RIGHT OF MAINTENANCE

Maintenance implies provision for food, clothing, residence, education, and medical attendance and
treatment. Laws of Maintenance under different laws in India can be classified
into following heads:

1. Right of Maintenance under Hindu Law (Sec 24 & 25 of Hindu Mariage Act,
1955, Sec 18 of Hindu Adoption and Guardianship Act, 1956)

-Interim Maintenance (Under S.24 of Hindu Marriage Act, 1955)- 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.
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.
-Permanent maintenance ( S.25 of Hindu Marriage Act, 1955)- Section 25 provides
for the grant of permanent alimony and maintenance to any of the party to an marriage
at the time of passing any decree under the Act or at any time subsequent thereto. The
court shall take into account the status of opposite party in fixing the amount for
maintenance.
The court has been empowered to rescind or modify the order at any subsequent stage if
the circumstances so warrant; and if petitioner becomes inchoate or remarries at any
subsequent stage the court may at the instance of the other party vary, modify or
rescind any such order in such manner as the court may deem just.
Sub-section (1) of Section 25 requires that an application must be made by the wife or
the husband who is party to the main proceeding, if she or he wants the incidental relief
of permanent alimony and such an application may be made in the main proceedings
either before or at the time of passing the decree granting substantive relief of divorce
or at any time subsequent to the passing of such decree.
“The relief of permanent alimony being an incidental relief it should not be a matter of
any consequence whether the application for it is made prior to passing of the decree or
subsequent to it. As a matter of fact, the relief of permanent alimony being a relief
incidental to the granting of the substantive relief, it would be more consonant with
reason that an application for such incidental relief should be maintainable after the
passing of the decree granting the substantive relief.
After the amendment of the Hindu Marriage Act in 1976, the scope of the Act has
widened and now it is mandatory for the court to grant full opportunity to the parties to
substantiate their rival contentions by leading proper evidence. The court should take
into account the other circumstances which may influence the grant or refusal of
permanent alimony besides considering the income and conduct of the parties.
The right to permanent alimony accrues only when a decree has been passed in favour
of the petition under Sections 9 to 13. In case no such decree has been passed in favour
of the petitioner, the right to claim any maintenance or alimony is ruled out. Thus where
a petition of the husband is dismissed under any of the sections i.e., Sections 9 to 14 the
application for permanent maintenance filed by the wife under Section 25 of the Act will
be rejected.
-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. 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.

2. Right of Maintenance of wife under Muslim Law

All those things which are necessary to support of life, such as food, clothes and lodging;
refers to maintenance (Nafaqa) under Muslim law.
Under Muslim Law, It is incumbent on a husband to maintain his wife, whether she is
Muslim or Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old. However the
wife is too young for matrimonial intercourse she has no right to maintenance from her
husband, whether she is living in his house or with her parents. And the husband is
bound to maintain his wife so long as she is faithful to him and obeys his reasonable
orders.
It is decided in an interesting case A v. B, ( ILR (1896) 21 Bom. 77 ) by Strachy and
Badruddin Tyabji, JJ., that disobedient wife need not to be maintained. Strachy, J .,
observed:
“…the husband’s duty to maintain his wife is conditional on her obedience and he is not
bound to maintain her if she is disobeys him by refusing to live with him or
otherwise. Only paid occasional visits to husband house, staying for a night or so
returning on occasion to mother’s house… I am clearly of the opinion that in such
circumstances the Muhammadan husband is not bound to give his wife separate
maintenance…”

To some effect the observations of Tyabji, J ,. :

“…it is impossible to hold that a Mussulman wife defying her husband, refusing to live
with him, and bringing scandalous charges against him, can yet claim to be maintained
separately at the expenses of her husband.”

Where the marriage is valid and the wife is capable to render marital intercourse it’s the
husband’s duty to maintain his wife even though she may have means to maintain
herself. But if she unjustifiably refuses to cohabit with her husband then she loses her
right for maintenance. The right of maintenance would also be lost if the wife refuses to
obey the reasonable commands of the Husband but not so if disobedience is justified by
circumstances or if she is forced to leave husband’s house on account of cruelty, so that
of the husband refuses to maintain his wife without any lawful reasons/causes the wife
may sue him for maintenance. She is not however entitled to past maintenance.
Maintenance is payable from the date of the decree unless the claim is based on specific
agreement.

Further the husband and wife or their guardian may enter into agreement whereby the
wife is entitled to recover maintenance from her husband, on the happening of some
special event such as ill-treatment, disagreement, husband’s second marriage etc. but
the agreement in the marriage contract that the wife would not be entitled to
maintenance is void. The key consideration is that the agreement should not be opposed
to the public policy and Muslim Law.

An agreement between a Muslim and his first wife, made after his marriage with a
second wife, providing for certain maintenance for her if she could not in future get on
with the second wife, was held not void on the ground of the public policy.
Followings are the valid conditions for an agreement:
i. If the husband treats the wife with cruelty then the wife has a right to separate
residence and maintained to meet it.

ii. If he brings subsequent wife and the previous wife is unable to with her, she will get
maintenance allowance to live separately or even at her father’s house.

iii. If he brings his other wife to the matrimonial home, she will reside at her father’s
home and he will give her maintenance.This view was reiterated by the Karnataka High
Court.

iv. In case of disagreement with each other, he will give her maintenance for her
separate residence.

3. Maintenance under Code of Criminal Procedure 1973.

Section 125 of the Code of Criminal Procedure reads as follows:

(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, as such Magistrate thinks fit, and to pay the same to
such person as the Magistrate may from time to time direct :
This Section was introduced, to safeguard the wife, legitimate and illegitimate child (not
being a married daughter) who has attained majority, where such child by reason of any
 physical or mental abnormality or injury unable to maintain itself or a person's father or
mother unable to maintain himself or herself.

BASIS OF THE CLAIM

An application under Section 125 of the Criminal Procedure Code, be it

be by a wife child or parent, will be entertained only on proof of following

elements. The applicant needs to prove that the respondent has sufficient

means and that he/she has neglected or refused to maintain him/her. In

addition, he or she has to prove her inability to maintain himself or herself.

On the side of the respondent the requisites are-

1. Sufficient Means

The person against whom the claim is made must have `sufficient means' based on
which alone maintenance can be allowed. The words ` having sufficient means do not
signify only visible means of such things as real property, income, revenue, estate or
employment. Besides pecuniary resources, it has its reference to the earning capacity of
the individual as well i.e. If one is healthy and able bodied it must be construed that he
has the means to support his wife, child or parent. Even in case of insolvency of the
husband, the capacity to earn being there on him it is material to construe that he has
means.18 One's debtl9 or young age and inability to get a job or worldly renunciation
does not provide ground to claim that he has not sufficient means. But physical infirmity
and ailments on account of which one cannot earn is material.

2. Neglect or Refusal to Maintain

No order for maintenance can be passed unless neglect or refusal is there by a person
against whom the petition is filed. Proof of neglect or refusal is the basis of the claim for
maintenance and without such proof no order of maintenance can be made even though
she is living separate in exercise of her statutory right. The term neglect is used to
signify failure on the part of a person bound to maintain his wife. In wider sense, it
includes disregard of duty to maintain whether intentional or otherwise. Neglect or
 refusal need not be express but may be inferred from the conduct of the towards
determining the same. Failure to maintain properly can amount to neglect, when
maintenance provided is very meager and inadequate this amounts to neglect and
Magistrate can entertain jurisdiction. Mere failure or omission can amount to neglect in
case of children on whom father has a duty.

CASE LAW
Mohd. Ahmed Khan v Shah Bano Begum

 The husband (appellant) was married to the wife (respondent) in 1932. In 1975 the
husband drove the wife out of the matrimonial home. In April 1978, the wife filed a
petition against the husband under Section 125 of the Criminal Procedure Code
1973 (hereinafter referred to as the ‘Code’/ ‘CrPC’) in the court of the learned Judicial
Magistrate (First Class), Indore. She asked for maintenance at the rate of Rs. 500 per
month. On November 6, 1978 the husband divorced wife by an irrevocable talaq. His
defence was that she had ceased to be his wife by reason of the divorce granted by
him. He therefore claimed to be under no obligation maintenance for her since he had
already paid maintenance to her at the rate of Rs. 200 per month for about two years
and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the
period the of iddat. In August, 1979 the learned Magistrate directed appellant to pay a
princely sum of Rs. 25 per month to the respondent by way of maintenance. In July,
1980 in a revisional application filed by the respondent, the High court of Madhya
Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.
 The husband has filed this appeal by special leave before the Supreme Court.
Legal Reasoning
1) Whether the payment of mehar by the husband on divorce is sufficient to absolve him
of any duty to pay maintenance to the wife.
“…there is no escape from the conclusion that a divorced Muslim wife is entitled to apply
for maintenance under Section 125 and that, Mahr is not a sum which, under the Muslim
Personal Law, is payable on divorce.” (para 32)
The Court reached the above conclusion in support of the ruling in Bai Tahira where
Justice Krishna Iyer held that “…The payment of illusory amounts (referring to
‘mehar’) by way of customary or personal law requirement will be considered in the
reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable
substitute.” (p.82, Bai Tahira)
2) Whether there is any provision in the Muslim Personal Law under which a sum is
payable to the wife ‘on divorce’
Referring to the views put forth by the learned scholars (Mulla, Tyabji and Paras Diwan),
the Court concluded that “These statements in the text book are inadequate to establish
the proposition that the Muslim husband is not under an obligation to provide for the
maintenance of his divorced wife, who is unable to maintain herself.” (para 16)
“The sum settled by way of Mahr is generally expected to take care of the ordinary
requirements of the wife, during the marriage and after. But these provisions of the
Muslim Personal Law do not countenance cases in which the wife is unable to maintain
herself after the divorce. We consider it not only incorrect but unjust, to extend the
scope of the statements extracted above to cases in which a divorced wife is unable to
maintain herself. We are of the opinion that the application of those statements of law
must be restricted to that class of cases, in which there is no possibility of vagrancy or
destitution arising out of the indigence of the divorced wife” (para 16)
“Since the Muslim Personal Law, which limits the husband’s liability to provide for the
maintenance of the divorced wife to the period of iddat, does not contemplate or
countenance the situation envisaged by Section 125, it would be wrong to hold that the
Muslim husband, according to his personal law, is not under an obligation to provide
maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain
herself.” (para 16)
The Court concluded that the liability of the husband to pay maintenance to the wife
extends beyond the iddat period if the wife does not have sufficient means to maintain
herself.
3) Whether Section 125 of the Code applies to Muslims.
Referring to Section 125 of the Code, the Court said: “The religion professed by a spouse
or by the spouses has no place in the scheme of these provisions. Whether the spouses
are Hindus or Muslims, Christians or Parsis, pagans or heathens is wholly irrelevant in
the application of these provision. The reason for this is axiomatic, in the sense that
Section 125 is a part of the code of Criminal Procedure, not of the Civil Laws which
define and govern the right and obligations of the parties belonging to particular
religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi
Matrimonial Act.” (para 7)
“Clause (b) of the Explanation to Section 125(1), which defines ‘wife’ as including a
divorced wife, contains no words of limitation to justify the exclusion of Muslim women
from its scope.” (para 7)
“‘Wife’ means a wife as defined, irrespective of the religion professed by her or by her
husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a
‘wife’ for the purpose of Section 125. The statutory right available to her under that
section is unaffected by the provisions of the personal law applicable to her.” (para 9)
4) Whether Section 125 would prevail over the personal law of the parties, in cases
where they are in conflict.
The Court in answering this question, gave the example of the Islamic Law regarding
polygamy:
“It is too well-known that “A Mahomedan may have as many as four wives at the same
time but not more. If he marries a fifth wife when he has already four, the marriage is
not void, but merely irregular”.1 The explanation confers upon the wife the right to
refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other
marriages.” and held-“It shows, unmistakably, that Section 125 overrides the personal
law, if is any there conflict between the two.” (para 11)
5) Whether there is any conflict between the provisions of Section 125 and those of the
Muslim Personal Law on the liability of the Muslim husband to provide for the
maintenance of his divorced wife
“The true position is that, if the divorced wife is able to maintain herself, the husband’s
liability to provide maintenance for her ceases with the expiration of the period of iddat.
If she is unable to maintain herself, she is entitled to take recourse to Section 125 of the
Code. The outcome of this discussion is that there is no conflict between the provisions
of Section 125 and those of the Muslim Personal Law on the question of the Muslim
husband’s obligation to provide maintenance for a divorced wife who is unable to
maintain herself.” (para 16)
Conclusion
Dismissing the appeal, the Court held:
1) The payment of mehar by the husband on divorce is not sufficient to absolve
him of the duty to pay maintenance to the wife.
2) The liability of the husband to pay maintenance to the wife extends beyond
the iddat period if the wife does not have sufficient means to maintain herself.
3) Section 125 of the Code applies to all citizens irrespective of their religion
4) Section 125 overrides the personal law, if is any there conflict between the
two.
5) There is no conflict between the provisions of Section 125 and those of the
Muslim Personal Law on the question of the Muslim husband’s obligation to
provide maintenance for a divorced wife who is unable to maintain herself.

This judgment was followed by various repercussions in the Muslim community who felt
their faith was under threat. The Muslim Personal Law Board opined that the Supreme
Court was wrong in interpreting the holy Quran as per a judicial stand taken whereby it
was held that the court would not interpret religious scriptures or holy books. The
parliament to undo the effect of this judgement passed the Muslim Women
(Protection of Rights on Divorce) Act, 1986, which provided that under section
3(1)(a) a divorced women is entitled to reasonable and fair provision and
maintenance within the iddat period. The Act while nullifying the Shah Bano
ratio, tried to restrict the divorced Muslim woman’s right to maintenance up to
the iddat period only.

Controversy arose as to whether the provisions of sections 125 to 127 of CrPC or the
provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is more
beneficial to divorced Muslim women in securing their right to maintenance.

The Kerala, Bombay and Gujarat High Courts had each concluded that
a husband’s duty to make ‘fair and reasonable provision’ for his divorced wife,
(provided for under section 3 of the 1986 Act), included a duty to make arrange-
ments for his wife’s future well-being beyond the iddat period.

Opposing views had been adopted in other High Courts, however, limiting Muslim
women’s right to maintenance to the iddat period, following the letter of the 1986 Act.

In 2001, The constitutional validity of the Muslim Women (Protection of Rights on

Divorce) Act, 1986 was challenged before the Supreme Court in Danial Latifi & Anr v.
Union Of India by Daniel Latifi who was the lawyer of Shah Bano in the Shah Bano case.

Dania Latifi & another v. Union of India

The petitioner challenged the constitutional validity of the Muslim women {Protection of
Right on Divorce} Act, 1986, under which section 125 of the criminal procedure code,
providing for maintenance to wives, including divorce women, by their formal husband,
was made in applicable to divorced Muslim women. The petitioners primarily submitted
that {1} section 125 crk, was enacted as a matter of public policy, in order to provide a
quick summary remedy to persons unable to maintain themselves, that the provision
reflected the moral stance of the law and ought not to have been entangled with religion
and religion based personal laws {2} Section 125 crpc also further the concept of social
justice embodied in Article 21 of the constitution of India hence excluding divorced
muslim women from its protection is a discrimination against them {3} The inevitable
effect of the Act is to nullify the law declared by the Supreme Court in Shah Bano case
{1985}2 scc 556 }, which is most improper, {4} the Act is un-Islamic and also has the
potential to suffocate Muslim women and to undermine the basic secular character of the
constitution, {5} The Act is Violative of Article 14 and 21.
 On behalf of the union of India, it was submitted that the need
for giving effect to a community’s personal law was a legitimate basis for discrimination.
If the legislature can apply a particular provision as a matter of policy, it can also
withdraw such application and substitute another in this place. The policy of section 125
crpc is not to create a right of maintenance beyond the purview of personal law. The Act
has been enacted to overcome the ratio of the Shah Bano decision.

On behalf of the all Indian Muslim person law board it was submitted that the
object of the was to undo the effect of Shah Bano case, in that the case the Supreme
court had attempted the hazardous task of interpreting an unfamiliar language
connected to religious tenets, Which was not a safe court to pursue, that the term ‘mate’
had been wrongly interpreted in shah bano case. The purpose of the act was to avoid
vagrancy, but at the some time it aimed to prevent the husband from being penalized,
that the terms maintenance and provision as used in section 3{1} {a} had the same
meaning, that provisions of section 4 of the act were adequate for taking care of any
possibility of vagrancy, that according to the Muslim social ethos a divorced Muslim
woman was not at all dependent on heer former husband because society provided a
wider safely net. The Islamic shariat board presented more detailed submission
regarding the term ‘mate’ and as to why the views of certain Muslim authors, proposing
that Muslim law obliges a man to pay maintenance to his former wife beyond the iddat
period, ought not to be accepted.
The Supreme Court decided to consider only the question of the constitution
validity of the Act and upholding the same. While upholding the validity of the act and
upholding the same. While uphdding the validity of the Act, We may sum up our
conclusions.

{1} A Muslim husband is liable to make reasonable and fair provision for the future of
the divorced wife which obviously includes her maintenance as well. Such a reasonable
and fair provision extending
Beyond the iddat period must be made by the husband with him the iddat period in
terms of Section 3{1} [a} of the Act

{2} liability of a Muslim husband to his divorced wife arising under Section 3{1}{a} of
the Act to pay maintenance is not confined to the iddat period.

{3} A divorced Muslim woman who has not remarried and who is not able to maintain
herself after the iddat period can proceed as provided under Section 4 of the Act against
her relatives who are liable to maintain her in proportion to the properties which they
inherit on her death according to Muslim law from such divorced woman including her
children and parents. If any of the relatives being unable to pay maintenance, the
magistrate may direct the state wakf board established under the Act to pay such
maintenance.

{4} the provisions of the Act do not offend articles 14, 15 and 21 of the constitution of
India.