RIGHT TO MAINTENCE: AN ESSENTIAL RIGHT
*By Purbasha Pattnaik, 4th Year student at Madhusudan Law University
India is a country with numerous religions which co-exist peacefully as they are governed under some criminal and personal laws. Every citizen of the country is protected under certain laws and has some responsibilities and if any dispute regarding any personal issues arises they are dealt by their personal laws respectively. Personals laws regulate and cover different aspects such as marriage, divorce, maintenance, inheritance etc. This paper deals with one of the rights that are governed under the personal law that is “Maintenance”.
The concept of ‘maintenance’ in India is covered under some of the criminal laws as well as personal laws and also includes some specific articles of constitution of India. The laws that are prescribed under different statutes for governing the rule of maintenances are as follows:
- Constitution of India [article 15(3) and 39)
- CRPC (section 125 and sec. 126-128 considered under it)
- Personal laws:
- The Hindu Adoption and Maintenance Act, 1956(section 18)
- The Hindu marriage act 1955 (section 25 and 26)
- Women Protection Of- Rights On Divorce Act, 1986
The constitution of India under Article 15 (3) supported by article 39 also stems to the concept of maintenance and prescribed certain laws to govern this concept.
What is maintenance and why is it necessary?
‘Maintenance’ is a term used in a wider sense. Basically it means maintaining or preserving someone. It imposes an obligation to provide certain basic amenities like food, clothing, shelter etc without which one cannot survive being typically available to wife, children and parents when they are unable to maintain themselves. But with time and changing lifestyle, any requirement regarding health and fitness will be met and falls under the periphery of maintenance. Its concept is varied and extensive. Maintenance can be claimed by people who belong to different religion either under their personal laws or under section 125 crpc which is a criminal proceeding applied to every citizen of India regardless of their caste, creed, colour or gender.
As we live in a male dominant society to provide equal status to women and creating an environment where she lives in an equal status with men the law of maintenance came into force. This is like an aid to those who fails to maintain themselves. This law doesn’t focus on punishing the person who neglects his past duties but to compel them to provide support to those who are unable to support themselves to avoid vagrancy.
Who is entitled to claim maintenance and from whom?
Many statutes have prescribed laws regarding maintenance of wives, children and parents starting from criminal proceedings which are applied to every citizen of the country to civil proceedings which are governed by the personal laws of different religion. So persons who are entitled to claim maintenance under the code of criminal procedure are prescribed under section 125.
Section 125 of crpc applies to any relationship where one person whose legal duty is to maintain another who is unable to maintain themselves. It’s generally the natural duty of a man to maintain his wife, children and parents.
Wife – Section 125 seeks that the wife should be his legally wedded wife under the personal law applicable to the parties and it should be proved before the court of law for the wife to claim maintenance. In the case of Ahmed khan v. Shah Banu begum1, the SC held that section 125 is applicable to all persons irrespective of their religion. But this decision was then challenged and not accepted by many muslim fundamentalists, so later the parliament passed an act ‘protection of rights on divorce’ which provides all rights to a muslim women and it also allowed her to seek remedy under sec 125 crpc only if it is consented by the husband. Wife means the wife who’s divorced or divorced by mutual consent can claim for maintenance.
As this procedure through crpc is one of the fastest ways to get the order of maintenance still some people prefer claiming maintenance through personal laws. Every religion has certain rules and practices of its own which are followed by all the people of that particular religion.
Under Hindu law it’s the personal obligation of the Hindu man to maintain his wife. A Hindu women who has been separated from her husband on reasonable cause, is entitled to claim maintenance under two different acts namely,
- Hindu adoption and maintenance act,1956
- Hindu marriage act, 1955
Under the Hindu adoption and maintenance act sec 18 prescribed the right of Hindu wife to claim maintenance whether she is married before or after the commencement of this act she can claim maintenance under this during her life time. Sec 18 conferred 2 separate rights to the wife, that are, Right to maintenance and Right to separate residence.
Under Muslim law it was held that a divorced wife can claim maintenance from her husband only during the period of iddat,(1.1985 Cr. L.J. 875 (S.C.)) but it was considered irrelevant after the making of the provision on sec 125 of crpc. Shabana bano v. Imran khan1 in this case it was held that a wife can claim maintenance from his divorced husband even after the expiry of the iddat period.
Children – Sec 125 of crpc prescribed that, A minor child who has not reached the age of 18 either legitimate or illegitimate whether married or not can claim maintenance if he’s unable to maintain itself or earn his livelihood. It’s the primary duty of the parents to maintain the child. The legitimate child if has attained the age of majority but due to the reason of any physical or mental abnormality or injury unable to maintain itself then they can also claim maintenance. The duty to maintain a child fall in the hand of both the parents, they have to share the duty as per their earning capacity.
Parents – Both mother and father is entitled to claim maintenance whether natural or adoptive. They can claim from any one or more of their children. A daughter is also entitled to pay maintenance to her parents. A step mother is also entitled to claim maintenance
Conditions to claim maintenance and how much amount of maintenance can be claimed.
As stated above anyone who is unable to maintain themselves can claim maintenance from their husband, parents and children. But there are certain conditions that are prescribed in the code which have to be fulfilled to claim the maintenance. The conditions are as follows-:
- A person should have the ability to pay maintenance, as in he is able to earn a proper live livelihood, with proper healthy and physical conditions, must be employed and have a proper source of income, so that he can maintain others.
- Any person who have neglected the claimant and refused to pay maintenance.
- (2010) Cr. L.J. 521 (S.C.)
- Persons who are claiming maintenance must be unable to maintain themselves.
- If a person is healthy, adequately educated or capable of pursuing gainful employment no maintenance is given. Wives and elderly parents are generally given maintenance.
- If the wife is an earning lady only that mere fact does not disentitle her from claiming maintenance. If she is unable to maintain the same standard of living as her divorced counterpart that is enough to claim maintenance.
Amount – Amount of maintenance prescribed under the code of criminal proceedings under sec 125 previously was a sum not exceeding Rs. 500/- but after the amendment in 2001 it has been omitted from the provision and as per the new amendment the amount of maintenance will be the discretion of the magistrate. The magistrate will decide according to the capacity and whether people who have to pay maintenance have the sufficient means to pay that sum.
Grounds where maintenance cannot be claimed.
Only if the above conditions are satisfied then one can claim maintenance. But there are some grounds under which one can deny maintenance even if these conditions are satisfied. It is as follows -:
- If the marriage is not lawful as per their religion
- If the wife is living in adultery.
- If the wife and the husband has decided with mutual consent to live separately.
- If anything related to maintenance has been decided by the competent civil court.
- The time when the wife remarries another man after the divorce then she is not entitled for maintenance and the amount of maintenance she used to receive will be cancelled from the date of the new marriage.
- If the child is not a minor and is able to maintain themselves.
- The daughter if she got married.
- A step mother if she has a son or daughter of her own.
If any of the above condition is mentioned and proved by the person who is entitled to give maintenance before the court of law then he will not be entitled to pay any maintenance to anyone. And if none of the above is satisfied and still that person fails to comply the order of the court then the magistrate under section 125(3) can take necessary action against them such as if there is breach of contract then a warrant for the levying of the amount will be issued and if still that person fails to act then the magistrate may order an imprisonment extended to 1month until the amount is paid sooner.
From the above mentioned facts it’s clear that every citizen of the country are governed under different statutes it can be criminal or civil or personal. Law are made for ensuring the safety and maintaining the balance in the society. Laws of maintenance prescribed under sec 125 crpc and some of the personal laws clearly state that no one should be left unmaintained if they are unable to maintain themselves. In most case scenarios if the wife got divorced from his husband then it is the right of the husband to ensure that the wife maintains a good and healthy life and have an equal status as him. It’s the responsibility of each of the parents to ensure that their child get proper care and facilities until they are minor and a good educational qualification. The child has the responsibility to maintain his parents if they are unable to maintain themselves. The basic necessities of the every person must be fulfilled so that they could lead a proper life. Earlier the society doesn’t accept live in relationships but the recent judgements and decisions of the courts ensure any person in such relationship can also claim for maintenance and have all the rights prescribed under the code. These laws work as a remedy to those who are not treated properly and are neglected by those who are able to and have sufficient means to take care of the other. Especially sec 125 ensure speedy trails and a definite solution to any issue arising in cases of maintenance.
- The code of criminal procedure,1973 by S. N. Mishra