
the husband's income, and the woman must wish to remain single and unmarried. When
calculating the appropriate amount of permanent maintenance, the court will consider the
husband's financial capacity, the wife's personal assets, and the actions of both parties. The
Parsi Marriage and Divorce Act of 1936 has a maintenance provision that is comparable to

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section 24 of the Hindu Marriage Act of 1955 in that both laws are gender neutral in the sense
that any spouse may request and receive support, just like the Hindu Marriage Act of 1955.
This suggests that the act is gender neutral since it accords equal treatment to men and
women.

● Maintenance under Criminal Procedure Code1973

The term "maintenance" is not defined in Section 125 of the Code of Criminal Procedure,
1973; instead, it refers to the order for maintenance of the wife, children, and parents, as well
as the children's provision of maintenance to their parents11. This clause lays out exactly who
is eligible to receive maintenance and under what circumstances. The court may order the
respondent, the husband, to provide periodic maintenance to the petitioner, the woman who is
unable to support herself, following the party's invocation of Section 125 of the Code. The
right of the husband to maintenance claims has likewise not been recognized by this
regulation of criminal procedure. However, we cannot declare this clause to be completely
gender biassed because it allows both the son and the daughter to support their parents under
specific conditions. On the other hand, we may claim that it is somewhat gender neutral
because it only allows for the right to maintain a spouse.

GENDER BIAS IN MAINTENANCE LAW

The application of various family laws to various cultural and religious groups in India
acknowledges ethnic diversity. Multicultural institutions often restrict cultural exchange,
violate individual rights, grant citizens unequal rights, and prevent policy reform. The sole
purpose of the maintenance laws was to force men to shoulder a significant portion of the
financial burden of providing for their dependents. We need gender equality and neutrality in
all laws pertaining to maintenance because, after many struggles and misconceptions, women
were freeing themselves from the bonds of patriarchy and establishing themselves as equal
members of society. As a result, women should also be held accountable for providing
maintenance to their men in situations where the men are unable to support themselves.
These gender-biassed maintenance regulations, which subtly suggested that women couldn't
support their families and themselves, underestimated a woman's potential.The patriarchal
paradigm that led to the creation of these rules, which portray women as the weaker gender,
is the source of the bias in maintenance laws.

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All other laws, such as Section 125 of the Criminal Procedure Code, 1973, the Hindu
Marriage and Adoption Act, 1956, and other religious personal laws, are gender-biassed and
require men to provide for or maintain their wives and children, even though the Hindu
Marriage Act, 1955 seems to be a gender-neutral statute. There is lawful gender
discrimination under Section 125 of the Code of Criminal Procedure, 1973, without any
practical distinction, especially with reference to the assumption that a husband, father, or son
who is in good health and energetic must be able to provide for his dependents. The Supreme
Court has shown some leadership in enacting laws that are gender equal and neutral through
its Judicial Activism. Therefore, it holds that gender justice needs to be administered to men
and women equally, without exception or bias. Laws should treat men and women equally
since it's not always the case that males are the guilty parties and women are the victims—it
can also work the other way around. This argument merely presents one of the viewpoints to
be taken into account when choosing to adopt a gender-neutral law; it does not accuse or
diminish the qualities of any gender. Provision 125 of the Carps is largely based on a moral
obligation that an individual with substantial income owes to his or her dependents, even
though it has done a wonderful job implementing maintenance orders. Section 125 is
gender-neutral with regard to parents' maintenance but gender-biassed with regard to spouses'
maintenance.

The rules governing maintenance and alimony are not only convoluted and ineffective but
also violate the fundamental values of equality, reason, and justice—all of which have been
upheld by the government even after 75 years of independence and over 70 years of India's
transition into a socialist secular democratic republic.

STATUS OF HUSBAND IN MAINTENANCE LAWS

According to Article 39 of the Indian Constitution, "which comes within the scope of the
extensive directive principles of State Policy," the government is empowered to enact laws
that guarantee all citizens, regardless of gender, have access to a sufficient means of
subsistence. It further declares that children and teenagers must be shielded from both moral
and material exploitation and must be given the resources and chances to grow up in a
healthy and respectable manner. The concept of this article is contained in and followed by

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Sections 24 and 25 of the Hindu Marriage Act, 1955. These are the two essential provisions
to take into account while evaluating the husband's maintenance... Because these criteria are
gender-neutral, they can be applied in maintenance cases in which the innocent spouse is the
one receiving support. If one spouse is able to provide maintenance while the other is unable
to support themselves, any spouse may file a maintenance application under Section 24
(maintenance pendente lite) of the Hindu Marriage Act, 1955. This is not to argue that a
spouse who can support himself should quit his work and live off of his wife's earnings.
Numerous instances exist where the wife's financial situation or her own misconduct have
resulted in the court's ruling in favour of the husband and rejecting her request for
maintenance. In one of the earliest instances involving the husband's maintenance rights,
Lalit Mohan v. Tripta Devi4 the woman petitioned for divorce in a trial court, citing cruelty
and desertion as reasons. Due to an accident, the husband in this instance suffered critical
injuries. He filed a maintenance suit in high court, and the Jammu and Kashmir High Court
decided that he might receive maintenance from his wife for the rest of his life or until he
remarries.

Women are clearly viewed as the weaker elements of society in the current Indian legal
system, and legislation should be passed to protect their rights. The reason for this is the
preservation of the democratic ideal of "equal protection of the laws." Nevertheless, under the
pretext of the aforementioned idea, husbands have in fact received unfair treatment in many
matrimonial cases. Only the Hindu Marriage Act of 1955, a religious statue, permits a
husband to seek maintenance; other statutes, such as the Special Marriage Act of 1954, which
are secular in nature, did not acknowledge the husband's entitlement to maintenance in the
event that he is unable to support himself.Therefore, we aim to implement a contemporary
approach to maintenance legislation and uphold the constitutionally guaranteed right of man.

NEED FOR GENDER NEUTRALITY IN MAINTENANCE LAWS

The main goal of the gender-neutral movement is to do away with gender-based legal
disparities. It argues that no rule meant to protect social fairness should be limited to a
particular sexual orientation or gender identity. No prior legal precedent has ever addressed
whether section 125 of the Cr.P.C. 1973 is constitutional. Nonetheless, section 488 of the

4
AIR 1990 J K 7

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Cr.P.C. 1898, which has the same objectives and provisions as section 125 of the law, has
faced constitutional issues.In the case where section 488's constitutionality was contested, the
court upheld the law's validity on the grounds that it falls under Article 15(3), which gives
national and local governments the authority to enact laws that give women and children
special protection14. While all of the aforementioned maintenance regulations were
acceptable when they were passed, the current state of the populace is not reflected in them.
Since many laws and legal precedents have been adopted to help reduce gender disparities, it
would be incorrect to characterise women as a weaker section of society today. Women still
face problems and obstacles in society as a result of society, but this argument argues that
women's status in society has changed since these laws were enacted. For instance, we have
eliminated numerous societal ills and injustices against women in society, such as triple talaq,
the Sati, and women's property rights, among others. Thus, it is now possible to argue that the
court rulings in Thamsi Goundan v. Kanni Ammal5 and other instances, which supported the
constitutional validity of Section 125 of the Code of Criminal Procedure and limited spouses'
ability to request maintenance, were unfair and discriminatory.

Everyone's right to equality is guaranteed by Article 14 of the Indian Constitution. Ensuring

equal access to justice and bringing attention to inequality—which is inherently unfair and
goes against the idea of equal protection under the law—are two goals of this right. This
article also seeks to restrict the state's capacity to enact laws that are blatantly capricious for
the citizens of the nation. Any bill or part of legislation found to go against the objectives of
Article 14 will be declared unconstitutional during the judicial review process. Article 14 of
the Indian Constitution is violated by Section 125 of the Cr.P.C. 1973 and other religious
laws, which exclusively allow women to request maintenance from their husbands, making
them discriminatory. This section implies that only women may find themselves in a situation
where maintenance is required, hence it excludes men from the same circumstance by
prohibiting them from claiming it.

5
1951 AIR 1952 Mad 529, (1952) 1 MLJ 68.

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CONCLUSION
This research project examined the nature and gender perspective of the maintenance laws
that are currently in place in India. It also examined the status of husbands in relation to
maintenance claims and the necessity of a gender neutral and gender equal approach to the
laws governing the concept of maintenance. These days, women are abusing most laws
intended to protect and safeguard them for a number of reasons, such as bothering their
husbands or taking vengeance on their spouses and families. Furthermore, by limiting women
to the role of the weaker sex, these maintenance regulations were subtly oppressing the
standing of women in modern society. It reinforces the assumption that a guy can survive and
sustain himself under any circumstance, but women cannot. Therefore, we wish to support
gender equality and gender neutrality in the rules pertaining to maintenance and alimony in
order to dispel such misconceptions. It is argued that the purpose of making the maintenance
provision gender-neutral is to expand the scope of women's right to maintenance, as provided
by various provisions of several maintenance laws in India, rather than to curtail that right.
According to this research endeavour, there doesn't seem to be any justification for restricting
men's ability to request maintenance, and denying them this right violates a number of
fundamental human rights and constitutional protections for males.

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 REFERENCES

STATUES
1. The Hindu Marriage Act, 1955 (Act No. 25 of 1955).
2. The Hindu Adoptions and Maintenance Act, 1956 (Act No. 78 of 1956). 3. The Divorce
Act, 1869 (Act No. 4 of 1869).
4. The Muslim women (Protection of Rights on Divorce) Rules, 1986 (Act No. 25 of 1986).
5. The Muslim Personal Law (Shariat) Application Act, 1937 (Act No. 26 of 1937).
6. The Parsi Marriage and Divorce Act, 1936 (Act No. 3 of 1936).
7. The Code of Criminal Procedure, 1973 (Act No. 2 of 1974).
8. The Special Marriage Act, 1954 (Act No. 43 of 1954).

CASES
9. Mangat Mal v. Punni Devi, (1995) 6 SCC 88.
10. Navya V M v. Shivaprasad M K 2017 (2) KLT 803.
11. The Constitution of India, 1950, Art. 39.
12. Lalit Mohan vs Tripta Devi, AIR 1990 J K 7.
13. Thamsi Goundan vs Kanni Ammal on 21 September, 1951 AIR 1952 Mad 529, (1952) 1
MLJ 68.

ARTICLES
1. Kusum. “MAINTENANCE FOR HUSBANDS.” Journal of the Indian Law Institute, vol.
32, no. 3, 1990, pp. 403–04.
2. Henry Campbell black, M. A, Black’s law dictionary (4th ed.rev.6-1971) west publishing
co.
3. Bhattacharjee, Mahua. "WOMEN AND LAW." Proceedings of the Indian History
Congress. Vol. 77. Indian History Congress, 2016.
4. Subramanian, Narendra. "Legal change and gender inequality: Changes in Muslim family
law in India." Law & Social Inquiry 33.3 (2008): 631-672.

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