This article written by Lokendra Rana, Advocate founder of Rana & Rana Law Firm
General Point of View:
It is true that marriages are considered to be made in heaven with nuptials believed to be pre-determined by destiny, but there is so many issues arrises after marriages. However, man has ensured that with the course of time, this match is fettered with a string of legislation. These legislations govern all the areas revolving around the concept of marriage, from the initiation to the breakdown of the marriages. The entire concept of maintenance was introduced, so that if there is a spouse who is not economically independent then the other spouse would provide help, so that they can make a healthy living.
What is maintenance under Hindu Law?
Maintenance is the amount payable by the husband to his wife in case she is unable to maintain herself either during the subsistence of the marriage or upon separation and divorce. Maintenance should include necessarily include a provision for residence. There are various laws that are applicable to the matters of maintenance of wives, children and their dependent and the Acts.
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These Acts fall within the within the jurisdiction of the Family Courts which are established under the provisions of the Family Courts Act, 1984. The Acts are as follows:
| 1 | Code of Criminal Procedure, 1973 (Section 125-128) |
|---|---|
| 2 | Family Courts Act, 1984 |
| 3 | Hindu Adoption and Maintenance Act, 1956 |
| 4 | Hindu Marriage Act, 1955 |
Note:- According to Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956, Maintenance includes: In all cases, provision for food, clothing, residence, education and medical attendance and treatment. In the case of unmarried daughter, the reasonable expenses of an incident to her marriage.
Temporary Maintenance (Pendente Lite):
Temporary maintenance is granted by the court during the pendency of the proceeding of separation or divorce to meet with the need of the petitioner. Under Section 24 of the Hindu Marriage Act, 1955 either of the spouses can be granted relief if the court is satisfied that the petitioner has no independent income to sustain themselves or to get the necessary expenses of the pending proceedings under the Act.
Furthermore, Section 36 of the Special Marriage Act,1954 provides a provision for the wife to seek expenses from the husband if the district court is satisfied with the fact that the petitioner does not have an independent income that is sufficient to support herself or to get the necessary expenses of the pending proceedings under Chapter V or VI of the Act. All these provisions clearly mention that the application for maintenance has to be disposed off within sixty days of the service of notice of the respondent.
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Permanent Maintenance:
The maintenance that is granted permanently after the disposal of the proceedings for a separation or divorce is referred to as Permanent Maintenance.
According to Section 25 of the Hindu Marriage Act,1955, the Applicant being either the husband or wife is entitled to receive his or her maintenance from the spouse in the form of a gross sum or monthly sum for a term not exceeding the lifetime of the applicant or until the applicant remarries.
Section 18 of Hindu Adoption and Maintenance Act, 1956, states that the Hindu wife is entitled to be maintained by her husband during the span of her lifetime. The wife is also entitled with the right to separate residence and maintenance if any of the conditions provided under Section 18(2), which are cruelty, leprosy, concubine living in the same residence, conversion, is fulfilled until the wife marries again.
It is also important to note that under Section 19 of this Act, there is a provision which states that a widowed wife is entitled to be maintained by her father-in-law.
Under Section 125 of the Code of Criminal Procedure, there are provisions for maintenance not only for the wife, but also for the child and the parents. The Court might order the husband, who has a sufficient income, to provide monthly maintenance to his wife who does not have the sufficient means to support herself.
However, the wife is not entitled to any maintenance if:
⇛She is living in adultery.
⇛She refuses to cohabit with the husband without any sufficient reason.
⇛If the husband and wife live separately with mutual consent.
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Maintenance under Cr.PC:
Section 125-128 of the Criminal Procedure Code provides: that the provisions for maintenance are available under this Act. Under this Section, if the husband neglects or refuses to maintain his wife, child and parents then they can claim for maintenance. Section 125-128 provides for a speedy and inexpensive remedy to maintain their wives, children and dependent parents. Therefore, under this section maintenance is available not only to a married wife, but extends to divorced wives also. A wife cannot claim for maintenance if she is living in adultery or she refuses to cohabit with her husband without any reason or if she remarries again. The husband can refuse any order of maintenance on the basis of any one of these grounds.
Maintenance under this law is only limited to the claims of the wife and not by the husband. In the case of Savitaben Somabhai Bhatiya v. State of Gujarat, the Supreme Court held that the term “wife” appearing in Section 125(1) only means legally wedded wife. However, in the case of D. Velusamy v. D. Patchaiammal and Chanmuniya v. Virendra Kumar Singh, the Supreme Court ruled that “Wife” includes a woman who has been divorced or has obtained a divorce from her husband and has not remarried again. In such cases the wife can claim for maintenance from the husband.
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Status of Second Wife:
Under Section 17 of the Hindu Marriage Act, 1955, a second marriage is considered to be void and makes bigamy a punishable offence under section 494 and 495 of the Indian Penal Code, 1860. In such situations the question arises as to whether the second wife is entitled to receive maintenance or not.
In a landmark case of Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188, the court held that there are certain provisions under which the second wife is entitled to maintenance under Section 125 of CrPC. If a man and a woman are living together for a long period of time without marriage then she is entitled to maintenance. Also, in the case of misrepresentation made by man stating that he is competent to marriage, the woman being unaware at the time of marriage, will be entitled to maintenance.
Conclusion:
It is very evident now, from the recent judicial decisions that the courts in India have become progressively liberal while deciding the cases pertaining to maintenance. The main question arises is whether an illicit partner of a married partner should be entitled to receive any maintenance or not. Even though it appears that the same may be possible based on the decisions passed under the personal laws, judicial decisions under Section 125 clearly states that only a legally wedded wife can seek for maintenance.Disclaimer: We try to ensure that the information we post on Legal Advisory is accurate. However, despite of our best efforts, some of the content may contain errors. You can trust us, but legal advisory is not liable for any error
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