INTRODUCTION.
A Marriage is a sacrament, a unification of two souls, A contractual agreement between a man and woman that unites their lives legally, economically, and emotionally. The contractual agreement implies that the couple has a legal obligation to each other throughout their lives or until they decide to get a divorce.
WHAT IS A DIVORCE?
Divorce is a legal dissolution of a marriage by a court. It takes place when the married couple despite many efforts cannot cohabitate due to many differences between the two. The couple will no longer have a legal obligation between the two after the court passes the decree of divorce.’
THE MEANING OF MAINTENANCE.
Maintenance in layman’s language is to support or sustenance. but legally the term maintenance has a very wide scope. According to Sec 39(b) of the Hindu Adoption and Maintenance Act states that “in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.” The laws regarding maintenance laid down the duty of a man to provide maintenance to his parents, wife, and children. The term maintenance is not defined in the marriage laws of any of the religious communities. Certain laws in India. i.e.
The Hindu marriage Act,1955 provides both the husband and wife, the right to claim maintenance; Some additional benefits are given to the woman under the Hindu Adoption and maintenance act, this act applies only to Hindus.
GROUNDS TO CLAIM MAINTENANCE.
The right to maintenance is circumscribed by certain factors {e.g.}
{a} the relationship of the husband is, and wife should be proved,
{b} she must be unable to maintain herself,
{c} the husband must be having sufficient means and
{d} it should be proved that the husband has neglected or has refused to maintain a wife.
Even a wife who has been divorced is entitled to claim maintenance from her
the husband provided that she has not re-married.
MAINTENANCE LAWS IN INDIA.
As India is a secular country there are many laws born of different religious background that provide maintenance to wife after divorce. In the Indian Legal System maintenance is provided as follows:
a. Maintenance under Hindu Law.
b. Maintenance under Muslim Law.
c. Maintenance under Christian Law.
d. Maintenance under Parsi Law.
e. Maintenance under Code of Criminal Procedure 1973.
f. Maintenance under Protection of women from Domestic violence Act, 2005.
g. The Maintenance and Welfare of Parents and Senior citizens Act, 2007.
MAINTENANCE UNDER HINDU LAW.
Under Hindu Law, the wife has all the right to claim maintenance from the husband if she doesn’t deviate from her marriage and marry another. Her right to maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of maintenance, the court considers various factors like the position and liabilities of the husband. It also judges whether the wife is justified in living apart from the husband. justifiable reasons are spelled out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife if either spouse has no independent income for his or her support.
In Hindu law, the relief of maintenance is considered an ancillary relief and is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation, etc. Further, under matrimonial laws, if the husband is ready to cohabit with the wife, generally, the wife’s claim is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking a divorce or any other major matrimonial relief, has been recognized in Hindu law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956.
The Act envisages certain situations in which it may become impossible for a wife to continue to reside and cohabit with the husband, but she may not want to break the matrimonial tie for various reasons ranging from growing children to social stigma.
MAINTENANCE UNDER MUSLIM LAW.
Those things which are necessary to support life, such as food, clothes, and lodging; mainly confine too solely to food. Nafaqa literally means which a man spends over his children, in law it means feeding, clothing, and lodging; in common use it signifies food. Maintenance Comprehend Food, raiment, lodging, though in common parlance it is limited to first. The main principles of maintenance may be recounted thus:
(i) A person is entitled to maintenance if he has no property.
(ii) is related to the obligor in prohibited degrees or is the wife or child.
(iii) the obligor is in a position to support him. The obligation of maintenance is also hedged by the factor of their economic condition.
MAINTENANCE UNDER CHRISTIAN LAW.
The Indian Divorce Act governs the law relating to maintenance in Christians. It says that a woman can be allowed maintenance, but it should not be more than one-fifth of the husband’s income also there is a precondition that says the wife should remain unmarried and chaste. The amount depends on the wife’s income, husband’s property and income, and various other factors.
MAINTENANCE UNDER PARSI LAW.
Maintenance under Parsi law is similar to Christian law. They can claim maintenance from the spouse through criminal proceedings or/ and civil proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously as there is no legal bar to it. In the criminal proceedings, the religion of the parties doesn’t matter at all, unlike the civil proceedings.
MAINTENANCE U/S 125 OF THE CRIMINAL PROCEDURE CODE.
Section 125 CrPc of provides order for maintenance of wives, children, and parents.
(1) If any person having 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.
MAINTENANCE UNDER PROTECTION OF WOMEN UNDER DOMESTIC VIOLENCE ACT.
Discussion regarding the payment of maintenance need always refer to Sec. 125 of the CrPC which has been upheld to pay maintenance to the wife in a divorce proceeding, such that her status and standard of living will be maintained. The general rule of thumb is that the maintenance depends on the wife’s own capacity of earning and maintaining herself, and this will always play a role in determining the court’s decision to award maintenance. This paper is regarding a specific version of maintenance, and special legislative and judicial changes that have been made to it. This paper focuses on the payment of maintenance under the Domestic Violence Act, and the difficulties, if any that a petitioner has to undergo in receiving such maintenance.
MAINTENANCE UNDER THE HINDU MARRIAGE ACT.
There are two types of maintenance-
- Temporary Maintenance: It is also known as pendente lite which is awarded by the courts during the proceedings of divorce. The purpose of this is to meet the immediate expenses of the unemployed spouse who is party to the proceedings.
- Section 24 of Hindu Marriage Act deals with such maintenance. Further it can be claimed under Section 125 of CrPC.
- Permanent Maintenance: As the term suggests, it refers to the granting of a sum on a periodical basis or on a continued basis once the proceedings have been disposed of as per Section 25 of Hindu Marriage Act, 1955. Either of a spouse is entitled to receive it.
CONCLUSION.
The Indian Legal system provides all the rights and remedies to an aggrieved wife or a husband who just went through a divorce. It not only breaks the barrier of religion which acts as a hurdle in providing justice to people but also provides for equal protection of law and justice for all irrespective of religion followed by an individual.
Religion cannot overcome the principles of “justice” and “equity”. The concept of maintenance is interpreted in different ways under different statutory provisions yet the purpose of it is to grant support. Maintenance is a remedy, a support pillar to assist in getting back to stability after one’s marriage has been nullified by a decree of divorce. It is a very important and essential law that everyone should be aware of.
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