Women Law Project

TOPIC-: MAINTENANCE UNDER VARIOUS PERSONAL LAWS

Submitted By

M. DANIYAL SIRAJ

BALLB (HONS)

SEMESTER-VIII
ENROLLMENT NO- GL0749
FACULTY NO- 18BALLB55

Project Assignment

Submitted To

Dr. Asif Shah Iqbal

Asst. Professor,
SYNOPSIS

1- INTRODUCTION.

2- MAINTENANCE UNDER SECULAR LAW- CrPc

3- MAINTENANCE UNDER HINDU LAW.

4- MAINTENANCE UNDER MUSLIM LAW.

5- MAINTENANCE UNDER CHRISTIAN LAW.

6- MAINTENANCE UNDER PARSI LAW

7- CONCLUSION.

8- BIBLIOGRAPHY.
 ACKNOWLEDGEMENT

I WOULD LIKE TO EXPRESS A DEEP SENSE OF

THANKS & GRATITUDE TO MY PROJECT GUDIE Dr. Asif Shah Iqbal

FOR GUIDING ME IMMENSELY

THROUGH THE COURSE OF THE PROJECT.

I ALSO THANKS TO MY SENIORS FOR THEIR MOTIVATION &

SUPPORT. I MUST THANKS TO MY CLASSMATES FOR THEIR
TIMELY HELP & SUPPORT FOR COMPLETION OF THIS PROJECT.

LAST BUT NOT THE LEAST, I WOULD LIKE TO THANKS TO ALL

THOSE WHO HELPED ME DIRECTLY OR INDIRECTLY TOWARDS THE
COMPLETION OF THIS PROJECT.

THANKING YOU

M. DANIYAL SIRAJ

BALLB-4th Year GL0749

18BALLB55
1- INTRODUCTION: -

India is a secular country, but the Indian understanding of the concept of secularism is different
from the worldwide notion of the term. In India, secularism does not just simply mean that the
government does not acknowledge any religion. Rather, it means that the state acknowledges
and respects all religions, and allows everyone to follow their own personal laws.

The legal definition of maintenance is the financial support that is paid by one ex-spouse to
another pursuant to a legal separation or divorce. This financial support is for the wife’s or
the divorced wife’s livelihood, for her children, for the maintenance of the property, and in
certain cases, even to enable her to be adequately represented in the lawsuit.

The provisions regarding maintenance are different in different laws. But, there is also a secular
law of maintenance that is given in Section 125 of the Code of Criminal Procedure, 1973. For
Hindus their laws of maintenance are provided in their personal laws; for Muslims, it is given in
the Muslim Personal Law; and for the Christians and Persis, in their respective personal laws. At
the same time, the law of maintenance under CrPc is also given, which is secular in nature, so
can be evoked by any person, irrespective of their religion. This is a unique feature in the CrPc
as compared to the other personal laws.

2- MAINTENANCE UNDER THE CRPC: -

Maintenance under the CrPc is secular in nature, as any woman belonging to and practicing
any religion or faith can approach the Court under this. The law of maintenance is given under
the Sections 125-128 of the Criminal Procedure Code, and is civil in nature. Under this
Section, maintenance can be claimed by the wife, children and parents. Section 125 to 128
provide for a speedy, effective and rather inexpensive remedy against persons who neglect or
refuse to maintain their dependent wives, children and parents.

In this research project, the focus is solely on the wife of the person. According to (b) part of the
Explanation to the Section 125, the term “wife” includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not remarried. So, the provision for
maintenance under this section extends to a divorced wife also, and not only a married wife.

This law, though secular, is gender specific in one aspect. Maintenance under this law can only
be claimed by the wife, and not by the husband. The interpretation of the word “wife” also needs
to be looked into. According to the Supreme Court judgment in Savitaben Somabhai Bhatiya v.
State of Gujarat, the term “wife” appearing in Section 125(1) means only a legally wedded wife.

But, in the recent judgments of D. Velusamy v. D. Patchaiammal and Chanmuniya v. Virendra

Kumar Singh Kushwaha the Supreme Court ruled that in cases where the woman who was in a
marriage-like relationship, will though not be considered to be a legally wedded wife under
Section 125, can still claim maintenance under the Protection of Women from Domestic
Violence Act, 2005.

So, with such great emphasis on the wife being a legally wedded wife, what happens to the
second wife, in religions that only allow monogamous relationships? This question will be
dealt with in the next chapters of this research paper.

3- MAINTENANCE UNDER THE HINDU PERSONAL LAW: -

Under the Hindu Personal Law, the maintenance of women comes under the Hindu Marriage
Act, 1955 and the Hindu Adoption and Maintenance Act, 1956.

Section 18 of the Hindu Adoption and Maintenance Act, 1956 provides for the maintenance of
the wife by the husband. For the purposes of this Section, the term wife does not include a
divorced wife. This Section only applies to the married wife. The husband is obliged to
maintain her during her lifetime. He is also obliged to maintain her even if she is living
separately from him, if such separation is justified under any of the reasons given under this
particular Section.
This Section is also gender specific in nature.

Whereas, the provision for maintenance under Section 25 of the Hindu Marriage Act,
1955 stands on a different footing. Under this Section, either the husband or the wife can claim
maintenance. Either of the parties can apply to the Court for maintenance. It is not limited to
only the wife. Though, the parameters for deciding whether a person will receive maintenance or
not, is gender-specific. This means that for women, the parameter is different from that for men.

According to the case of Kanchan v. Kamlendra, it was held that the husband is only entitled to
get maintenance from his wife if he was physically or mentally incapable of having an
independent income. Whereas, as decided in the case of Manokaran v. Devaki, the wife is
entitled to maintenance if at any point during the proceeding, it is seen that she does not have
any sufficient independent income. So, the wife only needs to prove that she does not have any
sufficient and independent income. Whereas, the husband also needs to prove that he is
incapable of earning. Also, in the case of Chitra v. Dhruba, it was decided that the maintenance
does not only mean to provide for bare existence, rather, it means that the claimant must also be
in equal level of comfort as the other spouse. So, the quantum of the maintenance must also be
fixed accordingly.

Also, in the case of Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga,
it was held that the expression “at the time of passing any decree” encompasses all decrees
passed under Sections 9 to 13 of the Hindu Marriage Act, 1955. Thus, the Court can award
maintenance at the time of passing of any type of decree resulting in the breach of marriage.

4- MAINTENANCE UNDER THE MUSLIM PERSONAL LAW: -

Under the Muslim Personal Law, the law states that the husband who has divorced his wife
has to provide maintenance for her during the period of Iddat. The Hedaya defines
maintenance as “All those things which are necessary to support life, such as food, clothes and
lodging; may confine solely to food.” The Fatwa-i-Alamgir defines it as “Maintenance
comprehends food, raiment and lodging, though in common parlance it is limited to the first”.

So, in common practice, the maintenance only covers the expense of providing food to the wife.
The Muslim Personal Law only mandates that the husband needs to maintain his wife, and not a
divorced wife. After divorce, he only requires to maintain her for the Iddat period. Usually, the
payment of dower is considered to be enough maintenance for the wife.

The law of maintenance in the Muslim Personal Law has evolved through various cases in the
following manner-

In the case of Bai Tahira v. Ali Hussain, it was held that since the dower amount comes under
the meaning of the term ‘sum payable’ as given under Section 127(3)(b) of the CrPC, so a
woman who has already received it is not entitled to further maintenance under Section 125 of
the CrPC.
In the next case of Fuzlunbi v. K. Khader Vali, it was decided that only after judging the
sufficiency of the amount of mehr, will the husband be released from making any further
payments.

Then, in the light of the landmark case of Mohammed Ahmed Khan v. Shah Bano Begum, it was
finally cleared out that mehr does not come under Section 127(3)(b), as it is an obligation on the
husband and is paid as a mark of respect for the wife, and not the amount payable to the wife on
divorce.

After that, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed where
provided that reasonable and fair provision is to be made and maintenance is to be paid within
the iddat period.

The case of Danial Latifi v. Union of India was then filed challenging the validity of the above
Act, where it was held that it was constitutionally valid, and though the maintenance has to be
paid within the iddat period, it must be enough to maintain her for her whole life.

Finally, in the case of Abdul Latif Mondal v. Anuwara Khatun, it was discussed that since the
objective of Section 125 of the CrPC was to prevent the woman from destitution, and since it is
speedier, so the Muslim women can still claim maintenance under Section 125 of the CrPC.

5- MAINTENANCE UNDER CHRISTIAN LAW: -

A Christian woman can claim maintenance from her spouse through criminal proceeding
or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings,
simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties
does not matter at all, unlike in civil proceedings.

If a divorced Christian wife cannot support her in the post-divorce period she need not worry as
a remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply
for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her
alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which
is only applicable to those persons who practice the Christianity religion inter alia governs
maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law
and the same considerations are applied in granting maintenance, both alimony pendente lite and
permanent maintenance. The provisions of THE INDIAN DIVORCE ACT, 1869 are produced
herein covered under part IX -s.36-s.38.

6- MAINTENANCE UNDER PARSI LAW:

Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil
proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously
as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't
matter at all unlike the civil proceedings.
If the Husband refuses to pay maintenance, wife can inform the court that the Husband is
refusing to pay maintenance even after the order of the court. The court can then sentence the
Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so
long as he does not pay. The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife
to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that
can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-
fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court
will determine what is just, bearing in mind the ability of husband to pay, wife's own assets and
conduct of the parties. The order will remain in force as long as wife remains chaste and
unmarried.

In Parsi Law, the concept of maintenance is largely similar to that under Christian laws, with
one significant difference. In the case of Parsis, husbands may also claim maintenance. The
precondition of chastity is applicable to Parsis as well, and the maintenance amount may not be
beyond 1/5th of the relevant spouse’s income.

Apart from the religion-specific provisions mentioned above, it may be noted that a separating
wife may also claim maintenance under Section 125 of the Code of Criminal Procedure, 1973.
7- CONCLUSION: -

There are various differences in the laws of maintenance as given under the various personal
laws as well as in the secular law of CrPC.

Under the Hindu Laws, the male counterparts are also eligible to receive maintenance. But in
cases of second marriage, the second wives can only get respite under the secular law of
maintenance under Section 125 of the CrPC. So, the CrPC is a better recourse to get maintenance
compared to the Hindu Personal Law.

In case of Muslim women, it is definitely more beneficial for them to approach the Court under
the CrPC for claiming maintenance, rather than under their personal law. The CrPC provides a
reasonable quantum of maintenance. Also, it also applies on divorced women, unlike the Muslim
Personal Law. It also provides for a lifetime maintenance, unlike the Muslim Law that only
provides for maintenance till the Iddat period.

Thus, through the whole discussion and comparison, it would be expedient to conclude that the
CrPC, being a secular, just, effective, inexpensive and speedy method, is the most favourable
path to be opted by the divorced women to choose to receive maintenance.

8- BIBLIOGRAPHY: -

• Diganth Raj Sehgal, Maintenance under CrPC and personal laws- a comparative study,
https://blog.ipleaders.in/maintenance-crpc-personal-laws-comparative-study/
• Romit Agarwal, Maintenance: Under Hindu, Muslim, Christian And Parsi Laws,
http://www.legalserviceindia.com/articles/hmcp.htm#:~:text=Right%20to%20maint
enance%20forms%20a,indigent%20parents%20and%20divorced%20wives.&text=
Claim%20of%20maintenance%20for%20all,to%20Rs%20500%20per%20month.
• By Admin, Maintenance Rights Under Various Personal Laws,
https://vakilsearch.com/advice/maintenance-rights-under-various-personal-laws/