This CASE SUMMARY has been done by Divya K. (currently pursuing BBA LLB in Symbiosis Law School)
Table of Contents
Maintenance can be referred to as financial assistance given to either of the litigating parties after they have parted ways. It is a court-ordered allowance that one spouse has to give another as support after they got separated or divorced. It is also referred to as alimony, spousal support, etc. the major goal of granting maintenance is to keep the spouse’s quality of living comparable to that of the other spouse and in line with their status prior to the separation. It is awarded during the divorce case or after the divorce order, and it ends when the alimony recipient dies or remarries. When a divorce case is being litigated, maintenance is frequently considered. Maintenance laws vary from one personal law to another. It is not gendered specific, either spouse can seek alimony, and the other is expected to support them throughout and after the marriage. Previously, males were expected to or held accountable or held accountable for paying alimony to their wives. However, women eventually gained economical power and now the law treats men and women equally, allowing either to be held equally liable for maintenance, based on their financial circumstances. Maintenance is not an absolute right, but it is one that can be claimed by either spouse after a divorce, and it will be given by the court based on the facts and financial circumstances of the parties.
FACTORS THAT ARE CONSIDERED BY THE COURT WHILE DETERMINING THE MAINTENANCE:
- The duration of the marriage is a significant element in determining the amount and the time period for which maintenance has to be provided. If the marriage lasts more than ten years, maintenance will be granted indefinitely.
- Maintenance is generally provided to equalise the economic circumstances of both parties or to ensure that they retain the same standard of life as previously. The spouse with the higher earning potential is responsible for paying the other.
- When determining the amount and duration for which maintenance has to be given, the age of the spouse is also taken into account. The younger recipient of support is granted maintenance for a shorter amount of time in the hopes of quickly resolving their financial issues.
- Generally, the spouse with a successful career is held liable for paying the higher sum.
TYPES OF MAINTENANCE:
There are two types of maintenance:
It is also referred to as maintenance pendente lite, and it is the amount that the court asks either of a spouse to pay to another during the ongoing court proceedings. The main purpose of this type of maintenance is to cover the immediate and necessary expenses of the spouse who is a party to the proceedings.
As the name suggests, permanent alimony continues for a lifetime. It is a provision that takes effect once the parties have been judicially separated or their marriage has been dissolved. This type of maintenance is granted under the following circumstances: the beneficiary has no skill or experience working but serves as a housekeeper, and the recipient is unable to work due to a permanent bodily defect. Maintenance can be paid in instalments or as a flat sum. The payment of such maintenance stops when one of the parties dies or when the court directs it to stop. The court has not had an independent complete discretion over whether or not to grant permanent alimony.
PROVISION UNDER HINDU MARRIAGE ACT:
Maintenance is governed under sections 24 and 25 of the Hindu Marriage Act, 1955. Under Hindu law, both wife and husband are allowed to seek maintenance. Section 24 states that when either of parties does not have an independent income source to support themselves or to take care of the necessary expenses with respect to the court proceedings then either of them can claim maintenance and the court may direct the spouse to pay the amount.In Kanchan v Kamalendra, the court iterated that not only the wife but also the husband can claim maintenance under pendente lite showing that he has no independent source of income. But the husband has to prove that either due to physical or mental disability he is handicapped to earn and support his livelihood. In this case, the husband was fit and healthy both physically and mentally, only his business closed down, and thus, section 24 cannot be applied in this case. Section 25 deals with permanent alimony and maintenance rights under the Hindu marriage act. The court may ask either of the parties to pay the appellant for his/her maintenance and support depending upon his own income.
Sub-section 2 of the act states that if the court is satisfied that there is a considerable change in the circumstances of either party (i.e., income) after the order has been passed under sub-section (1) then upon appeal by either of the parties, the court may change, modify or rescind the order upon its own discretion. Sub-section (3) states that if the court is satisfied that the in whose favour the order was made under this provision has re-married or if that party is wife, she did not remain chaste or if that party is husband, he had sexual intercourse with another woman outside the wedlock. At the instance of the party, the court may change, modify or rescind the order as per its discretion. The parties can claim maintenance under section 125(1) under Code of Criminal Procedure. It grants temporary maintenance, i.e., pendent lite to the recipient. In Dr. Kulbhushan v Raj Kumari and Anr, the court iterated that the amount of maintenance is determined on the basis of the facts and circumstances of the case and the court can even mould the amount of maintenance if such change is justified.
The current article covered the aspects related to the maintenance of rights of women under Hindu laws. Women can claim maintenance under section 24 and section 25 of the Hindu Marriage Act, 1955. Apart from Hindu Marriage Act, the party can also claim maintenance under section 125 of Cr.P.C. Even though the Hindu Marriage Act provides the necessary provisions with respect to the maintenance rights, still there are few areas that seem unjust and unconstitutional. Section 25 (2) provides that if there is some change in the financial circumstances of parties then upon instance by either party, the court may modify the order passed under sub-section (1). This section is not clear and it seems as it is based on the assumption which leaves ambiguity with respect to its implementation. Section 25 (3) mentions the chastity of woman which takes away the autonomy and right to privacy of woman. These aspects can be observed and modified into a better provision.
 Hindu Marriage Act, 1955, § 24, No. 24, Acts of Parliament, 1955 (India).
 Kanchan v Kamalendra, AIR 1993 Bom 493.
 Hindu Marriage Act, 1955, § 25, No. 24, Acts of Parliament, 1955 (India).
Dr. Kulbhushan v Raj Kumari and Anr, 1971 AIR 234.