Maintenance (GUJARA BHATTA) of wife, children and parents under different acts

MAINTENANCE OF WIVES, CHILDREN AND PARENTS

UNDER DIFFERENT ACTS

 

There are various Law applicable with respect to the maintenance i.e. maintenance to wife, parents, son, daughter and other dependants and the acts covered within the jurisdiction of the Family Court and Metropolitan Magistrate / JMFC:

 

S.No.	Act	Sections
1	Code of Criminal Procedure, 1973	Sec. 125-128
2	Converts Marriage Dissolution Act, 1866	sec. 27 & 28
3	Dissolution of Muslim Marriage Act, 1939	Ground for divorce by female if husband failed to pay maintenance for two years
4	Divorce Act, 1869	sec. 37
5	Family Courts Act, 1984	Sec. 7(2)(a)
6	Hindu Adoptions & Maintenance Act, 1956	chapter -III, Sec. 18/19/20/22
7	Hindu Marriage Act, 1955	Sec. 24 & 25
8	Maintenance and Welfare of Parents and Senior Citizens Act, 2007	Chapter – II, sec. 4
9	Maintenance order Enforcement Act, 1921	Sec. 4 – 9
10	Muslim Women (Protection of Rights on Divorce) Act, 1986	sec. 4 (act 2019 repealed), as tripple talaq is void and read with sec. 5
11	Muslim Women Personal Law (Shariat) Application Act, 1937	sec. 2
12	Parsi Marriage & Divorce Act, 1936	sec. 40
13	Prohibition of Child Marriage Act, 2006	sec. 4 & 5
14	Protection of Women from Domestic Violence Act, 2005	Sec. 20(d) & 22
15	Special Marriage Act, 1954	sec. 37 & 38

 

1. SECTION 125 OF CR.P.C. OR SECTION 144 OF B.N.S.S. (APPLICABLE FROM 01.07.2024)

 

This is the fundamental and natural duty of a man to maintain his wife, children and parents when they are unable to maintain themselves.  Proceeding for maintenance in a criminal Court are in the nature of civil proceedings “quasi – criminal proceeding”  (Munni Devi Vs Om Lal, 1980 ACC149).  It is for the purpose of summary and speedy disposal in the interest of society so that the helpless wife, children and parents are not left on the road while those who are liable to maintain them have capacity to do so (Jagir Kumar Vs. Jaswant, AIR1963SC1521 & G. Pandari Vs. Prakash Roa, AIR1952Hyd44).

 

Who can claim maintenance?

 

• Wife, Children and Parents

 

Key element (Essential Element) for claiming maintenance?

 

• Sufficient means to maintain
• Neglect or refusal to maintain
• Person claiming maintenance must be unable to maintain himself or herself

 

# In case maintenance claim by wife –

 

• She must not be living in adultery
• She must not refuse to live with her husband or having sufficient reason for the refusal
• She must not be living separately by mutual consent

 

2. CONVERTS MARRIAGE DISSOLUTION ACT, 1866

 

• Sec. 27

Dissolution of marriage not to affect status or right of children .-A dissolution of marriage under the provisions of this Act shall not operate to deprive the respondent’s children (if any) by the petitioner of their status as legitimate children or of any right or interest which they would have had, according to the [personal law] applicable to them, by way of maintenance, inheritance or otherwise, in case the marriage had not been so dissolved as aforesaid.

 

• Sec. 28

Power to Court to award alimony – If a suit be commenced under the provisions of this Act, and it appear to the Court that the wife has not sufficient separate property to enable her to maintain herself suitably to her station in life and to prosecute or defend the suit, the Court may, pending the suit, order the husband to furnish the wife with sufficient funds to enable her to prosecute or defend the suit, and also for her maintenance pending the suit.

If the suit be brought by a husband against a wife, the Court may by the decree order the husband to make such allowance to his wife for her maintenance during the remainder of her life as the Court shall think just, and having regard to the condition and station in life of the parties.

 

Any allowance so ordered shall cease from the time of any subsequent marriage of the wife.

 

3. Dissolution of Muslim Marriage Act, 1939

 

Sec. 2

Grounds for decree for dissolution of marriage: A woman married under Muslim law shall be entitle to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely

Sec. 2(i) to (ix)

 

2(i) ……

• Section 2 (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years

2(iii)….

….

 

Under this act a Muslim women will get decree for dissolution of her marriage if her husband failed to pay maintenance for a period of two years

 

4. Divorce Act, 1869

 

• Sec. 37.

Power to order permanent alimony — Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband shall to the satisfaction of the court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune if any, to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties.

Power to order monthly or weekly payments—In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part as to the court seems fit.

 

5. Family Court Act, 1984

 

• Sec. 7 (2)

Subject to the other provisions of this Act, a Family Court shall also have and exercise—

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

 

6. Hindu Adoptions & Maintenance Act, 1956

 

Chapter III

 

Sec.18 – Maintenance of wife.―

• Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.

 

• A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,―

 

(a)           if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;

(b)           if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c)           Clause (c) omitted by Act 6 of 2019, s. 6 (w.e.f. 1-3-2019).

(d)           if he has any other wife living;

(e)           if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f)            if he has ceased to be a Hindu by conversion to another religion;

(g)           if there is any other cause justifying her living separately.

 

• A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

 

Sec. 19.

Maintenance of widowed daughter-in-law.―

• A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance―
• from the estate of her husband or her father or mother, or
• from her son or daughter, if any, or his or her estate.
• Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in- law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.

 

Sec. 20.

Maintenance of children and aged parents.―

• Subject to the provisions of this section a Hindu is bound, during his or her life-time, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
• A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
• The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation.―In this section “parent “includes a childless step-mother.

 

Sec. 22.

Maintenance of dependants.―

• Subject to the provisions of sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.
• Where a dependant has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.
• The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her.
• Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependant shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.

 

 

7. Hindu Marriage Act, 1955

 

Sec. 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 preceding 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.

 

Sec. 25.

Permanent alimony and maintenance.—

• Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant 4 [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
• If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
• If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

 

 

8. Maintenance and Welfare of Parents and Senior Citizens Act, 2007

 

Sec. 4

Maintenance of Parents and Senior Citizens

1. A senior citizen including parent who is unable to maintain himself from his own earning or property owned by him, shall be entitled to make an application under section 5 in case of – i. parent or grand-parent, against one or more of his children not being a minor ii. a childless senior citizen, against such of his relative referred to in clause (g) of section 2
2. The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.
3. The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.
4. Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:

Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.

 

9. Maintenance order Enforcement Act, 1921

 

An Act to facilitate the enforcement in India of Maintenance Orders made in reciprocating territories, and vice versa. WHEREAS it is expedient to facilitate the enforcement in India of Maintenance Orders made in reciprocating territories, and vice versa;

 

10. Muslim Women (Protection of Rights on Divorce) Act, 1986

 

Sec. 3

Mahr or other properties of Muslim woman to be given to her at the time of divorce.—

• Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to—
• a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
• where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
• an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
• all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

(2)    Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.

(3)    Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that—

(a)  her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or

(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her,

 

make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as it and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) the divorced woman:

 

Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.

 

• If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974), and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

 

Sec. 4

Order for payment of maintenance.—

• Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit he property and at such periods as he may specify in his order:

 

Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:

 

Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.

 

• Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the Magistrate may, by order, direct the State Wakf Board established under section 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.

 

Sec. 5

Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974.—If on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.

 

Explanation.—For the purposes of this section, “date of the first hearing of the application” means the date fixed in the summons for the attendance of the respondent to the application.

 

11. Muslim Women Personal Law (Shariat) Application Act, 1937

 

Sec. 2.

Application of Personal Law to Muslims.—

Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

 

12. Parsi Marriage & Divorce Act, 1936

 

Sec. 40

Permanent alimony and maintenance.—

• Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the defendant’s own income and other property, if any, the income and other property of the plaintiff, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the movable or immovable property of the defendant.
• The Court if it is satisfied that there is change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just.
• The Court if it is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the Court may deem just.

 

Sec. 49

Custody of children.—

In any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of eighteen years, the marriage of whose parents is the subject of such suit, and may, after the final decree upon application, by petition for this purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such final decree or by interim orders in case the suit for obtaining such decree were still pending:

Provided that the application with respect to the maintenance and education of such children during the suit, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

 

13. Prohibition of Child Marriage Act, 2006

 

Sec. 4.

Provision for maintenance and residence to female contracting party to child marriage.—

• While granting a decree under section 3, the district court may also make an interim or final order directing the male contracting party to the child marriage, and in case the male contracting party to such marriage is a minor, his parent or guardian to pay maintenance to the female contracting party to the marriage until her remarriage.
• The quantum of maintenance payable shall be determined by the district court having regard to the needs of the child, the lifestyle enjoyed by such child during her marriage and the means of income of the paying party.
• The amount of maintenance may be directed to be paid monthly or in lump sum.
• In case the party making the petition under section 3 is the female contracting party, the district court may also make a suitable order as to her residence until her remarriage.

 

Sec. 5.

Custody and maintenance of children of child marriages.—

• Where there are children born of the child marriage, the district court shall make an appropriate order for the custody of such children.
• While making an order for the custody of a child under this section, the welfare and best interests of the child shall be the paramount consideration to be given by the district court.
• An order for custody of a child may also include appropriate directions for giving to the other party access to the child in such a manner as may best serve the interests of the child, and such other orders as the district court may, in the interest of the child, deem proper.
• The district court may also make an appropriate order for providing maintenance to the child by a party to the marriage or their parents or guardians.

 

14. Protection of Women from Domestic Violence Act, 2005

 

Sec. 20

Monetary reliefs.—

• While disposing of an application under sub-section (1) of section 12,the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,—
• the loss of earnings;
• the medical expenses;
• the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
• the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
• The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.
• The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.
• The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
• The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
• Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

 

Sec. 22.

Compensation orders.—

In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

 

 

15. Special Marriage Act, 1954

 

Sec. 37.

Permanent alimony and maintenance.―

• Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband’s property such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband’s property and ability 5 [the conduct of the parties and other circumstances of the case], it may seem to the court to be just.
• If the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the court to be just.
• If the district court is satisfied that the wife in whose favour an order has been made under this section has remarried or is not leading a chaste life, it may, at the instance of the husband vary, modify or rescind any such order and in such manner as the court may deem just.

 

Sec. 38 .

Custody of children.―

In any proceeding under Chapter V or Chapter VI the district court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.

 

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.