MAINTENANCE OF WIFE UNDER HINDU MARRIAGE ACT
This article deals with maintenance of wife (a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried, Section 125(1) Explanation (b), CrPC 1973) under Hindu Marriage Act. Maintenance to the female spouse refers to the payments, which a husband, under certain circumstances is under an obligation to pay. The concept of maintenance is basically to put back the wife in the exactly same position of lifestyle and comfort as she was at the time when the marriage existed. There is no fixed amount that the husband is supposed to pay as maintenance; the family court decides the amount to be paid in the form of lump sum or on monthly basis.
Section 24 of Hindu Marriage Act states that either husband or wife can claim maintenance till the proceedings are being held. Section 25 lays grounds for permanent alimony. The most essential aspect of maintenance is that the party which relies on maintenance does not have any independent source of income to support himself/herself. The legal obligation of payment of maintenance can either during the subsistence of the marriage or after the dissolution of the marriage.
Concept of Maintenance
The concept of maintenance was initiated so that the partner who is not economically independent can get help from their spouse in order to have a comfortable living. The maintenance can be in a gross sum or on periodical / monthly basis. Under no circumstances, the maintenance shall be owed beyond the life of the non-Applicant. The income and property of the non-Applicant is considered while determining the permanent alimony. Interim maintenance is to be paid and will be applicable till the final disposal of the main case. The hardships of unemployed wives are solved by way of certain acts passed in the legislature. The maintenance of a spouse is determined on the existence of various factors by the court as follows:
- No separate source of income of the spouse seeking maintenance.
- Standard of living of both the litigating parties before separation.
- Expenses required for maintenance of children.
- Requirement to maintain same lifestyle of spouse as it was during the marriage.
- Skills and educational background of the spouse to earn his/her living and maintain themselves etc.
There is a misapprehension that a working woman is not entitled to profess maintenance as she is earning and is thus can maintain herself. The Indian courts have recognized the right of maintenance of working women and held that they can claim maintenance from their husband even if they earn a monthly income, which is not enough for them to maintain themselves. Thus, an earning wife is also entitled to maintenance under maintenance laws for wife in India. As per the Hindu maintenance laws, there are 2 types of maintenance that can be claimed by the wife. When the wife files a maintenance petition via her divorce attorney, there is a burden on the husband to declare his income, who has the right to defend the maintenance petition.
Types of Maintenance
On consideration of afore mentioned factors by the competent court, maintenance can be granted on the following basis:
- Temporary Maintenance–
- It is also known as pendente lite which is awarded by the courts during the proceedings of divorce. The purpose of this is to meet the immediate expenses of the unemployed spouse who is party to the proceedings. Section 24 of Hindu Marriage Act deals with such maintenance. Further it can be claimed under Section 125(1) of CrPC.
- Permanent Maintenance–
- As the term suggests, it refers to the granting of a sum on a periodical basis or on a continued basis once the proceedings have been disposed off as per Section 25 of Hindu Marriage Act, 1955. Either of a spouse is entitled to receive it.
Obligation to Maintain Wife, Children and Parents in India
The statutory provisions lay down under various acts and Cr.P.C makes it mandatory to maintain the dependent spouse, children and spouse in India. 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 and persons who come under the ambit of Section 2 of HMA. Also children whose either of a parent is a Hindu, Sikh, Jains or Buddhist and are brought up under the same religion will also be considered as a Hindu and will be entitled to maintenance.
Under old Hindu law, a Hindu male was under an obligation to maintain His wife (Section 24 and 25 of HMA), Unmarried daughter, legitimate sons, illegitimate sons, (Section 26 of HMA and Section 20 of Hindu Maintenance and Adoption Act deals with maintenance of minor legitimate/illegitimate minor children and infirm parents) and Aged parents. 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.
Landmark Judgement Of Section 125 Cr.P.C
This is a landmark case in the history which clearly dealt with the clarifying the scope of Section 125 and which proved to be a milestone specifically in the struggle for the rights of muslim women. Facts of the case are as follows:
- In the year 1975 , at the age of 62 years , with 5 children, shah bano was disowned by her husband.
- Her husband Mohd Ahmed refused to grant her maintenance on the ground that there was no specific provision in the muslim law for providing maintenance to muslim divorced women.
- She had no separate source of income and at this age it was impossible for her to maintain herself and to take care of the welfare of her children at the same time. Thus she filed a suit claiming maintenance.
Main issue that raised before the court was whether Section 125 applies to muslim women or not and whether uniform civil code applies to individuals of all religions or not. Supreme court on the following reasons rejected Mohd Ahmed’s plea of not granting alimony:
- The court held that without any discrimination, Section 125(3)applies to muslim women too.
- The concept of muslim husband’s responsibility towards his wife only till the iddat period cannot suffice to contemplate the rule laid down in Section 125
- Merely a triple talaq cannot take away the right of divorced muslim women from seeking maintenance if she is not in a condition to maintain herself and her children because of no independent source of income.
The wife has a right to claim maintenance from her husband when she is unable to maintain herself financially. The fact whether the wife is working and earns some income or not, does not affect her right to claim maintenance from her husband. Section 24 entitles not only the wife but also the husband to claim maintenance pendente lite on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood. Held that since the husband was able-bodied and was not mentally ill and only because his business had closed down, he could not be granted any maintenance, it being opposed to spirit of section 24 of the Act.
Author: Khushi Maheshwari Maheshwari,
Fairfield Institute of Management and Technology (BBA LLB)