This Article is written by Ananya Gulkhandia & this article disscuss the concepts of Maintainance under modern Indian Law
The term ‘Maintenance’ in its core can be defined as the ability to sustain a state of being, though maintenance forms a core part of Family Law, particularly in the areas of divorce law, it has nowhere been defined in the various codified religious laws within India and has not even been mentioned under the Special Marriage Act. Despite the absence of a proper definition, maintenance has been both under the Hindu Marriage Act and under the code of criminal procedure defined as the legal right of a person in marriage or after the dissolution of marriage to maintain himself/herself when they do not have the sufficient financial means to sustain themselves without the financial means of the other party in their marriage. The Supreme Court under Anu Kaul v. Rajeev Kaul[1] has determined that the right to Maintain oneself extends far beyond the state, where a person can barely scrape by. Still, rather it is a right for a person to live at a state economic level which is either equal or equitable to the state of being of that person before Dissolution of Marriage. The same has been clarified through various provisions under CRPC, which mandates all courts of the land of India to consider various factors at hand during the legal process in the determination of the amount of maintenance, which includes but is not limited to
- The Possession of property within both parties;
- The Income earned by both the husband and the wife;
- In addition with the Conduct of both of the parties an other factors at play.
The objective of the provision of Maintainance
Maintainance under the various common and civil laws throughout the world had been established with a singular objective in mind, that being the moral obligation of an able spouse to sustain their contemporary, in addition to their children which were a result of their union with the former. In addition, maintenance serves to destroy the financial barrier which exists in the current socio-economic conditions within India, where various wives and children are not able to seek the various legal remedies because of an absence of available monetary resources available with them to support themselves independently, separate from the economic support provided by the Husband, who is in most cases the sole breadwinner of the household.
There are certain factors which need to be fulfilled in order, for a spouse to attain the right to maintenance:
- The Marriage must be proved
- One of the spouses should be unable to Independently maintain herself
- The other spouse must have sufficient means to maintain the wife
Maintainance can only be granted by the wife on one of the following grounds:
- Willful desertion of the wife by the husband has taken place
- The Husband has treated the wife with cruelty
- The Husband is living in a bigamous relationship
- The Husband resides with a concubine in the same house as her wife or habitually resides elsewhere with his concubine
- The Husband has converted to another religion
- Any other which justifies the wife to live separate from her husband.
The Right to claim Maintainance extends to:
- This right to claim extends to a divorced wife who can get maintenance from her former husband as long as she hasn’t remarried and will be eligible for maintenance under the Maintenance Act regardless of whether her husband filed for divorce on her behalf, she got a divorce, or the marriage ended with mutual consent.
- A child, whether legitimate or illegitimate, married or unmarried, may request maintenance from their father up until the age of eighteen. In addition in such cases where the magistrate If the magistrate is convinced that the husband of a minor female child does not have enough money, the father of that child may be required to provide maintenance until the child reaches adulthood.
- This right extends to a child irrespective if they are a minor or a major, legitimate or illegitimate if they are unable to sustain themselves as a result of any physical or mental impairment. Such a child could be biological or adopted.
- There is a statutory right to claim maintenance, which rests within the parents of their son/daughter.
Maintenance of a Child
One distinctive aspect of Hindu law is that it places equal responsibility for child maintenance on both parents. According to the Hindu Adoptions and Maintainance Act S.20(2), children are entitled to maintenance while they are minors. The daughter’s right to maintenance is maintained until she marries. Her parents must pay for the costs of her marriage. However, a minor married daughter may still be eligible for maintenance under S.125 CrPC if she is unable to support herself after marriage. If the claimant is responsible for providing for the children, they are also entitled to maintenance when an application is filed under sections 24 and 25 of the Hindu Marriage Act. In other words, the claimant’s right to maintenance also includes the right to maintenance of the
children.
In the case of Ram Chandra Giri v. Ram Suraj Giri[2], a petition under section 125 of the CrPC was filed because the father of a minor son had neglected to provide maintenance. The father then argued that because his son was healthy and had a good physical appearance, he could take care of himself. The Court disagreed, stating that it would be against the very purpose of the legislation to apply the concept of potential earning capacity to minor children.
Maintenance of Parents
Hindu Adoptions and Maintenance Act Section 20 also establishes a duty to provide maintenance for elderly and disabled parents who are unable to support themselves with their own income and assets. The first law in India that requires children to support their parents is the Hindu Adoptions and Maintenance Act. Sons are not the only ones who have a maintenance obligation; daughters also have this obligation, and both the mother and the father are equally entitled to maintenance. The term “stepmother” is used in the explanation of this section as well. It’s crucial to remember that the clause only requires maintenance for parents who are unable to support themselves.
What is the Quantum or extent of maintenance which is to be provided?
Though there is no provision which mandates the amount of alimony which is to be provided maintenance and the same is generally left to the prudence of judges, under Chandaram Bunkar Vs Smt. Ramadevi[3], It was held that maintenance could be constituted up to one-fifth of a spouse’s income,
