Law of Maintenance in India

Family Law-I
Law of Alimony & Maintenance
ASHOK P. WADJE
(Assistant Professor)
© Ashok Wadje Law of Maintenance

LAW OF ALIMONY & MAINTENANCE
❖ General:
➢ Personal Obligation-Duty-Legal Right
➢ Principle of Natural Justice
➢ Word “Maintenance” is of wide connotation.
Section 3(c) of the Hindu Adoption & Maintenance Act, 1956
defines the word “maintenance” as:
“in all cases, provisions for food, clothing, residence, education and
medical attendance and treatment;
in the case of an unmarried daughter, also the reasonable expenses of
and incident to her marriage.”

➢ Alimony may be awarded as a lump sum, for a limited period
or for an indefinite period.
➢ Law of Maintenance differs in Personal & Secular laws since
Personal Laws necessitates “matrimonial litigation” whereas
under Secular Law (Cr.P.C.) it does not require matrimonial
litigation.
➢ So here the position of Law of Maintenance depends upon:
• Matrimonial Litigation (Mixed remedy)
• Without matrimonial litigation (Independent remedy)

Matrimonial Causes & Maintenance therein
• Divorce
• Divorce by Mutual Consent
• Irretrievable Breakdown of Marriage
• Judicial Separation
• Restitution of Conjugal Rights
• Family Arrangements
• Reconciliation
• Domestic Violence.

▪ General discussion about Maintenance
▪ Rationale behind the Law of Maintenance
▪ Law of Alimony & Maintenance
✓ Hindu Law
✓ Muslim Law
✓ Christian Law
✓ Parsi Law
✓ Secular Laws
• Code of Criminal Procedure (Sec.125-128)
• Special Marriage Act, 1954.
▪ Maintenance to Wives, AGED PARENTS & CHILDREN.
▪ Comparative Analysis of Personal & Secular Law of Maintenance.
▪ Guidelines & Considerations:
▪ Legislative
▪ Judicial decisions

▪Inability to earn.
▪Unable to maintain himself
or herself.
▪Ability to earn
▪Competent to earn
▪Dependent
▪Income Assessment
▪Job/Business
▪Sufficient Means
▪Quantum of Maintenance
▪Means of earning
▪Conduct of applicant
▪U/certain circumstances
▪‘Changed’ circumstance
▪Provisions for:
✓ Residence
✓ Kharcha-aye-pandan
✓ Living.
✓ F a i r & R e a s o n a b l e
provision
Crucial Terms

7) Persons entitled
• Wife
• Children (Minor/Major/Married/Insane,
Illegitimate son or daughter, etc)
• Widowed daughter
• Parents & Grand Parents (‘Father’, ‘Mother’,
G’mother and G’father)
• Concubine or Kept or Mistress
• Other relations

7) M & A as an Independent Remedy:
• Review of Personal Laws
• Code of Criminal Procedure
• Muslim Women (Protection of Rights on Divorce)
Act, 1986
8) Maintenance include:
• Residence
• Livelihood
• Property: movable or immovable?
• Money/Cash
• Kind
• Kharcha-aye-pandan

❖ STRUCTURE of ‘Law’ of Maintenance in India:
• Hindu Adoption & Maintenance Act, 1956
• Hindu Marriage Act, 1955.
• Shariyat Act, 1937/Quran/Muslim Women (Protection of
Rights on Divorce) Act, 1986.
• Dissolution of Muslim Marriage Act, 1939.
• Indian Christian Marriage Act, 1872.
• Parsi Marriage & Divorce Act, 1936.
• Section 125 to 128 of Code of Criminal Procedure.
• Maintenance and Welfare of Parents and Senior Citizens
Act, 2007.

❖ Rational behind the of Law of Maintenance:
➢ Failure or Neglect to maintain “someone” who
is in “relation”
➢ Natural duty to maintain.
➢ Equitable or Moral Obligation.

In the case of Bhagwan Dutt Vs. Kamala
Devi (1975 CrLJ 40), it was observed that:
“The object of these (Sec.125 and 126 of
Cr.P.C. provisions is to compel a man to
perform his moral obligations which he
owes to the society in respect of his needy
dependents so that they are not left
beggared and destitute on the scrap heap
of the society thereby driven to a life of
vagrancy, immorality and crime for
subsistence”

❖ Requirements for “Claim” of Maintenance:
● Inability of person to maintain himself/herself.
● Failure or neglect by the person u/obligation.
● Persons must be ‘related’
● Statutory Obligation to maintain
© Ashok Wadje Secular Law of Maintenance

❖ When Maintenance can be claimed…?
● During the subsistence of marriage
● During the pendency of the any Matrimonial
Relief (Maintenance pendent lite).
● After obtaining decree of Divorce.

MAINTENANCE UNDER SECTION 125
OF CRIMINAL PROCEDURE CODE,
1973

❑ Code of Criminal Procedure (Section 125 to 127)
• Refusal/Neglected/Discarded/ Abandoned/ Helpless:
✓ Wives or divorced wives (HUSBAND)
✓ Children (PARENTS)
✓ Parents (CHILDREN)
• Irrespective of their Religion/Nationality/Domicile
• Criminal -Speedy -Summary Procedure.
• Defendant is bound to maintain even though u/Personal
Law he or she has no such obligation (Kariyadan Pokkar
Vs. Kayat beeran ILR 19 Mad. 461)

➢ Objectives:
• Socio, Economic & Moral purpose
• Prohibition of Discrimination on the basis of ‘Sex’ &
‘Religion’
• Protective Discrimination
• Prevention of Criminal activities
• Speedy disposal of case of Maintenance

CHAPTER IX ORDER FOR MAINTENANCE OF
WIVES, CHILDREN AND PARENTS:
▪ Section 125: Order for maintenance of
wives, children and parents
▪ Section 126: Procedure
▪ Section 127: Alteration in allowance
▪ Section128:Enforcement of order of
maintenance.

➢ Section 125:
▪ Sub Sec. (1)
✓ Claimant’s right of Maintenance
✓ Monthly Payment of Maintenance (Quantum)
✓ Proviso (1): Minor Female (married) child’s position
✓ Proviso (2): Interim maintenance & Expenses of
Proceeding.
✓ Proviso (3): Disposal of case within 60 days.
▪ Explanation :
a. Minor
b. Wife
▪ Sub Sec. (2): Date of or Time of Payment of Maintenance,
etc.
▪ Sub Sec. (3): Fine or Sentence in case of breach in

▪ Explanation: If husband Keeps Mistress or marries to
another woman: just cause for the wife to refuse to live
with him.
CANCELLATION OF ORDER: No maintenance to wife:
▪ Sub Sec. (4): No maintenance to wife if :
✓ If they are living separately by Mutual consent
✓ If she is living in adultery
✓ Refuses to live without any sufficient cause.
▪ Sub Sec. (5): Cancellation of Order u/this Section if any of
the grounds mention in Sub Sec. (4) is proved.

❖ FEATURES OF THIS (Section 125) PROVISION:
❶ Uniformity
❷ Prevention of destitute & vagrancy.
❸ Quasi civil proceeding in Criminal law.
❹ Summary proceeding
❺ No ceiling on the amount of maintenance (2001
amend.)
❻ Matrimonial status: irrelevant consideration.
❼ Power of arrest in execution proceeding.
❽ Maintenance through informal relationship.

◙ Maintenance u/Sec. 125 & ‘Rights of Women in
Informal Relationship.’:
▪ Informal relationships:
• Concubines to cohabitees: statutory
recognition.
• Person in ‘Live-in relationship’
• Prolonged cohabitation
• Presumption of marriage.
• Relations in the nature of marriage.
• Persons in domestic relationship.

▪ U/P.W.D.V. Act, 2005, any women who claims orders
including maintenance, need not prove the validity of
marriage (M. Palani v. Meenakshi AIR 2008 Mad. 162).
▪ With respect to Sec. 125, in a landmark case of 2010,
a division bench of G.S. Singhavi & A.K. Ganguly J. in
Chanmuniya v. Chanmuniya Virendra Kumar Singh
Khushawaha (SLP (Civil) No.15071 of 2009):
• Recommended broad interpretation to ‘Wife.’
• Strict proof of wife shouldn’t be pre-condition
• Benefits awarded in DVA should also be
extended u/Section 125.

◙ Matrimonial misconduct & Right to maintenance (Sub-
sec. 4 & 5): During the proceeding & after proceeding.
• If she is living in adultery.
• Refuses to live with husband (without any
reasonable cause)
• Living separately with mutual consent.
▪ Compassionate approach towards matrimonial
misconduct of wife.: Jagdusa kakwane vs. Kamal
Gulab Kakwane (AIR 1985 Bom. 88) divorce on certain
ground wife’s adultery & denial of maintenance by
husband: REJECTED.

◙ Non-performance of essential ceremonies of marriage:
▪ Most common excuse for the husband to deny.
▪ Performance of marriage procedure is enough and
no need to prove whether ceremonies were
performed or not. (Dwarika Prasad Satpathy v.
Bidyut Praya Dixit (AIR 1999 SC 3348).
▪ Neither it is necessary to mention in an application
nor any one can raise the objection as to the non-
performance of ceremonies (Veena Devi vs. Ashok
Kumar Mandal)
▪ Bombay H.C. in (Govindrao v. Anandibai (AIR 1976
Bom. 433) has observed that the intention of
legislature could not have been to deprived of her
right to claim maintenance.

▪ Bombay High Court in Sunita More v. Vivekanand More
(II 2001 DMC 693 Bom.) has held that Magistrate is not
competent to decide the validity of marriage. It is up
to the husband to decide the invalidity in competent
civil court.
▪ Again in the case of Pradeep Gupta v. Kanti Devi (I
2003 DMC 693 Bom) Jharkhand H.C. has reaffirmed
that strict proof of marriage is not necessary while
awarding maintenance under Section 125 of Cr. P.C.

➢ Nature of the Proceeding:
• Criminal Proceeding of civil nature.
• Proceedings of Summary nature.
• Orders as it thinks fit
• Ex-parte orders can be made.
• Orders made u/personal laws or u/civil suits may be
taken into consideration u/criminal suit & Vice-
versa.

◙ Jharkhand H.C. in the case Ehsan Ansari V. State of
Jharkhand (II 2007 DMC 751 Jha) where the prayer to
amend the petition, a relief which is possible in the
civil law but prohibited in criminal law, was allowed.
◙ Though the non-payment of maintenance in civil law
may result in to civil imprisonment, the burden falls
on the wife to pay for the civil imprisonment. It is
paradoxical, as it defeats the very purpose of
awarding maintenance to destitute women.

➢ CLAIMANTS U/S.125:
1. Child:
▪ Explanation (a) to Cl.1 of Section 125 defines “minor
child”
▪ U/old CrPC it was only ‘child’.
▪ Child is Natural or Adoptive, Legitimate or Illegitimate.
▪ In case custody of child is with Mother or Guardian or
Non-Guardian parent, still father’s obligation subsist.
▪ In case of ‘Married minor daughter’, if husband is unable
to maintain then Father is u/an obligation.

2. Wife:
▪ Wife means “legally wedded wife”
▪ Explanation (b) to Section 125 defines “WIFE” so as to
include unmarried divorced wife. (U/old Code it was
not)
▪ Wife term is not qualified by any Religion.
▪ Husband is u/an obligation to maintain her.

3. Parent:
▪ The word ‘Father’ or ‘Mother’ is used in clause (d) so as
to exclude obligation of the Illegitimate son.
▪ Only Legitimate Child is u/an obligation to maintain.

➢ Quantum of Maintenance:
▪ Magistrate may order for Maintenance “as Magistrate
thinks fit” and to provide such person as the Magistrate
may from time to time direct.
▪ Law Commission of India has recommended to remove
the ceiling of 500/- and the Magistrate should have
power to award amount of Maintenance as he thinks fit.
▪ Previously, before Amendment Act of 2001, it was “not
exceeding 500/-.
▪ State Amendments to Code of Criminal Procedure vary in
terms of quantum of maintenance.

Section 125 of Cr. P.C. and
Claim of Muslim Divorced Wife:
Problem of:
• Interpretation
• Contradiction
• Question of law
• Personal law vs. General

# Mohd. Ahmed Khan Vs. Shah Bano Begum
((1985) 2 SCC 556): NEW INTERPRETATION TO
LAW
• Interpretation of Section 125 was in
question.
• Maintenance “beyond the period of
Iddat” was in question.
• Conflict of Laws: Muslim Law Vs. Secular
Law of Maintenance which is reflected
in the provision of Section 125 of
Criminal Procedure Code.
• (Divorced) Muslim Women can resort to
Section 125 of Criminal Procedure Code.

• A Brief about Section 125 of Cr.P.C.:
✓ Cr.P.C. applies to all communities, including
Muslim Wife.
✓ Right to seek Maintenance u/S.125 extends
even to “divorced wife”
✓ Old Cr.P.C. u/S.488 (corresponding with s.125)
extended only till the period of Iddat (#M.
Sidhik Vs. Nafeesa Beevi Cr.L.J. 1973 1020),
since Personal Law provided for that.
✓ Amendment introduced in 1973:
Section 125 (1) Explanation (b) says: ‘Wife’ includes a
woman who has been divorced by, or has obtained a
divorce from her husband and has not remarried.
© Ashok Wadje Muslim Law of Maintenance

• This change in the Cr.P.C. constitutes a fictional relationship of
Wife, to prevent erstwhile husbands to drive their ex-wives to a
state of poverty and destitution till they remarry.
• After this, Statutory/Legal position is that: a woman continues
to be wife within the meaning of S.125 even after divorce, in
order to claim maintenance.
• Even a wife who has been divorced prior to the amendment, is
entitled to avail protection u/this provision.
• Divorce at whose instance doesn’t matter, since the words are:
• ‘….has obtained divorce from the husband’

• Facts of the Shaha Bano Case:
✓ Shaha Bano who was the wife of Ahmad Khan, an
Advocate, married to him in 1932 and has five
children, driven out of the home.
✓ In 1978 she filed an application for maintenance. And
as soon as she did this, the husband divorced her by an
irrevocable talaq.
✓ Judicial Magistrate ordered Maintenance of `25 per
month.
✓ On appeal, M.P. High Court raised the amount `
179.20.
✓ Dissatisfied with this Husband came in appeal to the
Supreme Court.
✓ Court upheld the wife’s right to maintenance and
imposed costs at `10,000/- on the Husband.

• Court Held:
✓ Provision of Sec.125 is not dependent on the
religion of any spouse.
✓ The husband’s argument that “under their
personal law he was obliged to maintain his wife
only during iddat” was rejected.
“The true position is that if the divorced wife is
able to maintain herself, the husband’s liability to
provide maintenance for her ceases with the
expiration of the iddat period. If she is unable to
maintain herself, she is entitled to take recourse to
Section 125 of Cr.P,C.”

✓ “Wife” means wife as defined, irrespective of religion
professed by her or by her husband.
✓ Statutory right available to her under that section is
unaffected by provisions of personal law applicable to her.
✓ Chandrachud C.J., observed:
✓ What’s question of importance?
“This appeal does not involve any
question of constitutional importance
but, that is not to say that it does not
involve any question of importance.”

• Is there any provision in the Muslim Personal Law under
which a sum is payable to the wife ‘on divorce’?
• Does the Muslim Personal Law impose no obligation upon
the husband to provide for the maintenance of his divorced
wife ?
• Is the law so ruthless in its inequality that, no matter how
much the husband pays for the maintenance of his
divorced wife during the period of Iddat, the mere fact
that he has paid something, no matter how little, absolves
him for ever from the duty of paying adequately so as to
enable her to keep her body and soul together ?

• The question as to whether section 125 of the Code applies
to Muslims also is concluded by two decisions of this Court
which are reported in 1) Bai Tahira v. Ali Hussain
Fiddalli Chothia 1979 AIR(SC) 362) and
2) Fazlunbi v. Khader Vali 1980 AIR(SC) 1730).

PROF. ASHOK WADJE, SLS, NOIDA
• Post Shah Bano Law: Muslim Women (Protection of
Rights on Divorce) Act, 1986
✓ Repercussions of Shah Bano’s case.
✓ Unprecedented DEBATE & CONTROVERSTY evoked.
✓ Parliament had to pass this piece of legislation in order
to shut the mouths of Muslim Husbands in India.
✓ Act applies only to Divorced Wife.
✓ Act deals with the Right to be Maintained by:
• Husband
• Relatives
• Wakf Board.

• Preamble:
✓ Who have been divorced or have obtained divorce.
✓ ‘Protection’ of right
✓ Connected & incidental matters.
“An Act to protect rights of Muslim Women who
have been divorced or have obtained divorce from
their husbands and to provide for matters
connected therewith and incidental thereto.”

• Features of the Act:
✓ Reasonable & Fair Provision of Maintenance During the
period of Iddat from Husband.
✓ If she fails to get so then from Relatives and then from
Wakf Board.
✓ She is not entitled to apply u/Sec.125 unless both
parties consent to it. (Either jointly or separately)
✓ Maintenance of children by the husband is attached to
it.
✓ Applications pending under Section 125 are required to
be disposed under the Act.
✓ Right of Divorce was taken out and placed in new

• Interpretation of the Act of 1986
✓ Collusion of Cr.P.C. and Act of 1986 (Sec. 125 and Sec. 3)
✓ Freedom Religion & Religious ‘Practices.’ (Art. 25)
✓ Constitutional guarantee of equality (Art. 14 &15)
✓ Uniform Civil Code (Article 44)
✓ Divergence of opinion among the High Courts as to conflict of
Cr.P.C. and the provisions of the Act of 1986.
✓ Progressive Interpretation of Sec. 3: beyond the period of Iddat.
✓ Restrictive Interpretation of Sec. 3: exercise of option by parties

◙ Constitutionality of Muslim Women (Protection of Rights
on Divorce) Act, 1986”
• Supreme Court of India in #Danial Latifi Vs. Union of
India (2001) 7 SCC 740
• Applied a ‘harmonious construction’ of statutes
• whereby to secure an Act of 1986 from Constitution
infirmity. (Art. 14, 15 & 21).
• Interpretation: Maintenance ‘during’ the period of
Iddat & making Provisions for future life ‘after’ the
period of Iddat.
• Act is constitutionally valid.
• Doctrine of ‘fair or reasonable provision.’

• New Right: right to a lump sum provision to be made
soon after the divorce.
• Reasonable & Fair provision for the future of the
divorced wife which must be made within the Iddat
period.
• If fails to pay, she can have recourse to Magistrate’s
court u/Sec. 3 of the Act.
• What is: “Fair or reasonable provision with respect to
future needs”?
• QUESTION REMAINS: RIGHT OF MAINTENANCE-WHETHER
U/SECTION 125 OF Cr.P.C. or U/Sec. 3 of “Muslim
Women’s Act”?

• Case Law: # Iqbal Bano Vs. State of U.P. (AIR 2007 SC
2215)
✓ A Muslim ‘Wife’ can claim maintenance and Act of 1986 only
applies to ‘divorced woman’.
✓ The right u/Sec. 125 extinguishes only when she receives “fair or
reasonable” settlement u/Sec. 3 of the Act.
✓ A divorced Muslim WOMEN if
1. Unable to maintain herself and
2. Not remarried,
can proceed as per Section 4 of the Act of 1986: ‘other relations’.
✓ Provisions of the Act of 1986 do not offend Article 14, 15 & 21 (no
question of Art.44 since it is not justifiable)
✓ It is crystal clear that divorced women can claim maintenance
beyond the period of Iddat.

✓ Act of 1986 is beneficial piece of legislation and the
benefit must accrue to the divorced Muslim women.
✓ Again in Kunhimohammed v. Ayishakutty (2010 2 KLT 71)
Keral High Court held that a husband’s obligation to pay
maintenance is not extinguished on divorce. The wife will
be entitled to receive maintenance u/Sec. 125 of Cr.P.C.
until the husband fulfills his obligation u/Sec. 3 of Muslim
Women (Protection of Rights on Divorce Act, 1986

Maintenance U/Hindu Law

❶ HINDU LAW OF MAINTENANCE:
• Hindu Adoption & Maintenance Act, 1956.
• Hindu Marriage Act, 1955.
✓ Personal Obligation
✓ Greatest duty of person
✓ The gates of heaven are wide open for one who maintains
some one.
✓ Manu declared: “….obligation subsists in spite of doing
hundred misdeeds.”
✓ Now-a-days it is a matter of necessity.
❖ Maintenance of WIVES, PARENTS & CHILDREN:

▪ Hindu Adoption & Maintenance Act, 1956.
1. Section 18: Of Wife
2. Section 19: Of Widowed Daughter- in- law.
3. Section 20: Children & Aged Parents.
4. Section 21: Dependents

1) Of Wife: (Section 18)
✓ Legally-wedded-wife.
✓ In most of the legal system this obligation is recognized.
✓ So long as she remains “faithful.”
✓ Obligation exists even after the ‘dissolution of marriage”
✓ In the case of #Vihal Vs. Maiden (AIR 1995 Guj. 88) it was
held that a “divorced wife” is included within the
expression wife.
✓ The obligation arises out of ‘status of marriage’ or ‘jural
relationship.’
✓ Three situations wherein this right/obligation arises:
▪ When she lives with her husband
▪ When she lives separate
▪ When she lives separate under Decree of Court.

✓ Who is “Wife”
✓ During her Life-time.
✓ By “Husband” (Sub-Section (1).
✓ Living Separate & Claiming Maintenance ? Yes, on certain
grounds. (Sub-Section (2)
✓ Bar to Maintenance & Separate Living: Subject to condition
u/Sub-section (3) that Wife should not be:
▪ Unchaste
▪ Cease to be Hindu.

2) Of Widowed Daughter- in- law: (Section 19)
• As a manager of a joint family, Father-in-Law was under a
MORAL OBLIGATION.
• Statutory improvement: Hindu Women’s Right to Property
Act, 1937 (Right to step her into the shoes of her deceased
husband).
• Now by virtue of this Section 19, she is having a LEGAL
RIGHT to receive maintenance. SO FATHER –IN-LAW IS
LEGALLY BOUND TO MAINTAIN.
(Logic: Those who inherit the property of deceased
husband, are obviously bound to maintain herself who is in
immediate relationship.)

Requirements:
• Property with the Father-in-Law should be COPARCENARY.
• Daughter-in- Law is UNABLE to provide for herself by her own
earnings or from her own property.
• Unable to get maintenance from the ESTATE of her husband
or Parents or from Children or from their estate
• REMARRIAGE bars her to claim from her Father-in-Law.
NOTE: Parents of the widowed daughter in law are required to be
heard before court grants any decree of maintenance (Raj Kishore
Mishra Vs. Smt Meena Mishra AIR 1995 ALL.70)

3) Maintenance of Children and Aged Parents
(Section 20)
• A ‘Hindu’ is under an obligation to maintain:
✓ Legitimate or illegitimate children (also
adoptive)
✓ Aged or infirm (Weak/Sick) parents.
• Legitimate or illegitimate child should be MINOR.
• Aged or infirm parents should be unable to maintain
himself or herself out of their own property or other
property.
• Parents do include “childless step-mother”.

CHILDREN:
✓ Legitimate and Adopted children.
• Obligation arises OUT OF PERSONAL RELATIONSHIP OF
PARENT & CHILD.
• Legitimate son is entitled even though son is not living
or not in talking terms or for whatever misdeeds.
• The obligation of Parents to maintain ceases on his
attaining majority, even if the son is incapable of
maintaining himself due to temporary illness or
disorder. But if disability or disorder is of a permanent
nature, Parent’s obligation is there.
• Adopted son or daughter has the same right as that of
natural born legitimate children.

✓ Major/Unmarried DAUGHTER:
• A major daughter is entitled to maintenance until she
gets marry.
• In case of daughter, maintenance includes a reasonable
provision for her marriage.
• In so far as she is unable to maintain herself.
✓ Illegitimate Son/daughter:
• Previously used to get only from Putative father
• Now from both the Putative Father and Natural mother.
• Only entitled for maintenance and nothing else.

PARENTS
• The HAMA, is the first statute which imposes obligation
on the children to maintain their parents.
• Sons and Daughters have EQUAL DUTY to maintain.
Previously only sons were under obligation. Now with
the changing times, the Law has recognized that
daughters also should have a duty to maintain parents.
(Logic: Sons alone inherited the properties. The
daughters neither inherited nor had any other
income of their won by way of personal earnings.)
• Mother and Father both have an EQUAL RIGHT. Law also
explicitly refers to “Step-Mother” , however it is only
childless step-mother.

• No ‘Capacity’ word is there. Children are ‘bound’ to
maintain Parents. In this respect, Hindu Law is in
contrast with the Cr.P.C.
• It is pertinent to note that, even though word
“maintenance” includes provisions for ‘residence’ it
does not confer a legal right to on the parents to live
in the house of the son along with his family.
CASE LAW: Anjali D. Jadhav Vs. Nirmala Ramchandra
Kore (AIR 2000 SC 1386)
✓ This was the case under Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947.
✓ A mother who was the tenant was living in the suit
premises with her sons for 30 years.

✓ The Landlord sought to evict the tenant on the ground that she
had acquired “alternative accommodation” which was a ground
for eviction under the Bombay Rent Control Act, 1948.
✓ The Court held that the mother was not liable to be evicted on
the ground of having acquired ‘vacant possession’ because the
house built by her sons is not hers over which she has any legal
right to reside.
✓ So here, though this Judgment is to the advantage of the mother,
yet, the observations of this case have a potential of being
invoked to the detriment of parents in some cases.
✓ Court observed: “though morally sons are u/obligation to
accommodate with them yet in Law we cannot enlarge this
obligation to legal duty.”

3) Dependents of a DECEASED HINDU: (Section 22)
• Dependents are RELATIVES of deceased Hindu and they
can claim maintenance against the property of the
deceased in the hands of heirs.
• Heirs are all those persons on whom estate of deceased
legally devolves.
• This is in a case that they do not get any share in the
estate either by SUCCESSION or WILL.
• Persons u/obligation, equally liable to maintain in
proportion to the value of the share.
• There is a difference in HEIRS & DEPENDENTS.
• WHOSOEVER GETS ANY SHARE IN PROPERTY IN THE
PROCESS OF DEVOLUTION, TAKES IT SUBJECT TO DUTY/
RISK OF MAINTENANCE OF DEPENDENTS OF A DECEASED
HINDU.

• Liability:
• The dependent can exercise this right against the
heirs only when he himself is NOT an heir or has
NOT obtained any legacy under the Will of the
deceased/testator.
• If there is a separate provision for the maintenance
of the dependents the heirs have no further
liability.
• The maintenance should be OUT OF THE ESTATE of
the deceased inherited by heirs and not personal or
otherwise.
• If the value of the share or part of the estate (in
the event of contribution) becomes less than the
maintenance awarded to him, not liable to
contribute.

Example (1) A Hindu dies leaving behind a WILL
(Testamentary), under which he bequeaths all his
property to his Son. He leaves behind a SON, WIDOW and
MOTHER. In this case, widow and mother as Dependents
can claim maintenance against the estate of the
deceased in the hands of the Son.
For Example (2) : a Hindu dies SUCCESSION (intestate),
leaving behind a MOTHER, A WIDOW and a SON, all three
will take a share in the estate of the dependent. None of
them can claim maintenance as dependent against the
others.

▪The father
▪The mother
▪The widow
▪The minor legitimate
son
▪The minor illegitimate
son
▪The minor illegitimate
unmarried daughter
▪The minor legitimate
unmarried daughter.
▪The widowed
daughter
▪The son’s widow
▪Grandson’s widow
▪The son’s unmarried
daughter
▪The grandson’s
unmarried daughter
▪Son’s minor son
▪Son’s son’s minor.
son
Definition of Dependents: (Section 21)

Maintenance U/Muslim Law

MUSLIM LAW OF MAINTENANCE:
• Wife
• The Children
• The Parents & Grandparents
• The other relations

1) THE WIFE:
• The Husband’s obligation to maintain his wife
arises in the following circumstances:
✓ Out of status of Marriage
✓ Out of pre-nuptial agreement.
✓ After divorce
• A Muslim is under an obligation to maintain WIFE
under following Statutes:
✓ Shariyat Act, 1937
✓ Criminal Procedure Code, 1973
✓ Muslim Women (Protection of Rights on
Divorce), Act. 1986.

1. Obligation arising out of STATUS
• Status of Husband and Wife
• Position of Wife does not matter
• She must be faithful/obeys ‘reasonable’ orders of
him.
• If she justified, she can withdraw the company (non-
payment of dower, on account of cruelty).
• ‘Claim’ or ‘right’ arises only after it becomes DUE
• This claim comes to an end when there is a divorce.
After divorce, position of law is different.

2. Obligation out of Pre-Nuptial Agreement (PNA)
✓ Part of marriage system u/Muslim Law
✓ A kind of threat or deterrence to maintain her.
✓ Kharcha-i-pandan, guzara etc are examples of
it.
E.g.
• An agreement to live separate and ask for
the maintenance.
• Mydeen Vs. Nydeen (AIR 1951 Mad. HC)
held that an agreement to maintain even
after the divorce is, is valid.

3. Obligation out of DIVORCE
• In case of dissolution of marriage, a Muslim husband WAS/IS
no more under an obligation to maintain Muslim wife,
except till the period of Iddat.
• A ground for dissolution of Marriage if fails to maintain for a
period of two years (DMMAct, 1939).
• Iddat is ‘three lunar months’ or ‘three menstruation
period,’ whichever is earlier. (In case of pregnancy, till
abortion or delivery).
• DIVORCE IS VERY EASY TO OBTAIN U/MUSLIM LAW AND AS
SUCH IT CAUSED LOT OF HARDSHIP.

2) Maintenance of Children:
• Father-Mother-Grandfather is under an obligation
to maintain.
• Till the period of attaining Puberty i.e. 15 yrs.
• In case of daughters, till marries.
• Same rule of ‘disability’ applies which entails a
major son or daughter to ask maintenance even
after Puberty.
•

# Mohd. Ahmed Khan Vs. Shah Bano Begum
(AIR SC 1986): NEW INTERPRETATION TO LAW
• Interpretation of Section 125 was in
question.
• Maintenance “beyond the period of
Iddat” was in question.
• Conflict of Laws: Muslim Law Vs. Secular
Law of Maintenance which is reflected
in the provision of Section 125 of
Criminal Procedure Code.
• (Divorced) Muslim Women can resort to
Section 125 of Criminal Procedure Code.

• Facts of the Shaha Bano Case:
✓ Shaha Bano who was the wife of Ahmad Khan, an Advocate,
married to him in 1932 and has five children, driven out of
the home.
✓ In 1978 she filed an application for maintenance. And as
soon as she did this, the husband divorced her by an
irrevocable talaq.
✓ Judicial Magistrate ordered Maintenance of `25 per month.
✓ On appeal, M.P. High Court raised the amount ` 179.20.
✓ Dissatisfied with this Husband came in appeal to the
Supreme Court.
✓ Court upheld the wife’s right to maintenance and imposed
costs at `10,000/- on the Husband.

• Muslim Women (Protection of Rights on Divorce) Act,
1986
✓ Repercussions of Shah Bano’s case.
✓ Unprecedented DEBATE & CONTROVERSTY evoked.
✓ Parliament had to pass this piece of legislation in order
to shut the mouths of Muslim Husbands in India.
✓ Act applies only to Divorced Wife.
✓ Act deals with the Right to be Maintained by:
• Husband
• Relatives
• Wakf Board.

◙ Constitutionality of “Muslim Women’s Act”
• Supreme Court of India in # Danial Latifi Vs. Union of
India (2001) 7 SCC 740
• Applied a ‘harmonious construction’ of statutes
• whereby to secure an Act of 1986 from Constitution
infirmity. (Art. 14, 15 & 21).
• Interpretation: Maintenance ‘during’ the period of
Iddat & making Provisions for future life ‘after’ the
period of Iddat.
• Act is constitutionally valid.
• Doctrine of ‘fair or reasonable provision.’

• New Right: right to a lump sum provision to be made soon
after the divorce.
• Reasonable & Fair provision for the future of the divorced
wife which must be made within the Iddat period.
• If fails to pay, she can have recourse to Magistrate’s court
u/Sec. 3 of the Act.
• What is: “Fair or reasonable provision with respect to
future needs”?
• QUESTION REMAINS: RIGHT OF MAINTENANCE-WHETHER U/
SECTION 125 OF Cr.P.C. or U/Sec. 3 of “Muslim Women’s
Act”?

• Case Law: # Iqbal Bano Vs. State of U.P. (AIR 2007 SC
2215)
✓ A Muslim ‘Wife’ can claim maintenance and Act of 1986 only applies to
‘divorced woman’.
✓ The right u/Sec. 125 extinguishes only when she receives “fair or
reasonable” settlement u/Sec. 3 of the Act.
✓ A divorced Muslim WOMEN if
1. Unable to maintain herself and
2. Not remarried,
can proceed as per Section 4 of the Act of 1986: ‘other relations’.
✓ Provisions of the Act of 1986 do not offend Article 14, 15 & 21 (no
question of Art.44 since it is not justifiable)
✓ It is crystal clear that divorced women can claim maintenance beyond
the period of Iddat.

✓ Act of 1986 is beneficial piece of legislation and the
benefit must accrue to the divorced Muslim women.
✓ Again in Kunhimohammed v. Ayishakutty (2010 2 KLT 71)
Court held that a husband’s obligation to pay maintenance
is not extinguished on divorce. The wife will be entitled to
receive maintenance u/Sec. 125 of Cr.P.C. until the
husband fulfills his obligation u/Sec. 3 of Muslim Women
(Protection of Rights on Divorce Act, 1986

Maintenance U/Christian
Law

❖ CHRISTIAN LAW OF MAINTENANCE:
• Indian Divorce Act, 1936 contains provision for the
maintenance of minor CHILDREN , but there is no
independent right like Hindu law for the children.
• It is awarded only when there is matrimonial litigation
between the parties.
• Parents do not have any right to claim maintenance u/Christian
Law. Section 125 of Cr.P.C. is the only recourse.
• Karnataka High Court in the has taken a reformative step in
the case of K. Kumar Vs. Leena, AIR 2010 Karn. 775 , by
providing maintenance to neglected Christian WIFE even
though under Christian Marriage Act there is no provision for
such relief.
• Civil suit for maintenance u/the said Act can be instituted
under the inherent power of the court.
© Ashok Wadje Christian Law of Maintenance

❑ WIFE
• Section 36: of The Divorce Act,1869/2001:
alimony pendent lite to the WIFE, during any proceeding.
• Section 37 : Power to order permanent alimony after
proceedings.
• Power to order monthly or weekly payments u/same section 37.
❑ CHILDEREN
• Section 42: Power to make such orders after the decree with
respect to the ‘custody, maintenance, education, of the child.
• Section 43: Power to make interim orders as to the custody,
maintenance and education of the children.
© Ashok Wadje Christian Law of Maintenance

❖ PARSI LAW MAINTENANCE:
• Parasi Marriage & Divorce Act, 1936 contains provision for
the maintenance of minor CHILDREN , but there is no
independent right like Hindu law for the children.
• Maintenance Pendent lite: during the pendancy of the
proceeding.
• It is awarded only when there is matrimonial litigation
between the parties.
• Section 39: Maintenance Pendent lite to the WIFE &
HUSBAND by the Defendant
• Section 40: Permanent Alimony & Maintenance to the WIFE
& HUSBAND: by the Defendant
© Ashok Wadje Parasi Law of Maintenance

Law of Maintenance in India

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