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Updated: Jul 15, 2022

Maintenance is the money given to a spouse by other spouse when husband and wife are living separately either by judicial separation or after divorce decree, so that the dependent spouse can have a living and can carry his / her life. However, wife can also claim maintenance from the husband even when both husband and wife are living together.

The provisions of maintenance are framed for the issue of maintenance are: -

  • The Hindu Marriage Act,1955- Section 24 provides for the interim maintenance during the pending proceedings under HMA in the court to wife or husband.

  • Section 125 of the Code of Criminal Procedure ,1973- deals with the Order of Maintenance of wives, children and parents.

In the above said provision of the Code of Criminal Procedure on 24th September 2001, the limit of Rs. 500 for maintenance was removed from the act and discretion was given to the magistrate to decide the maintenance under the guidelines issued by the Supreme Court. Whereas in the section 24 of the Hindu Marriage Act no such limit was provided even now it is limitless.

In the given provision of the Hindu Marriage Act, even the husband can claim the maintenance from the wife, whereas in the Criminal Procedure Code only the wives, children and parents can claim the maintenance. In both the provisions interim maintenance can be given to the petitioner/applicant during the pendency of the suit.

  • The Special Marriage Act, 1954- Section 36 provides for the alimony to the wife while the trial is pending, where the wife does not have enough income.

  • Hindu Adoptions & Maintenance Act, 1956 - Section 18 provides for Maintenance to wife after divorce. Under the said provision the wife is still entitled to get maintenance from the husband even they both are living together.

  • Protection of Women from Domestic Violence Act,2005- Section 20 provides for the Monetary reliefs.

A person is entitled for maintenance under the above said provisions from an NRI spouse as well.

In India many parents want their children to be settled abroad or to marry their children to an NRI. Unfortunately, sometimes marriages don’t work in the desired sense and leads to complete breakdown of marriages. The most problems faced by the people in India is that the NRI spouse leaves the other Indian spouse in India only and never bothers to take along the spouse. Many times, due to circumstances spouses leave their NRI partner by marrying someone abroad or getting divorce without informing the Indian spouse.

In such a situation application of maintenance can be filed in the appropriate Indian District/Family Court. And award by the Indian courts shall be binding on the NRI spouse.

Where the maintenance application can be filed?

Regarding the jurisdiction of filing the maintenance petition, The Supreme Court in the landmark case titled Jagir Kaur Vs. Jaswant Singh, (AIR 1963 SC 1521) held the jurisdiction of the court is formed where the accused resides permanently or temporarily or where last resided in any district of India or where he happens to be at the time the proceedings are initiated.

Criteria of awarding maintenance

In the latest Supreme Court landmark judgment Rajnesh vs Neha 2021(2) SCC 324, laid down the criteria and the aspects on which the maintenance is to be awarded. The relevant para has been reproduced under: -

82. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

That while deciding the maintenance application the courts keep these things in their view, moreover, the hon’ble court has also directed that both the parties will be filing the affidavits disclosing their assets and liabilities of Non-Agrarian deponents, personal information, details of legal proceedings and maintenance being paid, details of dependent family members, details of income of the deponent, movable and immovable assets, etc.

In a landmark case titled Bhagwan Dutt Vs. Kamala Devi, 1975 AIR 83, the Supreme Court observed that while awarding maintenance the family court should keep the modern living standard in mind. The relevant lines from the judgment are reproduced below: -

The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.

Maintenance cannot be determined only on the fact that the spouse is having a big fat salary. The courts have to see the standard of living of both the husband and the wife, after that decide the quantum of maintenance.

In the case titled Bindu Chaudhary Vs. Deepak Suga, 2017(1) CivCC 196, the Double Bench of the Hon’ble Delhi High Court observed that the appellant wife is a practicing doctor, earning Rs. 50,000 per month and still seeks increase of maintenance, awarded by Family Court which is Rs 5000 per month and Rs 2000 per court visit. It was concluded that just because the husband of the appellant wife is working in Dubai and earning in Dirhams (Dubai currency) is not a ground for enhancing the maintenance because a person earning in such currency of that country and also spends in that currency.

Non-entitlement of Maintenance

The situation where no wife shall be entitled to receive any allowance for the maintenance or the interim maintenance and expenses of proceeding where: -

  • The wife is living in adultery.

  • The wife without any sufficient reason refuses to live with her husband.

  • Both, husband and wife are living separately by mutual consent by signing a deed waiving off the maintenance right.

  • Where the wife remarries.

However, in the above said situations the Magistrate shall cancel the order of such maintenance passed earlier.

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