A Project on “Duty to Maintain Under Personal Laws.

Manipal University Jaipur

School of Law

Supervised by: Submitted by:

Ms. Name- Aditya Bari

Registration No.-161401007

B.A. LL. B (Hons.)

Section- A

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 CERTIFICATE

This is to certify that Mr. Aditya Bari , student of B.A, LL. B(Hons.) Fifth Semester, School
of law, Manipal University Jaipur, has completed the project work entitled “Duty to Maintain”
under my supervision and guidance.

It is further to certify that the candidate has made sincere efforts for completion of this
project.

Supervisor Name: ______________(Signature)

Ms.

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 ACKNOWLEDGEMENT

In performing our assignment, I had to take the help and guidance of some respected persons
who deserve our greatest gratitude. The completion of this assignment gives me much pleasure.
I would like to show our gratitude to Ms__________________, Course Instructor, Manipal
University Jaipur for giving us good guideline for assignment throughout numerous
consultations. I would also like to expand our deepest gratitude to all those who have directly
and indirectly guided us in writing this assignment.

In addition, a thank you to the Professor who introduced us to the Methodology of work and
whose passion for the “underlying structures” had lasting effect. I also thank the Manipal
University Jaipur for the consent to include the copyrighted pictures as a part of our paper.

Many people, especially our classmates and team members itself have made valuable comment
suggestions on this proposal which gave us inspiration to improve our assignment. I thank all
the people for their help directly and indirectly to complete our assignment.

Aditya Bari

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 Table of Contents

CERTIFICATE ..................................................................................................................................... 2

ACKNOWLEDGEMENT .................................................................................................................... 3

INTRODUCTION................................................................................................................................. 5

MAINTENANCE UNDER HINDU LAW .......................................................................................... 6

MAINTENANCE UNDER MUSLIM LAW ...................................................................................... 8

MAINTENANCE UNDER PARSI LAWS ......................................................................................... 9

MAINTENANCE UNDER CHRISTIAN LAW............................................................................... 10

MAINTENANCE UNDER SECTION 125 OF CODE OF CRIMINAL PROCEDURE,1973. ... 10

WEBLIOGRAPHY............................................................................................................................. 11

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 INTRODUCTION

A person is entitled to basic amenities of life like food, clothing, shelter and other necessary
requirements to live a dignified life. Under the principles of social justice, it is the natural duty
of a man to provide these amenities to his wife, parents and children in form of maintenance.
The Indian law laws down the duty of a man to provide maintenance to his parents, wife and
children when they are unable to maintain themselves.

A person is entitled to basic amenities of life like food, clothing, shelter and other necessary
requirements to live a dignified life. Under the principles of social justice, it is the natural duty
of a man to provide these amenities to his wife, parents and children in form of maintenance.
The maintenance law in India lays down the duty of a man to provide maintenance to his
parents, wife and children when they are unable to maintain themselves. Maintenance in law
is defined as the amount which is paid to dependent wife, child or parents to maintain
themselves. The amount can be paid either by doing one lump sum payment or by way of
monthly installments.

Section 125 of the Code of Criminal Procedure, 1973 lays down the concept of maintenance in
India, along with the different personal laws that extend the right of maintenance to not only
the wife but also to the parents, children as well as divorced wife. Personal laws relating to
maintenance in India are applicable to people belonging to that religions, whereas the
maintenance claim under Section 125 of the CrPC can be filed by anyone regardless of religion
or caste. Law of maintenance in India gives the procedure as to how to claim maintenance for
a child in India and also for wife.

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 MAINTENANCE UNDER HINDU LAW

One of the conditions provided for a valid Hindu marriage is that neither party should have a
spouse living at the time of marriage. Hence, second marriages are declared null and void ab
initio.

As per the Hindu Adoption and Maintenance Act, 1956, a Hindu male is legally obligated to
maintain his spouse. Maintenance includes provision for food, residence, clothing, education
and medical attendance and treatment. The Criminal Procedure Code also provides for a
provision for maintenance, regardless of religion. As per the Code, only a legally wedded wife
is entitled to receive maintenance. In this capacity, “wife” also includes a divorced wife and
she can claim maintenance from the person she was married to. A woman, who stands as a
second wife to a man, is not granted such a right since the second marriage is declared void by
the law.

The issue of right to maintenance to the second wife has been faced by various High Courts as
well as the Supreme Court, and the courts have given different views depending upon the facts
and circumstances of each case, thus giving diverse interpretation to the expression “wife”
under Section 125 of the Code of Criminal Procedure. Discussed below are a few cases where
courts faced the aforementioned issue.

The issue was first discussed in Narayanaswami v. Padmanabhan where the Madras High
Court did not take a liberal approach and held that, under Section 25 of the Hindu Marriage
Act 1955, only a wife, who is legally wedded or whose marriage is not void or null, can claim
maintenance from her husband. Meaning thereby, that a woman, whose marriage is in
contravention with Section 5(i) of the Hindu Marriage Act 1955, is not entitled to claim
maintenance under Section 25 of the act.

Whereas, in the case of Laxmi Bai v. Ayodhya Prasad the Madhya Pradesh High Court
presented the view that the expressions ‘wife’ and ‘husband’ should not be construed as only
legally wedded wife and husband, rather they should be taken to mean ‘a person claiming to
be a wife or a husband’. Thus, it held that the matrimonial courts have the power to regulate
the relationship between the parties, and these powers should also be exercised by the courts
in cases of invalid or bigamous marriages.

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A similar view was put forth by other high courts in other cases like

Govindrao Ranoji v. Ayodhya Prasad, Rajeshbhai v. Shantabai and Mallika v. P.

Kundanlal. However, in the case of Bhausaheh v. Leelahai the Bombay High Court ruled that
Section 25, though it implies the welfare of a married woman should not have any unnecessary
inclination such that a woman, whose marriage is void, can be entitled to claim maintenance.
The court also opined that it will lead to a bizarre situation if a uniform meaning of the
expression ‘wife’ is not ascertained for the purpose of providing maintenance under Section
125 of Criminal Procedure Code, 1973.

There are some cases where an innocent woman is conned into marrying a previously married
man and the wife has to suffer, since she being an illegitimate wife, cannot claim maintenance.
The Supreme Court in Bakulbai v. Gangaram and Yamunabai v. Anantrao decided in
keeping with settled law and held that, a woman, who stands as a second wife to a man who
already has a living spouse at the time of the second marriage is not sanctioned the right to
maintenance. Even if the wife is unaware of the subsistence of the previous marriage, she has
no claim. For the purpose of maintenance under Section 125 of CrPC, it has to be shown that
the couple has been living as husband and wife. Then the court presumes them to be a legally
wedded couple. This can be disproved by producing sufficient evidence that the marriage is
not valid but void. Thus, in such situations no relief can be granted under Section 125.

In some cases the couple continues to live as husband and wife for many years. In such cases,
courts have adopted a liberal, and not a conservative approach towards interpreting the word
‘wife’ and have directed the husband to grant maintenance to his wife in such situations.
In Narinder Pal Kaur Chawla v. Manjeet Singh Chawla, the husband did not disclose the fact
of his previous marriage to his wife and subsequently married the appellant and they remained
as husband and wife for a substantive period of time. The Delhi High Court opined that a second
wife, whose marriage is illegitimate, has a right to be maintained under Section 18 of the Hindu
Adoptions and Maintenance Act 1956 because this is such a case where, if maintenance is not
provided to the wife, it would act as an encouragement to the respondent in defrauding the
second wife.

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 MAINTENANCE UNDER MUSLIM LAW

The concept of maintenance under Muslim personal law is distinct and shows a substantial
contrast to the concepts which are reflected under the personal laws of other communities in
India. Maintenance, under the Muslim law, is known as ‘nafqah‘. This includes food, clothing
and lodging. A woman, whose marriage is performed as per Muslim law and who has attained
an age at which she can render conjugal rights to her husband is entitled to receive maintenance.
If the marriage is void or irregular, except where there were not sufficient witnesses, the
Muslim husband is not obliged to pay any amount of maintenance to his wife.

Under Islamic or Muslim law, men are allowed to practice polygamy, meaning they have a
right to marry more than one wife at one point in time, though the upper limit is four. Unlike
Hindu law, such marriage, while the first marriage subsists is not declared void. Hence, a
second wife is entitled to all the rights as the first. The wife of a Muslim man, whether she is
the first wife or the second, has the right to claim maintenance from her husband. From the
time she is old enough for matrimonial intercourse, the Muslim husband’s duty to maintain her
arises. However, the death of the husband puts an end to the right of the wife to claim
maintenance. Prior to Mohammad Ahmed Khan v. Shah Bano Begum,a Muslim wife was
not entitled to claim maintenance after the completion of her iddat period. Shah Bano was a
62-year-old Muslim woman. Her husband divorced her and she filed a criminal suit in the
Supreme Court of India. She claimed maintenance and the same was granted in her favor. It
was held that, a Muslim wife is entitled to the right to claim maintenance under Section 125 of
Criminal Procedure Code even after the expiry of iddat period as long as she is not remarried
and she is not able to sustain herself from the dower received at the time of divorce. Yet, the
Indian Parliament reversed the judgment, and consequently, she was denied the right to claim
alimony. The judgment raised controversies among Muslims since the judgment was in conflict
with Islamic Law. With this case the Muslim Women (Protection of Rights on Divorce) Act,
1986 was passed, which diluted the judgment of the Supreme Court and denied the right to
claim maintenance to a Muslim woman from her former husband. According to Section 3 of
this act :

A Muslim woman is entitled to be maintained only within her iddat :

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Where she gives birth to children, whether before or after divorce, she is entitled to
maintenance for a period of 2 years from the date of birth of such children.

If her husband fails to provide for her maintenance, she has a right to claim it from the relatives
who are entitled to inherit her property after her death.

It is quite an irony that the Act has been named the Muslim Woman (Protection of Rights on
Divorce) Act as at the same time it took away whatever rights have been guaranteed to Muslim
divorced women by the holy Quran.

But, in Daniel Latifi v. Union of India,the court upheld the judgment of Shah Bano case. It
was done to give regard to the constitutional validity of Section 3(1)(a) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986. The statutory provision should be given
interpretation in such a manner that it does not stand in conflict with Articles 14, 15 and 21 of
the Indian Constitution. Thus, a Muslim husband had a duty to make reasonable provision for
the maintenance of the divorced wife even after the completion of her iddat period.

In Shabana Bano v. Imran Khan, it was held that Section 125 of Criminal Procedure Code
read with the Muslim Women (Protection of Rights on Divorce) Act, 1986, stated that a Muslim
woman should be designated to demand alimony from her husband even after she completes
her iddat but only until the time she remarries.

Many Muslims including All India Shia Personal Law Board supported the Supreme Court of
India‘s order to make the right to maintenance of a divorced Muslim wife absolute.

MAINTENANCE UNDER PARSI LAWS

The Parsi Marriage and Divorce Act, 1936 gives the right to maintenance to a Parsi woman.

The court can award a maximum of one-fifth of husband’s net income as maintenance. The

court considers factors like the husband’s capability to pay, property and other assets owned

by the wife and the personal conduct of the husband and wife. The husband is liable to pay

maintenance to the wife for her lifetime only if she remains unmarried and chaste after the

divorce.

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 MAINTENANCE UNDER CHRISTIAN LAW

The Indian Divorce Act, 1869 governs maintenance rights of a Christian wife. Under Section

37 of the Indian Divorce Act, 1869, she can apply for maintenance in a civil court or High

Court. The husband will be liable to pay maintenance for her lifetime.

MAINTENANCE UNDER SECTION 125 OF CODE OF

CRIMINAL PROCEDURE,1973.

Under Section 125 of the Code of Criminal Procedure, 1973, right of maintenance extends not

only to the wife and dependent children but also to indigent parents and divorced wives. The

maintenance claim depends upon the husband’s capability to provide sufficient means. One

question that is generally asked is what is the maximum maintenance under Section 125?

Previously, the maintenance claim was limited to Rs. 500 per month but now the magistrate

has the power to award a reasonable amount of maintenance as they deem fit.

A Class I Magistrate may order a person to pay a monthly allowance for the maintenance of

his wife, child, father or mother when there is valid proof of neglect and refusal by the man to

maintain them. However, under Section 125 of the CrPC, a wife will not be entitled to receive

maintenance if she has committed adultery, refuses to live with her husband or separates from

her husband by mutual consent.

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 WEBLIOGRAPHY

1. https://www.myadvo.in/blog/laws-relating-to-maintenance-in-india/

2. https://www.lawctopus.com/academike/right-claim-maintenance-2/

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