Maintenance Rights for Divorced women under different religions in India

Maintenance is one of the consequences of divorce and is an entitlement of divorced woman. It empowers them financially and helps her live a decent life even after the divorce. The amount of maintenance is evaluated by the respective courts in the context of presented facts, grounds and evidence and thus, varies from case to case.

In India, there are different religious laws which encompass regulations pertaining to maintenance rights for divorced women. Maintenance means an amount which a husband is obliged to pay to his wife either upon separation/divorce under certain conditions or during their marital life. The objective of providing maintenance to the divorced women is to provide them financial independence, so that she can live life with convenience.

Maintenance rights under different religions in India

• Maintenance Rights under the Hindu law: In accordance to Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956, divorced women have the complete right to claim maintenance. The maintenance amount is decided by the Court of Law which is based on varying factors including financial position and the liabilities of the husband, justifiable reasons behind the separation/divorce etc.  The expenses of legal proceedings for the maintenance will be borne by either of the two spouses depending on their ability to bear the expenses. The husband is required to make and pay the maintenance amount unless the divorced wife remains chaste and single.
• Muslim law: The Muslim Women (Protection of Rights on Divorce) Act, 1986 governs Maintenance of divorced women. Here, a divorced woman is entitled to the following:-

1. Valid and fair provision and maintenance by her ex-husband within the ‘iddat period’.
2. If she has children who are born before or after the divorce, then she can claim reasonable and fair provision and maintenance from her ex-husband for a minimum period of 2 years from the birth dates of such children.

• An amount equivalent to ‘Meher’ or ‘dower’ as agreed to be paid at the time of her marriage or anytime afterwards by the ex-husband.

1. All the properties which are given to her by her parents/relatives/friends or by her ex-husband/his relatives/his friends.
   In case, she is unable to maintain her living after ‘iddat period’ then as per the law, the magistrate will order her relatives who would have inherited her property after her death to make such provision as he may deem fit  and suitable for her.   If she is divorced and has children, who are financially independent, then magistrate will order them to pay maintenance to her but if the children are not financially capable, then the woman’s parent will be directed to pay for her maintenance.

• Christian: Maintenance for the divorced woman, who follows Christianity, is governed by Indian Divorce Act, 1869. As per the Act, the maximum alimony amount that will be given to her would be one-fifth of the husband’s income. In order to decide the amount of permanent maintenance, the court will have to take into consideration certain factors like husband’s financial ability to make payment, wife’s own assets and financial capacity, conduct and behavior of both the parties etc. The maintenance amount will be provided till the time she stays chaste and unmarried.

• Marriages under the special marriage act: Special Marriage Act, 1954 also allows divorced wife to claim maintenance and support by charging a quantum on husband’s property depending on the husband’s ability to pay, his property, wife’s own wealth, property and assets, conduct of both the parties and any other just circumstances. The district court of apt jurisdiction where the application for maintenance is submitted can rescind, modify or vary its order/decree if it is convinced that there is a change in circumstances of either party at any time after the order is passed or if the divorced woman doesn’t remain chaste or single.

Grounds for awarding maintenance

• Hindu Law/ Indian Divorce Act, 1869: The court can award maintenance to divorced woman only on the basis of any of the following grounds:-

1. If the husband is guilty of deserting her or neglecting her.
2. If the husband is suffering from venereal diseases or virulent form of leprosy.

• If the husband has another living wife.

1. If the husband is keeping the concubine elsewhere or in the same house where the wife resides.
2. If the husband has converted his religion and has ceased to be Hindu.
3. If the husband has treated her with cruelty.

• Any other relevant cause that validate her separation.

• Muslim Law: As per the Act, the grounds for claiming maintenance by divorced/separated women are as under:-

1. The husband is ill and is suffering with venereal diseases.
2. The marriage cannot be consummated due to certain valid reasons such as husband’s impotency, illness or age.

• If the wife has signed an ante/pre nuptial agreement which allows her the right to claim maintenance if she is ill-treated by her husband.

1. If the husband’s conduct towards her was cruel.

Quantum of maintenance awarded by the Court in India

• Hindu law: As per Hindu law, there are two types of maintenance i.e. interim and permanent. The permanent maintenance is determined on the basis of several factors i.e. husband’s financial ability, the financial needs of the applicant and her financial independence, age & health of the parties, length of marriage, conduct of both the parties etc. The interim maintenance is paid from the date of presenting the petition till the date of dismissal of the petition. It meets the immediate needs of the petitioner; in this case, it is divorced woman. The provision with regard to quantum of maintenance is silent and it is the court which decides the quantum on the basis of above-mentioned factors.

• Muslim Law: Under the Act, the divorced wife is entitled to the following quantum after divorce:

1. She will be given a reasonable and fair provision by her ex-husband during the ‘iddat period’ and for the time from the expiry of ‘iddat period’ to her receiving notice of talaq. In the case of Shamim Bano, Supreme Court passed a landmark judgment that she can file a suit in the court to gain quantum of maintenance even after the divorce/talaq is granted.

1. An amount equivalent to ‘Meher’ or ‘dower’ as agreed to be paid at the time of her marriage or anytime afterwards by the ex-husband.

• Christian Law: As per Indian Divorce Act, the quantum of interim and permanent maintenance is decided by the court of apt jurisdiction. The wife has to apply in the court and the court will determine the quantum on the basis of reasonable factors. The court may pass an order on the husband to make monthly or weekly amounts for her maintenance and support, if it deems reasonable and the husband is financially able to do so.

Filing of the maintenance application

A maintenance application is filed with the district court of apt jurisdiction or the High Court. They are also allowed to seek maintenance from their ex-husbands under the Criminal Procedure Code, if she is unable to maintain herself. Here the Judicial Magistrate of First Class will determine the quantum of maintenance and also consider whether the applicant has received maintenance order under her personal law or not. Interim Maintenance can be required before the hearing through an application to the court via Notice of Motion.

What should the application contain in India

The application by wife Under Section 125 of CRpC for maintenance will contain the following:-

• Marriage details and length of their married life.
• Details of children, if any.
• Income declaration of husband.
• Grounds for asking maintenance.
• Conduct and behavior of husband.
• Details of divorce and duration of separation.
• Financial independence of the applicant and her family.
• Any details of previously obtained maintenance order under personal laws.
• Payment details of court fees.
• Verification statement by the applicant.