The Concept of Spousal Maintenance under Hindu Law

By Harish Khan 18 Minutes Read

Introduction

The responsibility to provide maintenance for aged parents, a virtuous wife, and an infant child must be upheld, even if it requires performing numerous misdeeds (Mani).

The provisions of maintenance under the Code of Criminal Procedure, 1973, and the Hindu Adoptions and Maintenance Act, 1956, are independent. Additionally, the right to maintenance under the Hindu Marriage Act, 1955 is separate and not governed by the Hindu Adoptions and Maintenance Act, 1956. Consequently, a claim for maintenance under the Hindu Marriage Act, 1955, cannot be dismissed merely because the claimant is receiving maintenance under the Hindu Adoptions and Maintenance Act, 1956. However, such facts can be considered when determining the maintenance amount.

While either spouse may seek maintenance under the Hindu Marriage Act, only the wife is entitled to claim maintenance under the Code of Criminal Procedure, 1973, and the Hindu Adoptions and Maintenance Act, 1956

Provisions for Maintenance under the Hindu Marriage Act, 1955

Under the Hindu Marriage Act, the Court may order maintenance in two situations:

1. For interim (pendente lite) maintenance and expenses during the legal proceedings under Section 24[1].

2. For permanent maintenance and alimony under Section 25[2].

Section 24: Interim Maintenance

• A spouse (husband or wife) may request interim maintenance for their personal needs and the expenses of the proceedings, provided they demonstrate they lack sufficient independent income for maintenance or to cover legal expenses.
• The Court may then order the respondent to pay an amount that it deems reasonable, considering the incomes of both parties. If the respondent has no means, the Court is not obligated to set any maintenance amount.
• The 2001 Amendment Act introduced a provision requiring that applications for interim maintenance be resolved, where possible, within 60 days of service of notice.
• In deciding interim maintenance, the applicant’s conduct is irrelevant, including allegations of adultery. The Court considers factors such as the incomes of both parties, the number of dependents, and any other relevant circumstances.
• Support from relatives or friends is not a valid reason to deny maintenance. The Court may not withhold maintenance to force reconciliation, as this would be an abuse of power.
• Applications under Section 24[3] can be made before or after filing the written statement. The respondent cannot avoid their obligation to provide interim maintenance by withdrawing their petition in the matrimonial case.
• Interim maintenance can be awarded from the petition date until the case is resolved. Once the case is dismissed, no further claim for interim maintenance is valid.
• As established in Rita Mago v. V.P. Mago[4], interim maintenance orders can only be made. At the same time, the proceedings are ongoing, not after the trial is completed or a decree is issued.

Section 25: Permanent Maintenance

• Under Section 25(1)[5], either spouse may apply for permanent maintenance and alimony, which the Court can grant when passing a decree or anytime thereafter. The Court may order the payment of a lump sum or periodic payments, considering the incomes, conduct, and other relevant circumstances. Typically, a fifth of the husband’s income is awarded as maintenance to the wife, factoring in any income the wife may have.
• This right to maintenance under Section 25[6] is statutory, meaning a spouse cannot contract out of it. Even if the spouses agree to waive the right to maintenance, the Court retains the authority to award it.
• The Court can award maintenance even if the petition is dismissed, as the words “any decree” in Section 25[7] include decrees of nullity (void or voidable), divorce, judicial separation, or restitution of conjugal rights. Therefore, a wife from a void or voidable marriage is still entitled to maintenance.
• In cases where a marriage is deemed bigamous, although illegal, it is not considered immoral for awarding maintenance. Thus, even in cases of a void marriage due to an earlier subsisting marriage, the affected spouse is entitled to maintenance, as affirmed in Ramesh Chandra Daga v. Rameshwari Daga[8].
• A spouse is generally entitled to maintenance that allows them to maintain the standard of living they were accustomed to before the marriage’s breakdown. The husband’s inability to find employment or the fact that the wife is supported by her family or is capable of working is not sufficient grounds to deny maintenance. However, no maintenance will be awarded if the claimant has sufficient independent means.

Modification and Rescission of Maintenance Orders

• Under Section 25(2)[9], the Court may modify or discharge a maintenance order if circumstances change, such as a significant reduction in the respondent’s income or an increase in the claimant’s expenses. Under Section 25(3)[10], the Court may rescind the order if the recipient has remarried or, in the case of a wife, has not remained chaste or if the husband has committed adultery.
• If the parties resume cohabitation after a maintenance order in a case of restitution or judicial separation, the order becomes void. However, this does not apply in cases of divorce or nullity. The maintenance order also ends upon the death of the non-claimant spouse.

Provisions for Maintenance under the Criminal Procedure Code, 1973

• Section 125[11] of the Cr.P.C. provides that if a person with sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order that person to pay a monthly allowance for her maintenance. This amount was previously capped at Rs. 500 per month, but following Amendment No. 50 of 2001, there is no longer a maximum limit. The Magistrate may determine the amount as deemed appropriate.
• Additionally, if the person offers to maintain his wife on the condition that she resides with him and refuses, the Magistrate can consider her reasons for refusal. If the Magistrate finds her refusal justified, an order for maintenance may still be issued.
• Explanation: The term “wife” includes a woman who has been divorced by or has obtained a divorce from her husband, provided she has not remarried.
• If the husband has entered into another marriage or keeps a mistress, it is considered a justifiable reason for the wife to refuse to live with him. However, no wife is entitled to maintenance if she is living in adultery or if she unjustifiably refuses to live with her husband. If the couple is living separately by mutual consent, the wife is not entitled to maintenance.
• In the case of Ramesh Chandra v. Vena Kaushal[12], the Supreme Court held that the duty to maintain one’s wife, children, and parents is an independent obligation, as they each have independent rights. The phrase “in the whole” refers to individual maintenance claims, not all claimants collectively. Therefore, each claimant is entitled to Rs. 500 in maintenance rather than the total shared among all claimants.
• The term “wife” in this context refers only to a legitimate, legally wedded wife. Therefore, a marriage that is proven to be illegal does not grant the woman any right to maintenance.
• A second wife, or a woman living as a “wife,” is not entitled to maintenance (Yamunabai v. Ranantrao[13]).
• If the marriage is void or annulled under Section 12 [14]of the Hindu Marriage Act, the wife is not entitled to maintenance (Krishna Gopal v. Usha Rani[15]).

Provisions for Maintenance under the Hindu Adoptions and Maintenance Act, 1956

Duty of the Hindu Husband to Maintain His Wife: Under the Hindu Adoptions and Maintenance Act (HAMA), 1956, a Hindu husband is legally bound to maintain his wife throughout his lifetime. This obligation is a personal and legal duty arising from the marital status.

According to Section 3(b)[16] of the Act, the term “maintenance” includes:

1. Provision for food, clothing, residence, education, and medical treatment in all cases.

2. In the case of an unmarried daughter, the reasonable expenses related to her marriage.

Maintenance of Wife (Section 18)[17]

• Clause (1)[18]: A Hindu wife, whether married before or after the commencement of the Act, is entitled to be maintained by her husband for her entire life, provided she continues to live with him. However, a wife who has ceased to be a Hindu is not eligible for maintenance. Interestingly, even an unchaste wife who lives with her husband is still entitled to claim maintenance.
• Clause (2)[19]: A Hindu wife may live separately from her husband without forfeiting her claim to maintenance under certain conditions:
  • If the husband is guilty of desertion or wilfully neglecting her.
  • If the husband treats her with cruelty, causing a reasonable apprehension of harm or injury.
  • If the husband suffers from a virulent form of leprosy.
  • If the husband has another wife living.
  • If the husband keeps a concubine in the same house or resides habitually with a concubine elsewhere.
  • If the husband has ceased to be a Hindu by conversion to another religion.
  • For any other justifiable reason.
• Clause (3): A wife forfeits her right to separate residence and maintenance if she is unchaste or converts to another religion.
• The Act repealed the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946, and established guidelines under Section 18(2)[20] for separate residence and maintenance. The right to maintenance is not absolute. For example, a wife can claim separate residence and maintenance if her husband has another living wife, irrespective of her prior consent to the second marriage. Additionally, the legality of both marriages is essential for the claim to be valid.
• The concept of “reasonable cause” as under Section 13(1)[21] and Section 9(1)[22] of the Hindu Marriage Act is mirrored in Section 18(g)[23] of Hindu Adoptions and Maintenance Act. It allows a wife to claim maintenance when living separately if her reasons align with those where the Court may refuse a husband’s petition for the restitution of conjugal rights.  A husband’s refusal to comply with a restitution decree allows the wife to claim maintenance. However, minor issues such as a husband’s drinking habits may not suffice as grounds for separate residence and maintenance.
• Divorce Grounds Based on Maintenance: While the failure of a husband to maintain his wife is not a direct ground for divorce under Hindu law, if an order granting maintenance is passed under HAMA or Section 125[24] of the Criminal Procedure Code and cohabitation does not resume for a year or more, it may serve as a valid ground for divorce under Section 13(2)[25] of the Hindu Marriage Act.

Concept of Palimony (Maintenance for Partners in Live-in Relationships)

• The concept of palimony, which involves granting maintenance to a partner in a live-in relationship, is still evolving in India. Courts have taken differing views on whether a woman in a live-in relationship is entitled to maintenance. For example:
• The Gujarat High Court[26] has ruled that a live-in partner cannot claim maintenance, which would legitimize bigamy.
• The Bombay High Court in Ranjana Kejriwal v. Vinod Kejriwal[27] distinguished between “no marriage at all” and “void marriage,” denying maintenance to an unmarried partner.
• However, the Delhi High Court in Narinder Chawla v. Manjeet Chawla[28] took a different view, stating that if a woman is in a long-term relationship with a man who has not disclosed his earlier marriage, she is entitled to maintenance.
• In D. Velusamy v. D. Patchaiammal[29], The Supreme Court of India considered the concept of palimony as developed in some U.S. jurisdictions. The Court noted that in the U.S., “palimony” refers to maintenance granted to a woman who has lived with a man for a substantial period without marriage and is later deserted. Although there is no statutory basis for palimony in the U.S., some courts have recognized it based on implied or constructive contracts between the parties.

Maintenance of Widowed Daughter-in-law (Section 19)[30]

A widowed Hindu daughter-in-law is entitled to maintenance from her father-in-law, provided she has no means of support from her own earnings, property, or the estate of her husband, father, or mother. However, this obligation is conditional. It cannot be enforced if the father-in-law lacks sufficient means or if the daughter-in-law remarries.

Amount of Maintenance and Court’s Discretion (Section 23)[31]

The Court has discretion in determining the amount of maintenance to be awarded. Factors considered include:

i. The status and position of the parties.

ii. The reasonable needs of the claimant.

iii. Whether the claimant is justified in living separately.

iv. The value of the claimant’s property or income and any other sources of income.

v. The number of persons entitled to maintenance.

The amount of maintenance can be revised if there is a significant change in circumstances[32].

[1] The Hindu Marriage Act, 1955, s. 24.

[2] Id. at s. 25.

[3] Supra at 1.

[4] 20 (1981) DLT 103.

[5] The Hindu Marriage Act, 1955, s. 25(1).

[6] Supra at 2.

[7] Ibid.

[8] AIR 2005 SC 422.

[9] Section 25(2) of the Hindu Marriage Act, 1955, s. 25(2).

[10] Id. at 25(3).

[11] The Criminal Procedure Code, 1973, s. 125.

[12] AIR (1978) SC 1807.

[13] 1988 AIR 644.

[14] The Hindu Marriage Act, 1955, s. 12.

[15] 1982 CRI LJ 901.

[16] The Hindu Adoptions and Maintenance Act, 1956, s. 3(b).

[17] Id. at s. 18.

[18] Id. at s. 18(1).

[19] Id. at s. 18(2).

[20] Ibid.

[21] The Hindu Marriage Act, 1955, s. 13(1).

[22] Id. at s. 9(1).

[23] The Hindu Adoptions and Maintenance Act, 1956, s. 18(2)(g).

[24] Supra at 11.

[25] The Hindu Marriage Act, 1955, s. 13(2).

[26] AIR 2009 Bom. 176.

[27] AIR 1997 BOM 300.

[28] AIR 2008 Del. 7.

[29] AIR 2011 SC 479.

[30] Section 19 of the Hindu Adoptions and Maintenance Act, 1956, s. 19.

[31] Id. at s. 23.

[32] Id. at s. 25.

Harish Khan

This is Harish Khan, Enrolled as an Advocate with the Bar Council of Delhi. Currently, working as Legal Manager at Blackbull Law House. Pursued B.B.A. LL.B (Hons) Specialised in Business Laws from Himachal Pradesh National Law University, Shimla [H.P]. completed LL.M Specialised in Business Laws from Amity University, Lucknow [U.P].