Revising The Jurisprudence of Quantum of Maintenance from Libertarian/Individualistic Standpoint


Marriage is considered a sacrament under the Hindu Marriage Act, 1955. Notwithstanding, the definition of marriage is changing in modern times. Due to literacy & financial independence, it is now possible for women to walk out of toxic/unworkable marriages. As the definition of marriage is transforming from a sacrament to a contract, the liabilities of the individuals in a marriage will also transform. Marriage being a contract will pave a way for transition of definition of conventional marriage between cisgender heterosexuals and lay foundations for legalization of marriage among non-binary, homosexual individuals across the gender spectrum. With changing dynamics of conventional marriages, marital laws including alimony/maintenance are also bound to go through a drastic change. This article intends to shed light not only on the technical but also on the jurisprudential aspect of maintenance. This article is specifically about alimony/maintenance given to spouses and not children or parents and the need of revising the jurisprudence of quantum of maintenance from libertarian or individualistic standpoint.

Maintenance Under Indian Law

Traditionally alimony/maintenance was to be given by a husband to his wife who is unable to maintain herself as per their respective personal laws. Apart from that, Section 125128 of Code of Criminal Procedure, 1973 deals with maintenance given to wives, children and parents. It is important to note this law was enacted to safeguard the rights of women, majority of them who were financially dependent on their husbands. Although the language of CrPC implies that it is the man who has to maintain his wife, liberal interpretation has been made w.r.t maintenance. In cases like Indra Sarma vs V.K.V. Sarma and Madan Mohan Singh vs. Rajanikant, Court has interpreted that ambit of wife is wide enough that a woman cohabiting in a live-in relationship is sufficient to entitle her to maintenance from her partner (man). In addition to this in Vijaya Manohar Arbat vs Kashi Rao Rajaram Sawai, Court held that daughter is also liable to maintain her parents and in Rani Sethi vs Sunil Sethi, Court went further and held that husband is eligible for maintenance from his wife. Section 24 & 25 of The Hindu Marriage Act, 1955 facilitates wife as well as husband who’s insufficient to maintain herself/himself to get maintenance. So, it can be condensed that according to the law and precedents set by the court the spouse who is financially insufficient to maintain herself/himself is bound to get maintenance from the spouse who is financially well-off and that gender is an immaterial prerequisite for getting maintenance.

Jurisprudence of Quantum of Maintenance

In Rajnesh vs Neha, the Supreme Court held that “The objective of granting interim / permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse.” The Jurisprudence of quantum of maintenance explicates that the maintenance that has to be given must be reasonable and realistic. The quantum of maintenance is subject to Court’s discretionary power. The court may direct one spouse to pay a lump sum amount or monthly allowances to the dependent spouse. Moreover, the court may also make any Alteration in that amount if it deems fit as per Section 127 of Code of Criminal Procedure, 1973. This has been law of the land so as to safeguard dependent spouses from being pushed into destitution & homelessness.

Ambiguity of Reasonableness

The Law states that Maintenance that has to be granted must be reasonable. However, the term “Reasonable” in itself is certainly ambiguous. The question which arises then is what exactly can be construed as reasonable. Is it reasonable when one spouse is paying basic but an adequate amount to fulfill the basic necessities of the other spouse? or is it reasonable when a multi-millionaire spouse is paying an amount (in millions) as maintenance allowance to the other spouse? Would it be reasonable to grant a hefty maintenance if the marriage is dissolved within a year from it was solemnized? Or would it be reasonable to grant a handsome alimony only if the marriage is dissolved after 10+ years from it was solemnized?

Revising the Jurisprudence of Quantum of Maintenance from Libertarian/Individualistic Standpoint

Etiologically if one tries to understand the underlying idea of maintenance it emanates from its patriarchal roots that marriage is a holy sacrament and that it is the duty of the husband to provide for his wife. Nevertheless, now the definition of marriage is undergoing a transition as a contract between two equal individuals. This concept can be traced back to Thomas Hobbes’ possessive individualism which explicates that man by nature is individualistic and social out of necessity, and he’s the sole proprietor of the possessions he owns and thus, owes nothing to society. Possessive individualism has been summarized in C. B. Macpherson’s The Political Theory of Possessive Individualism: Hobbes to Locke as, (i) What makes a man human is freedom from dependence on the wills of others. (ii) Freedom from dependence on others means freedom from any relations with others except those relations which the individual enters voluntarily with a view to his own interest. (iii) The individual is essentially the proprietor of his own person and capacities, for which he owes nothing to society. (iv) Since freedom from the wills of others is what makes a man human, each individual’s freedom can rightfully be limited only by such obligations and rules as are necessary to secure the same freedom for others.”

Furthermore, John Locke’s individualism can be summarized as given by him in The Second Treatise on Government (1690) that, “being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions” which explicates that people have inherent right to life, liberty and property which has a foundation independent of laws of any society. Also, as per John Stuart Mill’s essay “On Liberty” he argued that, “The only part of the conduct of anyone for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” The crux of both the arguments underpins the idea that all individuals are equal and independent and they have absolute sovereignty over themselves. So, if one considers the quantum of maintenance from a libertarian/individualistic standpoint, in a dissolution of marriage between two equal individuals who are financially independent there arises no question of alimony/maintenance as both the individuals are sole proprietors of their possessions and financial predicament of either of the spouse is independent from the other one; ergo, neither of the spouse is liable to pay any alimony/maintenance to the other one post-divorce.

Preponderance of Judicial Precedents Towards Individualism

Indian Judiciary has a preponderance towards individualism i.e., safeguarding rights of individuals over social morality. This is easily discernible by considering a couple of landmark cases adjudicated by the Supreme Court. For instance, in Puttaswamy’s judgment the Court overruled tenets laid down in M. P. Sharma and Kharak Singh and recognized that the right to privacy is an inherent part of right to life and personal liberty under Article 21 of the Constitution. Also, in NALSA judgment the Court recognized transgender persons as third gender and affirmed that the fundamental rights granted under the Constitution are equally applicable to them. Furthermore, in Sabarimala Temple Case Justice D. Y. Chandrachud held that morality conceptualised under Articles 25 and 26 of the Constitution cannot have the effect of eroding the fundamental rights guaranteed under these Articles. Thus, emphasizing that women’s individual rights precede social morality. It is because of this very individualism protected and championed by the Courts that there is a scope for marriages to be legalized for non-binary, homosexual individuals in near future.

Emergence of Prenups as A Legal Instrument to Inoculate One from Paying Hefty Alimony or Maintenance

Prenuptial agreements are written contracts created and signed by two individuals before solemnizing their marriage. This agreement differentiates assets and liabilities of both the parties and specifies debts and maintenance amounts beforehand. In this way, in case of dissolution of marriage, settlement can be made expeditiously without approaching the family court. If one tries to understand the idea behind prenuptial agreements, it is to protect one’s assets and inoculate him/her from paying hefty alimony or maintenance. The principle involved in preparing prenups before marriages is in concordance with tenets laid down by libertarian/individualistic philosophers that an individual is independent and has absolute rights to safeguard his interests (i.e., his/her possessions and property). Prenup as a legal instrument is assisting in the transition of the concept of marriage from an institution to a pure contract and therefore, minimizing/eliminating post-divorce liabilities of spouses to each other.


The definition of marriage in modern times is transforming into a social union among two equal individuals without any dogmatically prescribed roles. And thus, from a libertarian/individualistic standpoint, if both the individuals are financially independent then neither of the spouses should be liable to pay any alimony/maintenance to the other one post-divorce. Notwithstanding, this will be strictly applicable to assets/possessions acquired by both individuals before marriage. If any kind of possessions/property is acquired by both the individuals jointly post-marriage it will be subject to equal distribution amongst both. In my opinion, this is a more pragmatic approach of bringing equality in marriages in praxis.

This article has been written by Hrishikesh A. Bhosale, final year law student at Pune University.

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