Maintenance is the provision of financial support for a person's living expenses, or the support so provided to ensure a reasonable standard of living. The Hindu Adoption and Maintenance Act, 1956 defines maintenance as "provision for food, clothing, residence, education, and medical attendance and treatment.”1 The Act makes it a personal obligation of a Hindu to maintain his wife, children and, aged parents.
Indian judiciary has always played an upfront role in recognizing and safeguarding the rights and interests of women. Holding the obligation of husband to provide maintenance to his wife as his sacrosanct duty, it has time and again been reiterated by the Supreme Court that wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband and to provide her with financial support even if the husband is required to earn money with physical labour, if he is able-bodied.
Various statues and legislations have been passed ensuring the right of Hindu wife to claim maintenance against her husband.
Maintenance pendente lite under Section 24 of Hindu Marriage Act, 1955
While considering the application for maintenance pendente lite, the only consideration before the court is the inability of the spouse to maintain herself or himself for want for financial means to maintain at the level of social status of the other spouse from whom interim maintenance is sought and not the misconduct of the applicant spouse, because in a matrimonial dispute mal-treatment or misconduct will always be an allegation.
Thus, where it appears to the court that either the wife or the husband, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order either of the spouse to pay to the applicant party the expenses of the proceeding, and monthly sum during the proceeding, having regard to the applicant party’s own income and the income of the other party, as it may seem to the court to be reasonable.2
Permanent Alimony and Maintenance under Section 25 of Hindu Marriage Act, 1955
Section 25 of the Act provides for the grant of permanent alimony and maintenance to any of the party to a marriage at the time of passing any decree under the Act or at any time subsequent thereto. The court shall take into account the status of the opposite party in fixing the amount for maintenance.
The court has been empowered to rescind or modify the order at any subsequent stage if the circumstances so warrant, and if petitioner becomes inchoate or remarries at any subsequent stage the court may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
In Vinny Parmvir Parmar v. Parmvir Parmar3, Court has to consider the status of parties, their needs, the capacity of a husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain. Amount of maintenance fixed should be such as she can live in reasonable comfort considering her status and mode of life she used to live.
Maintenance of wife under Section 18 of the Hindu Adoption and Maintenance Act, 1956
Section 18 (1) of the Act provides that, “Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time”.
Thus, a Hindu wife is entitled to maintenance against her husband during her lifetime, constituting an imperative duty on the part of the husband.
As per Section 18 (2), A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance -
(a) If the husband is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;
(b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) If he is suffering from a virulent form of leprosy;
(d) If he has any other wife living;
(e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) If he has ceased to be a Hindu by conversion to another religion;
(g) If there is any other cause justifying living separately.
Award of maintenance to wife under Section 23(2) of the Hindu Adoption and Maintenance Act, 1956
Section 23 of the HAMA, 1956 defines the people who get maintenance and the amount of maintenance, which is awarded to them by court taking into account certain factors and conditions. In respect of quantum of maintenance to wife, children and aged or infirm parents, sub-section (2) lays down the following considerations:
- The position and status of the parties.
- The reasonable wants of the claimant
- If the claimant is living separately, whether the claimant is justified in doing so,
- The value of the claimant’s property and any income derived from such property, or from the claimants.
- The number of persons entitled to maintenance, as dependants under this Act.
Monetary relief by way of maintenance under Section 20 of The Protection of Women from Domestic Violence Act, 2005
To ensure protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society, Section 20 of the Act empowers the magistrate to pass orders for grant of monetary relief to the aggrieved person from the respondent to meet the expenses incurred and losses suffered including loss of earnings, medical expenses, loss to property, and maintenance of the aggrieved person and her children including maintenance under, or in addition to, Section 125 of the code of Criminal Procedure, 1973 or any other law for the time being in force.
Right to Maintenance under Section 125 of the Code of Criminal Procedure, 1973
Section 125 of the code is a measure of social justice and enacted especially to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 394. One of the striking features of this Section is that it is applicable to all irrespective of their religion. The wordings of the Section do not contain any such limitation so as to justify the exclusion of Muslim women from its ambit and thus is applicable to Muslim women as well5.
Section 125 of the Code reads as: “Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) His wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or
(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) His father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
(4) 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.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.”
Interpretation of Law
- Wife’s Capability to Earn No Reason to Deny or Reduce Maintenance Awarded to Her
Drawing out the difference between the earning capability of wife and whether the wife is actually earning, the Supreme Court in Shailja v. Khobbanna6, ruled that a wife cannot be denied maintenance only on the premise that she is capable of earning or to reduce the quantum of maintenance awarded to her by lower court solely on this ground.
- Wife is entitled to maintenance from the date of application not from the date of order
The Supreme Court bench comprising of Justices Chelameswar and S.A Bobde in Jaiminiben Hirenbhai Vyas & Anr. v. Hirenbhai Rameshchandra Vyas & Anr.7, ruled that a wife is entitled to maintenance from the date of an application made to Court and not from the date of order.
The Bench took into account the statutory provision relating to maintenance laid under section 125 CrPC which requires the Court to consider making the order for maintenance effective from either of the two dates i.e., the date on which application was made or the date on which order was passed by the court, having regard to the relevant facts and should cite reasonable grounds in the support of its decision.
- Judicially Separated Wife Is Also Entitled To Maintenance
Expanding the right to claim maintenance against her husband by a judicially separated wife under Section 10 of the Hindu Marriage Act, 1955, the Supreme Court bench comprising of Justices Madan B Lokur and Deepak Gupta in the case of Sanju Devi v. State of Bihar & Anr on December 6, 2017, observed that, “If a divorced wife is entitled for maintenance, there is no reason why a wife who is judicially separated is not entitled for maintenance,”.
Thus, a judicially separated wife stands on the same plane with a divorced wife when the right to claim maintenance against her husband is in question.
- Women In Live-In Relationships Entitled To Maintenance Akin To a Legally-Wedded Wife
According the right to maintenance to a women living in a live-in-relationship in equality with a divorced or a judicially separated wife, the Punjab and Haryana High court in Ajay Bhardwaj vs. Jyotsana and others8, ruled that, “Section 125 CrPC was incorporated in order to avoid vagrancy and destitution for a wife/minor children/old age parents, and the same has now been extended by judicial interpretation to partners of a live-in relationship.”
In Chanmuniya v. Virendra Kumar Singh Kushwaha and Another9, The Supreme Court expressed a view that, “a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time and strict proof of marriage should not be a precondition for maintenance under section 125 of the Criminal Procedure Code so as to fulfil the true spirit and essence of the beneficial provisions of maintenance under Section 125 CrPC”.
- Wife Victim of Bigamous Marriage Entitled To Maintenance
In Badshah vs. Sou. Urmila Badshah Godse & Another10, Supreme Court Bench of Justices Ranjan Desai and A.K. Sikri ruled that if a man deceitfully marries a woman, hiding the subsistence of his earlier marriage, he is obliged to pay maintenance to her under Section 125 of Code of Criminal Procedure CrPC.
- Wife Living Separately From Husband Without Any Reason not entitled to Maintenance
A judicially separated or a divorced wife has been accorded with the right to claim maintenance against her husband. However, in certain circumstances the right of a wife to claim maintenance in defeated, such as in case of a wife living separately from her husband without any reason.
The above contention has been ruled by Madhya Pradesh High Court in the case of Anil Jain v. Sunita Jain11, wherein the single-judge Bench of Justice Jarat Kumar Jain observed that a wife residing separately from husband without any reason is not entitled to maintenance under Section 125 of CrPC.
In the instant case, Sunita Jian, the respondent had filed an application under Section 125 of CrPC, alleging that she was harassed by her husband and mother-in-law which forced her to leave her matrimonial home within twelve days of her marriage.
Finding it practically impossible to believe that Sunita could have been so harassed in twelve days that it became impossible for her to reside in her matrimonial home, the court observed that, “Thus, it cannot be held that she was thrown with force from her matrimonial home or she was forced to leave her matrimonial home. With the aforesaid, I am of the view that the finding of the trial court that the non-applicant/wife has sufficient reason to live separately is not sustainable in law. Non-applicant/wife is residing separately without any reason, hence, she is not entitled for maintenance under Section 125 of CrPC.”
- Dealing with the question of whether Section 125 (4) of the Code is applicable to a divorced wife or not, are the following notable judgements.
In Rohtash Singh v. Ramendri12, it was observed that a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities laid down in section 125(4). In another capacity, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried to the man who was once her husband continues to be under a statutory duty to provide maintenance to her.
An Adulterous wife cannot claim maintenance after Divorce
The Madras High Court, in M. Chinna Karuppasamy Vs. Kanimozhi on July 16, 2015 , has held that a divorced wife is living in ‘illicit relationship’ with a man other than her former husband is disqualified from claiming maintenance from her former husband.
Justice Nagamutthu further held that “The decree obtained by the husband for divorce on proving the adulterous life of the wife cannot give a license to her to continue to live in illicit relationship and to get her right to claim maintenance revived.”
Wife Deserting Husband Entitled To Maintenance After Divorce
Whereas, the Supreme court three-judge bench Headed by Chief Justice JS Khehar, justice DY Chandrachud and Justice Sanjay Kishan Kant in Manoj Kumar v. Champa Devi13, upholded the decree passed by Himachal Pradesh High Court, while observing that a divorced woman continues to enjoy the status of ‘wife’ for claiming maintenance under the provision of section 125 of the Code, held that a deserter wife who has been divorced by her husband is also entitled to claim maintenance under Section 125 CrPC against her husband.
Thus, from the reading of the above two mentioned cases, it can be inferred that there exists a contradiction in the rulings of the court on the question of whether a divorced wife coming under the purview of Section 125 (4) of the code is entitled to claim maintenance against her husband or not.
However, after the striking down of Section 497 of Indian Penal Code which provided for the offence of adultery by a five-judge Bench of Supreme court on September 27, 2018 in the case of Joseph Shine v. Union of India and adultery no longer be an offence in India, the law relating to whether a divorced wife living in ‘illicit relationship’ with a man other than her former husband is disqualified from claiming maintenance from her former husband or not is an ‘unsettled law’ and yet to be thrown light upon.