MAINTENANCE LAW IN INDIA: PROCEDURE FOR MAINTENANCE
Introduction to Maintenance
This is an integral part of all matrimonial proceedings. Application for maintenance can be moved by either of the spouses who do not have sufficient means to maintain him/her self. Maintenance can also be classified into two parts:
Such maintenance is provided during the pendency of the case in the court. The underlying idea behind giving such maintenance is that one party should not lose and stand on a weaker footing at the time of contesting the case. Quantum of such maintenance is dependent on a variety of factors but the most important aspect is the status of the parties prior to the filing of the case and the income/salary of the spouse against whom such maintenance is claimed. The court always tries to bring both the party at equal platform and footing.
It is awarded at the time when the whole case is finally decided. It could be periodical or monthly depends upon the facts and circumstances of the case.
LAWS GOVERNING MAINTENANCE CASE
There are various laws that govern the aspect of maintenance in India. Such laws are under:
- Section 125 Cr.P.C Maintenance
- Section 24 Hindu Marriage Act
- Section 18 Hindu Adoption and Maintenance Act
- Provisions under the Domestic Violence Act
Each case and situation calls for initiating a proceeding under any one of the above law. At times, claim for maintenance is filed under more than one law. Thus, the petitioner can file a claim for maintenance under more than one provision like under section 125 Cr.P.C as well as under section 24 of the Hindu Marriage Act. Practically speaking, the law is settled that the Petitioner would be entitled for higher maintenance if two courts have passed different amounts towards maintenance to the wife. But, the wife will not be entitled to have a maintenance of total sum from two courts. Thus, Court in 125 Crp.C proceedings grants 20,000 rupees while in proceedings under section 24 grants 15000 per month then wife will be entitled to have Rs.20,000 and not 35000 per month. The higher amount is to be paid and not cumulative.
WHO CAN FILE A CASE FOR MAINTENANCE
A case for maintenance in the matrimonial matter can be filed by:-
- wife for herself
- Wife for children
WHERE CAN I FILE A CASE OR CLAIM FOR MAINTENANCE
Under section 125 Cr.P.C
- Place where the wife is residing
- Place where Respondent is residing
Under Hindu Marriage Act
An application under section 24 HMA can be filed only where proceedings for Divorce/Judicial Separation/ Restitution of Conjugal rights are pending.
Under the Domestic Violence Act
- Place where complainant herself resides either permanently or temporarily
- Place of work of the complainant either business or employment
- Place where Respondent resides or carries on business or works
- Place where the cause of action had taken place
What are the factors considered by the Court while granting the maintenance?
There are several factors that are considered by the Court while granting maintenance. They are listed below. Notably. this list is only indicative and not exhaustive.
- The income of the husband
- The income of the wife, if any
- Background and status of parties
- Movable and immovable properties
- Life style
- Expenditure on household
- Expenditure towards education and School of the children
- Age of dependent children
- Model of Car being used
- Mode of travel
Is there any formula on the basis of which maintenance is calculated?
There is no fixed formula to determine maintenance in India. It is difficult to lay. Recently, the Supreme Court said that it should be at least 25 % of the income of the husband. Also, often formula as laid Annurita case is applied that says that earning members will be entitled to one extra portion of himself after equal appropriation of the income amongst all family members. It would be safe to say that maintenance may vary can be from a lower range of 25 percent to about 35 percent of the income.
What documents are required to be filed by parties in a case for maintenance?
Both parties are required to give financial disclosure of their assets and liabilities. Hon’ble Supreme Court of India in Rajnesh versus Neha made it mandatory for both spouses to file their respective affidavit of income detailing all sources of income, expenditure, liabilities, etc. Both husband and wife are required to furnish the following documents amongst others:
- Salary Slips (of six months)
- Income tax return of three years
- FORM 16/COST TO COMPANY(CTC)
- Bank accounts statement of three years(All bank accounts
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