Maintenance is an amount payable by the husband to his wife who is unable and incapable to maintain herself upon separation or divorce.
The amount of maintenance is either fixed by the Court or it is agreed mutually between the parties before finalizing the divorce.
Maintenance under Secular Law
Section 125 of Code of Criminal Procedure, 1973 gives effect to the fundamental and natural duty of a man to maintain his wife. Section 125 provides a statutory right and cannot be affected by personal law.
Maintenance under Hindu Law
Under the Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 a divorced woman has a right to claim maintenance from her husband.
Maintenance under Muslim Law
- The law that governs the maintenance under Muslim Law is the Muslim Women (Protection of Rights on Divorce) Act, 1986
- Under muslim law the term used for maintenance is “Nafaqa”.
- The husband is liable to maintain his wife under the Muslim personal laws law despite the fact whether the wife has sufficient means to maintain her or not.
- Under the muslim law the husband is supposed to maintain the wife during the Iddat period.
- Iddat refers to the period of chastity a woman is required to observe after her divorce. The period extends to 3 months.
- In case the woman was expecting a child during the divorce, then the wife is entitled to maintenance for at least 2 years from the date of birth of child.
Maintenance under Christian Law
Maintenance under Christian law is governed by Indian Divorce Act, 1869.
The maintenance law under the Christian laws prescribes that the maintenance to a divorced woman can not exceed one fifth of the total estate of the husband. Provided, the wife does not remarry and stay chaste.
Maintenance under Parsi Law
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.
Where an application for maintenance 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.
Grounds on which maintenance can be refused
- The wife must not be living in adultery- If the wife is committing adultery i.e. lives in a quasi-permanent union with the man with whom she is committing adultery, then she is not entitled to receive any interim allowance or maintenance. She can’t even ask for expenses of proceedings
- Wife must not refuse without sufficient reasons to live with her husband- A wife is not permitted to receive for her refusal. The reason can vary from case to case considering the circumstances. Also, if the husband has tapered marriage with another woman or keeps a mistress, this would be considered as a just ground for her refusal to live with him.
- The wife has re married after getting divorce.