MAINTENANC

E
Maintenance pendente lite
• Section 24, HMA/ Section 36, SMA
– 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, may apply
– The Court may order the respondent to pay the petitioner
the expenses of the proceeding such sum as, having
regard to the petitioner's own income and the income of
the respondent
• Section 25, HMA/ Section 37, SMA
– The court at the time of passing any decree or at any
time subsequent thereto, on application made to it
for the purposes 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
– Order may be of gross sum or monthly or periodical
sum for a term not exceeding the life of the applicant
– Court should give due regard to the respondent's
own income and other property of the applicant, the
conduct of the parties and other circumstances of the
case
– The court may at the instance of either party ,
vary, modify or rescind the order of
maintenance 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 for maintenance
• the party in whose favour the order has
been made has re-married
• if such party is the wife, where she has not
remained chaste
• if such party is the husband, where he has
had sexual intercourse with any woman
 THE DIVORCE ACT
• Section 36 - Alimony pendente lite
In any suit under this Act, whether it be instituted by a
husband or a wife, and whether or not she has obtained
an order of protection the wife may present a petition for
expenses of the proceedings and alimony pending the
suit. Such petition shall be served on the husband; and
the Court, on being satisfied of the truth of the
statements therein contained, may make such order on
the husband for payment to the wife of the expenses of
the proceedings and alimony pending the suit as it may
deem just:
Provided further that the petition for the expenses of the
proceedings and alimony pending the suit, shall, as far
• Section 37- Permanent Alimony
Where a decree of dissolution of the marriage or
a decree of judicial separation is obtained by the
wife, the 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
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
 BNSS – section 144

• If any person having sufficient means neglects

to maintain them, the Magistrate may order
such person to make a monthly allowance for
the maintenance
• Wife – who is unable to maintain herself
– Explanation – wife includes a woman who has
been divorced by or has obtained a divorce
from her husband and has not remarried.
– Wife shall not be entitled to receive an allowance from
her husband under this section if she is living in
adultery, or if, without any sufficient reason, she refuses
to live with her husband, or if they are living separately
by mutual consent
– If a person offers to maintain his wife on condition of
her living with him, and she refuses to live with him,
Magistrate may consider any grounds of refusal stated
by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there
is just ground for so doing.
– On proof that any wife in whose favour an order has
been made under this section is living in adultery, or
that without sufficient reason she refuses to live with
• Legitimate or illegitimate child, whether married or
not, unable to maintain itself
• Legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such
child is, by reason of any physical or mental
abnormality or injury unable to maintain itself
• Father or mother, unable to maintain himself or
herself
• Savitaben Somabhai Batiya vs. State of Gujrat,
AIR 2005 SC 1809
• Minakshi Gaur vs. Chitranjan Gaur, AIR 2009 SC
1377
• Kuldip Kaur vs. Surinder Singh, (1989) Cr. LJ 714
( SC)
• Aruna Basu vs. Dorothea Mithra, AIR 1983 SC
916
• Anandi D. Jadhav vs. Nirmala Ramachandra
Kore, AIR, 2000 SC 138
• Kirtikant D. Vadodaria vs. State of Gujrat, 1996
Chanmuniya Vs. Virender Kumar
Singh Kushwaha, 2010 (11) SC 132.
 MUSLIM CUSTOMARY LAW

• Children and grand children ( obligation on

father and grand father)
– Sons- until they attain the age of puberty
– Daughters- until they are married
– Adult sons- if they are disabled by mental or
physical infirmity
– Only legitimate children are entitled for
maintenance
– Sunni law- when father is not in a position to
maintenance – the obligation shifts to the
mother
– Shia law – the obligation shifts to the grand
father
• Parents and grand parents
– Both the sons and daughter have the liability
– Irrespective of whether they are capable of
earning their livelihood or not
– Liability will be in proportion to their means
• Other relatives
– Obligation to maintain the poor relatives
within the prohibited degrees
– In proportion to the share they would inherit
from the relative
• Wife
– Obligation to maintain the wife of a valid
marriage
– Conditions:
• She should be faithful to the husband
• Satisfy the conjugal rights of the husband
• Obey the reasonable orders of the husband
• Maintenance of the divorced wife
– Obligation to maintain during iddat period
– Only if the marriage is consummated
– No right for a widow

• Bai Tahira vs. Ali Hussain Fidalli, AIR 1979 SC 362

• Mohammed Ahemmed Khan vs. Shah Bano Begum,
AIR 1985 945
PROTECTION OF MUSLIM WOMEN
ON DIVORCE ACT, 1986
• Section 2 (b) “iddat period” means, in the case
of a divorced woman,—
(i)three menstrual courses after the date
of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if
she is not subject to menstruation; and
(iii) if she is enceinte at the time of her
divorce, the period between the divorce and the
delivery of her child or the termination of
her pregnancy, whichever is earlier
• Section 3
• a divorced woman shall be entitled to
(a)a reasonable and fair provision and
maintenance to be made and paid to her within
the iddat period by her former husband;
(b)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;
 (c) 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
(d)all the properties given to her before or
at the time of marriage or after the marriage
by her relatives or friends or the husband or
any relatives of the husband or his friends.
• Section 4
– Where the 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 reasonable and fair maintenance to her
– 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
• When the woman has no relative or such relatives or
any one of them have not enough means to pay the
maintenance, the Magistrate may, by order direct the
State Wakf Board to pay or share the maintenance
• If, on the date of the first hearing of the application 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
the Code of Criminal Procedure and file such affidavit or
declaration in the court hearing the application, the
Magistrate shall dispose of such application
• Naseem vs. State of UP, 1999 Cr. LJ 301 (All)
• Noor Sabha Khatoon vs. Mohammed Quasim,
AIR 1997 SC 3280
• Daniel Latifi vs. Union of India, (2001) 7 SCC 740
 THE HINDU ADOPTION AND
MAINTENANCE ACT, 1956
• Section 3 (b) - "maintenance" includes-
(i) in all cases, provision for food, clothing, residence,
education and medical attendance and treatment
(ii) in the case of an unmarried daughter also the
reasonable expenses of and incident to her marriage

• Section 3 (c) - "minor" means a person who has not

completed his or her age of eighteen years.
Section 24 - Claimant to maintenance should be
a Hindu
• No person shall be entitled to claim
maintenance under this Chapter if he or she has
ceased to be a Hindu by conversion to another
religion.
• Section 18 - Maintenance of wife
– A Hindu wife, whether married before or after
the commencement of this Act, shall be
entitled to be maintained by her husband
during her lifetime.
– Ramesh Chandra Daga vs. Rameshwari Daga,
AIR 2005 SC 422
 – 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
(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
 (c) if he is suffering from a virulent form of
leprosy;
(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
Section 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-
(a) from the estate of her husband or her father
• This obligation 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
• Any such obligation shall cease on the
remarriage of the daughter-in-law.
20. Maintenance of children and aged parents
• a Hindu is bound, during his or her lifetime, 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 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 stepmother.
Section 21 – “Dependents” definition
(i) his or her father;
(ii) his or her mother;
(iii) his widow, so long as she does not
remarry;
(iv) his or her son or the son of his
predeceased son or the son of a predeceased
son of his predeceased son, so long as he is a
minor; provided and to the extent that he is
unable to obtain maintenance, in the case of a
grandson from his father's or mother's estate,
and in the case of a great-grandson, from the
 (v) his or her unmarried daughter or the
unmarried daughter of his predeceased son or
the unmarried daughter of a predeceased son of
his predeceased son, so long as she remains
unmarried; provided and to the extent that she is
unable to obtain maintenance, in the case of a grand
daughter from her father's or mother's estate and in
the case of a great-grand daughter from the estate of
her father or mother or father's father or father's
(vi) his widowed daughter; provided and to the
extent that she is unable to obtain maintenance-
– from the estate of her husband; or
– from her son or daughter, if any, or his or her estate;
or
– from her father-in-law or her father or the estate of
either of them;
 (vii) any widow of his son or of a son of his
predeceased son, so long as she does not
remarry; provided and to the extent
that she is unable to obtain maintenance
from her husband's estate, or from her son or
daughter, if any, or his or her estate; or in the
case of a grandson's widow, also from her
father-in law's estate;
(viii) his or her minor illegitimate son, so
long as he remains a minor;
(xi) his or her illegitimate daughter, so long
Section 22 - Maintenance of dependents
• The heirs of a deceased Hindu are bound to
maintain the dependents of the deceased out of
the estate inherited by them from the
deceased.
• Where a dependent has not obtained, by
testamentary or intestate succession, any share
in the estate of a Hindu dying after the
commencement of this Act, the dependent 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 take the
estate shall be in proportion to the value of the
share or part of the estate taken by him or her.
• No person who is himself or herself a dependent
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.
Section 23 - Amount of maintenance
• It shall be in the discretion of the court to
determine whether any, and if so what,
maintenance shall be awarded under the
provisions of this Act
• In determining the amount of maintenance, if
any, to be awarded to a wife, children or aged
or infirm parents under this Act, regard shall be
had to-
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately,
whether the claimant is justified in doing so;
(d) the value of the claimant's property and
any income derived from such property, or
from the claimant's own earning or from
any other source;
• In determining the amount of maintenance, if any, to be awarded to a
dependent under this Act, regard shall be had to-
(a) the net value of the estate of the deceased after providing for the
payment of his debts;
(b) the provision, if any, made under a will of the deceased in respect,
of the dependent;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependent;
(e) the past relations between the dependent and the deceased;
(f) the value of the property of the dependent and any income derived
from such property, or from his or her earnings or from any other course;
(g) the number of dependents entitled to maintenance under this Act.
Section 25 - Amount of maintenance may be
altered on change of circumstances
• The amount of maintenance, whether fixed by a
decree of court or by agreement either before or after
the commencement of this Act, may be altered
subsequently if there is a material change in the
circumstances justifying such alteration
Section 27 - Maintenance when to be a charge
• A dependent's claim for maintenance under this Act
shall not be a charge on the estate of the deceased or
any portion thereof, unless one has been created by the
will of the deceased, by a decree of court, by agreement
between the dependent and the owner of the estate or
portion, or otherwise.

Section 26 - Debts to have priority

• Subject to the provisions contained in Section 27 debts
of every description contracted or payable by the
deceased shall have priority over the claims of his
dependents for maintenance under this Act.
Section 28 - Effect of transfer of property on right or
maintenance
• where a dependent has a right to receive maintenance out of
an estate and such estate or any part thereof is transferred,
the right to receive maintenance may be enforced against
the transferee if the transferee has notice of the right or if
the transfer is gratuitous; but not against the transferee for
consideration and without notice of the right.
 THE MAINTENANCE AND WELFARE OF
PARENTS AND SENIOR CITIZENS ACT,
2007

• Section 2 (a) - “children” includes son, daughter,

grandson and grand-daughter but does not include a
minor
• Section 2 (b) “maintenance” includes provisions for
food, clothing, residence and medical attendance and
treatment;
• Section 2 (c) “minor” means a person who, under the
provisions of the majority Act, 1875, is deemed not to
have attained the age of majority;
• Section 2 (d) “parent” means father or mother whether
• Section 2 (g) “relative” means any legal heir of t he
childless senior citizen who is not a minor and is in
possession of or would inherit his property after his death;
• Section 2 (h) “senior citizens” means any person being
a citizen of India, who has attained the age of sixty years
or above
• Section 7 – Constitution of Maintenance Tribunal
Section 4 - Application for maintenance can be given by
• Parents or grand-parent, against one or more of his
children not being a minor
• A childless senior citizen against his/her relatives
– 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 citizen or he would
inherit the property of such senior citizen
– 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.
Section 5 – Application may be made by
• a senior citizen or a parent, as the case may be; or
• if he is incapable, by any other person or organization
authorized by him; or
• the Tribunal may take cognizance suo motu.
• When an application is received the tribunal
– should give the notice of application to the children/
relative
– give the parties, an opportunity to be heard
– hold an inquiry to fix the amount of maintenance
Section 6
• The application may be filed in the district where the applicant
resides or last resided or where the children/ relatives reside or
last resided.
• Notices are to be send by the Tribunal for procuring the
presence of such children or relatives
• Evidence should be examined in their presence ( if the Tribunal
is satisfied that the children/ relatives are willfully avoiding
service or neglecting to attend the Tribunal may proceed to
hear and determine the case ex parte)
• The Tribunal may also refer the matter to a Conciliation
officer for reaching an amicable settlement (Conciliation
officer can be the maintenance officer appointed under
the Act or any other NGO, recognised by the government
or anyone on behalf of elderly)
• Conciliation officer is to submit the report within one
month
• Proceedings to be concluded within 90 days