India: Women And Maintenance

Maintenance, as a concept, has its roots in the social justice system of a civilised society. The Supreme Court, explaining the rationale behind providing maintenance in the case of Badshah v. Urmila Badshah Godse and Anr¹, has held that the "provision of maintenance.aims at empowering the destitute and achieving social justice or equality and dignity of the individual. .The law regulates relationships between people. It reflects the values of society." In India, the right to claim maintenance is statutorily available under both personal and general laws, and such a right cannot be taken away by way of an agreement to the contrary². Maintenance can be awarded during the course of the proceedings (i.e. maintenance pendente lite) or at the conclusion thereof (i.e. permanent maintenance). The right to claim maintenance is available to wives, children and parents. Under certain personal laws, even husbands (who are unable to maintain themselves) are entitled to claim maintenance. This article discusses the provisions under various personal and general laws that entitle a wife to claim maintenance.

Maintenance under Personal Laws:

Hindu Law, Christian Law and Parsi Law

Muslim Law:

Earlier, a Muslim woman could claim maintenance only under the Muslim personal law as laid down in the Quran under which a husband was liable to pay maintenance to his wife only during the period of 'iddat'¹¹. However, the Supreme Court has, vide its landmark judgment in the Shah Bano case¹² held that a Muslim woman is entitled to claim maintenance under Section 125 of the Criminal Procedure Code, 1973 irrespective of Muslim personal law. In this regard, it is pertinent to note that immediately after the Shah Bano verdict, the Muslim Women (Protection of Rights on Divorce) Act, 1986 ("MWA") was enacted whereunder inter alia a Muslim woman is entitled to claim from her husband (i) a reasonable and fair provision and maintenance; (ii) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; (iii) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or her husband or any relatives of the husband or his friends; and (iv) in cases where the divorced woman herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance for a period of two years from the respective dates of birth of such children.¹³

Under Section 3 of the MWA, a Muslim husband is obligated to pay maintenance to his divorced wife within the iddat period. This provision has, in the past, been misinterpreted to mean that the husband is legally obligated to maintain his wife only "during" the iddat period. However, the Supreme Court in the landmark case of Daniel Latiffi v. Union of India¹⁴ has clarified that the maintenance payable by the husband to his wife during the iddat period covers the time period beyond the iddat period as well.

Further, under the provisions of the MWA a divorced woman who is unable to maintain herself beyond the iddat period can also claim maintenance from her relatives¹⁵ and in case she has no relatives, from the State Wakf Board.

Maintenance under General Laws:

Married women in India are entitled to claim maintenance (both interim as well as permanent) under general laws as well, notwithstanding their right under their respective personal laws.

Section 125 of the Code of Criminal Procedure, 1973 ("CrPC"):

Section 125 of CrPC obligates a husband to maintain his wife (who is otherwise unable to maintain herself). The Supreme Court in Bhuwan Mohan Singh v. Meena & Ors¹⁶ has held that Section 125 "was conceived to ameliorate the agony, anguish, financial suffering 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 her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal... She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband". A wife is entitled to claim both interim maintenance as well as permanent maintenance under Section 125 of the CrPC. Further, as per the explanation (b) to Section 125(1)¹⁷, the term "wife" includes a divorced woman as well¹⁸. In Sunita Kachwaha v. Anil Kachwaha¹⁹, the Supreme Court has held that a wife would not be denied maintenance merely because she had a source of income.

Section 20 of the Protection of Women from Domestic Violence Act, 2005 ("PWDA"):

An aggrieved wife is entitled to receive maintenance under Section 20 of the PWDA in addition to an order of maintenance under Section 125 of the CrPC or any other law in force. Such maintenance amount must be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed²⁰. Further, in Lalita Toppo v. The State of Jharkhand and Anr.²¹, the Supreme Court has recognised the right of a woman in a live-in relationship to claim maintenance from her partner under the PWDA.

Footnotes

1 (2014) 1 SCC 188

2. The Bombay High Court has held in Mr. Sanjay Damodar Kale v. Ms. Kalyani Sanjay Kale and Anr that "the statutory right of the wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance. Such a clause in the agreement would be void under section 23 of the Indian Contract Act, being opposed to public policy", Judgment dated 26^th May 2020 in Criminal Revision Application No. 164 of 2019

3. Quantum of such interim maintenance is decided by the Court by taking into account the income of both the parties.

In the case of Bharat Hegde v Smt Saroj Hegde^[3], the Delhi High Court has inter alia set out the following factors for assessing interim maintenance claims under section 24 of the HMA (i) Status of the parties; (ii) Reasonable wants of the claimant; (iii) Independent income and property of the claimant; (iv) Number of persons the non-applicant has to maintain; (v) Amount that should aid the applicant to live in a similar lifestyle as he or she enjoyed in the matrimonial home; (vi) Non-applicant's liabilities; (vii) Provision for food, clothing, shelter, education, medical attendance, treatment of the applicant; (viii) Payment capacity of the non-applicant; (ix) Amount awarded under section 125 of the CrPC.

In this regard, it is pertinent to note that while the aforesaid factors were set out by the Court in the instant case in context of Section 24 of the HMA, it would not be unusual for a Court to consider such or similar factors while awarding interim maintenance under other personal laws.

4. The Court is empowered to vary, modify or rescind any order of maintenance passed by it in case of a subsequent change in the circumstances of either party.

5. Quantum of permanent maintenance is decided by the Court after taking into consideration (i) the respondent's own income and other property; (ii) the applicant's income and other property; (iii) the conduct of the parties; and (iv) other circumstances of the case.

⁶ The Court is empowered to vary, modify or rescind any order of maintenance passed by it in case of a subsequent change in the circumstances of the wife.

⁷ Quantum of permanent maintenance is decided by the Court after taking into consideration (i) fortune (if any) of the wife; (ii) the ability of the husband; and (iii) the conduct of the parties. The Court may require the necessary parties to execute a proper instrument to this effect.

⁸ The Court is empowered to vary, modify or rescind any order of maintenance passed by it in case of a subsequent change in the circumstances of either party.

⁹ Quantum of permanent maintenance is decided by the Court after taking into consideration (i) the respondent's own income and other property; (ii) the applicant's income and other property; (iii) the conduct of the parties; and (iv) other circumstances of the case.

¹⁰ The factors be taken into consideration by the Court while determining the quantum of maintenance are: (i) the position and status of the parties; (ii) the reasonable wants of the claimant; (iii) if the claimant is living separately, whether the claimant is justified in doing so; (iv) the value of the claimant's property and any income derived from such property, or from the claimant's own earning or from any other source; (v) the number of persons entitled to maintenance under the HA&MA.

11. "iddat period" means, in the case of a divorced woman:

(i) three menstrual courses after the date of divorce, if she is subject to menstruation.

(ii) three lunar months after her divorce, if she is not subject to menstruation: and

(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier.

12. Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945

13. Section 3(1)(b)

14. 2001 (7) SCC 740

15. Section 4(1) refers to relatives who would be entitled to inherit the divorced woman's property on her death according to Muslim law

16. AIR 2014 SC 2875

¹⁷ "Section 125(1).Explanation – For the purposes of this Chapter,-

(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."

¹⁸ Rohtash Singh v. Smt. Ramendri and Ors. (2000) 3 SCC 180

¹⁹ AIR 2015 SC 554

20. Section 20(2) of PWDA.

²¹ 2018 SCC OnLine SC 2301

July 9, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.