Maintenance Acts
The object of this provision is to provide a summary remedy to the dependent wife, children, and parents from destitution and to serve a social purpose. The right under these provisions cannot be defeated by anything in the personal law of the parties.
WHO IS ENTITLED TO MAINTENANCE
- Wife if she is unable to maintain herself,
- Legitimate or illegitimate minor child, whether married or not, who is unable to maintain himself or herself
- Father or mother who is unable to maintain himself or herself,
RELIEF AVAILABLE
Where a person having sufficient means refuses or neglects to maintain the persons eligible as above:
A Magistrate of the First Class may, upon proof order such person to pay a monthly allowance at the rate not exceeding RS. 500 on the whole.
In case of a minor female married child the Magistrate may order the father to pay such maintenance, until she attains the age of majority, if the Magistrate is satisfied that the husband of such minor female child is not possessed with sufficient means.
“Minor” means a person who has not completed the age of 18 years.
“Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
WHERE TO FILE THE APPLICATION
The application for maintenance may be filed in the district where
- He is, i.e. where he works for gain or;
- He or his wife resides, or;
- Where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
LIMITATION
There is no period of limitation prescribed for making an application for maintenance.
EXCEPTIONS
No wife shall be entitled to receive an allowance from her husband if:
- She is living in adultery, or
- Without any sufficient reason she refuses to live with her husband, or
- They are living separately by mutual consent.
However if the husband has married another woman or keeps a mistress, it shall be considered to be just ground for the wife’s refusal to live with him.
Maintenance – For Hindus
DURING PENDENCY OF PROCEEDINGS
When either the wife or the husband has no independent income for his or her support and for the necessary expenses of the proceedings, an application can be made either by the husband or wife to the court and the court may order the respondent to pay the expenses of the proceeding and such sum as maintenance as the court seems reasonable.
PERMANENT ALIMONY AND MAINTENANCE
The Court may at the passing of any decree or any time subsequent thereto, may on the application of the parties order the non-Applicant, to pay to the Applicant for the maintenance and support. The maintenance may be in a gross sum or on periodical or monthly basis. In no case, the maintenance shall be payable beyond the life of the non-Applicant. The income and property of the non-Applicant shall be considered while determining the permanent alimony Besides this the wife only has an alternate remedy in terms of maintenance under Section 125 under Criminal Procedure code to the extent of a maximum of Rs. 500 per month.
Hindu Adoptions And Maintenance Act, 1956
The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others has held that if the divorced woman is able to maintain herself, the husband’s liability ceases with the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to maintenance under section 125 of the Code of Criminal Procedure. This led to controversy as to the obligations of the Muslim husband to pay maintenance to the divorced wife.
The Muslim Women (Protection of Rights on Divorce)
OPTION TO BE GOVERNED BY CODE OF CRIMINAL PROCEDURE
If a divorced woman and her former husband declare, by affidavit or any other declaration in writing, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.
| Muslim Women(Protection of Rights on Divorce) Act 1986 | Section 125 Code of Criminal Procedure | |
|---|---|---|
| Jurisdiction | Application is filed in the area where divorced woman resides | Application where the husband is, or resides or where he last resided with his wife |
| Relief available | Reasonable and fair provision and maintenance, or the amount of mahr or dower paid, all properties given at the time of marriage or after marriage. If unable to maintain herself, after Iddat period relatives ordered to pay maintenance and if no relatives exist then Warf board pays. | Allowed a monthly allowance, not exceeding Rs.500. No provision for maintenance by children, relatives or Wakf Board after Iddat period. |
| Punishment on failure to pay | Imprisonment which may extend to one year. | Imprisonment which may extend to one month. |
| Applies to | Only to divorced woman | To every married or divorced woman. |
| Alteration /allowance | No such Provision. | On change of circumstances Alteration maybe made. |
| Maintenance after Iddat | Woman to be maintained by her children or parents or relatives or the Warf board. | No such provision. |
A divorced woman means a Muslim woman who was married according to Muslim law, and has been divorced by, or obtained divorce from her husband in
accordance with Muslim law. –
Iddat period means in the case of a divorced woman –
i.three menstrual courses after the date of divorce, if she is subject to menstruation; and
ii.three lunar months after her divorce, if she is not subject to menstruation; and
iii.if she is pregnant at the time of her divorce, the period between the divorce and delivery of her child or the termination of her pregnancy whichever is earlier.
RIGHTS
A Muslim woman at the time of divorce is entitled to the following
a. reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
b. Where she herself maintains the children born to her before or after her divorce, reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
c. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
d. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
e. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
f. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
APPLICATION
Where
- A reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or
- The properties referred to above have not been delivered to a divorced woman on her divorce,
She or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.
Where an application has been made by a divorced woman and the Magistrate is satisfied that-
a.her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
b.the amount equal to the sum of mahr or dower has not been paid; or
c.that the properties have not been delivered to her,
He may make an order, within one month of the date of the filing of the application, directing her former husband to:
- Pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be
- Make an order for the payment of such mahr or dower or
- The delivery of such properties as referred to above to the divorced woman.
FAILURE TO PAY
If any person against whom an order has been made fails without sufficient cause to comply with the order, the Magistrate may
- Issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure and
- May sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.
FAILURE TO MAINTAIN HERSELF AFTER IDDAT PERIOD
Where the Magistrate is satisfied that
- A divorced woman has not re-married and
- Is not able to maintain herself after the iddat period,
He may make an order directing such of her relatives who would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order.
WHERE THERE ARE CHILDREN
Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:
WHERE PARENTS ARE UNABLE TO PAY
If any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him, be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.
WHERE DIVORCED WOMAN HAS NO RELATIVES
Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or any one of them have not enough means to pay the maintenance ordered by the Magistrate, the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the woman resides,
- To pay such maintenance as determined by him or,
- As the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as be may specify in his order.