An analysis on 'Maintenance for wife and children'

Synopsis

This article deals with maintenance under Hindu Marriage Act and several Personal Laws. This article will talk about how maintenance is a concept in current scenario and how it evolved over a period of time. Moreover, this article will further talk about provisions governing maintenance of wife and children. In the later stage, the paper will also cover the procedure required to avail the maintenance, the documents in need, etc. Also, there will be a comparison between the provisions given in Hindu laws with provisions under Muslim laws. This article will finally provide conclusions &suggestions which will further help to strengthen the maintenance laws and procedure even further.

The provisions & concept of maintenance objects at putting the wife back to the same situation of comfort as she was during the existence of her marriage. There is no sum fixed of maintenance that the husband is liable to pay to his wife, and it is upon the discretion of a family court to decide the sum of maintenance that has to be paid by husband either on monthly or in lump sum. The concept of maintenance was originated to check whether one spouse is independent or not and if not, the other spouse should help her/him economically in order to make their living condition better.The income statement, property and earning capacity of a non-applicant is considered while giving maintenance as in no case maintenance is given beyond the earning capacity of a non-applicant. The very basics of maintenance was also originated from the joint families where every member of the family which includes legal relations as well as courtesan, illegitimate children were taken care of by the family.

Right to claim maintenance is a right which is recognized under different laws in India. Wife, children, aged parents must obtain some subsistence to survive. In India, Government tries to solve the issue by way of certain Acts & provisions passed in the legislature. Statutory enactments of these laws try to solve the issue for reducing the hardships of dependent wife, children and old parents who are unable to maintain themselves, obviously, for the reason that they have no source of income of their own.

Principles and Acts governing maintenance

Joint family has been a significant feature of the Hindu society since Vedic ages. In a joint family, it is the duty of the male members to earn money and provide for the needs of other members of family such as women, children, and aged parents. In Manu, it has been said that wife, children, and old parents must be cared for even by doing a hundred misdeeds. Since in the social platform of Hindu society the joint family looms large, the law of maintenance has a special essence in Hindu law. All members of a family, whatever be their living status and whatever be their age, are entitled to maintenance. Hindu law recognizes that a Hindu male has a personal obligation to maintain certain near relatives, such as wife, children, and aged parents. Thus husband has a direct responsibility to maintain his wife. In current system of law, the obligation exists even after the dissolution of marriage. Thus, a wife has the right to maintenance when:

  • The wife lives with her husband.
  • Then the wife lives separate from her husband, and
  • The wife lives separate under a decree of the court or when is dissolved.

Hindu Adoption and Marriage Act, 1956 codifies a lot of principles governing the maintenance of dependents of a Hindu male. Under this act, the obligation and responsibilities can be divided into two categories - personal obligation and obligation tied to the property.

Dependents based on personal obligation

Personal obligation means that a Hindu male is personally liable, irrespective of the fact what property he has inherited or what are his earnings, to provide for certain close relations who are dependent on him. These close relations have been termed in the following sections of HAMA 1956.

Section 18(1) claims that whether married before or after this act, a Hindu wife shall be entitled to claim maintenance by her husband during her lifetime.

Sec 18(2) declares that a wife is entitled to live separately without forfeiting her right to claim maintenance in some situations.

Sec 18(3) proclaims that a wife shall not be entitled to reside separately and claim maintenance if she is unchaste or ceases to be a Hindu.

In the case of Jayanti vs Alamelu, 1904, Madras High Court held that the responsibility to maintain one's wife is one's personal obligation and it exists independent of any property, personal or ancestral. Section 20(1) claims that a Hindu is bound to provide maintenance to his children, legitimate or illegitimate, and aged or infirm parents. 20(2) declares that a child, legitimate or illegitimate, can claim maintenance from father or mother, until the child is a minor. 20(3) further says that the right to claim maintenance of aged or infirm parents and unmarried daughter expands in so far as they are not able to maintain themselves through their other sources of income. In this case, a childless step-mother is also considered to be a parent.

Dependents based on obligations tied to property

A person is required to support certain close relations of another person whose property is passed on to him. In this case, this commitment is not personal but only up to the extent that it can be maintained from the delegated property.

Section 21 of HAMA specifies these close relations of the deceased who must be supported by the person who receives the deceased property.

Section 22 (1) declares that heirs of a Hindu family are liable to maintain the dependents of the deceased out of the property inherited by them from the deceased. Thus, this requirement is to be fulfilled only from the inherited property and so it is not a personal obligation. Section 22(2) says that where a person who is dependent has not received any share, he shall be entitled to receive maintenance from those who have the estate. 22(3) declares that the liability of each recipient is in proportion to the estate obtained by him. 22(4) prohibits a person to pay any amount of maintenance if he himself is a dependent& cannot be forced to pay if the amount causes his share to reduce below what is required to maintain himself.

Maintenance of Wife

Maintenance of wife under Hindu Law

S. 3(b) (i) of HAMA, 1956 describes maintenance as "provision for food, clothing, residence, education, and medical attendance and treatment." In the case of daughter who is unmarried, it also includes her marriage expenses. The provision for permanent maintenance is also present in all the personal laws and are almost similar.

According to Section 24 of Hindu Marriage Act, 1955, either the wife or husband can apply for interim maintenance. The basis of the claim for acquiring interim maintenance is that the claimant is not independent & has no source of income of his/her own to support himself/herself. The act is silent on the amount of maintenance and it is upon the discretion of the court to determine the sum. However, Section 23(2) of HAMA, 1956 states the conditions which are to be considered in determining the amount of maintenance payable to the wife, children and aged parents. They are as follows – the position & status of the parties, the reasonable needs of the claimant, the claimant, if living separately, is justified or not, the income & total value of the claimant‘s property.

The interim maintenance is also payable from the date of filing of the petition till the date of dismissal of the case or passing of the decree. The aim of interim maintenance is to meet the immediate needs of the petitioner. Andpendente lite is for providing the litigation expenses to the claimant.

Maintenance of wife under Muslim law

Under Muslim Laws, it is necessary for a husband to maintain his wife, whether she is Muslim or Kitabiyyah, rich or poor, young or old. However, if the wife is too young for matrimonial intercourse, she has no right to claim maintenance from her husband, whether she is living in his house or with her parents.

The husband is obligated to maintain his wife so long as she is faithful to him and obeys his orders which are reasonable. It is decided in a case by Badruddin Tyabji& Strachy, that unfaithful &disobedient wife need not to be maintained. If the marriage is valid and wife is capable to render marital intercourse, it is the duty of husband to maintain his wife even though she’s economically capable to maintain herself. But if the wife unjustifiably refuses to live with her husband then she loses her right to claim maintenance. The right of maintenance would also be unavailable if wife refuses to obey the reasonable commands of Husband. However, if disobedience is justified by certain circumstances or if she is intentionally forced to leave husband‘s house because of cruelty, or if the husband refuses to maintain his wife without any lawful or justified reasons, the wife may sue him for maintenance. She is not however entitled to claim maintenance from the past as maintenance is payable from the date of the suit unless the claim is based on special agreement.

In a situation where a wife is turned out or maltreated so as to make it impossible for her to live together with her husband, or when the breach between the couple is incurable, she is entitled to maintenance by living separate from him under sec. 125 of the Code of Criminal Procedure 1973 or in a suit for restitution of conjugal life.

After divorce the wife under Muslim Personal Law, is entitled to maintenance during the time period of Iddat and also for the time, if any, which lapsed after the expiry of Iddat period and her receiving notice of Talak. After expiry of the period of Iddat the application of the order of maintenance ceases.

A Muslim widow is not allowed to claim maintenance out of the property of her late husband except for what she is entitled to by inheritance or under his will.

Maintenance of Children

Maintenance of Children under Hindu Law

Section 20 of Hindu Marriage Act, 1956 declares that both mother and father are equally liable to maintain their children. This is an uncommon feature of the Hindu law where both the parents, be it mother or father, are equally responsible to maintain their children. Section 20 (2) of HAMA, lays down that the children have right to claim maintenance till the time they are minor. However, this right to claim maintenance for the daughter is extended till she gets married. It is the duty of the parents to bear her marriage expenses. However, even after marriage if a minor daughter gets married and if she is unable to maintain herself then she can claim her right of maintenance under Section 125 of CrPC. If an application is filed under section Sec. 24 and 25 of Hindu Marriage Act, the child is also entitled to get maintenance if the claimant has the responsibility of maintaining him/her i.e., the claimant‘s right to maintenance also includes the right of maintenance of his children.

Maintenance of Children under Muslim Law

Under Muslim Laws, it is the responsibility of the father to maintain his sons until they attain puberty and his daughter, till they are married. He is also responsible for the upkeep of his widowed or divorced daughter, or a child who is in the custody of the mother. It is not the duty of the father to provide separate maintenance for a minor child or an unmarried daughter who refuses to live with him on unjustifiable grounds. The father is not responsible to maintain a child who is capable of being maintained out of his or her own property or have economic means to live fulfil their wants. If the father is poor or is not capable to maintain his children then the mother is bound to maintain the child. And failing her, it is the duty of the parental grandfather to provide them with maintenance.

Procedure to avail maintenance

1. The petition is filed before the Family Court, containing all the required facts of the cases, stating the circumstances as to why wife seeks to claim maintenance, all personal relevant details.

2. The Family Court then scrutinizes the application and issues notice to the husband against whom the application has been filed by the wife.

3. Both the parties are asked to appear before the court for reconciliation of the instant case.

4. If the process of reconciliation end successful by the Family Court then the matter stands settled and if the process of reconciliation is a failure, then the Family Court proceeds with the petition on merits.

5. The Family Court seeks reply to the petition from the opposite party stating the facts which he/she agree to or stand in denial. The courts may also ask both the parties to present their income statements so that it can infer the capabilities and liabilities of the parties.

6. The court then seeks the rebuttal from petitioner side of the reply filed by the opposite side. This is the stage where application of interim maintenance is decided.

7. The court then frames the issue for judgement and the case is posted for evidence of the parties.

8. Both the petitioner and respondents are asked to submit their evidence by way of filing the relevant documents, papers and by summoning all the witnesses.

9. The final argument is held and the case is decided by the court.

10. The court finally passes the order where it may either dismiss the petition or allow the petition and direct the other party to pay the amount as per the direction of the court.

Documents Required to file maintenance petition

Anyone can file a maintenance case either under section 125 of CrPC or under Domestic Violence Act. There are requirements of certain document which one need to carry in order to file a plea. The list of documents is:

  • Marriage Certificate as the proof of legally solemnization of marriage. If not, wedding card, wedding ceremony pictures, videos, etc., will work.
  • Residential address and address proof for jurisdiction of the court in which petitioner is going to file a case. He/she can file case of maintenance where they voluntarily resides, where their marriage solemnized and where husband and wife last lived together.
  • Office/place of work of the spouse.
  • Average annual salary/income of spouse.

Provision for Alimony under Section 25 of Hindu Marriage Act

Section 25 of Hindu Marriage Act makes provisions of permanent alimony. The major object of this section is to treat both the spouse on equal footing for the purpose of maintenance to be rendered permanently to the spouse who is poverty-stricken without having any source of income of its own for maintenance and support. This provision of permanent alimony and maintenance is provided under two conditions. First, this right of maintenance will remain in force till the applicant remains unmarried and pursues the chaste life. Secondly, this right is the personal right of the applicant and extinguishes with the death of the applicant.

The concept of 'permanent alimony' is not a homegrown concept and there wasn’t any law of divorce amongst Hindus in the country. The only reason for awarding permanent alimony to the wife seems to be that if the bond which was at one time seen as imperishable is to be allowed to be severed in larger interest of society, the same is considered for public interest. And social welfare also requires that the wife must not be thrown on the streets but should be provided with maintenance so that she may not be compelled to adopt a disreputable way of life to earn her livings.

Conclusion

By looking at the judicial pronouncements and other steps taken under different provisions of law, rights of women have been restored but not completely. It will become helpful only when under lying thinking of society will change. The women should liberate themselves educationally, economically and socially for their own sake and then they will be able to understand their rights and worth. Thereafter the social upliftment of the whole community is possible. We should always remember that mother is the first teacher and mentor of her child. It is a historical fact that remain unchallenged that no society ever lived in peace until & unless their women folk are at peace. Although, maintenance should be a gender neutral concept and should be applicable for either husband or wife respectively, for the greater perspective of the society but still many women are being denied to claim their rights. Proper implementation is always necessary to abide by the Law of the Land and ultimately to make it a great success.

 

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Vaibhav Jalan Online
on 17 November 2020
Published in Family Law
Views : 663
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