Maintenance Rights of Women

This Article gives an overarching understanding of the provisions for Maintenance for women while they are separated, after divorce and for legal proceedings. It covers the same under different personal laws too.

Maintenance refers to a payment which a husband is under an obligation to make to a wife during the subsistence of marriage or upon separation or divorce. This liability of the husband to maintain his wife enumerates from the matrimonial bond they shared. A wife is entitled to maintenance under the personal laws as well as the provisions of Code of Criminal Procedure, 1973.Under the personal laws an application for seeking maintenance can be made only when matrimonial proceedings are pending before the court, while in the case of seeking maintenance under Criminal Procedure code, the presence or absence of matrimonial litigation is irrelevant.

Provisions under personal laws with regard to maintenance of women

Section 24 of the Hindu Marriage Act, 1955 gives maintenance rights to women and states that when any matrimonial litigation is pending before the court and it appears to the court either wife or husband has no independent income sufficient for his/her support and for expenses of the proceedings, on the application of that person who has no means direct the other party to provide monthly sum as prescribed by the court. This is known as Maintenance Pendente lite.

Section 25 of the Hindu Marriages Act,1955 provides for permanent alimony and maintenance, which envisages that the court can direct either wife or husband such amount of money for his/her maintenance monthly or as a lump sum amount ,any property or charge on the immovable property.

Under Section 18 of Hindu Adoptions and Maintenance act, 1956, a Hindu wife is entitled to maintenance even if she lives separately from her husband on the ground of:

  1. Desertion
  2. Cruelty
  3. Husband suffers from leprosy
  4. Husband has other wife living
  5. Husband keeps a concubine in the house or elsewhere
  6. Husband ceases to be Hindu by conversion to another religion

Section 24 of the Hindu Marriages Act, 1955 also empowers the court to modify and rescind the order of maintenance if the wife becomes unchaste, and remarries, and in case of husband maintenance can be rescinded when he has sexual intercourse outside the wedlock. Under Section 18 of the Hindu Adoptions and Maintenance act, 1956, the wife will lose her right to maintenance if she is proved unchaste and ceases to be a Hindu, by converting to another religion.

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Section 36 and Section 37 of the Special Marriage Act, 1954 deals with the concept of Alimony pendent lite and permanent alimony and maintenance. Unlike the Hindu law, there is no provision for the wife to maintain her husband either during the proceedings or pay permanent alimony. Section 39 and 40 of the Parsi Marriage and Divorce Act, 1936 deals with alimony pendente lite and permanent alimony respectively. Section 36 and 37 of the Indian Divorce Act, 1869 provides for alimony pendent lite and permanent alimony in case of Christians.

Maintenance (Nafaqa) as known in the Muslim law, is payable to the wife by the husband the marriage is valid and on account of pre-nuptial agreement entered into between the parties to the marriage. The Dissolution of Muslim Marriages Act, 1939 provides that a Muslim woman can seek dissolution of marriage if her husband does not provide her maintenance for two years. Mohammad Ahmed Khan v. Shah Bano Begum[1] case lead to the formulation of The Muslim Women (Protection of Rights on Divorce) Act, 1939 which provides rights to Muslim women for seeking maintenance from her husband on the event of divorce. A Muslim woman will not be entitled to maintenance, if she:

  1.  Abandons the conjugal domicile
  2. Refuses access to husband without any reason.
  3. Disobedient to husband.
  4. Refuses to live with husband without any lawful reason.
  5.  Is imprisoned.
  6. Has eloped with somebody.
  7. Deserts her husband voluntarily.

The right of a Muslim woman to maintenance only ceases when her husband is dead and in case of a divorced woman only during the period of iddat which can claim maintenance.

Section 125 of the Code of Criminal Procedure, 1973

Unlike the personal laws which are applicable to people who belong to that religion, the provisions of the criminal code are applicable to all citizens irrespective of any classifications. Under this provision:

  1. Wife includes divorced wife.
  2. Wife who is legally married is entitled to maintenance.
  3. Matrimonial litigation is not necessary to seek maintenance.
  4. She may stay separate if there are sufficient grounds and claim maintenance.
  5. Husband must have neglected or refused to maintain wife.
  6. Wife must not have means to maintain herself.
  7. Right of wife terminates on getting remarried.
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Under the code, a woman is not entitled to maintenance if:

  1. She is living in adultery.
  2. Lives separately by mutual consent.
  3. Waives her right of maintenance.
  4. Without sufficient reason, refuses to live with her husband.

As the Apex court has decriminalised adultery in Joseph Shine v. Union of India[2], provisions of section 125 needs of the code to be amended.

When a Muslim woman approaches the court for maintenance under Section 125 of the code, the husband will have to maintain her after the iddat period[3]. In Zohra Khatton v. Mohammad Ibrahim[4], the court held that a Muslim women who got divorce from her husband as per the provisions of Dissolution of Muslim Marriages Act, 1939 would be entitled to maintenance under the criminal code.

Both the personal laws and the criminal procedure code stands for the protection of maintenance rights of women.. But the only question which is unanswered by these provisions as to why the chastity of women or a man determine their right to maintenance. After the matrimonial bond ceases, whether they have sexual intercourse with another person or remain chaste should be their choice. Curtailing a person’s maintenance rights by looking into their personal choice is an infringement of their right to privacy which is guaranteed by our constitution.

Also read Maintenance for Wife and Children Section 125 of the Code of Criminal Procedure

[1]A.I.R. 1985 S.C 945.

[2]Writ Petition(Criminal)No.194 of 2017(India)

[3]M.Sidhik v. Nafeesa Beevi

 (1973) Cr L.J .1020

[4] 1981 AIR 1243