Authors: Anushka Malkhare college, ILS Law college, Pune
Neeta Saini, Jaipur National University
Editor: Naman Joshi, University of law, Delhi University
Ever since divorce came to be recognized, the world is engaged in finding out adequate solutions to the post- divorce problems. The most potent problems which an individual and the society is concerned about are that of maintenance, custody and access to children.
In India the term maintenance includes food, clothing and shelter typically available to the wife children and parents, it is the outcome of the moral duty a man to maintain his wife,children and parents who are unable to maintain themselves. In India maintenance is covered under individual personal laws and other secular provisions.
Maintenance under Hindu Law
Under Hindu Marriage Act, 1955, Section 24 & 25 deals with concept of Maintenance and they are gender neutral, that is maintenance can be claimed by both divorced/ seperated husband or wife, depending upon who is more capable.
Right of divorced wife for grant of maintenance
Alimony is granted to those wife's who are incapable of maintaining themselves but she loses her right if she deviates from the path of chastity. According to Section 125 of Code of Criminal Procedure, a wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. Her right to be maintained is provided in section 125 of CrPc , section 25 (1) of Hindu Marriage Act 1955 and section 18 ( maintenance of wife), 19 ( maintenance of widowed daughter) and 20 (maintenance of Children and aged parents) of Hindu Adoptions and Maintenance Act,1956.
Section 125 (1) CrPc provides maintenance to
Wife who is unable to maintain herself, or
Her legitimate or illegitimate minor child, whether married or not, unable to maintain themselves, or
A legitimate or illegitimate ( not being a married daughter) who has attained majority (physically or mentally abnormal or injured) and is unable to maintain themselves or
Father or mother unable to maintain himself or herself.
As per the second proviso of section 125 CrPc1 and section 24 of Hindu Marriage Act 1955, a wife can demand maintenance pendente lite and expenditure of proceedings. In Manokaran vs Devaki, it was held by the Supreme Court that if the wife establishes that she has no sufficient independent income for her support, she can claim maintenance at any point of time during the pending of the divorce proceedings.
Maintenance under Muslim Personal Law
Under Muslim Personal Law, the husband needs to maintain his wife not his divorced wife. After divorce, the wife is entitled to be maintained till the Iddat period only. Iddat period is defined as the period till which the wife has to maintain her chastity after husband's death or divorce and during this period she can't remarry.
Maintenance is referred as "Nafaqa" under Muslim law. The right of maintenance under Muslim law is absolute and not conditional whether she can maintain herself or not.
Initially, it was contended that Section 125 of CrPc is not applied to muslim women unless both the husband and wife's consent to be subject to it under section 5 of the act. But the position changed after Shah Bano case, it was held by the Supreme court that section 125 CrPc will be applied to muslim women as it is a Secular law and the wife is entitled to maintenance irrespective to the Muslim Personal Law. It was also held that a wife can demand maintenance after the Iddat period, also in cases where she doesn't remarry and is unable to maintain herself.
After this judgement, a new act was passed by the parliament of India named Muslim women ( Protection of Rights on divorce) Act 1986 which provides maintenance under section 3 and 4 of this act.
Maintenance under Christian Law
A christian woman can claim maintenance from her husband through criminal or civil proceedings. The civil and criminal proceedings can be pursued simultaneously as there is no legal bar. For criminal proceedings the religion of the party does not matter unlike civil proceedings.
Under Section 37 of the Indian Divorce Act, 18692 a christian woman can apply for alimony/maintenance and the husband is liable to pay her as per the courts order till her lifetime.
The Indian Divorce Act, 1869 can only be applicable to those people who practice christian religion which inter- alia supports christian women's rights.
The provisions related to Alimony are stated under part Ⅸ , Section 36-38
Section 36- Alimony pendente lite
Section 37 - Power to order permanent alimony
Section 38 - Court may direct the payment of alimony to the wife or trustee
Maintenance under Parsi Law
Parsi can claim maintenance from the spouse by civil or criminal proceedings . Interested parties can pursue both civil and criminal proceedings simultaneously as there is no legal bar. The Parsi Marriage and divorce act,1936 recognises right of the wife to maintenance both alimony pendente lite and permanent alimony.
The maximum amount which can be decreed by the court at the time of the proceedings cannot be more then one -fifth of the husband's average net income . The permanent alimony can be fixed by the court bearing in mind the husband's ability to pay and taking into account the wife’s own assets and conduct of the parties.
Section 40 of the Parsi marriage and divorce act,19363 gives out the provisions regarding permanent maintenance and alimony which is similar to sec 25 of Hindu marriage act,1955.
Maintenance of women under Domestic Violence
A woman who is the victim of domestic violence while living in the shared household is entitled to be maintained under section 20 of Protection Of Women from Domestic Violence Act, 2005. She can also claim the loss of earnings, medical expenses caused by domestic violence and maintenance for her Children. The scope of legislation under this section is much wider as it includes wife's as well as every woman who has been living in the relationship of the nature of marriage. It is applicable to all personal laws.
Maintenance of women in Live in relationship
Initially, live in relationships are not considered in India and not defined as well. The woman living in a live-in relationship is not entitled to maintenance.
But later, to protect the dignity of women the legal status of live-in relationships has been evolved and determined by the Supreme Court in various judgements.
Live-in relationships are defined in section 2(f) of Protection of Women from Domestic Violence Act (2005).
Domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
In India, there is no law which provides obligation on the parties in a live-in relationship. But in D. Velusamy vs D. Patchaiammal, Supreme Court laid certain guidelines under which an unmarried women is entitled to maintenance if she fulfils the guidelines mentioned below:-
(1) The couple must hold themselves out to society as being akin to a spouse.
(2) They must be of legal age to marry.
(3)They must be otherwise qualified to enter into a legal marriage including being unmarried.
(4)They must have voluntarily cohabited and held themselves out to the world as being akin to a spouse for a significant period of time. This is referred to as palimony. The court also held that all live-in relationships will not amount to a relationship in a nature of marriage unless it fulfills the guidelines mentioned above.
To conclude , if one compares all the personal laws, one would find the Hindu Marriage Act, 1955 to be very progressive in many ways when it comes to just and fair justice to be done to a divorced/ seperated spouse and their children. With the coming up of secular laws in the form of Section 125 CrPc, Protection of Women from Domestic Violence Act, 2005, the right of maintenance to the needy spouse has become a achievable right.