Maintenance: The Ultimate Right Of Women

Abstract

The right to get maintenance is the only right available to women within marriage to live with dignity. Flavia Agnes aptly explains maintenance as “a need-based approach, which reduces the wife to a subordinate position and does not recognize her as an equal partner in marriage”[1]. In India, there is a variety of religious laws that include provisions for divorced women and their maintenance rights. Maintenance is a consideration, a husband is obliged to pay his wife either upon separation/divorce or during their marriage, depending on the circumstances. This research article primarily focuses on a discussion of maintenance and its aspects in relation to various Indian religions. The regulation of a wife’s and a husband’s relationship is under the purview of personal laws in India, which has an extremely significant role to play nowadays. This paper analyses the importance of maintenance in the lives of women who are in wedlock or separated from matrimonial relations. Maintenance provisions mentioned in this article place a significant emphasis on the issue of post-divorce maintenance. This article addresses the importance of maintenance rights for divorced women in India, who all are entitled to the same, under what grounds and provisions are the primary topics of this article. It also discussed the goal of providing maintenance and its mandate upon husbands to divorced women. In this research article, each aspect of maintenance under marriage law is discussed and what all are the requirements of the same.

Keywords – Maintenance, Matrimony, shelter, Act, Section

Introduction

Since India’s maintenance provisions are quite flexible. The Indian judiciary has done a remarkable job in providing justice and granting maintenance to Indian women who are in desperate need of money to live and maintain themselves. The maintenance laws for women in India are divided into two categories: one deals with maintenance after divorce or other matrimonial remedies, and the other deals with maintenance during the marriage’s subsistence period. The major goal of this article is to bring in front the objective of maintenance, which is to avoid immorality and preserve women’s and children’s dignity.

What are maintenance rights?

Maintenance rights as a concept have their roots in the social justice system of a civilized society. The Supreme Court, in the case given below, has detailed the rationale behind providing maintenance to women- In the case of Badshah v. Urmila Badshah Godse and Another[2], The Apex court was of the view that the “provision of maintenance aims at empowering the destitute and achieving social justice or equality and dignity of the individual. People’s relationships are governed by the law. It represents society’s ideals.” The right to seek maintenance in India is statutory under both personal and general laws, and such a right cannot be taken away by agreement to the contrary. Maintenance might be given at any time during the proceedings or at the conclusion. Wives, children, and parents are all entitled to maintenance. Under special personal laws, even husbands (who are unable to support themselves) are entitled to maintenance. This article discusses the conditions of several personal and general laws that allow a wife to seek maintenance.[3].

In the case of Mangatmul Vs. Punni Devi[4] it was observed that “maintenance must be put into consideration necessarily with the provision for residence. Maintenance is given so that the person can live in a manner more or less to which she is accustomed. The concept of maintenance, therefore, includes provision for food and shelter which take into account the basic need of a roof over the head and also clothing”

The legitimate requirements of the maintenance-seeking spouse

1. The position of both parties, the spouse who is seeking maintenance has an independent income and property that he or she owns and possesses.
2. Apart from the claimant, the spouse who is providing support must keep a certain number of people.
3. The lifestyle that the maintenance-seeking spouse used to live in his or her marital house.
4. The responsibilities of the spouse who is giving support.
5. The fundamental requirements of the spouse who is claiming maintenance, including as food, shelter, clothes, medical care, and so on.
6. The responsibilities of the spouse who is giving support.
7. When the spouse supplying maintenance has not disclosed all of his or her specific sources of income, the court may exercise its discretion.
8. The spouse who is paying maintenance must cover the costs of the divorce procedures’ litigation.[5]

Persons entitled to claim maintenance

The Apex Court in Bhuwan Mohan Singh v. Meena & Others[6] has held that Section 125 “was conceived to improve the financial sufferings of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also sustain her children if any. The concept of sustenance does not only mean shelter or the life of animal maintenance including food shelter and all the necessities she is entitled to lead a life in the same manner as she could have lived in the house of her husband”

According to Section 125 (1) of CrPC[7], gives following persons entitlement to claim maintenance are-

• Wife

The wife is entitled to claim the maintenance if she is unable to support herself. She might be minor or major. A woman who has not been divorced by or given a divorce from her spouse and also not remarried is referred to as a “wife” The position of divorced Muslim women in India was thoroughly examined in the landmark judgment of the Supreme Court Mohammad Ahmed Khan v. Shah Bano Begum[8].  It was observed that Section 125 of the Criminal Procedure Code, was enacted in order to provide a quick remedy to a class of women who were finding it difficult to maintain themselves. Also, as mentioned in Sunita Kachwaha v. Anil Kachwaha[9], the Supreme Court has held that a wife would not be denied maintenance merely because she is having a source of income.

• Child

(a)“A minor child, male or female, if unable to maintain themself, is entitled to claim maintenance. It is immaterial of any fact that whether such child is legitimate or illegitimate, married or unmarried.”[10] Here ‘minor’ means a person who, under the provisions of the Indian Majority Act 1875[11]has not attained the age of majority. A minor girl who is married may be entitled to claim maintenance from her husband or her father (or maybe from both) provided other necessary conditions are satisfied and fulfilled.

(b) A legal or illegitimate child is entitled to maintenance even after achieving majority if it is unable to sustain itself owing to a physical or mental abnormality or injury. When a married daughter reaches the age of majority, she loses her right to support under Section 125 of the Criminal Procedure Code[12]. The spouse is responsible for her maintenance, not the father.

• Mother

A mother when unable to maintain herself, is entitled to claim maintenance from her son. Section 125 (1) CrPC does not provide for the liability of the daughter to maintain the parents. After the amendment of the Hindu succession (amendment), Act 1956 was that the daughter, whether married or unmarried, is likewise obligated to support and maintain her parents.[13]

Smt. B.P. Achala Anand[14]

“The Supreme Court observed that wife’s right to reside in the matrimonial home under personal laws of that religion. A wife is entitled to be maintained by her husband and is entitled to remain under his roof and get protection. She is also entitled to get a separate residence if by reason of the husband’s conduct or by his refusal to maintain her in his own place of residence or for others just because she is compelled to live apart from him. Right to the residence is a part and parcel right to maintenance of a wife. For the purpose of maintenance, the term wife includes a divorced woman.”[15]

Maintenance rights under different religions in India[16]

Maintenance Rights under the Hindu law

The Hindu Marriage Act, 1955[17] and Hindu Adoption and Maintenance Act, 1956[18]-give divorced women the right to claim maintenance under Hindu Law. Under the Hindu Marriage Act, if the Court determines in any case under this Act that either the wife or the husband has no independent source of income adequate to sustain them, it may order to provide monthly maintenance to the claimant. Both a husband and a wife who has no independent income to support themselves are entitled to claim interim maintenance under Section 24[19].

A. Maintenance rights are given to Daughters

1. Daughters also have the right to inherit from their father’s property as boys.
2. Daughters have a share in the mother’s property.
3. The Hindu Succession (Amendment) Act, 2005[20] (39 of 2005) came into force from 9th September 2005. the amended Act removes gender discriminatory provisions in Section 6 of the Hindu Succession Act, 1956 gives the following rights to daughters.

• The daughter of a coparcener, like a son, becomes a coparcener in her own right at birth;
• The daughter has the same rights in the coparcenary property as if she had been a son;
• The daughter is subject to the same responsibility in the coparcenary property as if she had been a son;
• A daughter is given the same portion that a son is given;

4. A married daughter has no claim to shelter or maintenance in her parents’ home if she is married. If a married daughter is deserted, divorced, or widowed, she has a right of residence.
5. If a woman reaches the age of majority, she enjoys complete ownership of whatever property she has earned or received as a gift. She is allowed to dispose of things in any way she sees fit, including by sale, gift, or bequest. The same right is given to her under section 14 of the Hindu Succession act, 1956[21].

B. Maintenance rights given to Wives

1. A married lady has exclusive ownership rights on her personal possessions. Unless she gives it to someone in part or in whole. She owns and manages all of her assets, whether they were earned, inherited, or given to her.
2. She is entitled to claim for maintenance, support, and shelter from her husband, or from the family if her spouse is part of a joint Hindu family.
3. When her husband and his sons divide a joint Hindu family or do partition, she is entitled to the same portion as any other individual. Similarly, under Section 8 of the Hindu Succession Act, 1956 if her husband dies, she, her children, and his mother are all entitled to an equal part of his estate.[22]

C. Maintenance rights given to Mothers

1. She is entitled to maintenance from children who are not dependents. She is also considered under Class I heir of the male succession.
2. If a joint Hindu family estate is divided among the sons, a widowed mother has the right to a share equivalent to that of a son, under Sections 8 and 9 of the Hindu Succession Acts, 1956[23].
3. She has complete control over the disposition of all property she owns, whether by sale, will, or gift.
4. In case she dies intestate, her children inherit equally, regardless of their sex.[24]

Maintenance Rights under Muslim Law[25]

In this decision of Shabana Bano v Imran Khan[26], the Supreme Court concluded that, under Section 125 of the CrPC, even after the iddat periods have ended, a Muslim woman who is unable to sustain herself may seek maintenance from her husband.

A. Maintenance Rights are given to Daughters

1. In inheritance, the daughter’s part is half of the son’s, in keeping with the idea that a woman is worth half a man.
2. She has and always had, complete power over the land. It is her legal right to govern, control, and dispose of it as she sees fit, whether she lives or dies.
3. Though she may receive presents from individuals she would inherit from, there should be no mistake that the gift is a way for her to get around the Muslim law’s one-third share inheritance rule. The inheritance divisions are fairly rigid.
4. Daughters have the right to live in their parent’s homes and get support until they marry. After the iddat period, the demand for support reverts to her Parent’s family in the event of divorce (approximately 3 months). In the event that she has children who are capable of supporting her.

B. Maintenance rights given to the Muslim Wives

1. When a woman marries her identity, albeit lower in rank than a man’s, is not destroyed in him, according to Islamic law.
2. As a result, she keeps control of her belongings and possessions. She is entitled to the same maintenance as his previous spouses if any and she has the right to sue him if he discriminates against her.
3. A Muslim husband is expected to provide maintenance to his divorced wife during the iddat term under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 [27]. This phrase has been misconstrued in the past to suggest that the husband is only legally required to support his wife “during” the iddat time. In the landmark decision of the case of Daniel Latiffi Vs. Union of India[28], the Supreme Court stated that the support paid by the husband to his wife during the iddat period also applies to the time period after the iddat period.
4. Right to mehr’ according to the terms of the contract agreed to at the time of marriage.
5. If there are children, she will receive one-eighth of his estate; if there are none, she will get one-fourth. If there are several wives, the portion may be reduced to one-sixteenth. In the event that there are no sharers in the estate as required by law, the wife may inherit a larger sum by will. A Muslim may leave one-third of his possessions to his heirs in his will, but not to a sharer in the inheritance

C. Maintenance rights given to Muslim Mothers

1. She is entitled to get support from her children in the event of divorce or widowhood.
2. Her belongings will be shared in accordance with Muslim law.
3. She is entitled to one-sixth of the wealth of her deceased child.

Maintenance rights under Christian Law[29]

 A. Maintenance rights are given to Christian Daughters

1. She shares her father’s or mother’s estate equally with her brothers and sisters.
2. Before marriage, she is entitled to shelter and maintenance from her parents, but not afterward.
3. She also has full ownership of her own possessions once she reaches the majority. Her natural caretaker till then is her father.

B. Maintenance rights given to wives

1. Under Section 36[30], a Christian wife can claim interim maintenance. She is entitled to maintenance from her husband, but his refusal to do so is not grounds for divorce in and of itself. The Court may issue an order mandating the husband to pay permanent maintenance to his wife under Section 37[31]
2. She is entitled to one-third of her husband’s estate upon his death, with the remainder shared equally among the children.
3. She must inherit a minimum of Rs.5000/- from her husband’s estate. Supposing the estate is more than this amount sees may inherit the whole.

C. Maintenance rights given to Christian mothers

She does not have a right to support from her children. If one of her children dies without a spouse or surviving children, she will be entitled to one-fourth of the estate.

Maintenance rights under Parsi law[32]

1. Section 39 to 41[33] of the Parsi Marriage and Divorce Act, 1936 (“PMDA”).
2. Under Section 39[34] the Court can grant interim maintenance to a husband or a wife having no independent income to support themselves.
3. During the course of the proceedings, the Court might order the respondent to bear the costs of the proceedings and pay the applicant such weekly or monthly sums as it sees proper.
4. Under Section 40[35], On an application submitted by a husband or wife, the Court can give permanent maintenance to him or her for his or her support at the time of passing a decree in any process begun under the PMDA or at any time thereafter.
5. Permanent maintenance may be paid in the form of a lump sum, a monthly payment, or a periodic payment for a period not exceeding the applicant’s life.

Conclusion

Divorced women are entitled to maintenance, which is one of the repercussions of divorce. It financially empowers them and enables her to live a nice life even after the divorce. The amount of maintenance is determined by the courts based on the facts, grounds, and evidence offered, and consequently varies from case to case. This right makes sure that there is no miscarriage of justice and that it strengthens the sections laid down when and if necessary, in order to make the established rights clearer.

Suggestion

Marriage is a contract for some religions and for some, it is a soul and body relationship. There are several laws governing marital laws and also maintenance at the same time. However, women after releasing from wedlock can freely live with dignity and can be financially viable to maintain themselves and their children. They can freely move to the courts if in case their rights are infringed.

[1] Author, Rashmita Sunkara, 4th Year BA LLB Student, Jindal Global Law School, Morality, Dependency and Maintenance: Plight of Women under Hindu Law, Page no. 108

[2] Badshah v. Urmila Badshah Godse and Another, (2014) 1 SCC 188

[3]https://www.mondaq.com/india/divorce/1034554/women-and-maintenance#_ftn1

[4]Mangat Mal (Dead) And Another vs Smt. Punni Devi(1995), AIR 1996 SC 172

[5]https://www.myadvo.in/blog/maintenance-rights-for-divorced-women-under-different-religions/

[6] Bhuwan Mohan Singh v. Meena & Others, AIR 2014 SC 2875

[7] Cr PC section 125, Clause (1)

[8] Mohammad Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945.

[9] Sunita Kachwaha v. Anil Kachwaha, AIR 2015 SC 554

[10]The Majority Act, 1875 Act No. 9 of 1875

[11]Ibid

[12] Criminal Procedure Code, Sec 125

[13]Anjani Kant Journal of the Indian Law Institute, July-September 1996, Vol. 38, No. 3 (JulySeptember 1996), pp. 392-404

[14] Smt. B.P. Achala Anand, Civil Appeal No. 4250 of 2000

[15] Ibid

[17] Hindu Marriage Act, 1955, Hindu Marriage and Succession Act, 1955

[18] Hindu Adoption and Maintenance Act, 1956, Hindu Marriage and Succession Act, 1955

[19] Hindu Succession Act, 1955 Section 25

[20] The Hindu Succession (Amendment) Act, 2005 (39 of 2005)

[21] Hindu Succession Act, 1956, Section 14

[22]https://www.legalserviceindia.com/legal/article-5607-women-s-right-to-maintenance-under-hindu-law.html

[23] Hindu succession act, 1956, Section 8

[24]https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/meera-didi-se-poocho/property-richts-of-women-in-india-and-maintenance

[25]M. Afzal Wani Journal of the Indian Law Institute, July-December 2003, Vol. 45, No. 3/4, Family Law Special Issue (July-December 2003), pp. 409-428,

[26] Shabana Bano v Imran Khan, AIR 2010 SC 305

[27] Muslim Women (Protection of Rights on Divorce) Act, 1986 Section 3

[28] Daniel Latiffi v. Union of India, 2001 (7) SCC 740

[29]http://www.helplinelaw.com/family-law/MAINRDW/maintenance-rights-for-divorced-women-under-different-religions-in-india.html

[30]   Divorce Act of Christian law, 1869 Section 36

[31] Divorce Act of Christian law, 1869 Section 37

[33] Parsi Marriage and Divorce Act, 1936, Section 41

[34]   Parsi Marriage and Divorce Act, 1936, Section 39

[35] Parsi Marriage and Divorce Act, 1936 Section 40

This article has been written by Mugdha Pathak, 3^rd Year BBA.LL.B Student at Christ (Deemed to be) University.