What is Maintenance?

The maintenance is the monthly expenditure in monetary terms or residence rights at times given to the applicant after approaching court by invoking relevant sections of Laws and proving facts of the case as per the statement of Law. The courts apply the provisions of statute invoked on facts and circumstances of the case and objectively decide the case on merits.

History of Maintenance:

The Hindu female’s right to maintenance is not an empty formality or an illusory claim conceded out of grace and generosity, but a tangible right against property that flows from the spiritual relationship between the husband and wife is recognised and enjoined by pure Shastric Hindu Law and has been emphasized strongly even by earlier Hindu jurists from Yajnavalkya to Manu. While this is not a right to property, it is a right against property, and the husband has a personal obligation to support his wife, and if he or his family owns the property, the female has the legal right to be supported from it. When a charge is imposed for a female’s maintenance, the right becomes legally enforceable. In any case, even in the absence of a charge, the claim for maintenance is almost certainly a pre-existing right, and any transfer declaring or recognizing such a right does not confer new title but merely endorses or confirms the pre-existing rights.

Jurisprudence of Maintenance:

The essential and core principles behind the legislation that are dealing with maintenance laws are to alleviate the financial situations, mental agony, and misery that a woman experiences when she is forced to leave her matrimonial home or she is unable to live with her husband. The various legislations in law stipulate that some reasonable arrangements must be made in order for a woman to be able to support herself. When there are children in a relationship, the principle of maintenance is amplified to another level and it should be noted that the maintenance does not imply, and will never imply simple survival.

A woman who is forced to leave the marital home should not be made to feel as though she has fallen out of grace and is desperately looking for food. According to the law, she is entitled to live in the same manner as she would have in her husband’s home and with a similar status. And this is where the husband’s sound financial position and status come into play, and there, the husband’s legal obligation becomes altogether more. As long as the woman is considered entitled to maintenance, it must be sufficient to let her live in dignity as she would have in her matrimonial home. She cannot be forced to become a beggar or poor. If a person, although having ample means, neglects or refuses to maintain the wife, a maintenance order can be sought without a doubt.

The widows also have a right to maintenance apart from the married women in the Indian context. After a thorough examination and analysis of the relevant judgments on maintenance and Shastric Hindu Law applicable on married women and widows, the following propositions regarding the characteristics of a Hindu woman’s right to maintenance emerge:

(1) That the husband’s obligation to maintain a Hindu woman is a personal one, and he is obligated to do so even if he has no property. If the husband owns the property, the widow’s right to maintenance becomes an equitable charge against it, and anyone who inherits the property inherits the legal obligation to maintain the widow;

(2) While the widow’s right to maintenance is not a property right, it is unquestionably a pre-existing right in property, i.e. it is a jus ad rem right rather than a jus in rem right, and it can be enforced by the widow through an agreement or a civil court decree;

(3) That the widow’s right to maintenance is momentous and significant enough that even if the joint property is sold with notice of the widow’s right to maintenance, the purchaser is legally obligated to provide for her maintenance;

(4) That the right to maintenance is unquestionably a pre-existing right that existed in Hindu law long before the 1937 or 1946 Acts were enacted, and this is a pre-existing right;

(5) That the right to maintenance arises out of the social and temporal relationship between the husband and wife, in which the wife becomes a co-owner in her husband’s property, albeit a subordinate co-ownership; and

(6) That where a Hindu widow is in possession of her husband’s property, she is entitled to retain possession in lieu of maintenance unless the person who inherits or purchases the property is in a position to make adequate arrangements for her maintenance.

When Can Maintenance Provisions Be Invoked?

Whenever there is a breach of provisions of law governing the maintenance, a petition can be filed before the court of competent jurisdiction and that petition will be decided on the merits of a case. For example: in the case of 125, CrPC, when a husband refuses to maintain his wife, the wife can approach the Hon’ble Court for seeking maintenance, in the Domestic Violence case, the prima facie evidence of Domestic Violence is important to get maintenance for the wife. All cases are dealt with on their merits within the ambit of Law and the courts are fairly liberal in their approach while granting maintenance.

Quantum of Maintenance:

The Hon’ble Supreme Court has evolved the law relating to maintenance. Under ordinary circumstances, the 25% of earnings of the husband is considered fair, just, and reasonable by the Courts. However, it varies from case to case basis and circumstances under which the petitioner & the respondent are leading their respective lives and the expenditure involved.

Who Can Claim Maintenance Under Various Laws?

The jurisprudence of maintenance flows from the idea of Social Justice in India, after the deliberations of the constituent assembly debates, and the constitutional of India coming into force, it accelerated the commitment of India for Social Justice. There are a few examples enumerated below:

  • Wife, children, parents (Section 125, CrPC);
  • Wife, or husband (Section 24 & 25, HMA);
  • Parents (Senior Citizens Act);
  • Women (Domestic Violence Act);
  • Wife, children (Hindu Adoption and Maintenance Act).

Where Can Maintenance Be Adjudicated Under Law?

The petitions are either filed before JMIC or the Principle Judge, Family Courts at the place of residence of the petitioner. There has to be a valid cause of action especially in petitions arising out of civil law.

How Can the Maintenance Be Claimed?

  • Filing of the Petition;
  • Reply;
  • Interim relief (if any);
  • Petitioner’s evidence;
  • Respondent’s evidence;
  • Arguments;
  • Judgment;
  • Execution.

Maintenance Under the Domestic Violence Act:

Any woman who is a victim of domestic violence in a shared household may seek recourse under the DV Act’s provisions. Among the important provisions are the following:

  • Section 12: A request for DV maintenance order may be made to the Magistrate;
  • The right to live in a shared household (Section 17);
  • Orders of Protection (Section 18);
  • Section 19: For getting residency orders;
  • Section 20: Assistance in financial matters;
  • Section 21: Governs custody orders;
  • Section 22: It gives power to courts for compensation orders;
  • Section 23: Power to temporary and ex parte orders;
  • Section 31: Penalty for violating the Protection Order by the Respondent;
  • Section 36: The DV Act does not clash with other provisions of law: The provisions of this Act are in addition to, and do not conflict with, the provisions of existing statutes.

Maintenance Under Hindu Laws:

  • Section 24 of the Hindu Marriage Act (HMA) provides for the maintenance of a pendent lite wife or husband, as well as the expenses of the proceedings (while the proceedings are pending);
  • Section 25 of the Hindu Marriage Act permits for a wife or husband to receive permanent alimony;
  • Section 18 of the Hindu Adoption and Maintenance Act establishes a provision for the maintenance of the wife;
  • Section 19 of the Hindu Adoption and Maintenance Act (HAMA) entitles a widowed daughter-in-law to maintenance;
  • Section 20 of the Hindu Adoption and Maintenance Act (HAMA) provides for parents and childrens’ maintenance.
  • Section 22 of the Hindu Adoption and Maintenance Act makes provision for dependents’ maintenance (HAMA).

Other Vital Maintenance Laws:

  • A Christian woman is entitled to maintenance and alimony under Sections 36 and 37 of the Indian Divorce Act.
  • The Parsi Marriage and Divorce Act, Section 40, allows for maintenance.
  • Sections 3 and 4 of the Muslim Women (Protection of Divorce Rights Act, 1986) provides maintenance;
  • Wife, children, and parents may claim support pursuant to Section 125 of the Criminal Procedure Code petition;
  • A change in circumstances for maintenance may be sought pursuant to section 127 of the Criminal Procedure Code.

Importance of Mediation:

Maintenance is still a legal process, but we recognise that many people are encountering the court for the first time, and our goal is to make the process as simple as possible for litigants. Even if the path of mediation is difficult, we make every effort to ensure that maintenance cases are amicably resolved. Mediation is the best method for resolving matrimonial disputes, as they are human issues. We are convinced that these disputes can be resolved professionally in chambers through the use of mediation between the parties. Mahatama Gandhi referred to it as the VAKALAT in its purest form.

SPA to Represent In Matrimonial Matter:

The parties, particularly NRIs, can be represented in court through the use of a valid notarized Special Power of Attorney with apostille certification. The Code of Civil Procedure (CPC) contains a special provision that allows a power of attorney holder to file a petition. The Family Court may hear an application made through a power of attorney. Best Divorce lawyers use Special Power of Attorney to represent both parties, husband and wife, in cases such as Divorce, Maintenance Claims, Domestic Violence, and Child Custody, thereby avoiding the need for our NRI clients specifically to fly and visit on an emergency basis. The CPC’s provisions may also apply to cases heard in the Family Court.

Consult Well-Known Advocates for Legal Advice:

Prior to taking any legal action in matrimonial matters, it is critical to obtain proper legal guidance. Our top divorce lawyers believe that early legal representation has a long-term effect on the outcome of matrimonial litigation. When our renowned lawyers prepare a legal opinion in matrimonial cases, they conduct an in-depth examination of case-related documents, solicit input from clients, and engage in detailed discussions about various aspects of the matrimonial case — all of these factors are combined and weighed against the most recent Supreme Court and High Court judgments. Our experience at The Law Codes has taught us that clients frequently do not seek appropriate legal remedies and instead seek remedies that should not have been sought in the first place. This strategy overburdens Family Courts and Trial Courts, clogging the justice delivery system.

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