The most challenging part when the situation of separation of married couples comes in front of the court is to decide the maintenance keeping in view that the rights of each of the party is not hampered.
Therefore, the legislators took the pain of inserting the sections regarding to maintenance in the Hindu Marriage Act-1955. In this paper I will be throwing some light on the various provision of the Hindu Marriage Act - 1955 which concern the maintenance and the interpretations made by various courts of law in India.
The maintenance is mainly described explicitly in section 24 and section 25 of the Hindu Marriage Act-1955.
Sec.24 emphasizes on maintenance pendente lite and expenses of the proceedings and sec. 25 talks about the permanent alimony under the Hindu Marriage Act-1955.
Maintenance Pendente lite and expenses of proceedings (Sec.24): -
The provision for maintenance pendente lite and expenses of proceedings is given in section 24 of the Hindu Marriage Act - 1955, which is stated as follows: -
24.Maintenance pendente lite and expenses of proceedings: - Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable:
[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]
Legislative Changes: -
An addition of a provision was done was done to the existing section in 2001 by providing for disposal of maintenance pendente lite and expenses of the proceeding within a period of 60 days from the date of service of the notice on the wife or the husband.
Objective of Section - 24: -
The provision of maintenance pendente lite is created by the legislators to provide financial assistance to the indigent spouse to maintain herself or himself during the pendency of the proceedings and also to have sufficient funds to carry on the litigation without suffering unduly due to shortage of funds. In the case of Hema v S. Lakshmana Bhat the Kerela High court held that husband too can claim for alimony pendente lite. The court in this case observed that in providing for alimony or maintenance pendente lite for both the spouse the concept of equality has been introduced in maintenance proceedings.
The rationale of the Sec.24 is to provide financial assistance to the indigent spouse and to ensure that no material fact or evidences is concealed due the financial incap
1. MAINTENANCE UNDER
HINDU MARRIAGE ACT-1955
Trisom Sahu(14IP60011)
Under : - Prof. Arindam Basu
2. Introduction
The maintenance provisions under the Hindu
Marriage Act,1955 ensure that the rights of
each of the party is not hampered.
Maintenance
Maintenance pendente
lite
Sec.24
Alimony and Permanent
Maintenance
Sec. 25
3. Objective of Section.24
Maintenance under this section is granted
during the time of proceedings if the party is
not able to maintain himself or herself.
The rationale of the Sec.24 is to provide
financial assistance to the spouse who is
unable to maintain himself/herself.
4. Scope of Sec.24
The scope of this section is very limited and it
facilitates the matrimonial proceeding for the
party who does not have a separate source of
income.
It has to be claimed only when a proceeding is
pending before the court and not otherwise.
5. Principle for determining
maintenance pendente lite
The court cannot determine the amount
arbitrarily but rely on some basic
considerations :
Position, income and status of the parties
Reasonable want of the claimant towards food,
clothing, shelter, medical expenses, education
and the like.
number of persons of the opposite party whom he
is obliged to maintain.
May be claimed for brothers and sisters if they
are completely dependant on the party.
6. Quantum of Maintenance
As seen in case of Jasbir Kaur Sehgal v.
District Judge,1998 and in many other cases
the court fixes a maintenance equivalent to
1/5th to the income of the party.
In present days the idea of fixing 1/5th of the
husband's income has lost all relevance as the
status of wife and that of husband should be
equal which is now generally accepted.
Therefore fixing 1/5th is not a thumb rule.
7. Quantum of Maintenance and
under S.125 of CrPC
Maintenance for minor child can also be
claimed although it is not mentioned directly in
the section.
The maintenance and education of the
children can be included for which no separate
application under S.26 is required.
Maintenances previously granted under s.125
of CrPC does not oust the jurisdiction of the
matrimonial court.
8. Scheme of S.25
S.25 is broadly divided into 3 subsection: -
Subsection-1
• Talks about the
jurisdiction of the
matrimonial
courts to award
permanent
alimony and
maintenance to
a deserving
spouse
Subsection-2
• Provides for
alteration of the
amount of
maintenance, by
the Court if it
deems just, at
the instance of
any of the
parties
depending upon
the change of
circumstance of
any of the
parties. Sub-section
Subsection-3
• Contemplates
varying,
modifying or
rescinding any
order passed
under sub-sec
(1)
9. Scope and Objective of S.25
Scope
The rights under this section are special, independent
and conditional to the spouse.
These rights can only be exercised only when there is a
decree existing under the Act affecting the matrimonial
relations between the parties.
Objective
The objective was to provide maintenance to the needy
woman or the deserving spouse after a decree has
been passed by the court.(Chand Dhawan V.
Jawaharlal Dhawan, 1993)
10. Quantum – Permanent
Maintenance
The Court generally looks into the income and property of the
parties, the conduct of the parties, and any other circumstances
which may be just.
There is no fixed norm for the court to follow to grant alimony it
differs from case to case. However, the independent income of
the prayer which is to be considered.
In case the of decree of divorce is awarded by a High Court
then the permanent alimony can be granted by High Court only,
this was opined in the case of Poonam Meheta v Naresh
Prasad,2009.
When the application of permanent alimony and the
maintenance is pending, in such cases, the court opined that
wife can apply for alimony pendente lite till the disposition of the
marriage, this was opined in the case of Y.Prashad v Jyoti
11. Conclusion & Overview
Suit For
Matrimonial
Remedy
Maintenance
Under S.24
Passing of
Decree
Maintenance
Under S.25
12. Conclusion
The rules and grounds of divorcee in Hindu
marriages was non existence prior to 1955 in
India.
The situation of Hindu divorced wife was
miserable then.
Still in present day, where both the spouses
are considered as equal, we see the decisions
of Court are slightly inclined in favour of wife.
