law of maintenance in india

Family Law-I

Law of Alimony & Maintenance

ASHOK P. WADJE (Assistant Professor)

© Ashok Wadje Law of Maintenance

LAW OF ALIMONY & MAINTENANCE ❖ General:

➢ Personal Obligation-Duty-Legal Right

➢ Principle of Natural Justice

➢ Word “Maintenance” is of wide connotation.

Section 3(c) of the Hindu Adoption & Maintenance Act, 1956 defines the word “maintenance” as: “in all cases, provisions for food, clothing, residence, education and

medical attendance and treatment; in the case of an unmarried daughter, also the reasonable expenses of

and incident to her marriage.”


➢ Alimony may be awarded as a lump sum, for a limited period

or for an indefinite period.

➢ Law of Maintenance differs in Personal & Secular laws since

Personal Laws necessitates “matrimonial litigation” whereas

under Secular Law (Cr.P.C.) it does not require matrimonial

litigation.

➢ So here the position of Law of Maintenance depends upon:

• Matrimonial Litigation (Mixed remedy)

• Without matrimonial litigation (Independent remedy)


Matrimonial Causes & Maintenance therein

• Divorce

• Divorce by Mutual Consent

• Irretrievable Breakdown of Marriage

• Judicial Separation

• Restitution of Conjugal Rights

• Family Arrangements

• Reconciliation

• Domestic Violence.


▪ General discussion about Maintenance ▪ Rationale behind the Law of Maintenance ▪ Law of Alimony & Maintenance

✓ Hindu Law ✓ Muslim Law ✓ Christian Law ✓ Parsi Law ✓ Secular Laws

• Code of Criminal Procedure (Sec.125-128) • Special Marriage Act, 1954.

▪ Maintenance to Wives, AGED PARENTS & CHILDREN. ▪ Comparative Analysis of Personal & Secular Law of Maintenance.

▪ Guidelines & Considerations: ▪ Legislative ▪ Judicial decisions

▪ Inability to earn. ▪Unable to maintain himself

or herself. ▪Ability to earn ▪Competent to earn ▪Dependent ▪ Income Assessment ▪Job/Business ▪Sufficient Means ▪Quantum of Maintenance

▪Means of earning

▪Conduct of applicant

▪U/certain circumstances

▪ ‘Changed’ circumstance

▪Provisions for:

✓ Residence

✓ Kharcha-aye-pandan ✓ Living.

✓ F a i r & R e a s o n a b l e provision

Crucial Terms

7) Persons entitled

• Wife

• Children (Minor/Major/Married/Insane,

Illegitimate son or daughter, etc)

• Widowed daughter

• Parents & Grand Parents (‘Father’, ‘Mother’,

G’mother and G’father)

• Concubine or Kept or Mistress

• Other relations

7) M & A as an Independent Remedy: • Review of Personal Laws • Code of Criminal Procedure • Muslim Women (Protection of Rights on Divorce)

Act, 1986 8) Maintenance include:

• Residence • Livelihood • Property: movable or immovable? • Money/Cash • Kind • Kharcha-aye-pandan

❖ STRUCTURE of ‘Law’ of Maintenance in India: • Hindu Adoption & Maintenance Act, 1956

• Hindu Marriage Act, 1955.

• Shariyat Act, 1937/Quran/Muslim Women (Protection of

Rights on Divorce) Act, 1986.

• Dissolution of Muslim Marriage Act, 1939.

• Indian Christian Marriage Act, 1872.

• Parsi Marriage & Divorce Act, 1936.

• Section 125 to 128 of Code of Criminal Procedure.

• Maintenance and Welfare of Parents and Senior Citizens

Act, 2007.


❖ Rational behind the of Law of Maintenance:

➢ Failure or Neglect to maintain “someone” who is in “relation”

➢ Natural duty to maintain.

➢ Equitable or Moral Obligation.


In the case of Bhagwan Dutt Vs. Kamala Devi (1975 CrLJ 40), it was observed that: “The object of these (Sec.125 and 126 of Cr.P.C. provisions is to compel a man to perform his moral obligations which he owes to the society in respect of his needy dependents so that they are not left beggared and destitute on the scrap heap of the society thereby driven to a life of vagrancy, immorality and crime for subsistence”


❖ Requirements for “Claim” of Maintenance:

● Inability of person to maintain himself/herself.

● Failure or neglect by the person u/obligation.

● Persons must be ‘related’

● Statutory Obligation to maintain

© Ashok Wadje Secular Law of Maintenance

❖ When Maintenance can be claimed…?

● During the subsistence of marriage

● During the pendency of the any Matrimonial Relief (Maintenance pendent lite).

● After obtaining decree of Divorce.


MAINTENANCE UNDER SECTION 125 OF CRIMINAL PROCEDURE CODE,

1973


❑ Code of Criminal Procedure (Section 125 to 127)

• Refusal/Neglected/Discarded/ Abandoned/ Helpless:

✓ Wives or divorced wives (HUSBAND) ✓ Children (PARENTS) ✓ Parents (CHILDREN)

• Irrespective of their Religion/Nationality/Domicile

• Criminal -Speedy -Summary Procedure.

• Defendant is bound to maintain even though u/Personal Law he or she has no such obligation (Kariyadan Pokkar Vs. Kayat beeran ILR 19 Mad. 461)


➢ Objectives:

• Socio, Economic & Moral purpose

• Prohibition of Discrimination on the basis of ‘Sex’ & ‘Religion’

• Protective Discrimination

• Prevention of Criminal activities

• Speedy disposal of case of Maintenance


CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS: ▪ Section 125: Order for maintenance of

wives, children and parents

▪ Section 126: Procedure

▪ Section 127: Alteration in allowance

▪ Section128:Enforcement of order of maintenance.


➢ Section 125:

▪ Sub Sec. (1) ✓ Claimant’s right of Maintenance ✓ Monthly Payment of Maintenance (Quantum) ✓ Proviso (1): Minor Female (married) child’s position ✓ Proviso (2): Interim maintenance & Expenses of

Proceeding. ✓ Proviso (3): Disposal of case within 60 days.

▪ Explanation : a. Minor b. Wife

▪ Sub Sec. (2): Date of or Time of Payment of Maintenance, etc.

▪ Sub Sec. (3): Fine or Sentence in case of breach in payment.


▪ Explanation: If husband Keeps Mistress or marries to another woman: just cause for the wife to refuse to live with him.

CANCELLATION OF ORDER: No maintenance to wife:

▪ Sub Sec. (4): No maintenance to wife if :

✓ If they are living separately by Mutual consent ✓ If she is living in adultery ✓ Refuses to live without any sufficient cause.

▪ Sub Sec. (5): Cancellation of Order u/this Section if any of the grounds mention in Sub Sec. (4) is proved.


❖ FEATURES OF THIS (Section 125) PROVISION:

❶ Uniformity

❷ Prevention of destitute & vagrancy.

❸ Quasi civil proceeding in Criminal law.

❹ Summary proceeding

❺ No ceiling on the amount of maintenance (2001

amend.)

❻ Matrimonial status: irrelevant consideration.

❼ Power of arrest in execution proceeding.

❽ Maintenance through informal relationship.


◙ Maintenance u/Sec. 125 & ‘Rights of Women in

Informal Relationship.’:

▪ Informal relationships:

• Concubines to cohabitees: statutory

recognition.

• Person in ‘Live-in relationship’

• Prolonged cohabitation

• Presumption of marriage.

• Relations in the nature of marriage.

• Persons in domestic relationship.


▪ U/P.W.D.V. Act, 2005, any women who claims orders including maintenance, need not prove the validity of marriage (M. Palani v. Meenakshi AIR 2008 Mad. 162).

▪ With respect to Sec. 125, in a landmark case of 2010, a division bench of G.S. Singhavi & A.K. Ganguly J. in Chanmuniya v. Chanmuniya Virendra Kumar Singh Khushawaha (SLP (Civil) No.15071 of 2009): • Recommended broad interpretation to ‘Wife.’

• Strict proof of wife shouldn’t be pre-condition

• Benefits awarded in DVA should also be

extended u/Section 125.


◙ Matrimonial misconduct & Right to maintenance (Sub-

sec. 4 & 5): During the proceeding & after proceeding.

• If she is living in adultery.

• Refuses to live with husband (without any

reasonable cause)

• Living separately with mutual consent.

▪ Compassionate approach towards matrimonial misconduct of wife.: Jagdusa kakwane vs. Kamal Gulab Kakwane (AIR 1985 Bom. 88) divorce on certain ground wife’s adultery & denial of maintenance by husband: REJECTED.


◙ Non-performance of essential ceremonies of marriage:

▪ Most common excuse for the husband to deny.

▪ Performance of marriage procedure is enough and no need to prove whether ceremonies were performed or not. (Dwarika Prasad Satpathy v. Bidyut Praya Dixit (AIR 1999 SC 3348).

▪ Neither it is necessary to mention in an application nor any one can raise the objection as to the non-performance of ceremonies (Veena Devi vs. Ashok Kumar Mandal)

▪ Bombay H.C. in (Govindrao v. Anandibai (AIR 1976 Bom. 433) has observed that the intention of legislature could not have been to deprived of her right to claim maintenance.


▪ Bombay High Court in Sunita More v. Vivekanand More (II 2001 DMC 693 Bom.) has held that Magistrate is not competent to decide the validity of marriage. It is up to the husband to decide the invalidity in competent civil court.

▪ Again in the case of Pradeep Gupta v. Kanti Devi (I 2003 DMC 693 Bom) Jharkhand H.C. has reaffirmed that strict proof of marriage is not necessary while awarding maintenance under Section 125 of Cr. P.C.


➢ Nature of the Proceeding:

• Criminal Proceeding of civil nature.

• Proceedings of Summary nature.

• Orders as it thinks fit

• Ex-parte orders can be made.

• Orders made u/personal laws or u/civil suits may be taken into consideration u/criminal suit & Vice-versa.


◙ Jharkhand H.C. in the case Ehsan Ansari V. State of Jharkhand (II 2007 DMC 751 Jha) where the prayer to amend the petition, a relief which is possible in the civil law but prohibited in criminal law, was allowed.

◙ Though the non-payment of maintenance in civil law may result in to civil imprisonment, the burden falls on the wife to pay for the civil imprisonment. It is paradoxical, as it defeats the very purpose of awarding maintenance to destitute women.


➢ CLAIMANTS U/S.125:

1. Child:

▪ Explanation (a) to Cl.1 of Section 125 defines “minor child”

▪ U/old CrPC it was only ‘child’.

▪ Child is Natural or Adoptive, Legitimate or Illegitimate.

▪ In case custody of child is with Mother or Guardian or Non-Guardian parent, still father’s obligation subsist.

▪ In case of ‘Married minor daughter’, if husband is unable to maintain then Father is u/an obligation.



2. Wife:

▪ Wife means “legally wedded wife”

▪ Explanation (b) to Section 125 defines “WIFE” so as to include unmarried divorced wife. (U/old Code it was not)

▪ Wife term is not qualified by any Religion.

▪ Husband is u/an obligation to maintain her.


3. Parent:

▪ The word ‘Father’ or ‘Mother’ is used in clause (d) so as to exclude obligation of the Illegitimate son.

▪ Only Legitimate Child is u/an obligation to maintain.


➢ Quantum of Maintenance:

▪ Magistrate may order for Maintenance “as Magistrate thinks fit” and to provide such person as the Magistrate may from time to time direct.

▪ Law Commission of India has recommended to remove the ceiling of 500/- and the Magistrate should have power to award amount of Maintenance as he thinks fit.

▪ Previously, before Amendment Act of 2001, it was “not exceeding 500/-.

▪ State Amendments to Code of Criminal Procedure vary in terms of quantum of maintenance.

Section 125 of Cr. P.C. and Claim of Muslim Divorced Wife:

Problem of: • Interpretation • Contradiction • Question of law • Personal law vs. General

# Mohd. Ahmed Khan Vs. Shah Bano Begum ((1985) 2 SCC 556): NEW INTERPRETATION TO LAW • Interpretation of Section 125 was in

question.

• Maintenance “beyond the period of Iddat” was in question.

• Conflict of Laws: Muslim Law Vs. Secular Law of Maintenance which is reflected in the provision of Section 125 of Criminal Procedure Code.

• (Divorced) Muslim Women can resort to Section 125 of Criminal Procedure Code.

• A Brief about Section 125 of Cr.P.C.:

✓ Cr.P.C. applies to all communities, including Muslim Wife.

✓ Right to seek Maintenance u/S.125 extends even to “divorced wife”

✓ Old Cr.P.C. u/S.488 (corresponding with s.125) extended only till the period of Iddat (#M. Sidhik Vs. Nafeesa Beevi Cr.L.J. 1973 1020), since Personal Law provided for that.

✓ Amendment introduced in 1973:

Section 125 (1) Explanation (b) says: ‘Wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

© Ashok Wadje Muslim Law of Maintenance

• This change in the Cr.P.C. constitutes a fictional relationship of Wife, to prevent erstwhile husbands to drive their ex-wives to a state of poverty and destitution till they remarry.

• After this, Statutory/Legal position is that: a woman continues to be wife within the meaning of S.125 even after divorce, in order to claim maintenance.

• Even a wife who has been divorced prior to the amendment, is entitled to avail protection u/this provision.

• Divorce at whose instance doesn’t matter, since the words are: • ‘….has obtained divorce from the husband’

• Facts of the Shaha Bano Case:

✓ Shaha Bano who was the wife of Ahmad Khan, an Advocate, married to him in 1932 and has five children, driven out of the home.

✓ In 1978 she filed an application for maintenance. And as soon as she did this, the husband divorced her by an irrevocable talaq.

✓ Judicial Magistrate ordered Maintenance of `25 per month.

✓ On appeal, M.P. High Court raised the amount ` 179.20.

✓ Dissatisfied with this Husband came in appeal to the Supreme Court.

✓ Court upheld the wife’s right to maintenance and imposed costs at `10,000/- on the Husband.


• Court Held:

✓ Provision of Sec.125 is not dependent on the religion of any spouse.

✓ The husband’s argument that “under their personal law he was obliged to maintain his wife only during iddat” was rejected.

“The true position is that if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the iddat period. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of Cr.P,C.”


✓ “Wife” means wife as defined, irrespective of religion professed by her or by her husband.

✓ Statutory right available to her under that section is unaffected by provisions of personal law applicable to her.

✓ Chandrachud C.J., observed:

✓ What’s question of importance?

“This appeal does not involve any question of constitutional importance but, that is not to say that it does not involve any question of importance.”


• Is there any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’?

• Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife ?

• Is the law so ruthless in its inequality that, no matter how much the husband pays for the maintenance of his divorced wife during the period of Iddat, the mere fact that he has paid something, no matter how little, absolves him for ever from the duty of paying adequately so as to enable her to keep her body and soul together ?


• The question as to whether section 125 of the Code applies to Muslims also is concluded by two decisions of this Court which are reported in 1) Bai Tahira v. Ali Hussain Fiddalli Chothia 1979 AIR(SC) 362) and

2) Fazlunbi v. Khader Vali 1980 AIR(SC) 1730).


PROF. ASHOK WADJE, SLS, NOIDA

• Post Shah Bano Law: Muslim Women (Protection of Rights on Divorce) Act, 1986 ✓ Repercussions of Shah Bano’s case.

✓ Unprecedented DEBATE & CONTROVERSTY evoked.

✓ Parliament had to pass this piece of legislation in order to shut the mouths of Muslim Husbands in India.

✓ Act applies only to Divorced Wife.

✓ Act deals with the Right to be Maintained by: • Husband • Relatives • Wakf Board.

• Preamble:

✓ Who have been divorced or have obtained divorce.

✓ ‘Protection’ of right

✓ Connected & incidental matters.

“An Act to protect rights of Muslim Women who have been divorced or have obtained divorce from their husbands and to provide for matters connected therewith and incidental thereto.”


• Features of the Act:

✓ Reasonable & Fair Provision of Maintenance During the period of Iddat from Husband.

✓ If she fails to get so then from Relatives and then from Wakf Board.

✓ She is not entitled to apply u/Sec.125 unless both parties consent to it. (Either jointly or separately)

✓ Maintenance of children by the husband is attached to it.

✓ Applications pending under Section 125 are required to be disposed under the Act.

✓ Right of Divorce was taken out and placed in new legislation.


• Interpretation of the Act of 1986

✓ Collusion of Cr.P.C. and Act of 1986 (Sec. 125 and Sec. 3)

✓ Freedom Religion & Religious ‘Practices.’ (Art. 25)

✓ Constitutional guarantee of equality (Art. 14 &15)

✓ Uniform Civil Code (Article 44)

✓ Divergence of opinion among the High Courts as to conflict of Cr.P.C. and the provisions of the Act of 1986.

✓ Progressive Interpretation of Sec. 3: beyond the period of Iddat.

✓ Restrictive Interpretation of Sec. 3: exercise of option by parties



◙ Constitutionality of Muslim Women (Protection of Rights on Divorce) Act, 1986”

• Supreme Court of India in #Danial Latifi Vs. Union of India (2001) 7 SCC 740

• Applied a ‘harmonious construction’ of statutes • whereby to secure an Act of 1986 from Constitution

infirmity. (Art. 14, 15 & 21). • Interpretation: Maintenance ‘during’ the period of

Iddat & making Provisions for future life ‘after’ the period of Iddat.

• Act is constitutionally valid. • Doctrine of ‘fair or reasonable provision.’


• New Right: right to a lump sum provision to be made

soon after the divorce.

• Reasonable & Fair provision for the future of the

divorced wife which must be made within the Iddat

period.

• If fails to pay, she can have recourse to Magistrate’s

court u/Sec. 3 of the Act.

• What is: “Fair or reasonable provision with respect to

future needs”?

• QUESTION REMAINS: RIGHT OF MAINTENANCE-WHETHER U/SECTION 125 OF Cr.P.C. or U/Sec. 3 of “Muslim Women’s Act”?

• Case Law: # Iqbal Bano Vs. State of U.P. (AIR 2007 SC 2215)

✓ A Muslim ‘Wife’ can claim maintenance and Act of 1986 only applies to ‘divorced woman’.

✓ The right u/Sec. 125 extinguishes only when she receives “fair or reasonable” settlement u/Sec. 3 of the Act.

✓ A divorced Muslim WOMEN if 1. Unable to maintain herself and 2. Not remarried,

can proceed as per Section 4 of the Act of 1986: ‘other relations’.

✓ Provisions of the Act of 1986 do not offend Article 14, 15 & 21 (no question of Art.44 since it is not justifiable)

✓ It is crystal clear that divorced women can claim maintenance beyond the period of Iddat.


✓ Act of 1986 is beneficial piece of legislation and the benefit must accrue to the divorced Muslim women.

✓ Again in Kunhimohammed v. Ayishakutty (2010 2 KLT 71) Keral High Court held that a husband’s obligation to pay maintenance is not extinguished on divorce. The wife will be entitled to receive maintenance u/Sec. 125 of Cr.P.C. until the husband fulfills his obligation u/Sec. 3 of Muslim Women (Protection of Rights on Divorce Act, 1986


Maintenance U/Hindu Law


❶ HINDU LAW OF MAINTENANCE: • Hindu Adoption & Maintenance Act, 1956. • Hindu Marriage Act, 1955.

✓ Personal Obligation ✓ Greatest duty of person ✓ The gates of heaven are wide open for one who maintains

some one. ✓ Manu declared: “….obligation subsists in spite of doing

hundred misdeeds.” ✓ Now-a-days it is a matter of necessity.

❖ Maintenance of WIVES, PARENTS & CHILDREN:

▪ Hindu Adoption & Maintenance Act, 1956.

1. Section 18: Of Wife

2. Section 19: Of Widowed Daughter- in- law.

3. Section 20: Children & Aged Parents.

4. Section 21: Dependents

1) Of Wife: (Section 18)

✓ Legally-wedded-wife. ✓ In most of the legal system this obligation is recognized. ✓ So long as she remains “faithful.” ✓ Obligation exists even after the ‘dissolution of marriage” ✓ In the case of #Vihal Vs. Maiden (AIR 1995 Guj. 88) it was

held that a “divorced wife” is included within the expression wife.

✓ The obligation arises out of ‘status of marriage’ or ‘jural relationship.’

✓ Three situations wherein this right/obligation arises: ▪ When she lives with her husband ▪ When she lives separate ▪ When she lives separate under Decree of Court.

✓ Who is “Wife”

✓ During her Life-time.

✓ By “Husband” (Sub-Section (1).

✓ Living Separate & Claiming Maintenance ? Yes, on certain grounds. (Sub-Section (2)

✓ Bar to Maintenance & Separate Living: Subject to condition u/Sub-section (3) that Wife should not be:

▪ Unchaste ▪ Cease to be Hindu.

2) Of Widowed Daughter- in- law: (Section 19)

• As a manager of a joint family, Father-in-Law was under a MORAL OBLIGATION.

• Statutory improvement: Hindu Women’s Right to Property Act, 1937 (Right to step her into the shoes of her deceased husband).

• Now by virtue of this Section 19, she is having a LEGAL RIGHT to receive maintenance. SO FATHER –IN-LAW IS LEGALLY BOUND TO MAINTAIN.

(Logic: Those who inherit the property of deceased husband, are obviously bound to maintain herself who is in immediate relationship.)

Requirements: • Property with the Father-in-Law should be COPARCENARY.

• Daughter-in- Law is UNABLE to provide for herself by her own earnings or from her own property.

• Unable to get maintenance from the ESTATE of her husband or Parents or from Children or from their estate

• REMARRIAGE bars her to claim from her Father-in-Law.

NOTE: Parents of the widowed daughter in law are required to be heard before court grants any decree of maintenance (Raj Kishore Mishra Vs. Smt Meena Mishra AIR 1995 ALL.70)

3) Maintenance of Children and Aged Parents (Section 20)

• A ‘Hindu’ is under an obligation to maintain:

✓ Legitimate or illegitimate children (also adoptive)

✓ Aged or infirm (Weak/Sick) parents.

• Legitimate or illegitimate child should be MINOR.

• Aged or infirm parents should be unable to maintain himself or herself out of their own property or other property.

• Parents do include “childless step-mother”.

CHILDREN:

✓ Legitimate and Adopted children. • Obligation arises OUT OF PERSONAL RELATIONSHIP OF

PARENT & CHILD. • Legitimate son is entitled even though son is not living

or not in talking terms or for whatever misdeeds.

• The obligation of Parents to maintain ceases on his attaining majority, even if the son is incapable of maintaining himself due to temporary illness or disorder. But if disability or disorder is of a permanent nature, Parent’s obligation is there.

• Adopted son or daughter has the same right as that of natural born legitimate children.

✓ Major/Unmarried DAUGHTER: • A major daughter is entitled to maintenance until she

gets marry. • In case of daughter, maintenance includes a reasonable

provision for her marriage. • In so far as she is unable to maintain herself.

✓ Illegitimate Son/daughter:

• Previously used to get only from Putative father • Now from both the Putative Father and Natural mother. • Only entitled for maintenance and nothing else.

PARENTS • The HAMA, is the first statute which imposes obligation

on the children to maintain their parents. • Sons and Daughters have EQUAL DUTY to maintain.

Previously only sons were under obligation. Now with the changing times, the Law has recognized that daughters also should have a duty to maintain parents.

(Logic: Sons alone inherited the properties. The daughters neither inherited nor had any other income of their won by way of personal earnings.)

• Mother and Father both have an EQUAL RIGHT. Law also explicitly refers to “Step-Mother” , however it is only childless step-mother.

• No ‘Capacity’ word is there. Children are ‘bound’ to

maintain Parents. In this respect, Hindu Law is in contrast with the Cr.P.C.

• It is pertinent to note that, even though word “maintenance” includes provisions for ‘residence’ it does not confer a legal right to on the parents to live in the house of the son along with his family. CASE LAW: Anjali D. Jadhav Vs. Nirmala Ramchandra Kore (AIR 2000 SC 1386) ✓ This was the case under Bombay Rents, Hotel and

Lodging House Rates Control Act, 1947. ✓ A mother who was the tenant was living in the suit

premises with her sons for 30 years.

✓ The Landlord sought to evict the tenant on the ground that she had acquired “alternative accommodation” which was a ground for eviction under the Bombay Rent Control Act, 1948.

✓ The Court held that the mother was not liable to be evicted on the ground of having acquired ‘vacant possession’ because the house built by her sons is not hers over which she has any legal right to reside.

✓ So here, though this Judgment is to the advantage of the mother, yet, the observations of this case have a potential of being invoked to the detriment of parents in some cases.

✓ Court observed: “though morally sons are u/obligation to accommodate with them yet in Law we cannot enlarge this obligation to legal duty.”

3) Dependents of a DECEASED HINDU: (Section 22)

• Dependents are RELATIVES of deceased Hindu and they can claim maintenance against the property of the deceased in the hands of heirs.

• Heirs are all those persons on whom estate of deceased legally devolves.

• This is in a case that they do not get any share in the estate either by SUCCESSION or WILL.

• Persons u/obligation, equally liable to maintain in proportion to the value of the share.

• There is a difference in HEIRS & DEPENDENTS. • WHOSOEVER GETS ANY SHARE IN PROPERTY IN THE

PROCESS OF DEVOLUTION, TAKES IT SUBJECT TO DUTY/RISK OF MAINTENANCE OF DEPENDENTS OF A DECEASED HINDU.

• Liability: • The dependent can exercise this right against the

heirs only when he himself is NOT an heir or has NOT obtained any legacy under the Will of the deceased/testator.

• If there is a separate provision for the maintenance of the dependents the heirs have no further liability.

• The maintenance should be OUT OF THE ESTATE of the deceased inherited by heirs and not personal or otherwise.

• If the value of the share or part of the estate (in the event of contribution) becomes less than the maintenance awarded to him, not liable to contribute.

Example (1) A Hindu dies leaving behind a WILL (Testamentary), under which he bequeaths all his property to his Son. He leaves behind a SON, WIDOW and MOTHER. In this case, widow and mother as Dependents can claim maintenance against the estate of the deceased in the hands of the Son.

For Example (2) : a Hindu dies SUCCESSION (intestate), leaving behind a MOTHER, A WIDOW and a SON, all three will take a share in the estate of the dependent. None of them can claim maintenance as dependent against the others.

▪The father

▪The mother

▪The widow

▪The minor legitimate son

▪The minor illegitimate son

▪The minor illegitimate unmarried daughter

▪The minor legitimate unmarried daughter.

▪The widowed daughter

▪The son’s widow ▪Grandson’s widow

▪The son’s unmarried daughter

▪The grandson’s unmarried daughter

▪Son’s minor son

▪Son’s son’s minor. son

Definition of Dependents: (Section 21)

Maintenance U/Muslim Law


MUSLIM LAW OF MAINTENANCE:

• Wife

• The Children

• The Parents & Grandparents

• The other relations


1) THE WIFE:

• The Husband’s obligation to maintain his wife arises in the following circumstances:

✓ Out of status of Marriage ✓ Out of pre-nuptial agreement. ✓ After divorce

• A Muslim is under an obligation to maintain WIFE under following Statutes: ✓ Shariyat Act, 1937 ✓ Criminal Procedure Code, 1973 ✓ Muslim Women (Protection of Rights on

Divorce), Act. 1986.


1. Obligation arising out of STATUS

• Status of Husband and Wife

• Position of Wife does not matter

• She must be faithful/obeys ‘reasonable’ orders of him.

• If she justified, she can withdraw the company (non-payment of dower, on account of cruelty).

• ‘Claim’ or ‘right’ arises only after it becomes DUE

• This claim comes to an end when there is a divorce. After divorce, position of law is different.


2. Obligation out of Pre-Nuptial Agreement (PNA)

✓ Part of marriage system u/Muslim Law ✓ A kind of threat or deterrence to maintain her. ✓ Kharcha-i-pandan, guzara etc are examples of

it. E.g. • An agreement to live separate and ask for

the maintenance. • Mydeen Vs. Nydeen (AIR 1951 Mad. HC)

held that an agreement to maintain even after the divorce is, is valid.


3. Obligation out of DIVORCE

• In case of dissolution of marriage, a Muslim husband WAS/IS no more under an obligation to maintain Muslim wife, except till the period of Iddat.

• A ground for dissolution of Marriage if fails to maintain for a period of two years (DMMAct, 1939).

• Iddat is ‘three lunar months’ or ‘three menstruation period,’ whichever is earlier. (In case of pregnancy, till abortion or delivery).

• DIVORCE IS VERY EASY TO OBTAIN U/MUSLIM LAW AND AS SUCH IT CAUSED LOT OF HARDSHIP.


2) Maintenance of Children:

• Father-Mother-Grandfather is under an obligation to maintain.

• Till the period of attaining Puberty i.e. 15 yrs.

• In case of daughters, till marries.

• Same rule of ‘disability’ applies which entails a major son or daughter to ask maintenance even after Puberty.

•


# Mohd. Ahmed Khan Vs. Shah Bano Begum (AIR SC 1986): NEW INTERPRETATION TO LAW • Interpretation of Section 125 was in

question.

• Maintenance “beyond the period of Iddat” was in question.

• Conflict of Laws: Muslim Law Vs. Secular Law of Maintenance which is reflected in the provision of Section 125 of Criminal Procedure Code.

• (Divorced) Muslim Women can resort to Section 125 of Criminal Procedure Code.

• Facts of the Shaha Bano Case:

✓ Shaha Bano who was the wife of Ahmad Khan, an Advocate, married to him in 1932 and has five children, driven out of the home.

✓ In 1978 she filed an application for maintenance. And as soon as she did this, the husband divorced her by an irrevocable talaq.

✓ Judicial Magistrate ordered Maintenance of `25 per month. ✓ On appeal, M.P. High Court raised the amount ` 179.20. ✓ Dissatisfied with this Husband came in appeal to the

Supreme Court.✓ Court upheld the wife’s right to maintenance and imposed

costs at `10,000/- on the Husband.


• Court Held:

✓ Provision of Sec.125 is not dependent on the religion of any spouse.

✓ The husband’s argument that “under their personal law he was obliged to maintain his wife only during iddat” was rejected.

“The true position is that if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the iddat period. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of Cr.P,C.”


• Muslim Women (Protection of Rights on Divorce) Act, 1986 ✓ Repercussions of Shah Bano’s case.

✓ Unprecedented DEBATE & CONTROVERSTY evoked.

✓ Parliament had to pass this piece of legislation in order to shut the mouths of Muslim Husbands in India.

✓ Act applies only to Divorced Wife.

✓ Act deals with the Right to be Maintained by: • Husband • Relatives • Wakf Board.


◙ Constitutionality of “Muslim Women’s Act” • Supreme Court of India in # Danial Latifi Vs. Union of

India (2001) 7 SCC 740

• Applied a ‘harmonious construction’ of statutes • whereby to secure an Act of 1986 from Constitution

infirmity. (Art. 14, 15 & 21). • Interpretation: Maintenance ‘during’ the period of

Iddat & making Provisions for future life ‘after’ the period of Iddat.

• Act is constitutionally valid. • Doctrine of ‘fair or reasonable provision.’


• New Right: right to a lump sum provision to be made soon

after the divorce.

• Reasonable & Fair provision for the future of the divorced

wife which must be made within the Iddat period.

• If fails to pay, she can have recourse to Magistrate’s court

u/Sec. 3 of the Act.

• What is: “Fair or reasonable provision with respect to

future needs”?

• QUESTION REMAINS: RIGHT OF MAINTENANCE-WHETHER U/SECTION 125 OF Cr.P.C. or U/Sec. 3 of “Muslim Women’s Act”?

• Case Law: # Iqbal Bano Vs. State of U.P. (AIR 2007 SC 2215)

✓ A Muslim ‘Wife’ can claim maintenance and Act of 1986 only applies to ‘divorced woman’.

✓ The right u/Sec. 125 extinguishes only when she receives “fair or reasonable” settlement u/Sec. 3 of the Act.

✓ A divorced Muslim WOMEN if 1. Unable to maintain herself and 2. Not remarried,

can proceed as per Section 4 of the Act of 1986: ‘other relations’.

✓ Provisions of the Act of 1986 do not offend Article 14, 15 & 21 (no question of Art.44 since it is not justifiable)

✓ It is crystal clear that divorced women can claim maintenance beyond the period of Iddat.


✓ Act of 1986 is beneficial piece of legislation and the benefit must accrue to the divorced Muslim women.

✓ Again in Kunhimohammed v. Ayishakutty (2010 2 KLT 71) Court held that a husband’s obligation to pay maintenance is not extinguished on divorce. The wife will be entitled to receive maintenance u/Sec. 125 of Cr.P.C. until the husband fulfills his obligation u/Sec. 3 of Muslim Women (Protection of Rights on Divorce Act, 1986


Maintenance U/Christian Law


❖ CHRISTIAN LAW OF MAINTENANCE: • Indian Divorce Act, 1936 contains provision for the

maintenance of minor CHILDREN , but there is no independent right like Hindu law for the children.

• It is awarded only when there is matrimonial litigation between the parties.

• Parents do not have any right to claim maintenance u/Christian Law. Section 125 of Cr.P.C. is the only recourse.

• Karnataka High Court in the has taken a reformative step in the case of K. Kumar Vs. Leena, AIR 2010 Karn. 775 , by providing maintenance to neglected Christian WIFE even though under Christian Marriage Act there is no provision for such relief.

• Civil suit for maintenance u/the said Act can be instituted under the inherent power of the court.

© Ashok Wadje Christian Law of Maintenance

❑ WIFE • Section 36: of The Divorce Act,1869/2001:

alimony pendent lite to the WIFE, during any proceeding.

• Section 37 : Power to order permanent alimony after proceedings.

• Power to order monthly or weekly payments u/same section 37. ❑ CHILDEREN

• Section 42: Power to make such orders after the decree with respect to the ‘custody, maintenance, education, of the child.

• Section 43: Power to make interim orders as to the custody, maintenance and education of the children.

© Ashok Wadje Christian Law of Maintenance

❖ PARSI LAW MAINTENANCE:

• Parasi Marriage & Divorce Act, 1936 contains provision for the maintenance of minor CHILDREN , but there is no independent right like Hindu law for the children.

• Maintenance Pendent lite: during the pendancy of the proceeding.

• It is awarded only when there is matrimonial litigation between the parties.

• Section 39: Maintenance Pendent lite to the WIFE & HUSBAND by the Defendant

• Section 40: Permanent Alimony & Maintenance to the WIFE & HUSBAND: by the Defendant

© Ashok Wadje Parasi Law of Maintenance