INTRODUCTION

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 n
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. 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 quantum of maintenance and the expenses of the proceedings have not
been specified in any of the Indian Matrimonial statutes except the Divorce Act. The court can
fix the maintenance at any amount, depending on its discretion. When deciding the quantum of
maintenance to be awarded, the court takes into account the income of both parties, their status
and other circumstances. When the wife applies for maintenance, the onus is on the husband to
declare his income. The persons who are entitled to maintenance under the Hindu Adoptions and
Maintenance Act (HAMA), 1956 are wife, widowed daughter-in-law, children, aged parents and
dependants as enumerated in Section 21 of the Act. Whereas, under the Muslim law, the persons
entitled to maintenance are wife, young children, the necessitous parents, and other necessitous
relations within the prohibited degrees. The Muslim Law of maintenance is based on the Muslim
personal laws and the law enactments such as the Indian Majority Act, 1875, the Criminal
Procedure code 1973, Muslim Women (Protection of Rights on Divorce) Act, 1986.

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 .MAINTENANCE UNDER HINDU LAW

The right of maintenance under Hindu law is very old and it was one of the basic necessities of
the joint family system. According to my understanding the maintenance of the women in the
joint family system was an important system and this was followed as a tradition which governed
the families. It was the obligation of the head of the family (karta) to look after the women of the
family i.e. their wives and their daughters until they were married. Latter when the women grew
older it was the duty of their children to mother and other old women of the family. The
unchastity on part of the women disentitled them to maintenance. Their remarriage ended the
claim and the amount of maintenance depended upon various factors like the status of the family,
necessary requirements, wants, age, etc. Section 24 provides of Hindu Marriage Act, (HMA)
1955 provides for maintenance.

Under this Act also, only a wife has a right to claim maintenance. The Hindu husband has a legal
obligation to maintain his wife during his lifetime. However, if a wife ceases to be Hindu or lives
separately under no legal grounds she looses the right to claim maintenance too. Also, a Hindu
wife under this act shall not be entitled to separate residence and maintenance from her husband
if she is unchaste or converts to another religion. Wife can claim separate residence only if
husband remarries and the other wife stays in the same house.

Under this act (Section 19), a (Hindu) wife after the death of her husband is entitled to be
maintained by her Father in-law, provided she has no means of her own earnings. However, the
right cannot be enforced if her Father in-law does not have means to do so and if the wife
remarries.

The liabilities of a Hindu to maintain others are personal liability and liability dependant on
possession of property where the former arises from mere relationship between the parties and
the latter arises due to possession of property.

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 Maintenance of Wife under Section 18, the Hindu Adoptions
and Maintenance Act, 1956

Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her husband for
lifetime i.e. she will be given maintenance until she dies or her husband dies. Under section 18 of
this Act a Hindu wife is entitled to live separately from her husband without canceling her right
to claim maintenance. The grounds under which she can live separately are:-

(1) Husband is guilty of desertion

(2) The Husband has treated her with cruelty

(3) The husband is suffering from a virulent form of leprosy

(4)The husband has any other wife living.

(5) The husband keeps a concubine elsewhere

(6) The Husband has ceased to be a hindu by conversion to another religion and

(7) if there is any other cause justifying living separately

But there are two bars which will prevent a wife from claiming maintenance from her husband
i.e. (i) if she is unchaste or (ii) if she ceases to be a Hindu by conversion to another religion.

The wife is entitled to live separately without forfeiting her right to maintenance, if her husband
is guilty of desertion, if he subjects the women to cruelty, if he is suffering from a leprosy, if he
has any other wife living, keeps a concubine in the house where his wife resides, if he has ceased
to be a Hindu, or if there is any other cause justifying her to live separately under Section 18(2)
of the HAMA. .

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 Maintenance of wife under the Section 125 of CrPC
Under CrPC, only wife (a woman who has been divorced by or has obtained divorce from her
husband & hasn’t remarried) can claim for maintenance. A wife who refuses to stay with her
husband due to legal grounds such as (bigamy, cruelty & adultery) has the right to special
allowance under this act. But a wife does not possess right to claim maintenance if she’s living in
adultery or she’s living separately by mutual consent. The various sections of CrPC are criminal
in nature and are used for the criminal charges. The Section 125 of the CrPC states the provisions
as follows:

“125 Order for maintenance of wives, children and parents.

(1) If any person leaving sufficient means neglects or refuses to maintain-

(a) His wife, unable to maintain herself, or

(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or

(c) His legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself,

(d) His father or mother, unable to maintain himself or herself”

In this section what I find is different according to my knowledge is that the magistrate
has the power to give the maintenance from the date of the order and if gives the
allowance from the date of filling the application than in that case he has to give
reasons as to why he/she is giving the maintenance from the date of the application.

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 Award of maintenance to wife under Section 23(2)
Section 23 of the HAMA, 1956 clarifies or defines the people who get maintenance and

how much of maintenance i.e. the amount they can get keeping in mind the various
things. The court in the case of awarding maintenance has the authority to give the

maintenance after analyzing various factors. The factors which are considered by the
court according to section 23(2) and section 23(3) are:

“(2)a)the position and status of the parties.

(b) the reasonable wants of the claimant

(c) if the claimant is living separately, whether the claimant is justified in doing so,

(d) the value of the claimant’s property and any income derived from such property, or
from the claimants.

(e) the number of persons entitled to maintenance, if any, to be awarded to a

dependant under this Act, regard shall be had to –

(3) In determining the amount of maintenance, if any, to be awarded to a dependant

under this Act, regard shall be had to –

(a) the net value of the estate of the deceased after providing for the payment of his
debts.

(b) the provisions, if any, made under a will of the deceased in respect of the
dependant.

(c) the degree of relationship between the two.

(d) the reasonable wants of the dependants.

(e) the past relations between the dependant and the deceased.

(f) the value of the property of the dependant and any income derived from such
property, or from his or her earnings or from any other source.

(g) the number of dependants entitled to maintenance under this Act.

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The court awards maintenance to the wife considering various factors into consideration like
status and position of the parties, wife’s wants, the value of wife’s property and income if any,
derived from that property and the number of persons entitled to maintenance. The section says
that the maintenance is given on the basis of the decree of relation between the two partners.

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 Maintenance under Muslim Law
Muslim Law passively considers male to be superior to the woman. It is believed that a man can
take care of himself whereas the woman cannot, in other words it is deduced that a woman
cannot be self reliant. Hence, in Muslim law the wife has been bestowed with an absolute right to
be maintained and the husband is bound to maintain her regardless of the fact whether she’s poor
or not. Wife’s right to maintenance is a debt against the husband.

In muslim law, wife is preferred over all the other persons (even the young children & other
necessitous relations). However, the woman’s right and husband’s obligation exists only if the
wife remains faithful to her husband and obeys all his reasonable orders.

Nonetheless, the wife does not loose the right to maintenance if she refuses access to her
husband on legal grounds such as her illness or if the marriage cannot be consummated i.e.
cannot be concluded by the sexual intercourse because of her old age, illness, his minority or
faulty organ. However if the wife being too young for sexual intercourse, lives with her parents,
she does not possess any right for maintenance.

The wife also possess the right to claim maintenance on the account of a pre/ante- nuptial
agreement i.e. maintenance in the event of ill treatment. Along with this, the wife also gets the
privilege of being entitled to a special allowance called Kharch-i-pandan, guzara under such
agreement. Muslim law provides provisions for the right to maintenance if the wife stays
separately due to cruel behavior or non-payment of prompt dower. But a wife cannot claim any
maintenance during widowhood or Iddat because of her entitlement to inheritance.

Prior to the landmark judgment of Supreme Court in Shah Bano case, Divorced Muslim women
did not have right to maintenance. This in the point of fact handicapped the situation of Muslim
women as the husband according to Muslim law possesses the Authority to divorce from his wife
whenever he wants whereas the woman lack this right. Hence, the said case led to the enactment
of Muslim women (protection of rights on divorce) Act, 1986 which enables a divorced Muslim
to have a reasonable and fair provision of maintenance from her husband and from the relatives
who are entitled her property after her death after Iddat.

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The right to maintenance of Muslim sons is governed by CrPC 1973 and by CrPC 1973 &
Muslim women act, 1986 for Muslim daughters. The Muslim children are entitled to
maintenance for the period till they gain majority or are able to maintain themselves (Section
125, CrPC). In the case of daughters, they possess the right to maintenance till they get married
and two years post- marriage.

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PETITION BY WIFE UNDER SECTION 125, CR PC FOR MAINTENANCE

In the Court of.................... Judicial Magistrate No.

Case No. ........... under s. 125, Cr PC

Petitioner W (wife)

Daughter of...........

Village....................

Thana ..................

Occupation ............ Opposite Party H (husband)

versus

Son of...........................

Village ..............................

Thana..............................

Occupation ...................

In the matter of maintenance petition of petitioner W from the husband H per s. 125, Cr PC

The above name petitioner.

Respectfully shewoth:

1. Petitioner W being married wife of opponent party, they married according to the Hindu rites
on.

2. The opponent party H being a clerk on the staff of AB & Co. Ltd. holding a responsible
position and drawing salary of Rs. 8000 per month.

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3. The opponent party strongly attacked the petitioner on ................... and drove her away from
the matrimonial house on............................. before various gentlemen of the vicinity.

4. That the opponent party leading a life of drunkenness and habitual lewdness. He is besides a
man of uncertain temperament and become enraged season and out of season without any reason
whatever. He has lost all sense of decorum and uses abusive language.

5. Petitioner after having being driven out of the house by the opponent party, came to her
father's place on same day and staying there in his family members.

6. The opponent party was served with a pleader's notice for remitting petitioner Rs. 900 monthly
for maintaining her but without effect. Having regard to violent temper of H and his inhuman
type of beating petitioner she does not dare to go back to the place of the opposite party.

Petitioner hence prays that Your Honour may be pleased to issue notice on the opponent party
and after leading evidence of both sides be pleased to order the opponent party for paying
petitioner maintenance at the rate of Rs. 900 monthly. And petitioner, as in duty bound, shall
ever pray.

Verification

I, W, daughter of MN resident of.......................... do hereby solemnly affirm on oath say as

under:

1. I being petitioner above-named and I know the facts/circumstances of the case and I am able
to depose thereto.

2. The statements in the paragraphs 1, 2, 3, 4, 5 and 6 of the foregoing petition are true to my
best knowledge and that I have not suppressed any material fact.

Solemnly affirmed by the said Mrs. Won the ............ day of.........in the Court House at Bombay.

Before me

Notary

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 PETITION BY WIFE UNDER SECTION 125, CR PC FOR MAINTENANCE

In the Court of……………..Judicial Magistrate 1st Class

Case No……………………under s. 125, Cr PC

Petitioner W (wife) Opposite Party H (husband)

Daughter of………….. versus Son of…………………..

Village ……………… Village…………………

Thana……………….. Thana………………….

Occupation…………. Occupation…………….

In the matter of petition for maintenance of petitioner W from the husband H under s. 125, Cr PC

The humble petition of W (wife), the petitioner above-named

Most Respectfully Sheweth:

Your petitioner W is the married wife of the opposite party. The marriage between them was
solemnised according to the Hindu rites on the opposite party H is a clerk on the staff of AB &
Co. Ltd. holding a responsible position and drawing salary of Rs. 8000 per month.

The opposite party severely assaulted the petitioner on …………… and drove her away from the
matrimonial house on………………..in presence of several gentlemen of the locality.

That the opposite party leads a life of drunkenness and debauchery. He is besides a man of
uncertain temperament and would fly into rage in season and out of season without any reason
whatsoever. He has lost all sense of decorum and would use extremely filthy language.

Your petitioner after being driven out of the house by the opposite party came over to her father's
place on the same day and has been staying at father's house with his family members.

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The opposite party was served with a pleader's notice to send your petitioner Rs. 900 every
month for her maintenance but with no result. Having regard to the violent temper of H and his
inhuman way of beating your petitioner she does not venture to go back to the place of the
opposite party.

Your petitioner, therefore, prays that Your Honour may be pleased to issue notice on the
opposite party and after taking evidence of both sides be I pleased to order the opposite party to
pay the petitioner maintenance at the rate of Rs. 900 per month.

And your petitioner, as in duty bound, shall ever pray.

Verification

I, W, daughter of MN residing at…………. do hereby solemnly affirm and say as follows:

I am the petitioner above-named and I know the facts and circumstances of the case and I am
able to depose thereto. The statements in the paragraphs 1, 2, 3, 4, 5 and 6 of the foregoing
petition are true to my knowledge and that I have not suppressed any material fact. Solemnly
affirmed by the said

Mrs. Won the……..day of………. 2005 in the Court House at Calcutta

Before me Notary

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 IN THE COURT OF CHIEF JUDICIAL MAGISTRATE OF COIMBATORE, TN

IN THE MATTER OF:-

Petitioners

Versus

Respondent

Application under section 125 (3) of the code of Criminal Procedure with the prayer to grant
interim maintenance during the pendency of the main petition

Respectfully Sheweth: 1. That the petitioners have filed a petition under section 125 for grant of
maintenance under Code of Criminal Procedure along with the present application which is
pending before the learned court. 2. That the grounds mentioned in the main petition may kindly
be read as part and parcel of the present application as the same has not been reproduced to avoid
repetition of the same. 3. That as per the grounds setup in the main petition, there is prima facie
case in favour of the petitioners and against the respondent. And in case, interim maintenance is
not granted in favour of the petitioners, in that eventuality, they will suffer great hardship in
meeting their day to day expenses as already submitted that they have now totally become
dependent upon their father/maternal grand father. The petitioners have no independent source of
income and the respondent has sufficient source of income to maintain him as well as the
petitioners. It is pertinent to mention here that after the petitioners were forced to leave the house
of the respondent, he has even not cared to have any amicable settlement and has not given any
single pie to the petitioners for their maintenance, as such the respondent has breached the
obligatory marital duties and obligations to maintain the petitioners. It is, therefore, most
respectfully prayed that the application may kindly be allowed and respondent be directed to pay
a sum of Rs_____/- each to the petitioners as interim maintenance from the date of filing of the
application till its decision on merits. The respondent be also directed to pay litigation expenses
of the present petition to the petitioners. Coimbatore Applicant _____ Through, Advocate

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 Conclusion
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.

If we read the Shah Bano case we could see that the Muslim and the Hindu women were on the
same side. But latter when the government passed The Muslim Women (Protection of Rights on
Divorce) Act, 1986 the Muslim women were again seen to be more unprivileged than the Hindu
women. But latter the court in the Daniel Latify judgment said that the Muslim women can also
be awarded the same maintenance as Hindu women for life time. Therefore according to my
understanding or according to my knowledge I would say that both the Hindu and the Muslim
women are in the same place in case of awarding the maintenance.

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.

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 BIBLIOGRAPHY

 Crpc Bare Act

 Indian kanoon.org
 Law Teacher.net

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