Comparative study of Laws of
Maintenance in Hindu, Muslim, Christian and Parsi Personal Laws in India
By Sahil Shah,
Laws of Maintenance can be classified into
two parts:
1. Law of Maintenance to Wives
Maintenance to wife refers
to the payments, which a husband, under certain circumstances is under an
obligation to pay. Obligation of payment of maintenance can either during the
subsistence of the marriage or after the dissolution of the marriage. Maintenance to wives can further be divided
into two-
1.
Interim
maintenance and maintenance pendente lite
2.
Permanent
maintenance
1.
Maintenance Pendente lite And Interim Maintenance
The interim maintenance is
payable from the date of presentation of the petition till the date of
dismissal of the suit or passing of the decree. Interim maintenance is supposed
to meet the immediate needs of the petitioner. And maintenance pendente lite is
for providing the litigation expenses to the claimant.
Hindu Law
Under S.24 of Hindu Marriage
Act, 1955 (HMA), either the wife or husband can apply for interim maintenance.
The basis of the claim for interim maintenance is that the claimant has no
independent income of his/her own to support himself/herself. The provision is
silent on the quantum of maintenance and it is upon the discretion of the court
to determine the quantum. Similarly, maintenance pendente lite is to be
provided to the claimant who does not have an independent income and the
financial need of litigation expenses has to be provided by the other spouse.
Parsi And Christian Laws
The sections 39 of the Parsi Marriage And Divorce Act, 1936 (PMDA)
and section 36 of he Indian Divorce Act, 1869 (IDA) are similar to S.24 of
HMA However S. 36 of IDA differs
in the respect that the maintenance pendente lite and interim maintenance can
only be claimed by the wife and not by the husband.
Muslim Law
There is no provision of
maintenance pendente lite and interim maintenance in the Muslim law.
2. Permanent Maintenance
The provision for permanent
maintenance is present in all the personal laws and are substantively similar.
However there are some differences between the personal laws.
Hindu Law
S. 3(b)(i) of Hindu Adoption
and Maintenance Act, 1956(HAMA) defines maintenance as "provision for
food, clothing, residence, education, and medical attendance and
treatment." In the case of unmarried daughter, it also includes her
marriage expenses.
Persons entitled to
maintenance under Hindu Marriage Act, 1955 (HMA): The obligation of the
husband to maintain his wife does not arise out of any contract but out of the
status of the marriage. The wife should be a lawfully wedded wife. However, as
far as getting maintenance under HMA is concerned, the courts have granted
maintenance under sections 24 and 25 of HMA to wives of void or bigamous
marriages. However, she cannot get maintenance under section 18 of HAMA.
Moreover the wife can claim for maintenance only if she can prove that she is not
able to maintain herself. If the wife's income is sufficient to maintain
herself and live in the same comfort then she cannot claim for maintenance
Persons entitled to
maintenance under HAMA: Section 18(2) also entitles a Hindu wife to claim for maintenance even
if she is living separately provided that she can justify her living separately
under any of the following grounds: - the husband is guilty of desertion, has
treated her with cruelty, is suffering from a virulent form of leprosy, has any
other wife living, keeps a concubine, has ceased to be a Hindu, or any other
just cause for living separately. However the wife forfeits her claim under S.18 (2) if she is unchaste or ceases to be a Hindu
Quantum of Maintenance: The means and capacity of a
person against whom the award has to be made should be taken into consideration
for determining the quantum of maintenance. In fact, in case of the husband, it
is not only the actual earning, but also his potential earning capacity, which
must be considered i.e. there is a presumption that every able-bodied person
has a capacity to earn and maintain his wife. The income of the husband is a
significant factor to be considered by the court in fixing the quantum of
maintenance. It is disposable income and not the gross income, which is to be
considered. Section 23(2) of HAMA states the factors to be considered in
determining the amount of maintenance payable to the wife, children and aged
parents, and they are as follows – the position of and status of the parties,
the reasonable wants of the claimant, the claimant if living separately is
justified or not, the income of the claimant and the value of the claimant’s
property and the number of persons entitled to maintenance under the Act.
Factors relevant
for modification: the maintenance provided, can be modified, suspended or
cancelled if – the change in circumstances so demand, the claimant has
remarried or is proved unchaste or there is resumption of cohabitation after
judicial separation.
Under Section 24 of HMA a
wife's application for maintenance includes her maintenance as well as that of
her children.
Parsi And Christian Law
Section 40 of PMDA is
similar to section 25 of HMA. Under the Parsi law also both wife and the husband
can claim for maintenance. The claimant has to prove that he/she is not able to
maintain himself/herself. The quantum of maintenance is to be determined by the
court after taking into consideration the income of both the parties.
Maintenance should not be for a term exceeding the life of the claimant.
The permanent maintenance awarded can be modified, suspended or cancelled if
the claimant has remarried or is proved to be unchaste. There is also a
provision for the payment of maintenance to the trustee of the claimant (S.41),
on which the Hindu law is silent.
Under the Christian law, unlike
the Hindu and Parsi laws, only the divorced or judicially separated or divorced
wife can claim for maintenance from the husband. There is no provision for the
husband to claim for maintenance. The wife can claim for maintenance if she
can prove that she is a divorced or judicially separated wife. However, the
quantum of maintenance depends upon the ability of the husband to maintain her
and also the conduct of the parties (S.37). The quantum of maintenance should
not be for a term exceeding the life of the claimant. Also afterwards if the
husband becomes unable to make such payments of maintenance, then the order of
maintenance can be modified, suspended or discharged (S.37) In Christian law also there is a provision for payment of
maintenance to the trustee.
Islamic Law
Maintenance is also termed
as Nafaq in Muslim Law. The word Nafaq means food, daily expenditure and
lodging.
Maintenance under Muslim
Personal Law:
under Islamic law similar to the Christian law, the wife is entitled to
maintenance from the husband. But under the Hindu law and Parsi law either
spouse are entitled to maintenance. Under the Islamic law the duty to maintain
the wife arises as soon as she reaches puberty. The Islamic law differs in
this aspect as compared to other personal laws where maintenance is provided
irrespective of the age of the claimant i.e. the factor of puberty is not
considered.
Under the Islamic law, wife
loses the claim of maintenance if she is disobedient and refuses to be
accessible at all times. This is not so under the other personal laws. The wife
does not lose claim of maintenance by being disobedient. The wife under
those personal laws loses their claim by factors such as remarriage and
unchastity. The wife is also entitled to maintenance in accordance with the
stipulations laid in the kabirnama. This aspect of Muslim law is absent in
other personal laws, where there is no provision of maintenance according to
any contract.
Maintenance under Muslim
Women (Protection of Rights on Divorce) Act, 1986: A divorced Muslim woman is
entitled to claim maintenance under Muslim Women (Protection of Rights on
Divorce) Act, 1986 (MWA). The Muslim woman can claim for maintenance from her
husband only during the iddat period. However, the SC in the landmark
case of Daniel Latiffi v. Union of India, interpreted S.3 (1)(a) of MWA in
such a manner that the husband has to make a reasonable and fair provision for
maintenance during the iddat period for the future of the divorced wife. After
the iddat period if the divorced wife is unable to maintain herself then she
has to rely upon her consanguine relatives – children, parents and other
relatives who would be entitled to share from her property. This is another
aspect in which the Islamic law differs from the other personal laws – under
Islamic law the obligation of maintenance is not solely upon the husband, which
is the case with the other personal laws, but also upon the consanguine relatives.
If she has no such relatives or such relatives do not have the
means to maintain her and she is also not able to maintain herself, then the
court can direct the State Wakf Board to maintain her. The Maintenance of Women
Act (MWA) after its enactment disallowed wife to claim maintenance under CrPC.
However the wife can claim maintenance under CrPC if both the parties agree to
be governed by CrPC, which is unlikely as S.3 of MWA is in favour of the
husband as compared to S.125 of CrPC.
Thus, we can see that the
Hindu, Christian and Parsi personal laws are quite similar to each other,
whereas Islamic law has many unique features. However, with the effect of
Daniel Latiffi case, the substance of the provision of maintenance remains
similar i.e. the husband is mainly obliged to pay maintenance to the wife.
The obligation to maintain
children is a personal obligation and arises out of blood relationship as well
as a moral duty, which is backed up by statutory provisions.
There are two personal law
statues amongst the Hindus, which create an obligation to maintain children –
HAMA and HMA
Maintenance of Children: Section 20 of HAMA imposes
an obligation upon the parents –mother and father, both equally to maintain the
children – both legitimate and illegitimate. This is a unique feature of the
Hindu law where both the parents are equally responsible to maintain the
children. S.20 (2) of HAMA lays down that the children are entitled to
maintenance during their minority. This right of maintenance for the daughter
is extended till she gets married. The parents are obliged to bear her marriage
expenses. However even after marriage a minor married daughter, if she is
unable to maintain herself then she can claim for maintenance under S.125 CrPC.
When an application has been filed under section s24 and 25 of HMA, the
children are also entitled to get maintenance if the claimant has the
responsibility of maintaining them i.e. the claimant’s right to maintenance
also includes the right of maintenance of the children. Section 26 of HMA also
provides that in any proceeding under the Act the court can from time to time
pass interim orders and make provisions in respect of the custody, maintenance
and education of the minor children. This is a unique feature of Hindu law
where the maintenance can be provided to the children not necessarily under a
matrimonial proceeding only but otherwise also.
Maintenance of parents: S. 20 of HAMA also lays
down an obligation of maintenance o f old and infirm parents who are not able
to maintain themselves out of their own personal earnings and property. The
HAMA is the first statue in India, which imposes an obligation on the children
to maintain their parents. The obligation to maintain is not only limited
to the sons but it also extends to the daughters. Under HAMA, both the mother
and the father have an equal right to claim maintenance. The explanation to
this section also includes stepmother in the term parent. However it is important
to note that the section imposes an obligation to maintain only those parents,
who are unable to maintain themselves and therefore the obligation to maintain
the parents other than those infirm and unable, is only moral.
Maintenance of children: Under the Parsi and the
Christian Laws also there are provisions for the custody, maintenance,
education etc of the minor children [1],
which are similar to the Hindu law, even though there is no specific provision for
maintenance unlike HAMA
However, it is important to
note that under these personal laws, the maintenance of the minor child can
be awarded only during the matrimonial proceeding and not otherwise.
Maintenance of parents: Under the Parsi and Christian
Laws there is no provision imposing an obligation upon the children to
maintain their parents. The parents who want to seek maintenance can do so
only under the CrPC.
Maintenance of children: Under the Muslim personal
law, legitimate (minor as well as major) and illegitimate children are entitled
to claim maintenance. The obligation of maintenance of legitimate children
is primarily on the father. (Which is different from the other personal
laws which provides for an equal obligation on both the parents)
A Muslim father is under an
obligation to maintain his sons until they attain the age of puberty and the
daughter till she gets married. The Muslim father is not liable to maintain his
adult son unless he is disabled by infirmity or disease. However if the father
is poor and incapable of earning, then it is the liability of the mother to
maintain the children. If both the parents are poor and incapable of earning
then grandfather has to provide for the children. Whereas the obligation of maintenance of the illegitimate
children is solely on the mother. The
quantum of maintenance can be modified or cancelled on the change in
circumstances.
Maintenance of parents: Under the Muslim Law, similar
to the Hindu law, children have an obligation to maintain their parents. According
to Mulla, children in easy circumstances should maintain his father and mother
even if they maybe able to earn something.
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