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Guide to Claiming Maintenance in India

Guide to Claiming Maintenance in India

Maintenance is known as the financial support given by a person to fulfill the basic necessities of someone else usually a family member who is not able to maintain himself or herself.

It is commonly known and even accepted by law under the Code of Criminal Procedure that it is the duty of the man to maintain his wife, children and parents also under various customs maintenance is regarded as a sacred duty of a man.

Provisions related to maintenance can be found under various personal laws but they are applicable only to the persons following the particular religious faith. A need was felt to create a common code applicable to all irrespective of their religious belief laying down the law for claiming maintenance.

Maintenance under Hindu Law:

Maintenance under Hindu law is laid down under the Hindu Adoption and Maintenance Act and also under the Hindu Marriage Act. Under the Hindu Adoptions and Maintenance Act, 1956 A Hindu wife is entitled to be maintained by her husband throughout her life. This right of maintenance cannot be taken away even if a Hindu wife is living separately from her husband because of the grounds mentioned under section 18 (2) of the Act. A Hindu wife, however, loses the right to be maintained by her husband if she is unchaste or has converted to some another religion. While as under section 25 of the Hindu Marriage Act, 1955 a husband, as well as the wife, can claim maintenance. For these laws, a Hindu includes a Buddhist, Jain, and Sikh also.

Maintenance under Muslim Law:

Maintenance under Muslim Law is primarily based upon the personal laws of the Muslims the sharia law. Under Muslim law, maintenance is termed a “Nafkah”. The Muslim law pertaining to maintenance has been enumerated under the Muslim Women (Protection of Rights On Divorce) Act, 1986. It gives the right to the wife to claim the maintenance from her husband after divorce during the iddat period. However, the Apex Court has held in a landmark judgment of Danial Latifi’s that right of a Muslim woman to claim maintenance is not limited only to the iddat period but may extend during her lifetime, unless she remarries. Top Muslim lawyers in India takes both personal as well as codified law into consideration to ensure that relief claimed is granted.

Maintenance under Code of Criminal Procedure:

Section 125 of Code of Criminal Procedure, 1973 was enacted to bring uniformity in the law relating to maintenance due to the presence of multiple personal laws available on the same subject matter unable to provide the desired relief. Section 125 has been made applicable to all persons irrespective of their religious beliefs. This section lays down the provisions regarding the maintenance to wife, children, and parents.

Section 125 of the Code of Criminal Procedure is also known as beneficial legislation having a primary objective to remove the starvation and to provide the basic necessities to the dependants of the particular person who neglected and refused to maintain his dependents mentioned under the section. These provisions serve a special purpose to avoid the miserable life of an individual claiming maintenance.

Who can claim the maintenance?

Under Section 125, a person from any religion can claim maintenance. However certain conditions are to be fulfilled.

  1. The person claiming the maintenance must be unable to maintain himself or herself.
  2. Further, the person mentioned below can claim maintenance under section 125
  • Wife
  • Divorcee Women, unless she is remarried
  • Minor Child, whether legitimate or illegitimate
  • Major Child, who is unable to maintain himself or herself due to mental or physical abnormality and married daughter is not eligible for the maintenance from her father.
  • Parents

From whom maintenance can be claimed?

As per Section 125 maintenance can be claimed by any person including a male or a female and even a Hindu not divided from his father. However, the person from whom the maintenance is about to be claimed should have sufficient means to provide maintenance.

It is important to note that not only a man is vested with the liability of maintenance under section 125 but at times maintenances can even be claimed from a female. In the case of Vijaya Kashi Rao, (1987 Cr. L.j. 977 S.C) it was held that maintenance can also be claimed by the parents from her married daughter.

Relief of maintenance:

  1. Interim Maintenance: some cases if the court thinks that the person claiming maintenance, doesn’t have sufficient means to maintain himself during the pendency of the proceeding in such a case the court may even grant an interim maintenance.

    Interim maintenance is known as the maintenance granted during the pendency of the court proceedings.
  2. Maintenance after the disposal of the case: Where an application of maintenance is filed before a Court of law and the court, after considering the whole case and depending upon the facts and circumstances of each case, may order that monthly maintenance be paid under this Section to the applicant.

Further, the amount of maintenance can be decided by the court considering the fact and circumstances of each case and no hard and fast rule exists about the about of maintenance. Top divorce lawyers in Delhi and in India often face the question about the maximum amount of maintenance that can be claimed under the law and it is well established that no certain rule or scale exists for deciding the amount of maintenance. Each case is decided on its own facts and circumstances.  

These guides are not legal advice, nor a substitute for a lawyer. These articles are provided as general guides and effort are made that these guides are helpful to the readers. We do not guarantee that they are accurate or appropriate for your situation, neither do we undertake any responsibility for any loss that might be caused. We recommend not to rely entirely on this information without seeking legal advice.