Marriage from ancient times in India is said to be a pure bond that couldn't be broken seven times. Marriage has lost its sacred nature someplace among the current Hindu laws and ever-growing society. The idea of most laws in India is brought from English laws, without seeing the nature and exposure of the Indian culture. It has its pros and cons.
We believe ending a toxic wedding or relationship is good rather than staying in it.
Divorce occurs when a court or competent body approves a marriage's dissolution. The couple is later not tied to act the duties inside a wedding. Once the divorce is approved, the marriage bond is said to be broken. In this article, we will look into the Maintenance and the claiming of maintenance under different laws
In India, interpersonal and general laws govern marriages and divorces. The law applicable to women depends on their religion and marriage rituals. This article presents various maintenance laws reserved for divorced women of different religions in India.
Maintenance after divorce: An Introduction
What does Maintenance mean?
Maintenance refers to an amount set by the court to give the partner for the fulfillment of basic needs. The main reason behind such Maintenance is to ensure the right of the divorced spouse who doesn't have monetary support to live a quality life.
Maintenance amounts can be provided in a lump sum, annual, or monthly amounts for that. It is divided into three types
- Permanent Maintenance
- Interim Maintenance
In some instances, the wife is allowed to ask for maintenance from the husband for her and her child's sustainable life. It is provided to deliver the wife with known costs and to put her in nicety by minimizing the loss.
The Hindu Marriage Act of 1955 gives the couple the right to claim maintenance; Some further advantages are given to the female under the Hindu Adoption and maintenance act. It applies to Hindus only.
Moreover, the law to give maintenance vary from the act. The amount of maintenance varies upon:
- The condition of living of the couple.
- The income of husband and wife
- the people dependent on the spouse for survival.
The couple or the court can decide on the amount for maintenance. The amount can be a pain on a one-time, lump-sum, or monthly based. There are certain reasons based on which there is no maintenance given.
Following are the certain acts that exist under Hindu law:
Hindu Adoptions and Maintenance Act, 1956
As per the Hindu Adoptions and Maintenance Act, 1956, (“HAM Act”) “maintenance” includes― in all cases, provision for food, clothing, residence, education, and medical attendance and treatment; in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.
Hindu Marriage Act, 1955
Interim Maintenance under Section 24 of the Hindu Marriage Act, 1955 states both a husband and a wife with no independent income can apply to the Court for interim maintenance. The Court can direct the respondent to bear the expenses of the proceedings and provide monthly sums to the applicant, as it deems fit, during the proceedings.
For permanent Divorce alimony and maintenance, a court after receiving an application by either the wife or the husband, orders that the respondent pays to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum concerning the respondent’s income and other property, as the court seems just.
If the court is satisfied that the circumstances change for either party at any time after it has made an order for maintenance, it may modify or rescind the order.
A court may modify or rescind the order passed if it is satisfied that the party in whose favor an order was made, has re-married or the party (if, wife) has not remained chaste, or if the party (if, husband) has had sexual intercourse with any woman outside wedlock.
Note: - Any marriage in contravention of sections 5 & 11 of the Hindu Marriage Act, cannot be a valid marriage. Such a woman cannot recourse maintenance under section 25 of the Hindu Marriage Act to claim maintenance.
Hindu Adoption and Maintenance Act, 1956 (“HAM Act”)
This section contains maintenance of the wife. It states provisions for a Hindu wife to claim maintenance from her husband during her lifetime while living separately from her husband. A Hindu wife is entitled to reside separately from her husband without forfeiting her maintenance right under the Hindu Adoptions and Maintenance Act, 1956. Section 23(2) of HAM ACT states the factors to consider in determining the amount of maintenance payable to the wife, children, and aged parents, and they are as follows –
- The position and status of the parties.
- The reasonable wants of the claimant.
- If the claimant is living separately, whether the claimant is justified in doing so;
- The value of the claimant’s property and any income derived from such property, or from the claimant's earnings or any other source;
- The number of persons entitled to maintenance under this Act.
Earlier, a Muslim woman could claim maintenance only under the Muslim personal law as laid down in the Quran under which a husband was liable to pay maintenance to his wife only during the period of 'Iddat'. Iddat Period" means, in the case of a divorced woman:
- three menstrual courses after the date of divorce, if she is subject to menstruation.
- three lunar months after her divorce, if she is not subject to menstruation: and
- if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child, or the termination of her pregnancy, whichever is earlier.
However, the Supreme Court has, vide its landmark judgment in the Shah Bano case held that a Muslim woman is entitled to claim maintenance under Section 125 of the Criminal Procedure Code, 1973 irrespective of Muslim personal law.
The section states the order for the maintenance of wives, children, and parents and gives a specific purpose to protect women and children and to prevent vagrancy and destitution among them. This law is not community-centric or religion centric and perhaps, one of the most secular enactment ever made in the country.
It is an instrument of social justice and aims to render justice based on equality for the wife, in particular, maybe divorced including a divorced Muslim wife. As per the law, if any person having sufficient means neglects or refuses to maintain— (a) his wife, unable to maintain herself, 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.
Note - if a such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
A wife is entitled to claim both interim maintenance as well as permanent maintenance under Section 125 of the Criminal Procedure Code, 1973.
Muslim Women (Protection of Rights on Divorce) Act, 1986
As per the act, a divorced woman shall be entitled to—
- A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.
- Where she maintains the children born to her before or after her divorce, a reasonable and fair provision, and maintenance are to be made and paid by her former husband for two years from the respective dates of birth of such children.
- 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 thereafter according to Muslim law.
- All the properties were given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
Order for payment of maintenance
- Suppose a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period. In that case, he may make an order directing her relatives who 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.
Note - if relatives are not able to provide maintenance, then the magistrate can order the State Waqf to pay the amount.
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Divorce Act, of 1969, governs the provisions of maintenance for Christian Law. It laid down various provisions for interim maintenance and permanent maintenance.
The act grants the rights to the wife to present a petition for expenses of the proceedings and alimony pending the suit and the power to order permanent alimony. In the cases where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order (at its discretion) the husband to maintenance
If the court thinks that either the wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the suit, it may, on the application of the wife or the husband, order the defendant to pay to the plaintiff, the expenses of the suit, and such weekly or monthly sum (as the Court may think to be reasonable seeing the income and expenses of the defendant).
Section 40 - A court can order that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum (for the full life of the plaintiff) as having regard to the defendant's income and other property. Also, if the court thinks that there is a change in the circumstances of either party at any time, the court may modify the order.
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In addition to these interpersonal laws, there are general laws as well under the Criminal Procedure Code, 1973, and the Protection of Women from Domestic Violence Act, 2005 that provides interim and permanent maintenance to the women of India after the divorce.
How much maintenance can a wife demand from her husband?
Supreme Court orders that a wife should be paid 25% of the husband's salary as maintenance.
Is a financially independent woman eligible for alimony?
The living conditions and income of the wife determine whether she is eligible for alimony.