Meaning & Persons entitled

Certain domestic relationships cast certain legal responsibilities. A right to be maintained that obtains to a spouse, minor child, unmarried daughter, widowed daughter in law, aged parents, et al is protected by various laws, mostly statutory and also by customary law in the case of Muslims. The term ‘maintenance’ includes provision for food, clothing, residence, education and medical attendance and treatment; in case of an unmarried daughter, also the reasonable expenses of an incident of her marriage. If the person who is to maintain is dead, the claimant would become a ‘dependent’, who could be in relation to the deceased. a mother, father, widowed daughter in law that does not re-marry, unmarried daughter, widowed daughter to the extent to which she is unable to realize maintenance against the estate of her husband, son or father in law. The claim to maintenance arises through a right to enforcement through law, if there is a breach of duty or neglect by the person who is bound to maintain.

 Situations that give rise to claim for maintenance

In a normal economic and social setting in an Indian family, the male member who is the head of the family that earns a living supports the other members of his family, although it is legally possible for husband to be supported by his spouse if he is economically dependent on her and the latter alone is the wage earner or has means of living. Again, the rights work themselves out without even a formal demand in a normal domestic life. The issues of demand and enforcement arise only when, for a wife, for example, the husband is guilty of abandoning her or treating her with cruelty that justifies her separate living. Other circumstances that could justify her separate living without forfeiting her right to maintenance would be when the husband has another wife or concubine with whom the husband is living, if he is suffering from communicable disease, if he converts to another religion. A minor child is entitled to be educated and an unmarried daughter is entitled to reasonable marriage provision.

 ‘Other relationships’/divorced wife

A woman who holds a relationship with a man ‘in the nature of marriage’, who is in a domestic relationship is also entitled to be maintained by virtue of the provisions of Protection of Women from Domestic Violence Act 2005. The law protects a woman the right to reside in a shared household with the man, whether he owned or rented or held jointly with other members of his family. An illegitimate minor child is entitled to be maintained by his or her mother or father or by both. A divorced wife, who does not remarry shall also be entitled to maintenance. In case of Muslim women, the claim would be normally during the period of iddat. However, in an action for maintenance before a criminal court, a Muslim husband objects to the jurisdiction of the criminal court, the claim would be adjudged and paid by the State Wakf Board. However, by recent decisions of the Supreme Court, in Danial Latif (2001) and Shabana Bano(2009), a divorced muslim wife is held to be entitled to maintenance even during the period of iddat, so long as she has not remarried.

 Quantum of maintenance

The quantum of maintenance would depend on the position and status of parties, reasonable wants of the claimant, the justification for separate living, the means of the claimant, the number of persons entitled to be maintained by the person against whom the claim is made. While addressing the claims of a dependent, regard shall also be had to the net value of the estate of the deceased after providing for the payment of his debts, provision, if any made under a will of the deceased, degree of relationship between the two, the reasonable wants of the dependent, etc. Normally, the claim of maintenance approximates to 20-25% of the net salary of the person who is bound to maintain.

   Forum for making the claim

A claim to maintenance is possible by a petition to be filed before a judicial magistrate under section 125 of the Code of Criminal Procedure. In cases, where family courts are established, the remedy could be pursued before such a court. A civil suit could be also instituted by paying the necessary court fee or by claiming exemption from such payment in case of indigency. A civil action may also make possible a right to obtain a charge against the property of the person who is bound to maintain. The right could also be enforced against the property in the hands of a purchaser from the person who is bound to maintain, when he has notice of the claim or when the transfer is gratuitous. A claim for interim maintenance could be pursued during matrimonial proceedings for dissolution of marriage or for restitution of conjugal relationships. Provision for permanent alimony could also be made at the time when relief of dissolution of marriage is granted by a court. The relief of maintenance would include the cost of litigation, travel expenses to court and provision for stay for the person as well as to the escort. The right could be enforced, once the amount is determined, by causing the arrest of the person liable to maintain, attachment of salary or bringing to sale the property of the person against whom the relief is granted. 

  Welfare of parents and senior citizens

An enactment made in 2007 provides for a summary remedy for maintenance to parents and uncared childless senior citizens against their children who are not minors or relatives that own property or who may inherit property from the childless senior citizen respectively. The relief will be possible within a period of 90 days from the date of filing the petition before a tribunal that is set up under the provisions of the Act. The right could be processed even through a voluntary organization. The Tribunal may either refer it to arbitration or adjudicate the claim itself and would have the power to grant an amount not exceeding Rs.10,000 per month as maintenance.