This article is written by Ritwick Kundu, LL.B., 2nd year, Bharati Vidyapeeth during his internship at LeDroit India.
Keywords – Social engineering, CrPC, Maintenance, Hindu Marriage Act, Domestic Violence Act.
Abstract –
Social engineering is occasionally required, and maintenance is one such topic in law that specifically addresses the vulnerable ones who are unable to manage their livelihood. It helps to empower women mainly, but the ambit of it covers children and parents as well.
Introduction and explanation
Divorce is not a very pleasant topic to discuss because here the separation of two individuals takes place. Still, in some cases where there is a need for the same, the process is long. A vital part of it is the maintenance of the livelihood of a person.
What is maintenance ?
An amount is given to an individual, either a wife, child or parents, who do not have sufficient means to survive or are unable to maintain themselves. In personal laws also, there are provisions for maintenance, i.e., Section-24, Hindu Marriage Act, 1955; Section-23, Domestic Violence Act, 2005; Section-18, Hindu Adoption and Marriage Act, 1956; and Section-36, Special Marriage Act, 1954.
Mainly, the parties claim maintenance under Section 125, Code of Criminal Procedure (CrPC), 1973. It deals with Order or Maintenance of wives, children and parents.
A wife can claim maintenance from her husband when she does not have sufficient means to survive. A wife, including a divorced wife, and also a voidable marriage (wife), can also claim maintenance. But in three conditions, the wife is not entitled to maintenance :-
1. If she is living in adultery.
2. If without sufficient reason, she refused to live with her husband.
3. If they are living separately by their mutual consent.
4. In void marriages, there is also no maintenance as per CrPC, but in Hindu marriage law, the maintenance, in this case, could also be guaranteed.
Children are also under the umbrella of maintenance. Whether legitimate or illegitimate, minor children unable to maintain themselves are entitled to maintenance by the father. A legitimate or illegitimate child who has reached the age of majority but is unable to support himself/herself due to a mental or physical abnormality or injury shall be supported by their father.
Parents are also covered under maintenance as it is the duty of the children to maintain their elderly parents. The words his father or his mother are specifically mentioned in Section 125 of the CrPC, 1973.
Apart from that, an unemployed husband is also compelled to provide maintenance to his wife as it is an absolute right. Moreover, if the husband does not have a source of income at present but he has a good net worth (sufficient means), he is liable to pay the maintenance to his wife.
The maintenance amount should be such that the supply of food, lodging, and other necessary things required to live a dignified life is managed. In other words, the living standard of the wife should be maintained at the level she had before the divorce.
Phases to claim maintenance :-
- Scrutiny,
- Notice to husband,
- Mediation & Conciliation,
- Reply by husband,
- Filling of affidavit of income, assets, liabilities,
- Arguments on interim maintenance & order,
- Framing of issues Evidence of Petitioner/Wife,
- Cross examination by respondent/husband,
- Evidence of respondent/husband,
- Cross examination by petitioner/wife,
- Final arguments, &
- Final judgement.
According to Section – 125 1 (d), CrPC, 1973, the petition goes to the Magistrate of the first class.
Case law(s)
1. Reema Salkan v/s. Sumer Singh Salkan, 2019, 12 SCC 303 – In this case, the honourable court stated that, ‘the husband being an able-bodied person is duty-bound to maintain his wife who is unable to maintain herself’.
2. Vijay Manohar Arbat v/s. Kashi Rao Raja Ram Sawai, 1987 – In this case, the honourable court stated that,’maintenance of parents by children has given a broad interpretation and held that this word his has to be read liberally, so, as to include her also, which means parents can claim maintenance from both son and daughter’.
3. V. Alias Ponsekar v/s. Sivaneshwari, 2012 – In this case, the honourable court stated that,’an insolvent or a monk is to support his wife long as he is able-bodied and can eke out his livelihood’.
Conclusion
Maintenance is a very crucial thing where the life of an individual is dependent. Moreover, it helps to empower women, support children, and take the responsibility for elderly parents in case there is some dispute. It basically guides a person to take care of his responsibilities, which he may have forgotten or is not able to provide for some other reason. Maintenance acts as a social check and balance point to restore the point of equilibrium. But as everything has its merits and demerits, this provision is also not exempted from it as sometimes it is often seen that a woman claiming maintenance only wants it to have a premium lifestyle because nowadays many women are working and earning a decent amount of income and they are quite independent. It is not only about male but females as well in certain cases and also the it not only about money but its about dignity and self-respect.
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