Love and Livelihood: Navigating the complexities of Alimony

This Article is written by Manmeet Kaur, 4th year, B.A. LL.B student at Ideal Institute Of Management And Technology (Affiliated to GGSIP University, New Delhi)

Introduction

Maintenance under Hindu law refers to the legal obligation of a person to provide financial support to certain individuals, primarily family members. This obligation arises from the personal laws governing Hindus, which are codified in acts like the Hindu Marriage Act, 1955 and the Hindu Adoptions and Maintenance Act, 1956. It is often referred to as “alimony” or a kind of monetary support from the spouse i.e. spousal assistance. Maintenance on the other hand, is an act of bearing the financial expenses or reducing the burden of  the spouse whose burden increases and economical position gets materially changed on the decree of divorce.

Maintenance provisions for Hindus are primarily governed by:

• The Hindu Marriage Act, 1955 (HMA)
• The Hindu Adoption and Maintenance Act, 1956 (HAMA)
• The Code of Criminal Procedure, 1973 (CrPC - Section 125, applicable to all religions) Is now replaced by The Bharatiya Nagrik Suraksha Sanhita (BNSS – Section 144, applicable to all the religions)

 

What does maintenance include?

 According to Section 3 (b) of Hindu Adoption and Maintenance Act, 1956 (HAMA) The     term "maintenance" is comprehensive and includes:

• Food: Providing basic sustenance.
• Clothing: Ensuring adequate clothing.
• Residence: Providing shelter or housing.
• Education: Covering educational expenses, especially for children.
• Medical Treatment: Meeting medical expenses.
• Marriage Expenses: In the case of unmarried daughters, it also includes reasonable expenses for their marriage.

 

Maintenance Under the Hindu Marriage Act, 1955 (HMA)

 

      Relevant Sections: Section 24 & Section 25

• Section 24: Maintenance pendente lite (maintenance pending litigation) and expenses of proceedings

 Allows either spouse (husband or wife) to seek maintenance pendente lite (temporary maintenance) and litigation expenses during divorce proceedings.

The payment must be within 60 days of service of notice.

A valid marriage is not essential requirement for maintenance under Section 24. l'any' proceedings in the court in mentioned in section).

• Section 25: Permanent Alimony and Maintenance

 Provides for permanent alimony and maintenance after divorce. The court decides the amount based on the income, assets, and needs of the parties.

According to Section 25 of the HMA,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.

 

 

 

Maintenance Under the Hindu Adoption and Maintenance Act, 1956 (HAMA)

 

 

Relevant Sections: Sections 18 to 22

 

Section 18: A Hindu wife is entitled to claim maintenance from her husband if he:

• Deserts or abandons her
• Treats her with cruelty
• Has another wife living
• Converts to another religion
• Concubine in same house, or husband habitually resides with a concubine elsewhere.
• Any other cause.
• However, the wife loses her right to maintenance if she is unchaste or converts to another religion.

Section 19: A widow can claim maintenance from her father-in-law if she has no means of support that means neither she is able to earn nor her own parents are supporting then she can claim maintenance from her father-in-law.

Liability of the father-in-law comes to an end where the widow is remarried or she has obtained a share in the coparcenary properties while partition.

Section 20: A Hindu is legally obligated to maintain his or her legitimate/ illegitimate  children and aged/infirm parents. Children of the person can only claim maintenance as long as they are minor.

The obligation of a person to maintain his or her aged or infirm parent or ighter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

‘Parents’ also includes a childless stepmother.

 

Section 21 - Dependants Defined

A deceased person's

• father,
• mother,
• widow (unmarried),
• son, son of predeceased son, son of a predeceased son of his predeceased son
• unmarried daughter or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son
• widowed daughter;
• any widow of his son or of a son of his predeceased son, so long as she does not remarry;
• his or her minor illegitimate son, so long as he remains a minor;
• his or her illegitimate daughter, so long as she remains unmarried.

 

Section 22 - Maintenance of dependents

• The heirs who take the estate of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased if that particular dependent has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act
• The liability of each of the persons who take the estate shall be in proportion to the value of the share or part of the estate taken by him or her.
• No person who is himself or herself a dependent shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part, the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.

 

Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

 

Addresses the maintenance rights of wives, children, and parents. This provision ensures that individuals who are unable to support themselves can seek financial assistance from those legally obligated to provide it. 

 

Key Provisions of Section 144:

 

1.Entitlement to Maintenance:

• Wife: A wife who cannot maintain herself is entitled to receive a monthly allowance from her husband. The term “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
• Children: Legitimate or illegitimate children, whether married or not, who are unable to maintain themselves, are entitled to maintenance. This includes:
• Minor children
• Adult children (excluding married daughters) who are unable to maintain themselves due to physical or mental abnormalities or injuries.
• Parents: Father or mother, unable to maintain themselves, are entitled to maintenance from their children.

 

2.Conditions for Granting Maintenance:

• The person from whom maintenance is sought must have sufficient means.
• There must be proof of neglect or refusal to provide maintenance.

 

3.Interim Maintenance:

• During the pendency of proceedings, the Magistrate may order interim monthly allowances and reasonable expenses for the proceeding.
• Applications for interim maintenance and expenses should be disposed of within sixty days from the date of service of notice to the respondent.

 

4.Enforcement of Maintenance Orders:

• If a person fails to comply with the maintenance order without sufficient cause, the Magistrate may issue a warrant for levying the due amount.
• The defaulter may be sentenced to imprisonment for a term extending up to one month or until payment is made, whichever is sooner.

5.Exceptions:

• A wife is not entitled to maintenance if she is living in adultery, refuses to live with her husband without sufficient reason, or if both are living separately by mutual consent.

 

Maintenance rights of a woman in Live- in relationships

 

 

Under The Bharatiya Nyaya Sanhita, 2023 (BNS), Section 144 deals with maintenance for wives, children, and parents. However, whether a partner in a live-in relationship can claim maintenance under this section depends on legal interpretations and precedents set by Indian courts.

 

Key Points to Consider:

1.Recognition of Live-in Relationships:

• The Supreme Court of India has recognized that a woman in a long-term live-in relationship, akin to marriage, may be entitled to maintenance.
• Courts have applied Section 125 of the CrPC (now replaced by Section 144 of the BNS) to live-in relationships in specific cases.

2.Criteria for Claiming Maintenance in Live-in Relationships:

• The relationship must resemble marriage (“relationship in the nature of marriage”).
• There must be proof of cohabitation for a reasonable duration

.•The woman should not be married to someone else.

• The relationship must not be solely for sexual purposes or transactional.

3.Judicial Precedents:

• In cases like Chanmuniya v. Virendra Kumar Singh Kushwaha (2010) and Indra Sarma v. V.K.V. Sarma (2013), the Supreme Court held that women in long-term live-in relationships could claim maintenance under certain conditions.
• Courts have generally extended maintenance rights to women if the live-in relationship resembles marriage.

 

Can a wife claim maintenance even if she is working and even if her salary is more than her husband?

Yes. If the woman is earning but her income is not sufficient enough she can still claim maintenance from her husband but If she is earning much more than her husband, she is not entitled to claim for maintenance.

 

Cases

 

Mohd. Ahmed Khan v. Shah Bano Begum (1985) AIR 945

The case of Mohd. Ahmed Khan v. Shah Bano (1985) is a landmark judgment of the Supreme Court of India that dealt with the issue of maintenance rights of divorced Muslim women.

Facts of the case:

Shah Bano, a Muslim woman, was divorced by her husband, Mohd. Ahmed Khan, after being married for 40 years.

She sought maintenance from him under Section 125 of the Criminal Procedure Code (CrPC), which applies to all citizens regardless of religion.

The husband argued that Muslim personal law only required him to pay maintenance during the iddat period (approximately three months after divorce).

Legal Issues:

1. Does Section 125 of CrPC apply to Muslim women, or is maintenance governed solely by Muslim Personal Law?
2. Is a divorced Muslim woman entitled to maintenance beyond the iddat period?
3. Does personal law override secular laws like CrPC in matters of maintenance?

 

Judgment:

The Supreme Court held that Section 125 of the CrPC applies to all divorced women, including Muslims, and that Muslim personal law does not exempt a husband from the obligation to provide maintenance to his divorced wife who is unable to maintain herself. The Court emphasized the secular nature of the law and the need to protect the rights of vulnerable women.

Chand Dhawan vs Jawaharlal Dhawan (1993)

Facts:

The parties were married in 1972 and had three children.

In 1985, the husband filed for divorce by mutual consent, but the wife claimed she did not consent. The petition was dismissed in 1987 with an agreement for the wife to return home.

Three months later, the husband filed for divorce in a different court, alleging adultery by the wife. The court granted her maintenance pending the case.

The wife then filed a claim in her original court for permanent alimony and maintenance under Section 25 of the Hindu Marriage Act, which was dismissed as the court had not passed a decree affecting the marriage.

Issues:

Whether a wife is entitled to permanent alimony under Section 25 of the Hindu Marriage Act when no decree of divorce or other matrimonial relief has been granted.

Judgement:

The Supreme Court held that a wife is not entitled to permanent alimony under Section 25 of the Hindu Marriage Act unless a decree of divorce or other matrimonial relief has been granted. The court observed that the expression "any decree" in Section 25 refers to a decree that brings about a change in the marital status of the parties, such as a decree of divorce, judicial separation, or restitution of conjugal rights.

The court clarified that permanent alimony is an ancillary or incidental relief that can only be granted as a consequence of a substantive relief that alters the marital relationship.

 Vanamala v. H.M. Ranganatha Bhatta (1995)

Facts:

Vanamala and H.M. Ranganatha Bhatta were married in 1970 and had two children.

They divorced by mutual consent in 1980 under Section 13-B of the Hindu Marriage Act.

 The divorce decree did not mention maintenance or alimony.

Vanamala later filed an application for maintenance under Section 125 of the Code of Criminal Procedure (CrPC).

Issue:

Whether a divorced woman is entitled to claim maintenance from her ex-husband under Section 125 of the CrPC, especially when the divorce was by mutual consent and the decree didn't mention maintenance?

Judgment:

The Supreme Court held that a divorced woman is entitled to claim maintenance under Section 125 of the CrPC, even if the divorce was by mutual consent. The court emphasized that the term "wife" in Section 125 includes a divorced woman who has not remarried. The court also clarified that a mutual consent divorce does not automatically disqualify a woman from claiming maintenance.

Conclusion

We had a brief study on the sections related to maintenance under Hindu Marriage Act (HMA) ,1955. We had also gone through the various provisions of Hindu Adoption And Maintenance Act (HAMA) ,1954 and section 144 of The Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023 which is applicable to all the religions and under this section any women can claim for maintenance. And we had also discussed about the maintenance rights of a women in a live in relationship. A women in a live in relationship can also seek for maintenance under section 144 of The Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023. Section 144 of BNSS has a wider  scope as any women can seek for Maintenance irrespective of their religion as this section is applicable to all the women of our country. Maintenance is something which plays a very important role to financially support the either of the spouse who is not able to support himself/herself financially as mentioned under section 24 and 25 of the Hindu Marriage Act, 1955.It is gender neutral as either of the spouse can claim the maintenance under it. But section 18 of The Hindu Adoption And Maintenance Act,1954 is only for the wife and also the minor son, the parents who are unable to support themselves are entitled for maintenance under The Hindu Adoption And Maintenance Act (HAMA) ,1954.

 

By Manmeet Kaur

4th year, B.A. LL.B

Ideal Institute Of Management And Technology

(Affiliated to GGSIP University, New Delhi)

 

References:

The Hindu Marriage Act (HMA) ,1955.

The Hindu Adoption And Maintenance Act (HAMA) ,1954.

The Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023.

https://blog.ipleaders.in/concept-of-maintenance-in-hindu-marriage-act-1955/

https://indiankanoon.org/doc/823221/