Maintenance

• Wife: The words “Hindu wife” used in Section 18 includes only lawful wife
or legally wedded wife if it does not include wife married during subsistence
of first marriage.
• It is often referred to as “alimony” or a kind of monetary support from the
spouse i.e. spousal assistance. Maintenance on the other hand, is an act of
bearing the financial expenses or reducing the burden of the spouse whose
burden increases and if the husband is wealthy and leading an opulent life, his
wife also has the right to be the partner in his prosperity and live with the same
standards and equal dignity.
• The status of the parents of the wife is a totally irrelevant consideration. After
the marriage, it is the status of the husband which is determinative of the
quantum of Maintenance to be given to the wife.

Further, the main purpose of granting maintenance is to maintain the standard of

living of the spouse equivalent to that of the other spouse and in accordance with
status prior to the separation. It is granted during the proceeding of decree or after
the decree of divorce and ceases to exist on the death or remarriage of the alimony
holder.

Types Maintenance
Three types of Maintenance available to husband and wife:

1. Sec 24:- Maintenance “pendente lite” and expenses of proceedings.

2. Sec 25 (HMA): Maintenance at the end of proceeding. Both husband and wife
can claim Permanent alimony and maintenance.—
3. Maintenance under Hindu adoption and maintenance act: sec 18, 19
and 20. Only wife.
4. Maintenance under sec 125 of the criminal procedure code:

• First 3 types are only Hindus and 4th type if for all religions.

Maintenance of Hindu wife and Husband:

1. Sec 24:- Maintenance “pendente lite” and expenses of proceedings.

Sec 24 (HMA) both husband and wife a claim during the pendency of
proceeding:
Object:

• The object of Sec 24 is to ensure that a party to a proceeding does not suffer
during the pendency of the proceeding by reason of his or her poverty.
• The party standing in need of such relief may be either party.

• To enable financially weak party to cover cost of litigation and enable

him/her to maintenance during such pendency.

• During pendency of proceeding

• Court finds that either husband or wife had no independent income.
• Court will order respondent to pay petitioner
a. Expenses of proceeding and
b. Monthly maintenance.
• No independent application can be filed under sec 24 unless there is
a proceeding pending. (Ex; case is pending in sec 9, 10, and 13 of
HMA).

Chitra lekaha v Ranjit Rai:

• It has been laid down that the object behind sec 24 is to provide
financial assistance to the indigent spouse to maintain herself during
the pendency of the proceedings and
• To have sufficient funds to defend or carry on the litigation so that the
spouse does not unduly suffer in the conduct of the case for want of
funds.

Sec 24 also deals with Maintenance of children also.

Quantum of Maintenance:

• No hard and fast rule regarding the quantum of interim maintenance.

• In the absence of special circumstances, courts should generally allow
maintenance pendente lite at 1/4th of the net income of the respondent after
deduction on account of the income-tax and provident fund.
• Under Indian Divorce Act: the maximum alimony pendente lite has been
fixed at 1/4th of the net income of the respondent.
• Hindu Marriage Act: no such limit has been fixed.
• First, the court comes to conclusion that the applicant is entitled to
maintenance and expenses, and then it has to consider their quantum.
 • Maintenance amount must be sufficient enough to enable the applicant to
contest.

Discretion of the Court:

• Wide discretion is given to courts.

• Discretion should not be exercised arbitrarily.
• It should be within the purview of the section.
• Discretion should be by the sound principles of matrimonial law.

Hema v Lakshmna

• Kerala HC held that it must take into consideration income of the spouses
• The legitimate needs of the claimant having regard to the status of the parties,
family background, the standard of life to which claimant has been
accustomed to
• Legal obligations of the person liable to make the payment other relevant
circumstances.

Case Law Krishna V/s Padma (1968)

the basis of claim of maintenance is that claimant has no sufficient means to
maintain herself. When a wife is qualified but has no employment or other
income, the court may allow her maintenance.

2. Sec 25 (HMA): Maintenance at the end of proceeding. Both husband and

Permanent alimony and maintenance.—

(1) Any court exercising jurisdiction under this Act may, at the time of passing any
decree or at any time subsequent thereto, on application made to it for the purpose
by either the wife or the husband, as the case may be, order that the respondent
shall pay to the applicant for her or his maintenance and support such gross sum or
such monthly or periodical sum for a term not exceeding the life of the applicant as,
having regard to the respondent's own income and other property, if any, the income
and other property of the applicant, the conduct of the parties and other
circumstances of the case], it may seem to the court to be just, and any such payment
may be secured, if necessary, by a charge on the immovable property of the
respondent.
 (2) If the court is satisfied that there is a change in the circumstances of either party
at any time after it has made an order under sub-section (1), it may at the instance of
either party, vary, modify or rescind any such order in such manner as the court may
deem just.

(3) If the court is satisfied that the party in whose favour an order has been made
under this section has re-married or, if such party is the wife, that she has not
remained chaste, or, if such party is the husband, that he has had sexual intercourse
with any woman outside wedlock, 57 [it may at the instance of the other party vary,
modify or rescind any such order in such manner as the court may deem just].

Time when application can be made under sec 25 of HMA:

a. At the time of passing decree and

b. At any time after passing decree.

Mode of payment:

a. Gross sum
b. Monthly sum
c. Periodical sum

Outer limit of payment of maintenance: life of the applicant. Till the death.

Consideration to be kept in mind:

1. Respondent’s income and property.

2. Applicant’s income and property.
3. Conduct of parties.
4. Other circumstances of the case.

This clause states that the court may change or cancel or modification and
rescission of the order for granting maintenance on three conditions: sec 25(2).
• Change in circumstances of the parties sec 25(3): three grounds.
1. If the wife has not remained chaste,
2. If the husband has had sexual intercourse with another woman,
3. If either party has re-married.
Distinction between alimony and maintenance pendente lite.
The term alimony comes from = Latin word means ali monia (nourishment,
sustenance) the word ‘alimony’ means an allowance for support made under order
of a court to a divorced person by former spouse.
It may also be awarded by order of a court as an allowance by one spouse to another
when they are separated but are not divorced.
Permanent Maintenance and Alimony:
On the application of either spouse the court may pass an order for permanent
alimony and maintenance

S.no Basis Alimony Maintenance

It is an amount payable by the
The term alimony, which is
husband to his wife who is unable to
derived from the Latin
1 Meaning maintain herself either during the
term alimonia, means
subsistence of marriage or upon
sustenance.
separation or divorce.
How to be
2 It is one-time payment It is paid on monthly basis
Paid
When it is It is given only after the Divorce is not essential to get
3
given divorce maintenance
Mode of It can be given in lump sum It can be paid in form of cash or kind
4
payment cash or in form of property but not property
Alimony is one-time It has two types interim and
5 Types
payment Having no types permanent
It can be 1/3 or 1/5 of the
Amount It can be 20%- 25% of the monthly
6 gross earning amount of the
given Salary of the spouse
spouse
Decided It is decided by both
7 It is decided by the court of law
by husband and wife

3. Maintenance under Hindu adoption and maintenance act

1956:
1. Maintenance to wife Sec 18
 2. Maintenance of widowed daughter-in-law Section 19.
3. Section 20: Maintenance of children (Illegitimate and legitimate,
daughter and illegitimate daughter) and aged parents.
4. maintenance of dependants:

A. Section 18 (Hindu Adoption and Maintenance Act).

Maintenance during subsistence of marriage. Only wife can claim

maintenance.

What is Maintenance?

“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

• Maintenance claimed by wife only.

• During subsistence of marriage.
• As per sec 18 wife is entitled to live separately and claim maintenance.

Types of Maintenance: - biased on Liability:

1. Personal Liability/or Absolute Liability.
The Dharmashastra lays personal liability on every Hindu to provide maintenance
to certain relations. The nature, of such liability is strictly based on their mutual
relations. Under the old textual law {the following relations were entitled to claim
maintenance—

(1) Wife,

(2) Minor children,

(3) Unmarried daughters,

(4) Aged parents

The persons who were liable to maintain them were as follows:—

(1) The husband was bound to maintain his wife

(2) The father was bond to maintain his minor sons and unmarried daughters.

(3) The sons were bound to maintain their old parents.

No liability: 1. Adult sons, 2. Grand-children. 3. His sister. 4. His sister-in-law.

Under the Hindu Adoption and Maintenance Act, 1956 by way of innovations over
the old law, the illegitimate daughters are also entitled to maintenance from their
father and widowed daughter-in-law can claim maintenance from her father-in-law.

2. Limited Liability:
The concept of limited liability in relation to certain relations can be studied under
the following sub-titles:

(1) Manager’s or Karta’s liability in a joint family.

(2) Heirs liability with respect to property inherited by him.

(3) Government liability.

(1) Karla’s Liability:

According to Mitakshara the Karta of a joint Hindu family is legally bound to
provide for maintenance to all male members, their wives and children. On the death
of any male member, he is liable to maintain his widow and his minor children. This
liability depends upon the fact that the entire joint family property is under the
control of karta.

(2) Heir’s Liability:

The liability arising out of succession binds the heir to provide maintenance to those
dependents of the deceased, whom he was morally and legally bound to maintain
during his lifetime. The reason was simple as such dependents of the deceased had
a right to be maintained out of his property, for example, there was no personal
liability on any Hindu to maintain his sister, but if he inherits property from his
father, he would be bound to maintain her as the father was bound to maintain her
during his lifetime, provided she was unmarried. Similarly, on the same analogy on
inheriting the property a person was bound to maintain his step-mother and mother-
in-law.

There are certain relations such as daughter-in-law and sister-in-law who are morally
entitled to get maintained.

(3) Government Liability:

The third category of liability lies on the government if it has acquired the property.

If husband is guilty of any

1. Desertion by husband sec 18(2) (a):

a. That the husband has abandoned her.
b. That he has done so (a) without any reasonable cause, (b) without her
consent. Or (c) against her wish.
c. That he is guilty of willfully neglecting her.
2. Cruelty 18(2) (b):
a. That the husband has treated her with cruelty
b. That the cruelty was such as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with the husband.

3. Husband suffering from virulent form of leprosy. (Amended)

4. Husband having another wife living sec 18 (2) (d); Bigamy
5. Husband Keeps a Concubine. Sec 18 (2) (e);
a. That her husband keeps a concubine. And
b. That the concubine lives in the same house in which the married wife lives;
or that the husband habitually resides with the concubine elsewhere.
6. Ceased to be Hindu by conversion sec 18 (2) (f);
7. Any other causes. sec 18 (2) (g);

Wife when not entitled to separate residence and maintenance: - sec 18(3).

1. When she ceases to be Hindu by conversion.

2. When she is unchaste.
3. When she is living separate without any justifying the same. 18(2)
 4. When the separate living is by Agreement between the husband and wife and
wife forfeits her claim for maintenance under such agreement.

The spousal maintenance is determined on the existence of various factors by

the court as follows:

1. No separate source of income. The most important factor to be considered

before granting maintenance or alimony is to check whether the spouse
seeking maintenance has any separate source of income or not or is solely
dependent on the income of his/her spouse.
2. Standard of living of both the litigating parties before separation.
3. Expenses required maintaining children.
4. Requirement to maintain the same standard of living of the spouse as it was
before the separation.
5. Skills, capabilities and educational background of the spouse to earn his/her
living and maintain themselves etc.

B. Section 19. Maintenance of widowed daughter-in-law

(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 and to the extent that 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.

Right when cannot be claimed:

 1. She is able to maintain herself out of her own earnings or other property;
2. She is able to obtain maintenance from the estate of her husband.
3. She is able to obtain maintenance from the estate of her father.
4. She is able to obtain maintenance from the estate of her mother; or
5. She is able to obtain maintenance from son; or
6. She is able to obtain maintenance from her daughter; or
7. She is able to obtain maintenance from the estate of her daughter; or
8. If the father in law has no coparcenary property in his possession out of
which she has not obtained a share; or
9. If she has remarried: or
10. If she ceased to be Hindu by conversion to some other religion.
C. Section 20: Maintenance of children (Illegitimate and legitimate,
daughter and illegitimate daughter) and aged parents.—

(1) Legitimate and Illegitimate son: - Subject to the provisions of this

section a Hindu is bound, during his or her lifetime, to maintain his or her
legitimate or illegitimate children and his or her aged or infirm parents.
(2) Daughter and Illegitimate Daughter: - A legitimate or illegitimate
child may claim maintenance from his or her father or mother so long as the
child is a minor.

Chandra Kishore V Nanak Chana: - Delhi High Court held that ,

1. Obligation of father includes obligation to maintain unmarried

daughter.
2. Day to day expenses.
3. Reasonable expenses relating to marriage.

(3) Aged and infirm parents: The obligation of a person to maintain his or
her aged or infirm parent or a daughter who is unmarried extends in 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.
Explanation.—In this section “parent” includes a childless step-mother.

Pikhuruaveg V Piker Chinnah:-

Andhra Pradesh High Court held that:

 1. Responsibility to maintain ones real mother or adoptive mother arises from
the relationship itself and is not dependent upon te fact of getting ancestral
property.
2. Both son and daughter and adoptive.
3. The words “unable to maintain himself or herself” are not confined to physical
inability but include pecuniary inability.
4. Inability to earn a complete livelihood as an adult.
5. Person must be Hindu.

D. maintenance of dependants sec 21:

Maintenance of dependants: Section 21of the Hindu Adoption and Maintenance

Act deals with the rights of the dependants of the deceased to claim maintenance
from the heir of the deceased.

Section 21 defined dependants: For the purposes of this chapter “dependants” means
the following relatives of the deceased.

(i) his or her father.

(ii) his or her mother,
(iii) his widow, so long as she does not re-marry.

(iv) his or her son or the grandson or great grandson, so long as he is in minor,
provided and to the extent that he is unable to obtain maintenance, in the case of a
grandson from his father’s or mother’s estate, and in the case of a great grand-son,
from the estate of his father or mother or father’s father or father’s mother.

(v) His or her unmarried daughter or the unmarried granddaughter or the unmarried
great granddaughter, so long as she remains unmarried, provided and to the extent
that she is unable to obtain maintenance, in the case of a grand-daughter from her
father’s or mother’s estate and the case of a great-grand-daughter from the estate of
her father or mother or father’s father or father’s mother.

(vi) his widowed daughter, provided and to the extent that she is unable to obtain
maintenance –
(a) from the estate of her husband, or
(b) from her son or daughter if any, or his or her estate, or
(c) from her father-in-law or his father or the estate of either of them.

(vii) any widow of his son or grandson, so long as she does not remarry provided
and to the extent that she is unable to obtain maintenance from her husband’s estate,
or from her son or daughter, if any, or his or her estate, or in the case of a grandson’s
widow, also from her father-in-law’s estate.
(viii) His or her minor illegitimate son, so long as he remains a minor.
(ix) His or her illegitimate daughter, so long as she remains unmarried.

Sec 23: Amount of maintenance.—

(1) It shall be in the discretion of the Court to determine whether any, and if so what,
maintenance shall be awarded under the provisions of this Act, and in doing so, the
Court shall have due regard to the considerations set out in sub-section (2), or sub-
section (3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife,

children or aged or infirm parents under this Act, regard shall be had to—

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether the claimant is justified in

doing so;

(d) the value of the claimant’s property and any income derived from such
property, or from the claimant’s own earnings or from any other source;

(e) the number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenance, if any, to be awarded to a

dependant under this Act, regard shall be had to—

(a) the net value of the estate of the deceased after providing for the payment
of his debts;
(b) the provision, if any, made under a will of the deceased in respect of the
dependant;
(c) the degree of relationship between the two;
 (d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from
such property, or from his or her earnings or from any other source;
(g) the number of dependants entitled to maintenance under this Act.

Maintenance under sec 125 of the criminal procedure code: