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1-Maintenance - by SMT YJ Padmasree PDF
1-Maintenance - by SMT YJ Padmasree PDF
Paper Presentation on
By
Smt.Y.J.Padma Sree,
III Addl. Junior Civil Judge,
Kadapa
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CONCEPT OF MAINTENANCE
Meaning:
The dictionary meaning of the term maintenance is support or
sustenance. The term maintenance is not defined in the marriage laws of any
of the religious communities. But the entitlement of claiming maintenance is
certainly based on the assumption that the claimant doesn’t have the sufficient
means to support herself .The maintenance generally covers the expenses for
necessaries or essentials for the substance of life. However, it is not merely a
right for survival of the claimant. This is clear from the provisions under the
acts mentioned above, which give guidelines to the court by stating the factors
to be taken into consideration for fixing the amount of maintenance. The court
is to look into the possession of the property of both, the husband and the
wife, ability of the husband to earn, conduct of the parties and other
circumstances to decide the amount of maintenance. Before fixing the amount
of maintenance the status of the parties and the standard of their life enjoyed
by them, during the subsistence of marriage will have to be taken into
consideration.
Object:-
The provisions of Maintenance act are intended to fulfill a social
purpose. These provision are contained in Criminal procedure code,1973
under section 125 to 128, under the Hindu marriage act 1955, under
the Hindu Adoption and Maintenance act,1956. Under the protection of
women from Domestic Violence Act 2005,The Maintenance and
Welfare of Parents and Senior citizens Act,2007. The object of all these
provision is to compel a man to perform the moral obligations, which he owes
to the society in respect of his wife, children and parents. By provisions a
simple and speedy but limited relief, These provision seek to ensure that the
neglected wife and children are not left beggared and destitute on the
scrapheap of society and there by driven to a life of vagrancy, immorality and
crime for their subsistence. The inability of the wife, child and father or mother
to maintain themselves could lead to Social problems and therefore, it became
the concern of the state not to allow such inability to grow in to social
problems of great magnitude unless the consequences of such inability were
checked by providing appropriate measure, large scale vagrancy could be the
probable off-shoot there from.
Therefore, the parliament in its desire to find a solution to this
problem evolved a procedure which has found expression in chapter IX of
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vagrancy. This act is really intended for ensuring some supply of food,
clothing& shelter to the deserted wives, neglected children& parents.
I) MAINTENANCE OF WIFE:
Under S.24 of Hindu Marriage Act, 1955 (herein after mentioned as HM Act),
either the wife or husband can apply for interim maintenance. The basis of the
claim for interim maintenance is that the claimant has no independent income
of his/her own to support himself/herself. The provision is silent on the
quantum of maintenance and it is upon the discretion of the court to
determine the quantum. Similarly, maintenance pendente lite is to be provided
to the claimant who does not have an independent income and the financial
need of litigation expenses has to be provided by the other spouse.
Even if one of these grounds exists in favour of the wife, she will not be
entitled to relief if she has indulged in adulterous relationship or has converted
herself into any other religion thereby ceasing to be a Hindu. It is also
important to note here that in order to be entitled for the relief, the marriage
must be a valid marriage. In other words, if the marriage is illegal then the
matrimonial relationship between the husband and wife is non- existent and
therefore no right of maintenance accrues to wife. However, thanks to judicial
activism, in particular cases the presumption of marriage is given more weight
age and the bars to maintenance are removed.
In Ram Chandra Giri v. Ram Suraj Giri where the father of a minor son
neglected to provide maintenance, a petition was filed under section 125 of
CrPC. Thereupon the father contended that the son has a good physic and was
healthy and hence he had the ability to fend for himself. The Court rejected
the contention and stated that the concept of potential earning capacity cannot
be applied to, minor children as that would defeat the very purpose legislation.
V) MAINTENANCE OF PARENTS
S. 20 of HAM ACT also lays down an obligation of maintenance o f old and
infirm parents who are not able to maintain themselves out of their own
personal earnings and property. The HAM ACT is the first statue in India, which
imposes an obligation on the children to maintain their parents. The obligation
to maintain is not only limited to the sons but it also extends to the daughters.
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Under HAM ACT, both the mother and the father have an equal right to claim
maintenance. The explanation to this section also includes stepmother in the
term parent. However it is important to note that the section imposes an
obligation to maintain only those parents, who are unable to maintain
themselves and therefore the obligation to maintain the parents other than
those infirm and unable, is only moral.
In the case of K.Sivarama vs K.Bharathi that any marriage in contravention
of Section 5 & 11 of the Hindu Marriage Act, cannot be considered to be the
valid marriage. Such a woman cannot recourse maintenance U/S. 25 of the
Hindu Marriage Act for claiming maintenance.
In the case of Ambaram v. Reshambai the court held that although the lot of
women who entered into marriage without knowing about the subsistence of
another marriage of her husband, although deserve a sympathetic treatment
yet awarding of maintenance U/S. 25 & if any appeal is to be made, it should
be made to the legislature.
Chandaram Bunkar
Vs
Smt. Ramadevi
AIR 2010 Raj 176
P. Srinivasa Rao
Vs
P.Indira
AIR 2002 AP 130 (FB)
Vs
Vs
K. Jayashri
AIR 1986 AP 126
I) MAINTENANCE OF WIFE
It is incumbent on a husband to maintain his wife, whether she is Muslim or
Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old. However the
wife is too young for matrimonial intercourse she has no right to maintenance
from her husband, whether she is living in his house or with her parents.
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Where the marriage is valid and the wife is capable to render marital
intercourse it‘s the husband‘s duty to maintain his wife even though she may
have means to maintain herself. But if she unjustifiably refuses to cohabit with
her husband then she loses her right for maintenance. The right of
maintenance would also be lost if the wife refuses to obey the reasonable
commands of the Husband but not so if disobedience is justified by
circumstances or if she is forced to leave husband‘s house on account of
cruelty, so that of the husband refuses to maintain his wife without any lawful
reasons/causes the wife may sue him for maintenance. She is not however
entitled to past maintenance. Maintenance is payable from the date of the
decree unless the claim is based on specific agreement.
Where a wife is turned out or ill treated so as to make her impossible to stay
or live together with her husband, or where the breach between the wife and
husband is irremediable she is entitled to maintenance by living separate from
him whether the question arises u/s. 125 of the Code of Criminal Procedure
1973. To summaries, the wife loose the right to maintenance in the following
circumstances:-
a) She is minor, incapable of consummation.
c) Is disobedient.
g) Deserts him.
The husband and wife or their guardian may enter into agreement whereby
the wife is entitled to recover maintenance from her husband, on the
happening of some special event such as ill- treatment, disagreement,
husband‘s second marriage etc. but the agreement in the marriage contract
that the wife would not be entitled to maintenance is void.The key
consideration is that the agreement should not be opposed to the public policy
and Muslim Law.
An agreement between a Muslim and his first wife, made after his marriage
with a second wife, providing for certain maintenance for her if she could not
in future get on with the second wife, was held not void on the ground of the
public policy.
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After divorce the Mahomedan wife is entitled to maintenance during the time
period of Iddat and also for the time, if any, that elapsed after the expiry of
the period of Iddat and her receiving notice of Talak. After expiry of the period
Iddat the enforceability of the order of maintenance ceases.
The wife is entitled to sue for maintenance at her normal place of residence at
the time of divorce and the place where she receives the notice thereof. Suit
by divorced for Hiba-jewels lies where the wife resides. A widow is not entitled
to maintenance out of the estate of her late husband in addition to what she is
entitled to by inheritance or under his will.
The maintenance of woman who suckles an infant rests on him to whom the
infant is born. The maintenance an infant child is rest upon the father,
because, as maintenance is decreed to the nurse on account of her sustaining
the child with her milk, it follows that the same is due to the child himself a
fortiori. ―
Thus a father is bound to maintain his sons until they attain puberty and his
daughter until they are married. He is also responsible for the upkeep of his
widowed or divorced daughter, or a child in the custody of the mother. The
father is not bound to provide separate maintenance for a minor or an
unmarried daughter who refuses to live with him without reasonable cause. An
adult son need not to be maintained unless he his infirm. The father is not
bound to maintain a child who is capable of being maintained out of his or her
own property.
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If the father is poor or infirm then the mother is bound to maintain the
children. And failing her it is the duty of the parental grandfather.
S. Abdul Salam
Vs
S. Ghousiya Bi & others.
I (2008) DMC 116 AP HC : 2007(3) ALT (Cri) 61 (AP)
When two Acts cover two different situations, the special enactment
prevail over the general enactment. Furthermore, Section 3 of the Act will
override the provisions of any other law for the time being in force Section
3(1) of the Act begins with a non obstinate clause 'not withstanding anything
contained in any other law for the time being in force' makes it clear that the
provisions of the 1986 Act would apply to the divorced woman with regard to
a reasonable and fair provision for maintenance of the amount of mehar or
nay of the other conditions in respect of a divorced woman and is entitled for
maintenance under section 3 of the Act. Therefore, it is not in dispute before
this Court that the first respondent herein is divorced wife of the petitioner
herein. Therefore her remedy is to file an application under section 3(1)(a) of
the Act, but not under section 125, Cr.P.C. In view of the law laid down by the
Apex Court.
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A divorced Muslim woman who has not remarried and who is not able to
maintain herself after Iddat period can proceed as provided under section 4 of
the Act against her relatives who are liable to maintain her in proportion to the
properties which they inherit on her death according to Muslim Law from such
divorced woman including her children and parents. If any of the relatives
being unable to pay maintenance, the Magistrate may direct the State Wakf
Board established under the Act to pay such maintenance. The provisions of
the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
Under Section 4 of the Muslim Women Act a divorced woman is entitled to get
maintenance from her relatives such as her children or parents or from Wakf
Board if she is not able to maintain herself after the iddat period from the
provision and maintenance made and paid by her former husband.
There is no provision in the Muslim Women Act which nullifies the orders
passed by the Magistrate under Section 125 or 127 of the Cr.P.C. ordering the
husband to pay maintenance to the divorced woman or takes away the vested
rights which are crystallized by the orders passed under section 125 or 127 of
the Cr.P.C.
Section 36 of the Indian Divorce Act, 1869 (IDA) are similar to S.24 of HM ACT
However S. 36 of IDA differs in the respect that the maintenance pendente lite
and interim maintenance can only be claimed by the wife and not by the
husband.
If a divorced Christian wife cannot support her in the post divorce period she
need not worry as a remedy is in store for her in law. Under S.37 of the Indian
Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or
High Court and, husband will be liable to pay her alimony such sum, as the
court may order, till her lifetime. The Indian Divorce Act, 1869 which is only
applicable to those persons who practice the Christianity religion inter alia
governs maintenance rights of a Christian wife. The provisions are the same as
those under the Parsi law and the same considerations are applied in granting
maintenance, both alimony pendente lite and permanent maintenance. The
provisions of the Indian Divorce Act, 1869, are produced herein covered under
part IX -S.36 - S.38. The power of order monthly or weekly payments:
In every such case, the Court may make an order on the husband for payment
to the wife of such monthly or weekly sums for her maintenance and support
as the Court may think reasonable:
Provided that if the husband afterwards from any cause becomes unable to
make such payments, it shall be lawful for the Court to discharge or modify
the order, or temporarily to suspend the same as to the whole or any part of
the money so ordered to be paid, and again to revive the same order wholly or
in part as to the Court seems fit.
Under section 38 of the Indian Divorce Act, 1869, in all cases in which the
Court makes any decree or order for alimony, it may direct the same to be
paid either to the wife herself, or to any trustee on her behalf to be approved
by the Court, and may impose any terms or restrictions which to the Court
seem expedient, and may from time to time appoint a new trustee, if it
appears to the Court expedient so to do.
If the Husband refuses to pay maintenance, wife can inform the court that the
Husband is refusing to pay maintenance even after the order of the court. The
court can then sentence the Husband to imprisonment unless he agrees to
pay. The Husband can be detained in the jail so long as he does not pay. The
Parsi Marriage and Divorce Act, 1936 speaks about the right of wife to
maintenance-both alimony pendente lite and permanent alimony. The
maximum amount can be decreed by court as alimony during the time a
matrimonial suit is pending in court is one-fifth of the husband's net income.
In fixing the permanent maintenance, the court will determine what is just,
bearing in mind the ability of husband, wife's own assets and conduct of the
parties and this order will remain in force as long as wife remains chaste and
unmarried. In case of pendent lite and interim maintenance sections 39 of
the Parsi Marriage and Divorce Act, 1936 (PMDA) is similar to S.24 of HM ACT.
S.40. of Parsi Marriage and Divorce Act says that the defendant shall pay to
the plaintiff for her or his maintenance and support, such gross sum or such
monthly or periodical sum, for a term not exceeding the life of the plaintiff as
having regard to the defendants own income and other property, if any, the
income and other property of the plaintiff, the conduct of the parties and other
circumstances of the case, it may seem to the Court to be just, and any such
payment may be secured, if necessary, by a charge on the movable or
immovable property of the defendant.
The Court if it is satisfied it may, at the instance of either party, vary, modify
or rescind any such order in such manner as the Court may deem just and if
the Court is satisfied that the partly in whose favour, an order has been made
under this section has remarried or, if such party is the wife, that she has not
remained chaste, or, if such party is the husband, that he had sexual
intercourse with any woman outside wedlock, it may, at the instance of the
other party, vary, modify or rescind any such order in such manner as the
Court may deem just.
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It should be kept in view that the provision relating to maintenance under any
personal law is distinct and separate. There is no conflict between the two
provisions. A person may sue for maintenance under s.125 of CrPC. If a
person has already obtained maintenance order under his or her personal law,
the magistrate while fixing the amount of maintenance may take that into
consideration while fixing the quantum of maintenance under the Code. But he
cannot be ousted of his jurisdiction. The basis of the relief, under the
concerned section is the refusal or neglect to maintain his wife, children, father
or mother by a person who has sufficient means to maintain them. The burden
of proof is on him to show that he has no sufficient means to maintain and to
provide maintenance.
Section 125 gives a statutory recognition to the moral, legal and fundamental
duty of a man to maintain his wife, children and aged parents. Although this
section also benefits a distressed father, the main thrust of this section to
assist women and children. Article 15(3) of the Indian constitution envisaged
that the state can make special provision for woman and children. Section 125
is also along the lines of Art.39 of the Indian Constitution that states that the
State shall direct its policy towards ensuring that all citizens both men and
women have equal access to means of livelihood and children and youths are
given facilities opportunities in conditions of freedom and dignity.
concern and not the undivided family. However, the Magistrate may take into
consideration the joint family property is determining the amount of
maintenance that should be payable by such person..; it also includes a
person, a father, an adult son and a married daughter. But not include a
mother or a wife or an unmarried daughter.
CASE LAWS:
Mohd. Ahmed khan v. Shah bano Begum & other
The appellant, a Muslim, was married in 1932 and in 1975 he drove her out of
the matrimonial home. The respondent filed a petition under section 125 cr pc
in April 1978 against the appellant claiming maintenance at the rate of Rs. 500
per month. The appellant divorced the respondent by an irrevocable talaq in
November 1978. His defence to the respondent’s petition was that she had
ceased to be his wife by reason of the divorce granted by him, that he was
therefore under no obligation to provide maintenance for her, that he had
already paid maintenance to her at the rate of Rs. 200 per month for about
two years and that, he had deposited a sum of Rs. 3000 in the court by way of
dower during the period of idiot. The question was whether the respondent
was entitled to maintenance. In application for revision filed by the respondent
High Court enhanced the amount of Rs. 25 as maintenance fixed by the
magistrate to Rs. 179.20 per month. In appeal a two judge Bench of the
Supreme Court referred the month to the present Bench. Dismissing the
husband’s appeal with costs and adding that it would be open to the
respondent to make an application under section 127{1} of the code for
increasing the allowance of maintenance granted to her on proof of a change
in the circumstances as envisaged by that section, supreme court held that
section 125 was application to all irrespective of their religion clause {B} of
section 125{1} contains no words of limitation so as to justify exclusion of
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Muslim women. There had been a lot of hue and cry by Muslim
fundamentalists after this revolutionary judgment of the apex Court which was
truly intended to protect the interest of Muslim women from oppression.
Consequently the central government was compelled to bring a legislation
nullifying the judgment of the Supreme Court. Therefore Parliament passed a
Muslim women’s {protection of rights on divorce} act, 1986 providing for
other remedies to Muslim women. This new Act allows a Muslims woman to
avail remedy available under section 125 only if the husband consents to it.
Badshah
Vs
Sou. Urmila Badsha Godse and another
(Cr.A.No.19530/2013)
The Hon’ble Supreme Court held that Victims of bigamous marriage entitled to
maintenance.
If a man deceitfully married a woman hiding the substitution of earlier
marriage he is obliged to pay maintenance to her U/s.125 of Cr.P.C.
Manoj Kumar
Vs
Champa Devi
(SPL to Appeal No.10137/2015 dated 06.04.2017)
The Hon'ble Supreme Court held that directing a husband to grant
maintenance to his deserter wife, whom he had divorced , from the date when
the divorce was decreed.
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But in Shah Bano Begum v. Mohd. Ahmed Khan the SC held that ‗Mehar‘ is an
amount paid in consideration of money and not of divorce and hence, it does
not fulfill the condition of the S.127(3)(b). Therefore, irrespective of the
amount of deferred‗Mehar‘ at the time of divorce an amount of maintenance
cannot be cancelled U/S. 127(3)(b).
(6) Upon the failure on the part of the respondent to make payment in terms
of the order under sub-sec. (1), the Magistrate may direct the employer
or a debtor of the respondent, to directly pay to the aggrieved person or
to deposit with the Court a portion of the wages or salaries or debt due
to or accrued to the credit of the respondent, which amount may be
adjusted towards the monetary relief payable by the respondent.
CASE LAWS
Sikakollu Chandra Mohan v SikakolluSaraswathi Devi and another,
2010 (2) ALD (Cri) 391 (AP) : 2010 (3) ALT (Ori) 108 (AP).
Rajesh Kurre v. Safurabai & Ots (2009 Cri.L.J (NOC) 446 Chatti)
The words of provisions under Section 20 of the Act are clear, plain and
unambiguous. The provisions are independent and are in addition to any other
remedy available to the aggrieved under any legal proceeding before the Civil
Court, Criminal Court or the Family Court. The provisions are not dependent
upon Section 125 of Cr.P.C or any other provisions of the Family Courts Act
1984 or any other Act relating to award of maintenance. In case of award of
maintenance to the aggrieved person and child under the provisions of the
Act, the court is competent to award maintenance to the aggrieved person and
child of the aggrieved person in accordance with the provisions of Section 20
of the Act. Aggrieved person is not required to establish his case in terms of
Section 125 of Cr.P.C.
Since there are allegations in the petition that he neglected to pay medical
expenses and also neglected to maintain her and children, the court is not
inclined to quash the proceedings against him.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
Section 4 Of the Act deals with Maintenance of Parents and Senior Citizens.
Sec.4. Maintenance Of Parents And Senior Citizens :- (1) A senior citizen
including parent who is unable to maintain himself from his own earning or out
of the property owned by him, shall be entitled to make an application under
Section 5 in case of- (i) parent or grand-parent, against one or more of his
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children not being a minor; (ii) a childless senior citizen, against such of his
relative referred to in clause (g) of Section 2. (2) The obligation of the children
or relative, as the case may be, to maintain a senior citizen extends to the
needs of such citizen so that senior citizen may lead a normal life. (3) The
obligation of the children to maintain his or her parent extends to the needs of
such parent either father or mother or both, as the case may be, so that such
parent may lead a normal life. (4) Any person being a relative of a senior
citizen and having sufficient means shall maintain such senior citizen provided
he is in possession of the property of such senior citizen or he would inherit
the property of such senior citizen: Provided that where more than one
relatives are entitled to inherit the property of a senior citizen, the
maintenance shall be payable by such relative in the proportion in which they
would inherit his property.
CONCLUSION
By virtue of judicial pronouncements and other steps, rights of women has
been restored but it will become fruitful only when under lying thinking are
changed, the women should emancipate themselves educationally,
economically and socially for their well being only and then they can
understand their rights and worth and thereafter the social upliftment of the
whole community is possible. We should always remember that mother is the
first teacher and mentor of his child. It is a historical fact that no society ever
lived in peace until their women folk are at peace.
By
Smt.Y.J.Padma Sree,
III Addl. Junior Civil Judge,
Kadapa