Landmark Cases of Maintenance

Aashima Kakkar

The definition of Maintenance in the dictionary is “Support” or “Sustenance.” The term “Maintenance” is not defined in any religious community’s marriage laws. However, the right to claim maintenance is predicated on the assumption that the claimant lacks the financial means to support herself. The expenses for necessities or essentials for the substance of life are usually covered by maintenance.

It is not, however, solely a right to the claimant’s survival. This is evident from the provisions of the various acts, which provide guidelines to the court by stating the factors to be considered when determining the amount of maintenance to be paid.

To determine the amount of maintenance, the court will consider the husband’s and wife’s possession of property, the husband’s ability to earn, the parties’ conduct, and other factors. Before determining the amount of maintenance, the status of the parties and the standard of living they have enjoyed during the marriage must be considered.

The Maintenance provisions are intended to serve a social purpose. These provisions are found in sections 125 to 128 of the Criminal Procedure Code, 1973 (hereinafter as CrP.C) as well as the Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the Protection of Women from Domestic Violence Act, 2005.

All of these provisions are intended to compel a man to fulfil his moral obligations to society in regard to his wife, children, and parents. By including provisions for a simple and quick but limited relief, these provisions are intended to ensure that the neglected wife and children are not left beggarly and destitute on society’s scrapheap, forcing them to live a life of vagrancy, immorality, and crime in order to survive.

The inability of the wife, child, father, or mother to maintain themselves could lead to social problems, and it became the state’s concern not to allow such inability to grow into large-scale social problems unless the consequences of such inability were checked by providing appropriate measures, with large-scale vagrancy being a likely offshoot.

Illustrations:

• If a son X refuses to support his father Y, his father may be entitled to maintenance under Section 125 of the code if the son has sufficient means.
• If a father or mother is not provided for by his son or daughter, he or she may file a claim for maintenance under section 125 of the code or the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

As a result, the parliament devised a procedure to address this issue, which is codified in Chapter IX of the CrP.C. This law is fully compliant with Article 15 (3) of the Indian Constitution, which states that the prohibition contained in the article shall not prevent the state from making special provisions for women and children.

Article 39 of the constitution also states, among other things, that the state shall direct its policies toward ensuring that all citizens, men, and women alike, have the right to an adequate means of livelihood, that children are given opportunities and facilities to develop in a healthy and dignified manner, and that childhood and youth are protected from exploitation.

Some of the landmark judgements regarding maintenance are:

Stepping-stone for right to maintenance under section 125 CrP.C

The case of Mohd. Ahmed Khan v. Shah Bano Begum^[1] was the stepping-stone for right of maintenance under the Indian law. The decision in this case was hailed as a watershed moment because it went beyond the standard practice of deciding cases on the basis of personal law interpretation and emphasized the importance of implementing the Uniform Civil Code. It also took note of various personal laws and the need to recognize them, as well as the issue of gender equality and religious principles’ perseverance.

The facts of the case were:

• In the year 1932, the appellant-husband, an advocate by profession, married the respondent-wife, and they had five children: three sons and two daughters. The appellant ejected the respondent from the matrimonial home in 1975.
• The respondent filed a petition against the appellant under section 125 of the Code of Criminal Procedure in the Court of the Judicial Magistrate Indore in April 1978, seeking maintenance for herself and her five children at the rate of Rs. 500 per month, despite the appellant’s professional income of about Rs.60,000 per year as the section puts a legal obligation on a man to provide for his wife during the marriage and after divorce too if she is not able to earn for herself.
• Divorce Announced: In November 1978, the appellant gave the respondent an irrevocable talaq and defended himself on the basis of Muslim Personal Law in India, stating that she had ceased to be his wife as a result of the divorce granted by him, and that the husband was only required to provide maintenance for the iddat period after the divorce that had not kept him under no obligation to provide maintenance for her after the completion of iddat period.
• Iddat: The Iddat is the period of time a woman must wait after her husband’s death or her husband’s divorce announcement before she can marry another man. The iddat period lasts for three months on average, but if the woman is pregnant, the period extends until the child is born.
• Those who backed the petitioner were: The All-India Muslim Personal Law Board backed Khan’s argument, claiming that courts should not be allowed to interfere in matters governed by Muslim Personal Law, and that doing so would be a violation of the Muslim Personal Law (Shariat) Application Act, 1937.
• The Supreme Court of India issued a decision in 1985, after considering the detailed arguments, on the question of whether the CrP.C, which applies to all Indian citizens regardless of religion, can be applied in this case.

The verdict of the case was that:

The then Chief Justice of India, Y.V. Chandrachud, upheld the High Court’s decision to order Shah Bano’s maintenance under the Code of Criminal Procedure, 1973. The court, for its part, increased the amount of money to be paid under the maintenance agreement.

Can the Magistrate grant interim maintenance?

In the case of Savitri w/o Shri Govind Singh v. Shri Govind Singh Rawat^[2], the Supreme Court addressed the issue of whether the CrP.C. Interpretation provides for interim maintenance.

The facts of the case are:

• The petitioner asked the Magistrate for an order against her husband directing him to pay the maintenance under section 125 of the CrP.C., 1973.
• She then filed a new application for an interim order directing her husband to pay a reasonable sum in maintenance pending the outcome of the main case. The Magistrate declined to take the call for an interim order because there were no express provisions in the Code that allowed a Magistrate to make such an order.

The verdict:

• It has already been established that the Code contains no express provisions authorizing the magistrate to issue an interim order directing the payment of maintenance pending the disposition of an application for maintenance, nor does it expressly prohibit the magistrate from issuing such an order. Given the nature of the proceedings under Section 125, the question is whether such a power can be impliedly vested in a magistrate.
• According to Section 125 of the code, a magistrate has the authority to order a person who has sufficient means but neglects or refuses to maintain:
  • His legitimate or illegitimate minor child, whether married or not, is unable to support himself; or,
  • His legitimate or illegitimate child (should not be a married daughter) who has reached majority and is unable to support himself due to any physical or mental abnormality or injury
  • His father or mother, unable to support himself or herself, to pay a monthly allowance for the maintenance of his wife or such child, father, or mother, as the case may be, at such monthly rate not exceeding five hundred rupees in total as such Magistrate thinks fit, upon proof of such neglect or refusal. The allowance is payable from the date of the order, or, if so ordered, from the date of the maintenance application.

What is the interpretation of the above verdict?

The interpretations of the above provisions show that they are intended to provide a preventive remedy for securing maintenance payment that can be granted quickly and in deserving cases. In light of the foregoing, it is the court’s responsibility to interpret the provisions of Chapter IX of the Code in such a way that the court’s decision, taken in the context of the enacted code on whose behalf the decision is being made, does not defeat the legislative intent.

• In the absence of express prohibition, the provisions should be interpreted as conferring on the magistrate an implied power to order the person against whom a petition under Section 125 of the code is filed to pay some amount of money as maintenance to the applicant pending final disposition of the application.
• It has been acknowledged that applications filed under section 125 of the code frequently take several months to be resolved, and that in order to reap the benefits of the proceedings under section 125, the applicant must be alive until the date of the final order, which the applicant can do in a larger number of cases only if an order for payment of interim maintenance is issued.
• In conclusion it can be said that the court stated that the Magistrate may require the applicant concerned to file an affidavit stating the grounds in support of the claim for interim maintenance in order to satisfy himself that there is a prima facie case for making such an order.

How is the amount of maintenance decided?

In the case of Kulbhushan Kumar v. Raj Kumari and Anr.^[3] the court decided on the amount of maintenance to be paid to the wife, considering the circumstances, as the wife was receiving money from her father.

The facts of the case are:

• In the month of May 1945, the appellant-husband and the respondent-wife married. After a while, the husband no longer wanted to live with the wife, and the two were completely estranged. In August 1946, a daughter was born.
• The respondent sent a registered letter claiming maintenance on behalf of herself and her daughter in 1951, and she filed a maintenance suit in 1954.
• The High Court took into account the fact that the appellant was a Reader in Medicine with a monthly salary of around Rs.700 and a private practise income of more than Rs. 250. The High Court set the date for the payment of the respondent’s maintenance on the day the suit was filed.
• The High Court decided that the respondent’s maintenance under Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956, should be Rs. 250 per month, subject to a limit of 25% of the respondent’s income as determined by the income-tax authorities, and the daughter’s maintenance should be Rs. 150 per month.
• In this appeal to the Supreme Court by the respondent, the question of allegiance to the wife’s maintenance was raised.

The verdict:

• Even if the wife had received money from her father on a regular basis, it could only be considered a gift and not a source of income. As a result, it could not be taken into account in determining the amount of maintenance under Section 23(2)(d) of the Act.
• There was no evidence of her inheriting any of her father’s property after his death; The amount payable as maintenance depends on the facts of each case, and the Judicial Committee did not lay down any principles relating to the proportion in Ekradeshwari v. Homeshwar^[4].

In the circumstances of this case, no deviation from the amount determined by the High Court, as well as the date from which maintenance could be claimed, could be made. Amounts payable to income tax, compulsory provident fund, and other expenses for maintaining the car for professional purposes as allowed by the income tax authorities should be allowed as deductions from the husband’s total income when determining the limit at 25% of the appellant’s “free income.”

Can a wife claim multiple maintenances?

Hemlataben Maheshbhai Chauhan v. State of Gujarat^[5] is a case where the plaintiff is Hemlataben Maheshbhai Chauhan. Wife’s son has already been awarded maintenance by a competent court, so she cannot claim multiple maintenances unless there is a compelling reason. However, under Section 127 of the CrP.C, she can request a modification of the maintenance.

In another case, Rachna Kathuria v. Ramesh Kathuria^[6], the respondent’s wife was already receiving maintenance from him. She still filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (the Act), as well as an application for maintenance under Section 29 of the Act. It is important to note that this law does not give women any additional rights in terms of claiming maintenance. This law is only in place to expedite the process.

Ravindra Haribhau Karmarkar v. Mrs. Shaila R. Karmarkar^[7] is a case where it was decided that the wife could not ride two horses at the same time (due to two concurrent proceedings in two different Courts) and could not continue the maintenance proceedings under section 125 of CrP.C. Parallel proceedings in different courts cannot be allowed, according to natural justice.

In the case of Renu Mittal v. Anil Mittal & Ors.^[8] It was stated that a party can seek maintenance from the Court of Metropolitan Magistrate under the Domestic Violence Act, which must be filed within 30 days of the commission of domestic violence, or under Section 125 Cr. P.C., which must be filed within 90 days of the commission of domestic violence.

The jurisdiction for granting maintenance under Section 125 CrP.C. and the Domestic Violence Act is parallel, and if maintenance has been granted under Section 125 CrP.C. after considering all of the evidence presented to the Court and recording evidence, another MM under the Domestic Violence Act is not required to adjudicate the issue of maintenance.

The law does not require that the same issue be decided by two different courts. If the matter has already been adjudicated by a Court of MM under Section 125 CrP.C, the issue of maintenance cannot be re-judged by a Court of MM under the Domestic Violence Act.

Therefore, it can be concluded that the wife cannot claim multiple maintenances.

Maintenance of wife and child is the foremost duty of the husband – he may beg, borrow or steal

The Punjab and Haryana High Court in the case of Rajesh v. Sunita & Ors.^[9] made this scandalous statement regarding maintenance by stating that “if the husband fails to pay maintenance, then the defaulter that is, that the husband has to suffer imprisonment on each default to pay the maintenance.”

The High Court based its decision in the case on the Supreme Court’s decision in the case of Shantha v. B.G. Shivnanjappa^[10], in which the Apex Court stated that the respondents are owed maintenance for about 45 months. A ‘mode of enforcement’ is when a person is sentenced to prison. It is not a “mode of liability satisfaction.” Only by paying the arrears in full can the liability be discharged.

The entire purpose of incarceration is to compel a person liable to pay the monthly allowance who refuses to obey the order without good reason to obey the order and make the payment. The purpose of incarcerating him is not to absolve him of the responsibility he has refused to accept.

The wife and child are given a monthly allowance to help them survive by providing them with the basic necessities of life. Neither the neglected wife nor the neglected child can survive without money to buy food and other necessities. The husband’s first and most important responsibility is to provide for his wife and child. He has the option of begging, borrowing, or stealing.

As a result, the Court concluded that the maintenance claim must be construed as a continuing liability that is due at the end of each month. As a result, the defaulter must serve time in prison for each failure to pay the maintenance. The fact that you were imprisoned for non-payment of maintenance does not remove the obligation; it will continue to exist until the payment is made.

Can the wife be awarded maintenance even if she is earning?

The Supreme Court made a noteworthy observation in the case of Shailja & Anr. v. Khobanna^[11] stating that just because a wife is capable of earning does not mean her maintenance should be reduced, and that whether a wife can earn, and earning are two different factors.

What should the Maintenance Quantum be?

In the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy^[12], the Supreme Court held that 25% of the husband’s net salary would be just and proper as maintenance to the wife.

The Supreme Court, in deciding the review petition, cited the case of Dr. Kulbhushan v. Raj Kumari & Anr.^[13], in which it was held that awarding 25% of the husband’s net salary as maintenance to the respondent-wife would be just and proper. The Court also made the following noteworthy observations in the case:

• That the amount of permanent alimony awarded to the wife must be commensurate with the parties’ status and the spouse’s ability to pay maintenance.
• That maintenance is always contingent on the facts of the case, and that the Court would be justified in shaping the maintenance claim based on a variety of factors.

The High Court of Kerala recently made a similar observation in the case of Alphonsa Joseph v. Anand Joseph^[14], where the Court stated that maintenance to a wife cannot be denied solely because she earns money.

The High Court, citing the Supreme Court’s decision in Sunita Kachwaha and Ors. v. Anil Kachwaha^[15] stated that even if the wife was earning some money, that was not necessarily a reason to deny her maintenance application outright.

The High Court also stated that, as held by the Supreme Court in a series of decisions, the concept of sustenance does not necessarily imply living in poverty and begging for basic necessities. In law, the wife has the right to live in the same manner as she would have in her husband’s home, with respect and dignity.

The husband is not entitled to argue that he is unwilling to pay any maintenance, and the courts are unlikely to accept the husband’s blatant refusal with folded hands. If the Family Court decides to deny interim maintenance to the wife or to pay a lower amount than the minor child is entitled to, it must do so for legally permissible reasons, not on the basis of a memo filed by the husband.

Instances of maintenance of children and parents

Maintenance of children from a void marriage – Bakulbai v. Gangaram^[16]

A child born of a void marriage between a woman and a man who already has a wife is to be treated as a legitimate child entitled to maintenance under Section 125 of the Criminal Procedure Code.

The father is responsible for the upkeep of his unmarried daughter – Jasbir Kaur Sehgal v. District Judge, Dehradun^[17]

Under the Hindu Adoption and Maintenance Act, 1956, an unmarried daughter who is unable to support herself is entitled to maintenance. In these cases, the father is obligated to support her unmarried daughters even if they live separately from their mother.

Even after reaching majority, the daughter will be cared for until she marries – Jagdish Jugtawat v. Manju Lata^[18]

Even after reaching majority but before marrying, a daughter is entitled to maintenance under the CrP.C when read in conjunction with the Hindu Adoption and Maintenance Act, 1956.

A Hindu earning mother is also responsible for her children’s maintenance – Padamja Sharma v. Rantan Lal Sharma^[19]

The Hindu Adoption and Maintenance Act of 1956 requires both a Hindu divorced father and a Hindu divorcee earning mother to contribute to the upkeep of their children. Regardless of whether or not the mother is wealthy, the father is not solely responsible for the upkeep of the children.

Only when there is neglect or refusal to maintain despite having sufficient means does the CrP.C apply – Amarendra Kumar Paul v. Maya Paul^[20]

Only when a person, despite having sufficient means, neglects or refuses to maintain his legitimate or illegitimate minor children who are unable to support themselves does a case for maintenance under Section 125 CrP.C arise.

The daughter is responsible for the maintenance of her parents – Kashirao Rajaram Sawai v. Vijaya Manohar Arbat^[21]

Along with a son, Section 125 CrP.C holds a daughter, whether married or unmarried, liable if she has sufficient means to support her parents who are unable to support themselves.

When can a stepmother sue her stepson for child support? – Kirtikant D. Vadodaria v. State of Gujarat ^[22]

If she is a widow or her husband, if still alive, is incapable of supporting and maintaining her, a childless stepmother may seek maintenance from her stepson.

Under the 2007 Act, the conditions for granting maintenance to parents and senior citizens – Kanyakumari M. Venugopal v. DM^[23]

Senior citizens, including parents, will be entitled to maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, if they are unable to support themselves from their own earnings or from property they own. However, in Ulleppa v. Gangabai^[24] the Karnataka High Court agreed with the Supreme Court’s decision in Kirtikant D. Vadodaria v. State of Gujarat. The court noted that if it is established that the stepmother has other means of support, she may be unable to receive support from her stepsons.

Maintenance under the CrP.C and the 1986 Act run concurrently (Muslim children are entitled to maintenance under the CrP.C) – Mohd. Quasim v. Noor Saba Khatoon^[25]

The Section 125 CrP.C benefit is available to all children, regardless of religion. The right of a mother to claim maintenance for her children for two years from the date of birth under the Muslim Women (Protection of Rights on Divorce) Act, 1986 is distinct and separate from the right to maintenance under the CrP.C for minor children who are unable to support themselves.

Adoptive mother can claim maintenance – Baban Alias Madhav Dagadu Dange v. Parvatibai Dagadu Dange^[26]

The Bombay High Court held that the term “father” encompasses both natural and adoptive fathers, as defined by the General Clauses Act. True, the expression “mother” is not defined in the General Clauses Act. However, this does not imply that the expression should be interpreted in its strictest sense. Now, if the terms “father” and “son” are to be given a broader meaning, there is no reason why the term “mother” should not be given a broader meaning as well, to include an “adoptive mother.”

Conclusion

Women’s rights have been restored as a result of judicial decisions and other actions, but they will only be fruitful if underlying beliefs are changed. Women should emancipate themselves educationally, economically, and socially for their own well-being, and only then will they be able to understand their rights and worth, and only then will the social upliftment of the entire community be possible.

We must never forget that his mother is his child’s first teacher and mentor. It is a historical fact that no society has ever lived in peace until its women have.

Despite the fact that maintenance should be gender neutral and applicable to both husband and wife for the greater good of society, many women are denied the right to claim their maintenance rights. To comply with the Law of the Land and, ultimately, to make it a grand success, proper implementation is required.

1. Mohd. Ahmed Khan v. Shah Bano Begum 1985 AIR 945, 1985 SCR (3) 844 ↑

2. Savitri w/o Shri Govind Singh v. Shri Govind Singh Rawat 1986 AIR 984, 1985 SCC (4) 337 ↑

3. Kulbhushan Kumar v. Raj Kumari and Anr. 1971 AIR 234, 1971 SCR (2) 672 ↑

4. Mt. Ekradeshwari v. Homeshwar (1929) 31 BOMLR 816 ↑

5. Hemlataben Maheshbhai Chauhan v. State of Gujarat Criminal Application no. 2080 of 2010 ↑

6. Rachna Kathuria v. Ramesh Kathuria Crl. M.C no. 130/2010 and Crl. M.A. no. 504/2010 ↑

7. Ravindra Haribhau Karmarkar v. Mrs. Shaila R. Karmarkar 1992 CriLJ 1845 ↑

8. Renu Mittal v. Anil Mittal & Ors. Crl. R.P. no. 633/2010 and Crl. M.A. no. 15451/2010 ↑

9. Rajesh v. Sunita & Ors. CRR (F) – 123/2015 (O&M) ↑

10. Shantha v. B.G. Shivnanjappa Appeal (crl.) 673/2005 ↑

11. Shailja & Anr. v. Khobanna Crl. Rev. Pet. 849/2018 and Crl. M.A. 33234/2018 ↑

12. Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy Civil Appeal no. 5369/ 2017 arising out of SLP(C) no. 34653/2016 ↑

13. Dr. Kulbhushan v. Raj Kumari & Anr. (1970) 3 SCC 129 ↑

14. Alphonsa Joseph v. Anand Joseph OP (Crl.) no 274/2018 ↑

15. Sunita Kachwaha and Ors. v. Anil Kachwaha Criminal Appeal no. 2310/2014 ↑

16. Bakulbai v. Gangaram (1988) 1 SCC 537 ↑

17. Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7 ↑

18. Jagdish Jugtawat v. Manju Lata (2002) 5 SCC 422 ↑

19. Padamja Sharma v. Rantan Lal Sharma (2000) 4 SCC 266 ↑

20. Amarendra Kumar Paul v. Maya Paul (2009) 8 SCC 359 ↑

21. Kashirao Rajaram Sawai v. Vijaya Manohar Arbat, 2 SCC 278 (1987) ↑

22. Kirtikant D. Vadodaria v. Gujarat State, 4 SCC 479 (1996) ↑

23. Kanyakumari M. Venugopal v. DM, 2014 SCC OnLine Mad 5642 ↑

24. Ulleppa v. Gangabai 2003 CriLJ 2566 ↑

25. Mohd. Quasim v. Noor Saba Khatoon, (1997) 6 SCC 233 ↑

26. Baban Alias Madhav Dagadu Dange v. Parvatibai Dagadu Dange (1978) 80 BOMLR 305 ↑