Comparative study of Laws of Maintenance in Hindu, Muslim, Christian and Parsi Personal Laws in India
By Sahil Shah,
Laws of Maintenance can be classified into two parts:
1. Law of Maintenance to Wives
Maintenance to wife refers to the payments, which a husband, under certain circumstances is under an obligation to pay. Obligation of payment of maintenance can either during the subsistence of the marriage or after the dissolution of the marriage. Maintenance to wives can further be divided into two-
1. Interim maintenance and maintenance pendente lite
2. Permanent maintenance
1. Maintenance Pendente lite And Interim Maintenance
The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the petitioner. And maintenance pendente lite is for providing the litigation expenses to the claimant.
Under S.24 of Hindu Marriage Act, 1955 (HMA), either the wife or husband can apply for interim maintenance. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. The provision is silent on the quantum of maintenance and it is upon the discretion of the court to determine the quantum. Similarly, maintenance pendente lite is to be provided to the claimant who does not have an independent income and the financial need of litigation expenses has to be provided by the other spouse.
Parsi And Christian Laws
The sections 39 of the Parsi Marriage And Divorce Act, 1936 (PMDA) and section 36 of he Indian Divorce Act, 1869 (IDA) are similar to S.24 of HMA However S. 36 of IDA differs in the respect that the maintenance pendente lite and interim maintenance can only be claimed by the wife and not by the husband.
There is no provision of maintenance pendente lite and interim maintenance in the Muslim law.
2. Permanent Maintenance
The provision for permanent maintenance is present in all the personal laws and are substantively similar. However there are some differences between the personal laws.
S. 3(b)(i) of Hindu Adoption and Maintenance Act, 1956(HAMA) defines maintenance as "provision for food, clothing, residence, education, and medical attendance and treatment." In the case of unmarried daughter, it also includes her marriage expenses.
Persons entitled to maintenance under Hindu Marriage Act, 1955 (HMA): The obligation of the husband to maintain his wife does not arise out of any contract but out of the status of the marriage. The wife should be a lawfully wedded wife. However, as far as getting maintenance under HMA is concerned, the courts have granted maintenance under sections 24 and 25 of HMA to wives of void or bigamous marriages. However, she cannot get maintenance under section 18 of HAMA. Moreover the wife can claim for maintenance only if she can prove that she is not able to maintain herself. If the wife's income is sufficient to maintain herself and live in the same comfort then she cannot claim for maintenance
Persons entitled to maintenance under HAMA: Section 18(2) also entitles a Hindu wife to claim for maintenance even if she is living separately provided that she can justify her living separately under any of the following grounds: - the husband is guilty of desertion, has treated her with cruelty, is suffering from a virulent form of leprosy, has any other wife living, keeps a concubine, has ceased to be a Hindu, or any other just cause for living separately. However the wife forfeits her claim under S.18 (2) if she is unchaste or ceases to be a Hindu
Quantum of Maintenance: The means and capacity of a person against whom the award has to be made should be taken into consideration for determining the quantum of maintenance. In fact, in case of the husband, it is not only the actual earning, but also his potential earning capacity, which must be considered i.e. there is a presumption that every able-bodied person has a capacity to earn and maintain his wife. The income of the husband is a significant factor to be considered by the court in fixing the quantum of maintenance. It is disposable income and not the gross income, which is to be considered. Section 23(2) of HAMA states the factors to be considered in determining the amount of maintenance payable to the wife, children and aged parents, and they are as follows – the position of and status of the parties, the reasonable wants of the claimant, the claimant if living separately is justified or not, the income of the claimant and the value of the claimant’s property and the number of persons entitled to maintenance under the Act.
Factors relevant for modification: the maintenance provided, can be modified, suspended or cancelled if – the change in circumstances so demand, the claimant has remarried or is proved unchaste or there is resumption of cohabitation after judicial separation.
Under Section 24 of HMA a wife's application for maintenance includes her maintenance as well as that of her children.
Parsi And Christian Law
Section 40 of PMDA is similar to section 25 of HMA. Under the Parsi law also both wife and the husband can claim for maintenance. The claimant has to prove that he/she is not able to maintain himself/herself. The quantum of maintenance is to be determined by the court after taking into consideration the income of both the parties. Maintenance should not be for a term exceeding the life of the claimant. The permanent maintenance awarded can be modified, suspended or cancelled if the claimant has remarried or is proved to be unchaste. There is also a provision for the payment of maintenance to the trustee of the claimant (S.41), on which the Hindu law is silent.
Under the Christian law, unlike the Hindu and Parsi laws, only the divorced or judicially separated or divorced wife can claim for maintenance from the husband. There is no provision for the husband to claim for maintenance. The wife can claim for maintenance if she can prove that she is a divorced or judicially separated wife. However, the quantum of maintenance depends upon the ability of the husband to maintain her and also the conduct of the parties (S.37). The quantum of maintenance should not be for a term exceeding the life of the claimant. Also afterwards if the husband becomes unable to make such payments of maintenance, then the order of maintenance can be modified, suspended or discharged (S.37) In Christian law also there is a provision for payment of maintenance to the trustee.
Maintenance is also termed as Nafaq in Muslim Law. The word Nafaq means food, daily expenditure and lodging.
Maintenance under Muslim Personal Law: under Islamic law similar to the Christian law, the wife is entitled to maintenance from the husband. But under the Hindu law and Parsi law either spouse are entitled to maintenance. Under the Islamic law the duty to maintain the wife arises as soon as she reaches puberty. The Islamic law differs in this aspect as compared to other personal laws where maintenance is provided irrespective of the age of the claimant i.e. the factor of puberty is not considered.
Under the Islamic law, wife loses the claim of maintenance if she is disobedient and refuses to be accessible at all times. This is not so under the other personal laws. The wife does not lose claim of maintenance by being disobedient. The wife under those personal laws loses their claim by factors such as remarriage and unchastity. The wife is also entitled to maintenance in accordance with the stipulations laid in the kabirnama. This aspect of Muslim law is absent in other personal laws, where there is no provision of maintenance according to any contract.
Maintenance under Muslim Women (Protection of Rights on Divorce) Act, 1986: A divorced Muslim woman is entitled to claim maintenance under Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA). The Muslim woman can claim for maintenance from her husband only during the iddat period. However, the SC in the landmark case of Daniel Latiffi v. Union of India, interpreted S.3 (1)(a) of MWA in such a manner that the husband has to make a reasonable and fair provision for maintenance during the iddat period for the future of the divorced wife. After the iddat period if the divorced wife is unable to maintain herself then she has to rely upon her consanguine relatives – children, parents and other relatives who would be entitled to share from her property. This is another aspect in which the Islamic law differs from the other personal laws – under Islamic law the obligation of maintenance is not solely upon the husband, which is the case with the other personal laws, but also upon the consanguine relatives.
If she has no such relatives or such relatives do not have the means to maintain her and she is also not able to maintain herself, then the court can direct the State Wakf Board to maintain her. The Maintenance of Women Act (MWA) after its enactment disallowed wife to claim maintenance under CrPC. However the wife can claim maintenance under CrPC if both the parties agree to be governed by CrPC, which is unlikely as S.3 of MWA is in favour of the husband as compared to S.125 of CrPC.
Thus, we can see that the Hindu, Christian and Parsi personal laws are quite similar to each other, whereas Islamic law has many unique features. However, with the effect of Daniel Latiffi case, the substance of the provision of maintenance remains similar i.e. the husband is mainly obliged to pay maintenance to the wife.
The obligation to maintain children is a personal obligation and arises out of blood relationship as well as a moral duty, which is backed up by statutory provisions.
There are two personal law statues amongst the Hindus, which create an obligation to maintain children – HAMA and HMA
Maintenance of Children: Section 20 of HAMA imposes an obligation upon the parents –mother and father, both equally to maintain the children – both legitimate and illegitimate. This is a unique feature of the Hindu law where both the parents are equally responsible to maintain the children. S.20 (2) of HAMA lays down that the children are entitled to maintenance during their minority. This right of maintenance for the daughter is extended till she gets married. The parents are obliged to bear her marriage expenses. However even after marriage a minor married daughter, if she is unable to maintain herself then she can claim for maintenance under S.125 CrPC. When an application has been filed under section s24 and 25 of HMA, the children are also entitled to get maintenance if the claimant has the responsibility of maintaining them i.e. the claimant’s right to maintenance also includes the right of maintenance of the children. Section 26 of HMA also provides that in any proceeding under the Act the court can from time to time pass interim orders and make provisions in respect of the custody, maintenance and education of the minor children. This is a unique feature of Hindu law where the maintenance can be provided to the children not necessarily under a matrimonial proceeding only but otherwise also.
Maintenance of parents: S. 20 of HAMA also lays down an obligation of maintenance o f old and infirm parents who are not able to maintain themselves out of their own personal earnings and property. The HAMA is the first statue in India, which imposes an obligation on the children to maintain their parents. The obligation to maintain is not only limited to the sons but it also extends to the daughters. Under HAMA, both the mother and the father have an equal right to claim maintenance. The explanation to this section also includes stepmother in the term parent. However it is important to note that the section imposes an obligation to maintain only those parents, who are unable to maintain themselves and therefore the obligation to maintain the parents other than those infirm and unable, is only moral.
Maintenance of children: Under the Parsi and the Christian Laws also there are provisions for the custody, maintenance, education etc of the minor children , which are similar to the Hindu law, even though there is no specific provision for maintenance unlike HAMA
However, it is important to note that under these personal laws, the maintenance of the minor child can be awarded only during the matrimonial proceeding and not otherwise.
Maintenance of parents: Under the Parsi and Christian Laws there is no provision imposing an obligation upon the children to maintain their parents. The parents who want to seek maintenance can do so only under the CrPC.
Maintenance of children: Under the Muslim personal law, legitimate (minor as well as major) and illegitimate children are entitled to claim maintenance. The obligation of maintenance of legitimate children is primarily on the father. (Which is different from the other personal laws which provides for an equal obligation on both the parents)
A Muslim father is under an obligation to maintain his sons until they attain the age of puberty and the daughter till she gets married. The Muslim father is not liable to maintain his adult son unless he is disabled by infirmity or disease. However if the father is poor and incapable of earning, then it is the liability of the mother to maintain the children. If both the parents are poor and incapable of earning then grandfather has to provide for the children. Whereas the obligation of maintenance of the illegitimate children is solely on the mother. The quantum of maintenance can be modified or cancelled on the change in circumstances.
Maintenance of parents: Under the Muslim Law, similar to the Hindu law, children have an obligation to maintain their parents. According to Mulla, children in easy circumstances should maintain his father and mother even if they maybe able to earn something.
 Section 49 of PMDA and Ss 41-44 of IDA