Maintenance – How to handle.

The are many types of maintenance cases in India:

 

  1. Section 125 of the CrPC: Meant to provide no-fault maintenance to wife from husband.
  2. Section 24 of the Hindu Marriage Act, 1955 (HMA): Though gender neutral, is largely used by women to extract maintenance from their husbands in pendency of a divorce.
  3. Section 25 of the HMA: Meant to provide alimony to women from divorce.
  4. Section 18 of the Hindu Adoptions and Maintenance Act: Another provision for maintenance to wives.
  5. Domestic Violence Act : This Act also is used to get maintenance from husbands

 

The concept of ‘maintenance’ in India is covered both under Section 125 of the Code of Criminal Procedure, 1973 (Section 125) and the personal laws. This concept further stems from Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (the ‘Constitution’). Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents. It is a measure of social justice and an outcome of the natural duty of a man to maintain his wife, children and parents, when they are unable to maintain themselves.1 The object of maintenance is to prevent immorality and destitution and ameliorate the economic condition of women and children.

 

Maintenance can be claimed under the respective personal laws of people following different faiths and proceedings under such personal laws are civil in nature. Proceedings initiated under Section 125 however, are criminal proceedings and, unlike the personal laws, are of a summary nature and apply to everyone regardless of caste, creed or religion.2 The object of such proceedings however, is not to punish a person for his past neglect. The said provision has been enacted to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and have a moral claim to support.3 Maintenance can be claimed either at the interim stage, ie, during the pendency of proceedings, or the final stage.

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Conditions for claiming maintenance

Under the provisions of Section 125, the burden lies upon the wife, ie, the claimant, to prove that the husband, ie, the other party, has ‘sufficient means’ and has ‘neglected or refused to maintain’ her and that she is ‘unable to maintain’ herself.

If an individual is capable of earning, irrespective of whether he actually has the means or not, it can be concluded that he has sufficient means. The onus then shifts onto the husband, to prove that he does not have sufficient means to provide the maintenance. The phrase ‘unable to maintain herself’ is with reference to the means that were available to the deserted wife while she was living with her husband. An abandoned wife or divorced woman need not be reduced to a destitute state before filing for maintenance for herself and her children. The test is whether the woman is in a position to maintain herself in a similar manner as in her husband’s home.

 

Persons entitled to receive maintenance

Maintenance may be granted to dependent children, parents and legally wedded wives, including but not limited to a divorced spouse, mistress, illegitimate children, etc. In certain cases under personal law, the Indian courts have adopted a lenient view and granted the husband the right to receive maintenance. Such right however, is conditional and typically conferred upon the husband, only if he is incapacitated due to some accident or disease and rendered incapable of earning a livelihood. Such an entitlement is not available to an able person, doing nothing for a living or a ‘wastrel’. The remedy under Section 125 is speedy and inexpensive, as compared to personal laws. The provision relating to maintenance under any personal law is however, distinct and separate from Section 125. There is no conflict between both the legal provisions. A person is entitled to maintenance under Section 125 despite having obtained an order under the applicable personal law.

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Quantum of maintenance

Maintenance covers not merely food, clothing and shelter, but also includes other necessities. The quantum and type of necessities covered within the scope of maintenance may vary, depending on the status, financial position and number of dependents, etc and is at the discretion of the court. Prior to passing an order under Section 125, the court does take cognizance of the amount of maintenance already ordered under the personal law. The reasoning is based on the premise that the wife is entitled to live as per the standard and status of her husband.

 

Judicial precedents

There is a spate of judicial precedents on the issue of maintenance. Until recently, the term ‘wife’ was interpreted in a narrow manner, since the intention of the judiciary was to protect destitute and harassed women. The Indian courts held that only a legally married woman was entitled to claim maintenance. The change in perception vis-à-vis social relationships and the growing trend of live-in relationships has influenced the Indian mindset. This is apparent from a recent case decided by the Delhi High Court, in a personal law matter,4 wherein the couple had lived like a married couple for 14 years and the man had concealed the fact that he was already married. Furthermore, the woman had taken the responsibility of running the household as a housewife, treated the man as her husband and had borne and bred two of his children. The view taken by the court was that on account of the nature of the relationship and the aforementioned facts, the woman should not be deprived of her right to maintenance, under the personal law applicable to Hindus (which constitutes almost 80 per cent of Indians). The court further expressed that denial of maintenance under such circumstances would amount to putting a premium on or rewarding the man for defrauding the woman by concealing his first marriage. It was further recorded that for the purpose of granting maintenance under the personal law, women placed in the position of second wife, can be treated as legally wedded wives and are entitled to maintenance. In a case decided on 14 November 2008, the Apex Court has recently ruled that maintenance necessarily encompasses a provision for residence and has therefore ordered that the woman be provided with a residential facility similar to that which she had been accustomed in the past.5

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Conclusion 

It is evident from the recent judicial decisions that the Indian courts have been progressively liberal in deciding cases pertaining to maintenance. The bone of contention however is whether a mistress can become entitled to receive maintenance merely from the factum of living with a married man, coupled with the dispute as to whether the bigamy is legally permissible. While it appears from the decisions passed under the personal laws that the same may be possible, judicial decisions pertaining to Section 125 continue to uphold the view that maintenance can be claimed only by a lawfully wedded wife.

 

There are 3 type of cases

  1. not yet (pre-assumption)
  2. Going on (presently going on at first stage
  3. Appeal level (decided in lower court / family court / session court / high court)

 

Important Points

  1. Don’t leave your job
  2. Take some policies (LIC etc.)
  3. Maintenance cases filed by father or mother if dependent
  4. Social responsibilities
  5. Moral responsibilities
  6. Medical policies
  7. Rented accommodation

 

Things must do

  1. Education of your wife
  2. Past working history
  3. Present job
  4. Present money source
  5. PAN details
  6. PF details
  7. Bank accounts
  8. Moveable or immoveable properties
  9. Any affair

There are many Judgments related to Maintenance listed here, Please search for relevent Word like “Maintenance” “Working Women” Maintenance denied” “alimony” qualified women” etc

 

Compiled by Sattu.

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