Every person is entitled to certain basic amenities in order to lead a dignified life. The concept of maintenance was also introduced to ensure that if there is a spouse or other family member who is financially dependent on other is able to meet these necessities upon divorce or separation. The main objective of maintenance laws to prevent destitution and vagrancy. Given that the roles and responsibilities within a family are gendered, these reflect the social obligation cast by the state upon the economically independent members of the family to provide for the economically dependent members i.e. children, the elderly and women. Maintenance laws are deeply rooted in the constitutional principles of equality and social justice.[1]

Although there are various laws which have made provisions for maintenance of children and parents, maintenance provisions are focused upon and are crucial for, deserted or divorced wives. The historical origins of the institution of marriage are based on patriarchal notions, which results in a financial dependency of a majority of women on their fathers or husbands. It is in this context that various statutory and judicial laws have been made. In India, parties can claim maintenance either under their respective personal laws or under the Cr.P.C. The Indian legal regime with respect maintenance is discussed below.

Maintenance under Hindu Law

Hindu personal laws recognize the maintenance rights of a wife, children, aged parents, a widowed daughter and a daughter-in-law. These rights have been codified under the Hindu Adoptions and Maintenance Act, 1956. Section 18 of the Act entitles a wife to maintenance from her husband throughout her life. The Act envisages certain situations wherein it may become impossible for the wife to cohabit with the husband, without breaking the matrimonial tie. Therefore, the wife can choose to live separately without canceling her right to maintenance, however, such separation is valid only on the following grounds:

  1. Husband is guilty of desertion
  2. The Husband has treated her with cruelty
  3. The husband is suffering from a virulent form of leprosy
  4. The husband has any other wife living
  5. The husband keeps a concubine elsewhere
  6. The Husband has ceased to be a Hindu by conversion to another religion and
  7. If there is any other cause justifying living separately.[2]

However, the section also imposes two conditions upon the wife. A wife can live separately and be entitled to maintenance under the Act only as long as she remains chaste and does not convert to another religion.

Apart from the relationship of husband and wife, the Act also recognizes other relations in which there is economic dependency, giving rise to maintenance rights. Under section 19 of the Act, upon the death of her husband, the widowed wife is entitled to claim maintenance from her father-in-law, given that, the father-in-law has sufficient means to do so and the wife has not remarried. The minor child, legitimate or illegitimate, is entitled to claim maintenance from parents. Similarly, aged parents have a right to claim maintenance from their sons.

The Hindu Marriage Act, 1955 also provides for maintenance of the wife. However, if the wife is no longer a Hindu or lives separately without any lawful justification, such right to maintenance ceases to exist. It is also important to note that in order to be entitled to relief, the marriage must be a valid marriage. An invalid marriage is non-existent in the eyes of the law and hence, no claim of maintenance arises.

Maintenance under Muslim Law

Prior to the Supreme Court’s judgement in the Shah Bano case, there was ambiguity around a Muslim woman’s right to maintenance beyond the iddat period. However, after the judgement, the parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, codifying the law in this regard. The Act provides for the following-

  1. During the iddat period (up to three lunar months), a reasonable and fair provision has to be made and maintenance has to be paid to her.
  2. The amount of Mehr or dower agreed at the time of marriage or after the marriage has to be paid to the wife.
  3. All property given to her by her relatives, friends or husband before, at the time or after the marriage has to be given to her.
  4. When the woman had to maintain herself and her children, maintenance has to be paid for a period of 2 years. If the child is born after the divorce, then the 2 year period begins from the child’s date of birth.

It further provides that if a Muslim woman cannot maintain herself after marriage, she can claim maintenance from her relatives which will inherit her property. If they fail to do so, or have insufficient means, the wife can also claim maintenance from the state Wakf board.

Maintenance under Christian Law

Maintenance rights of a Christian wife are governed by the Indian Divorce Act, 1869. Under section 37 of the Act, a wife, unable to maintain herself upon divorce, can file a suit for maintenance/alimony and the husband shall be liable to pay the same throughout the lifetime. Under section 36 of the Act the wife can also claim alimony pendente lite i.e. alimony to be provided while the proceeding are going on.

Section 125 of the Cr.P.C, 1973

Section 125 of the Cr.P.C. is a secular law. Maintenance can be claimed under this section irrespective of the religion of the parties. This section extends the right to maintenance to wives, children, indigent parents and divorced wives. A wife, living separately from her husband on legal grounds such as cruelty, adultery and bigamy, can claim maintenance under this law. However, the wife’s entitlement ceases if she is living in adultery or living separately without legal justification. Similarly, a divorced wife is entitled to maintenance only as long as she does not remarry. This law brings criminal action upon a person, who having sufficient means, neglects his wife, unable to maintain herself or his legitimate of illegitimate child, unable to maintain itself or his parents, unable to maintain themselves. Section 125 of the Cr.P.C, 1973 is an important provision, based on the tenets of social justice, which seeks to prevent vagrancy and destitution.

[1] Flavia Agnes, “Conjugality, Property, Morality and Maintenance” (2009) 44 EPW 58

[2] s 18 the Hindu Adoptions and Maintenance Act, 1956

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