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Maintenance is an umbrella term for all types of maintenance- during marriage and after marriage. The maintenance paid after marriage (i.e. on divorce) is called alimony.
Maintenance with respect to marriage and divorce, is given in three situations:
Every husband is required by law to pay his wife maintenance during marriage. This means that the husband should provide her financial support, i.e. living expenses and other expenses to help her live a good life. Maintenance by husband to wife was made compulsory to make sure that, women who don’t have means of income or who are homemakers, can live comfortably.
The laws which cover maintenance during marriage (for day-to-day life) are:
Maintenance under Section 18, HAMA is applicable irrespective of the wife’s earning capacity. Maintenance under Section 125, CrPC is
applicable when the wife is unable to maintain herself.
It is your husband’s duty to financially support you, especially if you don’t have a means of income. If your husband does not financially support you, first try to resolve the matter outside court. You can involve trusted relatives to act as a mediator and solve the issue. If the matter still does not get solved, then you can file a maintenance case in court (for details see below).
Practical tip: Generally, a maintenance case is filed when the marriage goes bad and is clubbed with divorce proceedings. In very few cases, a maintenance case is filed exclusively to ask the husband to financially support his wife. Why so? Because when one partner files a court case against the other, it gets difficult for the partners to live in a happy marriage.
Where you file the case depends on which law you are filing the case under:
If under Section 125 CrPC- Magistrate of First Class having jurisdiction over your matrimonial house (since you are still in the marriage).
If under Section 18, HAMA- In the family court having jurisdiction over your matrimonial house (since you are still in the marriage).
Which law is preferable:
You should file under both laws, as Section 125, CrPC is criminal law and Section18, HAMA is civil law. Under both laws the courts will grant you maintenance. However, under Section 125, CrPC, if you husband disobeys the court order for maintenance, the court can issue a warrant against your husband to either pay the amount or go to jail.
Every married woman has the right to maintenance from her husband. However, in certain situations you can get disqualified from asking for maintenance:
If you convert your religion and stop being a Hindu (only applicable for maintenance under Section 18, HAMA)
Practical tip: Courts consider all the facts and circumstances of a case together, and will not look at any point in isolation. Therefore, justifiable reason can vary from case to case, and what comes under ‘justifiable reason’ is really up to the court. As the society is getting more progressive, so are courts.
Divorce proceedings in India on an average take 2-3 years. During this time, the husband and wife usually start living separately. Due to the divorce proceedings, the husband will obviously stop financially supporting his wife. To protect the wife during this period, especially if she has no means of income, she can claim “interim maintenance” i.e. maintenance paid during pendency of divorce.
The laws which provide for interim maintenance are:
Remember- Interim maintenance is not granted by default (like how every wife is entitled by default to maintenance from the husband). It is only granted if you are unable to financially support yourself during the divorce proceedings.
The exact amount of interim maintenance will be decided by the court on a case to case basis. A few factors that courts consider are:
Interim maintenance can either be paid as a lump sum (i.e. a one - time payment) or in instalments (like monthly payment). Whether it is to be paid as a lump sum or in instalments depends on what you ask for and what the court decides.
What is better- If your husband has the means to pay you a lump sum amount, this is better, as you don’t have to keep following up for the instalment payments. If your husband does not have the means to pay a lump sum amount (for example- for salaried employees), then you should ask for instalments.
Yes, you can claim for covering the cost of your divorce proceedings, like court fees, advocate fees, conveyance to court, etc., under interim maintenance. However, as explained above, courts will consider various factors, and grant interim maintenance only if you are unable to financially support yourself.
Yes, under Section 24, HMA, your husband can also claim maintenance from you, if he is unable to maintain himself, and you are financially stronger than him.
You should file an application for interim maintenance as part of your divorce proceedings. You don’t need to file a separate case for it.
Alimony is the maintenance paid by one spouse to another after divorce.
Just like in interim maintenance, the exact amount of alimony will be decided by the court on a case to case basis.
A few factors that courts consider are:
Practical tip: To avoid paying maintenance, the opposing side always makes false allegations against the wife. For example- she didn’t carry out her duty as a wife, she didn’t take care of his parents/house, she had an affair with someone else. These are very common allegations, so don’t get disturbed by them or take it personally. Just understand that it is a part of the process and if there was any other woman in place of you also, they would make the same allegations. The allegations do not say anything about you or your character!
Yourself- You can claim alimony for yourself to allow you to be financially stable and lead a comfortable life. If you don’t have any means of income, you deserve to get enough maintenance which will let you live a similar life as you did before divorce. It should not put you in a financially weaker position.
Children- Usually in divorce proceedings, custody of children is a big deciding factor. If you have the custody of children, you can ask for maintenance for your children. A few examples of what you can ask for maintenance for children are:
- For their education – schooling and higher studies
- For travel expenses – like, if they go on a school trip
- For day-to-day expenses – like clothes, food, accommodation, other needs
- For their marriage – especially for daughters
The same as interim maintenance- either as a lump sum or in instalments. For details, see above.
Yes, you will. Even if you are earning, you will not get disqualified from claiming alimony. As explained above, courts consider all facts and circumstances and decide on a case to case basis. In most cases, the husband earns more than the wife. Therefore, wife will have the right to alimony. In cases where the wife earns more than the husband, the courts may not grant the wife alimony. They could also ask the wife to pay alimony to the husband.
For children- If you are earning, the court may ask both you and husband to contribute towards your children’s expenses, depending on how much you both earn.
If the court has given you alimony based on the fact that you are not earning, but later, you start earning, your husband can apply to the court to stop paying alimony or reduce the amount of alimony. The court will consider how much you are earning before deciding.
Yes, alimony under Section 25, HMA, is gender - neutral. Your husband can also claim alimony from you. Practically, this situation will only arise if you earn a lot more than your husband. Such cases are still rare in India.
You can file an application for alimony as a part of your divorce proceedings. You don’t need to file a separate case for that.
If your husband violates the court order, then you can file a case for contempt of court (i.e. for violating court orders). The court will then direct the husband to follow the order. If he doesn’t, the court can sentence him to judicial custody.
You will start getting interim maintenance/alimony from the date of the court order granting you interim maintenance/alimony. In the order, the court will lay down how much maintenance, when is it to be paid, whether lump sum or in instalments, etc.
Maintenance before court order – Usually, court proceedings in India take time. Therefore, even if you have applied for interim maintenance, it may take the court several months to grant the order. In the meantime, you will not get anything, so you should secure yourself. On granting the order, the court can even grant interim maintenance for the time period during which the order was pending. That is, if you file an application for interim maintenance on 01 Jan, 2020, and the court order comes on 01 July, 2020, the court can even ask the husband to pay you maintenance for the period of January to July.
Please note: This information has been made available to you for your benefit on an ‘as is’ basis, and is only for your information. It does not constitute legal advice and cannot substitute professional legal advice. Our disclaimer policy can be viewed here ( disclaimer policy)