This article is written by PRANIT BHAGAT pursuing B.A LLB from ILS Law College, Pune. In this article, he has discussed the various types of maintenances under Hindu law and Muslim law and also compared both of them.

INTRODUCTION

The main reason behind the concept of Maintenance is to see that if one of the spouses is not independent financially so the other spouse helps him/her to make the living of another person possible. In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. Maintenance can be defined as the amount paid by the husband to his wife after divorce or the amount which the family member of the husband pays to the widow of their son. Maintenance includes necessities like:

Food, Shelter, Clothing, etc.
The necessary thinks and comfort which a rational man expected to get.

Meaning and Concept of Maintenance

The maintenance is given by the person on whom the other person depends on. The amount of maintenance is dependent on the earning of the person and the necessities which other people required and the necessities which a rational man needs to live a normal life. The people who are entitled to get maintenance under the Hindu Adoption and Maintenance Act are wives, widow daughter in law, child, aged parents, etc. and the people who are entitled to get maintenance are wife, young children, parents, another person within the prohibited degrees under the Muslim Law.

Types of Maintenance

Interim Maintenance
Permanent Maintenance

1. Interim Maintenance

This maintenance is paid from the date of filing of the petition to the date of the dismissal of the suit. Its main purpose is to meet the immediate needs of the petitioner. It is the amount that is paid by the financially independent person and upon whom the other person is financially dependent. This amount includes the expenses of the proceeding as well as other expenses during the proceeding.

2. Permanent maintenance

It is the amount which is been paid by one party to another after the judicial proceeding i.e. result is the dissolution of marriage or judicial separation.

Maintenance under Hindu Law

In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. So that she/he can maintain their life as when they lived together. The maintenance is given by the person on whom the other person depends on. The amount to the maintenance is dependent on the earning of the person and the necessities which other people required and the necessities which a rational man needs to live a normal life. Section 24 of the Hindu Marriage Act talks about the maintenance and how a wife or a husband can claim Interim maintenance. Both husband and wife can claim for the interim maintenance under the Hindu and Parsi Marriage Act. The wife can file the petition for Interim maintenance under Section 36 of the Divorce Act. The concept of Permanent Maintenance is introduced as an amount which a person pays to another person as maintenance in gross sum or periodically or monthly as per the orders of the court.

Maintenance of Wife under Section 18 of Hindu Adoption and Maintenance Act, 1956

According to Section 18(1) of Hindu Adoption and Maintenance Act, 1956 the wife has been entitled to get the maintenance amount from her husband until she or he dies. A Hindu wife is also entitled to take get maintenance even if she is living separately from her husband on the following grounds:

1. When the husband is liable for desertion.

2. When the husband is liable for cruelty.

3. When the husband is suffering from leprosy.

4. The husband is liable for bigamy.

5. The husband converts his religion without the consent of the wife.

Maintenance of a Hindu wife under Section 125 of the Code of Criminal Procedure

As per Section 125 of the Code of Criminal Procedure, only a woman either take divorce or given divorce by her husband and who hasn’t remarried any other man is entitled to get maintenance. A married woman who denies living with her husband as he is liable for desertion or liable for cruelty or is suffering from leprosy or liable for bigamy or converts his religion without the consent of the wife can claim a special allowance under this Act.

Caselaw: D.Velusamy vs. D.Patchaiammal,

According to Section 125 of the Code of Criminal Procedure, The wife had filed a suit against her husband with a demand for maintenance where the court had granted it.

Under Section 125 of the Code of Criminal Procedure the person has to maintain:

1. His Wife, who unable to maintain herself.

2. His Legitimate or illegitimate minor child whether married or not married, who unable to maintain itself.

3. His father and mother, who unable to maintain themselves.

Caselaw: Gomaji vs Smt. Yashoda,

The petitioner is the Husband who filed a case under Section 13 of the Hindu Marriage Act seeking a divorce from his wife who is the respondent. Later, she filed an application under Section 125 of Code of Criminal Procedure claiming Maintenance. The court accepted the divorce and thus, passed the order against the petitioner to give monthly Maintenance to his wife.

Maintenance as an Award to Wife under Section 23(2) of the Hindu Adoption and Maintenance Act.

Section 23 of the Hindu Adoption and Maintenance Act talks about the people who can claim the maintenance and how it can be calculated. The analyzing factors of the amount are:

Status and Position of the parties.
The basic necessity of the claimant.
The basic comfort which a reasonable man needs.
The value of the property whether movable and immovable, of the Respondent.
The income of the respondent.
The number of members who depended financially on the respondent.
The degree of relationship between the two.

Maintenance under Muslim Law.

According to the various theories of Muslim Law, A man is considered superior to the woman. They believed that a woman is not capable to maintain themselves as there is a direct dependency on their husbands. In Muslim law, married women have the right to get maintenance from her husband even if she refuses to access her husband and cannot be consummated, but if she is too young and lives with her mother and father she is not entitled to get maintenance. Muslim law has given the right of maintenance to the wife if she has to live separately from her husband because of the cruel nature and non-payment of dower. But she cannot claim maintenance during the widowhood of iddat. Prior the divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. But after the judgment given in the case of Shah Bano, divorced women can get maintenance from her husband on reasonable ground and from the family of the husband after his death

Maintenance of Muslim Women under Section 125 of the code of criminal procedure, 1973.

The provision of under the code of criminal procedure secular in nature. It talks about a Muslim woman demanding the maintenance under Section 125 of the code of criminal procedure where she can be entitled to get the maintenance only if she is not remarried.

Caselaw: Mohd. Ahmed Khan v. Shah Bano Begum Case

This case talks about the situation where the husband gives divorce to his wife when she was 68 years old and has five children. Under Muslim law, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. The Shah Bano Begum files a case and claims the maintenance under Section 125 of the Code of Criminal Procedure where she gets successful and gets the maintenance from her husband on reasonable ground and the family of the husband after his death. After this historical judgment of Shah Bano Begum, the Muslim Community started criticizing the court of law as according to them the judgment directly affect the provision of their law. According to their law, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. But the government at that time under the pressure of the Muslim community brings a law which directly overrules the judgment. The government had approved The Muslim Women (Protection of Rights on Divorce) Act, 1986. In this Act, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. Finally, all the case pending in the court of law related to Muslim women and their right to Maintenance under Section 125 of Code of Criminal Procedure were disposed of.

Caselaw: Danial Latifi & Anr vs Union Of India

In this case. The husband had filed a petition against the order of the Madhya Pradesh High Court where he was asked to pay maintenance to his wife as per Section 125 of the Code of Criminal Procedure. He submits the fact that he paid the Mehr amount as well as the maintenance to his wife until her iddat period. Now as per Muslim law, he shall not be liable to pay any amount as maintenance to his wife. The Supreme Court gives the judgment in husbands favour as their case comes under The Muslim Women (Protection of Rights on Divorce) Act, 1986 and the order of the High Court of Madhya Pradesh were as per the Section 125 of the Code of Criminal Procedure so the order of the High Court is not valid.

Comparison of Maintenance of Wife under Hindu and Muslim Law

A Hindu woman is said to enjoy more rights than Muslim women. According to Section 18(1) of Hindu Adoption and Maintenance Act, 1956. A Hindu wife is entitled to get the maintenance amount from her husband until she dies. As per Section 125 of the Code of Criminal Procedure, only a Hindu Married woman either take divorce or given divorce by her husband and who hasn’t remarried any other man is entitled to get maintenance. A married woman who has refused to live with her husband as he is liable for desertion or cruelty or is suffering from leprosy or liable for bigamy or convert his religion without the consent of the wife can claim a special allowance under this Act. But, under Muslim Law, the divorced women does not the right to claim maintenance after the period of iddat and gets the amount of Mehr only and after The Muslim Women (Protection of Rights on Divorce) Act, 1986 came in the picture the Muslim Woman cannot claim maintenance under Section 125 of Code of Criminal Procedure.

Conclusion

As per Hindu Adoption and Maintenance Act, a person is entitled to get maintenance are wives, widow daughter in law, child, aged parents, etc. and As per Muslim Law, the people who are entitled to get maintenance are wives, young children, parents, another person within the prohibited degrees. Under Muslim law, Prior the divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. But the judgment was given in the Shah Bano from the family of the husband after his death case enables divorced women to get maintenance from her husband on reasonable ground and But after the judgment of the case, The government enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986. In this Act, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. Finally, all the case which are pending in court related to Muslim women and their right to Maintenance under Section 125 of Code of Criminal Procedure were disposed of.

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