The word maintenance is of wide connotation. The most precise definition of it has been given under Section 3 (b) of the Hindu Adoption & Maintenance Act, 1956, which reads as under:-
“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 an incident to her marriage.”
There are four different types of provisions regarding maintenance:-
(A) Provisions under Code of Criminal Procedure, 1973.
(B) Provisions under the Hindu Marriage Act, 1955.
(C) Provisions under the Hindu Adoptions and Maintenance Act, 1956.
(D) Provisions under the Protection of Women from the Domestic Violence Act.
The provisions of maintenance in the Cr.P.C. and the Hindu Adoption and Maintenance Act are independent reliefs. Although, the right to claim maintenance under the Hindu Marriage Act is an independent right and it is not being controlled by the Hindu Adoption and Maintenance Act, but the jurisdiction of the Court cannot be ousted on the plea that the applicant under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act, but while fixing the quantum of maintenance that may be taken into consideration. Under the Hindu Marriage Act, either spouse can seek maintenance, under the Code of Criminal Procedure and Hindu Adoption and Maintenance Act, only the wife can claim maintenance.
(A) Provisions under the Hindu Marriage Act, 1955
Under the Hindu Marriage Act, an order for maintenance may be made by the Court.
Firstly; for maintenance pendente lite (interim or temporary) and expenses of the proceedings under Section 24, and
Secondly; for permanent maintenance and alimony under Section 25.
(B) Provisions under the Code of Criminal Procedure, 1973:
Section 125 of the Code provides that ” if any person, having sufficient means, neglects or refuses to maintain….his wife, unable to maintain herself…a Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife.
Provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation – “wife” includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried.
If a husband has contracted marriage with another women or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, if they are living separately by mutual consent.
The provision is secular in nature and covers the right of a wife professing Islam or any other religion. (Shamima Farooqui Vs Shahid Khan decided on 06.04.2015 by Hon’ble Apex Court and Shamim Bano Vs Asraf Khan decided on 16.04.2014 by Hon’ble Apex Court).
The sweep of provision has been extended by the Hon’ble Apex Court by observing that strict proof of marriage should not be insisted as pre-condition for maintenance under Section 125 Cr.P.C. It includes those cases where a man arid woman have been living together as husband and wife for long period of time (Chanmuniya Vs Virender Kumar Singh Kushwaha JT 2010 (11) SC 132).
The second wife or a woman living as ‘wife’ is not entitled to get maintenance. If the marriage is void or annulled under Section 12 of the Hindu Marriage Act, a wife is not entitled to maintenance. (Krishan Copal Vs Usha Rani, 1982 Cr.L.J. 901 Del.).
Recently, the Hon’ble Supreme Court again held that the expression ‘wife’ as per Section 125 Cr.P.C. refers only the legally married wife. The court observed that “there may be substance in the the appellant wife that the law operates harshly against the woman, who plea of unwittingly gets into a relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo.” The Court, however, held that the illegitimate children from the second wife are entitled to such maintenance.
C) Provisions under the Hindu Adoptions and Maintenance Act, 1956:
The Hindu husband is under a duty to maintain his wife during life time. Maintenance is a personal/legal obligation. It is an incident of the status or estate or matrimony. The meaning of the term ‘maintenance’ is given in Section 3 (b) or the Act “maintenance” includes (i) in all cases,
provision for food, clothing, residing, education, and medical treatment and (ii) in case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.
Section 18: 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 he maintained by her husband during her life time.
Section 18 (1) is applicable when the wife lives with her husband. A wife who has ceased to be Hindu cannot claim maintenance. However, an unchaste wife who lives with her husband can claim maintenance.
(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 or of willfully neglecting her.
b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious 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) (Forfeiture of the claim of maintenance). 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.
Maintenance of widowed daughter-in-law
Section 19 of the Hindu Adoption and Maintenance Act provides that after the death of her husband, a Hindu wife is entitled to be maintained by her father-in-law, if she has no means of her own earnings or other property or estate of her husband/ father/ mother or from her son or daughter or his/her estate. However, this right cannot be enforced if the father-in-law does not have the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share. Further, his obligation ceases when the daughter-in-law remarries.
Amount of Maintenance: Court’s Discretion
Under Section 23, it is in the discretion of the Court to determine whether any, and if so what, maintenance should be awarded under the Act, in respect of the wife, children, aged or infirm parents, the Court will have regard to:
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether he (or she) is justified in doing so;
(d) the value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source; and
(e) the number of persons entitled to maintenance under the Act
The amount of maintenance, whether fixed by a Court’s decree or by agreement, may be altered subsequently if there is a material change in the circumstance (Section 25). A person cannot claim maintenance under the Act if he or she has ceased to have a Hindu by conversion to another religion (Section 24).
(D) The Protection of Woman From Domestic Violence Act, 2005:
This enactment provides for a specific and effective remedy to an aggrieved person, who is victim of domestic violence while living in the shared household along with the respondent including husband. The scope of legislation is wide as it covers not only the wife but every women who has been living in the relationship in the nature of marriage. Maintenance is to be granted under Section 20 of the Act. While disposing of application under Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person as a result of domestic violence. The basic condition for claiming right under the Act is causing violence.
Distinction between Section 18 of the Hindu Adoption and Maintenance Act and Section 25 of the Hindu Marriage Act and Section 125 of the Code of Criminal Procedure.
(a). Under Section 18 of the Hindu Adoption arid Maintenance Act and Section 125 of the Code of Criminal Procedure only wife can claim maintenance, while under Section 25 of the Hindu Marriage Act either spouse can do so.
(b). Under Section 18 of the Hindu Adoption and Maintenance Act and Section 125 of the Code of Criminal Procedure, a wife can claim maintenance and live separately from her husband while her marriage subsists. Under Section 25 of the Hindu Marriage Act, either spouse can claim maintenance and permanent alimony but that can be done only after judicial separation or after divorce.
When the marriage is subsisting there is no question of applicability of Section 25, Hindu Marriage Act but Section 18, Hindu Adoption and Maintenance Act. The word “wife” does not have the same meaning in the two enactments. The Court cannot grant the relief of maintenance in proceeding under one enactment in proceedings under the other (Ramesh Chandru Daga Versus Rameshwari Daga AIR 2005 SC 422)
(c). Hindu wife contemplated under Section 18 of the Hindu Adoption and Maintenance Act and Section 125 of the Code of Criminal Procedure includes only the wife of a valid marriage. While under Section 25 of the Hindu Marriage Act even a wife of void marriage can claim maintenance.
(d). Apparently Section 18 of the Hindu Adoption and Maintenance Act seems to have overridden Section 25, Hindu Marriage Act because in both the sections a similar provision exists and by virtue of Section 4, Hindu Adoption and Maintenance Act, it is the Act of 1956 (i.e. HMA) which shall prevail and the provisions of the Act of 1955 (i.e. HMA) vis-a-vis maintenance of a wife shall cease to have any effect.
Apparently it seems so: but there is no inconsistency between two sections as both do not deal with a similar provision (as noted in the aforesaid differences). Both sections provide for separate and independent reliefs. The Court’s jurisdiction can’t be ousted on the plea that the applicant for maintenance under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act though in fixing the quantum of maintenance that may be taken into consideration. (e) The provisions of maintenance in the Code of Criminal Procedure and the Hindu Adoption and Maintenance Act are again independent relief.
Multiple Proceedings for Maintenance:
In this regard the relevant judgments of Apex Court and various High Courts are discussed hereinafter.
Sudeep Chaudhary Vs Radha Chaudhary decided on 31.01.1997, AIR 1999 SC 536, 1999 CLL.’. 466, JT 1998 (9) SC 473.
It was held by Hon’ble Apex Court that the jurisdiction for granting maintenance under Section 125 of the Code of Criminal Procedure and Domestic Violence Act is parallel jurisdiction and if maintenance has been granted under Section 125 of the Code of Criminal Procedure after taking into account the entire material placed before the Court and recording evidence, it is not necessary that another Magistrate under Domestic violence Act should again adjudicate the issue of maintenance.
The law does not warrant that two parallel courts should adjudicate same issue separately. If adjudication has already been done by a Court of Magistrate under Section 125 of the Code of Criminal Procedure, re-adjudication of the issue of maintenance cannot be done by a Court of Magistrate under Domestic violence Act.
Smt. Premila Vs Shri Dharam Singh on 28 September 2011, P& H it was observed that:-
“Facts relevant for the decision of present revision petition are that during pendency of the petition under Section 13 of the Act filed by respondent-husband, petitioner-wife filed an application under Section 24 of the Act for interim maintenance and litigation expenses. The application was contested by respondent-husband on the plea that petitioner-wife has already been granted maintenance by the concerned Court in proceedings under Section 125 of the Code of Criminal Procedure and hence, it was held that petitioner-wife was not entitled to claim maintenance in the present proceedings”
Moreover law is well settled that the maintenance can be awarded under Section 125 of the Code of Criminal Procedure as well as under Section 24 of the Act, which are independent provisions and, however, from the maintenance awarded under Section 125 of the Code of Criminal Procedure can be adjusted.
It must be understood that the Protection of Women from Domestic violence Act, 2005 does not create any additional right to claim Maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil suit or by Court of Magistrate in an application under Section 125 of the Code of Criminal Procedure she does not have a right to claim additional maintenance under the Act. The Court of Magistrate under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under it Court or under Section 125 of the Code of Criminal procedure. If the woman has already moved Court and her right of maintenance hay been adjudicated by a competent Civil Court or by a competent court of Magistrate under Section 125 of the Code of Criminal procedure for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach Magistrate under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance.
Quantum of Maintenance:
The following are the documents relevant for the Court to decide application for maintenance:
(a) Income Tax returns
(b) Form 16 and Form 12BA
(c) Appointment letter
(d) Cost to company certificate
(e) Salary certificate
(f) Bank statement of all the bank accounts
(g) Credit/debit card statements
(h) Title deeds in respect of immovable property
(i) Registration certificate of vehicle
Burden of proving the income:
The monthly income of the husband may not very often be within the knowledge of the wife, particularly in a case where their relationship is considerably strained and the spouses are living separate for a considerable period.
The assets, liabilities, income and expenditure of the parties are necessary to be determined not only to fix the maintenance under Section 24, but also to determine the permanent alimony under Section 25 of the Hindu Marriage Act and right to the joint properties under Section 27 of the Hindu Marriage Act. it is, therefore, necessary to formulate a format of the affidavit of assets, income and expenditure and also specify the documents to be disclosed by them.
The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the Court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings, averments made in the application and the reply.
Now to have a look upon the relevant factors to adjudicate the quantum:
Law under Section 24 of the Hindu Marriage Act is well settled. The following are the factor, which can be taken into account while awarding interim maintenance
(a) Status of the parties
(b) Reasonable wants of the claimant
(c) Number of the persons to be maintained by the husband
(d) Liabilities, if any, of the husband
(e) The amount required by the wile to live a similar life style as she enjoined in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife and payment capacity of the husband.