Maintenance

The concept of ‘maintenance’ in India is covered both under Section 125 of the Code of Criminal Procedure, 1973 (Section 125) and the personal laws. This concept further stems from Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (the 'Constitution'). Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing and shelter, being typically available to the wife, children and parents. It is a measure of social justice and an outcome of the natural duty of a man to maintain his wife, children and parents, when they are unable to maintain themselves.1 The object of maintenance is to prevent immorality and destitution and ameliorate the economic condition of women and children.

Application:-

This Act applies to Hindus and all those considered under the umbrella term of Hindus, which includes:

1.a Hindu by religion in any of its forms or development;

2.a Buddhist, Jain or Sikh;

3.a child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains or Sikhs;

4.a child legitimate or illegitimate one of whose parents are Hindus, Buddhists, Jains or Sikhs and has been so brought up;

5.an abandoned child, legitimate or illegitimate of unknown parentage brought up as a Hindu, Buddhist, etc.; and

6.a convert to the Hindu, Buddhist, Jain or Sikh religion.

 Maintenance of wife.-

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her.

(b) if has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injuries to live with her husband.

(c) if he is suffering from a virulent form of leprosy.

(d) if he has any other wife living.

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.

(f) if he has ceased to be a Hindu by conversion to another religion.

(g) if there is any other cause justifying living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Amount of maintenance.-

(1) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the court shall have due regard to the considerations set out sub-section (2), or sub-section (3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be award to a wife, children or aged or infirm parents under this Act, regard shall be had to –

(a) the position and status of the parties.

(b) the reasonable wants of the claimant

(c) if the claimant is living separately, whether the claimant is justified in doing so,

(d) the value of the claimant’s property and any income derived from such property, or from the claimants.

(e) the number of persons entitled to maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to –

(3) In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to –

(a) the net value of the estate of the deceased after providing for the payment of his debts.

(b) the provisions, if any, made under a will of the deceased in respect of the dependant.

(c) the degree of relationship between the two.

(d) the reasonable wants of the dependants.

(e) the past relations between the dependant and the deceased.

(f) the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other source.

(g) the number of dependants entitled to maintenance under this Act.