The concept of maintenance has its roots deeply imbedded in the ancient and modern Indian society. The holistic view of the word maintenance is simply provision of allowance or monetary assistance to one party from another party. Origins of maintenance in Hindu mythology, “Maintenance under Hindu Law is based on mythology that when Walmiki was a ‘robber’, Narad Muni fell his victim. But nothing was to rob him. Narad Muni preached he should stop robbing because robbing is a sin. Walmiki said to Narad Muni that he should give this advice to Walmiki’s wife. But she said it is the husband’s primary duty to maintain his wife – for that he can beg, borrow or steal! Thus, Husband must maintain his wife is the Hindu Law. The Hindu Marriage Act incorporates this law and lays down provisions of maintenance.”[1]
The term “maintenance” and “alimony” are quite synonymous. The term maintenance means “act of maintaining, keeping up, supporting; livelihood; means of sustenance. Federal Land Bank of St. Louis v. Miller, 184 Ark. 415, 42 S.W.2d 564, 566.”[2]
The term maintenance in personal laws means the support of livelihood in monetary form. Now the payment of maintenance could be from one spouse to another spouse, a father to his legitimate or illegitimate children and a son or a daughter paying maintenance to their parents.
The word “alimony”, “comes from Latin “alimonia” meaning sustenance, therefore, the sustenance or support of the wife by her divorced husband and stems from the common-law right of the wife to support • by her husband. Eaton v.Davis, 176 Va. 330, 10 S.E.2d 893, 897. Derived from Latin word “alere,” meaning to nourish or sustain. Allowances which husband by court order pays wife for maintenance while they are separated or after they are divorced.”[3]
Basically, the term “alimony” is a financial support paid by one spouse to another after the decree of divorce is been granted by the court. Now the term alimony is much more restricted within matrimonial disputes.
There are statues which are passed by the parliament which ensure the right of maintenance. One must understand the reasoning behind providing maintenance. Maintenance is provided to ensure that the standard of living of the wife who is unemployed or is not practicing any profession is not affected, after the decree of divorce is granted. In general cases the wife has to take maternity leave during and after pregnancy for her children. This maternity leave does considerably affect’s the career prospects of women. Considering husbands are working during the maternity leave of wife. Hence a wife may require monetary support for her maintenance during and after the decree of divorce. Many women do sacrifice their work life for their families.
MAINTENANCE UNDER HINDU LAW
There are personal laws like Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 which provides a security of maintenance for women who are a Hindu, Sikh, Jain and Buddhist.
In the section 24 and 25 of The Hindu Marriage Act, 1955 covers for Maintenance pendent lite and permanent alimony and maintenance which is to be paid to the Hindu divorced wife by the former husband. The maintenance could be pendent lite considering the decree of divorce has not been granted yet. The permanent alimony and maintenance could be provided considering the decree of divorce has been granted.
In the chapter III of The Hindu Adoption and Maintenance Act, 1956 also provides for maintenance under the Section 18 of the said act. However, the said difference is that a woman asks for maintenance during the sustenance of marriage. There is no requirement for a divorce decree to be granted by a competent court.
India being a largest democracy who showcases the virtue of secularism which is also enshrined in our preamble. In India women belonging to other religion are also entitled with the right of maintenance which is ensured under various statutes like Special Marriage Act 1954, The Indian Christian Marriage Act 1872, Muslim Marriage Act, Parsi Marriage Act and section 125 of Code of Criminal Procedure. However, the ambit of section 125 of Code of Criminal Procedure is not only limited for the wife. Its wide bracket absorbs wife, legitimate children, illegitimate children and parents ensuring their respective right of maintenance.
MAINTENANCE UNDER MUSLIM LAW
Mohd. Ahmed Khan V. Shah Bano Begum[4]
This is a landmark case where a 60-year-old wife was divorced by her husband and thrown out of her matrimonial home with their children with no means or any other source of income. The issues which were before the Hon’ble Apex Court was as such
- Do under the ambits of The Code of Criminal Procedure Code, 1973 do divorced Muslim women come under the definition of a “wife”?
- Does The Code of Criminal Procedure Code, 1973 overrides personal laws?
- Is a Muslim husband’s obligation to provide maintenance to a divorced wife is or is not under conflict between section 125 ofThe Code of Criminal Procedure Code, 1973 and Muslim personal laws?
- What would be the quantum of amount payable on divorce? The meaning of “Mahar” or “dower” is it a sum payable?
It was decided by the Hon’ble Apex Court that there was no such conflict between section 125 of The Code of Criminal Procedure Code, 1973 and the verse 241 and 245 of the Quran. Thus, there was no conflict between the procedural law and the Muslim personal law on the very question of the Muslim husband’s liability to provide maintenance to his divorced Muslim wife.
Before this landmark judgement it was a general practice adopted that a Muslim husband would divorce his wife and would be free from all the liability and responsibility by just paying the amount of “Mahar” which was decided during the “nikkah”. Thus “The Muslim Women Protection Of Rights On Divorce Act, 1986” got introduced to protect the right of maintenance for a divorced Muslim women.
The section 3 of The Muslim Women Protection Of Rights On Divorce Act, 1986 provides for “Mahr” or maintenance given to a Muslim divorced wife by her former husband. The said section also covers for the maintenance amount to be paid to divorced wife for the maintenance of children by the former husband. The void which existed whether a Muslim husband should pay maintenance to his divorced wife and children was hence filled due to inception of this act.
Now the said right of maintenance of a divorced Muslim women in India henceforth stands secured.
MAINTENANCE UNDER CHRISTIAN LAW
The divorce and maintenance for Indian Christians are covered under The Divorce Act, 1869. The said act provides for alimony pendente lite and permanent alimony to a divorced wife. Under the section 36 Alimony pendente lite is enshrined during the ongoing divorce proceeding the wife has a right to ask for alimony pendente lite via section 36 of The Divorce Act, 1869 such petition regarding alimony pendente lite should be disposed of within sixty days of service of such petition on the husband.
Under the section 37 of The Divorce Act, 1869 the power to grant permanent alimony is entrusted to the court. The court depending on the merits of the case, the conduct of both the parties and considering the income of both the parties may grant permanent alimony either monthly or weekly for the maintenance of a divorced wife.
Under the section 38 of The Divorce Act, 1869 the court can also direct the husband to pay permanent alimony either to the wife or to any trustee of the wife appointed by the court. The court may also impose necessary restrictions which seems necessary and from time to time may appoint a new trustee for the wife only if it seems expedient to the court.
Divyananda v. Jayarai[5]
In the above-mentioned case, the facts are such two Roman Catholic entered into Suyamaryadhai form of marriage and lived together as husband and wife for period of 5 months in the course of which the wife conceived a child. The Court rejected the petition of the woman as she was not a legally wedded wife. The Court held that being Christian, their marriage in accordance to Hindu customs without any conversion was void ab-initio in the eye of the law and hence the woman was not a legally wife in the eye of law.
MAINTENANCE UNDER PARSI LAW
Under the section 39 and 40 of The Parsi Marriage and Divorce Act, 1936 ensures the right of maintenance and alimony for a Parsi divorced wife from her former husband.
Under the section 39 of the said act, it covers the topic of alimony pendente lite for the Parsi wife who has not yet received the decree of divorce. Hence ensuring her sustenance during a divorce proceeding.
As per the section 40 of The Parsi Marriage and Divorce Act, 1936 it recognizes and covers the topics of permanent alimony for a Parsi divorced wife from her husband. In few exceptional cases the court can direct the husband to pay the maintenance on the behalf of the wife to the trustee or the guardian who is duly appointed by the court under the section 41 of The Parsi Marriage and Divorce Act, 1936. The quantum of amount shall be determined based on the income of husband and wife, wife’s own assets and the conduct of the parties. These are the facts kept in mind while deciding the quantum of amount for maintenance.
MAINTENANCE UNDER SPECIAL MARRIAGE ACT
The Special Marriage Act, 1954 covers and caters for the people who don’t want to follow the rigid customs of marriage under one’s personal law. Considering the needs of the society The Special Marriage Act, 1954 was introduced. Women who got married by not following the rigid customs of personal laws for them there was a void which did not catered their need of maintenance as the personal laws which enshrines maintenance does not cover them. Hence under the Section 36 alimony pendent lite for the wife during the divorce proceeding is covered. It states considering the sum income of the husband such weekly or monthly expense should be paid to wife during the proceeding.
The Section 37 provides for permanent maintenance for the wife after the decree of divorce has been granted by the court.
SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973
Order for maintenance of wives, children and parents is enshrined under the Section 125 of the Code of Criminal Procedure, 1973 this section provides and secures maintenance not only for wives but also children and parents. The responsibility of a husband, a father and a son who has a source of income and earns sufficiently but yet neglects the needs of his wife, children and parents is something which goes against the public policies of the state. Through this act the intention of the state is not over burden an individual who is a husband, a father and a son but to provide some cushion or a safety net from the clutches of the poverty and improve their standard of living for their betterment. Considering wives who are divorced by their husband with no source of maintenance or income. Such wives often have the responsibility of their children and no child alimony is been paid. Parents who are senior citizens who have no source or means of income are removed from their property by their children. Hence considering the plight of these weaker sections of people of the society. This particular section works like a shield and sword for their justice and right to life with liberty.
SECTION 20 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
The Section 20 of the said act covers monetary reliefs to compensate aggrieved and her children for expenses and losses which they have suffered through domestic violence. Such reliefs include the loss of earnings, medical expenses, loss caused due to destruction, damage or removal of any property from the control of the aggrieved person and also provides for maintenance of the aggrieved person and her children. The section 20 sub-section (3) confers the power upon the magistrate to grant lump sum maintenance or monthly payment of such maintenance to the aggrieved from the respondent.
The said section 20 is also applicable along with Section 125 of The Code of Criminal Procedure, 1973or any other law for the time being in force. The intention of this act is not to overlap with any other existing acts which provides the relief of maintenance to wife and her children but to halt the injustice and social evil of domestic violence with ensuring the right of maintenance is not overlapped.
Conclusion:
Considering the statutory acts available for the protection of the rights of women is a commendable effort put in by the parliament. The plight of women in Indian society has drastically reduced after the inception of such acts which ensures their basic rights. However, such judicial mechanism which ensures the right will only be fruitful when women are themselves aware of their own rights. For the betterment and upliftment of the whole society we must strive for the people of the society who are denied their rights.
[1]4 IMIIAZ A. SAIYED, FAMILY LAW OF MUSLIMS, PARSIS AND CHRISTIANS OF INDIA 23 Himalaya Publishing House (4th ed. 2019).
[2] 4 HENRY CAMPBELL BLACK, BLACK’S LAW DICTIONARY 1106 West Publishing Co (4th ed. 1968).
[3]4 HENRY CAMPBELL BLACK, BLACK’S LAW DICTIONARY 97 West Publishing Co(4th ed. 1968).
[4]1985 (3) SCC556 (India).
[5] 1984 Cr LJ NOC 10 (Mad)
This article is authored by Mr. Chinchai Yang, a 3rd Year Law student from Kishinchand Chellaram Law College, Mumbai, as part of his assignment during his internship program at our firm
Disclaimer: This article is only to disseminate the information and it may not be construed as a legal opinion by whatsoever, in case you have any query regarding the subject matter or any other, then you may contact any legal practitioner known to you for the same. The views expressed in this article are personal and in case if you have any query or suggestions please write to Mr. Chinchai Yang at steveyang132@gmail.com or Mr. Shrijit Pillai, Advocate at pandpassociates.16@gmail.com