In accordance to Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956, divorced women have the absolute and proper rights to claim for maintenance. The sum of maintenance is chosen by the Court of Law which depends on varying factors including financial position and the liabilities of the husband, justifiable reasons behind the separation/divorce etc.The expenses of legal proceedings for the maintenance will be borne by either of the two spouses depending on their ability to bear the expenses.The husband is required to make and pay the support amount unless the divorced wife remains chaste and single.
The right to claim for the maintenance under the Hindu Marriage Act, 1955 is an independent or absolute right and it is not being governed or maintained by the Hindu Adoption and Maintenance Act, but the main authority i.e. the jurisdiction of the court cannot be ousted on the plea that the applicant whose rights are mentioned under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act, but while fixing the quantum of maintenance that may be taken into consideration. Under the Hindu Marriage Act, it has been determined that either of the spouse can seek maintenance, but there is a special provision under the Code of Criminal Procedure and Hindu Adoption and Maintenance Act, where only the wife can claim maintenance under this Act.
The main reason behind the concept of Maintenance is to see that if one of the spouses is not independent financially so the other spouse help him/her in order to make the living of another person possible. In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. So that she/he can maintain their life as when they lived together.
Generally, Maintenance is the amount which the husband pays to his wife after divorce or the amount which the family member of the husband pays to the widow of their son. Maintenance includes basic necessities like:
Food, Shelter, Clothing etc.
The necessary thinks and comfort which a rational man expected to get.
MEANING AND CONCEPT OF MAINTENANCE
The maintenance is given by the person on whom the other person depends on. The amount of the maintenance is dependant on the earning of the person and the necessities which other person required and the necessities which a rational man needs to live a normal life.
According to the Hindu Adoption and Maintenance Act, the person who is entitled to get maintenance are wife, widow daughter in law, child, aged parents etc. and According to Muslim Law, the person who is entitled to get maintenance are, wife, young children, parents, another person within the prohibited degrees.
Types of Maintenance
This maintenance is paid from the date of filing of the petition to the date of the dismissal of the suit. Its main purpose is to meet the immediate needs of the petitioner. It is the amount which is paid by the person who is financially independent and upon whom the other person is financially dependent. This amount includes the expenses of the proceeding as well as other expenses during the course of the proceeding.
It is the amount which is been paid by one party to another after the judicial proceeding i.e. result is the dissolution of marriage or judicial separation.
MAINTENANCE UNDER HINDU LAW
In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. So that she/he can maintain their life as when they lived together. The maintenance is given by the person on whom the other person depends on. The amount to the maintenance is dependant on the earning of the person and the necessities which other person required and the necessities which a rational man needs to live a normal life.
Section 24 of the Hindu Marriage Act talks about the maintenance that how a wife/husband can claim Interim maintenance.Only under the Hindu Marriage Act and Parsi Marriage Act both husband and wife can claim for the interim maintenance. In other statutes, only the wife can claim the Interim maintenance. Under Section 36 of the Divorce Act, the wife may file the petition for Interim maintenance. Section 25 of the Hindu Marriage Act deals with the concept of Permanent Maintenance as the amount which a person has to pay to another person as maintenance in gross sum or periodically or monthly as per the orders of the court.
MAINTENANCE OF WIFE UNDER SECTION 18 OF HINDU ADOPTION AND MAINTENANCE ACT, 1956-
As per Section 18(1) of Hindu Adoption and Maintenance Act, 1956 the wife is entitled to get the maintenance amount from her husband until she dies or he dies. the Hindu wife is also entitled to take get maintenance even if she lives separately from her husband under following grounds:
When the husband is liable for desertion.
When the husband is liable for cruelty.
When the husband is suffering from leprosy.
The husband is liable for bigamy.
The husband converts his religion without the consent of the wife.
Maintenance of Hindu wife under Section 125 of the Code of Criminal Procedure
As per Section 125 of the Code of Criminal Procedure, only a woman either take divorce or given divorce by her husband and who hasn’t remarried any other man is entitled to get maintenance. A married woman who refuses to live with her husband because her husband is liable for desertion or liable for cruelty or is suffering from leprosy or liable for bigamy or convert his religion without the consent of the wife can claim a special allowance under this Act.
In D.Velusamy vs D.Patchaiammal
The wife filed a suit against husband demanding the maintenance as per Section 125 of the Code of Criminal Procedure.
Here the court provides the Maintenance to the wife.
Under Section 125 of the Code of Criminal Procedure the person has to maintain:
His Wife, who unable to maintain herself.
His Legitimate or illegitimate minor child whether married or not married, who unable to maintain itself.
His father and mother, who unable to maintain themselves.
In Gomaji vs Smt. Yashoda
In this case, the petitioner is the Husband and the Respondent is the wife. The Husband filed a case under Section 13 of the Hindu Marriage Act seeking a divorce from his wife. And the Respondent filed an application under Section 125 of Code of Criminal Procedure claiming Maintenance. Here the court accepts the divorce and passed the order against Husband to give monthly Maintenance to his wife.
Maintenance as an award to wife under section 23(2) of the Hindu adoption maintenance act –
Section 23 of the Hindu Adoption and Maintenance Act defines the people who can claim the maintenance and how the maintenance can be calculated. The analysing factors of the amount are:
Status and Position of the parties.
The basic necessity of the claimant.
The basic comfort which a reasonable man needs.
The value of the property whether movable and immovable, of the Respondent.
The income of the respondent.
The number of members who depended financially on the respondent.
The degree of relationship between the two.
We can conclude this as by it is well said and also being recognised in Hindu law that the right of maintenance provided to the helpless women is substantive and a continuing right and also the amount of maintenance varies from time to time. The court’s responsibility is to keep into account the status of the opposite party who has claimed for maintenance and then its further amount should be decided. This is because of the Section 25 which provides the right to the party in a marriage to support them with the remedy in the form of alimony and maintenance where they pass any decree under the Act or at any time there into.
After the amendment and the changes brought down in the Hindu Marriage Act, 1976, the scope of the Act has been widened up and now this new changes make it mandatory for the court of law to grant full opportunity to the parties to affirm their rival arguments by leading proper arguments given by them. The court should also not neglect to take into consideration the other sides which may affect the grant or payment of maintenance besides the income and their conduct of behaviour during the proceedings.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at email@example.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.