Maintenance

Maintenance was regarded as a duty that a Hindu owed to his dependent relations and by which both the person and the property were bound. There was a distinction between legal and moral obligations to pay maintenance. When it was legal, it was binding even if the person did not have any property, but when it was moral and optional, it was a matter of conscience and was unenforceable in the law of the courts. However, on the death of a Hindu who had the moral obligation to pay maintenance, the said moral obligation used to be transformed, in the majority of cases, into a legal obligation. It could then be enforced against the property left by the deceased. In Hinduism, the principle underlying such a rule is that the heir of the deceased takes the estate not only for his own benefit but also for the spiritual benefit of the person whose property he inherited.

This is an integral part of all matrimonial proceedings. Any spouse who does not have enough money to support himself or herself can file for maintenance. 

Maintenance can also be classified into two parts.

Interim Maintenance: Such maintenance is provided during the pendency of the case in court. The underlying idea behind giving such maintenance is that one party should not lose ground and stand on a weaker footing at the time of contesting a case. The quantum of such maintenance is dependent on a variety of factors, but the most important aspect is the status of the parties prior to the filing of the case and the income or salary of the spouse against whom such maintenance is claimed. The court always attempts to put both parties on an equal footing. 

Permanent Maintenance: It is awarded at the time when the whole case is finally decided. It could be periodic or monthly, depending upon the facts and circumstances of the case.

Laws Govering Maintenance Case

In India, various laws govern various aspects of maintenance.Such laws are under:

• Section 125 Cr.P.C. Maintenance
• Section 24 of the Hindu Marriage Act
• Section 18 of the Hindu Adoption and Maintenance Act
• Provisions under the Domestic Violence Act

Each case and situation calls for initiating a proceeding under any one of the above laws. At times, claims for maintenance are filed under more than one law. Thus, the petitioner can file a claim for maintenance under more than one provision, like under Section 125 of the Cr.P.C. as well as under Section 24 of the Hindu Marriage Act. Practically speaking, it is settled law that the petitioner would be entitled to higher maintenance if two courts have passed different amounts towards maintenance to the wife. However, the wife will be denied maintenance by both courts. Thus, if the court in 125 Crp.C. proceedings awards 20,000 rupees while the court in Section 24 proceedings awards 15000 rupees per month, the wife will be entitled to 20,000 rupees rather than 35000 rupees per month. The higher amount is to be paid and is not cumulative.

Who can file a case for Maintenance

A case for maintenance in the matrimonial matter can be filed by:-

• wife for herself
• Wife for children
• Children

Where can I file a case or claim for maintenance?

Under section 125 Cr.P.C

• Place where the wife is residing
• Place where Respondent is residing

Under Hindu Marriage Act

An application under section 24 HMA can be filed only where proceedings for Divorce/Judicial Separation/ Restitution of Conjugal rights are pending.

Under the Domestic Violence Act 

• Place where complainant herself resides either permanently or temporarily
• Place of work of the complainant either business or employment
• Place where Respondent resides or carries on business or works
• Place where the cause of action had taken place

What are the factors considered by the court while granting the maintenance?

There are several factors that are considered by the Court while granting maintenance. They are listed below. Notably. this list is only indicative and not exhaustive.

•  The income of the husband
• The income of the wife, if any
• Background and status of parties
• Movable and immovable properties
• Life style
• Education
• Investments
• Expenditure on household
• Expenditure towards education and School of the children
• Age of dependent children
• Model of Car being used
• Mode of travel

Is there any formula on the basis of which maintenance is calculated?

There is no fixed formula to determine maintenance in India. It is difficult to lay. Recently, the Supreme Court said that it should be at least 25 % of the income of the husband. Also, often formula as laid Annurita case is applied that says that earning members will be entitled to one extra portion of himself after equal appropriation of the income amongst all family members. It would be safe to say that maintenance may vary can be from a lower range of 25 percent to about 35 percent of the income.