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Law of Maintenance by Shashi Kiran

Law of Maintenance by Shashi Kiran

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Published by gn2040
Right of maintenance under Indian Law
Right of maintenance under Indian Law

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Published by: gn2040 on Aug 30, 2010
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08/11/2013

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Chapter 1
 Alimony
SYNOPSIS
 Introduction........................................ 1Object ................................................. 4 Adultery .............................................. 4 Agreement between parties ................  Attachment of property ...................... Cancellation of order ......................... Christian law ...................................... 8Claim in appeal .................................. 9Conduct of parties .............................. 9Consent decree ................................. 12Considerations for granting alimony13Contracting out ................................ 14 Death of husband ............................. 15 Discretion of Court .......................... 16  Disentitlement .................................. 17  Dismissal of proceeding ................... 17  Distinction with maintenance........... 20 Divorce due to mental disorder ....... 21 Effect of desertion ............................ 22 Effective date of modification .......... 23 Employed wife .................................. 23 Entitlement only after divorce .......... 24Formal application .......................... 24Grant of alimony in civil suit ........... 25 Insufficient income ........................... 25 Interim order .................................... 26  Lawyer wife ...................................... 26  Lump-sum payment .......................... 27  Maintenance continued as alimony......................................................... 27  Meaning of ‘husband’ and ‘wife’ ..... 28 Modification of order ....................... 28 Nullity marriage ............................... 29Offer of re-union .............................. 32Powers of Appellate Court ............... 33Pregnant wife ................................... 33Procedure ........................................ 34Quantum .......................................... 34 Remarriage ...................................... 36  Resumption of cohabitation ............. 37  Right after passing of decree ........... 38Stage of granting alimony ................ 38Subsisting marriage ......................... 39Territorial Jurisdiction .................... 39Withdrawal of petition ..................... 40Written Application .......................... 40Young wife ....................................... 41
Introduction
There are various provisions of different statutes dealing withpersonal laws which deal with the question of alimony. These statutesare Hindu Marriage Act, 1955, Special Marriage Act, Parsi Marriage Act,1936 and Indian Divorce Act. The relevant provision of these statutes aredealt with in this chapter with reference to the judicial precedents. Theseprovisions are also being extracted hereafter.Section 25 of Hindu Marriage Act, 1955 is as under:
 
2 Law of Maintenance
Permanent alimony and maintenance
.— (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decreeor at any time subsequent thereto, on application made to it forthe purpose by either the wife or the husband, as the case may be,order that the respondent shall pay to the applicant for her or hismaintenance and support such gross sum or such monthly orperiodical sum for a term not exceeding the life of the applicantas, having regard to the respondent’s own income and otherproperty, if any, the income and other property of the applicant,the conduct of the parties and other circumstances of the case, itmay seem to the Court to be just, and any such payment may besecured, if necessary, by a charge on the immovable property of the respondent.(2) If the Court is satisfied that there is a change in thecircumstances of either party at any time after it has made anorder under sub-section (1), it may at the instance of either partyvary, modify or rescind any such order in such manner as theCourt may deem just.(3) If the Court is that the party in whose favour an order hasbeen made under this section has remarried, or, if such party isthe wife, that she has not remained chaste, or, if such party is thehusband, that he has had sexual intercourse with any womanoutside wedlock, it may at the instance of the other party vary,modify or rescind any such order in such manner as the Courtmay deem just.Section 31 of J&K Hindu Marriage Act, 1980 is also in verbatimwith the above provision. However section 37 of Special Marriage Act,1954 is as under:
Permanent alimony and maintenance.
— (1) Any Court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree onapplication made to it for the purpose, order that the husband,shall secure to the wife for maintenance and support, if necessary,by a charge on the husband’s property, such gross sum or suchmonthly or periodical payment of money for a term not exceedingher life, as having regard to her own property, if any, herhusband’s property and ability, the conduct of the parties andother circumstances of the case it may seem to the Court to be just.(2) If the District Court is satisfied that there is a change in thecircumstances of either party at any time after it has made anorder under sub-section (1), it may at the instance of either partyvary, modify or rescind any such order in such manner as theCourt may deem just.(3) If the District Court is satisfied that the wife in whose favouran order has been made under this section has remarried, or, is
 
Alimony—Introduction 3
not leading a chaste life, it may, at the instance of the husbandvary, modify or rescind any such order and in such manner as theCourt may deem just.Section 40 of Parsi Marriage Act, 1936 is as under:
Permanent alimony and maintenance
.— (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decreeor at any time subsequent thereto, on an application made to it forthe purpose by either the wife or the husband, order that thedefendant shall pay to the plaintiff for her or his maintenance andsupport, such gross sum or such monthly or periodical sum, for aterm not exceeding the life of the plaintiff as, having regard tothe defendant’s own income and other property, if any, theincome and other property of the plaintiff, the conduct of theparties and other circumstances of the case, it may seem to theCourt to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the respondent.(2) The Court if it is satisfied that there is a change in thecircumstances of either party at any time after it has made anorder under sub-section (1), it may at the instance of either partyvary, modify or rescind any such order in such manner as theCourt may deem just.(3) The Court if it is satisfied that the party in whose favour anorder has been made under this section has remarried or, if suchparty is the wife, that she has not remained chaste, or, if suchparty is the husband, that he had had sexual intercourse with anywoman outside wedlock, it may at the instance of the other partyvary, modify or rescind any such order in such manner as theCourt may deem just.Section 37 and 38 of Indian Divorce Act, 1869 are as under:
37. Power to order permanent alimony
.— The High Court may, if it thinks fit, on any decree absolute a marriage to be dissolved, oron any decree of judicial separation obtained by the wife, and theDistrict Judge may, if he thinks fit, on the confirmation of anydecree of his declaring a marriage to be dissolved, or on anydecree of judicial separation obtained by the wife,order that the husband shall, to the satisfaction of the Court,secure to the wife such gross sum of money, or such annual sumof money for any term not exceeding her own life, as, havingregard to her fortune (if any), to the ability of the husband, and tothe conduct of the parties, it thinks reasonable; and for thatpurpose may cause a proper instrument to be executed by allnecessary parties.
Power to order monthly or weekly payments
.— In every such casethe Court may make an order on the husband for payment to thewife of such monthly or weekly sums for her maintenance andsupport as the Court may think reasonable:

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