Maintenance

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Application for Interim maintenance

Petition by wife 2

Petition by wife

Petition for Maintenance 2

Petition for Maintenance

Petition for permanent alimony and maintenance

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List Of Documents Required







Frequent questions, quickly answered.

The following are the documents relevant for the Court to decide application for maintenance:
  • Income Tax returns
  • Form 16 and Form 12BA
  • Appointment letter
  • Cost to company certificate
  • Salary certificate
  • Bank statement of all the bank accounts
  • Credit/debit card statements
  • Title deeds in respect of immovable property
  • Registration certificate of vehicle
Burden of proving the income:

The monthly income of the husband may not very often be within the knowledge of the wife, particularly in a case where their relationship is considerably strained and the spouses are living separate for a considerable period.

The assets, liabilities, income and expenditure of the parties are necessary to be determined not only to fix the maintenance under Section 24, but also to determine the permanent alimony under Section 25 of the Hindu Marriage Act and right to the joint properties under Section 27 of the Hindu Marriage Act. it is, therefore, necessary to formulate a format of the affidavit of assets, income and expenditure and also specify the documents to be disclosed by them.

The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the Court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings, averments made in the application and the reply.

Now to have a look upon the relevant factors to adjudicate the quantum:

Law under Section 24 of the Hindu Marriage Act is well settled. The following are the factor, which can be taken into account while awarding interim maintenance

  • Status of the parties
  • Reasonable wants of the claimant
  • Number of the persons to be maintained by the husband
  • Liabilities, if any, of the husband

The amount required by the wile to live a similar life style as she enjoined in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife and payment capacity of the husband.

  • Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of the wife, maintenance is granted. These grounds are as follows:
    • The husband has deserted her or has willfully neglected her;
    • he has treated her with cruelty;
    • is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
    • The husband has any other wife living;
    • husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
    • he has ceased to a Hindu by conversion to any other religion;
    • Any other cause justifying her separate living;

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 Hindu Marriage Act, 1955

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.

Interim maintenance

may also be claimed under Section 125 CrPC by the wife during the pendency of proceeding for regarding monthly allowance for maintenance under Section 125(1) CrPC.

Furthermore, Section 36 of Special Marriage Act, 1954 also makes provision for the wife to seek expenses from the husband if it appears to the district court that she does not have independent income sufficient for her support and necessary expenses of proceedings under Chapters V or VI of that Act.

Still further, under Parsi Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to claim expenses where the proceeding is pending under the Act. Section 39 of the Act which is substantially the same as Section 36 of the Special Marriage Act makes a provision in this behalf.

Also, under Section 36 of Divorce Act, 1869 which applies to persons professing Christain religion, a wife is entitled to expenses of proceeding under the Act and maintenance while the suit is pending.

All these provisions specify that the application for interim maintenance has to be disposed of within sixty days of service of notice on the respondent.

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.
Hindu Adoption and Maintenance Act, 1956, Section 18 –
  • Hindu wife is entitled to be maintained by her husband during her lifetime. Wife also has a right to separate residence and maintenance if any of the condition in Section 18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same house, conversion of religion or any other reasonable cause] is fulfilled until she remains chaste or does not convert to other religion. It may also be noted that Section 19 of this Act makes a provision for a widowed wife to be maintained by her father-in-law.
Criminal Procedure Code, 1973, Section 125 –
  • This section provides for maintenance not only to the wife but also to child and parents. Court may order a husband who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself to provide monthly maintenance to her. However, wife shall not be entitled to receive maintenance if she is living in adultery, or refuses to live with husband without any sufficient reasons, or living separately with mutual consent.
Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 –
  • A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be paid to her within the iddat period by her former husband; an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. If husband fails to provide her the above mentioned then Magistrate can order for payment of the same.
Parsi Marriage and Divorce Act, 1936, Section 40 –
  • A Parsi husband or wife may apply to the Court under this section whereupon the Court at the time of passing any decree under the Act or anytime subsequent thereto order that the defendant pay the plaintiff a gross or monthly sum for his/her maintenance and support. Such order may also be modified subsequently if the Court is satisfied that change in circumstances warrants so. The order may also be rescinded or modified if the party in whose favour the order was made remarries; or in case of wife, she does not remain chaste; or in case of the husband, he has sexual intercourse with any woman outside the wedlock.
Special Marriage Act, 1954, Section 37 –
  • This section is also similar to Section 40 of the Parsi Marriage and Divorce Act. The difference being that under this section maintenance may be claimed only by a wife against the husband from a court exercising jurisdiction under Chapters V or VI of the Act. An order made under this section may be modified or rescinded by the district court at the instance of the husband if it is shown that the wife has remarried or is not leading a chaste life.
Divorce Act, 1869, Section 37 –
  • This section empowers the district court to order the husband to secure a reasonable gross sum to the wife or annual sum not exceeding her lifetime when a decree of dissolution or decree or judicial separation is obtained by the wife. While passing such order, the court may have regard to fortune of the wife, ability of the husband and conduct of the parties. The court may also order the husband to pay such monthly or weekly sum to the wife for her maintenance as the court may think reasonable. If subsequently, the husband becomes unable to make such payments, the court may discharge or modify such order.

Yes, a husband can claim maintenance, however, the Courts have time and again remarked that maintenance is to be paid to husband only if he is incapable or handicap. In a recent case of Nivya V.M. v. Shivaprasad N.K., the Kerala High Court dismissed husband’s claim for maintenance from his wife holding that maintenance under Section 24 of Hindu Marriage Act, 1955 is to be paid to the husband only when he is able to prove any incapability or handicap.

The Court also observed that in absence of such circumstances as enumerated above, endowing maintenance on the husband would only promote idleness.

The Court also remarked that a husband seeking maintenance from the wife can be treated only as exceptional case as normally he has got the liability or obligation to maintain the wife and vice versa is only exceptional.

Maintenance is a right to get necessities which are reasonable from another. it has been held in various cases that maintenance includes not only food, clothes and residence, but also the things necessary for the comfort and status in which the person entitled is reasonably expected to live. Right to maintenance is not a transferable right.

The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to livelihood when one is incapable of sustaining oneself. Hindu law, one of the most ancient systems of law, recognises right of any dependent person including wife, children, aged parents and widowed daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance Act, 1956, provides for this right.

Under the “Women (Protection Of- Rights On Divorce) Act, 1986”:

spells out objective of the Act as “the protection of the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands.” The Act makes provision for matters connected therewith or incidental thereto. It is apparent that the Act nowhere stipulates that any of the rights available to the Muslim women at the time of the enactment of the Act, has been abrogated, taken away or abridged. The Act lays down under various sections that distinctively lay out the criterion for women to be granted maintenance. Section (a) of the said Act says that divorced woman is entitled to have a reasonable and fair provision and maintenance from her former husband, and the husband must do so within the period of idda and his obligation is not confined to the period of idda.

it further provides that a woman , if not granted maintenance can approach the Wakf board for grant as under section (b)which states that If she fails to get maintenance from her husband, she can claim it from relatives failing which, from the Waqf Board.

An application of divorced wife under Section 3(2) can be disposed of under the provisions of Sections 125 to 128, Cr. P.c. if the parties so desire. There is no provision in the Act which nullifies orders passed under section 125, Cr. P.c. The Act also does not take away any vested right of the Muslim woman.

All obligations of maintenance however end with her remarriage and no claims for maintenance can be entertained afterwards. The Act thus secures to a divorced Muslim woman sufficient means of livelihood so that she is not thrown on the street without a roof over her head and without any means of sustaining herself.

A Christian woman can claim maintenance from her spouse through criminal proceeding or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings, simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties does not matter at all, unlike in civil proceedings.

If a divorced Christian wife cannot support her in the post divorce period she need not worry as a remedy is in store for her in law.

Under S.37 of the Indian Divorce Act, 1869:

she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which is only applicable to those persons who practice the Christianity religion inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance. The provisions of THE INDIAN DIVORCE ACT, 1869 are produced herein covered under part IX -s.36-s.38.

Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn’t matter at all unlike the civil proceedings.

If the Husband refuses to pay maintenance ,wife can inform the court that the Husband is refusing to pay maintenance even after the order of the court. The court can then sentence the Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so long as he does not pay.

The Parsi Marriage and Divorce Act, 1936:

recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband’s net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife’s own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried.

  • Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff 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 plaintiff as having regard to the defendant?s own income and other property, if any, the income and other property of the plaintiff, 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 movable or immovable property of the defendant.
  • The Court if it is satisfied that there is 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.
  • The Court if it is satisfied that the partly in whose favour, an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, 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.

Estranged Wife or Live-in-Partner can Claim Maintenance u/Domestic Violence Act- Supreme Court

Case name: Lalita Toppo v. State of Jharkhand & anr.

The Three-Judge Bench of the Supreme Court headed by Chief Justice Ranjan Gogoi, in this recent case has categorically held that maintenance can be claimed under the provisions of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) even if the claimant is not a legally wedded wife and therefore not entitled to claim of maintenance under Section 125 of Code of Criminal Procedure.

The Bench explained that the provisions contained in Section 3(a) of the DVC Act, 2005 which defines the term “domestic violence” also constitutes “economic abuse” as domestic violence. The Court further opined that under the provisions of the Domestic Violence Act, the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the CrPC i.e. to a shared household also.

Under Section 125 of the Code of Criminal Procedure, 1973:

Under Section 125 of the Code of Criminal Procedure, 1973, right of maintenance, under the family law in India, extends not only to the wife and dependent children but also to indigent parents and divorced wives. The maintenance claim depends upon the husband’s capability to provide sufficient means.

One question that is generally asked is ‘What is the maximum maintenance under Section 125?’ Previously, the maintenance claim was limited to Rs. 500 per month but now the magistrate has the power to award a reasonable amount of maintenance as they deem fit.

A Class I Magistrate may order a person to pay a monthly allowance for the maintenance of his wife, child, father, or mother when there is valid proof of neglect and refusal by the man to maintain them.

However,

under Section 125 of the CrPC, a wife will not be entitled to receive maintenance if she has committed adultery, refuses to live with her husband or separates from her husband by mutual consent.

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