LAWS RELATING TO MAINTENANCE OF WIFE IN

INDIA.
SUBMITTED TO: - SUBMITTED BY: -
Dr. Fr. Peter Ladis F. Pratiyush Kumar
FACULTY OF LAW Roll: 1750
4TH Semester
FINAL DRAFT SUBMITTED IN FULFILMENT OF THE COURSE TITLED CRIMINAL
LAW – II FOR OBTAINING THE DEGREE BA.LLB(HONS.) DURING THE
ACADEMIC YEAR 2018-19.

February 2019

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001

1
DECLARATION BY CANDIDATE

I, PRATIYUSH KUMAR, student of Chanakya National Law University hereby declare that the
work reported in the B.B.A.LL.B.(HONS.) project report entitled: Victims’ right to
compensation and 2009 Amendment in the provisions of Cr.P.C. submitted at Chanakya
National Law University, Patna is an authentic record of my work carried out under the
supervision of Dr. Fr. Peter Ladis F. I have not submitted this work elsewhere for any other degree
or diploma. I am responsible for the contents of my Project Report.

(Signature of the Candidate)

NAME: PRATIYUSH KUMAR

ROLL NO: 1750

COURSE: B.A., LL.B. (Hons.)

SEMESTER: 2018-2019 (4th)

SESSION: 2017-2022

2
ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Fr. Peter Ladis F. whose guidance helped me a lot with
structuring of my project. I take this opportunity to express my deep sense of gratitude for his
guidance and encouragement which sustained my efforts on all stages of this project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.

THANK YOU

NAME: PRATIYUSH KUMAR

ROLL NO: 1750

COURSE: B.A., LL.B. (Hons.)

SEMESTER: 2017-2018 (4th)

SESSION: 2017-2022

3
CONTENTS

DECLARATION BY CANDIDATE ............................................................................... 2

ACKNOWLEDGEMENT ................................................................................................ 3

CONTENTS ...................................................................................................................... 4

CHAPTER 1: INTRODUCTION ................................................................................... 5-7

CHAPTER 2: MAINTENANCE UNDER DIFFERENT PERSONAL LAWS ........10-33

 Hindu law
 Muslim law
 Christian law
 Parsi Law
CHAPTER 3: MAINTENANCE UNDER CRPC (SECULAR PROVISION)..........34-40

 Who are entitled.

 Procedure
 Legal Frame work:

CHAPTER 4: MAINTENANCE LAW- OUTSIDE INDIA ........................................ 41-43

 USA
 SCOTLAND
 ENGLAND
 GERMANY
 CANADA

CHAPTER 5: CONCLUSION AND SUGGESTIONS.................................................44-45

CHAPTER 6: BIBLIOGRAPHY ........................................................................................ 46

4
CHAPTER 1: INTRODUCTION

Maintenance according to oxford dictionary means “The process of preserving a condition or

situation or the state of being preserved”.

The whole concept of maintenance was introduced in order to see that if there is a spouse who
is not independent financially than the other spouse should help him/her in order to make the
living of the other person possible and independent. Providing maintenance means that the other
person who is getting the maintenance should be able to live the life as he or she lived before
marriage in case of divorce and in case where the two partners are not living together and they
seek maintenance than the spouse getting maintenance should be able to live a life as when they
lived together. Maintenance is the amount which a husband is under an obligation to make to a
wife either during the subsistence of the marriage or upon separation or divorce, under certain
circumstances. Maintenance not only includes basic necessities like food, clothing and residence
but it also includes the things necessary for comfort and status in which the person entitled is
reasonably expected to live. [1] According to me the main aim of providing maintenance is that
the wife should not be left destitute on separation or divorce from her husband. In a laymen’s
term maintenance are those things which are indispensible for the survival of human being.

The most important aspect of maintenance is that the party which relies on maintenance has no
independent source of income to support himself/herself. The main point we have to focus on in
independent income. Should the spouse who is claiming maintenance have movable or
immovable property, the spouse can still claim maintenance if the property does not yield any
income.

The question of maintenance of wife may arise in the following two cases:

5
The husband is under an obligation to maintain his wife as she is faithful to him and obeys his
reasonable orders. In an interesting case1, decided by Strachy and Badruddin Tyabji JJ, it was
held that a disobedient wife need not be maintained. Strachy J, observed:“The husband’s duty to
maintain his wife is conditional upon her obedience and he is not bound to maintain her if she
disobeys him by refusing to live with him or otherwise2 (here in this case the wife) only paid
occasional visits to his house , staying for a night or so at a time from the 6th of March to 23rd
June 1895 returning on each occasion to her mother’s house .. I am clearly of the opinion that
in such circumstances a Mohammadan husband is not bound to give this wife separate
maintenance”

However, it would be interesting to point out that neither any literature, nor the courts of law
have demarcated the degree of disobedience that may deprive a wife from her entitlement to
maintenance. It may be a ticklish task, to determine the exact borderline between obedience and
disobedience. To the same effect were the observations of Tyabji J: 3

“It is impossible to hold that a mussalman wife defying her husband refusing to live with him
and bringing scandalous charges against him, can yet claim to be maintained separately at the
expense of her husband.”In matters of maintenance, it is immaterial that the wife has the means
to maintain herself while the husband has no means. What is pertinent is that the marriage must
be regular and lawfully valid. However, a marriage which is irregular solely because of the
absence of witnesses is deemed regular for the purpose of maintenance. The wife is not entitled
to initiate legal action against her husband for past maintenance unless the claim is based on a
specific agreement. As held in Abdool Futteh v Zabunnessa4. The court stated:

“When a woman sues her husband for maintenance for a time antecedent to any order of the
judge or mutual agreement of the parties, the judge is not to decree maintenance for the
past”.This opinion has been validated almost on the same lines in the Hedaya. The decree of the
lower court, which awarded Rs 1400 for arrears of maintenance from March 1878 until the end
of June 1880 at the rate of Rs 50 a month was reversed. The exceptions to the ground of refusal

1
(1896) 21 Bom 71
2
Baillie, Niel B.E, Digest of Moohummudan law , part First (Hanafi Law) 2nd edn. London 1875, p. 438 2 1957 All
LJ 300
3
(1896) 21 Bom 71
4
(1881) 6 Cal 631
6
to free access are his cruelty and keeping a concubine by him, similarly there are exceptions to
the ground of want of consummation – her pre-puberty age, her illness, old age, and his inability
to consummate. In these exceptions, she retains right to maintenance.

1) Maintenance by agreement

The husband and wife or their guardians may enter into an agreement whereby the wife is
entitled to recover maintenance from her husband on the happening of some specific event such
as ill treatment or disagreements or husband’s second marriage, etc. but any agreement in a
marriage which stipulates the non-entitlement of the wife to maintenance shall be void. Here the
key consideration is that the agreement should not be opposed to public policy and Muslim
law.In a remarkable judgement, Mohd. Muin-ud-din v Jamal Fatima5 the Allahabad High
Court has amply clarified the legality or otherwise of ante-nuptial agreements between husband
and wife or their guardians.

In this case:“Mehdi Hasan, the husband of the plaintiff had married twice before and on each
occasion he seems to have ill treated his wife. The father of the plaintiff was, therefore,
naturally anxious that something should be done in order to protect his daughter from similar
ill-treatment and to secure for her maintenance allowance in case his daughter and Mehdi
Hasan could not live happily together. The agreement in question provided that in case of
dissension or disunion the prospective husband and his father should be bound to pay an
allowance of Rs 15 per month, in addition to the dower debt, to the lady for her life; and certain
property was hypothecated to secure the payment of that allowance.” In all such cases, the key
consideration is that the agreement for future should not be opposed to public policy or
Muslim law.

This paper will aim to develop an understanding of the changes in Laws relating to maintenance
brought by recent enactments in India and in the meanwhile assess the adequacy of these
enactments in the modern scenario.

5
(1921) 43 All 650

7
OBJECTIVES OF THE STUDY:
 The researcher’s prime aim is to present a detailed study of "Laws relating to
maintenance of wife in India.", through articles, affirmations, decisions and suggestions.
 The researcher aims to descriptively provide a critical overview of the topics arising.
 The main goal of this research is to understand the legal position in Indian context.
 And also, to know about evolution of related case law(s) with changing spectra of society.

HYPOTHESIS:

1. Wife who lives in adultery cannot claim maintenance.

2. Maintenance of wife depends upon certain conditions.

RESEARCH QUESTIONS

1. What is the meaning of maintenance?

2. What are the objectives of maintenance provisions in different communities?
3. What are the essential conditions for claiming maintenance?
4. What are the legal provisions related to maintenance under Hindu and Muslim law?
5. What are the legal provisions related to maintenance under Christian and Parsi law?
6. How is maintenance under sec-125 crpc given?
7. Are there any drawbacks or irregularities pertaining to laws relating to maintenance in
india?
8. Does the said law operate adequately and adeptly?

RESEARCH METHODOLOGY:

The researcher will be relying on Doctrinal method of research to complete the project. These
involve various primary and secondary sources of literature and insights.

SOURCES OF DATA

 PRIMARY SOURCES
o CASE LAW.
o CONSTITUTION OF INDIA.
o CODE OF CRIMINAL PROCEDURE, 1973.
8
 o INDIAN PENAL CODE, 1860.
 SECONDARY SOURCES
o BLOGS
o BOOKS

o CASE COMMENTARIES.
o JOURNALS

REVIEW OF LITERATURE

 RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE, (22nd Ed., 2014, Lexis
Nexis).

This legal classic has served the legal profession and everyone associated with it for almost a
century. Learned yet simple in its approach, it allows readers to quickly grasp the principles of
Criminal Procedure and Criminology. All technical rules of procedure have been illustrated and
explained in a lucid, comprehensive and systematic manner. The 22nd edition of this work has
been painstakingly updated to include the latest case law, legislative amendments and current
developments in the law relating to criminal procedure in India. Case law decided under the old
Code of 1898 which continue to remain relevant has been retained under the corresponding
provisions of the new Code of 1973.

Authenticity, originality and reliability have always been the hallmarks of this publication and
every possible care has been taken in this edition to maintain the original excellence, style and
quality of the work. As has been the hallmark of previous editions, the current edition too offers
a great help to students and professionals, when they require a quick overview, in the form of
summary at the end of the work. The book is an invaluable source of reference for the widest
possible range of readers including students, academics, legal practitioners, judges,
administrators, public prosecutors, police officers and police trainees.

LIMITATIONS OF THE STUDY:

The researcher has territorial, monetary and time limitations in completing the project

9
II. MAINTENANCE LAW IN DIFFERENT COMMUNITIES

1) HINDU

Under Hindu Law, the claim to maintenance is a legal right and a demand and refusal are not
necessary for its creation. There is a legal obligation on part of the husband to make arrangements
for his wife’s due maintenance even if he goes abroad for business purposes. When a partition is
effected, the Hindu law enjoins that the wife must get an equal share with his sons. Thus
reinforcing the importance character of the right of maintenance which a Hindu wife or widow
possesses under the Hindu Life.6

The wife’s right to separate maintenance and residence was regulated by the Hindu Married
Women’s Right to Separate Residence and Maintenance Act, 1946. That Act has now been
repealed by S. 29 of the Hindu Adoption and Maintenance Act 1956. Section 18 of the Act lays
down that the wife, whether married before or after commencement of the act, is entitled to be
maintained by her husband during her lifetime, unless she is unchaste or has ceased to be Hindu
by conversion to another religion.

There are two statues that provide for maintenance i.e. Hindu Marriage Act, 1955 (herein after
referred to as HMA) and Hindu Adoptions and Maintenance Act, 1956. (Herein after referred to
as HAMA).As per Hindu Adoptions And Maintenance Act, 1956 “maintenance” includes- in all
cases, provision for food, clothing, residence, education and medical attendance and treatment
(Sec 3(b)).Section 18(1) of the HAMA provides for maintenance of wife and states:

“Subject to the provisions of this section, a Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to be maintained by her husband during her life-
time.” A wife is entitled to be maintained by her husband whether he possesses property or not.7
When a man knowingly marries a girl, accustomed to a certain style of living, he undertakes the
obligation arising from the very existence of the relationship, and quite independent of the
6
Tulasamma v.Vaddeboyina Sesha Reddi AIR 1977 SC 1944
7
Narbadabhai v Mahadev (1881) 5 Bom 99,103.
10
possession by the husband of any property, ancestral or self-acquired.8 The maintenance being
a matter of personal obligation, she has no claim for maintenance against her husband’s property
in the hands of a transferee from him. Nor has she any claim against the government, if his
property has been attached under Ss. 87 and 88, Code of Criminal Procedure, 1898, as the
property of an absconder9. Her remedy is to obtain a decree of a civil court creating a formal
charge on the property10

A wife is not entitled, during her lifetime, to be maintained either by her relations or by her
husband’s relations, even if she has been deserted by him, unless they have in their possession,
property belonging to her husband.11

The Husbands obligation to maintain her comes to an end only when she leaves him without any
good cause or without his consent12. Before 1956, it was a well settled law that an unchaste wife
who continues to live with her husband, was entitiled to, at least, a starving maintenance13. The
Dharamshastra laid down that an unchaste wife, who left her husband but subsequently repented,
performed expiratory rites, and returned to live with her husband, was entitled to maintenance.14

8
Jayanti v. Alamelu (1904) 27 Mad 45, 38.
9
Chatru v the Crown AIR 1928 Lah 681
10
Secretary of State for India v Abalybhai Narayan 40 Bom LR 422
11
Ramabai v. Tribbak (1872) 9 Bom HC 283
12
Bammadevara v. Bammadevan (1928) 55 MLJ 242, Sidlingappa v. Sidava ILR (1878) 2 Bom 634; Mutyala v.
Mutyala AIR 1958 AP 582
13
Parami v. Mahadevi ILR (1910) 34 Bom 278
14
Sita v Gopal AIR 1928 Pat 375; Shibli v Jodh ILR (1833) 14 Lah 750
11
RIGHT TO SEPARATE RESIDENCE

Under Section 18 (2) of the HAMA, a Hindu wife is entitled to maintenance if she lives separate
from her husband for a justifiable cause like: husband’s desertion, cruelty, leprosy, another wife
is living, concubine, conversion or any other justifiable cause.15 The arrears of maintenance are
recoverable. The court has power to pass interim orders of maintenance incidental or ancillary to
main power.

Under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of
wife is defeated. A wife under Hindu law is not entitled to a separate residence as her first duty is
to her husband is to submit herself obediently to his authority, and to remain under his roof and
protection.16 Mere unkindness17or quarrels18 or a second wife19 are insufficient grounds for a
women to leave her marital grounds and seek a separate residence. However, if she proves that
she has left the marital house due to his misconduct or by his refusal to maintain her in his own
20
place of residence or for other justifying cause, she is compelled to live apart from him Over
the years, the courts have held that cruelties, keeping a concubine are justifiable reasons to leave
the marital house. Cruelty may not be repetitive and only one act of violence is sufficient reason
to lawfully leave the house.21 A wife, on leaving her marital house without justifiable reasons
does not lose her right to maintenance, she can at any time return to her marital house and demand
to be maintained by her husband. Her right is not forfeited but merely suspended as long as she
commits a breach of duty by living apart from him22 However, the right of a married woman to
reside separately and claim maintenance, even if she is not seeking divorce or any other major
matrimonial relief has been recognized in Hindu law alone.

15
Sec 18(2) of HAMA
16
Sitanath v Halmbutty 24 WR 337, 379
17
(1875) 24 WR 377
18
Rajlukhy v. Bhootnath (1900) 4 CWN 488
19
Virasvami v Appasvami (1963) 1 Mad HC 375
20
Ajaib Kaur v. Uttam Singh AIR 1960 Punj 117
21
Ude Singh v Daulat Kaur AIR 1935 lah 386
22
Surampalli v Surampalli (1908) 31 Mad 338

12
Section 18 (3) lays down that, “A Hindu wife shall not be entitled to separate residence and
maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another
religion.” This provision is applicable only to sub-section (2) of section 18 of the HAMA, which
provides for separate residence and maintenance of wife in certain cases. It cannot be applicable
to facts falling under sub-section (1), where the wife is still residing with the husband. This is
made clear by section 24 which lays a general disqualification: a non-Hindu cannot claim
maintenance under the modern law. She could also not claim maintenance against her husband
under the old and modern Hindu Law. Her excommunication23 or the conversion of her
husband24did not lead to forfeiture of her right to maintenance under the law.

23
Queen v Marimutta ILR (1882) 4 Mad 243
24
Mansa v. Jiwan ILR (1884) 6 All 617

13
MAINTENANCE PENDENTE LITE

Sec 24 of HMA provides for maintenance pendente lite25and expenses for proceedings (for court
proceedings). The object of section 24 of the act providing for maintenance pendente lite for a
party in matrimonial proceedings is obviously to provide financial assistance to the indignant
spouse to maintain herself/himself during the pendency of the proceedings and also to have
sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct
of the case for want of funds. This object of the provision is to be applied at the discretion of the
court, having regard to the facts and circumstances of the case.26

The legislature by enacting this provision appears to have taken note of the fact that
during the pendency of the proceedings under the act, save for divorce or judicial separation, the
unity of the family will be disrupted and one of the two spouses will be thrown out of the
protection and shelter of the other and would be rendered without any means not only to maintain
herself but also to meet the expenses necessary for the proceedings which she has to undergo. In
order to alleviate such hardship, the legislature thought it fit to make a provision in the act for
maintenance pendente lite and expenses of the proceedings from the spouse who has means to
pay the same, if the other has no means.27 Once, a wife is divorced her remedy to seek
maintenance is under Hindu Marriage Act, 1955 and she cannot have any recourse under the
Hindu Adoption and Maintenance Act, 195628

In Bhanwar Lal v. Kamla Devi29Honourable Rajasthan High Court held that the object
of Section 24 of the HMA is to provide means to a spouse who has no independent source of

25
If the husband or the wife has no independent income sufficient for their support and the necessary expenses of
the suit, the Court may on the application of either of them order the defendant to pay the plaintiff all the necessary
expenses of the suit and such weekly or monthly income as considered reasonable by the Court
26
Dudhiben. Merakhbhai v. Nathabhai Hazabhai 1998 (2) Civil LJ 443; Lalubhai Keshavram Joshi v.. Nirmala
Bhen Laluram Joshi (1972) XIII GLR 626
27
Smt. Gangh Pundlik Waghmare v. Pundlik Maroti Waghmare AIR 1979 Bom 264
28
Paditrao Chimaji Kalure v. Gayabai AIR 2001 Bom 445
29
1986 HLR 235
14
income to contest a matrimonial proceeding. Indignant spouses require to be allowed
maintenance pendent lite and litigation expenses against the other spouse.

In order to award maintenance pendente lite to the wife or the husband as the case may be, the
court has merely to consider whether he or she has any independent income sufficient for his or
her support. If that court from the evidence before it holds that he or she has no independent
income for his or her support. If that court from the evidence before it holds that he or she had
no independent income sufficient for his or her support, the court is competent to pass an order
for maintenance pendente lite. In order to award maintenance under section 24 of the act,
conduct of either party is immaterial. But while passing an order for maintenance under
Section 25 of the act conduct of the parties would be relevant.30

An application under section 24 is to be disposed of during the pendency of the proceedings,

viz., the main petition. It is not right to say that because there are no words specifically saying
that an application under Section 24 has to be heard in the first instance, before ever the main
petition is taken up for trial, the court is at liberty to tack on the application with the Trial of
the Main Petition itself.31

For interim maintenance only income of the claimant has to be taken into consideration and not
his/her property and assets. Husband’s actual as well as potential earning (his disposable
income) is seen while deciding maintenance. There is a presumption that every able bodied
man has capacity to earn and maintain his wife. If the wife’s earning is sufficient to maintain
herself and live in comfort, husband could be exempted from paying maintenance. Death of a
husband does not extinguish alimony order and maintenance & it is to be paid from the estate
of deceased husband but only for the period till his death. Maintenance has been granted to a
wife of void marriage under HMA 1955 in few cases32.The provisions of Section 125 CrPC
and section 24 HMA are different. Both these provisions operate in different sphere and they
are independent of each other.33 There is no provision in the HAMA for granting maintenance
pendente lite and expenses of proceedings as provided for in Section 24 of the HMA. Hence
there is nothing in the scheme of section 24 of the HMA which is inconsistent with the HAMA
as to attract the bar of clause (b) of Section 4 of the HAMA. There are also no inconsistencies
between section 18 of HAMA and section 24 of HMA.34

30
Lallubhai Keshavram v. Vlth Addl. Dist. And Sessions Judge AIR 1999 All 4
31
Mythili Raman v. K.T. Raman AIR 1976 Mad 260
32
Govindrao v. Antabai AIR 1951 BOM433
33
Prem Nath Sarvan v. Smt. Prem Lata Sarvan. AIR 1988 Del 50
34
Vinod Kumar kajriwala v. Usha Vinod Kejriwala AIR 1993 Bom 160
15
PERMANENT ALIMONY

The power to grant alimony contained in Section 25 of the HMA has to be exercised when the
court is called upon to settle the mutual rights of the parties after the marital ties have snapped by
determination or variation by the passing of the decree under section 10, 11 and 13 of the HMA
act, read with sections 23, 26 and 27 of the HMA, a decree can be assumed to have been passed
when an application for divorce or similar other relief is granted by surely not when the
application is dismissed.35 Permanent alimony can only be granted only when there is a disruption
of the marital status between the parties, such relief cannot be given when the main petition for
divorce is dismissed or withdrawn.36 The Supreme court in the case of Chand Dhawan v.
Jawaharlal Dhawan37, in this case, the Supreme court held that:

“By courts intervention under the HMA, affecting or disruption the marital status has
come about, at that juncture, while passing the decree, it undoubtedly has the power to grant
permanent alimony or maintenance.”

The death of the husband against whom an order for payment of alimony has been made
does not mean that the widow is left without remedy. Relief is indeed available to her but not
under HMA but the provisions of HAMA that come into play. A decree for permanent alimony
is not extinguished by the death of the husband and the estate is liable to be proceeded against in
the hands of the heirs for the satisfaction of the decree.38

The claim under section 25 of the act has to made on an application furnishing all details
regarding his or her own income or other properties. Further an opportunity has to be given to
the other side to put forth his or her defence. Hence, permanent alimony and maintenance under

35
Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 All 150
36
Badri Prasad v. Urmilla Mahobiya 2001 (4) Civil LJ 360
37
1993 AIR SC 2548
38
Smt. Nandarani Mazmudar v. Indian Airlines AIR 1983 SC 1201

16
section 25 of the act, cannot be granted in the absence of the proper application.39 It is clear that
where there was no disruption of marital status between parties as prayer for divorce under
section 13 of the HMA was disallowed, there was no occasion for the court to pass an
ordergranting permanent alimony to the wife under section 25 of the act.40 If the petition for
divorce filed by the husband on the grounds of cruelty is dismissed, there being remedy either
under section 125 of CrPC or under Section 18 of HAMA, maintenance under section 25 of the
HMA cannot be granted.41

“No exception to be taken to the order of the learned single judge, granting alimony to the
respondent merely because an application to this respect was made on her behalf after the decree
of divorce had been made against her.”42

In the case of Ramlal v Surendra Kaur,43 section 25 (2) enables either of the parties to make
another application is there is a change in the circumstances of either party at any time after the
order was made under sub-section (1), but not otherwise. Under this sub-section, the applicant
can pray to the court to order permanent alimony which was earlier denied as there has been a
change in the circumstance of either or both parties.44 The court can also look at the rising cost
and inflation when granting an increase in maintenance based on the income and position of both
parties.45

The property and income of the wife which can be taken into account under the HMA is
the property and income which is exclusive that of the wife. it is not proper to take into account
the possibility of the wife inheriting property from her relations like the father.46 In case of
deciding alimony, the income of the parties must be decided in each case based on the facts.47

39
D. Balakrishnan v. Pavalamani AIR 2001 Mad 147
40
Supra note 32
41
Vishnu B Mayekar v. Laxshmi V Mayekar 2000 (2) Civil LJ 926
42
Durega Das v. Smt. Tara rani AIR 1971 P&H 141
43
1995 (2) Civil LJ 204
44
Sushila v R. jagammadham AIR 1964 AP 247
45
Mrs. Veena Kalia v. Dr. Jatindar nath Kalia AIR 1996 Del. 54
46
Smt. Lalithamma v. R. Kannan AIR 1966 Mys. 178
47
Jagdish Prasad Tulsan v. Smt Manjula Tulsan AIR 1975 Cal. 64
17
2) MUSLIMS

The rules regarding the maintenance of Muslim wife has been given in Sharia. According
to the ordinary sequence of natural events, the wife comes first. Her right of maintenance
is absolute. Her right remains unprejudiced even if she has property or income of her own
and the husband is poor. A husband is bound to maintain his wife, irrespective of being a
Muslim, non-Muslim, poor or rich, young or old if not young to be unfit for matrimonial
intercourse. In addition to the legal obligation to maintain, there may be stipulations in the
marriage contract which may render the husband liable to make a special allowance to the
wife. Such allowances are called kharch-i-pandan, guzara, mewa-khori, etc.

The husband is bound to maintain if she fulfils the following conditions:

(i) She has attained puberty, i.e., an age at which she can render to the husband for
his conjugal rights;
(ii) (ii) She places and offers to place herself in his power so as to allow free access to
herself at all lawful times and obeys all his lawful commands. It is to be noted that
a Muslim wife is not entitled to maintenance in certain conditions.
These conditions are:
(i) If she abandons the conjugal domicile without any valid cause;
(ii) If she refuses access to her husband without and valid cause;
(iii) If she disobedient to his reasonable commands;
(iv) If she refuse to live with her husband without any lawful excuse;
(v) If she has been imprisoned;
(vi) If she has eloped with somebody;
(vii) If she is a minor on which account marriage cannot be consummated.
(viii) If she deserts her husband voluntarily and does not perform her marital
duties, and
(ix) If she makes an agreement of desertion on the second marriage of her
husband.

18
The wife's right to maintenance ceases on the death of her husband, as in this condition her right
of inheritance supervenes. The widow is, therefore, not entitled to maintenance during the Iddat
of death. But under Muslim Law, a divorce wife is entitled to be maintained by her former
husband during the period of Iddat,

Now after discussing the maintenance of Muslim wife during the subsistence of marriage, it is
planned to discuss the maintenance of Muslim divorcee and controversy between the provisions
of Criminal Procedure Code and the Muslim Personal Law on the point of maintenance of Muslim
divorcee. It is pertinent to note that under classical Islamic law, a divorcee is entitled to get the
maintenance provision but the same will continue till the expiry of the period of iddat. There is
controversy between the classical rules of Islamic Law and provisions of Criminal Procedure
Code regarding maintenance. The controversy arose when British India took a legislative step to
regulate the institution of maintenance of wife, under Section 488 of the old Criminal Procedure
Code, 1898, the husband might be compelled to make a monthly allowance not exceeding Rs. 500
per month as maintenance to his wife. But the wife's right to maintenance under this Section could
be defeat by the husband by obtaining the divorce under the personal law. The provision under
Section 488 of the old Criminal Procedure Code, 1898 was very much in the line with the sprit of
Islamic law, where it furnished a speedy remedy for securing maintenance to all Indian wives
neglected by their husband on certain grounds including bigamy. In several cases the separate
maintenance orders were granted in favour of the wives, but in many cases where a maintenance
order under Section 488 of Criminal Procedure Code, 1898 were granted to Muslim wife, her
husband subsequently divorced her by Talaq, consequently the maintenance order so granted
ceased to be effective after the expiry of iddat period as per the rules of Muslim law. This situation
caused hardship and opened the gate for a long battled between the Sharia on one side, Criminal
Procedure and the Indian courts on the other.

To remove conflict, the joint committee recommended that the benefit of the provisions should
be extended to a woman who has been divorced by her husband and it should continue so long as
she has not been remarried after the divorce. Accordingly, the uniform law of maintenance was
introduced to all citizens of India through the amendment in criminal procedure code in 1973.

Accordingly, clause (b) of explanation to Section 125(1) was enacted, which laid down that for
the purpose of maintenance "wife" includes a woman who has been divorced by or has
obtained a divorce from her husband and has not remarried, however, Section 127 (3)(b) was
added to provide protection to Muslims and Muslim Personal laws. This code under chapter IX,

19
provides a uniform law of maintenance through the amendment in Criminal Procedure Code in

20
1973 the uniform law of maintenance was introduced to all citizens of India. The definition of
wife as given in explanation of Section 125 of the Criminal Procedure Code, 1973 is noteworthy
for the purpose of analysis:"Wife includes a woman who has been divorced by or has obtained a
divorce from her husband and she has not remarried". This definition of the wife was
objectionable to the scholars to the Islamic matrimonial jurisprudence as the same was foreign to
the Islamic concept of wife and Indian Muslim resented and thus their resentment was duly
recognized. This definition of wife laid down by the legal fiction on the basis of which 316 the
two strangers being of opposite sex (after the divorce on the expiry of lddat period) are treated to
be the husband and wife under Section 125 of the Cr. P.C. for the purposes of maintenance even
after divorce.

Section 127 (3)(b) was added to satisfy the Muslim community's resentment and the same was
desired to work as exception, this empowers the Magistrate to cancel the order to maintenance
passed under Section 125 of the code. If the divorce women has received whether before or after
the date of the said order, the whole or the sum which was payable under customary or personal
law applicable to parties.48 The Provision for maintenance of wives, whether married or divorced,
who are unable to maintain themselves is a social welfare measure applicable to all people
irrespective of caste, creed, community or nationality.49 In Bai Tahira's case, the supreme Court
did not turn to the Holy Quran but confined itself to Section 125 considering it as a secular
provision and came to the conclusion that the claim of maintenance by the divorcee was
indefeasible be the husband Hindu, Muslim or others, so long as the spouse had not remarried and
had no means to maintain herself.

The very next year the court reinforced its earlier decision in Fuzlunbi’s50 case in the following
words: "Whatever be the facts of a particular case, the Criminal Procedure Code by enacting
Section 125 to 127, charges the court with the humane obligation of enforcing maintenance or its
just equivalent to ill used wives and the castaway ex-wives, only if the woman has not receive
voluntarily a sum at the time of divorce, sufficient to keep her going according to the
circumstances of the parties".

Section 127 (3) (b) of Criminal Procedure Code lays down that "Where any order has been made
under Section 125 in favour of a woman who has been divorced by or has obtained a divorce from
her husband, the Magistrate shall cancel such order of maintenance if he is satisfied that the

48
Mohammad Shabbir, Muslim Pesonal Law and Judiciary (Ed.. 1st, 1988, Allahabad)
49
Bai Tahira v. Ali Husain, AIR 1979, SC 362.
50
Fuzlunbi v. Kader Vali, AIR 1980, SC 1730.
21
 51
divorced woman has received the whole of the sum whether before or after the date of such
order under the personal law applicable to the parties. The position as finally enacted laid down
that through court could grant maintenance to a divorced wife, at the time of so doing, they should
give due consideration as to whether she had already realized from her husband in full, her post
divorce entitlement under any customary or the personal law of the parties.

Mr. Justice Krishna Iyer further states: "Neither personal law nor other salvationary plea will
hold against the policy of public law pervading Section 127 (3) (b) as much as it does Section!25.
So a farthing is not substitute for a fortune nor naive consent equivalent to intelligent acceptance".
Thus the impact of Sections 125-127 of the Criminal Procedure Code, 1973, on the maintenance
rights of Muslim ex-wives has been the subject of interpretation through Indian judiciary. The
ruling laid down in Bai Tahira's case and Fuzlunbi's case, and their objection ability to Muslims
are well known and to get the desired result in 1981. The Supreme Court was asked to reconsider
these ruling in Mohd Ahamd Khan v. Shah Bano Begum.52However it added fuel to the fire by
laying down: "Although the limits of the Muslim Husband's liability to prove for maintenance of
the divorced wife is up to the period of Iddat it does not contemplate or countenance the situation
envisaged by Section 125 of the code, it would be incorrect and unjust to extent the above principle
of Muslim law cases in which the divorced wife is able to maintain herself. The husband liability
ceases with the expiration of period of Iddat. But if she is unable to maintain herself after the
period of Iddat she is entitled to have recourse to Section 125 of the Code”.

But chief Justice of Supreme Court Mr. Justice Y.V. Chandrachud going for beyond Mr. Justice
Iyer's thinking intruded into Muslim Personal Law saying the said special provision of the code
totally ineffective. Two points mainly alarmed the Muslim of such judgment for the Alleged
attempt of the judge to "reinterpret" certain Quranic verses and Second admonition to the state in
respect of the uniform civil code. As a result religious sentiments of Muslim were not only injured
by the wording and purport of the Shah Bano's judgment, but also much more by its projection
on an anti - Islamic law ruling of the highest court of justice in the country. There upon Muslim
organizations and individuals under the leadership of the All India Muslim Personal law Board

51
AIR 1985, SC 945.
52
AIR 1985, SC 945.

22
started a country wide agitation and caused the majority of Muslim citizen in India to demand
statutory protection of their personal law. Some relevant provisions of Muslim Women
(Protection of Rights on Divorce) Act, 1986 regarding Maintenance of Muslim Divorce are in
need of separate treatment. Section 3(l)(a) of Muslim Women (Protection of Rights on Divorce)
Act, 1986 lays down that a divorced Muslim wife shall be entitled to a reasonable and fair
provision and maintenance to be made and paid to her within the iddat period by her former
husband. Section 3(1) (b) of Muslim Women (Protection of Rights on Divorce) Act, 1986, lays
down the condition where divorced Muslim wife herself maintains the children born to her before
or after her divorce, In this condition she will be entitled to a reasonable and fair provision and
maintenance to be made and paid by her former husband for a period of two years from the
respective dates of birth of such children.

Section 3(l)(c) of Muslim Women (Protection of Rights on Divorce) Act, 1986 lays down that a
Muslim divorced wife shall be entitled to an amount equal to the sum of mahr or dower agreed to
be paid to her at the time of her marriage or at any time thereafter according to Muslim law.

Section 3(l)(d) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 lays down a
Muslim divorcee will be entitled to all the properties given to her before or at the time of marriage
or after the marriage by her relatives or friends or the husband or any relatives of the husband or
his friends.

Section 3(2) of this act lays down that where a reasonable and fair provision and maintenance or
the amount of mahr or dower due has not been or made or paid or the properties referred to in
clause (d) of sub-Section (1) have not been delivered to a divorced woman on her divorce, she or
any one duly authorized by her may, on her behalf, make an application to a Magistrate for an
order for payment of such provision and maintenance.

Section 4 of Muslim Women (Protection of Rights on Divorce) Act, 1986, deals with the rules
as to order for payment of maintenance. Subsection (1) of this Section lays down that
notwithstanding anything contained in the forgoing provisions of the Muslim Women (Protection
of Rights on Divorce) Act, 1986, or in any other law for the time being in force, where the
Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself
after the iddat period, he may make an order directing such of her relatives as would be entitled
to inherit her property on her death according to Muslim law to pay reasonable and fair
maintenance to her as he determine fit and proper, having regard to the needs of the divorced
woman, the standard of life enjoyed by her during her marriage and the means of such relatives
23
and such maintenance shall be payable by such relatives in the proportions in which they would
inherit her property and at period as he may specify in his order. There is a proviso in this Section
which provides that where such divorced woman has children, the Magistrate shall order only
such children to pay maintenance to her, and the event of any such children being unable to pay
such maintenance; the magistrate shall order the parents of such divorced woman to pay
maintenance to her. The second proviso of this Section provides further that if any of the parents
is unable to pay his or share of the maintenance ordered by the Magistrate on the ground of his or
not having the means to pay the same the Magistrate may, on proof of such inability being
furnished to him, order that the share of such relatives in the maintenance order by him be paid
by such of the order relatives as may appear to the Magistrate to have the means of paying the
same in such proportion as the Magistrate may think fit to order. Sub-section 2 of this Section
lays down that where divorced woman is unable to maintain herself and she has no relatives as
mentioned Sub-section (1) or such relatives or any one of them have not enough means to pay
the maintenance ordered by the magistrate or the other relatives have not the means to pay shares
of those relatives whose shares have been ordered by the magistrate to be paid by such other
relatives under the proviso to sub-Section (1), the Magistrate may, by order direct the State Wakf
Board established under Section 9 of the Wakf Act (29 of 1954), or under any other law for the
time being in force in a State, functioning in the area in which the woman resides, to pay such
maintenance as determined by the under sub-Section (1) or, as the case may be, to pay the shares
of such of the relatives who are unable to pay, at such periods as he may specify in his order.

Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, gives the option to
divorced Muslim wife to be governed by the provisions of Section 125 to Section 128 of Criminal
Procedure Code, 1973, but the condition is that there must be an agreement between the husband
and wife by an affidavit, that they would prefer to be governed by the provisions of Section 125
to Section-128 of Criminal Procedure Code, 1973. It is also necessary that the declare must be
made on the date of the first hearing. The Section says that for the purpose of this Section, "date
of the first hearing of the application" means the date fixed in the summons for the attendance
of the respondent to the applicationSection 7 of the Muslim Women (Protection of Rights on
Divorce) Act, 1986, is the transitional position which lays down that every application by a
divorced woman under Section 125 or under Section 127 of the Criminal Procedure Code , 1973
pending before a Magistrate or the commencement of this Act, shall, notwithstanding anything
contained in that code and subject to the provisions of Section 5 of this Act, be disposed of by
such magistrate in accordance with the provisions of this Act.
24
 3) CHRISTIAN LAW

Maintenance of wife under Christian Law is dealt with the Section-36, Section-37 and
Section-38 of the Indian Divorce Act, 1869.

Section 36 of Indian divorce Act, 1869, deals with the petition for the expenses of the
proceedings and alimony pending the suit. According to this Section, in any suit under this act
whether it be instituted by a husband or a wife and whether or not she has obtained an order of
protection, the wife may present a petition for the expenses of the proceedings and alimony
pending the suit.53 Such a petition shall be served on the husband and the court on being satisfied
by the truth of the statement contained therein, may make such order on the husband for the
expenses of proceedings and alimony pending the suit as it may seem just.54 There is a proviso in
this Section which says that the petition for the expenses of the proceeding and alimony pending
the suit shall as far as possible, be disposed of with in the sixty days from the date of the service
of notice on the respondent.55The object of this Section is to provide the wife with a source of
maintenance, whilst a matrimonial suit is pending. She is entitled to present a petition of alimony
pendente lite. Alimony pendente lite is an ad interim arrangement and its payment is enforced on
the ground of necessity and only when the wife has no other means of subsistence. Where
pending her application for alimony the wife gets advances from a third party to meet her
necessaries the third party is in equity entitled to recover the sums advanced by him from the
husband.

The alimony may be claimed by the wife in suits for (i) Nullity (ii) Dissolution (iii) Judicial
Separation (iv) Restitution conjugal rights of marriage.56 A husband should file an oath to a
petition for alimony by the wife. He must state his gross income. He must specify deductions of
57
any that he claims and it is not sufficient for him merely to state his net annual income. A
husband who does not file an answer to the petition can not be allowed to cross examine witnesses
produced by the wife in support of her alimony petition nor can he give any rebutting evidence.
Husband may plead that his wife has income and property. It is to open to the husband to plead
that the wife is being supported by the corespondent and is not entitled to alimony pendente lite.

53
Substituted for the word “for the alimony pending suit by Indian Divorce (Amendment) Act, 2001
54
By Amending Act of 2001
55
Inserted by the Amending Act of 2001
56
Weingarten v. Engel 1947, All ER 425
57
Nankis v. Nankis 33 L.J. p. 24
25
He may also plead that the wife has been living separate for many years before the institution of
suit and she has supported herself during the separation and is still able to do so. The husband is
not allowed to put any question direct or indirect with regard to her adultery. The averment of
adulatory in answer to a petition for alimony is irrelevant and the court is bound to presume that
the wife is innocent till she is proved guilty. An alimony petition should be made at the earliest
opportunity, as delay may go to show that the wife has a means of subsistence and is not in any
need of alimony.The Indian law is quite clear that in case of a suit for divorce or for nullity of
marriage, the order for alimony remains operative only till the decree is made absolute or is
confirmed. In case of a suit for the restitution of conjugal rights the order for alimony pendente
lite extends upto the time allowed to the husband for complying with the decree or till such times
she refuse to comply with it. The quantum of alimony that should be awarded to a wife will
depend on the facts and circumstances of each case. The parties may mutually agree to the
amount. The Indian law with regard to the quantum of alimony pendente lite that the alimony
pendente lite should in no case exceed l/5th of the husband's average net income for the past
three years.

The general rule regarding the commencement of payment of alimony is that it commences from
the date of the service of the petition on the husband and not the date of the return of the citation.
The Indian law is quite clear that alimony shall continue till such time as the decree is not made
absolute or is confirmed by High Court. The Act contemplates the payment of alimony to the wife
so long as she continues in law to be a wife.58The Indian Divorce Act, 1869 is silent as to the
mode of the enforcement of decrees and an order for the payment of alimony pendente lite must
be made according to the provisions of Civil Procedure Code , 1908 for the execution of
decrees. An order for alimony pendente lite does not create a legal debt, but a liability to pay and
is only a personal allowance and so long as the order subsist the right to alimony can not be
alienated or released. When a marriage has been validity terminated under the law of the parties
domicile, any maintenance order made by the court other than the court of parties domicile,
must also comes to an end.59Section 37 of the Indian Divorce Act 1869, deals with the petition
of permanent alimony. This Section empowers the High Court and District judge to order that
the husband shall secure to the wife such gross sum of money, or such annual sum of money for
any term not exceeding her own life, as having regard to her fortune. This order may be made by
the High Court or District Judge,

58
Manchanda, The law and Practice of Divorce (ed. 2nd, 1958, Allahabad), pp. 303-304
59
Ibid.
26
if it thinks fit, any decree absolutely declaring a marriage to be dissolved, or any decree of judicial
separation obtained by wife. In every such case the court may make an order on the husband for
payment to the wife of such monthly or weekly sum for her maintenance and support as the court
may think reasonable.

There is also a proviso in this Section which provides that if the husband afterwards from any
cause becomes unable to make such payment, it shall be lawful for the court to discharge or
modify the order or temporarily to suspend the same as to whole or any part of the money so
ordered to be paid, and again to revive the same order wholly or in part, as to the court seems fit.
This Section empowers the court to order for the permanent alimony or permanent maintenance
after a final decree for judicial separation or dissolution of marriage has been granted.The
District Judge is also given the same power after the decree passed by him has been confirmed by the High
Court. The court may order the payment of such permanent alimony or maintenance in three ways:
1) It may secure a gross sum of money

2) It may provide an annuity for wife life

3) It may order the husband for the payment of monthly or weekly sum for her maintenance.

The proviso to the Section gives the court a power to vary, discharge, modify or temporarily
suspend the payment order, if the husband subsequently becoming unable to make such payment.
There is no hard and fast rule as to the quantum of alimony that should be given to an innocent
wife. The law has laid down no exact proportion. The allocation of alimony is a matter for the
discretion of the court to be exercised upon a consideration of all the circumstances of the
case.60As a general rule permanent alimony may be more than alimony pendente lite. There are
some factors of which Section 37 of the Indian Divorce Act, 1869 enjoins the court.

The factors are:

(i) The conduct of the parties before and after marriage.

(ii) The nature and source of husband
(iii) Fortune of the wife, if any, and other circumstances of the case.

The usual rate of permanent alimony is one third of joint net income. The court in this matter is
guided by the practice of the ecclesiastical courts. However, the court has the discretion and may

60
Ibid

27
award less than one third of the joint net income, if the circumstances so warrant. But the court
will not grant more than one third unless exceptional circumstances exist. The permanent alimony
may be increased or decreased by the court according or the changing circumstance and the
fortune of the parties. Permanent maintenance may be claimed by an application filed at any time
after the decree nisi. In any event no order for permanent maintenance can take effect prior to the
passing of the decree absolute. An application after final decree may be made within the two
months of the final decree; but it may be filed even subsequently with the of the court. The
petition for the permanent maintenance must be served on the opposite party

Section 38 of the Indian Divorce Act, 1869, deals with the rules regarding the payment of
alimony. According to this Section, in all cases in which the Court makes any decree or order for
alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her
behalf. The Court may impose any terms or restrictions which to the Court seems expedient .Thus
this Section lays down the mode of payment of alimony. The court is given power on making an
order for alimony, be it alimony pendente lite or permanent alimony. Alimony may be paid wither
direct to the wife herself or to her trustee. Such trustee, must however be approved by the court.
The court is given power to impose any term or restrictions on the payment of alimony and may
appoint new trustee from time to time. The whole object of this Section is to ensure that the wife
receives the allotted alimony.

28
 4) PARSI LAW

Maintenance of wife under Parsi Law is dealt with the Parsi Marriage and Divorce Act,
1988. The relevant provisions of this Act regarding the maintenance of wife are: Section
39, Section 40, Section 41 and Section 42.

Section 39 of the Parsi Marriage and Divorce Act, 1988, deals with the alimony pendente lite.
This Section empowers the court to order the defendant to pay to the plaintiff, the expenses
of the suit, and weekly or monthly sum during the suit, if it appears to the Court that either
the wife or the husband has no independent income sufficient for her or his support and the
necessary expenses of the suit. The Court, while ordering under this Section pay regard to the
plaintiffs owns income and the income of the defendant. There is a proviso in this Section
which provides that the application for the payment of expenses of suit shall be disposed of
within 60 days from date of service of notice on the wife or the husband as the case may be.61

Alimony pendente lite as a temporary provision for the wife or the husband awarded by the
court, ordering the husband or wife, as the case may be to pay alimony pendente lite.

In order to obtain alimony pendente lite and expenses of proceeding, the wife or the husband
has to prove following conditions that:

1) She or he has no independent income.

2) Her or his income is not sufficient for her or his support and the necessary expenses of the
suit. Where neither party (husband or wife) has mean to meet the expenses of other party, no
order may be made.62

In granting relief under Section of Act, the court shall take into consideration:-

1) The defendants income and;

2) The plaintiff own income

61
Subs by the Marriage laws Amendment Act, 2001 [Act No. 49 of 2001]
62
Preeti v. Ravind Kumar AIR 1979 Al 29

29
 Relief under Section 39 can be sought either by wife or the husband who initiated the
substantive proceedings. The question as to who is the husband or wife has been interpreted
by Deshpande J. of Bombay high Court while interpreting the said term with reference to
Sections 24 & 25 of the Hindu Marriage Act, 1955 which are pari materia to instant provision.
His lordship has taken the view that the expression wife as used in Section 24 and Section 25
of the Hindu Marriage Act, 1955, doesn't presupposes an existing jural relationship of husband
and wife, but it merely descriptive of the person who may claim to any other relief which can
be granted under Hindu Marriage Act, 1955.63

Alimony pendente lite under Section 39 can be sought during the pendency of any suit arising
under the Act. When proceedings are over in their entirely, there is no question of the
application of Section 39.64 Under Section 39 of Parsi Marriage and Divorce Act, 1988, no
fixation of the quantum by the legislature is made for the purpose of alimony pendent elite. It
is left to the court to determine the same having regard to the income of plaintiff and
defendant. Ordinary, the Court grant maintenance under Section-39 from the date of the
application. The court should grant alimony pendente lite since the date of demand.65 The
judiciary is of the view that the court may grant alimony pendente lite from the date of the
service of the notice or petition on the defendant.66

Section 40 of the Parsi Marriage and Divorce Act, 1988, deals with the permanent alimony
and maintenance, Section 40(1) of the Parsi Marriage and Divorce Act, 1988, empowers any
court to order the defendant to pay to the plaintiff for her or his maintenance and support, such
gross sum or such monthly or periodical sum for a term not exceeding the life of a plaintiff as
having regard to the defendant's own income and other property , at the time of passing any
decree or at any time subsequent thereto on application made to it for the purpose by either
spouse. Any such payment may be secured if necessary by a charge on the movable or
immovable property of the defendant, if it may seems to the court to be just. According to
Section40(2) of the Parsi Marriage and Divorce Act, 1988, if the Court is satisfied that there
is a change in the circumstances of either party at any time after it has made an order under
Subsection (1), it may, at the instance of either party, vary, modify, or rescind any such order
in such manner as the court may deem just.

63
Hemraj Shamrao Umedkar v. Smt. Leela, AIR 1989 Bom. 146 (SC)
64
Nirmala v. Ramdas AIR 1973 P&H 48
65
Pratima v. Kamal (1964) 68 CWM 316
66
Sudharshan Kumar v. Chhagar Singh (1978) Kash. L.J.
30
 According to Section-40(3) of the Parsi Marriage and Divorce Act, 1988, if the Court is
satisfied that the party in whose favour an order has been made under this Section has
remarried or if party is husband, had sexual intercourse with any woman outside wedlock, it
may at the instance of other party vary modify or rescind any such order in such manner as
the court may deem just.

This Section aims at providing for permanent alimony and maintenance to the husband or
wife, whoever is in need of the same.67 This relief would be available only when a decree for
judicial separation or restitution of conjugal rights or divorce or nullity of marriage has been
passed by any court exercising jurisdiction under this Act.

An order under Section 40 can be passed:

(a) either at the time of passing any decree, or

(b) at any time subsequent thereto.

No order can be passed under Section 40 if the substantive petition is whether dismissed by
the court,68 or withdrawn by the petitioner.69While passing under Section 40 (1) of the Act, it
is obligatory upon the court to have regard to the conduct of the parties of the case. The
conduct of the parties does not mean merely the conduct of the party who is applicant for
maintenance, but also of the other spouse in relation to their life together as husband and
wife.70

Permanent alimony can be granted even to an erring spouse and the fact that the wife did not
comply with the restitution of conjugal right can not by itself disentitle her to claim permanent
alimony.71Doubtless, the conduct of the parties any be factor in deciding claim or permanent
alimony, but each case has to be decided on its own merits, it is not correct to say that grant
of judicial separation on the ground of cruelty of the wife, is a bar to her getting permanent
alimony.72

Section 40 of the Parsi Marriage and Divorce Act, 1988, Act puts stress on the conduct of the
parties during the matrimonial life and the court pays due regard to that factor. Section 40 (1)

67
Mazumdeet v. Mazumdar, AIR Cal 428
68
Shanta Ram v. Hirabai, AIR 1962 Bom. 27.
69
Lalithamma v. R. Kanan AIR, 1966 Mys. 178
70
Premji v. Rai Sarkar Kanji AIR 1968
71
Shabbir, Mohd., Parsi Law in India (ed. 5th, 1991, Allahabad), p. 111
72
5 Jain, SC. The law relating to Marriage and Divorce, (ed. IInd, 1980, Delhi) p. 195.
31
 and (3) place considerable emphasis on wife being chaste not during matrimonial tie but also
after the decree to retain her eligibility for the purpose of maintenance.

Now in view of the Phrase -"the conduct of the parties and other circumstance of the case,"
under Section 40 (1) of the Act, the courts are duty bound to take into consideration the health
of applicant and source of income and if court satisfied that she is in poor health and has no
sources of income and there is no one to look after her, maintenance should be granted though
73
she had been guilty of adultery and divorce was granted on that ground. The Madhya
Pradesh High Court opined that where the conduct of wife is unchaste; the question of alimony or
maintenance does not arise.74 It is clear from the above discussion that regarding the relevancy of the
conduct of the parties in deciding claim of permanent alimony, each case should be decided on its
own merits.In fixing the amount of maintenance under Section 40 of the Act the court is required to
consider the following matter:

(a) Income and property of the party who is required to pay.

(b) Income and property of the non claimant

(c) Conduct of the parties

(d) Circumstances of the case.

Under Section 40 of the Parsi Marriage and Divorce Act, 1988, the court can order one party
to pay the other for the maintenance and support:

(a) A gross sum

(b) A sum to be paid monthly

(c) A sum to be paid periodically.

The status of the husband and wife must be taken into account and not the status of father or
any other relations.75 According to the practice of English courts, which generally influences
our judicial activity, the monthly allowance that the defendant may be ordered to is one third
of his or her income. In some case Indian Judiciary has followed this English Rule. The one
third rules is merely a guideline and there is no rigidity about it.76The court is competent to

73
Lila Devi v. Manohar Lal AIR 1959 MP 349
74
Supra note-66,pg-114
75
Jain, SC. The law relating to Marriage and Divorce, (ed. IInd, 1980, Delhi) p. 195
76
ibid

32
fix more than one third or less than one third in a given case depending the circumstance of
the case.

The court under Section 40 (2) and (3) is empowered to vary, modify or rescind its order
passed under Section 40 (1) of the Parsi Marriage and Divorce Act, 1988, Act in any of
following circumstances:

a) If the court is satisfied that the party in whose favour an order has been passed, has
remarried ; or
b) If such party is wife, that she has not remain chaste; or
c) If such party is the husband, that he had sexual intercourse with any woman outside
wedlock.

Thus, in view of the change in circumstances of either party at any time after it has made an
order under Section 40 (1), the court may vary, modify, or rescind at the instance of either
party in such manner as the court deem just.

33
III. MAINTENANCE UNDER SECULAR PROVISIONS SEC-125 CRPC

Section 125, Code of Criminal Procedure, (hereinafter referred to as CrPC) is available

to all neglected wives which includes discarded or divorced wife. The provision of Section 125
has inter alia, the objective, as expressed by Krishna Iyer, J 77 “To ameliorate the economic
condition of neglected wives and discarded divorcees”

Section 125 is meant to serve social, economic and moral purpose . It is also a protection of
equality of sexes and protective discrimination in favour of the weak viz. neglected and discarded
or divorced wives, abandoned children and needy and helpless parents.The maintenance
provision of the CrPC can be traced right back from the old section 488 of the CrPc which had
conferred an independent right to the wife to claim maintenance allowance irrespective of the
provisions of the traditional personal law. The magistrate could compel the husband to pay an
allowance not exceeding Rs 500 per month. In Badruddin v Aisha Begum78

and Sarwari v. Shafi Mohammad79 the Allahabad High Court had held that the CrPC was a
secular law and was not affected by any personal law. Since the statutory right continued only
during the continuance of the marriage, the easy way out of the liability for the husband was to
divorce his wife.

Justie Yahaya Ali of the Madras High Court had held Mohd. Rahimulla, In Re80 that the foundation
upon which the wife’s right rested was the relationship of husband and wife, when the relationship
was lawfully dissolved and there was no marital tie either in reason or upon any canon of justice or
even upon the language of 488 and 489, the husband could not be directed to continue to maintain his
divorced wife.81 Mulla was also of the same view: where an order was made for the maintenance of
a wife under Section 488 and she was afterwards divorced, the order ceased to operate on the
expiration of the period of iddat82. But if the divorce was not communicated to her even up to the
expiry of the period of iddat, she could get maintenance even after the expiry of the period of iddat

77
Bai Tahira v Ali Hussain Fissalli AIR 1979 SC 446
78
1957 All LJ 300
79
(1957) 1 All 255
80
AIR 1947 Mad 461
81
AIR 1947 Mad 642 SUPRA
82
Mulla, Principles of Hindu Law, Volume II, 19th Edition, Lexis Nexis Butterworths, New Delhi, 2006, p. 301
34
till the divorce was communicated to her. The Shia and Shafi sects deprived her of maintenance during
iddat. This was also in cases where the marriage was dissolved in irrevocable form; one concession
was her pregnancy at the time of the pronouncement. No maintenance was sanctioned by the old law
to an apostate or criminal wife. In case of dissolution of the marriage due to the death of the husband
maintenance was ruled out even during iddat.

In 1973, Section 488 of CrPC was remolded into Section 125 and stated that a wife was to include
any woman who was divorced by or who had not remarried. It is a prophylactic provision intended to
prevent vagrancy and destitution.

Section 125 applies to all communities; it has these characteristics of a common civil code. It also
extended its protective umbrella over the legitimate or illegitimate minor children, whether of married
or unmarried couples, who are unable to maintain themselves, or even major children who, due to
physical or mental abnormality or injury are unable to maintain themselves, and parents also, who are
unable to maintain themselves. The relevant conditions are that the person responsible
(husband/father/son) should have the means to maintain, yet, he neglects or refuses. The recipient
wife should not refuse to live with the husband if he so requires, should not be living in adultery.
However, she can live separate or refuse to join him if he has brought another wife to live with him,
or keeps a concubine or treats her with cruelty or is impotent. In these conditions the magistrate can
pass an order for maintenance granting a sum up to Rs 500 per month.

The objective of Section 125 is to ameliorate the economic condition of neglected wives and discarded
divorcees. One achievement towards this welfare goal was to extend the protection to the divorcee;
and second major step was taken by the judiciary by taking mahr to the doorsteps of maintenance.
Mahr has assumed the negative role of representative of the ‘customary or personal law sum’
mentioned in Section 127 (3) (b). Just as the strategic divorce deprived the wife of maintenance under
the old Section 488, the provision under the new Section 127(3) (b) was also ingeniously used by the
inconsiderate husband as an escape lane. Section 127(3)(b) ordains that the Magistrate shall cancel
his order passed under Section 125 on proof that the divorcee has received from her husband the
whole of the sum which under customary or personal law was payable on such divorce, and the ‘the
customary or personal law sum under Section 127 envisaged the mahr as held by the Supreme Court
in Bai Tahira v Ali Hussain Chothia83. In this case the husband had pressed that the payment of Rs
5000 by him as mahr money satisfied the requirement under Section 127 and absolved him of further
obligation to pay maintenance to his divorced wife, the plaintiff. Justice Krishna Iyer held:
83
Supra note 1

35
 “Section 127 can’t rescue the respondent from his obligation. Payment of mahr amount as
a customary discharge is within the cognizance of that provision. But what was the amount of the
mahr? The point must be clearly understood that the scheme of the complex provisions of chapter IX
has a social purpose. Ill-used wives and desperate divorcees shall not be deprived to material and
moral dereliction to seek sanctuary in the streets. This traumatic horror animates the amplitude of
section 127, here the husband, by customary payment at the time of divorce, has adequately provided
for the divorcee, a subsequent series of recurrent doles is contraindicated and the husband
liberated”84

The Supreme Court further stated in Fazlunbi v Khader Vali85

“The payment of an amount, customary or other, contemplated by the measure must inset the intent
of preventing destitution and providing a sum which is more or less the present worth of the monthly
maintenance allowance the divorcee may need until death or remarriage . Section 127 (3)(b) takes
care to avoid double payment . The Code by enacting Sections 125 to 127 charges the court with
humane obligations of enforcing maintenance or its just equivalent to ill-used wives and castaways
ex-wives. Neither personal law nor other plea will hold against the policy of public law pervading
Section 127(3)(b).”86

The reasoning of why mahr was excluded by the courts under the gambit of Section 127
was stated in Mohd. Ahmad Khan v Shah Bano Begum 87 (herein after refered to as Shah Bano
case):

“If mahr is an amount which the wife is entitled to receive from the husband in consideration of
the marriage, that is the very opposite of the amount being payable in consideration of divorce.
Divorce dissolves marriage. The alternative premise that mahr is an obligation imposed upon the
husband as a mark of respect for the wife is wholly detrimental to the stance that it is an amount
payable to the wife on divorce. But he does not divorce her as a mark of respect. Therefore, a
sum payable to the wife out of respect cannot be a sum payable on divorce”88

The decision of the Supreme Court in this case went against the writings of many literary
writers as cited by the counsels, the Supreme Court stated that:

84
Supra note 1
85
AIR 1980 SC 1730
86
Ibid
87
AIR 1985 SC 945
88
Ibid at para 24
36
“These statements in the text-books are inadequate to establish the proposition that the Muslim
husband is not under an obligation to provide for the maintenance of his divorced wife, who is
unable to maintain herself. [t]hese provisions of MPL (Muslim Personal Law) do not countenance
cases in which the wife is unable to maintain herself after the divorce … We are of the opinion
that the application of these statements of laws must be restricted to that class of cases in which
there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife
… Section 125 deals with cases in which a person who is possessed of sufficient means neglects
or reuses to maintain, amongst others, his wife who is unable to maintain herself.89
The Madras High Court in Ameer Amanulla v Mariam Beebi90rejected the plea of repugnancy
between Section 125 and Muslim Personal Law and stated:

“The Provision in the Code of Criminal Procedure for the maintenance of wife and children
gives expression to the fundamental and natural duty of a man to maintain his wife and children
who are unable to maintain themselves. This statutory obligation imposed on the man and
statutory right conferred upon the wife and the children transcends the personal law and
operates irrespective of caste, creed or religion. This is really founded on the doctrine of public
policy, for, the protection of destitute woman and children and the prevention of their vagrancy
are matters of public interest, on which depends the safety and security of the society as a
whole. The responsibility of the state towards this unfortunate section of the community
overrides and has necessarily overridden the personal laws of its citizens. Explanation (b) in
Section 125 of the Code which extends the benefits of maintenance to divorced wives until they
remarry is a bold step in the right direction and a landmark in social legislation. It is one of the
beneficent and progressive pieces of legislation in recent times. The derelict Muslim husband
cannot take umbrage under his personal law in order to defeat his statutory obligation under
the Code of Criminal Procedure.In Kunhi Moyn v Pathumma91 “The last line of argument
raised by Mr Hajee P.K.Jamal Mohamed is that Section 125 is repugnant to Article 14 of the
Indian Constitution, which enshrines in itself the principle of equality before the law and the
equal protection of laws. This contention is based on sub-sections (4) and (5) of Section 125 of
the Code of Criminal Procedure. It is urged that while the wife who lives in adultery is
disentitled to claim maintenance by virtue of sub-section 4 and 5, a divorced wife incurs no
such disability as she

89
Ibid at 565-566
90
1985 MLJ (Cr) 164
91
1976 MLJ (Cr) 405
37
does not enjoy the status of a wife and there is thus an invidious discrimination between the
two.”

The same view was upheld by the Kerala High Court in Mariyumma v Mohamed Ibrahim92
and Ammer Amanulla v Mariam Beebee.93

Does the MW Act 1986 substitute S.125 CrPC so far as the Muslim

Women are concerned?

S. 45 of the MW Act gives the divorced Muslim woman and her former husband an option to
declare that they jointly or separately would prefer to be governed by the provisions of Ss. 125-
128 CrPC the Magistrate shall dispose of the maintenance accordingly (i.e. according to S. 125
etc. CrPC). The Andhra Pradesh HC in Usman Khan Bahamani v. Fathimunnisa Begum94 had
held that after passing of the Act a divorced wife cannot claim maintenance under S. 125; these
(125-128) sections are not applicable after coming into force of the Act. The same was the view
of the Madhya Pradesh HC95 and Patna HC96. The Punjab and Haryana HC have also denied her
recourse to the CrPC after the Act, but held that the Act did not divest the party vested with
determined rights and benefits under S. 125.97 The Gujarat HC in Arab Ahmadia v. Arab Bail
98
that the Act did not take away a divorced Muslim women’s rights under personal law or under
general law i.e. S. 125 etc. the court also ruled that orders passed by the magistrate under S. 125
are not nullified on coming into force of the Act. In Karim Abdul Rehman v. Shahnaz Karim99the
second and third questions formulated by the Bombay HC related to the issue under our
discussion, viz: (a) whether the Act has the effect of invalidating the orders passed under S. 125
i.e. whether the Act operates retrospectively so as to divest parties of their vested rights, and (b)
whether after the commencement of the Act, a Muslim divorced wife can apply for maintenance
under the provisions of CrPC? The Bombay HC ruled on question (a) that the provisions of
statutes which touch a right in existence at the passing of the statute or not to be applied
retrospectively in the absence of express enactment or necessary intendment. Therefore, the

92
AIR 1978 Ker 231 (FB)
93
1985 MLJ (Cr) 164
94
AIR 1990 AP 225
95
Sakinabai v. Fakruddin, II (1999) DMC 576
96
Mohd. Yunus v. Bibi Phenkani, (1987) 2 Crimes 249 and Bibi Shahnaz v. State of Bihar, II (1999) DMC 85
97
Kaka v. Hassan Bano II (1998) DMC 85
98
AIR 1988 Guj 141
99
2000 (3) Mh L J 555
38
orders passed under S. 125 are not nullified; they are binding and the wife is not divested of her
vested rights. As to question (b) the court held that in view of the provisions of Ss. 5 and 7 of the
Act a divorced Muslim women cannot apply for maintenance by invoking the provisions of the
Code. It is only the mutual agreement that they can decide to be governed by the Code. Both these
questions again reappear before the Calcutta HC in Abdul Latif Mondal v. Anuwara Khatun.100
But before attending them, we may note the observations of the HC regarding the misuse of the
divorce power by the husband. The facts of the case were that the opposite party i.e. the wife
alleged that within few days after her marriage to the petitioner, the latter and his family members
started torturing her for money and gifts; after four years she and her child were driven out of the
matrimonial home; she applied for maintenance for herself and the child under S. 125; the
husband countered on the ground that she had divorced her two years back, but the Magistrate
granted the maintenance allowance; hence this petition by the husband. Commenting on the
misuse of the divorce card by the husband, the HC observed that:

“It is true that S. 5 of the Act gives an option to be governed by Ss. 125 – 128 of CrPC.
But, this looks very hard to come by. Despite the new Act many women approached the court
under S. 125. One reason for this is that significant number of women are not divorced at the
time of approaching the court for maintenance. These women are divorced after filing for
maintenance as a retaliatory measure. The usual tendency of a husband who is called upon by
the courts to defend himself against the claim of maintenance, irrespective of religious
applications is to exploit any legal loophole which will enable him to escape from his financial
obligation towards his wife and children. The wife having been driven away and divorced by the
husband, in distress and in desperate need of money and material to sustain herself and for that
reason, requiring the speedy remedy of S. 125, is not likely to get her embittered ex-husband
easily to join hands for an affidavit or declaration that they prefer to be governed by the
provisions of Ss. 125-128, especially a husband who by all means is bent upon evading the
financial obligations.”101

On these facts the HC framed three issues: (a) Whether the Act renders the Judicial
Magistrate’s order, passed in 2001, under S. 125 a nullity (b) whether the claim of maintenance
is limited only up to the period of iddat (c) whether a divorced Muslim wife can still claim

100
2002 (1) CLJ 186
101
2002 (1) CLJ 186

39
maintenance under S. 125 after the coming into force of the Act. On the first issue the HC ruled
that on the basis of the latest judgement of the Supreme Court in Daniel Laitifi :

“we possibly have enough reason to maintain that the position of S. 125 has not been
materially changed”. There is no section in the Act which nullifies the orders passed by the
Magistrate under S. 125. Once the order is passed, her rights are crystallized and she gets vested
right to recover maintenance from her former husband. That vested right is not taken away by the
Parliament by providing the any provisions in the Act and there was no inconsistency between
the Act and the CrPC. As to (b), the Court ruled that the object of S. 125 is to prevent vagrancy
and destitution. The Constitutional Bench in Shah Bano case has given women in destitution a
constitutional right to protection and the Act has nowhere taken away that right, nor can it do so.
On the third point (c) the Court held that:

“The provisions of the Act as made available to the divorced Muslim women are in addition to
the claims available to them under S. 125 CrPC. Moreover, it might be borne in mind that S. 125
provides for speedy and summary remedy to the indigent wife and her children driven to
destitution, the prevention of which is the whole purpose of the welfare legislation. In a given
situation, desperate that it is, if the destitute woman in dire straits instead of taking the long
winding and difficult path in pursuit of justice under the Act, goes straightaway by S. 125 which
promises speedy and summary remedy and can thereby secure for her the basic right to life and a
life with dignity, then I believe there is no stopping her- morally as well as legally.

40
IV. MAINTENANCE LAW OUTSIDE INDIA

1) USA
Divorce in America is governed by the laws of the individual state in which it occurs.
Divorce, also known as "dissolution of marriage," is a legal process in which a judge or
other authority legally terminates a marriage, restoring them to the status of being single
and permitting them to marry other individuals. Divorce proceedings also include matters
of spousal support, child custody, child support, distribution of property and division of
debt. Divorce laws vary from state to state. While divorcing spouses once were required
to show a reason for the dissolution of the marriage by assigning fault to one of the parties
(like adultery, sterility, abandonment, insanity, or imprisonment), every state now allows
for "no fault" divorces (usually on the basis of "irreconcilable differences"). Nevertheless,
many states still allow their courts to take into account the behavior of the parties when
dividing property and debts, evaluating child custody issues, and determining child and
spousal support. Similarly, some states require a period of separation prior to divorce
(some also require therapy), and this has led to the creation of another category of
relationship called "separation."

For purposes of distributing assets after a divorce, courts divide property under one of two
basic schemes: community property or equitable distribution. In community property
states, both the husband and wife equally own all money earned by either one of them,
regardless of which spouse acquired it, from the beginning of the marriage until the date
of separation. Similarly, all property acquired during the marriage with community money
is deemed to be owned equally by both spouses. Community property is generally divided
equally between the spouses, and each spouse keeps keeps his or her individually owned
property (usually premarital assets).
With equitable distribution, on the other hand, assets and earnings accumulated during
marriage are divided fairly, but not necessarily equally. The court may consider such
factors as the respective spouses' substantial contribution to the accumulation of the
property, the market and emotional value of the assets, tax and other economic
consequences of the distribution, the parties' needs, and any other factor relevant to
fairness and equity. Alimony payments, child support obligations, and all other property
will be considered as part of the equitable distribution.
41
 2) SCOTLAND
The obligation to support stems from Ones legal relationship of being married or in a civil
partnership, so when that relationship ends in divorce or dissolution, then this support
stops too.At the point of divorce or dissolution, depending on what you have received by
way of a financial settlement, you might in certain situations be entitled to continuing
monthly financial support, although the legal term for that is then ‘periodical allowance’
rather than ‘aliment’.
It is normal for parties to try and agree between them who is to pay what after separation,
such as the mortgage, rent, Council Tax and utility bills. It can be that existing
arrangements might continue for a while, such as both salaries going into a joint account
with all Direct Debits coming off that account.

If, however, they are not able to reach an agreement or one party refuses to pay anything then you
can apply to the court for an award of interim aliment or spousal maintenance. If you have children
then your ex-partner may have to pay support for them separately. This is a separate issue from
spousal maintenance and is covered in our Child Maintenance section.

3) ENGLAND

When a couple separate whether one party is entitled to claim spousal maintenance from the
other is a common concern. There are several factors that need to be considered:

 Length of marriage
 Whether each party is working
 The age of the parties
 Who is looking after any children of the marriage
 Can both parties manage financially without spousal maintenance?

It’s important to understand that spousal maintenance is just that, financial support from one
spouse to another paid on the breakdown of a marriage. It does not apply to unmarried couples
and is different to child maintenance.The conditions under which spousal maintenance might
be paid vary, as every marriage varies. If a couple have been together for a long time and one
party has given up work to run the home whilst the other has developed a career and been the
family breadwinner there are arguments to say that the homemaker is entitled to financial
support, in the form of spousal maintenance, if the marriage breaks down and on the basis that

42
the spouse in need cannot support themselves financially from income they have coming
in from other sources.

4) GERMANY

According to Sec- 1360, 1360 a, b of the German Civil Code spouses in Germany are legally
obliged to support each other while the marriage persists.This means, that both of the spouses are
obliged, each in relation to their own means and their own ability to work outside or inside the
home, to contribute to the needs of the family. This obligation generally exists until the spouses
separate in preparation for a divorce..Each spouse is obligated to support the family by paying
housekeeping allowance, pocket money and under special circumstances the education costs and
the special needs of the other spouse.

5) CANADA
In order for a former spouse to receive spousal support, they must first prove entitlement to
support. The Supreme Court of Canada has defined three separate entitlements to spousal
support:

o Contractual Support – This is when you have an agreement (prenuptial,

cohabitation, separation, etc.) that specifies that one spouse is to receive support. If
this exists, you may have to pay due to your contractual obligations.

o Compensatory Support – This most often occurs when one spouse has forgone
career, education, or earning opportunities as a result of their role in the relationship.
The idea here is that one spouse should not bear a disproportionate financial burden
as a result of the role that spouse adopted during the relationship.

o Non-compensatory Support – This most often occurs when one spouse experiences
a significant economic hardship as a result of the breakdown of the relationship. The
idea here is that one spouse should not experience a serious reduction in their standard
of living due to the breakdown of the relationship and them becoming self-sufficient.

43
V. CONCLUSION AND SUGGESTIONS

To conclude, I would like to state that ,I have looked into the various provisions available to Hindu
and Muslim wives for maintenance. Each case is certainly different and the muslim wife is closely
linked to the provisions of the Criminal Procedure code for her right of maintenance. It is seen that
over a period of time, the condition and availability of maintenance has greatly increased and the laws
of maintenance have begun to bend to the needs of the women, who are unfortunately marginalized
in our society.The reform in maintenance law has been more the work of the judiciary in case of
interpretation of the Muslim Woman’s act, CrPC and the HMA and HAMA. The judiciary has played
an important part in allowing Muslim woman maintenance after the iddat period and Hindu women
access to courts under Section 24 of HMA and at all times keeping the provisions of CrPC separate
and available to destitute women.

The legislation has also in the recent past joined in with the judiciary of finally redressing the problems
of wives by removing the ridiculous limit of Rs500/- per month on section 125 of the CrPC.

It is my view and hopes that this trend continues in this direction and finally come to a point where
the man and woman can stand at equal footing in all matters of family decisions and privileges.

HYPOTHESIS 1.

Section 18 of the HMA lays down that the wife, whether married before or after commencement of
the act, is entitled to be maintained by her husband during her lifetime, unless she is unchaste or has
ceased to be Hindu by conversion to another religion. Section 18 (3) lays down that, “A Hindu wife
shall not be entitled to separate residence and maintenance from her husband if she is unchaste or
ceases to be a Hindu by conversion to another religion.

In an interesting case decided by Strachy and Badruddin Tyabji JJ, it was held that a disobedient
wife need not be maintained. Strachy J, observed:

“The husband’s duty to maintain his wife is conditional upon her obedience and he is not bound to
maintain her if she disobeys him by refusing to live with him or otherwise 102 (here in this case the
wife) only paid occasional visits to his house , staying for a night or so at a time from the 6th of March
to 23rd June 1895 returning on each occasion to her mother’s house .. I am clearly of the opinion that
in such circumstances a Mohammadan husband is not bound to give this wife separate

102
Baillie, Niel B.E, Digest of Moohummudan law , part First (Hanafi Law) 2nd edn. London 1875, p. 438 2 1957
All LJ 300
44
maintenance”Therefore the first hypothesis made by the researcher “That wife who lives in
adultery cannot claim maintenance” is proved to be true.

After reading and going through various sources of the personal laws, I feel that the Hindu law is
much more clearly defined and gives much more rights to women in comparison to the Muslim law.
Providing maintenance means that the other person who is getting the maintenance should be able to
live the life as he or she lived before marriage in case of divorce and in case where the two partners
are not living together and they seek maintenance than the spouse getting maintenance should be able
to live a life as when they lived together. Maintenance is the amount which a husband is under an
obligation to make to a wife either during the subsistence of the marriage or upon separation or
divorce, under certain circumstances.

HYPOTHESIS 2;

The most important aspect of maintenance is that the party which relies on maintenance has no
independent source of income to support himself/herself. That is if the wife can independently
maintain himself doesnot need any maintenance. Maintenance can be sought on grounds like;

1) neglect or refusal to maintain

2) Sufficient means to maintain
3) Wife not engaged in adultery ,Desertion or living in divorce by mutual consent .
4) The wife must not be able to maintain herself.
Therfore the hypothesis that “the maintenance to wife depends on certain conditions” is
proved to be true.
Law of maintenance is personal as well as legal in character and arises from the very existence
of relationship between the parties.From the above discussion, it can be concluded that Law of
maintenance with no doubts is inclined towards the females in both the structures whether it be
Hindu Law or Muslim Law. Women have been bestowed with many more privileges in
comparison to men and husbands have been granted a lot more of responsibilities and obligations.
Although the given laws may sound unjust to a few but pragmatically they seem to be correct as
in our country even till date women do not have the social status equal to that of men. Hence, it
won’t be incorrect to extrapolate that Law makers while formulating these provisions must have
kept in mind the situation of the women in the patriarchal society of India. The women of both
the communities are suffering due to being poor, being women and than being a part of the
patriarchic society.

45
VI : BIBLIOGRAPHY

The researcher has consulted following sources to complete the rough proposal:

1. Books:
a. RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE, (22nd Ed.,
2014, Lexis Nexis).
b. K. D. GAUR, THE TEXTBOOK ON THE CODE OF CRIMINAL PROCEDURE,
(2016 Ed., Universal Law Publishing).
c. DR. K.N. CHANDRASEKHARAN PILLAI, R.V. KELKAR’S CRIMINAL
PROCEDURE, (6th
Ed., 2016, EBC Publication).
d. Dr. Paras Diwan, Family law, Allahabad Law Agency, 11th Ed. (2018).
e. Dr. Paras Diwan, Modern hindu law, Allahabad Law Agency, 23rd Ed.,
(2018).
f. Dinshaw Fardunji Mulla (Author), Satyajeet A. Desai (Editor), Mulla’s
hindu law, LexisNexis, 23rdEd., (2018).
g. Kesari, U.P.D,.; Modern Hindu Law,.Central law publications, (2016)
h. Paras Diwan Dr.,. Modern Hindu Law, Allahabad law agency, 12 th
Edition

2. Statutes:
a. CONSTITUTION OF INDIA.
b. CODE OF CRIMINAL PROCEDURE, 1973.
c. INDIAN PENAL CODE, 1860.
3. Websites:
a. Academike
b. iPleaders
c. India Law Journal
d. Legal Service India

e. SCC Online Research Repositor

46