Alimony and Maintenance

Where there is a family, there are many duties and liabilities associated to it. A family unit is made up of not only its members but also love, affection and care for each other. Oftentimes, it is the head of the family who is duty bound to maintain his family members including dependents like old aged parents, female members and children. This obligation arises out of the relation, status and affinity, existing between the persons entitled and the persons liable.

Under the Indian laws, the issues of maintenance and alimony are governed by respective customary laws and are based upon every individual’s religious preferences.

Definition and concept

The term ‘alimony’ which is derived from the latin word ‘Alimonia’, means sustenance. In this context, it refers to an ALLOWANCE or SUM OF MONEY which a spouse is indebted to pay to his wife to cater to her sustenance.

Maintenance on the other hand is right to get necessities which are reasonable. The term maintenance and alimony are synonymous with each other and usage of the names varies according to different locales. It refers to the financial support offered to a spouse in the event of a divorce or judicial separation.

Law governing Maintenance and Alimony laws

There are provisions under various laws for alimony and maintenance

1. Hindu marriage Act, 1955
2. Hindu Adoption and Maintenance Act, 1956
3. Code of Criminal Procedure, 1973
4. Muslim Women (Protection of Rights on Divorce) Act, 1986
5. Parsi Marriage and Divorce Act, 1936
6. Indian Divorce Act, 1969

The right to permanent alimony accrues only when a decree has been passed in favour of the petitioner under Section 9 to 13 of the Hindu Marriage Act, 1955, which provides for the provisions relating to judicial separation and nullity of marriage.

In case no decree has been passed, the right to maintenance and alimony is ruled out under Hindu Marriage Act. But still the wife could claim maintenance under Section 18(1) of the Hindu Adoption and Maintenance Act, 1956 or under Section 125 of Code or Criminal Procedure, 1973.

General provisions of maintenance are governed by Section 125 of the Code of Criminal procedure, 1973, wherein right of maintenance has been given to wife, children and aged & infirm parents. The purpose behind this provision is to avoid destitution to the dependents. Persons belonging to any religious belief irrespective of the personal laws which they are governed by, can seek maintenance under this provision.

This secular provision has been given wider powers as compared to the provisions under the personal law. Also, proceedings under Section 125 CrPC and under any of the personal Acts can take place simultaneously.

Thus, for example pendency of maintenance suit under Hindu Marriage cannot abstain one from seeking maintenance under Section 125 of the CrPC as the proceedings therein are quasi criminal and quasi civil in nature.

During the pendency of the maintenance proceedings or even that of divorce or judicial proceedings, party can seek interim maintenance also known as maintenance pendent lite. Once the proceedings are over upon final adjudication, the applicant gets final maintenance which can be in the form of monthly allowances of as full and final payment in the form of permanent alimony which can also include share in property or such other benefit.

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