Maintenance to Women under S. 125, Hindu marriage Act. What is maintenance? In broadly speaking meaning of maintenance is the financial support that the women can claim from her husband after divorce. Working women can also claim maintenance. Besides that women, children and parents also claim maintenance. There are so many laws that provide the provision of maintenance like Section125 of Criminal Procedure Code, Hindu Adoption and Maintenance Act, Hindu Marriage Act, Domestic Violence Act. A woman can claim maintenance under any law or in all the law. Therefore, in other words women can claim maintenance for her day to day expenses.
Section 125 of the Criminal Procedure code
The object of maintenance to Women under S. 125 is not to punish a person for neglect to maintain those whom he bound to maintain. This section provides only a speedy remedy by a summary procedure to enforce liability to avoid vagrancy. After marriage, the husband has to provide shelter and maintenance to the wife. If he neglects, the wife is legally entitled to have it from the court by petition under this section.
If any person who is having sufficient income. And who refuses to maintain his wife. Or he refused to maintain his legitimate and illegitimate minor and major child. Or he refused to maintain his father and mother who are unable to maintain themselves. So, in such cases magistrate may pass an order for such monthly allowances to wife, child, mother and father. In this provision, the wife includes who has obtained a divorce from her husband and has not remarried. A married daughter is not entitled to claim maintenance under S. 125. of CrPC.
If such a person is unable to comply with that order the Magistrate may issue a warrant or may sentence such person. And wife cannot claim maintenance if she is living in adultery. The magistrate shall cancel the order of maintenance if she is living in adultery.
Whenever there are changes in circumstances, women can make an application for alteration of monthly maintenance orders.
Where to apply for maintenance
Application for maintenance may file
against any person in any district. And where he or his wife reside or he last resided with his wife.
Section 24 of the Hindu Marriage Act (maintenance to women)
Both husband or wife can claim maintenance under the Hindu Marriage Act. Under this act husband or wife can make an application for maintenance. If either of them has no sufficient independent income for his or her support or the expenses of the proceeding. Either of the party can claim maintenance for the litigation expenses.
Domestic Violence Act (maintenance to women)
Section 18 of Hindu Adoption and Maintenance Act (maintenance to women)
As per the provisions of this act, the Hindu wife is entitled to claim maintenance from her husband during her lifetime. Hindu wife cannot claim maintenance if she is unchaste or she converts to another religion. Wife can reside separately from her husband and claim maintenance on the following grounds:
- A person abandon his wife without any reasonable cause without her consent
- Husband treated his wife with such cruelty
- If a person is suffering from leprosy
- If the husband has another wife living
- When a person keeps concubine in the same house
- A person converts to another religion
Attachment of salary
Salary which is movable property that can attach for payment of arrears of maintenance. Future salary can also attach to the past arrears. Magistrate can give direction to attachment of salary.
Fixation of quantum
Where the petitioner has not mentioned the particular amount of maintenance, the amount can determine the magistrates. There are no specific restrictions under section 125 of Cr.P.C. that the magistrate cannot award more than the amount claimed in the petition. The quantum of maintenance calculates based on income and the earning capacity of the husband, his liabilities, the basic need of the applicant, etc. And also the income of the wife. Normally maintenance amount should not exceed 1/3rd of the total income of the opposite party. Therefore, in computing the quantum of maintenance net salary is to be calculated after deducting from the gross salary.
Warrant of arrest on an application for payment of arrears of maintenance cannot issue without first having recourse to attachment and sale of the property of the person so liable. The court can not order the first arrest of the opposite party without first ordering attachment of property. In normal circumstances, the issuance of distress warrant is a condition precedent for exercise of power to sentence conferred by section 125.
In the case of non-payment of the maintenance allowance, the magistrate can impose a sentence for a term which may extend to one month or until the payment, if sooner, is made. He can not impose a sentence for more than one month. However, this power of magistrate can not be enlarged and the only remedy would be after the expiry of one month, for breach of non-compliance of the order of the magistrate, that the wife can approach him again for similar relief.
Section 125 of the Criminal Procedure Code and Hindu Adoption and Maintenance Act 1956.
Section 4(b) of the Hindu Adoption and Maintenance Act does not affect in any manner the provisions of section 125 of the Criminal Procedure Code. There is no inconsistency between the Maintenance Act and Section 125 of Cr.P.C. The scope of the two laws is different. The Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among the Hindus.
Whereas section 125 provides a summary remedy and applies to all persons belonging to all religions and has no relationship with the personal law of the parties. The remedy available under Section 18 of the Hindu Adoption and Maintenance Act, 1956 and Section 125 are co-existence, mutual complementary, supplementary, etc. However, the remedy resorted either of them can not foreclose the remedy under the other law.
Section 125 of Cr.P.C and Section 24 of Hindu Marriage Act
Both provisions are distinct and different and they are worked for different purposes before courts of competent jurisdiction. However, they do not overlap with others. As such, where interim maintenance granted u/s 24 of Hindu Marriage Act that does not warrant cancellation of maintenance allowed under section 125 of Cr.P.C. The grant of pendente lite maintenance under Section 24 of the Hindu Marriage Act does not affect the right of a wife to claim maintenance under section 125 of Cr.P.C.
What is the difference between Maintenance and Alimony?
Alimony and maintenance both are different concept. Alimony is the lump sum amount paid after divorce from husband. And wife gets the maintenance amount from her husband after divorce. And maintenance amount is the monthly amount paid to the wife over a continuous period.
Can working women entitled to claim maintenance from her husband?
The answer to the above question in a broad sense is Yes. But there are different opinions of different courts. Working women too claim maintenance from her husband depends upon facts, circumstances, and merits of every case. Therefore even working women can claim maintenance.
What is the right of the husband to claim maintenance from his wife?
The husband can claim maintenance from his wife if the husband is unable to earn. Husband has to prove his incapacity to earn. But if the husband is earning a good amount then he can not claim maintenance.
Working women can claim maintenance