When the wife is unable to maintain herself during the continuance of her marriage or after separation or divorce, the court may by order directs the husband to pay a specific amount for her maintenance. The amount payable by the husband to his wife on the order of the court is known as maintenance. The term maintenance is of wider interpretation. Section 3(b) of Hindu Adoption and Maintenance Act defines the term as:
Maintenance refers to the entitlement for food, clothing, residence, education, medical attendance, and treatment and in the case of an unmarried daughter, it also includes the reasonable expenses of an incident to her marriage.
Due to the absence of a uniform civil code, different laws govern the provisions of maintenance and are applied to an individual with regard to the religion they belong to. In other words, personal laws are applied to such an individual.
For instance: If a person is a Hindu then he can claim maintenance under the Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act. Where a person belongs to the Muslim community then the provision for maintenance is dealt with under the Muslim Women (Protection of Rights on Divorce) Act, 1986. For a person who belongs to the Parsi community the law for maintenance is provided under the Parsi Marriage and Divorce Act, 1936 and for Christians they are governed under the Divorce Act, 1869.[1]
Moreover, the Code of Criminal Procedure and also the Special Marriage Act, 1954 also provides the provision for maintenance.
A wife can claim maintenance from her husband under Section 125 of the Code of Criminal Procedure, 1973. She is entitled to claim maintenance where she is able to prove that she has no adequate means to support herself as there is no source of income. In other words, where a wife is unable to fulfill her basic needs or expenses, then she can file a petition in the court and if the court is satisfied then the court by order may direct the husband to pay a specific amount to his wife so that she can support and fulfill her needs subject to Section 125 of the Code.
25% of the husband’s net salary is to be paid as alimony to the wife. The Supreme Court stated that 25% of salary is just and proper amount for maintenance of wife with which she can take care of her needs and that of the family, in case he has remarried.[2]
Furthermore, for attracting this Section it needs to prove that wife is a legally married woman and such legality can be judged from the personal laws applicable to them. If any conflict arises between personal laws and that of Section 125 of the Code of Criminal Procedure, 1973 then the question arises which law would prevail? As it is clear from the language of the Section, in such a case Section 125 of Code of Criminal Procedure would prevail.
Section 125 of the Code of Criminal Procedure states that:
“ If any person having means neglects or refuses to maintain his wife who is unable to maintain herself, in such a case, a Magistrate of First Class may upon proof of such neglect or refusal order such person to make a monthly allowance for maintenance of his wife at such monthly rate not exceeding Rs 500 in whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.”
The above Section deals not only with the maintenance rights granted to the wife but also to children and parents.
For an application of maintenance to be entertained under this Section following essential ingredients are to be fulfilled. Firstly, the respondent has to prove that he has sufficient means. Secondly, the petitioner has to prove that the respondent has neglected or refused to maintain her and because of that, she is unable to maintain herself.
The following two elements are to be proved by the respondent which are as follows:
1. Sufficient means
The expression “means” in this Section is not restricted to tangible means such as the existence of movable or immovable property but includes earning potential or capacity to earn. An able-bodied person is presumed to be capable of earning.
In Re. Kandasalmi, the Madras High Court observed that a person who is in perfect health has means to maintain his wife, and the Court can pass an order against him awarding maintenance to his wife.
A person cannot refuse to maintain his wife, because his means are slender or he is a professional beggar or he is in debt. If a person is a health and able-bodied and capable od earning, he cannot escape the obligation by saying that he is only nineteen years of age and has not been able to get a job. It is open to a person to show that on account of some ailment, physical infirmity, accident, or prevailing unemployment, he is in fact not capable of earning anything.
2. Neglect or refusal to maintenance
For an order of maintenance to be passed, it is necessary to prove that there is neglect or refusal on the part of the person again whom an application for maintenance has been filed. Such proof is the basis for the claim of maintenance and if it is not proved by the petitioner then no order of maintenance can be passed against the respondent irrespective of the fact that the petitioner is living separately from her husband. The term neglects to indicate the negligence on the part of the person who has a duty to maintain his wife. In other words, it implies the failure of duty on the part of the husband to maintain his wife whether intentional or not. Neglect or refusal can be inferred from the conduct of the person and it need not be expressed. Failure to maintain properly amount to neglect when maintenance is meager and inadequate and Magistrate can entertain jurisdiction.
Provided that a wife is not entitled to maintenance from her husband if she is living in adultery or if without any sufficient reason, she refuses to live with her husband, or that they are living separately by mutual consent. If the respondent is able to prove any of these grounds, then Magistrate has the power to cancel the order in whose favour an order has been made by him.
CASE LAWS
In Chaturbhuj v. Sita Bai[3], the Supreme Court held that where the husband is able to prove that wife has some earning income, in such a case, the Supreme Court held that it is necessary for the husband to prove that the income earned by him is sufficient to support herself. In other words, it has to be proved by him that the income earned by the wife is sufficient to meet her basic needs.
In Danial Latifi v. Union of India[4], Supreme Court said that a Muslim woman is entitled to claim maintenance even after the iddat period subject to the condition that she is not remarried and is unable to maintain herself.
In Nagendrappa Natikar v. Neelamma[5], the Supreme Court held that an order passed under Section 125 of the Code of Criminal Procedure does not entitle a wife from making a claim under Section 18 of Hindu Adoptions and Maintenance Act.
[1] https://www.scconline.com/blog/post/2019/01/04/maintenance-wife/
[2] https://www.indialawoffices.com/legal-articles/right-divorced-wife-grant-maintenance
[3] AIR 2008 SC 530
[4] AIR 2001 SC 3958
[5] AIR 2013 SC 1541
This article is authored by Shreya Garg, 4th-Year, B.B.A. LL.B. student at GITARATTAN INTERNATIONAL BUSINESS SCHOOL.
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