When a couple is getting divorce, the concept of maintenance arises when one of them is financially dependent on the other and would like to seek the remedy of maintenance from him/her so that he/she can continue to live in the same standard even after getting divorce.
The amount payable by the husband to the wife (or wife to husband) who is unable to maintain herself either during the marriage or after divorce is called maintenance. Maintenance should include basic necessities such as food, clothing, and shelter and cover rational needs to lead a normal living and to ensure financial sustenance and wellbeing.
There are various personal laws governing Maintenance:
Providing maintenance differs among religions – according to the Hindu Adoption and Maintenance Act, the wife, widow, children and aged parents are entitled to maintenance. According to Muslim law, wife, young children, parents, person within the prohibited degrees are entitled to maintenance.
There are two types of maintenance:
Interim Maintenance – As the name suggests, during the pendency of proceeding of divorce or separation, the court grants temporary maintenance. Itis paid from the date of petition filing till the divorce decree is ordered to cover the immediate needs of the spouse. The following provisions enable the spouse to obtain temporary maintenance:
This amount is paid by the financially independent spouse to the other who is dependent. It will also cover the expenses of the proceedings and other expenses that might occur during the course of the divorce proceeding.
Permanent Maintenance is the amount granted after the divorce decree is announced and it can be a gross sum or periodical or monthly payment as per the order of the court. The following provisions govern Permanent maintenance:
The Court shall have the discretion in determining the amount of maintenance. To arrive at the discretion, the Court may consider the following among other things.
Section 23 of the Hindu Adoption and Maintenance Act and Section 125 of Criminal Procedure Code (CrPC) also provide for criteria that the Court may consider in determining the amount of maintenance to a dependant.
Yes. According to Section 18(1) of Hindu Adoption and Maintenance Act, 1956, the wife living separately from the husband is entitled to get maintenance.
Section 125 (1) (a) of Criminal Procedure Code (CrPC) also provides for a wife who is unable to maintain herself to be granted maintenance if she is neglected or refused maintenance by her spouse who has sufficient means to maintenance.
According to Section 125 (4) of the Criminal Procedure Code (CrPC), a wife is not entitled to maintenance if she is liable of adultery, refusing to live with her husband without any sufficient reason or if the divorce is sought by mutual consent. On sufficient proof, the husband can deny maintenance based on one of the above grounds.
There is no fixed formula for calculating the maintenance. Various factors are considered by the Courts including the living standards of the husband and the rational needs of the wife. However, the Supreme Court, in a recent case, has ordered that 25% of the husband’s net salary be paid as maintenance to his estranged wife. The court believes that this 25% will be the ‘just and proper’ amount as the husband needs to take care of his family, if he has remarried.
Yes. If the woman is earning but her income is not sufficient enough she can still claim maintenance from her husband. Usually, it is a common belief that working woman cannot claim maintenance but it doesn’t hold true when the wife’s earnings are not enough for her own well-being. A wife’s ‘earning capability’ is different from her ‘actual earning’ and just because she is working doesn’t deny her rights to claim maintenance. It’s up to the court to decide whether a woman actually requires maintenance or not and it depends upon the case.
It depends on the case. The earning status of both the parties will be considered during maintenance proceedings. Since both the husband and wife are earning equally there is no legal obligation for the husband to provide maintenance to wife. But if the wife is holding custody of the minor child, the expenses of the child should be shared equally by the husband.
No. If a woman is earning much more than her husband, she is not entitled to claim for maintenance.
No. A wife is not entitled to maintenance if she remarries or if the divorce is by mutual consent. The wife continues to get maintenance from husband until the time set by the court comes to an end.
A case can be filed under Section 125 CRPC before the family court or judicial magistrate nearest to the husband or wife’s current residence or where they resided as a couple along with essential documents such as photographs of marriage and marriage certificate as evidence.
An application for maintenance can be filed during the divorce proceeding or after getting the divorce decree.
Alimony is a one-time payment usually made once the divorce is finalised and is mostly preferred in mutual consent divorces, whereas maintenance can be temporary or permanent and will be paid for continuous period of time either monthly or periodically for the sustenance of the spouse.
No. A wife can claim for maintenance by stating her inability to support herself financially and file for the same before, during and after a divorce. ‘Maintenance’ is provided for the sustained well-being of the wife after divorce if she is not financially independent and is unable to earn to maintain the same standard of living that she had during her married life.