LAW OF MAINTENANCE THROUGH LENS OF TOP MAINTENACE LAWYER

Law of Maintenance in India is governed by following laws/Acts:

  • Section 125 Cr.P.C. ( Code of Criminal Procedure)
  • Domestic Violence Act
  • Section 24 of the Hindu Marriage Act
  • Section 18 of Hindu Adoption and Maintenance Act

Wife can seek maintenance under any of the aforementioned laws. Provision of Domestic Violence has brought specifically concept of right to residence. Right to residence mean that living in the matrimonial home or shared house or husband is providing alternate accommodation of the same status where parties were living at the time of separation.

Section 18 of Hindu Adoption and Maintenance Act provides, amongst other, wife and children claim to seek maintenance from spouse. This being an exclusive civil suit for maintenance, there is more comprehensive pleading and detailed analysis of claim of maintenance.

Section 125 Cr. P.C claim for maintenance was earlier decided by the Metropolitan or Judicial Magistrate. Now, since commencement and enforcement of Family Courts Act, such proceedings under section 125 takes place before Family Court of competence Jurisdiction.

Section 24 Hindu Marriage Act is invoked when there is a petition already pending of the nature of annulment of marriage, judicial separation, Restitution of Conjugal Rights.

In all above cases maintenance can be claimed. General law is that maintenance as awarded in one proceeding shall be adjustable in case maintenance is awarded by  any other Court in proceedings as defined above.

GENERAL LAW & QUANTUM OF MAINTENANCE:

In the context of matrimonial disputes, maintenance is a claim by the wife from Husband seeking financial claims. Concept of Maintenance over the years has changed. Earlier, maintenance would mean and include only amount for bare sustenance. Now, maintenance include support for child(ren), residence,  medical expenses amongst various other components. To put it simply, maintenance now means and include that both parties should live and maintain similar status as that of the husband or as she along with children was used to of at the time of separation between husband and wife.

As per law, husband can also seek maintenance if he is unable to maintain himself. But on practical front in the Court, same is only an exception. Husband will not get maintenance if he is an able bodied person and not suffering from any severe disability. Husband may get maintenance only in exceptional case like where both husband and wife were working in a joint business. Now, wife wants to separate. If husband is refrained from working in the said joint setup, then there is likelihood of him getting maintenance. But there are rare sights. Gender neutrality calls for parity. But, history, social-culture and milieu throw different perspective.

There is no fixed formula to decide the amount or at the rate which maintenance is granted by  the Court. Court considers various factors such as income of parties, life style of spouse, dependants, requirements of spouse seeking maintenance before reaching to a figure of maintenance.

In one case, Court has laid down the rule of ‘Resource Cake’. In this case income is divided into number of proportion of claimants and one additional proportion goes to the one working and is being asked to pay maintenance.

In other cases general approach adopted by the Court is to give one third of the income of the husband. Recently, Supreme Court of India held that 25% of income of the husband is a sufficient maintenance. Thus, application of law is variable.

There are various conflicting judgements regarding when wife is not entitled for maintenance. One set of view says that if wife is working, she is not entitled to maintenance. Another view which has gained round recently says that the wife who although not working but sufficiently qualified and capable of earning is not entitled for maintenance. Another view says that if there is a disparity between the income of husband and wife, wherein wife is earning far lesser as compared to that of husband then to set the equity, Court grants maintenance to maintenance.

PLACE WHERE MAINTENANCE CASE CAN BE FILED BY WIFE:

  1. In case of claim for maintenance under section 24 HMA, where case is pending.
  2. In case of claim for maintenance under section 125 Cr.P.C where wife is residing or at the place where Respondent is residing
  3. In case of claim for maintenance under Domestic Violence, it can be filed where wife is either residing or working or where respondent is residing or working or where cause of action had taken. Thus, Domestic Violence Law gives broader scope of jurisdiction.

We at Divorce Lawyers extend our services to both husband and wife through our expert lawyers for maintenance cases. Our top maintenance lawyers are not only aware about the continuously changing law and dynamics of maintenance case but they know the nuances of law and practical approach. Our expert maintenance lawyers upon understanding the case draws upon a strategy for effectively filing and pursuing the case of maintenance or defending the same. Since there are so many different concepts, as discussed above, there is a definite need of subject matter specialist whose planning, action and execution lays the best case scenario for the client our maintenance lawyers are representing.