FAMILY LAW

RESEARCH PAPER

ALIMONY: REHABILITATIVE ALIMONY

SUBMITTED BY: SUBMITTED TO:

JYOTI MAURYA DR. SANGITA LAHA

3rd SEMESTER (A) ASSISTANT PROFESSOR

ROLL NO. : 866 NUSRL, RANCHI

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN

LAW, RANCHI
 CHAPTER I- INTRODUCTION

This paper deals with Maintenance of spouse under Hindu Marriage Act. The concept of
maintenance aims at putting the spouse back to the same position of comfort and lifestyle as
he/she was at the time when her marriage existed. There is no fixed amount of maintenance
that one of the spouses is liable to pay to other, and it is upon the discretion of a family court
to fix the amount of maintenance that needed to be paid either on a monthly basis or in form
of a lump sum. Maintenance is a very complicated issue under Hindu Marriage Act. Section
24 of Hindu Marriage Act, 1955 (The Act) says that either husband or wife may claim
maintenance pendent lite i.e. maintenance till the proceedings are in process. Further, section
25 of the Act mentioned about the grounds for permanent alimony. Maintenance refers to the
payments, which one of the spouses, under certain circumstances is under an obligation to
pay. The most important aspect of maintenance is that the party which relies on maintenance
has no independent source of income to support himself/herself. In few cases, alimony paid to
the wife is based on the standard of living enjoyed by the couple while married. There is no
fixed parameter for deciding the amount of alimony to be provided, law on this aspect is still
developing, and it is mostly based on cases and orders already passed and taking into
consideration the facts of the case to be decided.

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 alimony is decided on
the basis of income and background of the couple. In few cases, alimony paid to the wife is
based on the standard of living enjoyed by the couple while married. Wife’s income is to be
accounted for determining maintenance, Bhagwan Dutt v. Kamla Devi1,

Under Muslim law, ‘maintenance’ is called ‘nafaqa’ and it includes food, clothing and
lodging. Muslim personal law imposes limited obligation on the husband to maintain his wife
after divorce. The Muslim law imposes the liability to maintain the divorced wife only during
the period of Iddat and not thereafter. A Muslim husband contracting another marriage or
taking a mistress is liable to pay maintenance to the previous wife who also has right to live
separately which is payable from the date of the other marriage. Irrespective of religion,
husband cannot absolve his liability by offering to take back the wife and maintain

1
(1975) 2 SCC 386.

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her, Begum Subanu v. A.M. Abdul Gafoor2. The Muslim Women (Protection of Rights on
Divorce) Act 1986 (“The Act”) was passed to protect the rights of Muslim women who have
been divorced by, or have obtained a divorce from, their husbands.

STATEMENT OF RESEARCH PROBLEM

The term “the standard of living of the marriage” pretty much defines alimony. It is one of
the key factors that determine if you are entitled to paying alimony and the amount of
alimony. The fundamental idea behind divorce alimony is that both the spouse should be able
to live the same standard of life as they were before getting a divorce. If you were the sole
earner in the family or you earned most of the money, you would have to pay alimony in
order to maintain the standard of life of your spouse. Similar to the term alimony,
rehabilitative alimony is paid for a certain period of time. The alimony amount and the
duration depend on a particular plan for the spouse getting alimony to become financially
independent. Generally, rehabilitative alimony is used to support the spouse during a period
of retraining or re-education for re-entry into the workforce, thereby enabling the spouse to
become self-supporting in not too distant future. Since it provides a temporary fix to help the
party regain marketable skills, it can be classified as another form of temporary alimony.
The courts are more compelled to award this type of alimony where the spouse seeking it, has
some potential for establishing a viable career. But there is no such alimony exists in India.

OBJECTIVE OF RESEARCH

The purpose of this paper is to widen the discussion by drawing attention to a distinct issue of
alimony and determining their effects. An examination of various judgements across India
reveals that in spite of the acknowledged complexity of the subject, it is possible to study the
effects with reasonable clarity and consistency. It is essential to understand laws related to
maintenance and alimony available to spouses. Its understanding would unravel the possible
challenges that spouses could experience while initiating the proceedings. In the case of
alimony in India, the research work is just confined to alimony but there is no research work

2
(1987) 2 SCC 285.

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which deals with rehabilitative alimony. This research paper also deals with necessary
condition to file for maintenance and leading cases related to maintenance.

RESEARCH QUESTION

• What is the stand of Hindu law relating to maintenance in India?

• What is the stand of Muslim law relating to maintenance in India?
• What is the meaning of rehabilitative alimony in Indian context?
• Whether the concept of rehabilitative alimony is present in Indian laws?

RESEARCH HYPOTHESIS

• Spouse, who can’t earn his /her livelihood after divorce, as he/she is dependent on
other spouse’s earning, can claim for maintenance in India. Personal enforced in India
govern laws related to maintenance.
• The concept of maintenance aims at putting the spouse back to the same position of
comfort and lifestyle as he/she was at the time when her marriage existed.

LITERATURE REVIEW

This paper is based on the analysis of various sources which include books, journals and
judgements of various High Courts as well as the Supreme Court. Some of the articles that
have been referred include:

KANT, ANJANI (1996). RIGHT OF MAINTENANCE TO INDIAN WOMEN,

PROCEDURE observes that Criminal Procedure Code (CrPC) section 125 provides for
speedy, effective and inexpensive remedy against persons who neglect or refuse to maintain
their wives, children and parents. The section applies to wives belonging to any religion. It
has no relationship with personal laws of the parties. Formerly the matter of maintenance was

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dealt with under section 488, Cr P C. It only applied to wives belonging to any religion. The
section did not apply to a concubine, kept mistress or a non legally wed.

S. MANOJ, ARULKANNAPPAN (2018). A STUDY OF MAINTENANCE UNDER

HINDU MARRIAGE ACT observes that maintenance may be allotted to dependent
children, parents and legally wedded wives, counting but not limited to a divorced spouse,
mistress, illegitimate children, etc. In certain cases under personal law, the Indian courts have
adopted a lenient view and granted the husband the right to receive maintenance. Such right
however, is conditional and typically conferred upon the husband, only if he is incapacitated
due to some accident or disease and rendered incapable of earning a livelihood. Such an
entitlement is not available to an able person, doing nothing for a living or a “wastrel”.

KRAUSKOPF, JOAN (1988). REHABILITATIVE ALIMONY: USES AND ABUSES

OF LIMITED DURATION ALIMONY explores a recent and unanalyzed appellate trend to
pre serve indefinite alimony by curbing the excesses of rehabilitative alimony. He discusses
the pros and cons of the rehabilitative alimony.

RESEARCH METHODOLOGY

RESEARCH DESIGN: The research design adopted is Descriptive and Analytical Research
Design as it is a theory-based research which is created by gather, analyzes and presents
theories. It is necessary to address issues and to provide solutions to the problem.

DATA COLLECTION: For the purpose of the study main source of data used is:

PRIMARY SOURCES: Hindu Marriage Act, 1955.

Hindu Adoption and Maintenance Act, 1956.

The Muslim Women (Protection of Rights on Divorce) Act, 1986.

The Code of Criminal Procedure, 1973.

SECONDARY SOURCES: Secondary data is that which has been already collected by some
other individual or agency. Secondary data is obtained by Manupatra, SCC online, Westlaw
India. Online journal were referred from the online database Jstor.

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 CHAPTERIZATION

1. Introduction
2. Laws relating to alimony in Hindu Marriage Act
3. Maintenance under Muslim law.
4. Rehabilitative alimony in India
5. Finding, understanding and conclusion

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 CHAPTER II- LAWS RELATING TO ALIMONY ACCORDING
TO HINDU MARRIAGE ACT

Maintenance necessarily must encompass a provision for residence. Maintenance is given so

that the lady can live in the manner, more or less, to which she was accustomed. The concept
of maintenance must, therefore, include provision for food and clothing and the like and take
into account the basic need of a roof over the head, Mangat Mal v. Punni Devi3.

Under the Hindu maintenance laws, there are two types of maintenance that can be claimed
by any of the spouses. When one of the spouse files a maintenance petition through her
divorce attorney, the burden to declare his income shifts to the other, who has the right to
defend the maintenance petition. The types of maintenance under Hindu laws are as follows:

1. Interim Maintenance: When the spouse files a maintenance petition, the court may
award her interim maintenance that the other must pay from the date on which the
application was filed, till the date of dismissal through the divorce law advocate. It is
also known as Maintenance Pendente Lite4 and is paid so that the spouse can pay
for the legal expenses incurred by her. Interim maintenance is awarded by the court if
the spouse has absolutely no source of income to maintain herself. There are no laws
that lay down the amount of this type of maintenance and it is completely upon the
discretion of the court to determine how much maintenance is sufficient for the
spouse to sustain during the proceedings. Section 245 of the Hindu Marriage Act,
1955 lays down that both the husband and wife can file an application for interim
maintenance through their divorce advocate.
In Purusottam Mahakud v. Smt. Annapurna Mahakud6, Supreme Court held that
the right to claim interim maintenance in a suit is a substantive right under section 18

3
(1995) 6 SCC 88.
4
The expenses of the proceedings.
5
Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case
may be, has no independent income sufficient for her or his support and the necessary expenses of the
proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner
the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the
petitioner's own income and the income of the respondent, it may seem to the court to be reasonable:
[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during
the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on
the wife or the husband, as the case may be.]
6
AIR 1997 Ori 63.

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 of the Act. Since no form is prescribed to enforce the said right civil court in exercise
of its inherent power can grant interim maintenance.
2. Permanent Maintenance: Permanent maintenance is paid by the husband to his wife
in case of divorce, and the amount is determined through a maintenance petition filed
through a divorce law lawyer in India. Section 257 of the Act states that the court can
order one of the spouses to pay maintenance to other in form of a lump sum or
monthly amount for lifetime.

Under Section 18 of the Hindu Adoption and Maintenance Act, 1956, a wife has the right to
live separately from her husband without affecting her right to claim maintenance. Under this
law, a wife can live separately from her husband in the following cases:

• The husband has deserted the wife without any reasonable cause.
• The husband has subjected the wife to cruelty.
• The husband is suffering from leprosy of virulent form.
• The husband has extra-marital affairs.
• The husband has converted to another religion.
• If there is any other cause justifying her living separately.

However, the wife is not entitled to claim maintenance in the following circumstances:

• She has ceased to be a Hindu by converting to another religion.

• She is guilty of adultery i.e. she is unchaste and indulged in physical relations
with another man.

7
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 application made to it for the purpose by either the wife or the husband, as the case may
be, order that the respondent shall 55 [***] pay to the applicant 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 applicant as, having regard to the
respondent's own income and other property, if any, the income and other property of the applicant 56 [, 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 immovable property of the respondent.

(2) If the court is satisfied that there is a 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) If the court is satisfied that the party in whose favour an order has been made under this section has re-
married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has
had sexual intercourse with any woman outside wedlock, 57 [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].

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 • She has remarried after the divorce.

In determining the amount of maintenance the following has to be considered;

1. The net value of the estate of the deceased after providing for payment of debts.
2. The provision, if any made under a will of the deceased.
3. Degree of relationship with the dependant.
4. Reasonable wants of dependant.
5. No. of dependants.

QUANTUM OF MAINTENANCE

Maintenance covers not merely food, clothing and shelter, but also includes other necessities.
The quantum and type of necessities covered within the scope of maintenance may vary,
depending on the status, financial position and number of dependents, etc and is at the
discretion of the court. Antecedent to passing an order under Section 125 of CrPc8, the court
does take cognizance of the amount of maintenance already ordered under the personal law.
The reasoning is based on the premise that the wife is entitled to live as per the standard and
status of her husband.

Maintenance of wife for her ‘sustenance’ does not mean animal existence but signifies
leading life in a similar manner as she would have lived in the house of her husband.
Husband is duty bound to enable his wife to live life with dignity according to their social
status and strata, Bhuwan Mohan Singh v. Meena9.

8
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.

9
(2015) 6 SCC 353.

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 CHAPTER III- MAINTENANCE UNDER MUSLIM LAW

Earlier a Hindu woman was more privileged than Muslim women. On the basis that, a Hindu
woman was entitled to maintenance by her husband throughout her life but in case of Muslim
women, she was 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 allocate
women of both communities with equal opportunities and rights. But the commencement of
The Muslim Women (Protection of Rights on Divorce) Act, 1986 10 took away the right of
the women to maintenance beyond the period of Iddat11 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.

But in later cases court ruled that a divorced Muslim wife is also entitled to maintenance not
merely until the completion of the iddat period, but for her entire life unless she remarries. Sabra
Shamim v. Maqsood Ansari12

Under maintenance laws in India, maintenance under Muslim law is known as “Nafqah13”
which means what a man spends over his family. “Nafqah” basically includes food, clothing
and lodging. A Mohemaddan is bound to maintain his wife under Muslim law. Her right to
maintenance is absolute and not conditional to whether she can maintain herself or no.
maintenance can be denied to a wife only under the following circumstances:

1. She has not obtained puberty.

2. She abandons conjugal domicile without any valid cause.

3. She is disobedient to reasonable commands of her husband.

4. If she has eloped with somebody.

10
Landmark legislation passed by the parliament of India in 1986 to allegedly protect the rights of Muslim
women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters
connected therewith or incidental thereto.
11
Iddah or iddat (Arabic: ‫ ;العدة‬period of waiting) is the period a woman must observe after the death of her
husband or after a divorce, during which she may not marry another man.
12
(2004) 9 SCC 616.
13
The word infaq, which is derived from the root “nafaqa” means to spend money on charity.

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Divorced women are entitled to maintenance not only for iddat period from their former
husband but also to reasonable and fair provisions for future maintenance. S.3 of the Muslim
Women (Protection of Rights on Divorce) Act has to be given under the liberal interpretation
to help divorced women. K. Zunaideen v. Ameena Begum14.

However, according to all schools of Muslim law, the wife can claim indebtedness of past
maintenance if any maintenance allowance to her was promised by husband under any
separate agreement. Such agreements are generally made to assure a wife to receive a regular
pocket-allowance called Kharch-i-pandan15 or, Mewakhori16. She is entitled to get
indebtedness of maintenance also in a case where maintenance was ordered by the court but
remained unpaid.

More recently the Supreme Court in Danial Latifi v. Union of India17 read the Act with
Articles 14 and 15 of the constitution which prevent discrimination on the basis of sex and
held that the intention of the framers could not have been to deprive Muslim women of their
rights.

In Shabana Bano v Imran Khan18, the Supreme Court held that a Muslim divorced woman
who has no means to maintain herself is entitled to get maintenance from her former husband
even after the period of iddah and she can claim the same under S.125 CrPC.

14
(1998) 1 ctc 566.
15
A personal allowance paid by the husband to the wife among the Muslims of rank.
16
Mewakhori is another tem of Kharch-i-pandan.
17
(2001) 7 SCC 740 : 2001 CriLJ 4660.
18
AIR 1985 SC 945.

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 CHAPTER IV- REHABILITATIVE ALIMONY

Rehabilitative alimony is alimony that the paying spouse is supposed to pay over a specified
period of time in order that the dependent spouse may achieve goals necessary to become
self-supportive. This type of alimony is used as a means to ease the transition from married
life to single life. The idea behind rehabilitative alimony is that short-term rehabilitative
alimony will take the place of permanent alimony because the dependent spouse will, after
the rehabilitative period, be able to financially support him/herself Canakaris v. Canakaris19.
Thus, in order to be considered for rehabilitative alimony, the receiving spouse must
demonstrate the ability for future potential earnings. But the concept of rehabilitative concept
is not adopted in India yet.

Florida Supreme Court recognized that a trial court has “broad discretionary authority to do
equity between the parties and has available various remedies to accomplish this purpose,
including lump sum alimony, permanent periodic alimony, rehabilitative alimony, child
support, a vested special equity in property, and an award of exclusive possession of
property.

A court cannot award rehabilitative alimony unless the requesting party presents evidence of
a valid rehabilitation plan that would support an alimony award. Hill v. Hooten20,

Rehabilitative alimony in the context of India:

According to sec 18 of Hindu Adoption and Maintenance Act, 1956 woman is not eligible to
receive alimony from ex-husband if she remarries or enters into a romantic relationship with
someone else. This can also be interpreted as rehabilitative alimony. Since wife by
remarrying can support herself on the income of her husband i.e. she gets rehabilitated.

Same is the case of the Muslim law i.e. if women remarries then she will not be eligible to
claim maintenance.

19
382 So. 2d 1197, 1202 (Fla. 1980).
20
776 So. 2d 1004, 1006 (Fla. 5th DCA 2001).

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Earlier women were thought to be inferior to men in India. They were thought to be meant for
household work. Their purpose was to keep her family happy and she didn’t have right to
earn. So after the divorce, women were thought to be maintained as they don’t have any
earning other than their husband’s earning. But the status of Indian women has been radically
changing since independence. However, the structural and cultural changes provided equality
of opportunities to women in education, employment and political participation. These
changes provided freedom and better orientation to the women’s organization to pursue their
interest. So with changing time laws relating maintenance should also be changed. If a
woman has potential to earn and make her livelihood she should get alimony only up to the
time she gets settled.

In current situation court look into financial status of both the spouses to grant maintenance
Wife having a school of her own and possessing wet lands is in a better financial position
than husband who is not doing well in his profession and has no land. Hence, it is
unnecessary to pay any maintenance to the wife, Rosy Jacob v. Jacob A. Chakramakkal21. So
if a wife has potential to earn livelihood and become economically self-sufficient by a
predicted time then he/she should be stopped getting alimony. It is to get the person to a
position where he or she can take care of expenses without assistance, durational, or
permanent.

Therefore, concept of rehabilitative alimony should be inserted in personal laws such as

Hindu Law and Muslims Law.

21
(1973) 1 SCC 840.

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 CHAPTER V- FINDINGS, UNDERSTANDING AND
CONCLUSION

Under the Hindu maintenance laws, there are two types of maintenance that can be claimed
by any of the spouses. When one of the spouse files a maintenance petition through her
divorce attorney, the burden to declare his income shifts to the other, who has the right to
defend the maintenance petition.

A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be paid
to her within the iddat period by her former husband; an amount equal to the sum of mahr or dower
agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law.
Later SC held that Muslim women are entitled to alimony not only in iddat period but for her entire
life.

Rehabilitative alimony is that short-term rehabilitative alimony will take the place
of permanent alimony because the dependent spouse will, after the rehabilitative period, be
able to financially support him/herself. Thus, in order to be considered for rehabilitative
alimony, the receiving spouse must demonstrate the ability for future potential earnings. But
the concept of rehabilitative concept is not adopted in India yet. It is to get the person to a
position where he or she can take care of expenses without assistance, durational, or
permanent.

There are many leading cases which reform laws relating to alimony in India, and there is
need of some more reforms to establish justice, equity and good conscience in India. There is
need of uniform civil code so that there is no discrimination among people regulated by
different personal laws.

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 REFERENCES
STATUTES

• Hindu Marriage Act, 1955.

• Hindu Adoption and Maintenance Act, 1956.
• The Muslim Women (Protection of Rights on Divorce) Act, 1986.
• The Code of Criminal Procedure, 1973.

ONLINE SOURCES:

1. Anjani Kant, Right of maintenance to Indian Women, 38 Journal of the Indian Law
Institute, July- Sept. 1996, at 392, 396.
2. Paras Diwan, Permanent Maintenance and Alimony: When Petition Is A Matrimonial
Cause Is Dismissed, 37 Journal of the Indian Law Institute, April- June 1995 at 246.
3. S. Manoj & Arulkannappan, A study of maintenance under Hindu marriage act, 120
International Journal of Pure and Applied Mathematics 2983, 2987 & 2992 (2018).
4. Pravita Panda, Right to Maintenance of Hindu Womenunder Hindu Adoption and
Maintenance Act, 5 G.J.R.A. 130, 130-131 (2016).
5. Jeff Landers, What Divorcing Women Need To Know About Alimony 'Reform',
FORBES, (May 17, 2013, 3:09 PM),
https://www.forbes.com/sites/jefflanders/2013/05/17/what-divorcing-women-need-to-
know-about-alimony-reform/#363e4ead1260.
6. Joan M. Krauskopf, Rehabilitative Alimony: Uses and Abuses of Limited Duration
Alimony, 21 JSTOR 573 (1988).

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