FAMILY LAW- I

PROJECT
ON

Maintenance UNDER HINDU MARRIAGE

ACT,1955
BY : TO:
Porush Jain Dr. Nancy Sharma
Roll No. : 209/19 Assistant Professor
B.Com.LL.B(Hons)-D
Sem. : 3rd

Acknowledgment

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I would like to express my gratitude to my Constitution teacher, Dr. Shruti Bedi
, and to the Director , Dr. Rajinder Kaur , for providing me with the opportunity
to do this project and to do research on the topic – State Under Article 12 .
This project has helped me a lot in doing research and I got to learn many new
things from it about the topic and the subject. I also want to thank my teacher ,
friends and family to help in doing this project .

I hope this project serves it purpose and is worthwhile to all the readers

Table of Cases

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Gita Chatterjee V. Prabhat Kumar……………………………7
Jagdish V. Manjula…………………………………………...8
Mohd. Ahmed Khan V. Shah Bano Begum………………….11
Raja Gopalan V. Rajamma…………………………………...8
Ramparatapji Daga V. Rameshwari………………………….7
Silla vs Silla………………………………………………….9
Urmila V. Hariram…………………………………………...8
Veena V. Jatinder……………………………………………8

Index

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Introduction………………………………………………………5

Maintenance under Hindu Marriage Act…………………………6

Interim Maintenance……………………………………………..6-7

Permanent Maintenance………………………………………….7-9

Maintenance under CrPC…………………………………………10

Comparison………………………………………………………. 11

Conclusion……………………………………………………….. 12

Reference…………………………………………………………13

Introduction

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The whole concept of maintenance was initiated in order to see that if there is a
spouse who is not independent economically than the other spouse should help
him/her in order to make the living of the other person possible and
independent. The maintenance may be in a gross sum or on periodical or
monthly basis. Section 24 and 25 of the The Hindu Marriage Act, 1955 provide
for maintenance and alimony. Under this act, alimony and maintenance can be
claimed by either party whether husband or wife. The right to claim for
maintenance under section 24 and 25 is an independent right available to the
parties. Therefore, to claim that marriage was void ab initio is no defence.
Obligation of payment of maintenance can either during the subsistence of the
marriage or after the dissolution of the marriage. The most important aspect of
maintenance is that the party which relies on maintenance has no independent
source of income to support himself/herself. The Corpus Juris defines alimony
as “the allowance required by law to be made to wife, out of her husband’s
estate for her support either during the matrimonial suit or on its termination.”
The assumption underlying maintenance and alimony is that the husband has to
maintain the wife, not merely during the period she remains his wife but also
after divorce, so long as she doesn’t remarry. The main purpose of granting
maintenance is to maintain the standard of living of the spouse equivalent to
that of the other spouse and in accordance with status prior to the separation. It
is granted during the proceeding of decree or after the decree of divorce and
ceases to exist on the death or remarriage of the alimony holder.

Types of Maintenance under Hindu Law

Under the Hindu maintenance laws, there are 2 types of maintenance that can be
claimed by the wife. When the wife files a maintenance petition through her

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divorce attorney, the burden to declare his income shifts to the husband, who
has the right to defend the maintenance petition. The 2 types are :

1. For maintenance pendent lite or Interim Maintenance Section 24

2. Permanent Maintenance and Alimony under section 25.

Interim Maintenance :
Section 24 of Hindu marriage act states that “Where in any proceeding under
this Act it appears to the court that either the wife or the husband, as the case
may be, has no independent income sufficient for her or his support and the
necessary expenses of the proceeding, it may, on the application of the wife or
the husband, order the respondent to pay to the petitioner the expenses of the
proceeding, and monthly during the proceeding such sum as, having regard to
the petitioner's own income and the income of the respondent, it may seem to
the court to be reasonable: 54 [Provided that the application for the payment of
the expenses of the proceeding and such monthly sum during the proceeding,
shall, as far as possible, be disposed of within sixty days from the date of
service of notice on the wife or the husband, as the case may be.”

An application for interim maintenance can be made both at the trail court as
well as appellant court. The maintenance can be claimed by both petitioner and
the respondent. Claim may be made for Personal maintenance of the claimant
and the expenses of processing. The only requirement is that the claimant
should establish that he or she has no independent income sufficient income for
his or her maintenance and he or she need to meet the expenses of the
proceeding. It also include the travelling expenses of the litigation. Interim
maintenance is awarded by the court if the wife has absolutely no source of
income to maintain herself. There are no laws that lay down the amount of this
type of maintenance and it is completely upon the discretion of the court
determine how much maintenance is sufficient for the wife to sustain during the
proceedings.

It may be observed that Section 24 uses the word “Income” while Section 25
uses the word “income and other property”. The distinction between the
expression came into consideration in case of Gita Chatterjee V. Prabhat

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Kumar1 it was held that the word in Section 24would not include other property
or assets. Thus the court will regard only to the income of the applicant and not
his or her assets or property not yielding any income.

Permanent Maintenance and Alimony

Permanent maintenance is paid by the husband to his wife in case of divorce,
and the amount is determined through a maintenance petition filed through a
divorce law lawyer in India. Section 25 of the Act states that the court can order
the husband to pay maintenance to his wife in form of a lump sum or monthly
amount for her lifetime. On the application of either spouse, the court may pass
an order for permanent alimony and maintenance at the time of passing of the
decree granting the petition or at any time after passing of the decree granting
the petition. When a claim of permanent alimony and maintenance is made after
the passing of decree, it should be done by a petition in the court which granted
the petition. When the petition has been dismissed, no application or petition for
permanent alimony and maintenance can be made under Section 25. In case of
Ramparatapji Daga V. Rameshwari2 the supreme court held that the
expression “at the time of passing of any type of decree” thus it include all
decrees governed by Section 9 to Section 13 of Hindu Marriage Act, 1955,
court can award maintenance at the time of passing of any type of decree
resulting in breach of marriage relationship. The wife under the voidable and
void marriage is also entitled to Maintenance and alimony 3. A clause in an
agreement of divorce by mutual consent cannot state that the wife would not
claim any permanent alimony. Right of maintenance is a larger part to life and
any such clause would be against the public policy.

In fixing the amount of maintenance the court is required to take into the
consideration the following matter :

1
1988 Cal 83
2
2005 S.C 422
3
Soumyanarayanan vs Jayalakshmi Ammal 1975 Mad 196

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1. Income and other property of claimant and non-claimant : In fixing the
amount of maintenance the court takes into the consideration the income of both
parties and also the property of them. The court may pass order that the non-
claimant should pay to the claimant some gross some or monthly or periodicay
the some gross amount. According to the practice of English law the montly
allowance is the 1/3rd of the salary of the non-claimant. In Indian courts this is
followed as a mere guideline and there is no rigidity about it. It differ case to
case it may be high or low. In case of Urmila V. Hariram4 the high court
fixed the income of an abled bodied husband who was not earning anything at
the minimum wages fixed by the state and ordered him to pay 100 rupees per
month to his wife.

2. Conduct of Parties: The term conduct is used in wider sense and it include
the conduct of parties towards each other, conduct of parties towards the
marriage and conduct of the parties towards the court. In case of Raja Gopalan
V. Rajamma5 , The Kerala high court held that if a matrimonial petition is
decreed on account of wife’s adultery she can’t claim any maintenance. May be,
a woman has committed adultery once, this does not necessarily mean that all
her life she should be condemned to live in adultery. If at any time when court
passed an order, there is no evidence on the record that she is leading an
unchaste life, she should be allowed to maintenance. In case of Jagdish V.
Manjula6 it was held that the wife cannot be denied of maintenance and
alimony on ground that the decree was passed against her order on account of
her cruelty.

Maintenance of Children: Under this section court can also grant

maintenance for children. Like in case of Veena V. Jatinder7 the court awarded
maintenance for daughter also have asked the husband to pay the some money
to her daughter.

Variation of Orders
Under the Section25(2), the court has power to vary, modify ordischarge any
order of permanent alimony at the instance of either party if change of
4
1988 P&H 81
5
1966 KLT 891
6
1975 Cal 64
7
1966Del 54

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circumstances is shown. For eg if wife suffers from any chronic disease then the
court may ask the husband to give more maintenance for the treatment.

An order of maintenance may be rescinded by court at any time. Section

25(3) lays down two circumstances in which an order passed in favour of a
party rescinded: 1. If he or she has remarried

2. If she (in case of wife) has not remained chaste or he(in case of
husband)has sexual intercourse with any woman.

3. The resumption of cohabitation by the parties after maintenance

order.

Order of maintenance when petition is dismissed: In Silla vs Silla8 the

petition of divorce filled by husband was dismissed by trail court. The wife
filled the petition of maintenance as they were leaving separately. The trial
Court by order allowed the petition and awarded a sum of Rs. 5007- per month
for the rest of her life as long as she remains unmarried.

Maintenance under Ss 125 of CrPC

The word ‘Maintenance’ is not defined in the Code of Criminal Procedure,
1973. Chapter IX of the Code of Criminal Procedure deals with provisions for

8
1984 AP 8

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maintenance of wives, children and parents. ‘Maintenance’ in general meaning
is keeping something in good condition. ‘Maintenance’ in legal meaning is
money (alimony) that someone must pay regularly to a former wife, husband or
partner, especially when they have had children together. It is the duty of every
person to maintain his wife, children and aged parents, who are not able to live
on their own. According to Section 125(1), the following persons can claim and
get maintenance Wife from his husband, Legitimate or illegitimate minor child
from his father, Legitimate or illegitimate minor child (physical or mental
abnormality) from his father, and Father or mother from his son or daughter.
There are some essential conditions which should be fulfilled for claiming and
granting maintenance Sufficient means for maintenance are available, Neglect
or refusal to maintain after the demand for maintenance, The person claiming
maintenance must be unable to maintain himself/herself,Quantum of
maintenance depends on the standard of living.

Maintenance of Wife under Hindu and

Muslim Law: Comparison

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A Hindu woman is more privileged than Muslim women. On the basis that, a
Hindu woman is entitled to maintenance by her husband throughout her life. A
married woman who refuses to live with her husband because her husband is
liable for desertion or liable for cruelty or is suffering from leprosy or liable for
bigamy or convert his religion without the consent of the wife can claim a
special allowance under this Act. But in case of Muslim women, she is entitled
to maintenance by her husband only during the iddat period. The court tried to
make both the communities on the same line and tried to provide women of
both the with communities with maintenance throughout the life. The judiciary
tried to allocate women of both communities with equal opportunities and
rights. In landmark case of Mohd. Ahmed Khan vs Shah Bano Begum And
Ors9 The court held that without any discrimination, Section 125(3) applies to
muslim women too. The concept of muslim husband’s responsibility towards
his wife only till the iddat period cannot suffice to contemplate the rule laid
down in Section 125 CrPC. But as usual in the case of Indian democracy the
congress government bowed in front of the vote bank politics and brought in the
“The Muslim Women (Protection of Rights on Divorce) Act, 1986” and it came
into light that the Muslim Woman cannot claim maintenance under Section 125
of Code of Criminal Procedure.

Conclusion
The concept of maintenance is interpreted in different ways under different
statutory provisions yet the purpose of it is to grant support. Thus, Code of
9
1985 SCR (3) 844

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Criminal Procedure through Section 125 aims at providing individuals
following different religions to seek alimony through a uniform way. For the
basis livinghood maintenance is very necessary for it. No one should be
discrimated on the bases of religion for the maintenance and Ss 125 of CrPC
should be uniformly applicable to all.

References

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https://blog.ipleaders.in/

https://blog.ipleaders.in/proceedings-for-maintenance-of-wives-children-and-
parents

https://acadpubl.eu/

Dewan,Paras,(2020),Allahabad Law Publisher.

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