MAINTENANCE OF WOMEN UNDER PERSONAL LAWS AND CRPC

UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY, CHANDIGARH

SUBJECT: FAMILY LAW

MAINTENANCE OF WOMEN UNDER

PERSONAL LAWS AND CRPC, 1973
(A PROJECT REPORT SUBMITTED AS A PART OF CURRICULUM
FOR MASTER OF LAWS (SESSION 2023-24))

SUBMITTED TO SUBMITTED BY:

Mr. Nitin Sansanwal Mansi Thakur

Roll no. 23085

Semester- 2

Masters of Laws (2 Year)

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ACKNOWLEDGEMENT
I take this opportunity to express my profound gratitude and deep regards to my teacher
Mr. Nitin Sansanwal for his exemplary guidance and constant encouragement. I would
also like to take this opportunity to express a deep sense of gratitude to the University
Institute of Legal Studies’ library staff for cooperating with me and helping me to find the
required books.

Lastly, I thank almighty, my parents, and friends for their constant encouragement and
moral support without which this project would not be possible.

- Mansi Thakur

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LIST OF ABBREVIATION

A.I.R. : All India Reporter

Anr. : Another

Bom. : Bombay

Ch. : Chapter

Co. : Company

Cr.P.C. : Criminal Procedure Code

Cr.A. No. : Criminal Appeal Number

Cri. L.J. : Criminal Law Journal

D.V.A. : Protection of Women from Domestic Violence Act

e.g. : Example

Ed. : Edition

HAMA : Hindu Adoption And Maintenance Act

HMA : Hindu Marriage Act

Ibid. : Ibidem

IDA : Indian Divorce Act

IPC : Indian Penal Code

PMDA : Parsi Marriage and Divorce Act

Pvt. Ltd. : Private Limited

S. : Section

S.C.C. : Supreme Court Cases

u/s. : Under Section

v. : Versus

Vol. : Volume

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TABLE OF CASES

SR. CASE LAWS

NO.
13. Abdul Latif Mondal v. Anuwara Khatun, 2002 CRILJ 2282
8. Badshah v. Sou. Urmila Badshah Godse & Anr, AIR 2014 SC 869
15. Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16.

7. Bhaurao Shankar Lokhande & Anr v. State Of Maharashtra & Anr, AIR 1965
SC 1564.
3. Chanmuniya v Virendra Kumar Singh Kushwaha, 2011 (1) SCC 141.

2. Chaturbhuj v Sita Bai, (2008) 2 SCC 316.

11. Danial Latifi v Union of India, AIR 2001 SC 3958.

4. K.Sivarama vs K.Bharathi, (1986) Cri LJ 317
6. Mangala Bhivaji Lad v. Dhondiba Rambhau Aher, AIR 2010 Bom.122
12. Mohammed Ahmed Khan v. Shah Bano Begum, 1985 AIR 945
9. Rajesh Bai v. Shantabai, AIR1982BOM231

1. Savitaben Somabhai Bhatiya v State of Gujarat, (2005) 3 SCC 636.

10. Shambhu Nath Pathak v. Kanti Devi, AIR 2014 PATNA 147
5. Somabhai Bhatiya v State of Gujarat, AIR 2005 SC 1809
14. Velusamy v. D.Patchaiammal, AIR 2011 SC 479.

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TABLE OF CONTENT

S. CONTENT PAGE NO.

NO.
1. INTRODUCTON 6
2. MAINTENANCE 7- 21

A. UNDER PERSONAL LAWS (7-17)

1. Hindu Law
2. Muslim Law
3. Christian Law
4. Parsi Law

B. UNDER SECULAR LAWS (18-21)

1. Special Marriage Act, 1954
2. Protection Of Women From Domestic Violence Act, 2005
3. Criminal Procedure Code, 1973
3. CONCLUSION 22
4. REFERENCES 23-24

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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. In such a democratic
setup the subject of Maintenance is governed both, by personal laws and by secular laws.

Maintenance refers to an amount paid by a person to another person who is dependent on him and
who is unable to maintain himself. Since, this project deals with the maintenance of wife only,
therefore, in that context, a maintenance is an amount or sum of money paid to a spouse or ex-
spouse for financial support, either to maintain herself during the continuity of a marriage or;
during or after matrimonial proceedings. The legal definition of maintenance for 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 right of a woman to claim maintenance stems from the moral and legal duty of the husband to
maintain his wife and children1.In India, the law on maintenance is governed by personal laws as
well as secular laws like the Code of Criminal Procedure, 1973. Over the years, the judiciary has
expounded on the rights of women to claim maintenance through various landmark judgments.2

1
Savitaben Somabhai Bhatiya v State of Gujarat, (2005) 3 SCC 636.
2
Chaturbhuj v Sita Bai, (2008) 2 SCC 316.
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MAINTENANCE

India is a country which is extremely rich in different culture, traditions and religions. Thus, it has
various personal laws which are in practice till date. Hence, the law of maintenance is governed by
various personal and secular laws. Here are some of the laws which talks about maintenance.

MAINTENANCE
PERSONAL SECULAR
LAWS LAWS

-SPECIAL MARRIAGE
-HINDU LAW ACT, 1954
-MUSLIM LAW -DOMESTIC
-CHRISTIAN LAW VIOLENCE ACT, 2005
-PARSI LAW -CODE OF CRIMINAL
PROCEDURE, 1973

A. PERSONAL LAWS:

• MAINTENANCE UNDER HINDU LAW3

As per the ancient Hindu Law, it is husband’s duty to maintain his wife, and the same is followed
till date. The Courts have held that the husband cannot shirk his responsibility towards
maintenance on the ground that the wife is capable of earning and looking after herself.4
Maintenance depends on the husband’s means and the woman’s necessities, standard of living,
upbringing, etc.

3
Right to Claim Maintenance of Women in India: An Overview of Judicial Decisions, available at:
https://lawfoyer.in/right-to-claim-maintenance-of-a-woman-in-matrimonial-disputes-in-india-a-detailed-analysis-of-
judicial-decisions/ (Last visited on April 1, 2024).
4
Supra Note 2.
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The Hindu Adoptions and Maintenance Act, 1956 codifies the right of a Hindu wife to claim
maintenance from her husband during her lifetime. The factors considered for determining the
quantum of maintenance under Hindu law include spouses’ status and conduct, wife’s reasonable
wants and necessities, her own income and property value, and the husband’s ability to pay
maintenance. Maintenance is considered an ancillary relief to the main proceedings under the
Hindu Marriage Act, 1955 like divorce or restitution of conjugal rights. The Supreme Court has
held that even if the wife fails to establish a valid marriage, she will be entitled to maintenance if
she has cohabited with the man and they have lived as husband and wife for a long period.

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

I. Section 24 HMA, 1955- Interim Maintenance (Pendente Lite)

Under Section 245, both a husband and a wife having no independent income to support
themselves, can apply to the Court for interim maintenance. The Court can direct the
respondent to bear the expenses of the proceedings and provide such monthly sums to the
applicant, as it deems fit, during the course of the proceedings.6

Temporary maintenance is granted by the court during the pendency of the proceeding of
separation or divorce to meet with the need of the petitioner. The interim maintenance is payable
from the date of presentation of the petition till the date of dismissal of the suit or passing of the
decree. The purpose of interim maintenance is to provide for the petitioner’s immediate
necessities.
Additionally, maintenance pendente lite pays the claimant’s legal costs. The definition of
maintenance in S. 3(b)(i) of the Hindu Adoption and Maintenance Act, 1956 is “provision for
food, clothing, residence, education, and medical attendance and treatment.”7
The Marriage Laws Amendment Act, 2001 has added a proviso to section to expedite these
proceedings. The application has to be decided within 60 days of service of notice on the wife or
husband, as the case may be.

5
The Hindu Marriage Act, 1955 (Act 25 of 1955), s.24
6
Maintenance Law for Women in India, available at: https://merlynlawfirm.com/maintenance-of-women-in-india/
(Last visited on March 31, 2024).
7
Maintenance under Hindu Law, available at: https://lawnotes.co/maintenance-under-hindu-law/(Last visited on
March 31, 2024).
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II. Section 25 HMA, 1955- Permanent Maintenance

The provision for maintenance under Section 258 of the Hindu Marriage Act, 1955 stands on
different grounds. This section deals with Permanent alimony and maintenance, which deals
with the maintenance that is granted permanently after the disposal of the proceedings for a
separation or divorce and under this, either of the spouse i.e. husband or wife can claim
maintenance. Either of the parties may apply to the Court for maintenance can as per the section 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. Though,
the factors for deciding whether a person will receive maintenance or not, is gender-specific. This
means that for women, the parameters are different from that for men.

The court may pass such order:

i. at the time of passing of the decree granting the petition, or

ii. at any time after the passing of the decree granting the petition

Maintenance can be granted under a compromise decree. The parties are free to contract out the
maintenance or they may agree to any sum of maintenance, if court finds them reasonable.4
Variation of order- under section 25(2), the court has power to vary, modify or discharge any
order of permanent alimony at the instance of either party if change of circumstances is shown.
Order may be rescinded- Section 25(3) lays down two circumstances in which an order passed
may be rescinded:
i. if he or she has remarried, or

ii. if she (in case of the wife) has not remained chaste; or he (in the case of the husband) has
sexual intercourse with any woman9.
In the case of K.Sivarama vs K.Bharathi10, that any marriage in contravention of Section 5 & 11
of the Hindu Marriage Act, cannot be considered to be the valid marriage. Such a woman cannot
recourse maintenance U/S. 25 of the Hindu Marriage Act for claiming maintenance.

III. Section 18- Hindu Adoption and Maintenance Act, 1956

Section 1811 of Hindu Adoption and Maintenance Act, 1956, states that the Hindu wife is entitled

8
The Hindu Marriage Act, 1955 (Act 25 of 1955), s.25
9
Paras Diwan, Law of Marriage and Divorce 205 (Universal Law Publishing Co. Pvt. Ltd., 2018).
10
(1986) Cri LJ 317.
11
The Hindu Adoptions And Maintenance Act, 1956 (Act 78 of 1956), s.18
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to be maintained by her husband during the span of her lifetime. This Section only applies to the
married wife.
1. A Hindu wife, whether married before or after the commencement of the said Act, shall
be entitled to be maintained by her husband during her life time.
2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her
claim to maintenance and the requisite conditions are stated from clauses (a) to (g).
3. A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another religion.12

In the case of Mangala Bhivaji Lad v. Dhondiba Rambhau Aher13, observed that inherent
powers are to be exercised by Court only in absence of statutory provisions. Grant of maintenance
to second wife in exercise of inherent powers though she was not entitled to maintenance under
provisions of Hindu Marriage Act (1955) and Hindu Adoptions and Maintenance Act
(1956) not permissible.

Status of a Female Live-in Partner

According to the 2005 decision in Somabhai Bhatiya v State of Gujarat14 by Justices Arijit
Pasayat and SH Kapadia, it was established that when a man and a woman make the choice to
cohabitate and engage in intimate relations without being married, the traditional notion of the
'sacrosant honour of being a wife' does not extend to the woman involved. Therefore, it is
unfortunate to note that in certain situations, the male individual may exploit the woman's
vulnerability, thereby gaining an unfair advantage, and subsequently evade any accountability for
fulfilling her justifiable expectations in the future.

Status of the Second wife

Under the Hindu Marriage Act, 1955, monogamy is the rule according to Section 5(i) of the Act.
Also, Section 1715 of this Act makes such a second marriage void, and refers to Section
494 and 495 of the IPC, 186016, according to which, bigamy is a punishable offence.

12
Women’s Right to Maintenance under Hindu Law , available at:https://www.legalserviceindia.com/legal/article-
5607-women-s-right-to-maintenance-under-hindu-
law.html#:~:text=Maintenance%20Of%20The%20Wife%3A,husband%20during%20her%20life%20time. (Last visited
on April 1, 2024).
13
AIR 2010 Bom.122
14
Supra 1.
15
The Hindu Marriage Act, 1955 (Act 25 of 1955), ss. 5, 17
16
Indian Penal Code, 1860 (Act 45 of 1860), ss. 494, 495
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As held in the case of Bhaurao Shankar Lokhande & Anr v. State Of Maharashtra & Anr17, for
the second marriage to be punishable for bigamy under the abovementioned Sections of the IPC, it
is necessary that the second marriage must have been validly performed. But, for the question of
maintenance, it is not only important that the marriage must have been ‘solemnized’ legally, or
performed validly. What is important is that the wife must be a legally-wedded wife.

In the landmark case of Badshah v. Sou. Urmila Badshah Godse & Anr.18, it was held that even
the second wife is entitled to maintenance under the Section 125 of CrPC, under certain
circumstances. Even if a man and women are living together for a long time, without a valid
marriage, she should be entitled to maintenance under Section 125 of the CrPC. If a
misrepresentation was made to the second wife that the man is single and competent to enter into a
marriage, and if the woman was unaware at the time of the marriage that he has a living spouse,
then the second wife is entitled to maintenance.

In the case of Rajesh Bai v. Shantabai19, a woman’s marriage was declared void because of the
subsistence of any previous marriage of her husband, but the Court held that she also has the right
to claim maintenance, under Hindu Adoption and Maintenance Act, 1956.

Thus, it is clear from the above judgments that the second wife, though not a legal wife, is entitled
to maintenance under Section 125 of the CrPC. The standard of proof of marriage in the
proceeding under Section 125, CrPC is not as strict as is required in a trial of the offense
under Section 494 of the IPC. The purpose of this Section is to provide social justice which can
only be fulfilled through such decisions.20

Comparison with CrPC

The law of maintenance under both of these statutes are on very different footings. According to
the Hindu Marriage Act, 1955, both the husband or wife can claim maintenance; whereas, only the
wife can claim maintenance under the CrPC. Moreover, the wife only needs to prove that she does
not have a sufficient and independent income in order to claim maintenance under the Hindu

17
AIR 1965 SC 1564.
18
AIR 2014 SC 869.
19
AIR1982BOM231.
20
Maintenance under CrPC and Personal Laws: A Comparative Study, available at:
https://blog.ipleaders.in/maintenance-crpc-personal-laws-comparative-study/#Status_of_the_second_wife (Last visited
on April 1, 2024).

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Marriage Act, 1955. Whereas, to claim maintenance under the CrPC, she also needs to prove that
her husband had either refused or neglected to maintain her.

In the case of Shambhu Nath Pathak v. Kanti Devi21, it was clearly decided that the wife cannot
take double benefit of maintenance under both the CrPC, as well as the Hindu Marriage Act, 1955.
She can only claim maintenance under one of these.

• MAINTENANCE UNDER MUSLIM 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-Alamgiri 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.

Muslim law obligates a husband to maintain his wife during subsistence of marriage.22 A Muslim
wife’s right to maintenance is conditional on her obedience and conjugal society. She loses her
right if she refuses sexual intercourse, leaves her husband’s house, or commits adultery. However,
she retains the right if the husband ill-treats her or takes another wife. After divorce, a Muslim wife
is entitled to maintenance during the iddat period and for any further period till she remarries and is
unable to maintain herself.23 Section 324 of Muslim Women Protection on Divorce Act, 1986
allows a Muslim woman to claim maintenance from relatives under Muslim law even after the
iddat period.

21 AIR 2014 Patna 147.

22
Hedaya, Vol 1, Bk 1, Ch VII, 202.
23
Danial Latifi v Union of India, AIR 2001 SC 3958.
24
The Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 Of 1986), s.3
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In the light of the landmark case of Mohammed Ahmed Khan v. Shah Bano Begum25, it was
finally cleared out that mehr does not come under Section 127, 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. Maintenance of divorced Muslim women is now governed under the Muslim women
(Protection of Rights on Divorce) Act, 1986.

The Muslim Women (Protection of Right On Divorce) Act, 1986

The legislature attempted to countermand a ruling set forth by the Supreme Court through
Section 3(1)(b) of the Act. This section stipulates that a divorced woman is entitled to a
reasonable and fair amount of maintenance from her former husband during the iddat-period.
Additionally, if the divorced woman remains unmarried after iddat, she is entitled to receive
maintenance from her relatives who would inherit her property upon her death, as outlined in
Section 3(1)(b).
In cases where there are no willing or able relatives to provide maintenance, Section 4(2)26
imposes the responsibility on the Waqf Board to fulfill this obligation.
Furthermore, Section 5 introduces a provision that allows for an alternative course of action. If,
during the initial hearing, both the divorced woman and her former husband affirm by affidavit
that they prefer to be governed by the provisions delineated in Sections 125-128 of the Code of
Criminal Procedure, then the case will proceed accordingly under the code.27
It appeared impractical as well as incongruous that the husband would consent to his wife
proceeding in criminal court against him. Thus, for all the practical purposes while every other
Indian woman could seek maintenance under CrPC, a Muslim woman married and divorced
under Muslim law, could not.
This act created a lot of confusion and was very vague law which was enacted just for securing
votes of Muslim community for the next election. However, its constitutionality was challenged
in the landmark case of Daniel Latifi v. Union of India.28

The petitioners argued that the exclusion of Muslim women from the purview of Section 125 of
the Criminal Procedure Code (CrPC), 1973 contradicted the very purpose of protecting
vulnerable women from destitution post-divorce.

25
1985 AIR 945.
26
The Muslim Women (Protectio of Rights on Divorce) Act, 1986 (Act 25 Of 1986), s.4
27
Maintenance of Muslim Women, available at: https://gyansanchay.csjmu.ac.in/wp-content/uploads/2023/06/05-
MAINTENANCE-OF-MUSLIM-1-1.pdf (Last visited on April 1, 2024).
28
Supra Note 23.
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In its ruling, the Supreme Court upheld the validity of the Act, providing significant
observations:
i. The obligation of a Muslim husband to maintain his divorced wife extends beyond
the iddat period.
ii. The husband must provide a reasonable and fair provision for the maintenance of
his wife, extending beyond iddat, within the iddat period, as outlined in Section
3(1) of the Act.
iii. This maintenance obligation persists for the entire life of the divorced wife unless
she remarries. The husband is required to make arrangements for his wife's
maintenance within the iddat period.
iv. Importantly, the Court determined that the Act does not violate the principles of
equality (Article 14), non-discrimination (Article 15), or the right to life and
personal liberty (Article 21) enshrined in the Constitution of India.18
The Court's decision in the Daniel Latifi case provided clarity on the scope and
applicability of the Act, affirming its constitutionality while emphasizing the enduring
responsibility of Muslim husbands towards the maintenance of their divorced wives.

Finally, in the case of Abdul Latif Mondal v. Anuwara Khatun29, 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.

Comparison with CrPC

Muslim women can also claim maintenance under the CrPC. Unlike the Muslim Personal
Law, even divorced women are given the right to maintenance under the CrPC. It was a
controversy and a question of law as to whether the Muslim divorced women can claim the
right to maintenance under the CrPC, even after receiving the dower or not. This controversy
has been dealt by the courts in various judgment.

Moreover, Section 530 of the Muslim Women (Protection of Rights on Divorce) Act,
1986 also provides that the parties can opt to be ruled by the secular law under Sections 125

29
2002 Cri LJ 2282.
30
The Muslim Women (Protection of Rights on Divorce) Act, 1986 (Act 25 Of 1986), s.5

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to 128 of the CrPC, instead of the Muslim Personal Law. Thus, women can claim
maintenance under the CrPC or the Muslim Women (Protection of Rights on Divorce) Act,
1986.

The CrPC is a more appropriate recourse in this scenario as it provides for maintenance for
both married and divorced wives, unlike the personal law. Also, the quantum of maintenance
is more reasonable under the secular law, whereas just the payment of mehr is considered to
be enough under the personal law. Furthermore, in CrPC, the maintenance is for life, whereas
under the personal law, it is only till the Iddat period.

• MAINTENANCE UNDER CHRISTIAN LAW

A Christian woman can claim maintenance from her spouse through criminal proceeding
or/and civil proceeding. 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. Sections 36 to 38 of the Divorce Act, 1869 concerns with interim and
permanent maintenance of wife. Under Christian law, a Christian wife can claim
maintenance during matrimonial proceedings or a decree of judicial separation. After
divorce, she has the right to claim permanent maintenance under Section 37 of the Indian
Divorce Act if she is unable to support herself. The amount is determined based on the
husband’s ability and wife’s own income and conduct. The court can modify the order if
circumstances change or if the wife remarries or commits adultery.
Section 3631 of the Indian Divorce Act, 1869 (IDA) are similar to section 2432 of Hindu
Marriage Act, 1955. However, section of IDA differs in the respect that the maintenance
pendente lite and interim maintenance can only be claimed by the wife and not by the
husband.

Under Section 36, a Christian wife can claim interim maintenance. The Court can direct the
husband to bear the expenses of the proceedings and provide such alimony pending the suit

31
The Divorce Act, 1869 (Act 4 of 1869) s. 36
32
Supra Note 5.

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as it deems just.33 It is provided that such petition shall be disposed of within sixty days of
service of such petition on husband.

Section 3734 provides for power of court to grant permanent maintenance to Christian
women. An order directing the husband to pay permanent maintenance to his wife can be
passed by the Court under Section 37. Such permanent maintenance can be in the form of a
gross sum, or an annual sum or monthly or weekly sums for any term not exceeding the life
of the applicant. Under this law permanent alimony can be claimed only on two matrimonial
reliefs, dissolution of marriage and judicial separation. It is not available in the case of
nullity and restitution. Under all other statutes it is available in all four matrimonial reliefs.35

Under section 3836 of the Indian Divorce Act, 1869, in all cases in which the Court makes
any decree or order for alimony, it may direct the same to be paid either to the wife herself,
or to any trustee on her behalf to be approved by the Court, and may impose any terms or
restrictions which to the Court seem expedient, and may from time to time appoint a new
trustee, if it appears to the Court expedient so to do.37

• MAINTENANCE UNDER PARSI LAW

The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both
alimony pendente lite and permanent alimony. Section 39 to 41 deals with the concept of
maintenance under Parsi law. 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 case of pendent lite and interim maintenance sections 3938 of the Parsi Marriage and
Divorce Act, 1936 (PMDA) is similar to S.24 of Hindu Marriage Act, 1955. Both wife and

33
Supra Note 6.
34
The Divorce Act, 1869 (Act 4 of 1869) s. 37
35
Paras Diwan, Law of Marriage and Divorce 716 (Universal Law Publishing Co. Pvt. Ltd., 2018)
36
The Divorce Act, 1869 (Act 4 of 1869) s. 38
37
Maintenance Under Various Laws, available at:https://districts.ecourts.gov.in/sites/default/files/1-
Maintenance%20-%20by%20Smt%20YJ%20Padmasree.pdf (Last visited on April 3, 2024).
38
The Parsi Marriage and Divorce Act, 1936 (Act 3 Of 1936) s. 39

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husband can claim interim maintenance from opposite party under this.

Under section 3939, the Court can grant interim maintenance to a husband or a wife having
no independent income to support themselves. The Court can direct the respondent to bear
the expenses of the proceedings and provide such weekly or monthly sums to the applicant,
as it deems fit, during the course of the proceedings. The application shall be disposed of as
far as possible within 60 days from the date of service of notice on the wife or the husband.

Under Section 4040, the Court can pass an order, at time of passing a decree in any
proceeding commenced under the PMDA or at any time subsequent thereto, granting
permanent maintenance to a husband or a wife for his or her support on an application
being made by him or her. Such permanent maintenance may be in the form of a gross sum
or a monthly amount or a periodical amount for a term not exceeding the life of the
applicant.

Section 40 (2) provides that the Court may, at the instance of either party, vary, modify or
rescind any such order in such manner as the Court may deem just. If the court determines
that the party who received an order under this section has remarried, or in the case of a
wife, has not remained faithful, or in the case of a husband, has engaged in extramarital
relations, the court may, upon the request of the other party, vary, amend, or rescind such
order as it deems fair and appropriate as given under section 40(3) of PMDA,1936.

39
The Parsi Marriage and Divorce Act, 1936 (Act 3 Of 1936) s. 39
40
The Parsi Marriage and Divorce Act, 1936 (Act 3 Of 1936) s. 40

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B. MAINTENANCE UNDER SECULAR LAWS

A woman irrespective of religion can claim maintenance under the Criminal Procedure Code,
1973 based on the husband’s means and her inability to maintain herself. The Domestic
Violence Act, 2005 provides additional rights to aggrieved women to claim maintenance to
meet expenses and losses arising from domestic violence. Under secular laws, the right to
residency in a shared household and the status as a divorced wife also entitles a woman to
claim maintenance.

• SPECIAL MARRIAGE ACT, 1954

Section 3641 cover the maintenance pendente lite i.e when the suit is pending in the court the
wife can seek maintenance if she does not have an independent source of income.

Section 3742 can be claimed only by wife who married under this act, she has the right to
permanent maintenance which can be granted by court under the jurisdiction of chapter V and
VI of the acts.

• THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT,

2005:

It is a civil law which was enacted to protect women from domestic violence. Section 2043
Domestic Violence Act talks about the monetary relief granted to the aggrieved women and
her children for the loss suffered due to domestic violence. This provision is not only limited
to the wife but also to any women who is subjected to domestic violence in the same
household.

The application can be filed u/s 1244 read with section 20 of DV Act, 2005 can be filed before
Judicial Magistrate/ Metropolitan Magistrate and the judge can order interim maintenance
during pendency of proceedings if it is satisfied that there is a prima facie case in favour of

41
The Special Marriage Act, 1954 (Act 43 of 1954) s. 36
42
The Special Marriage Act, 1954 (Act 43 of 1954) s. 37
43
The Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005) s. 20
44
The Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005) s. 12

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the aggrieved person. The magistrate may pass ex-parte order basis the income affidavit in
the absence of the respondent.

• MAINTENANCE UNDER CRIMINAL PROCEDURE CODE:

The law of maintenance under Criminal Procedure Code, 1973 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. Thus, 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. Section 125 to 128 provide for a speedy, effective and rather inexpensive remedy
against persons who neglect or refuse to maintain their dependant wives, children and
parents.

Section 125 CrPC45 contains provisions of maintenance for the following people in the
condition that they are unable to maintain themselves:

1. Wife including divorced women

2. Minor children, including illegitimate
3. Disabled major children, but not the married daughter
4. Parents
Application can be filed before Judicial Magistrate First Class where the husband, wife
together resided or presently the wife resides. Here maintenance can be claimed by the wife
along with children. The magistrate can order interim maintenance during the pendency of
the proceedings. The maintenance shall be payable from the date of order on default of
payment magistrate can issue for the warrant for the same, and revoke the order if she has an
adulterous relation, refuses to live with the husband without sufficient cause or if they are
living separately with mutual consent.

According to the 41st Law Commission Report, the maintenance provisions of the CrPC,
including section 125, provide a quick and affordable solution to the problem of wife starving

45
Criminal Procedure Code, 1973 (Act 2 of 1974), s. 125

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and vagrancy.46According 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. 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.

According to the Supreme Court judgment in Savitaben Somabhai Bhatiya v. State of

Gujarat47, the term “wife” appearing in Section 125(1) means only a legally wedded wife.
But, in the recent judgments of D. Velusamy v. D.Patchaiammal48
and Chanmuniya v. Virendra Kumar Singh Kushwaha49 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.

Distinct & Separate provision from personal laws

It should be kept in view that the provision relating to maintenance under any personal law
is distinct and separate. There is no conflict between the two provisions. A person may sue
for maintenance under s.125 of CrPC. If a person has already obtained maintenance order
under his or her personal law, the magistrate while fixing the amount of maintenance may
take that into consideration while fixing the quantum of maintenance under the Code. But
he cannot be ousted of his jurisdiction. The basis of the relief, under the concerned section
is the refusal or neglect to maintain his wife, children, father or mother by a person who
has sufficient means to maintain them. The burden of proof is on him to show that he has
no sufficient means to maintain and to provide maintenance.
In Badshah V. Sou. Urmila Badsha Godse & anr.,50 the hon’ble supreme court held that
victims of bigamous marriage entitled to maintenance. If a man deceitfully married a
woman hiding the substitution of earlier marriage he is obliged to pay maintenance to her
U/s.125 of Cr.P.C.
However, if second wife has not even been married she could not be divorced and second
wife cannot claim to be wife of her husband unless it is established that husband was not
46
Mangal Singh, “STUDY ON THE EVOLUTION AND CHALLENGES OF MAINTENANCE LAWS IN
INDIA: A COMPREHENSIVE STUDY OF SECTION 125 CRPC AND ITS INTERSECTION WITH
PERSONAL LAWS” IJFANS 2319, (2023).
47
Supra Note 1.
48
AIR 2011 SC 479.
49
2010 AIR SC 6497.
50
Supra Note 18.

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earlier married to another woman.

It was held in Mohammed Ahmed Khan v. Shah Bano Begum51 that section 125 of CrPC
applies to divorce Muslim woman unless she remarries. The Supreme Court held that there
is no conflict between section 125 and Muslim personal law. If the divorced wife is able to
maintain herself the husband's liability expires after the period of iddat if the divorced
wife is unable to maintain herself she is entitled to take recourse to Section 125 of code of
criminal procedure.

Guidelines for deciding the quantum of maintenance:

Section 24 of Hindu marriage act states that interim maintenance is to be paid, the amount to
be paid should be enough for the survival of applicant plus cover all the litigation expenses.
The amount should also be equal to the status of applicant if he or she continued to live with
the respondent. Delhi high court stated factors which should be considered while giving order
of maintenance in the case of Bharat Hegde v. Saroj Hegde 52 these were:

1. Status of the parties.

2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar life style as he/she
enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and
treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the non-
applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded Under Section 125 Cr.PC is adjustable against the
amount awarded Under Section 24 of the Act.

51
Supra Note 24.
52
140 (2007) DLT 16.

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CONCLUSION

The Indian legal framework confers an expansive right on women to claim maintenance in
matrimonial disputes under personal laws and secular laws. The provisions concerning the
maintenance of women under personal laws and Section 125 of the Code of Criminal
Procedure (CrPC) play pivotal roles in ensuring the welfare and protection of women who are
unable to sustain themselves financially. These legal frameworks, rooted in principles of
equity and social justice, recognize the inherent vulnerability of certain segments of society,
particularly women, and provide a structured mechanism for addressing their needs.

The judiciary has adopted progressive interpretations, shifting from strictly adjudicating legal
rights to addressing the socio-economic rights of women. With the breakdown of
conventional family structures, there is a need for further evolution of maintenance laws to
overcome limitations and ensure gender equality and dignity for women.

These personals laws aim to mitigate the adverse consequences of divorce or familial
disputes, safeguarding the economic security and dignity of affected women. Moreover,
Section 125 of the criminal procedure code serves as a universal safeguard, applicable
across religious and cultural boundaries, providing a legal recourse for women who are
destitute or abandoned. The legal provisions discussed underscore the state's commitment
to upholding the fundamental rights and dignity of women, ensuring their right to live with
dignity and without discrimination.

Thus, through the whole discussion and comparison, it would be safe 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.

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REFERENCES
BOOK

• B.M. Gandhi, Family Law (Eastern Book Company, Vol. I, 2nd Edition, 2019)
• Dr. Poonam Pradhan Saxena, Family Law Lectures Family Law 1 (Lexis Nexis,
2022).
• Paras Diwan, Law of Marriage and Divorce (Universal Law Publishing Co. Pvt. Ltd.,
2018).

WEBSITES

• Right to Claim Maintenance of Women in India: An Overview of Judicial

Decisions, available at: https://lawfoyer.in/right-to-claim-maintenance-of-a-
woman-in-matrimonial-disputes-in-india-a-detailed-analysis-of-judicial-decisions/
(Last visited on April 1, 2024).
• Maintenance Law for Women in India, available at:
https://merlynlawfirm.com/maintenance-of-women-in-india/ (Last visited on March
31, 2024).
• Maintenance under Hindu Law, available at: https://lawnotes.co/maintenance-under-
hindu-law/(Last visited on March 31, 2024).
• Women’s Right to Maintenance under Hindu Law , available
at:https://www.legalserviceindia.com/legal/article-5607-women-s-right-to-
maintenance-under-hindu-
law.html#:~:text=Maintenance%20Of%20The%20Wife%3A,husband%20during%20
her%20life%20time. (Last visited on April 1, 2024).
• Maintenance under CrPC and Personal Laws: A Comparative Study, available at:
https://blog.ipleaders.in/maintenance-crpc-personal-laws-comparative-
study/#Status_of_the_second_wife (Last visited on April 1, 2024).
• Maintenance of Muslim Women, available at: https://gyansanchay.csjmu.ac.in/wp-
content/uploads/2023/06/05-MAINTENANCE-OF-MUSLIM-1-1.pdf (Last visited on
April 1, 2024).

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• Maintenance Under Various Laws, available

at:https://districts.ecourts.gov.in/sites/default/files/1-Maintenance%20-
%20by%20Smt%20YJ%20Padmasree.pdf (Last visited on April 3, 2024).

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