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“Law Master’s” Publication “Law of Maintenance”
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(..5..)
Law of Maintenance (Hindu and Muslim Law)
QUESTION BANK
Q.1
Q.3
Explain alimony pendent lite and permanent alimony under different personal laws.
“The aged parents, a virtuous wife and an infant child must be maintained even by
doing a hundred misdeeds” Discuss.
Q.5. Explain the provisions for permanent alimony and maintenance exist in all Indian
matrimonial statutes.
Q.7
Q.8
Under what circumstances can a Hindu wife obtain maintenance from her husband?
What is maintenance? Explain provisions of it under the Hindu Adoptions and
Maintenance Act, 1956.
Q.9
Alimony and Maintenance are independent remedies. Elaborate on the fiction under
the Hindu Marriage Act. 1955.
Q. 10 Explain provisions relating to interim maintenance and expenses of the proceeding.
SHORT NOTES
1.
2.
3.
Objectives of S. 125 Cr.P.C.
Quantum of maintenance.
Alimony and maintenance.
SYNOPSIS
I. Introduction-
II. Maintenance under Hindu Law-
A. Maintenance under Hindu Adoptions and Maintenance Act 1956-
1. Definition of Maintenance (S. 3 (b)-
2. Persons entitled for maintenance under the Act-
a) Maintenance as a personal obligation-
b) Persons entitled for maintenance-
i. Right of maintenance of Wife (S. 18)-
(a) Grounds on which wife can live separate and claim maintenance
from her husband-
(1) Desertion by the Husband-
(2) Cruelty by Husband-
(3) Husband suffering from virulent form of leprosy-
(4) Husband having another wife living-
(5) Husband keeping a concubine-
(6) Husband converts to another religion-
(7) Other justifying cause-
(b) Grounds on which the wife has no right of separate residence and
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maintenance from her husband-
ii. Right of maintenance of Children (S. 20)-
Maintenance of unmarried daughter-
iii. Right of maintenance of aged or infirm parents unable to maintain
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themselves (S. 20)-
iv. Right of maintenance of widowed daughter-in-law (S. 19)-
v. Maintenance of Dependents (S. 21 and 22) -
i. Right of maintenance of dependents (S. 22)-
Rules relating to the right of dependents-
(1) Dependents has not obtained any share in deceased’s property-
(2) Maintenance against him who takes estate-
(3) Liability is co-extensive with estate taken-
(4) No liability if share taken falls short than liability of aintenance-
ii. Who are dependents? (S. 21)-
3. As to Amount of maintenance-
a) Amount of maintenance is within the discretion of the court (S. 23)
b) Alteration in amount of maintenance (S. 25)-
c) Debt to have priority over maintenance (S. 26)-
d) Maintenance as a charge (S. 27)-
e) Effect of transfer of property (S. 28)-
B. Maintenance under Hindu Marriage Act, 1955-
1. Maintenance pendente lite and expenses of proceeding (S. 24)-
a) Proceeding under the Act-
b) Either the wife or Husband can claim-
c) Interim maintenance and expenses of proceeding-
d) No sufficient income-
e) Sum to be awarded-
2. Permanent alimony and maintenance (S. 25)-
a). Provision as to permanent alimony and maintenance (S. 25 (1))-
b) Court may amend order of permanent maintenance (S. 25 (2)-
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I. Introduction: -
The term ‘Maintenance’ in general parlance means ‘the process of preserving a
condition or situation or the state of being preserved’.
In legal parlance, ‘Maintenance’ means ‘providing financial support for a person’s
living expenses.
Certain relations, like wives, children, parents, etc. that are unable to be maintained
are entitled to be maintained.
The right of maintenance exists in Hindu and Muslim law; however, it is extended
and specified by passing different laws. We will discuss these personal laws and
subsequent enactments therein.
II. Maintenance under Hindu Law: -
We will discuss the provisions made for maintenance under different Hindu laws-
A. Maintenance under the Hindu Adoptions and Maintenance Act 1956-
1. Definition of Maintenance (S. 3 (b): -
Maintenance includes-
(i) provision for food, clothing, residence, education and medical attendance and
treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of, and
incident to her marriage;
Under the Act, the liability or right of maintenance arises under the following three
circumstances-
a) Maintenance as a personal obligation:-
According to traditional Hindu law, a Hindu is under a personal obligation to
maintain certain relations. This obligation is personal because a Hindu is directly and
personally liable to maintain some relations irrespective of property that belonged to
1 Hindu Adoptions and Maintenance Act 1956
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him. In other words, a Hindu, whether it belongs to property or not, is under a personal
obligation to maintain his aged parents, wife, and minor children. Therefore, the great
Hindu sage Manu mentioned, “The aged parents, a virtuous wife and an infant child must
be maintained even by doing a hundred misdeeds”. S. 18 and 20 of the Act also obliges
a Hindu to maintain his wife, children and aged parents.
b) Persons entitled to maintenance:-
We will discuss the right of maintenance of the following relations-
i. Right of maintenance of Wife (S. 18):-
A Hindu wife is entitled to be maintained by her husband during her lifetime. She
is also entitled to live separate from her husband in some circumstances. Thus, the right
of maintenance and separate residence are clubbed together under this section. In other
words, we may say that the wife is entitled to be maintained by her husband so long as
she lives with him; however, in certain circumstances, she is entitled to separate
residence and the right of maintenance (amount) from her husband.
(a) Grounds on which the wife can live separately and claim maintenance from her
husband: -
(1) Desertion by the Husband:-
Desertion is abandoning a wife by her husband without reasonable cause, without
her consent, against her wish, or willfully neglecting her.
(2) Cruelty by Husband: -
The husband is guilty of cruelty, entitling the wife to live separately if he has
treated her with such cruelty to cause a reasonable apprehension in her mind that living
with her husband will be harmful or injurious.
(3) Husband suffering from a virulent form of leprosy:-
If the husband suffers from a virulent form of leprosy, the wife is entitled to live
separately.
(4) Husband having another wife living: -
In fact, the Hindu Marriage Act came into force in 1955, prohibiting second or
subsequent marriage. However, during that period, many persons had more than one
wife; therefore, the provision under this section seems to have been made, entitling wives
to live separately on the grounds of husbands having another wife living. After coming
into force of the Hindu Marriage Act in 1955, subsequent marriages are called bigamous,
and such a woman is not called a wife but a concubine.
(5) Husband keeping a concubine: -
If the husband keeps a concubine in the same house where his wife lives or
habitually resides with a concubine, the wife gets the right to separate residence and
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maintenance.
(6) Husband converts to another religion: -
If the husband ceases to be a Hindu by conversion to another religion, the wife has
both of the above-mentioned rights.
(7) Other justifying causes: -
The wife has the right to separate residence and maintenance even if there is no
other ground justifying her living separately. This residuary clause empowers the court
to decide if any other ground justifies the wife's living separately. It casts a duty on the
wife to prove a justifying cause that compelled her to leave her husband.
(b) Grounds on which the wife has no right of separate residence and maintenance
from her husband: -
A Hindu wife is not entitled to separate residence and maintenance from her
husband if she is (1) unchaste or (2) ceases to be a Hindu by conversion to another
religion.
ii. Right of maintenance of Children (S. 20):-
S. 20 grants the right of maintenance to children and aged parents. It lays down
that a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or
illegitimate children and his or her aged or infirm parents.
A legitimate or illegitimate child may claim maintenance from his or her father or
mother if the child is a minor.
In traditional unmodified Hindu law, the obligation to maintain children was
imposed only on the father, who also maintained legitimate children only. However, the
present Act imposes liability upon both father and mother to maintain legitimate and
illegitimate children.
Maintenance of unmarried daughter: -
S. 20 imposes an obligation on parents to maintain their unmarried daughter if she
is unable to maintain herself out of her own earnings or other property. Here, an
unmarried daughter has the right to maintenance, irrespective of age. Thus, to get the
right of maintenance, she must prove that (i) she is unmarried and (ii) she cannot
maintain herself out of her own earnings or other property. Here, considering her
position, an unmarried daughter is more protected than a son. She is also entitled to get
reasonable expenses for her marriage. However, her rights cease after her marriage.
iii. Right of maintenance of aged or infirm parents unable to maintain themselves
(S. 20):-
As discussed above, S. 20 imposes a duty on a Hindu to maintain children and age-
old or infirm parents who are unable to do so. Parents include a childless stepmother.
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The right of maintenance is available to aged parents and infirm parents irrespective of
age, provided they are unable to do so out of their earnings and property.
iv. Right of maintenance of widowed daughter-in-law (S. 19): -
A widowed daughter-in-law is entitled to be maintained by her father-in-law.
Provided-
(1) she is unable to maintain herself out of her own earnings or other property or,
(2) Where she has no property of her own and is unable to obtain maintenance-
(a) from the estate of her husband, her father or her mother, or
(b) from her son or daughter, if any, or his or her estate.
Daughter-in-law does not get the right of maintenance from father-in-law-
(a) If she has no means to maintain the daughter-in-law from any coparcenary
property in his possession out of which she has not obtained any share,
(b) If she remarries.
v. Maintenance of Dependents (S. 21 and 22):-
a. Right of maintenance of dependents (S. 22): -
A Hindu is bound to maintain his dependents. However, after his death, the
liability runs with the property. The person who inherits the property becomes liable to
maintain the dependents of the deceased whose property he inherits. The liability of a
Hindu under this section is not personal but related to the property he inherits from the
deceased, with whom he claims dependents are either related by blood or marriage. In
other words, the rights of dependents under this section exist against the property and
not against the person. Moreover, the right arises not against the person directly but
against the heir taking property.
b. Rules relating to the right of dependents: -
There are following rules laid down by S. 22 for claiming maintenance by
dependents of deceased Hindu. Viz.
(1) Dependents have not obtained any share in the deceased’s property: -
The first condition is that the dependents must not have obtained, either by
testamentary or intestate succession, any share in the estate of the Hindu dying upon
whom the claimant was dependent.
(2) Maintenance against him who takes estate: -
The dependents mentioned above are entitled to maintenance from those who
take the deceased's estate.
(3) Liability is co-extensive with estate taken: -
When there are more persons than one who have taken the property of the
deceased, the liability of each person is in proportion to the value of the share or part of
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the estate taken by him or her.
(4) No liability if the share taken falls short of the liability of maintenance:-
Irrespective of the above rules, no person dependent shall be liable to contribute
to the maintenance of other dependents if he or she has obtained a share, the value of
which is less than what would be awarded to him as maintenance. In other words, if his
share of inheritance is no more than his maintenance claim, he can retain it without
liability to contribute to the maintenance of other dependents. Thus, if by the will of the
Hindu, his widow gets Rs. 1000 income per month, but his mother does not get any share
even though both are dependents, as mentioned below in S. 21. The widow has no
obligation to provide maintenance to her mother-in-law because Rs. 1000 amount per
month is just sufficient or inadequate to maintain herself.
c. Who are dependents? (S. 21): -
S. 21 lists the dependents' extent and period of their dependency. According to the
section, for the purpose of this chapter, ‘dependents’ means the following relatives of
the deceased-
(i) his or her father;
(ii) his or her mother,
(iii) his widow, so long as she does not remarry;
(iv) his or her son or the son of his predeceased son or the son of a predeceased son of
his predeceased son, so long as he is minor;
Provided and to the extent that he is unable to obtain maintenance,
(a) in the case of a grandson from his father’s or mother’s estate, and
(b) in the case of a great-grandson, from the estate of his father or mother or father’s
father or father’s mother.
(v) his or her unmarried daughter or the unmarried daughter of his predeceased son or the
unmarried daughter of a predeceased son of his predeceased son, so long as she remains
unmarried;
Provided and to the extent that she is unable to obtain maintenance,
(a) in the case of a grand-daughter, from his father’s or mother’s estate and
(b) in the case of a great-grand-daughter, from the estate of her father or mother or
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father’s father or father’s mother.
(vi) his widowed daughter;
Provided and to the extent that she is unable to obtain maintenance,
(a) from the estate of her husband or
(b) from her son or daughter, if any, or his or her estate; or
(c) from her father-in-law or his father or the estate of either of them;
(vii) any widow of his son or a son of his predeceased son, so long as she does not
remarry;
Provided and to the extent that she is unable to obtain maintenance,
(a) from the estate of her husband or
(b) from her son or daughter, if any, or his or her estate; or
(c) in the case of a grandson’s widow from her father-in-law's estate;
(viii) his or her minor illegitimate son, so long as he remains a minor;
(ix) his or her illegitimate daughter, so long as she remains unmarried.
Some of these persons are already mentioned in S. 18 and 20 (i.e. those entitled to
get maintenance on the ground of the relationship). However, under S. 22, the right arises
from the inherited property. Thus, the right under S. 18 and 20 is personal, whereas the
right under S. 22 is limited to the property inherited by the heir from whom the
maintenance right is claimed.
3. As to the amount of maintenance: -
There are following rules as to the amount of maintenance.
a) Amount of maintenance is within the discretion of the court (S. 23):-
It shall be the discretion of the court to determine whether any and, if so, what
amount of maintenance is to be awarded. In doing so, the court has to take into
consideration the following-
(i) While awarding maintenance to the wife, children or parents, the court must consider
the following-
(1) the position and status of parties;
(2) the reasonable wants of the claimant;
(3) if the claimant is living separately, whether the claimant is justified in doing
so;
(4) the value of the claimant’s property and any income derived from such
property or claimant’s own earning or any other source; and
(5) the number of persons entitled to be maintained under the Act.
(ii) While awarding maintenance to the dependents, the court must consider the
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following-
(1) the net value of the estate of the deceased after providing for the payment of
his debts;
(2) the provision, if any, made under a will of the deceased, in respect of the
dependents;
(3) the degree of relationship between the two;
(4) the past relationship between the dependents and the deceased.
(5) the reasonable wants of the dependent;
(6) the value of the dependent's property and any income derived from such
property; or from his or her earning or any other source.
(7) the number of dependents entitled to maintenance.
The point to be noted here is that the claim of maintenance of the wife, etc., in the
first category is based on the relationship and is a personal obligation of a Hindu. In
contrast, the claim of dependents is based upon the property inherited by the heir from
the deceased.
b) Alteration in the amount of maintenance (S. 25):-
The amount of maintenance, whether fixed by the court or by agreement, may be
altered if there is a material change in the circumstances justifying such alteration. Thus,
remarriage of a widowed daughter, daughter-in-law, etc.; getting sufficient self-income
to maintain himself or herself by the person getting maintenance, etc., are some
circumstances in which the amount of maintenance may be stopped or altered.
c) Debt to have priority over maintenance (S. 26):-
The debt of every description contracted or payable by the deceased shall have
priority over the claims of his dependents for maintenance.
d) Maintenance as a charge (S. 27):-
A dependent’s claim for maintenance shall not be a charge on the estate of the
deceased or any portion thereof unless one has been created by the will of the deceased,
by a decree of the court, or by agreement between the dependent and the owner of the
estate.
e) Effect of transfer of property (S. 28):-
Where a dependent has a right to receive maintenance out of an estate, and such
estate is transferred, the right to receive maintenance may be enforced against the
transferee if the transferee has notice of the right.
B. Maintenance under the Hindu Marriage Act, 1955:-
Under all matrimonial laws, the concept of interim and permanent maintenance is
enumerated. Hindu Marriage Act, the Parsi Marriage and Divorce Act, and the Special
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Marriage Act of 1954 provide ‘alimony pendente lite’ and ‘permanent alimony’. The
terms ‘alimony’ and ‘maintenance’ are used interchangeably, and there is no difference.
We will discuss these concepts enshrined under the Hindu Marriage Act in comparison
with other personal laws-
1. Maintenance pendente lite and expenses of proceeding (S. 24):-
Maintenance pendente lite is an interim relief known as ‘alimony pendente lite’.
(i) either the wife or the husband (as the case may be),
(ii) has no independent income sufficient for her or his support and the necessary
expenses of the proceedings,
(iii) the court may, on the application of the wife or the husband,
(iv) order the respondent to pay the petitioner the expenses of the proceeding and
monthly maintenance during the proceeding,
(v) such sum as, having regard to the petitioner’s own income and the income of the
respondent, it may seem to be reasonable.
a) Proceeding under the Act:-
Maintenance pendente lite is granted in proceedings instituted under the Hindu
Marriage Act, 1955. The Act grants reliefs of restitution of conjugal rights, judicial
separation, nullity of marriage, and divorce. Thus, interim maintenance and expense for
proceeding can be granted in these proceedings.
b) Either the wife or Husband can claim:-
Under the Hindu Marriage Act and Parsi Marriage and Divorce Act, both husband
and wife can claim interim maintenance and expenses of proceeding from the other side.
However, under other statutes, such as the Divorce Act of 1869 and the Special Marriage
Act. 1954, etc., only the wife can claim maintenance from the husband, not vice versa.
c) Interim maintenance and expenses of proceeding: -
Maintenance pendente lite means maintenance during the pendency of
litigation either for restitution of conjugal rights, judicial separation, nullity of marriage
or divorce under the Hindu Marriage Act. 1955. It is a provision for meanwhile, and it is
also called ‘interim relief’. This interim relief continues till the conclusion of proceedings.
d) No sufficient income: -
The party claiming should not have independent income sufficient for her or his
support and the expenses of the proceedings.
e) Sum to be awarded: -
The court awards such sum as having regard to the petitioner’s own income and
2 Hindu Marriage Act 1955
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the income of the respondent; it may seem reasonable. Thus, while granting interim
maintenance and necessary expenses for proceeding, the court considers the petitioner’s
and respondent’s income. The Court grants such a sum as it may seem to be reasonable.
Facts—The husband's family consisted of six members, including a wife. The husband's
monthly average income was Rs. 2020. The lower court awarded maintenance of Rs. 350
per month, considering the ‘one-fifth’ rule. According to the rule, maintenance of 1/5th of
the amount from average income was to be granted.
Bombay High Court observed that the 1/5th rule is unreasonable and against gender
equality. A wife is entitled to more in contemporary society.
2. Permanent alimony and maintenance (S. 25):-
The provision for permanent alimony and maintenance exists in all the
matrimonial statutes in India. S. 37 of the Indian Divorce Act, S. 37 of the Special
Marriage Act 1954, and S. 25 of the Hindu Marriage Act enumerate the provision for
permanent alimony and maintenance.
a). Provision as to permanent alimony and maintenance (S. 25 (1)):-
Any court exercising jurisdiction under this Act may-
(i) At the time of passing any decree, or at any time subsequent thereto,
(ii) on an application made to it for the purpose by either the wife or the husband (as the
case may be)
(iii) order that the respondent shall pay to the applicant for her or his maintenance and
support, such gross sum or such monthly or periodical sum, as it may think just, for
a term not exceeding the life of the applicant, as, having regard to –
(1) the respondent’s own income and other property, if any,
(2) the income and other property of the applicant,
(3) the conduct of the parties, and
(4) other circumstances of the case,
(iv) any such payment may be secured, if necessary, by a charge on the immovable
property of the respondent.
Thus, it is clear from the section that permanent alimony, as the name suggests, is
granted in matrimonial matters when any decree or subsequent thereto is passed. Under
the Hindu Marriage Act, it can be granted in favour of the wife or husband. The sum is
payable till the life of the petitioner claimant. Court grants such a sum as it may think just
considering certain circumstances. The Court may secure the amount of maintenance by
3 AIR 1979 Bom. 173
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placing a charge on the immovable property of the respondent.
b) The court may amend an order of permanent maintenance (S. 25 (2):-
If the court is satisfied that there is a change in the circumstances of either party at
any time after it has made an order for permanent maintenance, it may-
(i) at the instance of either party,
(ii) vary, modify or rescind any such order in such manner as the court may deem just
(iii) if the court is satisfied-
(a) that the party in whose favour order is passed has remarried.
(b) if such party is the wife, that she has not remained chaste, or
(c) if such party is the husband, he has sexual intercourse with any woman outside
wedlock.
In conclusion, we may say that all matrimonial statutes enshrine the provision of
interim and permanent alimony and maintenance. However, in some statutes, only the
wife can claim maintenance, whereas in other statutes, both wife and husband can claim
maintenance from the other spouse.
******
MAINTENANCE UNDER THE MUSLIM LAW
QUESTION BANK
Q.1. Explain salient features of Muslim Women (Protection of Rights on Divorce Act
1986).
Q.2. Discuss the provisions relating to maintenance of Muslim wife during the marriage
and after dissolution of marriage.
Q.3. Critically examine the provisions of maintenance under Muslim Women’s
(Protection of Rights on Divorce) Act 1986.
Q.4. Persons who are entitled to claim maintenance under Muslim Law? Whether
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divorced Muslim wife can claim maintenance against her husband?
SYNOPSIS
I. Introduction-
II. Maintenance under Quranic Law-
III. Position after Shaha Bano’s Case-
IV. Passing of Muslim Woman (Protection of Rights on Divorce) Act. 1986-
(1) Right of maintenance-
(2) Persons responsible to pay maintenance-
V. Case of Daniel Latifi and position thereafter-
VI. Maintenance of children-
VII. Maintenance of Parents-
I. Introduction: -
The term ‘Maintenance’ in general parlance means ‘the process of preserving a
condition or situation or the state of being preserved’.
In legal parlance, ‘Maintenance’ means ‘the provisions of financial support for a
person’s living expenses.
Certain relations like wives, children, parents, etc., unable to maintain themselves
are entitled to be maintained.
The right of maintenance exists in Hindu and Muslim law; however, it is extended
and specified by passing different laws. We will discuss these personal laws and
subsequent enactments therein.
II. Maintenance under Quranic Law: -
Maintenance under Muslim Quranic law is known as ‘Nafqah’. Maintenance
includes food, clothing and lodging.
A Muslim is bound to maintain his wife so long as she is faithful to him and obeys
his reasonable orders. However, a Muslim is not liable to maintain a wife who is
disobedient or refuses herself to her husband. Thus, the husband is bound to maintain his
wife during the subsistence of marriage even though she can maintain herself or the
husband is poor.
In case of maintenance after divorce, a wife is entitled to maintenance till the date
of expiry of the iddat period. The period of iddat is different in different circumstances,
4
Iddat period is not of a fixed number of days but varies as follows-
(i) For a menstruating woman, the iddat period is equal to three menstrual cycles
after the date of divorce.
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divorce results from her own misconduct.
III. Position after Shaha Bano’s Case:-
Bano’s Case),
Facts—Shah Bano, a 62-year-old Muslim woman, was divorced by her husband. She
claimed maintenance under S. 125 of the Cr. P. C.
The Supreme Court held that- A Muslim woman is entitled to the right of maintenance
even after the expiry of the iddat period as long as she does not remarry or is capable of
maintaining herself.
This judgment brought Muslim women at par with other women. Moreover, the
judgment applied a secular provision of S. 125 of Cr. P.C. to the personal law of
Muslims, giving the right of maintenance beyond iddat.
IV. Passing of the Muslim Woman (Protection of Rights on Divorce) Act. 1986:-
Shah Bano’s judgment erupted hue and cry among radical Muslims. They thought
the judgment was interfering with their personal law. In a panic, Parliament passed an
ironic law, namely the “Muslim Woman (Protection of Rights on Divorce) Act. " in
1986, the Parliament took away the right of maintenance granted to Muslim women
beyond the iddat period. We will discuss some of the provisions of the Act as follows-
According to S. 3 of the Act-
(1) Right of maintenance: -
A divorced woman shall be entitled to—
(a) a reasonable and fair provision and maintenance to be made and paid to her within
the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a
reasonable and fair provision and maintenance to be made and paid by her former
husband for a period of two years from the respective dates of birth of such
children; (c) an amount equal to the sum of mahr or dower agreed to be paid to
her at the time of her marriage or at any time after that according to Muslim law;
and
(d) all the properties were given to her before or at the time of marriage or after her
(ii) For a non-menstruating woman, the iddat period is 3 months after the date of
divorce.
(iii) For a pregnant woman, the iddat period extends until her delivery or
termination of pregnancy.
5
(1985) 2 S.C.C 556
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marriage by her relatives or friends or the husband or any relatives of the husband
or his friends.
(2) Persons responsible for paying maintenance: -
If the above right is not given to her, she may file an application to the nearest
magistrate. The magistrate may make an order within one month of the date of the filing
of the application-
a) directing her former husband to pay such reasonable and fair provision and
maintenance to the divorced woman as he may determine as fit and proper having regard
to the needs of the divorced woman, the standard of life enjoyed by her during her
marriage and the means of her former husband or, as the case may be, for the payment
of such mahr or dower or the delivery of such properties.
b) where a magistrate is satisfied that a divorced woman has not remarried and is not
able to maintain herself after the iddat period, he may make an order directing such of
her relatives as would be entitled to inherit her property on her death according to
Muslim law to pay such reasonable and fair maintenance to her as he may determine fit
and proper.
c) Where such divorced woman has children, the magistrate shall order only such
children to pay maintenance to her. In the event of any such children being unable to pay
such maintenance, the magistrate shall order the parents of such divorced woman to pay
maintenance to her, Provided further that if any of the parents is unable to pay his or her
share of the maintenance ordered by the magistrate on the ground of his or her not having
the means to pay the same, the magistrate may, on proof of such inability being furnished
to him, order that the share of such relatives in the maintenance ordered by him be paid
by such of the other relatives as may appear to the magistrate to have the means of
paying the same in such proportions as the magistrate may think fit to order.
d) Where a divorced woman is unable to maintain herself, and she has no relatives as
mentioned above, or such relatives or any one of them have not enough means to pay the
maintenance ordered by the magistrate, or the other relatives have not the means to pay
the shares of those relatives whose shares have been ordered by the magistrate to be paid
by such other relatives under the second proviso to sub-section (1), the magistrate may,
by order, direct the State Wakf Board functioning in the area in which the woman
resides, to pay such maintenance as determined by him.
V. Case of Daniel Latifi and position thereafter: -
Even after passing the above law, in Daniel Latifi v. Union of India (2001), the
Supreme Court upheld the Constitutional validity of the Muslim Woman (Protection of
Rights on Divorce) Act. 1986, however, the court held that the Muslim husband is duty-
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bound to make reasonable provisions for the maintenance of the divorced wife even after
the iddat period.
Again in 2009, in Shabana Bano v Imran Khan, the Supreme Court re-affirmed
that S. 125 of Cr. P.C. read with the Muslim Woman (Protection of Rights on Divorce)
Act. 1986 states that a Muslim woman can demand alimony from her husband even after
she completes her iddat until her remarriage.
Thus, these decisions and subsequent decisions show that the Supreme Court has
nullified the effect of the above Act in the interest of Muslim divorced women.
VI. Maintenance of children:-
A father is bound to maintain his sons until they attain majority and his daughter
until she is married. He is also responsible for the up-keeping of his widowed or divorced
daughter or a child in the mother's custody.
The father is not bound to provide separate maintenance for a minor or an
unmarried daughter who refuses to live with him without reasonable cause. An adult son
need not be maintained unless he is infirm. The father is not bound to maintain a child
capable of being maintained out of his or her own property. If the father is poor or infirm,
the mother is bound to maintain the children; failing her is the paternal grandfather's
duty.
VII. Maintenance of Parents: -
A Muslim who is able is duty-bound to maintain his parents and grandparents who
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Prof. Santosh D. Bhosale
are needy.
*****
MAINTENANCE UNDER THE CRIMINAL PROCEDURE CODE
(Ss. 125 to 128)
SYNOPSIS
I. Introduction-
II. Maintenance of wife, children and parents (S. 125)-
A. Persons entitled for maintenance (S. 125 (1))-
“Sufficient means”-
“Neglects or refuses to maintain”-
“Applicability to Muslim woman”-
B. Who makes order-?
C. Maintenance to female married child-
D. Interim Maintenance and expenses of proceeding-
E. Consequences of failure to comply with the order of magistrate-
F. When wife is not entitled for maintenance etc.-
III. Procedure, Jurisdiction etc. (S. 126)-
IV. Alternation of amount of maintenance (S. 127)-
V. Enforcement for order of maintenance (S. 128)-
I. Introduction: -
Ss. 125 to 128 of the Cr. P. C lays down the provisions for maintaining wives,
children and parents.
It is a natural and fundamental duty of a man to maintain his wife, children and
parents so long as they cannot maintain themself. This is social legislation with the object
of achieving the social purpose of protecting women, children and age-old parents from
destitution and starvation.
The Provisions are secular in nature and apply to all women irrespective of their
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personal law.
II. Maintenance of wife, children and parents (S. 125):-
S. 125 provides for the maintenance of wives, children and parents.
A. Persons entitled to maintenance (S. 125 (1)):-
(a) If any person,
(b) Having sufficient means,
(c) Neglect or refuses to maintain-
(i) His wife- unable to maintain herself,
(ii) His legitimate or illegitimate minor child (whether married or not)-
Unable to maintain itself,
(iii) His legitimate or illegitimate child (not being a married daughter) who
has attained majority, where such child is, because of any physical or
mental abnormality or injury is- unable to maintain itself.
(iv) His father or mother- unable to maintain himself or herself.
Here, “minor” means “a person who, under the provisions of the Indian Majority Act,
1975, is deemed not to have attained his majority.
Similarly, “Wife” includes a woman who has been divorced by, or has obtained a divorce
from, her husband and has not remarried.
The Supreme Court held that living together as a man and a woman as husband and
wife for a considerable time would raise the presumption of marriage.
“Sufficient means”-
The term “Sufficient means” means not only visible means such as real property
or definite employment but also, if the man is ‘able-bodied,’ he is held to have sufficient
means.
“Neglects or refuses to maintain”:-
Neglect or refusal to maintain may be by words or by conduct. In other words, it
may be expressed or implied from the conduct of the husband.
“Applicability to Muslim woman”:-
(the discussion on the above topic may be read).
B. Who makes order-?
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,
father or mother at such monthly rate as such magistrate thinks fit and to pay the same to
6 (2010) (10) SCALE 602
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such person as the magistrate may from time to time direct.
C. Maintenance to a female married child: -
As discussed above, the magistrate may order the father of a minor married female
child to make such allowance until she attains her majority if the magistrate is satisfied
that the husband of such a minor female child does not possess sufficient means.
D. Interim Maintenance and expenses of the proceeding:-
The magistrate may, during the pendency of the proceeding regarding monthly
allowance for the maintenance, 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.
An application for the monthly allowance for the interim maintenance and
expenses for proceeding 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.
Any such allowance for the maintenance or interim maintenance and expenses for
the proceeding shall be payable from the date of the order or, if so ordered, from the date
of the application for maintenance or interim maintenance and expenses of the
proceeding, as the case may be. Thus, in other words, even though the magistrate takes
some time to decide on the application for interim or final maintenance, he can allow it
from the date of filing the application.
E. Consequences of failure to comply with the order of magistrate: -
Suppose any person so ordered to pay maintenance fails without sufficient cause
to comply with the order. In that case, any such magistrate may, for every breach of the
order, issued 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 allowance
for the maintenance or the interim maintenance and expenses of proceeding, as the case
may be, 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.
F. When a wife is not entitled to maintenance, etc.-
The wife is not entitled to receive an allowance from her husband if
(i) She is living in adultery, or if
(ii) without any sufficient reason, she refuses to live with her husband, or if,
(iii) the husband and wife are living separately by mutual consent.
The magistrate may cancel any order in her favour if the above circumstances are
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found even after passing the order.
III. Procedure, Jurisdiction etc. (S. 126): -
Proceeding under S. 125 may be taken against any person in any district-
(a) Where he is, or
(b) where he or his wife resides or
(c) where he last resided with his wife, or as the case may be, with the mother of
the illegitimate child.
All evidence of such proceedings shall be taken in the presence of the person
against whom an order for maintenance payment is proposed.
maintenance by the wife at her place of residence is maintainable. The court has
jurisdiction to try the petition; it is immaterial that the husband is not residing in its
jurisdiction.
IV. Alternation of the amount of maintenance (S. 127):-
The magistrate may alter the amount of maintenance granted on proof of a change
in the circumstance of any person receiving such amount.
Such change in the circumstances may be due to-
(i) decision of a competent Civil Court for cancellation or varying such amount.
(ii) remarriage of divorced women.
(iii) if a divorced woman has received any amount under any customary or personal law
applicable to the parties.
(iv) if the woman has voluntarily surrendered her right to review maintenance, etc.
V. Enforcement of order of maintenance (S. 128):-
A copy of the maintenance order shall be given without payment to the person in
whose favour it is made. Any magistrate may enforce such order in any place where the
person against whom it is made may be.
*****
7 (1998) 5 SCC 693