FAQ ON MAINTENANCE
Q. Are the working women equally entitled to claim maintenance?
A. No, the working women are not entitled to claim maintenance as the prerequisite of maintenance is that the person claiming maintenance should not have a source of regular income. Since working women are already in employment they are not dependent on their spouse for their sustenance.
Q. What is the difference between Alimony and Maintenance in India?
A. Alimony and maintenance are very different, as alimony is paid in lump sum amount usually after divorce whereas maintenance is paid over continuous periods of time for the purpose of sustenance of the spouse.
Q. What are the husband’s rights to get maintenance from the wife?
A. A husband can get maintenance from his wife if he is unable to earn and is physically or mentally impaired to carry on an activity to earn income. He has to prove his incapability to earn before the court.
“It is possible for men to get maintenance via personal laws and that goes on to show that some legislations are gender-neutral," says Advocate Vikas Malik.
Q. What is the right of a woman if the husband refuses to comply with the court's order?
A. In case of non-payment of maintenance money without any sufficient cause, the wife can approach the court and file a criminal case against him. The court can secure the award by putting a charge on his property.
Maintenance rights of a wife are one of the most powerful legal tools in the hand of neglected wives, women who are divorced or women living separately from their husbands. It enables them to sustain their life with pride and respect.
It is suggested to consult a divorce lawyer to claim maintenance either in a lump sum or as monthly payments.
Q. Can a wife claim maintenance without divorce under Section 125 of CrPC?
Section 125 of the Code of Criminal Procedure, 1973 lays down the provision that states that when a man has sufficient means, he is liable to pay for the maintenance of his wife, children, and parents if they do not have any reasonable means to support themselves or suffer from any physical or mental incapacity. There is no limit of minimum or maximum maintenance under section 125 mentioned, it depends on the economic condition and discretionary power of the court.
Q. What is the difference between maintenance and alimony?
A. 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:
- During marriage
- During pendency of divorce (this is called interim maintenance)
- After the divorce is final (this is called alimony)
Q. What is maintenance during marriage?
A. 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.
Q. Which law covers maintenance during marriage?
A. The laws which cover maintenance during marriage (for day-to-day life) are:
- Section 18, Hindu Adoptions and Maintenance Act(HAMA) – Lays down the husband’s duty to financially support his wife.
- Section 125, Code of Criminal Procedure(CrPC) – Lays down the husband’s duty to financially support his wife who is unable to support herself.
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.
Q. What Can I Do If My Husband Does Not Financially Support Me?
A. 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.
Q. Where Can I File A Maintenance Case If My Husband Refuses To Financially Support Me?
A. 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.
Q. What is alimony?
A. Alimony is the maintenance paid by one spouse to another after divorce.
Q. Which law covers alimony?
- Section 125, CrPC- Only wife can claim from husband
- Section 25, HMA- This is gender – neutral (i.e. both husband and wife can claim alimony from each other)
Q. How much alimony will I get?
A. 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:
- Income of the husband
- Income of the wife (if she is earning)
- Financial position of both spouses
- Facts and circumstances – like, how many minor children, which parent is taking care of the children, etc.
- Conduct of the parties – Courts will consider how you conduct yourself in and out of court- whether you attend court when required, outside court if you are leading a decent life, etc. This can be subjective, therefore, during the proceedings you should be on your best conduct!
Q. What all can I claim alimony for?
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
Q. What if I am earning? Will I still get alimony?
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.
Q. What if I start earning after the divorce?
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.
Q. Can my husband claim alimony from me?
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.
Q. Where can I file my claim for alimony?
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.