Can a person can claim maintenance petition?

sugureddy manikya reddy (Querist) 10 March 2013 This query is : Resolved
Dear Experts,

whether a person unable to maintain himself can file a maintenance petition against wife if she is working?

one of my client have undergone for (illarikam),he stays with his wife and her parents,now he is unable to maintain himself and where as the wife is doing job, can he go for a maintenance petition?

but he is not willing to take the divorce.

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V R SHROFF (Expert) 10 March 2013
Only under civil laws, He can get Mtn from Wife.
no provision under criminal proced

Nadeem Qureshi (Expert) 10 March 2013
Dear Querist
if the parties are Hindu he can claim maintenace u/s 24 of Hindu Marriage act 1955, but this section will be applicable when there is a case pending before the court for divorce, child custody, RCR.
24. Maintenance pendente lite and expenses of proceedings.-

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:

1[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.]

COMMENTS

Consideration for amount of maintenance

The court is required to take into consideration the income of the parties before deciding the quantum of the interim maintenance. The court has to keep in view the need of the applicant and paying capacity of the non-applicant; Padmavathi v. C. Lakshminarayana , AIR 2002 Kant 424.

Consideration for fixing maintenance pendente lite

(i) As far as maintenance pendente lite and expenses of proceedings are concerned, no distinction has been made under section 24 of the Act relating to right of a wife for maintenance preferred under section 12 or 13 of the Act; Sandeep Kumar v. State of Jharkhand , AIR 2004 Jhar 22.

(ii) The divorce proceeding has terminated adversely to his client but an appeal is pending. Whether the appeal ends in divorce or not, the wife's claim for maintenance qua wife under the definition contained in the explanation (b) to section 125 of the code continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance. It is clear that mere divorce does not end the right to maintenance; Captain, Ramesh Chander v. Veena Kaushal , AIR 1978 SC 1807.

Entitlement for maintenance

(i) During the pendency of the divorce proceedings at any point of time if the wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite; Manokaran v. Devaki , AIR 2003 Mad 212.

(ii) Section 24 entitles not only the wife but also the husband to claim maintenance pendente lite on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood. Held that since the husband was able-bodied and was not mentally ill and only because his business had closed down, he could not be granted any maintenance, it being opposed to spirit of section 24 of the Act; Kanchan v. Kamalendra, AIR 1993 Bom 493.

Maintenance & expenses during pendency of proceedings

Provisions of section 24 of the Hindu Marriage Act provides for support to be given by the earning spouse in favour of non-earning spouse during the pendency of proceedings before the court. Therefore an application seeking for reimbursement of medical expenses incurred by a dependent spouse is definitely one which can be allowed in an application under section 24; R. Suresh v. Chandra M.A. , AIR 2003 Kant 183.

Scope

(i) Pending an application either under Rule 5 of Order 9 or Rule 9 of Order 9 or Rule 13 of Order 9 of the Code of Civil Procedure a spouse is entitled to maintain an application under section 24 of Hindu Marriage Act, 1955. The expression “proceedings under the Act” appearing in section 24 cannot be given a narrow and restrictive meaning; Vinod Kumar Kejriwal v. Usha Vinod Kejriwal , AIR 1993 Bom 168.

(ii) Section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself; Dr. Vijaya Manohar Arbat v. Keshireo Rajaram Sawai , AIR 1987 SC 1100.

(iii) The direction by the Civil Court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite under section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioners own income and the income of the respondent, it may seem to the Court to be reasonable; Captain Ramesh Chander v. Veena Kaushal , AIR 1978 SC 1807.
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Nadeem Qureshi (Advocate)
Chember No. D-720, Karkardooma Court, Delhi
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Devajyoti Barman (Expert) 10 March 2013
Yes, he can for which he can file petition for alimony u/s 34 of HMA but not u/s 125 crpc.

prabhakar singh (Expert) 10 March 2013
A husband can not claim any maintenance u/s 125 of Cr.P.C.

He also ,even being Hindu,can not claim under Hindu Adoptions And Maintenance Act, 1956 as he himself is under duty to maintain his wife u/s 18, to widowed daughter in law u/s 19,to children and aged parents u/s 20 and he does not fall within definition of a dependent as defined in s.21 of the Act.

So there are only two provisions,s.24 and s. 25 Of Hindu marriage Act where either party can claim maintenance and alimony as well.

But that would be possible only when any jurisdiction vested in court under the Act has been invoked.there can be no petition directly just for maintenance under this Act and such a petition,as already seen does not lie under Hindu Adoptions And Maintenance Act, 1956.

Then what gets concluded that unless a Hindu husband has grounds of divorce and decides to file a petition of divorce,he can NOT SEEK maintenance from his wife.