Dear Mr. Ganesh I am telling you the difference between the claim of maintainance under both the laws....... After reading it you will definately find your answer as to why did your wife opt Section 125....
There are two statues that provide for maintenance under hindu law i.e. Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act, 1956 and one way is to claim under Cr.PC Section 125
A Hindu wife is entitled to maintenance if she lives separate from her husband for a justifiable cause like husband’s desertion, cruelty , leprosy, another wife is living, concubine, conversion or any other justifiable cause.(Sec 18(2) of HAMA)
The court has power to pass interim orders of maintenance incidental or ancillary to main power.(But it is not expressly mentioned in HMA OR HAMA). Sec 24 of HMA provides for maintenance pendente lite[iii] and expenses for proceedings (for court proceedings) and Sec 25 provides for permanent maintenance and alimony.For interim maintenance only income of the claimant has to be taken into consideration and not his property and assets.
Husband’s actual as well as potential earning (his disposable income) is seen while deciding maintenance. There is a presumption that every able bodied man has capacity to earn and maintain his wife.
*If the wife’s earning is sufficient to maintain herself and live in comfort, husband could be exempted from paying maintenance.
An application for permanent maintenance can be filed only in the court in which original petition in a matrimonial cause was filed. Under HMA order of maintenance can be secured by making it charge on propertyof non claimant ( Same provision exists in Parsi law & Christian law)
Under all matrimonial statutes, the divorce court while passing the orders may require the party to make periodical payments to the applicant or to make payment in lump sum.
Under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial relief has been recognized in Hindu law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956.
CRIMINAL PROCEDURE CODE Sec. 125- Sec 125 deals with maintenance and it is applicable to all religions.
The magistrate 1st class of the place has the jurisdiction to entertain a petition.
Relief under it is speedy (summary proceedings) & available irrespective of pending matrimonial proceedings.Wife also includes divorced wife, who has not remarried unlike the earlier code.Wife must be unable to maintain herself. The basis is refusal or neglect of husband to maintain wife & the criterion is whether husband is capable of earning sufficient means. Burden of proof lies on husband to prove that he is not negligent. The burden of proof is on wife that she is legally wedded wife. If the marriage is void than too wife is entitled to maintenance if proof of required ceremonies or presumption of cohabitation is there. There are 2 modes of execution i.e. warrant for levying fines & imprisonment upto 1 month or till the payment is made. (Sec 125(3)). Wife’s Right to maintenance comes to an end with her remarriage. After amendment of 2001, court can order for interim maintenance & proceedings expenses. Death of a husband does not extinguish alimony order and maintenance & it is to be paid from the estate of deceased husband but only for the period till his death.
If the wife has already received her due under personal law or customary law she is not entitled to maintenance under Sec 125.
Best of Luck,
Adv. K. P. Singh Deora
Advocate and Legal Consultant