MAINTENANCE Under Indian LAW
The dictionary meaning of the term maintenance is support or sustenance. But the entitlement of claiming maintenance is certainly based on the assumption that the claimant doesn’t have the sufficient means to support herself/himself. The maintenance generally covers the expenses for necessaries or essentials for the substance of life.
FACTORS TO BE TAKEN INTO CONSIDERATION FOR FIXING THE AMOUNT OF MAINTENANCE.
This is clear from the provisions under the acts mentioned, 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 OF MAINTENANCE UNDER INDIAN LAW.
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.
HUSBAND OR WIFE CAN APPLY FOR INTERIM MAINTENANCE:
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.
GROUNDS FOR AWARD OF MAINTENANCE TO WIFE:
Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of the wife, maintenance is granted. These grounds are as follows:-
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion; g. Any other cause justifying her separate living;
HOW MUCH MAINTENANCE CAN BE GRANTED (QUANTUM OF MAINTENANCE)
The means and capacity of a person against whom the award has to be made should be taken into consideration for determining the quantum of maintenance. In fact, in case of the husband, it is not only the actual earning, but also his potential earning capacity, which must be considered i.e. there is a presumption that every able-bodied person has a capacity to earn and maintain his wife. The income of the husband is a significant factor to be considered by the court in fixing the quantum of maintenance. It is disposable income and not the gross income, which is to be considered. Section 23(2) of Hindu Adoption and Maintenance act,1956states the factors to be considered in determining the amount of maintenance payable to the wife, children and aged parents, and they are as follows — the position of and status of the parties, the reasonable wants of the claimant, the claimant if living separately is justified or not, the income of the claimant and the value of the claimant‘s property and the number of persons entitled to maintenance under the Act.
Even if one of these grounds exists in favor 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.
MOTHER AND FATHER, BOTH EQUALLY TO MAINTAIN BOTH LEGITIMATE AND ILLEGITIMATE CHILDREN
Section 20 of Hindu Adoption and Maintenance act,1956imposes an obligation upon the parents — mother and father, both equally to maintain the children — both legitimate and illegitimate. This is a unique feature of the Hindu law where both the parents are equally responsible to maintain the children. S.20 (2) of Hindu Adoption and Maintenance act,1956lays down that the children are entitled to maintenance during their minority. This right of maintenance for the daughter is extended till she gets married. The parents are obliged to bear her marriage expenses. However even after marriage a minor married daughter, if she is unable to maintain herself then she can claim for maintenance under S.125 CrPC. When an application has been filed under section s24 and 25 of Hindu Marriage Act, 1955, the children are also entitled to get maintenance if the claimant has the responsibility of maintaining them i.e. the claimant‘s right to maintenance also includes the right of maintenance of the children. Section 26 of Hindu Marriage Act, 1955 also provides that in any proceeding under the Act the court can from time to time pass interim orders and make provisions in respect of the custody, maintenance and education of the minor children.
SONS AND DAUGHTERS BOTH OBLIGED TO MAINTAIN THE PARENTS:
S. 20 of Hindu Adoption and Maintenance act,1956 also lays down an obligation of maintenance of old and infirm parents who are not able to maintain themselves out of their own personal earnings and property. The Hindu Adoption and Maintenance act,1956 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. Under Hindu Adoption and Maintenance act,1956, 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.
WIFE LIVING SEPARATELY ENTITLED TO CLAIM MAINTENANCE:
Section 18 of Hindu Adoption and Maintenance Act only provides that Hindu wife shall be entitled to be maintained by her husband during her life time ad if she is staying separately as provided under sub-section (2), she is entitled to claim maintenance from her husband.
DESERTED WIFE WOULD BE ENTITLED FOR MAINTENANCE :
The provisions of sections 18 and 20 cannot be interpreted in such a manner so as to defeat justice to the deserted wife and her Dependent child. Even other wise also, food, clothing residence are essential requirements for human survival. Providing such essential requirements to the wife and children being the statutory and moral duty of a husband, the same cannot be denied or postponed.
DAUGHTER-IN-LAW CAN CLAIM MAINTENANCE FROM FATHER-IN-LAW:
Under Section 19 Hindu Adoption and Maintenance Act one of the conditions for the father-in-law to maintain the daughter-in-law is that the daughter-in-law is not able to maintain herself from the estate of her parents. A clear finding is necessary whether her parents have estate sufficient to maintain her and on what circumstances, she is unable to maintain herself or by her parents. For this purpose, parents of daughter-in-law are required to be heard. This is possible if they are made parties to the suit. In their absence any finding will not bind them. Where, from the estate of the parents, the daughter-in-law can maintain herself, question of obligation of father-in-law, does not arise. It is also to be found out whether there is nay coparcenary property in the hands of the father-in-law from which daughter in-law is deprived of her share.
MARRIED DAUGHTER IS LIABLE TO PROVIDE MAINTENANCE TO THEIR AGED PARENTS
Vijaya Manohar Arbat v. KashiramRajara Sawai, the Supreme Court in a landmark judgement held that the married daughter is liable to provide maintenance to their aged parents if they are unable to maintain themselves. In this case Mr. Dutta & Mr. Ojha, JJ, held that married daughter does not cease to be daughter on her getting married. Farther more the Court held that if it is to be decided, that daughter has no liability to maintain their aged parents, those who have no son only daughter, would become destitute and beggar if their daughter provides for maintenance.
A MAJOR UNMARRIED GIRL IS ENTITLED TO MAINTENANCE FROM HER PARENTS :
Section 125 Cr.P.C. though does not fix liability on parents to maintain children beyond attainment of majority but a combined reading of Section 125 Cr.P.C entitled an unmarried major daughter to maintenance from her parents.
EARNING WIFE ENTITLED TO MAINTENANCE FROM HER HUSBAND:
Where the husband had placed material to show that the wife was earning some income, it has been held by the Hon’ble Supreme Court that it is not sufficient to rule out the application of Sec. 125 CrPC. It has to be established that with the amount she earned, the wife was able to maintain herself. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient, she can claim maintenance u/s 125 CrPC. The test is whether the wife is in a position to maintain her in the way she was used to in the place of her husband. The factual conclusions of the court that the wife is unable to maintain herself cannot be interfered with in the absence of perversity. See :Chaturbhuj Vs. Sita Bai, AIR 2008 SC 530 Merely because wife was earning something, it would not be a ground to reject her claim for maintenance u/s 125 CrPC. See :Sunita Kachwaha Vs. Anil Kachwaha, AIR 2015 SC 554
