Maintenance Of Wife Under Hindu And Muslim Law:

Comparative Study
The whole concept of maintenance was introduced in order to see that
if there is a spouse who is not independent financially than the other
spouse should help him/her in order to make the living of the other
person possible and independent. Providing maintenance means that
the other person who is getting the maintenance should be able to live
the life as he or she lived before marriage in case of divorce and in
case where the two partners are not living together and they seek
maintenance than the spouse getting maintenance should be able to
live a life as when they lived together. Maintenance is the amount
which a husband is under an obligation to make to a wife either
during the subsistence of the marriage or upon separation or divorce,
under certain circumstances. At this point of time I would also like to
mention that according to my understanding maintenance not only
includes basic necessities like food, clothing and residence but it also
includes the things necessary for comfort and status in which the
person entitled is reasonably expected to live. [1] According to me the
main aim of providing maintenance is that the wife should not be left
destitute on separation or divorce from her husband. In a laymens
term maintenance are those things which are indispensible for the
survival of human being.

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Disclaimer
The most important aspect of maintenance is that the party which
relies on maintenance has no independent source of income to support
himself/herself. The main point we have to focus on in independent
income. Should the spouse who is claiming maintenance have
movable or immovable property, the spouse can still claim
maintenance if the property does not yield any income.
The quantum of maintenance and the expenses of the proceedings
have not been specified in any of the Indian Matrimonial statutes

except the Divorce Act. The court can fix the maintenance at any
amount, depending on its discretion. When deciding the quantum of
maintenance to be awarded, the court takes into account the income of
both parties, their status and other circumstances. When the wife
applies for maintenance, the onus is on the husband to declare his
income.
The persons who are entitled to maintenance under the Hindu
Adoptions and Maintenance Act (HAMA), 1956 are wife, widowed
daughter-in-law, children, aged parents and dependants as enumerated
in Section 21 of the Act. [2] Whereas, under the Muslim law, the
persons entitled to maintenance are wife, young children, the
necessitous parents, and other necessitous relations within the
prohibited degrees. [3] The Muslim Law of maintenance is based on
the Muslim personal laws and the law enactments such as the Indian
Majority Act, 1875, the Criminal Procedure code 1973, Muslim
Women (Protection of Rights on Divorce) Act, 1986.

Types of Maintenance
There are two types of maintenances:(1) Interim maintenance and maintenance pendente lite
(2) Permanent maintenance
The interim maintenance is payable from the date of presentation of
the petition till the date of dismissal of the suit or passing of the
decree. Interim maintenance is supposed to meet the immediate needs
of the petitioner. And maintenance pendente lite is for providing the
litigation expenses to the claimant. Interim maintenance is the amount
that is paid by the financially independent spouse to their counterpart
during the pendency of the proceedings in the matrimonial cause and
which covers the expenses of the proceedings as well as the other
expenses of the spouse during the course of the proceedings. 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.
Section 24 provides of Hindu Marriage Act, 1955 (HMA) provides for

maintenance. It talks about how either the wife or the husband can
claim for interim maintenance. The interim maintenance is payable
from the date of presentation of the petition till the date of dismissal
of the suit or passing of the decree. Interim maintenance is supposed
to meet the immediate needs of the petitioner. And maintenance
pendente lite is for providing the litigation expenses to the claimant.
Interim maintenance can be claimed either by the husband or the wife,
under the Hindu Marriage Act and the Parsi Marriage and Divorce Act
and is called Alimony Pedente Lite." Under all other statutes, the
wife is the only spouse who can claim it. [4] Section 36 of the
Divorce Act of 1869 says that the wife may file a petition for interim
maintenance, regardless of who instituted the suit and whether the
wife obtained an order for protection. It also says that the petition for
the expenses of the proceedings and alimony pending the suit should
be disposed of within sixty days of the service of the petition on the
husband.
Permanent maintenance, on the other hand, is the maintenance that is
paid by one spouse to the other after the judicial proceedings have
resulted in either the dissolution of the marriage or a judicial
separation. Section 25 of the act talks about permanent maintenance.
It states that how the court can order the respondent to pay the
applicant for her or his maintenance a gross sum or a monthly or
periodical sum for a term not exceeding the life of the applicant
unless there are changes in circumstances under which the court can
change its order.

MAINTENANCE UNDER HINDU LAW

The right of maintenance under Hindu law is very old and it was one
of the basic necessities of the joint family system. According to my
understanding the maintenance of the women in the joint family
system was an important system and this was followed as a tradition
which governed the families. It was the obligation of the head of the
family (karta) to look after the women of the family i.e. their wives
and their daughters until they were married. Latter when the women
grew older it was the duty of their children to mother and other old

women of the family. The unchastity on part of the women disentitled

them to maintenance. Their remarriage ended the claim and the
amount of maintenance depended upon various factors like the status
of the family, necessary requirements, wants, age, etc. [5] Section 24
provides of Hindu Marriage Act, (HMA) 1955 provides for
maintenance.

Maintenance of Wife under Section 18, the Hindu Adoptions and

Maintenance Act, 1956
Under the section 18(1) of the HAMA, 1956 wife is entitled to
maintenance by her husband for lifetime i.e. she will be given
maintenance until she dies or her husband dies. [7] Under section 18
of this Act a Hindu wife is entitled to live separately from her husband
without canceling her right to claim maintenance. The grounds under
which she can live separately are:(1) Husband is guilty of desertion
(2) The Husband has treated her with cruelty
(3) The husband is suffering from a virulent form of leprosy
(4)The husband has any other wife living.
(5) The husband keeps a concubine elsewhere
(6) The Husband has ceased to be a hindu by conversion to another
religion and
(7) if there is any other cause justifying living separately
But there are two bars which will prevent a wife from claiming
maintenance from her husband i.e. (i) if she is unchaste or (ii) if she
ceases to be a Hindu by conversion to another religion.
The wife is entitled to live separately without forfeiting her right to
maintenance, if her husband is guilty of desertion, if he subjects the
women to cruelty, if he is suffering from a leprosy, if he has any other
wife living, keeps a concubine in the house where his wife resides, if
he has ceased to be a Hindu, or if there is any other cause justifying
her to live separately under Section 18(2) of the
HAMA. [8] According to me the exception given in this section
according to which a wife cannot claim maintenance if she is
converted from some other religion into a Hindu is not right. Now as

the wife is related to a Hindu family and if she has married according
to the Hindu religion and she is governed by Hindu law than she
should not be separated from the rights which other women get as a
Hindu lady.

Maintenance of wife under the Section 125 of CrPC:

Under CrPC, only wife (a woman who has been divorced by or has
obtained divorce from her husband & hasnt remarried) can claim for
maintenance. A wife who refuses to stay with her husband due to legal
grounds such as (bigamy, cruelty & adultery) has the right to special
allowance under this act. But a wife does not possess right to claim
maintenance if shes living in adultery or shes living separately by
mutual consent. The various sections of CrPC are criminal in nature
and are used for the criminal charges. The Section 125 of the CrPC
states the provisions as follows:
125 Order for maintenance of wives, children and parents.
(1) If any person leaving 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" [9]

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This essay has been submitted to us by a student in order to help you
with your studies. This is not an example of the work written by our
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In this section what I find is different according to my knowledge is
that the magistrate has the power to give the maintenance from the

date of the order and if gives the allowance from the date of filling the
application than in that case he has to give reasons as to why he/she is
giving the maintenance from the date of the application.
Also one more interesting and a vague thing which I found during
the research on my research paper is that a division of the Bombay
High Court which said in its judgment that no maintenance will be
granted to the second wife of a Hindu." [10] According to me this is
one of the vaguest judgments I have read during the one and half
years of my law school. I would like to critise this judgment on the
basis that this judgment is in a way differentiating amongst women
and also there is an angle of gender bias to this judgment. I am saying
this on the fact that if the women are the second wife of a Hindu than
it is not her fault and in case she is completely financially dependent
on the husband than what does she have to do to survive. I think this
judgment will is not good socially for the benefit of the society as a
whole.

Award of maintenance to wife under Section 23(2):

Section 23 of the HAMA, 1956 clarifies or defines the people who get
maintenance and how much of maintenance i.e. the amount they can
get keeping in mind the various things. The court in the case of
awarding maintenance has the authority to give the maintenance after
analyzing various factors. The factors which are considered by the
court according to section 23(2) and section 23(3) are:
(2)a)the position and status of the parties.
(b)the reasonable wants of the claimant
(c)if the claimant is living separately, whether the claimant is justified
in doing so,
(d)the value of the claimants property and any income derived from
such property, or from the claimants.
(e)the number of persons entitled to maintenance, if any, to be
awarded to a dependant under this Act, regard shall be had to (3)In determining the amount of maintenance, if any, to be awarded to
a dependant under this Act, regard shall be had to (a)the net value of the estate of the deceased after providing for the

payment of his debts.

(b)the provisions, if any, made under a will of the deceased in respect
of the dependant.
(c)the degree of relationship between the two.
(d)the reasonable wants of the dependants.
(e)the past relations between the dependant and the deceased.
(f)the value of the property of the dependant and any income derived
from such property, or from his or her earnings or from any other
source.
(g) the number of dependants entitled to maintenance under this
Act." [11]
The court awards maintenance to the wife considering various factors
into consideration like status and position of the parties, wifes wants,
the value of wifes property and income if any, derived from that
property and the number of persons entitled to maintenance. The
section says that the maintenance is given on the basis of the decree of
relation between the two partners. I dont understand how the court
can determine the decree of the relation between a husband and wife,
I think the husband and the wife can only determine the decree of the
relationship between and the court has no idea and no statue can
define a relation. Also say in case if there is some misunderstanding
between the husband and the wife and the wife deserts the husband.
The husband still loves the wife and if the wife does not come back
than what is the decree of the relation between the two according to
the court?

Maintenance under Muslim Law

Muslim Law passively considers male to be superior to the woman. It
is believed that a man can take care of himself whereas the woman
cannot, in other words it is deduced that a woman cannot be self
reliant. Hence, in Muslim law the wife has been bestowed with an
absolute right to be maintained and the husband is bound to maintain
her regardless of the fact whether shes poor or not. Wifes right to
maintenance is a debt against the husband.

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with your studies. This is not an example of the work written by our
professional law writers.
In muslim law, wife is preferred over all the other persons (even the
young children & other necessitous relations). However, the womans
right and husbands obligation exists only if the wife remains faithful
to her husband and obeys all his reasonable orders.
Nonetheless, the wife does not loose the right to maintenance if she
refuses access to her husband on legal grounds such as her illness or if
the marriage cannot be consummated i.e. cannot be concluded by the
sexual intercourse because of her old age, illness, his minority or
faulty organ. However if the wife being too young for sexual
intercourse, lives with her parents, she does not possess any right for
maintenance.
The wife also possess the right to claim maintenance on the account
of a pre/ante- nuptial agreement i.e. maintenance in the event of ill
treatment. Along with this, the wife also gets the privilege of being
entitled to a special allowance called Kharch-i-pandan, guzara under
such agreement. Muslim law provides provisions for the right to
maintenance if the wife stays separately due to cruel behavior or nonpayment of prompt dower. But a wife cannot claim any maintenance
during widowhood or Iddat because of her entitlement to inheritance.
Prior to the landmark judgment of Supreme Court in Shah Bano case,
Divorced Muslim women did not have right to maintenance. This in
the point of fact handicapped the situation of Muslim women as the
husband according to Muslim law possesses the Authority to divorce
from his wife whenever he wants whereas the woman lack this right.
Hence, the said case led to the enactment of Muslim women
(protection of rights on divorce) Act, 1986 which enables a divorced
Muslim to have a reasonable and fair provision of maintenance from
her husband and from the relatives who are entitled her property after
her death after Iddat.
The right to maintenance of Muslim sons is governed by CrPC 1973

and by CrPC 1973 & Muslim women act, 1986 for Muslim daughters.
The Muslim children are entitled to maintenance for the period till
they gain majority or are able to maintain themselves (Section 125,
CrPC). In the case of daughters, they possess the right to maintenance
till they get married and two years post- marriage.

Maintenance of Muslim Women under Section 125 of the CrPC,

1973
Section 125 of the CrPC is basically secular in nature. Due to the
secular nature of this act this does not affect the various personal laws
and also the personal laws do not affect this section. If any Muslim
women seek compensation under the section 125 and she will be
awarded maintenance by the respected court only if she is not
remarried. If the wife exercises her right under the Muhammadan
Law and refuses to live with her husband on the ground of nonpayment of dower, cannot enforce her right to maintenance under this
act." [12] The Muslim women in case if she is granted maintenance
will be in the form of the monthly allowances.
In the Mohd Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C 556,
there was a Muslim women who was divorced by her husband when
she was 68 years old and was the mother of five children. She filled a
case in the court for granting of maintenance by the court. She was
given maintenance by the Supreme Court under section 125 of the
CrPC even after the iddat period was over. Under the Muslim
personal law a divorced women could be awarded maintenance only
during the iddat period and not latter. In case if she wants
maintenance than she will have to be given maintenance by the other
relatives according to the Muslim personal law. This judgment of
awarding maintenance to Muslim women under section 125 of the
CrPC which is a secular section of the law was widely critised by the
Muslim community throughout the country. The Supreme Court had
its following judgment in the case:
The Supreme Court of India mitigated the effect of Muslim laws that

limited the maintenance payable to a divorce. It held that, regardless

of any previous payment of maintenance by a divorced man to his
former wife during her iddat period and payment of her mahr, a
former wife could still seek additional maintenance from her exhusband under Section 125 of the CrPC, which permits courts to order
maintenance payments for financially destitute women. In its
decision, the Court quoted certain passages from the Qur'an in support
of the position that a divorced man has an obligation to materially
support his former wife. This decision triggered massive protests
amongst conservative Muslim Indians, who viewed the decision as a
deliberate attempt to undermine "their" personal laws and were
outraged that a secular court tried to support its decision with
references to the Qur'an. Fundamentalist Muslim leaders even
pressured Shah Bano, to withdraw her support for the Court's decision
in her favor. Despite acclaim for the decision from women's rights
advocates, including from some Muslim women's groups, many
Muslim leaders lobbied for legislation to overturn the Court's
decision. As a result, without any consultation with either women's
groups or moderate Muslim leaders, the national government hastily
passed the Muslim Women Act of 1986, which limited a Muslim
man's duty to pay maintenance to his former wife to her iddat
period." [13]

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Maintenance under the Muslim Women Act, 1986

After the historic judgment of the Shah Bano case, what followed the
judgment were the critics of the outcome of the judgment of the
impact of the judgment on the Muslim personal law. According to the

Muslim community if this judgment was accepted than in that case

there personal law was suppressed and was superseded by the Hindu
law which allowed the womens right to maintenance life long as
there was no iddat period in the Hindus.
The Indian government which was the congress party at that time was
under pressure from the Muslim community to bring a law which
would overrule this judgment. So the government under the pressure
and in order to save its Muslim vote bank brought the law The
Muslim Women (Protection of Rights on Divorce) Act, 1986.
According to this act a Muslim women is to be awarded maintenance
by her husband only during the iddat period and not after that. But in
case if she is financially not independent and needs maintenance than
in that case her relatives who would get the share of her property will
award her with maintenance. In the scenario where she does not have
any such relatives than the State Waqf Board has to pay her the
maintenance. So in a way the personal law of the Muslims was saved
and the new law prevented any conflict between the two major
communities of the country. The divorced wife is also entitled to
unpaid dower and all such properties which were given to her during
her marriage by her husband, his relatives, friends or her relatives.
She also has an option to use the Sections 125-128 of the CrPC, 1973.
Finally the cases pending under the provisions Sec. 125-127 shall be
disposed by the Magistrate.

Maintenance under Muslim Law in comparison with Hindu law

A Hindu woman is more privileged than Muslim women according to
me. I am saying it on the basis that a Hindu woman is entitled to
maintenance by her husband throughout her life but in case of Muslim
women she is entitled to maintenance by her husband only during the
iddat period. The court tried to make both the communities on the
same line and tried to provide women of both the communities with
maintenance throughout the life. The judiciary tried to provide women
of both communities with equal opportunities and rights. But as usual
in the case of Indian democracy the congress government bowed in
front of the vote bank politics and brought in the The Muslim

Women (Protection of Rights on Divorce) Act, 1986. This act

completely took away the right of the women to maintenance beyond
the period of iddat by the husband. Hindu women can ask for award
of maintenance under section 125 of the CrPC but in case of a Muslim
women she can file a case under the same but will be awarded
maintenance under this act only if the husband recognizes this in a
way.
The laws of the Muslims are considered to be old. Also this is
recognized by the Muslim community there need some kind of
reformation but in actual there are no reformations on the ground.
Same is the case with the Hindu law the religious leaders do
recognize the need for reformation but they are still sticking with the
old traditions which are discriminatory in nature. The Muslim women
face much more discrimination as compared to the other women of
our country (India). Also one more thing which according to me
makes the Muslim women much more disadvantaged is that they are
the member of the minority community of the country and relatively
belong to the poor sections of the society.

IS UNIFORM CIVIL CODE THE SOLUTION

The Indian constitution provides an article for the Uniform Civil
Code. The founding fathers of the constitution made the constitution
in such a way keeping in mind the diversity of the country and the
need for a Uniform Civil Code. But the Uniform Civil Code has not
yet been adopted due to the opposition from a major section of the
minorities in the country mainly the Muslim community.
The Muslim community opposes the whole idea of UCC because they
believe that if the UCC rules are made than in that case the Muslims
laws and traditions will not be considered and the Hindu laws and
tradition would take over their personal laws. Also one more
argument which comes in forward whenever there is talk of the UCC
is that the Muslim laws are not so much moderate as compared to the
Hindu laws so in a way in order to modernize the whole state and the
society of the India by bringing the UCC to provide equality the
Hindu law being considered modern will supersede the Muslim

personal law.
In my view bringing the UCC in action will be a good thing. But the
UCC should be flexible in nature i.e. it should not overtake the
personal laws of any religion. Also the individuals should be given
choice so as to whether they want to follow the personal laws or the
UCC. I would like to illustrate by giving a very simple example, say
for example a couple is given a choice so as to marry under their
personal law or under the UCC. If they marry under the personal law
then in case of a divorce and maintenance they should be dealt with
their religious law but in case they choose the UCC they should be
dealt with the UCC. So in a way the formation of the UCC would be
in such a way keeping in mind that more number of people would
follow and adopt for UCC only if the UCC is not violating any ones
personal laws and is practically secular in nature.

Conclusion
After reading and going through various sources of the personal laws,
I feel that the Hindu law is much more clearly defined and gives much
more rights to women in comparison to the Muslim law. Providing
maintenance means that the other person who is getting the
maintenance should be able to live the life as he or she lived before
marriage in case of divorce and in case where the two partners are not
living together and they seek maintenance than the spouse getting
maintenance should be able to live a life as when they lived together.
Maintenance is the amount which a husband is under an obligation to
make to a wife either during the subsistence of the marriage or upon
separation or divorce, under certain circumstances.
If we read the Shah Bano case we could see that the Muslim and the
Hindu women were on the same side. But latter when the government
passed The Muslim Women (Protection of Rights on Divorce) Act,
1986 the Muslim women were again seen to be more unprivileged
than the Hindu women. But latter the court in the Daniel Latify
judgment said that the Muslim women can also be awarded the same
maintenance as Hindu women for life time. Therefore according to
my understanding or according to my knowledge I would say that

both the Hindu and the Muslim women are in the same place in case
of awarding the maintenance.
Law of maintenance is personal as well as legal in character and arises
from the very existence of relationship between the parties.
From the above discussion, it can be concluded that Law of
maintenance with no doubts is inclined towards the females in both
the structures whether it be Hindu Law or Muslim Law. Women have
been bestowed with many more privileges in comparison to men and
husbands have been granted a lot more of responsibilities and
obligations. Although the given laws may sound unjust to a few but
pragmatically they seem to be correct as in our country even till date
women do not have the social status equal to that of men. Hence, it
wont be incorrect to extrapolate that Law makers while formulating
these provisions must have kept in mind the situation of the women in
the patriarchal society of India. The women of both the communities
are suffering due to being poor, being women and than being a part of
the patriarchic society.

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Maintenance: Under Hindu, Muslim, Christian And Parsi Laws

Obligation of a husband to maintain his wife arises out of the status of
the marriage. Right to maintenance forms a part of the personal law.
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of
maintenance extends not only to the wife and dependent children, but
also to indigent parents and divorced wives. Claim of the wife, etc.,
however, depends on the husband having sufficient means. Claim of
maintenance for all dependent persons is limited to Rs 500 per month.
Inclusion of the right of maintenance under the Code of Criminal
Procedure has the great advantage of making the remedy both speedy
and cheap. However, divorced wives who have received money
payable under the customary personal law are not entitled to
maintenance claims under the Code of Criminal Procedure.
Under Hindu Law, the wife has an absolute right to claim
maintenance from her husband. But she loses her right if she deviates
from the path of chastity. 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 takes into account

various factors like position and liabilities of the husband. It also

judges whether the wife is justified in living apart from husband.
justifiable reasons are spelt 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 the either spouse has no
independent income for his or her support. The same principle will
govern payment of permanent maintenance. Under the Muslim Law,
the Muslim Women (Protection of Rights on Divorce) Act, 1986
protects rights of Muslim women who have been divorced by or have
obtained divorce from their husbands and provides for matters
connected therewith or incidental thereto.
This Act inter alia provides that a divorced Muslim woman shall be
entitled to
(a) reasonable and fair provision and maintenance to be made and
paid to her within the iddat period by her former husband;
(b) where she herself maintains children born to her before or after
her divorce, a reasonable and fair provision and maintenance to be
made and paid by her former husband for a period of two years from
the respective dates of birth of such children;
(c) an amount equal to the sum of mehr or dower agreed to be paid to
her at the time of her marriage or at any time thereafter according to
the Muslim Law and
(d) all property given to her before or at the time of marriage or after
her marriage by her relatives or friends or by husband or any relatives
of the husband or his friends. In addition, the Act also provides that
where a divorced Muslim woman is unable to maintain herself after
the period of iddat the magistrate shall order directing such of her
relatives as would be entitled to inherit her property on her death
according to the Muslim Law, and to pay such reasonable and fair
maintenance to her as he may determine fit and proper, having regard
to the needs of the divorced woman, standard of life enjoyed by her
during her marriage and means of such relatives, and such
maintenance shall be payable by such relatives in proportion to the

size of their inheritance of her property and at such periods as he may

specify in his order.
Where such divorced woman has children, the Magistrate shall order
only such children to pay maintenance to her, and in the event of any
such children being unable to pay such maintenance, the magistrate
shall order parents of such divorced woman to pay maintenance to
her. In the absence of such relatives or where such relatives are not in
a position to maintain her, the magistrate may direct State Wakf Board
established under Section 13 of the Wakf Act, 1995 functioning in the
area in which the woman resides, to pay such maintenance as
determined by him.
The Parsi Marriage and Divorce Act, 1936 recognizes the right of
wife to maintenance-both alimony pendente lite and permanent
alimony. The maximum amount that can be decreed by court as
alimony during the time a matrimonial suit is pending in court, is onefifth of the husband's net income. In fixing the quantum as permanent
maintenance, the court will determine what is just, bearing in mind
the ability of husband to pay, wife's own assets and conduct of the
parties. The order will remain in force as long as wife remains chaste
and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of
a Christian wife. The provisions are the same as those under the Parsi
law and the same considerations are applied in granting maintenance,
both alimony pendente lite and permanent maintenance.
Maintenance under Hindu law:
Maintenance is a right to get necessities which are reasonable from
another. it has been held in various cases that maintenance includes
not only food, clothes and residence, but also the things necessary for
the comfort and status in which the person entitled is reasonably
expected to live. Right to maintenance is not a transferable right.
Maintenance without divorce

The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in

other words, is right to livelihood when one is incapable of sustaining
oneself. Hindu law, one of the most ancient systems of law, recognises
right of any dependent person including wife, children, aged parents
and widowed daughter or daughter in law to maintenance. The Hindu
Adoptions and Maintenance Act, 1956, provides for this right.
Maintenance as main relief: for wife
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 claim of wife is defeated. However, the right of a
married woman to reside separately and claim maintenance, even if
she is not seeking divorce or any other major matrimonial relief has
been recognised 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. Thus, in
order to realise her claim, the Hindu wife must prove that one of the
situations (in legal parlance 'grounds') as stated in the Act, exists.
Grounds for award of maintenance
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;
Bar to relief
Even if one of these grounds exists in favour 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. However, thanks to judicial activism, in
particular cases the presumption of marriage is given more weightage
and the bars to maintenance are removed.
Other dependents who can claim maintenance
Apart from the relationship of husband and wife other relations in
which there is economic dependency are also considered to be entitled
to maintenance by the Hindu Adoptions and Maintenance Act, 1956.
Accordingly a widowed daughter-in-law is entitled maintenance from
her father-in-law to the extent of the share of her diseased husband in
the said property. The minor children of a Hindu, whether legitimate
or illegitimate, are entitled to claim maintenance from their parents.
Similarly, the aged and infirm parents of a Hindu are entitled to claim
maintenance from their children. The term parent here also includes
an issueless stepmother.
Maintenance Under Muslim Law
Under the "Women (Protection Of- Rights On Divorce) Act, 1986"
spells out objective of the Act as "the protection of the rights of
Muslim women who have been divorced by, or have obtained divorce
from, their husbands." The Act makes provision for matters connected
therewith or incidental thereto. It is apparent that the Act nowhere
stipulates that any of the rights available to the Muslim women at the
time of the enactment of the Act, has been abrogated, taken away or
abridged. The Act lays down under various sections that distinctively

lay out the criterion for women to be granted maintenance. Section (a)
of the said Act says that divorced woman is entitled to have a
reasonable and fair provision and maintenance from her former
husband, and the husband must do so within the period of idda and his
obligation is not confined to the period of idda.
it further provides that a woman , if not granted maintenance can
approach the Wakf board for grant as under section (b)which states
that If she fails to get maintenance from her husband, she can claim it
from relatives failing which, from the Waqf Board.
An application of divorced wife under Section 3(2) can be disposed of
under the provisions of Sections 125 to 128, Cr. P.c. if the parties so
desire. There is no provision in the Act which nullifies orders passed
under section 125, Cr. P.c. The Act also does not take away any vested
right of the Muslim woman.
All obligations of maintenance however end with her remarriage and
no claims for maintenance can be entertained afterwards. The Act thus
secures to a divorced Muslim woman sufficient means of livelihood
so that she is not thrown on the street without a roof over her head and
without any means of sustaining herself.
Protection to Divorced Women Sub-section (1) of Section 3 lays
down that a divorced Muslim woman is entitled to:
(a) a reasonable and fair provision and maintenance to be made and
paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after
the divorce.
Maintenance Under Christian Law
A Christian woman can claim maintenance from her spouse through
criminal proceeding or/and civil proceeding. Interested parties may
pursue both criminal and civil proceedings, simultaneously, as there is
no legal bar to it. In criminal proceedings, the religion of the parties
does not matter at all, unlike in civil proceedings.
If a divorced Christian wife cannot support her in the post divorce
period she need not worry as a remedy is in store for her in law. Under

S.37 of the Indian Divorce Act, 1869, she can apply for alimony/
maintenance in a civil court or High Court and, husband will be liable
to pay her alimony such sum, as the court may order, till her lifetime.
The Indian Divorce Act, 1869 which is only applicable to those
persons who practice the Christianity religion inter alia governs
maintenance rights of a Christian wife. The provisions are the same as
those under the Parsi law and the same considerations are applied in
granting maintenance, both alimony pendente lite and permanent
maintenance. The provisions of THE INDIAN DIVORCE ACT, 1869
are produced herein covered under part IX -s.36-s.38
IX-Alimony
S.36. Alimony pendente lite. -In any suit under this Act, whether it be
instituted by a husband or a wife, and whether or not she has obtained
an order of protection the wife may present a petition for alimony
pending the suit.
Such petition shall be served on the husband; and the Court, on being
satisfied of the truth of the statements therein contained, may make
such order on the husband for payment to the wife of alimony
pending the suit as it may deem just:
Provided that alimony pending the suit shall in no case exceed one
fifth of the husband's average net income for the three years next
preceding the date of the order, and shall continue, in case of a decree
for dissolution of marriage or of nullity of marriage, until the decree is
made absolute or is confirmed, as the case may be.
37. Power to order permanent alimony -The High Court may, if it
thinks fit, on any decree absolute declaring a marriage to be dissolved,
or on any decree of judicial separation obtained by the wife, and the
District judge may, if he thinks fit, on the confirmation of any decree
of his declaring a marriage to be dissolved, or on any decree of
judicial separation obtained by the wife,
Order that the husband shall, to the satisfaction of the Court, secure to
the wife such gross sum of money, or such annual sum of money for

any term not exceeding her own life, as, having regard to her fortune
(if any), to the ability of the husband, and to the conduct of the
parties, it thinks reasonable; and for that purpose may cause a proper
instrument to be executed by all necessary parties.
Power to order monthly or weekly payments. -In every such case, the
Court may make an order on the husband for payment to the wife of
such monthly or weekly sums for her maintenance and support as the
Court may think reasonable:
Provided that if the husband afterwards from any cause becomes
unable to make such payments, it shall be lawful for the Court to
discharge or modify the order, or temporarily to suspend the same as
to the whole or any part of the money so ordered to be paid, and again
to revive the same order wholly or in part as to the Court seems fit.
38. Court may direct payment of alimony to wife or to her trustee. -In
all cases in which the Court makes any decree or order for alimony, it
may direct the same to be paid either to the wife herself, or to any
trustee on her behalf to be approved by the Court, and may impose
any terms or restrictions which to the Court seem expedient, and may
from time to time appoint a new trustee, if it appears to the Court
expedient so to do.
Alternatively, as previously mentioned S.125 of Cr.P.C., 1973 is
always there in the secular realm
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of
maintenance extends not only to the wife and dependent children, but
also to indigent parents and divorced wives. Claim of the wife, etc.,
however, depends on the husband having sufficient means. Claim of
maintenance for all dependent persons was limited to Rs 500 per
month but now it has been increased and the magistrate can exercise
his discretion in adjudging a reasonable amount. Inclusion of the right
of maintenance under the Code of Criminal Procedure has the great
advantage of making the remedy both speedy and cheap
Order For Maintenance of Wives, Children And Parents

S.125.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,
a Magistrate of the first class may, upon proof of such neglect or
refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother, at such
monthly rate not exceeding five hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female
child referred to in clause (b) to make such allowance, until she
attains her majority, if the Magistrate is satisfied that the husband of
such minor female child, if married, is not possessed of sufficient
means.
Explanation- For the purposes of this Chapter, (a) "minor" means a person who, under the provisions of the Indian
Majority Act, 1875(9 of 1875) is deemed not to have attained his
majority;
(b) "wife" includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if
so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply
with the order, any such Magistrate may, for every breach of the order,
issue a warrant for levying the amount due in the manner provided for
levying fines, and may sentence such person, for the whole or any

part of each month's allowance remaining unpaid after the execution

of the warrant, to imprisonment for a term which may extend to one
month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any
amount due under this section unless application be made to the Court
to levy such amount within a period of one year from the date on
which it became due:
Provided further that if such person offers to maintain his wife on
condition of her living with him, and she refuses to live with him,
such Magistrate may consider any grounds of refusal stated by her,
and may make an order under this section notwithstanding such offer,
if he is satisfied that there is a just ground for so doing.
Explanation- If a husband has contracted marriage with another
woman or keeps a mistress, it shall be considered to be just ground for
his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance from her
husband under this section if she is living in adultery, or if, without
any sufficient reason, she refuses to live with her husband, or if they
are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made
under this section is living in adultery, or that without sufficient
reason she refuses to live with her husband, or that they are living
separately by mutual consent, the Magistrate shall cancel the order.
The objective of this section as expressed by Krishna Iyer, J. is to
ameliorate the economic condition of neglected wives and
discarded divorcees
Proceedings under S.125 are not civil, but criminal proceedings of a
summary nature. But these criminal proceedings are of a civil nature.
Thus, clause (3) of S.126 which empowers that Court to make such
orders may be just.

It should be kept in view that the provision relating to maintenance

under any personal law is distinct and separate. There is no conflict
between the two provisions. A person may sue for maintenance under
s.125 of Cr.P.C. If a person has already obtained maintenance order
under his or her personal law, the magistrate while fixing the amount
of maintenance may take that into consideration while fixing the
quantum of maintenance under the Code. But he cannot be ousted of
his jurisdiction. The basis of the relief, under the concerned section is
the refusal or neglect to maintain his wife, children, father or mother
by a person who has sufficient means to maintain them. The criterion
is not whether a person is actually having means, but if he is capable
of earning he will be considered to have sufficient means. The burden
of proof is on him to show that he has no sufficient means to maintain
and to provide maintenance.
Maintenance Under Parsi Law:
Parsi 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.
If the Husband refuses to pay maintenance ,wife can inform the court
that the Husband is refusing to pay maintenance even after the order
of the court. The court can then sentence the Husband to
imprisonment unless he agrees to pay. The Husband can be detained
in the jail so long as he does not pay. The Parsi Marriage and Divorce
Act, 1936 recognizes the right of wife to maintenance-both alimony
pendente lite and permanent alimony. The maximum amount that can
be decreed by court as alimony during the time a matrimonial suit is
pending in court, is one-fifth of the husband's net income. In fixing
the quantum as permanent maintenance, the court will determine what
is just, bearing in mind the ability of husband to pay, wife's own assets
and conduct of the parties. The order will remain in force as long as
wife remains chaste and unmarried.
S.40. Permanent alimony and maintenance

(1) Any Court exercising jurisdiction under this Act may, at the time
of passing any decree or at any time subsequent thereto, on an
application made to it for the purpose by either the wife or the
husband, order that the defendant shall pay to the plaintiff for her or
his maintenance and support, such gross sum or such monthly or
periodical sum, for a term not exceeding the life of the plaintiff as
having regard to the defendant?s own income and other property, if
any, the income and other property of the plaintiff, the conduct of the
parties and other circumstances of the case, it may seem to the Court
to be just, and any such payment may be secured, if necessary, by a
charge on the movable or immovable property of the defendant.
(2) The Court if it is satisfied that there is change in the circumstances
of either party at any time after it has made an order under sub-section
(1), it may, at the instance of either party, vary, modify or rescind any
such order in such manner as the Court may deem just.
(3) The Court if it is satisfied that the partly in whose favour, an order
has been made under this section has remarried or, if such party is the
wife, that she has not remained chaste, or, if such party is the husband,
that he had sexual intercourse with any woman outside wedlock, it
may, at the instance of the other party, vary, modify or rescind any
such order in such manner as the Court may deem just.
The author can be reached at: romit@legalserviceindia.com / Print
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