Maintenance
s$$$s
(Querist) 26 May 2012
This query is : Resolved
what is the difference between hindu marriage act and hindu adoption and maintenance act in terms of maintenance? can we claim maintenance under all the three i.e crpc also?
sir please help me i will be grateful to you...!!!
Nadeem Qureshi
(Expert) 26 May 2012
Dear Querist
there is a difference according to section 24 of Hindu marriage act
24. Maintenance pendente lite and expenses of proceedings.-
Where in any proceeding under this Act it appears to the court that 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, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable:
1[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]
COMMENTS
Consideration for amount of maintenance
The court is required to take into consideration the income of the parties before deciding the quantum of the interim maintenance. The court has to keep in view the need of the applicant and paying capacity of the non-applicant; Padmavathi v. C. Lakshminarayana , AIR 2002 Kant 424.
Consideration for fixing maintenance pendente lite
(i) As far as maintenance pendente lite and expenses of proceedings are concerned, no distinction has been made under section 24 of the Act relating to right of a wife for maintenance preferred under section 12 or 13 of the Act; Sandeep Kumar v. State of Jharkhand , AIR 2004 Jhar 22.
(ii) The divorce proceeding has terminated adversely to his client but an appeal is pending. Whether the appeal ends in divorce or not, the wife's claim for maintenance qua wife under the definition contained in the explanation (b) to section 125 of the code continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance. It is clear that mere divorce does not end the right to maintenance; Captain, Ramesh Chander v. Veena Kaushal , AIR 1978 SC 1807.
Entitlement for maintenance
(i) During the pendency of the divorce proceedings at any point of time if the wife establishes that she has no sufficient independent income for her support, it is open to her to claim maintenance pendente lite; Manokaran v. Devaki , AIR 2003 Mad 212.
(ii) Section 24 entitles not only the wife but also the husband to claim maintenance pendente lite on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood. Held that since the husband was able-bodied and was not mentally ill and only because his business had closed down, he could not be granted any maintenance, it being opposed to spirit of section 24 of the Act; Kanchan v. Kamalendra, AIR 1993 Bom 493.
Maintenance & expenses during pendency of proceedings
Provisions of section 24 of the Hindu Marriage Act provides for support to be given by the earning spouse in favour of non-earning spouse during the pendency of proceedings before the court. Therefore an application seeking for reimbursement of medical expenses incurred by a dependent spouse is definitely one which can be allowed in an application under section 24; R. Suresh v. Chandra M.A. , AIR 2003 Kant 183.
Scope
(i) Pending an application either under Rule 5 of Order 9 or Rule 9 of Order 9 or Rule 13 of Order 9 of the Code of Civil Procedure a spouse is entitled to maintain an application under section 24 of Hindu Marriage Act, 1955. The expression “proceedings under the Act” appearing in section 24 cannot be given a narrow and restrictive meaning; Vinod Kumar Kejriwal v. Usha Vinod Kejriwal , AIR 1993 Bom 168.
(ii) Section 125(1)(d) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself; Dr. Vijaya Manohar Arbat v. Keshireo Rajaram Sawai , AIR 1987 SC 1100.
(iii) The direction by the Civil Court is not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente lite under section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioners own income and the income of the respondent, it may seem to the Court to be reasonable; Captain Ramesh Chander v. Veena Kaushal , AIR 1978 SC 1807.
it is related to Maintenance pendente lite and expenses of proceedings
and
Maintenance of wife
(1) Subject to the provisions of this section, 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.
(2) 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, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;
(b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) If he is suffering from a virulent from 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;
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
COMMENTS
The words "wife or widow" in the context of marriage, succession or maintenance enactments are of restrictive legal character and imply relationship which is not recognised by land-Rajesh Bai v. Santha Bai 1982 HLR 445.
A man marrying a second time, during the lifetime of his wife, second wife though, having no knowledge of the first marriage, is not entitled to claim maintenance under s, 125 of the Code of Criminal Procedure, as she was not legally wedded wife and for that the marriage was void.-Jamuna Bai v.Anant Rao 1988 Cr LJ 793.
There is no forum provided under the Act so as to claim maintenance. Maintenance can only be claimed through regular suit.-Krishan Lal v. Sudershan Kumari 1979 HLR 576.
it is related to maintenance of Wife only
and according to section 125 Crpc:
125. Order for maintenance of wives, children and parents.
(1) If any person leaving sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his 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, or
(d) his father or mother, unable to maintain himself or herself,
A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate1[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means.
2[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]
Explanation. For the purposes of this Chapter.
(a) minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;
(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
3[(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]
(3) If any Person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such 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.
Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an 4allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent.
(5) 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 her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
it's related to maintenance of wives, children and parents and this section will be applicable upon all the religion.
Feel free to Call
Devajyoti Barman
(Expert) 26 May 2012
Yes can claim maintenance from section 125 crpc as well.
There is not much difference except in default of payment under Maintenance and Adoption Act the charge is created on the property of the husband.
The procedure under crpc is more expeditious , effective and efficacious.
s$$$s
(Querist) 26 May 2012
thank you sir...!!! waht about the provision under hindu adoption and maintenance act?
R.K Nanda
(Expert) 27 May 2012
Agree with experts.
Shonee Kapoor
(Expert) 28 May 2012
A Hindu lady can claim maintenance under four provisions, the scope of these provisions are different.
This is an academic query, what clarifications do you require.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
adv. rajeev ( rajoo )
(Expert) 26 May 2012
