WHAT IS MAINTENANCE?
“Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce.
MAINTENANCE UNDER THE CODE OF CRIMINAL PROCEDURE, 1973
Section-125, 127 & 128 of the Code of Criminal Procedure, 1973, deal with the captioned subject as to how to secure maintenance for the wife, children, and other dependents through the Court of law. These provisions of the law are available for any Indian National, be it Hindu, Muslim, or Christian.
Section 125 of the Code of Criminal Procedure provides for a speedy, effective, and rather inexpensive remedy against the persons who neglect or refuse to maintain their dependent parents, children, and wives. Though the subject matter of these provisions is civil in nature, the primary justification for their inclusion in the Code is that the remedy provided is speedy and economical.
WHO CAN CLAIM AND GET MAINTENANCE?
If any person having sufficient means neglects or refuses to maintain:
- his wife, unable to maintain herself, or
- his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
- his father or mother, unable to maintain himself or herself,
WHERE CAN YOU FILE CASE OR CLAIM FOR MAINTENACE
A case for maintenance can be filed by the lawyer(maintenance) at either of the following place under section 125 Cr.P.C: –
- Place where the wife is residing
- Place where Respondent is residing
MAINTENANCE WITH RESPECT TO MARRIAGE AND DIVORCE, IS GIVEN IN THREE SITUATIONS:
- During marriage
- During the pendency of divorce (this is called interim maintenance)
- After the divorce is final (this is called alimony)
ARE YOU ENTITLED TO CLAIM MAINTENANCE DURING PENDENCY OF YOUR APPLICATION FOR MONTHLY MAINTENANCE?
The decision of a petition or application for monthly maintenance takes sufficient time. Therefore, there is provision for interim maintenance, meaning thereby that during the pendency of an application for maintenance, the Magistrate may order the person liable to pay a monthly allowance to the person so entitled.
ARE YOU ENTITLED TO CLAIM LITIGATION EXPENSES?
YES, as an applicant may have to bear litigation expenses incurred during pendency of such an application for maintenance. Therefore, an order of litigation expenses can also be passed in your favor if you are entitled to maintenance and against the person who is liable to pay the interim maintenance.
To avoid any inconvenience to the claimant, the law provides that application for interim maintenance and expenses for proceeding shall be disposed of within 60 days from the date of service of notice.
ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE
There are some essential conditions which should be fulfilled for claiming and granting maintenance:
- Sufficient means for maintenance are available.
- Neglect or refusal to maintain after the demand for maintenance.
- The person claiming maintenance must be unable to maintain himself/herself.
- Quantum of maintenance depends on the standard of living.
AMOUNT OF MAINTENANCE
The amount of the maintenance shall be purely the discretion of the Court. In determining the amount of the maintenance the court shall have due regard to the following considerations, namely,
- the position and status of the parties;
- the reasonable wants of the claimant;
- if the claimant is living separately, whether the claimant is justified in doing so;
- the value of the claimant’s property and any income derived from such property, or from the claimant’s own earnings or from any other source;
- Any other relevant fact and circumstance
HOW TO GET ORDER OF MAINTENANCE CHANGED?
Whenever there is a change in the circumstances of any person receiving or paying such monthly allowance for maintenance or interim maintenance, Magistrate may make such alteration, as he thinks fit.
Sometimes, parties are litigating on civil side as well. Decision of litigation on civil side may also call for change or variation in the order of maintenance. Where it appears to the Magistrate that in consequence of any decision of a competent Civil Court, any order of maintenance should be cancelled or varied, he is empowered to cancel the order or vary the same accordingly. For example, where your wife has been divorced by you and she has received whole of the sum payable under any customary or personal law on such divorce, Magistrate may cancel such order of maintenance.
HOW TO GET THE ORDER OF MAINTENANCE ENFORCED?
You are entitled to copy of order of maintenance or interim maintenance and expenses of proceeding free of costs. To get the order executed, you are to file an application before the Magistrate at the place where the opposite party liable to make the payment may be. (Section 128 CrPC.)
WHAT TO DO WHEN YOUR HUSBAND DOES NOT OBEY THE ORDER OF THE COURT FOR GRANTING MAINTENANCE?
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.
WHEN DOES A WOMAN GET DISQUALIFIED FROM CLAIMING MAINTENANCE?
Every married woman has the right to maintenance from her husband. However, in certain situations you can get disqualified from asking for maintenance:
a. If you are living separately from your husband without his consent, and for no justifiable reason. “Justifiable reason” is subjective and open for interpretation to the court. Example of a justifiable reason - domestic violence or harassment.
b. If you have sexual relations with someone other than your husband. This is a very common counter-allegation raised by the opposite side, to get out of paying maintenance.
WHAT ARE THE DOCUMENTS FILED BY PARTIES IN A CASE FOR MAINTENANCE?
Both parties are required to give financial disclosure of their assets and liabilities. In Delhi and now in Punjab and Haryana, it is mandatory to file an affidavit of income detailing all sources of income, expenditure, liabilities, etc. Both husband and wife are required to furnish the following documents:
- Salary Slips (of six months)
- Income tax return of three years
- FORM 16/COST TO COMPANY(CTC)
- Bank accounts statement of three years(All bank accounts)
- Bills of credit card/s
- Pan Card and passport