Mar 4, 2022

What have Indian courts said about maintenance?

Can a wife claim maintenance under Section 125 of the Code of Criminal Procedure after getting  a divorce by mutual consent under the Hindu Marriage Act and receiving a lump sum amount as final settlement? The Calcutta High Court has decided to refer this issue to a larger bench due to conflicting High Court judgements.


What Indian laws provide for maintenance?

Apart from Section 125 of the Code of Criminal Procedure, 1973, the following Indian laws all provide for maintenance:

  1. a) Special Marriage Act, 1954 (SMA) – Sections 36 and 37
  2. b) Hindu Marriage Act, 1955 (HMA) – Sections 24 and 25
  3. c) Hindu Adoptions and Maintenance Act, 1956 (HAMA) – Sections 18, 19, 20 and 22
  4. d) Protection of Women from Domestic Violence Act, 2005 (DV Act) – Section 20

Can a woman apply for maintenance under multiple laws?

A wife can make a claim for maintenance under any of the above laws, but it is unfair to order the husband to pay maintenance under each of these laws separately.

So, if maintenance has already been given to the wife in a previous court case, she must reveal this information in a subsequent court proceeding for maintenance under a different law. In any subsequent proceeding, the relevant court will consider the maintenance already given by a previous court while deciding the maintenance amount. For instance, if a woman has been granted the right to maintenance in a case under the Domestic Violence Act and she later seeks maintenance in another case under the Hindu Marriage Act, she must inform the court of the earlier case and the court will consider it when deciding the amount in the domestic violence case. If she does not do the same, the Court may dismiss the case.

Can a woman get maintenance while divorce proceedings are ongoing? 

Yes, in case of a divorce, if a woman cannot support herself financially, the court may order her husband to pay her legal costs and fix a temporary, reasonable amount as maintenance to be paid by the husband till the case is decided. This is called interim maintenance.

Anyone claiming interim maintenance should mandatorily file an application, with relevant reasons, to the concerned court for interim maintenance. They should also submit an Affidavit of Disclosure of Assets and Liabilities with the application. 

How will the court decide the maintenance amount?

The court will consider certain factors while deciding the maintenance amount. These include:

  1. a) Age and employment of both spouses
  2. b) Income of the wife
  3. c) Maintenance of children below 18 years
  4. d) Serious disability or ill health of the spouse/child

From what date is maintenance given?

Maintenance starts from the date on which the maintenance application was filed, since the applicant cannot control how long the maintenance proceedings continue.

How are maintenance orders implemented?

A maintenance order can be implemented like an order of a civil court. If a person violates the maintenance order, they can face legal measures such as civil detention, attachment of property, etc. The person may also face punishment for contempt of court for not obeying court orders.

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