Maintenance refers to sustenance; support; assistance; aid for financial resources. The financial sustenance furnished by the spouse to the other spouse, for his or her support, of the means of living, or food, clothing, shelter, etc.
Maintenance laws in India:
Secular laws – Criminal Procedure Code, 1973; Special Marriage Act, 1954.
For Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956.
For Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986.
For Parsis – Parsi Marriage and Divorce Act, 1936.
For Christians – Divorce Act, 1869.
Difference between Alimony and Maintenance under the Indian Laws:
The term alimony comes from the Latin word “alimonia” meaning sustenance, and, therefore, means the sustenance or support of the wife by her husband and this practice stems from the common-law right of the wife to be financially supported by her husband. The common consideration among people is that alimony and maintenance are identical terms. While that may be so in other countries, in India, the legal applicability of alimony and maintenance is different and both the terms mean different kinds of financial support in the event of a divorce between the parties.
Under the Indian laws, alimony is the one-time payment, mostly lump-sum, made to the spouse who is financially incapable of maintaining herself. The spouse paying the alimony is not required to pay any other spousal support during their lifetime after payment of the alimony.
On the other hand, maintenance is periodic financial sustenance paid by the husband to the wife paid monthly, annually or in any other fixed intervals decided by the court. A maintenance petition is mostly filed in cases of contested divorce when one spouse has resorted to one-sided divorce against the other and the latter is contesting the same in the court.
‘Sustenance’ does not entail mere animal existence:
The Supreme Court has categorically established that ‘sustenance’ does not entail mere animal existence. On the contrary, it denotes a life of dignity to be led in a similar manner that a wife would have lived in the house of her husband. Also, maintenance must include a provision for residence because, as stated above, maintenance is granted to a woman so that she can lead her life in the manner, to some extent, to which she is accustomed. Therefore, the concept of maintenance must include a provision for food and clothing along with taking into account the basic need of a roof over her head. This was reaffirmed by the Supreme Court in the case of Mangat Mal v. Punni Devi, (1995) 6 SCC 88. Therefore, the husband is bound to maintain the wife as per his own status and financial standing.
Maintenance pendete lite or interim-maintenance:
An interim maintenance, which is referred to as maintenance pending suit, is a sum of money payable every month by one spouse to another till the finality of the case. Interim maintenance is granted under Section 24 of the Hindu Marriage Act and Section 125 of the Code of CrPC and when there exist instances of domestic violence then Section 23 of the Protection of Women from Domestic Violence Act, 2005.
Maintenance under Section 25 of the Hindu Marriage Act, 1955:
After the divorce is finalised, a party can move an application under Section 25 of the Hindu Marriage Act, 1955, for permanent alimony or maintenance. Under this provision, the Court may direct the respondent to pay to the applicant maintenance and support in the form of 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.
Maintenance under Section 125 of the Criminal of Civil Procedure, 1973:
Section 125 of the Criminal of Civil Procedure, 1973 is a part of criminal law. However, the purpose of the proceedings under Section 125 of Code of Criminal Procedure is not to punish a person for his past neglect, but to prevent destitution by compelling a husband, who can provide support, to the wife who is unable to support herself.
Maintenance under the Protection of Women from Domestic Violence Act, 2005:
The Protection of Women from Domestic Violence Act, 2005 acknowledges domestic violence as a human rights violation. To realize this right, the Act recognizes a woman’s right to residence, her right to obtain protection orders under the law and monetary relief under Section 23 of the Act.
Date from which maintenance is payable:
Maintenance under the Hindu Marriage Act is payable from that date when the application for maintenance was moved in the court. However, this is debated for the maintenance granted under Section 125, CrPc. The High Court of Delhi while explaining the same stated that the purpose behind granting maintenance is to give the wife a subsistence allowance who is not able to maintain herself, therefore, the award, normally, should be from the date of the application. However, for the court to award maintenance from the date of the order, there need to be compelling circumstances for the court to take such a view because maintenance is not a bounty as it is awarded to a woman so that she can survive and live with dignity and avoid vagrancy. Merely the fact that a considerable amount of time is spent between the date of the application and the final adjudication before an award in favour of the wife is made, it does not imply that she had enough means to maintain herself. When the assessment made by the Court relates back to the date of the application then there need to be compelling circumstances for the trial court to restrict the award of maintenance to a period post the date of the order.
In Jaiminiben Hirenbhai Vyas & Anr vs Hirenbhai Ramesh Chandra Vyas & Anr. (2015) 2 SCC 385, the Supreme Court held that Section 125 of the Cr.P.C implies that the Court needs to consider, while making the order for maintenance effective from either of the two dates after giving due regard to the relevant facts of the case and the Court may choose either date. However, the Court is required to record its reasons in support of the order passed by it, in both the scenarios.
Are you entitled to maintenance?
1. Section 24 of the Hindu Marriage Act, 1955:
Section 24 of the Hindu Marriage Act, 1955, discusses the maintenance pendente lite commonly known as interim maintenance. However, the language of the provision is gender-neutral, therefore, even a husband can claim interim maintenance under Section 24 of the Hindu Marriage Act, 1955.
2. Section 125 of the Code of Criminal Procedure, 1973:
Section 125 (4) states that “no Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.” Therefore, it means that an adulterous wife and/or a woman who deserts her husband without any probable cause and/or a woman living separately from her husband with mutual consent is not entitled to any maintenance under the said provision.
However, the Supreme Court has explained that the word “wife” includes a woman who has been divorced by her husband on the grounds of desertion and has not remarried under Section 125(4).
3. Domestic Violence:
An order of maintenance can be passed if a woman can prove a prima-facie case of domestic violence. However, it is to be noted that mere bald allegations without any evidence renders the claim of maintenance unapt.
Live-in relationships and maintenance:
The Supreme Court in various cases has interpreted the term ‘wife’ to include a woman who lives with a man as a wife for a reasonably long period of time will be deemed to be ‘relationship in the nature of marriage’. Recently, the Supreme Court held that a woman in a live-in relationship has an efficacious remedy to seek maintenance under Protection of Women from Domestic Violence Act, 2005. Under the Protection of Women from Domestic Violence Act, the victim would be entitled to more relief than what is awarded under Section 125 CrPC.
However, it is important to understand that not all live-in relationships are in the nature of marriage. There has to be some characteristic of marriage, therefore, a live-in relationship between a spinster woman who consciously entering into a relationship with a married male cannot be termed as a relationship in the “nature of marriage” and no maintenance will be granted in such cases.
Mode of payment:
It is advised that maintenance should be paid via demand drafts, cheque or online transactions. However, in certain bizarre cases where the husband claimed inability to pay maintenance to his wife in terms of money, the Punjab and Haryana High Court allowed him to pay the wife maintenance in terms of ration.
Income and Assets Affidavit and maintenance:
The High Court of Delhi, in the case of Kusum Sharma versus Mahinder Kumar Sharma, FAO 369/1996, introduced a detailed affidavit which needs to be filed by the parties in maintenance litigation in order to speed up the matters and to ascertain a just quantum of maintenance. The said affidavit has been adopted by the Punjab and Haryana High Court in 2019 and it is mandatory that the maintenance application/petition under HMA, DV Act and Section 125 CrPC have to be accompanied by the said affidavit.
Quantum of maintenance:
Maintenance is granted keeping in view the status of the parties. Although there exists no straight jacket formula, the Supreme Court in a case in 2017 stated that 25% of husband’s salary will be proper to be given as maintenance. However, the Courts are at a discretion to award more than 25% of the husband’s salary depending upon the facts and circumstances of the case.
Working Women’s claim to maintenance:
The Supreme Court of India is clear on its stand that working women are also entitled to maintenance. However, in certain cases where the husband is unemployed or is financially unstable while the wife is in a financially better position than the husband, then the Courts may deny awarding maintenance. Moreover, the wife’s income has to be taken into account while determining the amount of maintenance payable to her. In Bhagwan Dutt v. Kamla Devi, it was held that it is not an absolute right of a neglected wife to get maintenance nor it is an absolute liability of husband to support her in all the circumstances.