Divorce Maintenance

Maintenance refers to the financial support provided by one spouse to the other after separation, divorce, or during the legal proceedings. In India, maintenance is governed by personal laws, special laws like the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, and the Code of Criminal Procedure, 1973 (CrPC).

Types of Maintenance

1. Interim Maintenance

   • Granted during the pendency of divorce or judicial separation proceedings.
   • The court provides temporary support to the spouse to maintain their standard of living until the final decision.

2. Permanent Maintenance

   • Granted after the finalization of divorce or judicial separation.
   • It is a long-term financial support for the spouse who is unable to maintain themselves.

Grounds for Divorce Maintenance

1. Under Hindu Marriage Act, 1955 (Section 24 and Section 25)

• Section 24 – Interim Maintenance: A spouse can claim maintenance during the divorce proceedings if they are unable to support themselves.
• Section 25 – Permanent Maintenance: After the divorce, the court may grant permanent maintenance to the wife, children, or even the husband (if he is unable to maintain himself).

2. Under Muslim Law

• Maintenance during Marriage: The husband is obligated to provide maintenance to the wife.
• Post-Divorce Maintenance (Iddat Period): The wife is entitled to maintenance during the Iddat period (usually three months after divorce).
• Alimony: In some cases, a wife may also claim long-term alimony if she has no independent means of support.

3. Under Special Marriage Act, 1954 (Section 36)

• Spouses married under this Act can seek interim and permanent maintenance. The court decides the amount of maintenance based on the income and financial condition of the parties.

4. Under CrPC, 1973 (Section 125)

• Section 125 allows a wife, children, and even parents to claim maintenance from a husband or son if they are unable to maintain themselves.
• Maintenance is granted irrespective of whether the divorce is finalized or not.
• The maintenance is aimed at preventing vagrancy and ensuring that the individual does not suffer due to neglect or abandonment.

Factors Considered While Deciding Maintenance

The court considers the following factors:

1. Income and Financial Status of both spouses.
2. Standard of living before separation or divorce.
3. Needs of the spouse and children (if applicable).
4. Age, health, and earning capacity of the spouse seeking maintenance.
5. Conduct of both parties during the marriage.
6. Spouse’s ability to provide maintenance.

Amount of Maintenance

• The amount of maintenance depends on the needs of the spouse and the ability of the other spouse to provide.
• Courts can order a fixed sum to be paid monthly, or they may adjust the amount as per the changing financial situation.

Factors That Influence the Amount:

• Husband’s earnings: His salary, property, or business income.
• Wife’s earnings: If the wife is employed or has her own income.
• Children’s needs: If the wife is taking care of minor children, she may receive additional support.

Contempt for Non-Payment of Maintenance

• If the maintenance order is not followed, the paying spouse can be held in contempt of court.
• The defaulting spouse may be fined or even imprisoned for non-payment after being given due notice.

Appealing Maintenance Orders

• If either spouse disagrees with the maintenance amount ordered by the family court, they can appeal to a higher court (district or high court).
• A revision petition can be filed if the lower court’s order is perceived as unfair or unreasonable.

Recent Trends in Divorce Maintenance

• Courts are increasingly granting gender-neutral maintenance, recognizing the needs of the husband in cases where he is unable to financially support himself.
• Alimony and maintenance claims are being influenced by factors such as the length of the marriage, both parties’ financial independence, and the role of the spouse in child-rearing.