1

MAINTENANCE

1.Maintenance of Wife
It refers to the payments which a husband, under certain circumstances is under an obligation
to make to a wife, either during subsistence of marriage or upon separation or divorce.
Basis Hindu Muslim Indian Parsi Criminal
Marriage Women(Protect Divorce Marriage Procedure Code
Act, 1955 ion of Right on Act, 1869 and 1973 (sec. 125)
(sec. 25) divorce) Act , (sec. 37) Divorce
1986 (sec. 4) Act 1936
(sec. 40)
1. Persons Either Divorced Divorced Either Neglected,
entitled to spouse can Muslim Wife or spouse can Deserted divorced
claim claim judicially claim as wife
maintenan separated per
ce wife amendment
1988(Act
no. 5)
2. Persons From the 1.From the From the From the From the present
bound to other husband during husband other or former
pay spouse the period of spouse husband(as per
iddat, the case)
2.children
3.parents
4.other relatives
5. Wakf board
(from either of
them in an
order) after iddat
period.
3.Conditio If he or she 1. Unable to Divorced Wife being 1. unable to
ns to claim is unable to maintain herself or chase and maintain herself
maintain and/or not being judicially unmarried
himself or remarried.(by separated 2. not remarried
herself husband during wife in case of
iddat) divorced wife
2,3,4. if she is
unable to
maintain herself
5. If children or
parents or
relatives are
unable to
maintain her.
4. Discretiona Discretionary Discretion Discretiona Discretionary (Ea
Quantum ry (for term ary (for ry (for term rlier before 2001
of not term not not maximum limit
maintenan exceeding exceeding exceeding was Rs.500)
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ce the life of the life of the life of

appellant) wife) appellant)

5. Factors 1. change Remarriage If the 1. change 1. change in

relevant in husband is in circumstances
for circumstan unable to circumstan sec. 27
modificati ces maintain ces 2. remarriage sec
on/ her 2. 127
cancellatio 2. remarriage 3.adultery
n remarriage 3. 4. refuses to live
unchastity with husband
3. 4. husband without just cause
unchastity had sexual 5. living
intercourse separately by
4. outside mutual consent
resumption wedlock 6. any sum
of with payable on
cohabitatio another divorce under any
n after women customary law
judicial has been paid
separation 7. voluntary
surrender
5. husband
had sexual
intercourse
outside
wedlock
with
another
women

A. HINDU LAW
There are two statues that provide for maintenance i.e. Hindu Marriage Act,
1955 and Hindu Adoptions and Maintenance Act, 1956.
As per Hindu Adoptions And Maintenance Act, 1956 “maintenance” includes- in all cases,
provision for food, clothing, residence, education and medical attendance and treatment (Sec
3(b))
 A divorced wife is included in expression wife.
 The obligation to pay arises out of status of marriage and jural relationship of
both &begins with marriage. (in Muslim law it does not begins with marriage)
 A women marrying an already married man (subsisting marriage) is not
entitled to maintenance.
 This obligation of husband is personal obligation.
 The wife is entitled to be maintained during her lifetime.
 A wife who has ceased to be Hindu can’t claim maintenance.
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 A Hindu wife is entitled to maintenance if she lives separate from her husband
for a justifiable cause like husband’s desertion, cruelty , leprosy, another wife is living,
concubine, conversion or any other justifiable cause.(Sec 18(2) of HAMA)
 The arrears of maintenance are recoverable. (In Muslim law the arrears are
not recoverable)
 The court has power to pass interim orders of maintenance incidental or
ancillary to main power.(But it is not expressly mentioned in HMA OR HAMA)
 Sec 24 of HMA provides for maintenance pendente lite and expenses for
proceedings (for court proceedings) and Sec 25 provides for permanent maintenance and
alimony.
 For interim maintenance only income of the claimant has to be taken into
consideration and not his property and assets.
 Husband’s actual as well as potential earning (his disposable income) is seen
while deciding maintenance. There is a presumption that every able bodied man has capacity
to earn and maintain his wife.
 If the wife’s earning is sufficient to maintain herself and live in
comfort, husband could be exempted from paying maintenance.
 Death of a husband does not extinguish alimony order and maintenance & it is
to be paid from the estate of deceased husband but only for the period till his death.
 Maintenance has been granted to a wife of void marriage under HMA 1955 in
few cases.
 An application for permanent maintenance can be filed only in the court in
which original petition in a matrimonial cause was filed.
 Under HMA order of maintenance can be secured by making it charge on
property of non claimant ( Same provision exists in Parsi law & Christian law)
 Under all matrimonial statutes, the divorce court while passing the orders may
require the party to make periodical payments to the applicant or to make payment in lump
sum.
 Under matrimonial laws if the husband is ready to cohabit with the wife,
generally, the claim of wife is defeated. However, the right of a married woman to reside
separately and claim maintenance, even if she is not seeking divorce or any other major
matrimonial relief has been recognized in Hindu law alone. A Hindu wife is entitled to reside
separately from her husband without forfeiting her right of maintenance under the Hindu
Adoptions and Maintenance Act, 1956.

B. CHRISTIAN LAW
 The provisions for maintenance under Christian law are contained in Indian
Divorce Act 1869 as amended in 2001 under Sec 36(Alimony pendente lite) and Sec
37(permanent alimony).Sec 38 says that the Court may direct payment of alimony to wife or
to her trustee.
 Permanent alimony can be granted only in case of dissolution of a marriage or
judicial separation. Therefore if a marriage is void wife is not entitled to maintenance.(In
Hindu and Parsi law in few cases maintenance is awarded in case of void marriage)
 Orders of permanent alimony and maintenance can be made only at the time of
passing the decree and not subsequent to it as permitted in Hindu and Parsi law.
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 The Act talks about the ‘ability’ of non-claimant but not about the ‘income &
property’ of non-claimant. (In Hindu law if the wife is rich and able to maintain herself,
husband may be exempted from paying maintenance)

C. PARSI LAW
 The Parsi marriage and Divorce Act 1936 provides for maintenance
pendente lite (Sec 39) and permanent alimony and maintenance (Sec. 40). Sec 41 says
that the Court may direct payment of alimony to wife or to her trustee.
 Maintenance has been granted to a wife of void marriage in few cases.

D. MUSLIM LAW
 Maintenance is called nafaqa under Muslim law which signifies food, daily
expenditure and logic.
 Husband’s obligation to maintain his wife arises due to status arising out of a
valid marriage or a pre nuptial agreement.
 Wife’s right of maintenance is a debt against husband & husband has to
maintain his wife even if she is rich. It is an absolute right of wife.
 In Muslim law the obligation to maintain wife does not commence on
marriage. (But in Hindu law it commences with marriage)

Muslim personal Law

 A husband is bound to maintain his wife after she attains puberty so long as
she is faithful to him & obeys his reasonable orders and is available to him at all reasonable
times. She is entitled to maintenance by virtue of her being a wife.
 Husband is not bound to maintain a wife who refuses herself to him or is
disobedient. The wife’s right to maintenance is based on three conditions: (1) validity of the
marriage contract; (2) the wife granting her husband access to her at all lawful times
(tamkeen); and (3) the wife obeying her husband’s lawful commands. If the wife fails to
fulfill any of these conditions, she loses her right to maintenance.
 The Dissolution of Muslim Marriage Act, 1939 gives a Muslim wife a ground
to seek dissolution of marriage if the husband neglects her or fails to provide her maintenance
for a period of 2 years
 A husband‘s duty to maintain his wife extends only upto period of iddat (3
menstrual courses or 3 lunar months)
 Wife is given priority on children as she is asl (root) & child is fas (branch)
 It does not depend on solvency of husband or insolvency of wife.
 If the wife is pregnant the iddat period extends till time of delivery or abortion.
 A divorced wife is entitled to unpaid dower, which becomes payable
immediately after divorce.
 The widow is not entitled to maintenance during the iddat of death as she is not
included in list of dependants.
 In Hanafi law the rank & financial position of both the parties are considered
while in Shafei the position & needs of wife is considered & in Shia wife’s requirements are
considered.
 In Mohammad Ahmed Khan v. Shah Bano Begum it was said that if a
divorced wife is able to maintain herself husband’s liability to provide maintenance is ceased
with expiration of iddat. But if the wife is unable to maintain herself after iddat she is entitled
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to recourse to Sec 125 (Cr.P.C) & claim maintenance. The controversies aroused by this case
led to codification of Muslim women (Protection of Right on Divorce) Act, 1986.
 A Muslim wife is not entitled to claim past maintenance except in Shafei law.
 A wife is not entitled to maintenance if she deserts husband.

Muslim Women (Protection of Right on Divorce) Act, 1986

 This act applies only to divorced wife.
 An application pending at the time of commencement of act is governed by the
act (Sec 7).
 A woman who has been divorced prior to the act is entitled to seek relief under
it.
 Under MWA a divorced wife is entitled to a reasonable and fair provision and
maintenance during period of iddat (Sec 3). If she maintains child born to her, maintenance
and reasonable provision would extend to 2 years. She is also entitled to mahr. The word
provision indicates that something has to be provided in advance for meeting the needs of
divorced wife.
 Wife is not entitled to provisions of Cr P C (sec 125), unless both the parties
exercise their option to be governed by the code under Sec 5 of the MWA.
 If husband fails to provide her maintenance she can file an application to the
magistrate who has to pass order in 1 month keeping in mind husband’s means & whether he
has failed or neglected to maintain her.
 As per Sec 4 if a Magistrate is satisfied that a divorced woman has not re-
married 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, and where such
divorced woman has children, the Magistrate shall order only such children to pay
maintenance to her, and 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. If all of them are unable to pay her maintenance the Magistrate may, by
order, direct the State Wakf Board established under Section 9 of the Wakf Act, 1954, or
under any other law for the time being in force in a State, functioning in the area in which the
woman resides, to pay such maintenance as determined by him.
 In Kunhammed v. K Amina it was held that wife is entitled to fair &
reasonable provision for her livelihood after the period of iddat apart from maintenance
during iddat period.
 In the case of Danial Latifi & Anor v. Union Of India the confusion regarding
Sec 3 was cleared & it was held that it lays 2 obligations on husband i.e. to make fair and
reasonable provision for his wife extending beyond the iddat period till she remarries to be
made within iddat period and to provide maintenance to her which is not confined to iddat
period. It was also held by the Supreme Court that a woman who has not remarried and who
is unable to maintain herself after the iddat period can proceed against her relatives (including
children & parents) or else the wakf board. It was clearly said that the Act does not violate Art
14, 15 and 21 of the Constitution. Thus this resulted in removal of discrimination & hardship
caused to Muslim women.
 Sec 7 of the act clearly indicates that there is no inconsistency between act &
sec 125(Cr P C).

Agreements
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 Certain anti nuptial or post nuptial agreement can be entered between the
spouses. e.g. A wife can validly stipulate that if husband ill-treats her or takes second wife
she is entitled to claim maintenance. She is also entitled to special maintenance
called kharch-i-pandan, guzara, mewa-khori, if stipulated in an antinuptial agreement.
 An agreement for future separation and maintenance is void and against public
policy
 Under all schools of law except Shafei law, a wife can’t recover the arrears of
maintenance unless fixed by court or agreement.
 If the husband is minor than too he is obligated to pay maintenance, if he has no source
of income his father is entitled to pay maintenance.
 Under the Sunni law the liability of husband to maintain pregnant women whom he has
divorced ceases at her confinement. But there is difference of opinion in Hanafi law.
 The liability to maintain is not, in India, affected by either party ceasing to profess
Muslim religion. In Hanafi law wife’s right to claim maintenance is lost if she profess any
other religion than Islam. (But in Hindu law a wife who has ceased to be Hindu can’t
claim maintenance)

E. CRIMINAL PROCEDURE CODE

 Sec 125 deals with maintenance and it is applicable to all religions.
 The magistrate 1st class of the place has the jurisdiction to entertain a petition.
 Relief under it is speedy (summary proceedings) & available irrespective of
pending matrimonial proceedings.
 Wife also includes divorced wife, who has not remarried unlike the earlier
code.
 Wife must be unable to maintain herself.
 The basis is refusal or neglect of husband to maintain wife & the criterion is
whether husband is capable of earning sufficient means.
 Burden of proof lies on husband to prove that he is not negligent.
 The burden of proof is on wife that she is legally wedded wife. If the marriage
is void than too wife is entitled to maintenance if proof of required ceremonies or
presumption of cohabitation is there.
 There are 2 modes of execution i.e. warrant for levying fines & imprisonment
upto 1 month or till the payment is made. (Sec 125(3))
 In Syed Ahmad v. NP Taji, J Hegde held that if there is conflict between law
enacted and by legislature & personal law, the former prevails.
 In Muslim law if the wife is unable to maintain herself after iddat period, she
can take recourse to Sec 125.
 Wife’s Right to maintenance comes to an end with her remarriage.
 After amendment of 2001, court can order for interim maintenance &
proceedings expenses.
 Death of a husband does not extinguish alimony order and maintenance & it is
to be paid from the estate of deceased husband but only for the period till his death.
 Under Sec 127(3) if the wife has already received her due under personal law
or customary law she is not entitled to maintenance under Sec 125.

2. Maintenance of children and parents

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The obligation of parents to maintain children arises both out of blood relationship and moral
duty, which is reinforced by statues. The duty of maintaining aged parents is necessary to be
enforced legally as well as morally for happiness of our race.

Basis Hindu Muslim Indian Parsi Criminal

Adoption and Personal Law Divorce marriage procedure
Maintenance Act, 1869 and Code 1973
Act, 1956 (sec. 42) Divorce (sec 125)
(sec. 20) Act 1936
(sec 49)
1. Persons 1. legitimate or 1. minor Minor Minor 1. Minor
entitled to illegitimate legitimate children children child whether
claim children children legitimate or
maintenance 2. aged or illegitimate,
infirm parents 2. major whether
(parent include legitimate married or
step mother) children unmarried
3. unmarried 2. major child
daughter 3.illegitimate whether
As per Hindu children legitimate or
marriage illegitimate,
Act1955(sec 4.parents and not being
26) grandparents, married
1.minor paternal or daughter
children maternal 3. parents,
2. parents neglected or
refused to be
maintained
2. Persons 1.from parents 1. primarily on Left to the Left to 1. father
bound to father, discretion the having
maintain 2.from secondarily on of court discretion sufficient
children mother else on of court means
grandparents
3.from her 3. only the 2. father
parents mother is bound having
to maintain , not sufficient
father means
4. from
their sons 3. their sons
3.Conditions 1. so long as 1. if the children - - 1. unable to
to claim he/she is are unable to maintain
minor maintain itself and in
themselves: in case of a
2. if they are case of sons till married
unable to they attain minor female
maintain majority and in child if her
themselves case of husband is
daughters till unable to
3. if she is they are married maintain her
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unable to 2. unable to
maintain 2. if they are maintain
herself infirm itself by
reason of
4. if they are physical or
unable to mental
maintain abnormality
themselves 3. unable to
maintain
themselves
4.Quantum Discretionary Discretionary - - discretionary
of
maintenance
5. Factors Change of Conversion or If they - Change of
relevant for circumstances Change in refuse to circumstances
modification/ circumstances(in stay with
cancellation all 4 conditions) him
without
just cause

A. HINDU LAW
Hindu Marriage Act 1955
The court grants maintenance on the basis of Sec 24, 25 & 26 of HMA.

Hindu Adoption and Maintenance Act, 1956 (sec. 20)

CHILDREN
 The obligation to maintain children lies equally on both mother & father.
 Both legitimate & illegitimate children are entitled to maintenance.
 The liability of parents to maintaining the children until they are minors (Sec
3(c)).
 If an unmarried daughter is unable to maintain herself she is entitled to claim
maintenance.
 Parents have personal obligation to maintain children.
 Father is obligated to maintain his illegitimate child till he is minor but not
after he attains majority. He is not entitled to maintain another man’s child.
 An adult married daughter is explicitly excluded whatever her condition &
circumstances.
 Hindu is required to maintain both natural as well as adopted children.
 If they cease to be Hindus their claim for maintenance is forfeited.
 Under Sec 19 father-in-law has no personal obligation to maintain daughter-in-
law but the obligation is confined to coparcenary interest of the father-in-law.

PARENTS
 A childless stepmother is entitled to claim maintenance but childless step father
is excluded.
 It is a personal obligation (free from ancestral & personal property).(Under sec
20)
 Both sons and daughters have equal duty towards parents.
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 If they cease to be Hindus their claim for maintenance is forfeited.

 Only parents who are financially unable to maintain themselves are entitled to
maintenance.
 The child is ‘bound’ to maintain parents unlike Cr.P.C
 It does not confer any legal right on parents to live in the house of son along
with his family.

DEPENDANTS
 Under Sec 21 & 22 dependants can claim maintenance against the property of
deceased and not against heirs personally & jointly.
 A dependant can claim maintenance if he has not received share in deceased’s
estate.
 Dependants as per Sec 21: mother, father, widow, minor legitimate son, minor
illegitimate son, minor legitimate unmarried daughter, minor illegitimate unmarried daughter,
widowed daughter, son’s widow, grand son’s widow, son’s unmarried daughter, grandson’s
unmarried daughter, son’s minor son & grandson’s minor son.
 The parents of Hindu have a right to maintenance against person who inherit
their son’s or daughter’s property.
 All the members of the joint family a right of maintenance against joint family
property.

B. MUSLIM LAW
CHILDREN
 A Muslim father is under an obligation to maintain his sons until they attain
puberty (15 years) and daughters till they are married.(of any creed or religion)
 Father is not liable to maintain a child who is capable of maintaining himself
out of property.
 Custody to the mother does not relieve father from this obligation.
 If the father is poor, mother has to maintain them & can recover it from father
when he is in condition to pay and if both are poor, grandfather has to maintain them.
 Father has no obligation to maintain his illegitimate children*(In Hindu law
father is obligated to maintain both legitimate and illegitimate children) except Hanafi
school where there is obligation of nurture upto 7 years.
 As regards illegitimate child, mother is obligated to maintain him.
 It can be a charge on father’s property.
 Only under Hanafi law mother is bound to maintain her children.
 In case of adult disabled child, if capable both father & mother should maintain
him in ratio of 2:1.
 If the father is entitled to the custody of daughter & offers to keep her with him
she is entitled to maintenance only if she lives with him.
 If father has not executed the decree of guardianship & children are with their
mother, than too he is obligated to pay maintenance.

PARENTS
 Every destitute mother, irrespective of whether she has capacity to earn or not
is bound to be maintained by her sons & daughters jointly and equally. (In Hindu law if
parents have capacity to earn they are not entitled to maintenance at all and equal
importance and rights are given to both mother and father)
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 Every destitute father, who is unable to maintain himself, is to be maintained

by her sons & daughters jointly and equally if they earn something.
 If the children cannot provide separate maintenance for parents, they are
required to let the parents live with them. (In Hindu law the parents can’t force their
children to take them to his/her house)
 If a child can maintain only one of them, Hanafi law gives priority to mother
while as per Itna Ashari law it is to be divided between both the parents.
 Unlike modern Hindu law the difference of religion between a parent and
child, is not taken into consideration by Muslim law.
 Both granddaughter & grandson are required to maintain their needy
grandparents, both paternal & maternal, if they do not have their own children.
 The maintainer should be in easy circumstances & the claimant should be poor.
 Even if the parents are able to earn they are to be maintained (Hanafi Law). But
under Shia law such parents are not entitled to maintenance.
 Persons who are not themselves poor are bound to maintain their poor relations
within prohibited degrees in proportion to the share they will inherit from them.
 A Muslim has no obligation to maintain his relations by affinity.

C. PARSI AND CHRISTIAN LAW

 The Parsis & Christians have no personal laws providing for maintenance for
the parents like Hindu and Muslim law. Parents who wish to seek maintenance have to apply
under provisions of Cr.P.C.
 Under Indian Divorce Act, 1869 (Sec.41- 44) and Parsi marriage and
Divorce Act 1936 (Sec 49) the parents are entitled to provide maintenance for minor
children.
 Maintenance can only be provided where there is matrimonial litigation
between the parties of marriage. (In Hindu and Muslim law it can be granted
independent of and in absence of any matrimonial litigation.)

D. CRIMINAL PROCEDURE CODE (Sec 125)

CHILDREN (Sec 125(1) (b) and (c))
 It is a secular law applicable to all.
 A child can claim maintenance independently of any matrimonial
litigation between parents.
 A father is obligated to maintain his legitimate, adopted as well as
illegitimate child.
 A child who has attained majority is entitled to maintenance in condition of
physical or mental disability.
 A minor married daughter is entitled to maintenance under certain
circumstances.
 Use of the pronoun ‘His’ denotes any person against whom maintenance can be
claimed.
 Child must be unable to maintain himself, to claim maintenance.
 Paternity is the basis of obligation.
 If child refuses to live with father on his invitation, than too the father has the
obligation to maintain them.
PARENTS (Sec 125(1) (d))
 The obligation to maintain father and mother lies only on legitimate child.
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 A daughter has no obligation to maintain parents. But in the case of VM

Arbat v. KR Sawai the Supreme Court held that sec 125(1) (d) imposes liability both on son
& daughter to maintain their parents.
 It is necessary to prove neglect or refusal of child and inability to maintain
oneself.
 A parent who is unable to maintain himself/herself may file an application for
maintenance from any of his children & other children cannot raise any objection to it.
 A parent’s right is not dependent on his having properly discharged his duties
and obligations against their children.
 Father & mother include adoptive father & adoptive mother also.
 Stepmother is also entitled to claim maintenance if she is childless & unable to
maintain herself.

3. Maintenance for husbands

 The husbands too many times need to be maintained by their wives. In Hindu
Law Sec 24 & Sec 25 of HMA speaks of maintenance to husband and pendente lite
respectively. In Parsi law husband can claim maintenance under Sec 39 of PMDA. But the
Christian law, Cr.P.C and Muslim law do not provide for maintenance for the husband.
 In the case of Lalit Mohan v. Tripta Devi maintenance was granted to husband
who had met with an accident and lost his mental balance & was unable to maintain himself.