Divorce Maintenance

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DIVORCE MAINTENANCE

Under the purview of Personal laws in India there is a significant part of overseeing the connection between a spouse and a husband. Under these laws there is explicit spotlight on the part of maintenance after separation. Maintenance means the sum which is paid to the spouse after separation for her food and prosperity, livelihood.

According to the Hindu Marriage Act, Maintenance is the spouse offering monetary help for his better half’s everyday costs. For the most part, it’s the spouse as well as the kids and her parents are similarly qualified for getting monetary assistance from the father or Husband or Son-in-law.

Provisions in the Section 125 of the Criminal Procedure Code (CrPC), 1973 that give the right to claim maintenance for ignored persons to apply for maintenance, especially a wife in India.

According to the Law certain set of rules have to be followed for providing a specified amount of maintenance.

 

Maintenance Rights of a Woman – after a Divorce in India
The laws and rules for Maintenance are different for different religions in India
The court fixes the maintenance based on the monthly income of the Spouse, his / her financial status. From the right to the residence at the house of her husband to have an equal share in the property, a legally wedded wife enjoys many rights.

As per the maintenance laws & rights, The Maintenance Laws & Rights are bounding upon the husband to pay his wife Payment in Monthly terms Or a one time lump-sum Payment which is Maintenance. This can be paid before or after divorce or during the pendency of the divorce. The amount of maintenance is either decided by a mutual settlement between the husband and wife, or in accordance with the order received from the court. The women have all the right to claim Maintenance in India.

CONCEPT OF MAINTENANCE:
The right to claim maintenance is a right recognised under different laws in India, each one is different from other in main and another particulars. The child, wife, aged parents, divorced wife, other near relations must obtain some subsistence for themselves. Maintenance in most cases is due to the fact of marriage. Family tie and family obligations of more or less pressing type, call for the need of maintenance. Litigations to obtain maintenance take the shape of legal battles in various countries, so also in India Government tries to solve the problem by way of certain Acts passed in the legislature. Statutory enactments try to solve the problem for mitigating the hardships of unemployed wife, children, old and infirm parents who are unable to maintain themselves, obviously, for the reason that they have no income of their own. The anti-vagrancy measures adopted by government of India can be better utilized at the initiative of victims and for this, people in general should be legally conscious and active to obtain their statutory benefits. Maintenance provisions among various communities in India are enshrined mainly (a) in the personal laws of Hindu and Muslims who constitute the bulk population in India and also (b) in the Code of Criminal Procedure, 1973.

MAINTENANCE UNDER VARIOUS LAWS
a. Maintenance under Hindu Law.
b. Maintenance under Muslim Law.
c. Maintenance under Christian Law.
d. Maintenance under Parsi Law.
e. Maintenance under Code of Criminal Procedure 1973.
f. Maintenance under Protection of women from Domestic violence Act, 2005.
g. The Maintenance and Welfare of Parents and Senior citizens Act, 2007.

Persons entitled to receive maintenance
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‟. The remedy under Section 125 is prompt and inexpensive, as compared to personal laws. The provision relating to maintenance under any personal law is however, distinct and separate from Section 125. There is no conflict between both the legal provisions. A person is entitled to maintenance under Section 125 despite having obtained an order under the applicable personal law. The Act predict certain positions in which it may become unbearable 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.

There is a misapprehension that a working woman is not entitled to profess maintenance as she is earning and is thus able to maintain herself. The Indian courts have recognized the right of maintenance of a working woman and held that an estranged woman can claim maintenance from her husband even is she earns a monthly income, which is not enough for her to maintain herself. Thus, earning wife is entitled to maintenance under maintenance law for wife in India. The issue of right to maintenance to the second wife has been faced by various High Courts as well as the Supreme Court, and the courts have given different views depending upon the facts and situations of each case, thus giving diverse interpretation to the expression “wife” under Section 125 of the Code of Criminal Procedure. 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.

 

Rights of a Wife during Divorce

Streedhan Right: The property, money, gold or other things which a wife gets during themarriage is called Streedhan. Dowry is not Streedhan, The gifts which she receives before or after marriage is called Streedhan. The women has 100% rights over Streedhan if the Streedhan is still with the husband or in-laws.

Maintenance Rigts from Husband: A Hindu wife is entitled to claim maintenance in cases such as cruelty, desertion, polygamy or has any veneral diseas. She can also claim Permanent Alimony and Maintenance for herself and her children.

Live life with dignity and self-respect: Living a Life with full dignity is her Right, free from any mental or physical torture.

Maintenance for Children Right: If the Wife is not earning than the hust should provide her with monetary support, and also financial support for the children.

Types of Maintenance under Hindu Laws
Under the Hindu maintenance laws, there are 2 types of maintenance that can be claimed by the wife. When the wife files a maintenance petition through her divorce attorney, the burden to declare his income shifts to the husband, who has the right to defend the maintenance petition.

The types of maintenance under Hindu laws are as follows:

1.Interim Maintenance:
When the wife files a maintenance petition, the court may award her interim maintenance that the husband must pay from the date on which the application was filed by the wife till the date of dismissal through her divorce law advocate. It is also known as Maintenance Pendente Lite and is paid so that the wife can pay for the legal expenses incurred by her. Interim maintenance is awarded by the court if the wife 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 wife to sustain during the proceedings. Section 24 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.

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 25 of the Act states that the court can order the husband to pay maintenance to his wife in form of a lump sum or monthly amount for her lifetime. However, the wife may not be eligible for maintenance if there are any changes in her circumstances.

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.

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.
● She has remarried after the divorce.

Calculation of Maintenance under Hindu Laws
The amount of maintenance to paid depends upon different factors. The courts rely on the provision of Section 23 of the Act while asserting the total maintenance that the husband needs to pay to his wife. The provision lays down the following factors that must be considered to fix a maintenance amount:
● The position and status of the husband and wife,
● Whether the wife has an actual claim for maintenance.
● If the wife is living separately, whether the reason to do so is justified.
● The wife‟s total property and income.
● The husband‟s total property, income generated from this property, and his other income.
● The total number dependents and their expenses borne by the husband. The personal expenses of the husband.

Alimony, maintenance and dower
The English concept of alimony has been adopted in the Indian Divorce Act, 1869. The matrimonial court has the power to pass orders for permanent as well as temporary alimony irrespective of the fact whether the petition is filed by the husband or the wife. Section 36 lays down that the amount of alimony pendente lite in no case can exceed one-fifth of the husband’s average net income for three years next preceding the date of the order. Order for temporary alimony can be made in all the four matrimonial causes. Orders for permanent alimony can be made only in matrimonial causes of judicial separation and divorce. Such claim can be made only when a decree granting judicial separation or divorce is made. The court has power to secure to the wife such gross sum of money or such annual sum of money as having regard to her other resources, if any, to the ability of the husband, and to the conduct of the parties, it thinks reasonable. The court has also power to make an order requiring the husband to pay to the wife such monthly or weekly sum for her maintenance and support as the court may think reasonable. The court also has power to modify the orders subsequently on sufficient cause being shown. Substantially the same provisions relating to alimony pendente lite and permanent alimony are found in the Parsi Marriage and Divorce Act. Section 40 specifically lays down that orders for permanent alimony shall remain effective only so long as wife remains chaste and unmarried. The Parsi matrimonial court has also the power to require ‘a proper instrument to be executed by all necessary parties and suspend the pronouncing of its decree until such instrument’ is executed.

The English concept of alimony implies that an order can be passed against the husband. It can never be passed against the wife, with one exception, namely, when the wife obtains a decree on the ground of husband’s insanity. The term permanent alimony is used when orders are passed against the husband in proceedings for judicial separation. The term ‘maintenance’ is used when orders are passed against the husband in proceedings for divorce. English law has now extended this provision in respect of nullity proceedings also. Such orders can be passed only after a decree has been made absolute. The Indian Parliament while enacting the Special Marriage Act deemed it proper to make the provision applicable to all matrimonial causes. Under the Hindu Marriage Act orders can be passed not merely against the husband but also against the wife. What amount of temporary and permanent alimony is to be fixed is left to the discretion of the court. The court is required to take into consideration all factors, such as incomes and property of both the parties, ability to pay and the conduct of the parties. Such payments can also be secured, if necessary, by a charge on immovable property. Such orders can be varied, modified and rescinded on change of circumstances being shown by either party. Orders for permanent alimony and maintenance may be rescinded if it is shown that the party in whose favour such orders were made has remarried or is leading an immoral life. In both the enactments permanent alimony is called “permanent alimony and maintenance”.

There has been nothing like alimony and maintenance in Muslim law. After the dissolution of marriage the obligation to maintain continues during the period of iddat. On the completion of iddat, the husband has no obligation whatsoever to provide maintenance to the wife. The reason seems to be the existence of another provision in Muslim law, namely, dower (mahr). Mahr is an integral part of every Muslim marriage, whether or not agreed upon before or after the marriage and it is implied in every marriage. Even when it is not specified, the wife is entitled to proper dower (mahr-imisi). She is entitled to mahr-i-misi even if marriage is contracted with the express stipulation that she would not claim any such sum. In determining what is proper dower, regard is usually had to the amount of dower settled upon other women in her father’s family. Mahr is defined as ‘a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage’. However, it should be noted that the word ‘consideration’ is not used in the sense it is used in the law of contract. A marriage without any stipulation of dower is valid. The amount of dower is usually split into two, prompt which is payable on demand immediately after marriage and deferred which is payable on the dissolution of marriage. Where it is not split up into two, the Shia law holds that the whole amount is payable as prompt dower, while Sunni law regards part as prompt and part as deferred. The wife has power to remit the whole or any part of the dower. The dower is recoverable as debt and the wife can sue for it, and, after her death, her heirs can sue for it. However, dower is not a secured debt. But if she is in possession of property of her deceased husband, she can retain possession till her dower is paid. The moment she is paid the amount, the right is extinguished. She is accountable for rents or profits of the property during the period she has been in possession. The Supreme Court decision in Shah Bano’s3s case was subject to a prolonged agitation by Muslim fundamentalists, resulting in the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is claimed, inter alia, that the Muslim women would get much more under the Act than section 125 of the Code of Criminal Procedure, 1973 and that the Act should be welcomed as the first step towards codification.

The Preamble of the Act spells out the objectives 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 provisions for matters connected therewith or incidental thereto. It is apparent that the Act no where stipulates that any of the rights available to the Muslim women at the time of enactment of the Act, has been abrogated, taken away or abridged.

The Act lays down that a divorced woman is entitled to have a reasonable and fair provision of maintenance from her former husband, and the husband must do so within the period of iddat and his obligation is not confined to the period of iddat. If she fails to get maintenance from her husband, she can claim it from relatives, failing which, from the Wakf Board. An application of the divorced wife can be disposed of under the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973, if the parties so desire. Applications pending under section 125 of the Code
are required to be disposed of under the Act.40

There is no provision in the Act, which nullifies order passed under section 125 of the Code. The Act also does not take away any vested right of the Muslim women. The provision is made under the Act and the rules framed thereunder for the expeditious disposal of applications, and hearing should be ordinarily, continued from day-to-day. All obligations of maintenance end with her marriage. 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.