Maintenance is amount payable by the husband to his wife who is unable to maintain herself during the continuance of marriage or even after separation by obtaining a decree of divorce. It includes provisions for food, clothing, residence, medical attendance and treatment. The quantum of maintenance is either determined by the courts or can be mutually decided by the parties themselves. The quantum is determined keeping the above named factors in mind but is not just limited to it; the court also look into other factors such as education, standard of living, existence of children while determining the maintenance.
The Indian legal system has various personal and secular laws governing the law of maintenance. They are:
- for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956
- for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986
- for Parsis – Parsi Marriage and Divorce Act, 1936
- for Christians – Divorce Act, 1869
- secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954
Apart from these there are other special secular laws containing the provision of maintenance. They are:
- Maintenance to women who has suffered domestic violence, under the Protection of Women from Domestic Violence Act, 2005.
Maintenance under Criminal Procedure Code
Section 125 of the Code of Criminal Procedure contains
the provision of maintenance. Under section125 CrPC following people if are
unable to maintain themselves can claim maintenance by filing an application to
a) Wife including a divorced woman who has not remarried and is not living in adultery.
b) Minor Children, both legitimate and illegitimate.
c) Disabled major children not being a married daughter.
WHO CAN CLAIM MAINTENANCE
This section provides for maintenance not only to the wife but also to child and parents. Court may order a husband who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself to provide monthly maintenance to her.
THE APPLICATION CAN BE FILED
An application for maintenance under Section 125 Cr.P.C. can be filed before a Judicial Magistrate of First Class in the district where the husband or the wife resides or where they used to reside.
The magistrate can, during the pendency of the proceeding under S.125 pass an order for interim maintenance to be paid monthly to the person unable to sustain themselves. The magistrate may also pass an order regarding the interim expenses of proceeding.
Where an application for interim maintenance is made before the magistrate it shall be as far as possible be disposed of within sixty days from date of service of notice of the application.
WHEN NOT ENTITLED TO CLAIM MAINTENANCE
Wife shall not be entitled to receive maintenance if she is living in adultery, or refuses to live with husband without any sufficient reasons, or living separately with mutual consent.
Maintenance under Domestic Violence Act
The Protection of Women from Domestic Violence Act is a civil law which was enacted to protect the women from being the victims of domestic violence and to prevent the occurrence of domestic violence in the society. It being a civil law contains the provision of providing maintenance to woman aggrieved of domestic violence. It is not the maintenance per se that is granted by the court under the DV Act, it is the monetary relief which is granted to the aggrieved and such monetary relief may or may not include provision of maintenance.
Section 20 of the
Domestic Violence Act which deals with monetary relief contains the provision
of maintenance. An aggrieved women and her child can claim monetary relief from
the respondent for the losses suffered due to domestic violence. Such relief
may include but is not limited to:
a) the loss of earning;
b) the medical expenses;
c) loss caused due to destruction/damage/removal of any property in the control of the aggrieved person;
d) maintenance for aggrieved person as well as her children including or in addition to maintenance under S.125 CrPC or any other law.
WHO CAN CLAIM MAINTENANCE
Any women and her children who while being in a domestic relationship has been subjected to domestic violence can file an application to magistrate for maintenance under section 12 r/w section 20 of the DV Act.
WHERE THE APPLICATION CAN BE FILED
An application for maintenance under Section 12 r/w S.20 of the DV Act can be filed before a Judicial Magistrate of First Class or the Metropolitan Magistrate within the local limits of which:
1. The person aggrieved permanently or temporarily resides or carries on business or is employed.
2. The respondent resides or carries on business or is employed.
3. Where the cause of action arose.
On an application under S.23 of DV Act the magistrate can pass an order of interim maintenance during the pendency of the proceedings before it if it is satisfied that there is a prima facie case in favour of the aggrieved. The magistrate in such a case may also grant an ex parte order upon an affidavit of the aggrieved person against the respondent.
DETERMINING THE AMOUNT OF MAINTENANCE
Section 20(2) of the DV Act states that the monetary relief shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The court also looks into other factors while determining the quantum of maintenance such as education qualification of the parties, their income and expenditures as per the income affidavit and also their dependency upon others. Maintenance granted under any other law can also be taken into consideration and the magistrate can make addition to the existing maintenance.
WHEN NOT ENTITLED TO CLAIM MAINTENANCE
A wife may not be entitled to claim maintenance if it is proved that she has sufficient means and income to maintain herself or that the case of Domestic Violence is not maintainable.
Overlap between S.125 Cr.P.C. and D.V Act
Proceedings under DV Act and under Section 125 CrPC are independent of each other. However while deciding the application for maintenance under the DV Act, maintenance fixed under S.125 CrPC shall be taken into account, therefore, giving some space for overlapping. The court after considering the maintenance so fixed can either maintain the status quo or enhance the maintenance amount. However it does not mean that mere passing of a ‘maintenance’ order under Section 125 of the Code of Criminal Procedure bar an ‘aggrieved person’ from seeking appropriate reliefs under the Protection of Women from Domestic Violence Act, 2005.
In Nikhil Danani v. Tanya Banon Danani (2019)DHC , The Delhi High Court observed that “While Section 125 CrPC talks only of maintenance, Section 20 DV Act stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of the domestic violence including but not limited to loss of earning, medical expenses, loss caused due to destruction, damage or removal of any property from the control of aggrieved person”
In Juveria Abdul Majid Khan Patni Vs Atif Iqbal Masoori (2014) 10 SCC 736, Supreme Court has held that monetary relief as stipulated under Section 20 is different from maintenance, which can be in addition to an order of maintenance under Section 125 Cr.P.C. or any other law.