Maintenance laws in India

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Maintenance laws have been adopted as a social justice measure to give dependant spouses and children financial assistance, preventing them from sliding into destitution and vagrancy. Maintenance is, when a marriage is dissolved, certain rights become available to the parties. In rare instances, the woman is permitted to request maintenance from her husband in order to protect herself and her kid. It is offered to cover the wife's living expenses and to provide her with comfort by reducing the loss. Certain laws in India, such as the Hindu Marriage Act of 1955, provide both the husband and wife the right to claim support; the Hindu Adoption and Maintenance Act, which only applies to Hindus, gives the woman certain extra privileges.

Definition of Maintenance Law:

The term "maintenance" has a broad definition. The best apt and precise definition of Maintenance Laws In India has been given under Section 3 (b) of the Hindu Adoption & Maintenance Act, 1956, which reads as under: 

"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 general meaning of maintenance means to support or sustenance. The term maintenance is not defined in the marriage laws of any of the religious communities.

Purpose of Maintenance Laws In India

The legal sense of the scope of the Maintenance act is intended to fulfill a social purpose. These provisions are contained in the Criminal procedure code,1973 under sections 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.

ARTICLE 39 of the constitution also state inter-alia that the state shall, in particular, direct its policies towards securing that the citizens, men, and women equally, have the right to an adequate means of livelihood, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Factors Affecting Right To Maintenance:

  • the relationship of the husband is and wife should be proved,
  • she must be unable to maintain herself,
  • the husband must be having sufficient means and 
  • 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 under different laws in India

  • Maintenance under Hindu Law. 
  • Maintenance under Muslim Law.
  • Maintenance under Christian Law. 
  • Maintenance under Parsi Law.
  • Maintenance under Code of Criminal Procedure 1973.
  • Maintenance under Protection of women from Domestic violence Act, 2005.
  • The Maintenance and Welfare of Parents and Senior citizens Act, 2007.

Maintenance Under 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 Personal Law

All 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, and (iii) the obligor is in position to support him. The obligation of maintenance is also hedged by the factor of their economic condition.

Persons Entitled To Maintenance

  • Maintenance of Wife
  • Maintenance of Children
  • Maintenance of Parents, and
  • Other relations

Maintenance Under Code Of Criminal Procedure 1973

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

  • If any person having sufficient means neglects or refuses to maintain-
  • His wife, unable to maintain herself, or
  • His legitimate or illegitimate minor child, whether married or not, is unable to maintain itself, or
  • 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
  • His father or mother is unable to maintain himself or herself.

Refusal On Neglect To Maintain:

It has been held that the refusal or neglect to maintain may be expressed or implied, it may be by words or by conduct and action. Sometimes refusal or neglect may be constituted by something more, than more failure and omission. However, in relation to a person who has volition of his or her own, like in the case of a child mere failure or omission shall constitute refusal or neglect to maintain.

The term ‘maintenance’ has been generally interpreted to include food, clothing, and lodging. However, in recent times maintenance should be gender-neutral and should be applicable both for husband and wife respectively for the greater perspective of the society but still many women are being denied to claim their rights of maintenance. Proper implementation is necessary to abide by the Law of the Land and ultimately to make it a grand success. it has been held that any other requirements, i.e., necessary for a person to remain fit, healthy, and alive is also to be included within the periphery of the term ‘maintenance’.

Maintenance and Welfare of Parents and Senior citizens Act, 2007

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Section 4 Of the Act deal with the Maintenance of Parents and Senior Citizens.

  • A senior citizen including a parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under Section 5 in case of-
    • Parent or grand-parent, against one or more of his children, not being a minor; 
    • A childless senior citizen, against such of his relative, referred to in clause (g) of Section 2.
  • The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizens so that senior citizens may lead a normal life.
  • The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parents may lead a normal life.
  • Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such a senior citizen: Provided that where more than one relative is entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.

Maintenance should be neutral in every aspect and should be applicable both for husband and wife respectively for the better understanding of the community but still many women are being completely ignored to claim their rights of maintenance. Proper implementation is compulsory to abide by the Law of the Land and ultimately to make it a major achievement.

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1. What factors does a court take into consideration when deciding maintenance?
2. How long is maintenance granted for?