MAINTENANCE UNDER INDIAN LEGAL FRAMEWORK:
The breakdown of the Joint Family system due to advancement in society through influence of western nations led to initiation of the nuclear family. The dismantling of the Joint family resulted in withdrawal of the support system which acted as a buffer to weather difficult periods during the early phase of marital life. As a result, a couple had to find both the emotional and monetary support within their own parameters which perpetually concluded in a stressful life. The outcome resulted in collapse of family and amounted to separation and divorce. The individual started thinking that living life by own gives more comfort rather than sharing your life with family as it costs more and degrades the quality of life. These thoughts generated incompatibility and discomfort between the spouses. The children also have to undergo the psychosomatic clash due to differences between their parents. The wife and the children required sustenance and the law stepped into ensure that they are not subjected to distress.
Right to maintenance is one of the vital fractions of the personal law. Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents, at the same time one should also keep in mind that maintenance not only confined to basic necessities but it also includes the things necessary for comfort and status in which the person entitled is reasonably expected to live.
It is seen that under the Code of Criminal Procedure, right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. The maintenance amount can get higher if it is a long marriage. The parents can also claim maintenance from their grown up earning children. The concept of ‘maintenance’ in India is extensively dealt under Section 125 of the Code of Criminal Procedure, 1973 and the personal laws. This concept further stems from Article 15(3) reinforced by Article 39 of the Constitution of India. Section 125 of the CrPC is basically secular in nature. This Section was introduced, to safeguard the wife, legitimate and illegitimate child (not being a married daughter) who has not attained majority and also those who have attained majority but where by reason of any physical or mental abnormality or injury unable to maintain itself or a father or mother unable to maintain himself or herself.
Due to the secular nature of this act this does not affect the various personal laws and also the personal laws do not affect this section. It will be relevant to specify herein that other than Code of Criminal Procedure, some personal laws also deals with maintenance. Laws of Maintenance under different personal laws in India can be classified into four head
- a. Maintenance under Hindu Law:- Under Section 24 of Hindu Marriage Act, 1955, either the wife or husband can apply for interim maintenance. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. The provision is silent on the quantum of maintenance and it is upon the discretion of the court to determine the quantum. Similarly, maintenance pendent lite is to be provided to the claimant who does not have an independent income and the financial need of litigation expenses has to be provided by the other spouse.
Section 3(b)(i) of Hindu Adoption and Maintenance Act, 1956, defines maintenance as “provision for food, clothing, residence, education, and medical attendance and treatment.” In the case of unmarried daughter, it also includes her marriage expenses.
Section 20 of Hindu Adoption and Maintenance Act, imposes an obligation upon the parents –mother and father, both equally to maintain the children – both legitimate and illegitimate. This is a unique feature of the Hindu law where both the parents are equally responsible to maintain the children. Section 20(2) of this act lays down that the children are entitled to maintenance during their minority. This right of maintenance for the daughter is extended till she gets married. The parents are obliged to bear her marriage expenses. However even after marriage a minor married daughter, if she is unable to maintain herself then she can claim for maintenance under section 125 CrPC. When an application has been filed under section 24 and 25 of Hindu Marriage Act, 1955, the children are also entitled to get maintenance if the claimant has the responsibility of maintaining them i.e. the claimant’s right to maintenance also includes the right of maintenance of the children. Section 26 of Hindu Marriage Act, 1955 also provides that in any proceeding under the Act the court can from time to time pass interim orders and make provisions in respect of the custody, maintenance and education of the minor children.
The Hindu Adoption and Maintenance Act is the first statue in India, which imposes an obligation on the children to maintain their parents. The obligation to maintain is not only limited to the sons but it also extends to the daughters. Under Hindu Adoption and Maintenance Act, both the mother and the father have an equal right to claim maintenance.
- Maintenance under Muslim Law:- Maintenance of a divorced Muslim wife has always been a highly controversial and debatable social issue. The issue of maintenance of Muslim wife has been a very difficult path as compared to Hindu wife. A Muslim man is bound to maintain his divorced wife and minor children till she gets remarried. A divorced wife is entitled to maintenance during her period of probation (iddat). In case of divorce, the wife cannot re-marry a second time for three months and in the case of death of the husband for four months and ten days. This period is called iddat. Because of this condition, she is entitled to get maintenance for this period. If the husband fails to pay prompt Mehr on the demand of his wife or due to his cruel treatment, the wife leaves his society, she is entitled to maintenance.
Where a wife is turned out or ill treated so as to make her impossible to stay or live together with her husband, or where the breach between the wife and husband is irremediable she is entitled to maintenance by living separately from him u/s. 125 of the Code of Criminal Procedure 1973.
In case of Legitimate Children the maintenance of the children is rest upon the father. Thus a father is bound to maintain his sons until they attain puberty and his daughter until they are married. In case of Illegitimate Children, under Muslim Law the father is not bound to maintain illegitimate children. However under section 125 Code of Criminal Procedure , the father is bound to pay a reasonable amount even if the mother refuses to surrender the illegitimate child to him.
- Maintenance under Christian Law:- The Indian Divorce Act, 1869 governs maintenance rights of a Christian wife. The Indian Divorce Act, 1869 recognizes the right of only a wife to maintenance-both alimony pendente lite (during pendency of a suit) and permanent alimony. However the husband doesn’t have the same rights under the said Act. If a divorced Christian wife cannot support her in the post divorce period she need not worry as a remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the court may order, till her lifetime.
- Maintenance under Parsi Law :-. The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband’s net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife’s own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried.
The personal laws of the Indian community viz., Hindus, Parsis, Christians and Muslims provide for maintenance or alimony. But these are mostly made available only to the married partners when they seek for matrimonial relief under their respective marriage laws. The law in this area is cumbersome, expensive and lacks uniformity. The conflictive personal laws though have their own independent existence, has its influence to play on Section 125 Cr. P.C. We should always remember that mother is the first teacher and mentor of his child. It is a historical fact that no society ever lived in peace until their women folk are at peace. Although Maintenance should be gender neutral and should be applicable both for husband and wife respectively for the greater perspective of the society. Proper implementation is necessary to abide by the Law of the Land and ultimately to make it a grand success.