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Maintenance in Hindu and Islamic Law:
It is an ancillary relief – in that it does not arise independently, but will be granted along with and as a consequence of relief such as divorce, custody.
Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956. In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. What is 'justifiable' is determined by reasons spelt out in the Act.
Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the other spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance.
This Act inter alia provides that a divorced Muslim woman shall be entitled to:
(a) reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the Muslim Law and
(d) all property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of the husband or his friends. In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat the magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law, and to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of such relatives, and such maintenance shall be payable by such relatives in proportion to the size of their inheritance of her property and at such periods as he may specify in his order.
Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the magistrate shall order parents of such divorced woman to pay maintenance to her. In the absence of such relatives or where such relatives are not in a position to maintain her, the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995 functioning in the area in which the woman resides, to pay such maintenance as determined by him.
The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.
Maintenance Under Muslim Law
Islamic law did not have a provision that ensured the care and assistance of divorced Muslim women beyond the 'idda' period, calculated as 3 menstrual cycles.
Shah Bano, because she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.
In 1986, the Parliament passed the The Muslim Women (Protection of Rights on Divorce) Act 1986 that nullified the Supreme Court's judgment in the Shah Bano case and instead, upheld the Muslim Personal Law although the law was gender-biased and regressive.
How did the Act nullify the Supreme Court's judgment?
The Act basically mandated that every application for maintenance by a divorced woman under the Code of Criminal Procedure, which applies the maintenance law in a secular fashion, be disposed of in accordance with the provisions listed out.
According to the stated objects of the Act, where a Muslim divorced woman is unable to maintain herself after the period of idda, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law. But where a divorced woman has no relatives or such relatives, and does not have enough means to pay the maintenance the magistrate would order the State Waqf Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only.
The Act says that divorced woman is entitled to have a reasonable and fair provision and maintenance from her former husband, and the husband must do so within the period of idda and his obligation is not confined to the period of idda.
it further provides that a woman, if not granted maintenance can approach the Wakf board for grant as under section (b)which states that If she fails to get maintenance from her husband, she can claim it from relatives failing which, from the Waqf Board.
All obligations of maintenance however end with her remarriage and no claims for maintenance can be entertained afterwards. The Act thus secures to a divorced Muslim woman sufficient means of livelihood so that she is not thrown on the street without a roof over her head and without any means of sustaining herself.
Protection to Divorced Women
A divorced Muslim woman is entitled to:
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after the divorce.
Maintenance in Muslim Law (explain Shah Bano situation fully, lucidly)