Alimony & child maintenance
Mrunmai Deshpande
(Querist) 15 August 2012
This query is : Resolved
I am a young woman of 33years of age with a son of 2years. My husband is disabled and according to Doctors he is fit to do table work. But my husband is not working because he says that while going to any place of work he gets completely exhausted. He is suffering from paralysis of both the legs which happened after marriage. I was working before delivery and earning a salary of Rs8000/-pm. After marriage, initially we were staying with my in laws and then we started staying separately. After paralysis of my husband we again started staying with my in laws. My in laws are supportive but they are retired and sustaining on their pensions and on interest from Bank FDs. As my husband keeps on leaving jobs and does not work most of the time I want divorce from him. Currently I am staying with my parents and in search of a job. Will I get alimony and child maintenance from my husband even though most of the time he is unemployed. Please advise and suggest what do I do?
Nadeem Qureshi
(Expert) 15 August 2012
Dear Querist
no, you can not claim alimony but if you filed any Divorce case against him he can claim maintenance from you under section 24 Of Hindu Marriage Act,1955
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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