Women in Distress: Maintenance of wife and children

In 2016, we have more women who are willing to step out of bad marriages. The reasons for opting out of the marriage are the same age old reasons. Yes, in 2016 you are not the only woman who is being harassed by her mother in law. You are not the only woman whose husband is harbouring sexual relations out of his marriage. Yes, it makes your life easier if you are a working woman. Many women are under the impression that they are not entitled to maintenance if they are earning. Maintenance for Hindu Women in India are under the following provisions of law :-

Section 125 of Criminal Procedure Code

Order for maintenance of wives, children and parents - If any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, his legitimate or illegitimate minor child or child who has attained majority (not being a married daughter) where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or his father or mother, unable to maintain himself or 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 or such child, father or mother. A " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

If any person so ordered fails without sufficient cause to comply with the order, Magistrate may, for every breach of the order, issue a warrant for levying the amount due and may sentence such person, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due unless applicationis made to the Court within one year from the date on which it became due: Provided further 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 ( If a husband has contracted marriage with another woman 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, or if they are living separately by mutual consent. On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order).

Section 18,19, 20 of Hindu Adoptions and Maintenance Act

Maintenance of wife - a Hindu wife shall be entitled to be maintained by her husband during her life time and a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he is guilty of desertion ( abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her), 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; if he is suffering from a virulent form of leprosy; if he has any other wife living; if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; if he has ceased to be a Hindu by conversion to another religion, if there is any other cause justifying living separately. 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 - A Hindu wife, shall be entitled to be maintained after the death of her husband by her father-in-law if she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance from the estate of her husband or her father or mother, or from her son or daughter, if any, or his or her estate. Any obligation shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.

Maintenance of children — a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

Maintenance of aged parents - The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation.—In this section “parent” includes a childless step-mother.

Section 24 and 25 of Hindu Marriage Act

Interim Maintenance - Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.

Permanent alimony and maintenance - Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant [ the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under 25(1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just ( If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock)

Section 12 and 20 of Prevention of Domestic Violence Act, 2005

Monetary reliefs under Prevention of Domestic Violence Act - The Magistrate may direct payment of monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include loss of earnings, medical expenses,loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person, the maintenance for the aggrieved person as well as her children etc. The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living which the aggrieved person is accustomed to. The Magistrate may also order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. Upon the failure on the part of the male respondent (husband) to make payment in terms of the order the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

It is a settled principle that maintenance proceedings under the above mentioned proceedings of law are mutually exclusive. However, the court while passing an order of maintenance under any of the above proceedings considers the amount in relation to the amount which may have already been granted under any other provision of maintenance. Meaning thereby that as per the facts and circumstances of your case, you may apply and receive maintenance under any of the above provision of laws but the court will consider the maintenance amount which has already been granted to you. For example if you are receiving Rs. 60,000 as maintenance for your children and yourself under section 125 of CrPC and the court under Sec 18 of HAMA thinks it fit to grant Rs.90,000 as maintenance then it may order an amount of Rs. 30,000 more in addition to the amount of Rs. 60,000 that you are already receiving under section 125 CrPC.

From the above discussion it is clear that a working woman is entitled to maintenance under section 18 of HAMA by virtue of her being a Hindu wife. However, section 125 CrPC specifies "wife unable to maintain herself". 

A wife cannot apply for maintenance under section 24 and 25 of HMA unless either party to the petition has applied for separation, divorce, restoration of conjugal rights under HMA.

For any further queries you can drop your comments or email me on advocategnr2011@gmail.com