JAMIA MILLIA ISLAMIA, NEW DELHI

FACULTY OF LAW

ASSIGNMENT FOR FAMILY LAW II

TOPIC: MAINTENANCE

PRESENTED BY:

NAME : MOHAMMAD AAZAM

ROLL NO. : 32

SEMESTER: Vth SEMESTER

COURSE: B.A.LL.B (Hons.)

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 TABLE OF CONTENTS

Sr. No. TOPIC Pg. No.

1. ACKNOWLEDGEMENT 3

2. INTRODUCTION 4 -5

3. TYPES OF MAINTENANCE 6-7

4. MAINTENANCE UNDER HINDU MARRIAGE ACT 1955 8-9

5. MAINTENANCE UNDER HINDU ADOPTION AND MAINTENANCE 10-13

ACT 1956

6. MAINTENANCE UNDER SEC. 125 OF CrPC 13-15

7. CONCLUSION 16-17

8. BIBLIOGRAPHY 18

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 ACKNOWLEDGEMENT

Firstly, I would like to thank the most respected Dean, Mam Nuzhat Parveen Khan
to provide this opportunity to me. Further I would like to thank my subject teacher
for the subject Family Law – Prof. Dr. Kahkashan Y. Danyal who gave me this
golden opportunity to research on the topic – “Maintenance”. This assignment work
assigned to me has proved to be very fruitful in acquiring a deep understanding and
knowledge regarding the topic.
Finally, I would like to thank my Parents, who always supported and promoted my
interest without whose constant support and blessings this assignment would not
have been completed.

INTRODUCTION

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 The whole concept of maintenance was introduced in order to see that if there is a
spouse who is not independent financially than the other spouse should help
him/her in order to make the living of the other person possible and independent.
Providing maintenance means that the other person who is getting the maintenance
should be able to live the life as he or she lived before marriage in case of divorce
and in case where the two partners are not living together and they seek
maintenance than the spouse getting maintenance should be able to live a life as
when they lived together. Maintenance is the amount which a husband is under an
obligation to make to a wife either during the subsistence of the marriage or upon
separation or divorce, under certain circumstances. At this point of time I would
also like to mention that according to my understanding maintenance not only
includes basic necessities like food, clothing and residence but it also includes the
things necessary for comfort and status in which the person entitled is reasonably
expected to live.  According to me the main aim of providing maintenance is that
the wife should not be left destitute on separation or divorce from her husband. In a
laymen’s term maintenance are those things which are indispensable for the
survival of human being.

The most important aspect of maintenance is that the party which relies on
maintenance has no independent source of income to support himself/herself. The
main point we have to focus on in independent income. Should the spouse who is
claiming maintenance have movable or immovable property, the spouse can still
claim maintenance if the property does not yield any income.

The quantum of maintenance and the expenses of the proceedings have not been
specified in any of the Indian Matrimonial statutes except the Divorce Act. The
court can fix the maintenance at any amount, depending on its discretion. When
deciding the quantum of maintenance to be awarded, the court takes into account

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 the income of both parties, their status and other circumstances. When the wife
applies for maintenance, the onus is on the husband to declare his income.1

1
Concept of Maintenance: An Analysis, available at: www.pathlegal.in (Last visited on November 18, 2019)

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 Types of Maintenance

There are two types of maintenances:-

(1) Interim maintenance and maintenance pendente lite

(2) Permanent maintenance

The interim maintenance is payable from the date of presentation of the petition till
the date of dismissal of the suit or passing of the decree. Interim maintenance is
supposed to meet the immediate needs of the petitioner. And maintenance pendente
lite is for providing the litigation expenses to the claimant. Interim maintenance is
the amount that is paid by the financially independent spouse to their counterpart
during the pendency of the proceedings in the matrimonial cause and which covers
the expenses of the proceedings as well as the other expenses of the spouse during
the course of the proceedings. 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.

Section 24 provides of Hindu Marriage Act, 1955 (HMA) provides for

maintenance. It talks about how either the wife or the husband can claim for interim
maintenance. The interim maintenance is payable from the date of presentation of
the petition till the date of dismissal of the suit or passing of the decree. Interim
maintenance is supposed to meet the immediate needs of the petitioner. And
maintenance pendente lite is for providing the litigation expenses to the claimant.2

Interim maintenance can be claimed either by the husband or the wife, under the
Hindu Marriage Act and the Parsi Marriage and Divorce Act and is called
2
Dr. R.K. Agarwal, Hindu Law (Central Law Agency)

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 “Alimony Pedente Lite." Under all other statutes, the wife is the only spouse who
can claim it.  Section 36 of the Divorce Act of 1869 says that the wife may file a
petition for interim maintenance, regardless of who instituted the suit and whether
the wife obtained an order for protection. It also says that the petition for the
expenses of the proceedings and alimony pending the suit should be disposed of
within sixty days of the service of the petition on the husband.3

Permanent maintenance, on the other hand, is the maintenance that is paid by one
spouse to the other after the judicial proceedings have resulted in either the
dissolution of the marriage or a judicial separation. Section 25 of the act talks about
permanent maintenance. It states that how the court can order the respondent to pay
the applicant for her or his maintenance a gross sum or a monthly or periodical sum
for a term not exceeding the life of the applicant unless there are changes in
circumstances under which the court can change its order.4

3
Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency)
4
Ekradeshwari v. Homeshwar, 56IA 182(PC); AIR 1929 PC 128

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 MAINTENANCE UNDER HINDU MARRIAGE ACT 1955

Section 24 of the Hindu Marriage Act, 1955, deals with the alimony pendente lite
and the expenses of the proceedings. This Section empowers the court to order the
respondent to pay the petitioner the expenses of the proceedings, if it appears that
either wife or the husband has not independent income for his or her support and to
meet out the necessary expenses of the proceedings. It is to be noted that the court
while making order under this Section, pays due regard to the petitioner's own
income and the income of the respondent. The Marriage Laws (Amendment) Act,
2001 was introduced. This amendment inserted the proviso in Section 24 of the
Hindu Marriage Act, 195 5, which aimed to fix the duration of six months in the
disposal of the application of the payment of the expenses of the proceeding and
monthly sum during proceeding within the sixty days from the date of the service of
notice on the wife or husband, as the case may be. Section 25 of the Hindu
Marriage Act, 1955 deals with the permanent alimony and maintenance. It
comprises three Subsections. Subsection 1 of this Section deals with the condition
where any husband or wife may for the permanent alimony or maintenance at the
time of passing any decree or at any time subsequent thereto. This Subsection
empowers the court to order the respondent to pay the maintenance and support the
gross sum or the monthly or periodical sum for a term not exceeding the life of
applicant. According to this Subsection the responsibility of the paying spouse ends
on the marriage of the other spouse. The court fixes the amount of permanent
alimony and maintenance, keeping in view the 276 respondent's own income and
other property and the income and other property of the applicant. The court may, if
necessary, also secure the payment of permanent alimony by a charge on the
immovable property of the husband. Subsection 2 of this Section says that after the
passing of the order of the payment of permanent alimony under this Section, in

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 case the court is satisfied that there is a change in the circumstances of either party.
In this condition, the court may, at the instances of either party, vary, modify or
rescind any such order in such manner as court deems just. Subsection 3 of this
Section empowers the court to rescind the order of the payment of permanent
alimony, if it is satisfied that the party in whose favour an order has been passed
under this Section has been 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 the wedlock.5

5
Maintenance under Hindu Law, available at: www.legalservicesindia.in (Last visited on November 15, 2019)

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 MAINTENANCE UNDER HINDU ADOPTION AND MAINTENANCE ACT

Marriage is the very foundation of any society. It is sine qua non for family peace
and stability. Being so, legislatures all around the world have given certain rights
and imposed certain obligations on husband and wife which are important
constituents of any family. In ancient times, marriage was considered to be decided
by the God and divinity was associated with it.It is considered to be a sacred social
institution. Marriage, according to the Hindu Law, is a holy union for the
performance of religious duties. Marriage is not a contract but it is a Sanskar or
Sacrament‟. The Sanskar ordained that once a maiden is given in marriage, she
must preserve her chastity as much after as before her husband’s death.” According
to the Mahabharata, Wife is not only a source of Dharma, Artha and Kama‟ but also
a source of Moksha‟. In Ramayana, Wife is said to be the very soul of her husband.
She is Grihini‟ [the lady of the House], Sachiva‟ [wise Counselor] and Sakhi
[friend of her husband]. She is Griha Laxmi, Ardhangini (half of him) and
Samarajyi‟. Hindu marriage protects a woman by guaranteeing her legal rights for
restitution of conjugal rights in case of desertion, legitimacy of the children, relief
in case of cruelty, adultery, impotency, claim of maintenance and alimony etc. and
order for maintenance to wife who is unable to maintain herself. Husband and wife
are two wheels of a family chariot and it is but natural that in the course of time
they unknowingly enter into a state of discord. Notwithstanding enactment of a
plethora of laws, the male dominated society of India doesn’t allow even a
modicum of improvement in the status of a married woman.

With the result, the Indian home has become the safest place for men to commit
violence against women who are defenceless. To overcome this age-old disability,
The Hindu Marriage Act (HMA), 1955, The Hindu Succession Act (HAS), 1956,
The Hindu Adoption and Maintenance Act (HAMA), 1956 and The Hindu

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 Guardian and Wards Act (HGWA), 1956 have been enacted. The State tries to
empower married women through its policies and laws mentioned above. But due to
their ineffective implementation, the Constitutionally-mandated concept of
equality‟ continues to be a mere paper blessing, far divorced from the touch of
reality. So much so Hindu wife is not entitled to maintenance by spouse’s family
under Hindu Adoptions and Maintenance Act, 1956. This paradox is the result of
patriarchal norms and values institutionalized by the State. This leads to creation of
inferior image of a woman which is an age-old tragic reality of Indian society. The
Researcher here tries to adumbrate and justify rights of maintenance of a Hindu
married woman, whose husband is unable to provide maintenance to her under
Hindu Adoptions and Maintenance Act, 1956

Section 18 of the Hindu Adoption and Maintenance Act, 1956, deals with the
married women's right to reside separate and claim maintenance. This Section
comprises three Subsections. Subsection 1 of this Section entitles the Hindu wife to
get the maintenance from her husband during her life time. The right to be
maintained is irrespective of the fact that whether she was married before or after
the commencement of the Act. Subsection 2 of this Section provides justifiable
grounds to the Hindu wife under clause (a) to clause (g) which entitle the Hindu
wife to live separately from her husband without forfeiting her claim to
maintenance. The grounds are desertion, cruelty leprosy, having another wife by the
husband, keeping a concubine by the husband, conversion from Hinduism to
another religion by the husband or any other justifiable cause. Sub-Section 3 of this
Section disentitles the Hindu wife to separate residence and claim of maintenance
from her husband if she is unchaste or ceases to be a Hindu by conversion to
another religion. The rule laid down in Section 18 of the Hindu Adoption and
maintenance Act, 1956 must also be read with Section 23 of this Act which lays
down that it shall be the discretion of the court to determine whether any, and if so
what maintenance shall be awarded under the provisions of this Act. Here in this
Section, the right of the Hindu wife whether married before or after the

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 commencement of this Act, to be maintained by her husband during her life time
has been, reiterated substantially in Subsection (1).However, this Subsection (1)
must be read with Subsection (2) and Subsection (3). Subsection (3) is an exception
to Subsection (1) which lays down that the Hindu wife can not claim separate
residence and maintenance, if she is unchaste or ceases to be a Hindu by conversion
to another religion. Subsection (2) shows the justifiable ground upon which a Hindu
wife lives separately from her husband without forfeiting her claim to maintenance.
Clause (a) of Subsection 2 of the Hindu Adoption and Maintenance Act, 1956 deals
with the "Desertion of wife by husband". This clause aims at giving the meaning of
desertion as abandonment of the wife by the husband without reasonable cause
without her consent or against her will or willful neglect of the wife by the husband.
It accords with the meaning given to the expression as used in Section 13(1) of the
Hindu Marriage Act 1955. The only distinction between Section 18(2) (a), and
explanation to Section 13(1), the Hindu Marriage Act, 1955 is that under the latter
the petitioner should show the respondent had deserted him or her for a period of 2
years prior to the presentation of the while under Section 18(2)(a) of the Hindu
Adoption and maintenance Act, 1956, desertion might be any duration. A full bench
of the Kerala High Court has held that if a husband had deserted the wife, the wife
need not give the proof of animus.3 Clause (b) of Section 18(2) of the Hindu
Adoption and Maintenance Act, 1956 deals with the "cruelty" by the husband to
wife. For succeeding the claim of cruelty, the wife must prove two distinct element,
first, ill treatment complained of, and secondly, the result and danger of
apprehension thereof. Any conduct of husband which causes disgrace of wife or
subject to a course of annoyance and indignity amounts to legal cruelty. The harm
apprehended by the wife may be a mental suffering as distinct from bodily harm,
because the pain of the mind may be even more severe than bodily pain.6

6
Archana Parashar, Women and Family Reform in India, New Delhi, (Sage Publications, 1992) P.103

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 Section 19 - Maintenance of widowed daughter-in-law.- (1) A Hindu wife,
whether married before or after the commencement of this Act, shall be entitled to
be maintained, after the death of her husband, by or or, other property where she
has no property of her own, is unable to obtain maintenance- (a) from the estate of
her husband or her father or mother, or (b) from her son or daughter, if any, or his
or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the
father-in law has not the means to do so from any coparcener property in his
possession out of which the daughter-in-law has not obtained any share, and any
such obligation shall cease on the re-marriage of the daughter-in-law.‟ 

In a case Court held that the obligation of father-in-law shall not be enforceable if
he has no means to maintain his daughter-in-law from any coparcenary property in
his possession out of which the daughter-in-law has not obtained any share. The
object of this Section is to make it clear that the widowed daughter-in-law can claim
maintenance from her father-in-law only where she is unable to maintain herself out
of her own property or from the estate of her husband, father, mother, son or
daughter. It is also provided that the father-in-law shall be under no obligation to
maintain his daughter-in-law except in cases where there is some ancestral property
in his possession from which the daughter-in-law has not obtained any share7.

Maintenance of wife under the Section 125 of CrPC:

Under CrPC, only wife (a woman who has been divorced by or has obtained
divorce from her husband & hasn’t remarried) can claim for maintenance. A wife
who refuses to stay with her husband due to legal grounds such as (bigamy, cruelty
& adultery) has the right to special allowance under this act. But a wife does not
possess right to claim maintenance if she’s living in adultery or she’s living
separately by mutual consent. The various sections of CrPC are criminal in nature
and are used for the criminal charges. The Section 125 of the CrPC states the
provisions as follows:
7
Raj Kishore Mishra v. Smt. Meena Mishra AIR 1995 ALL 70

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 “125 Order for maintenance of wives, children and parents.

(1) If any person leaving sufficient means neglects or refuses to maintain-

(a) His wife, unable to maintain herself, or

(b) His legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or

(c) His legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself,

or, (d) His father or mother, unable to maintain himself or herself"  8

In this section what I find is different according to my knowledge is that the

magistrate has the power to give the maintenance from the date of the order and if
gives the allowance from the date of filling the application than in that case he has
to give reasons as to why he/she is giving the maintenance from the date of the
application.

“Also one more interesting and a vague thing which I found during the research on
my research paper is that a division of the Bombay High Court which said in its
judgment that no maintenance will be granted to the second wife of a
Hindu."  According to me this is one of the vaguest judgments I have read during
the one and half years of my law school. I would like to critise this judgment on the
basis that this judgment is in a way differentiating amongst women and also there is
an angle of gender bias to this judgment. I am saying this on the fact that if the
women are the second wife of a Hindu than it is not her fault and in case she is
completely financially dependent on the husband than what does she have to do to

8
Dalbir Bharati, Women and Law, New Delhi, (S.B. Nangia-APH Publishing Corporation, 2008), 

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 survive. I think this judgment will is not good socially for the benefit of the society
as a whole.

Section 125 of the CrPC is basically secular in nature. Due to the secular nature of
this act this does not affect the various personal laws and also the personal laws do
not affect this section. If any Muslim women seek compensation under the section
125 and she will be awarded maintenance by the respected court only if she is not
remarried. “If the wife exercises her right under the Muhammadan Law and refuses
to live with her husband on the ground of non-payment of dower, cannot enforce
her right to maintenance under this act."  The Muslim women in case if she is
granted maintenance will be in the form of the monthly allowances.9

In the Mohd Ahmed Khan v. Shah Bano Begum10, there was a Muslim women who
was divorced by her husband when she was 68 years old and was the mother of five
children. She filled a case in the court for granting of maintenance by the court. She
was given maintenance by the Supreme Court under section 125 of the CrPC even
after the iddat period was over. Under the Muslim personal law a divorced women
could be awarded maintenance only during the iddat period and not latter. In case if
she wants maintenance than she will have to be given maintenance by the other
relatives according to the Muslim personal law. This judgment of awarding
maintenance to Muslim women under section 125 of the CrPC which is a secular
section of the law was widely critised by the Muslim community throughout the
country. The Supreme Court had its following judgment in the case:

“The Supreme Court of India mitigated the effect of Muslim laws that limited the
maintenance payable to a divorcée. It held that, regardless of any previous payment
of maintenance by a divorced man to his former wife during her iddat period and
payment of her mahr, a former wife could still seek additional maintenance from
her ex-husband under Section 125 of the CrPC, which permits courts to order

9
Yashvant Rau v. Kashi Bai 12 Bom.26
10
1985 AIR 945, 1985 SCR (3) 844

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 maintenance payments for financially destitute women. In its decision, the Court
quoted certain passages from the Qur'an in support of the position that a divorced
man has an obligation to materially support his former wife. This decision triggered
massive protests amongst conservative Muslim Indians, who viewed the decision as
a deliberate attempt to undermine "their" personal laws and were outraged that a
secular court tried to support its decision with references to the Qur'an.
Fundamentalist Muslim leaders even pressured Shah Bano, to withdraw her support
for the Court's decision in her favor. Despite acclaim for the decision from women's
rights advocates, including from some Muslim women's groups, many Muslim
leaders lobbied for legislation to overturn the Court's decision. As a result, without
any consultation with either women's groups or moderate Muslim leaders, the
national government hastily passed the Muslim Women Act of 1986, which limited
a Muslim man's duty to pay maintenance to his former wife to her iddat period." 11

CONCLUSION

After reading and going through various sources of the personal laws, I feel that the
Hindu law is much more clearly defined and gives much more rights to women in
comparison to the Muslim law. Providing maintenance means that the other person
who is getting the maintenance should be able to live the life as he or she lived
before marriage in case of divorce and in case where the two partners are not living
together and they seek maintenance than the spouse getting maintenance should be
able to live a life as when they lived together. Maintenance is the amount which a
husband is under an obligation to make to a wife either during the subsistence of the
marriage or upon separation or divorce, under certain circumstances.

If we read the Shah Bano case we could see that the Muslim and the Hindu women
were on the same side. But latter when the government passed The Muslim Women
(Protection of Rights on Divorce) Act, 1986 the Muslim women were again seen to

Summary of Mohd.Ahmed Khan v. Shah Bano AIR 1985, available at: www.indiankanoon.org (Last visited on
11

November 17, 2019)

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 be more unprivileged than the Hindu women. But latter the court in the Daniel
Latify judgment said that the Muslim women can also be awarded the same
maintenance as Hindu women for life time. Therefore according to my
understanding or according to my knowledge I would say that both the Hindu and
the Muslim women are in the same place in case of awarding the maintenance.

Law of maintenance is personal as well as legal in character and arises from the
very existence of relationship between the parties.

From the above discussion, it can be concluded that Law of maintenance with no
doubts is inclined towards the females in both the structures whether it be Hindu
Law or Muslim Law. Women have been bestowed with many more privileges in
comparison to men and husbands have been granted a lot more of responsibilities
and obligations. Although the given laws may sound unjust to a few but
pragmatically they seem to be correct as in our country even till date women do not
have the social status equal to that of men. Hence, it won’t be incorrect to
extrapolate that Law makers while formulating these provisions must have kept in
mind the situation of the women in the patriarchal society of India. The women of
both the communities are suffering due to being poor, being women and than being
a part of the patriarchic society.12

12
Desai Satyajeet Atul, Sir Dinshah Fardunji Mulla, Principles of Hindu Law, Volume 1(20th ed.), New Delhi,
(LexisNexis Butter worths, 2007) at pg.12.

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 Bibliography

Primary Sources
[1]. Archana Parashar, Women and Family Reform in India, New Delhi, Sage
Publications, (1992) P.103
[2]. Dalbir Bharati, Women and Law, New Delhi, S.B. Nangia-APH Publishing
Corporation, (2008), 
[3]. Desai Satyajeet Atul, Sir Dinshah Fardunji Mulla, Principles of Hindu Law,
Volume 1(20th ed.), New Delhi, LexisNexis Butterworths, (2007) at pg.12.

Secondary Sources
[1]. Madhu Kishwar, “Codified Hindu Law, Myth and Reality” xxix/33,Economic
and Political Weekly, (1994) 2145.
[2]. Sarkar Lotika “Women‟s Movement and the Legal Process”, Occasional Paper
No. 24 Committee on the Status of Women in India‟s (CSWI) report, New Delhi, p.
1-2.
[3]. http://lawcommissionofindia.nic.in/reports/on Right of the Hindu Wife to
Maintenance: A relook at Section 18 of the Hindu Adoptions and Maintenance Act,
1956.pdf, as visited on 6th November 2019.

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