Introduction
The term ‘maintenance’ is defined as an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. ‘Maintenance’ and ‘alimony’ have been used interchangeably, the term alimony means an allowance or amount which a court orders the husband to pay to the wife for her sustenance. The husband must maintain his wife and this obligation arises in marriage. Such obligations are imposed on him by operation of law.
In India, majorly five communities are identified including Hindus, Muslims, Christians, Jews, and Parsi. These communities have their laws derived from customs/traditions and laws. The law on maintenance and alimony varies from one community to another. For instance, under the Hindu Marriage Act, 1955, both the wife and the husband are legally entitled to claim maintenance but under the Special Marriage Act, 1954, only the wife can claim permanent alimony and maintenance.
Maintenance under the Act
According to Section 18(1) of the Hindu Adoptions and Maintenance Act 1956, the wife can claim maintenance and it is her legal right. Further, Section 18(2) of the said Act provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he has any other wife living. The right to claim maintenance is also provided under Section 125 of the Code of Criminal Procedure (CrPC). A wife can also claim maintenance under the Protection of Women against Domestic Violence Act, 2005.
The Court considers various factors while granting maintenance or alimony to a wife, the prime factors are the husband’s status and his income, number of children and their age, status of wife, etc. Whereas the Court also takes into consideration whether the wife is educated and capable to earn, if so, then it decides the alimony/ maintenance according to the same. If the wife is well-educated and can earn for herself then the Court by exercising its discretion may also deny the alimony/ maintenance to her.
Interim, ad-interim and final maintenance
Ad interim maintenance: This is only tentative maintenance and subject to fixation of interim or final maintenance. At the stage of granting ad interim maintenance, the trial court has to only form a prima facie opinion. The Trial Court has prima facie looked at the status of the parties, as upheld by the Delhi High Court in the case of Manish Divedi v. Smt Jyotsana, CRL Rev. P. 951/2017.
It is granted till the time interim or permanent maintenance is not fixed by the Court solely to protect the applicant from facing financial crisis during the course of proceedings especially when the spouse is dependent on another due to certain reasons such as being uneducated, disabled, etc.
The most relevant difference between the ad interim and interim maintenance is that, the former does not continue till end of the proceedings and it is granted only till the time interim maintenance is not fixed by the Court. Ad interim maintenance is granted ordinarily on the first date of hearing till the time interim maintenance is not decided by the Court.
In Smt. Sushila Viresh Chhadva v. Viresh Nagshi Chhadva (1995) SCC OnLine Bom 315, the Court held that the purpose of granting ad interim maintenance will be deferred if the expense for proceedings is delivered in the final proceeding. Hence, the Court concluded that the application for ad interim maintenance must be granted during first hearing. However, there is no mandate that ad interim maintenance will be granted by the Court necessarily and it may refuse it if wife/ dependent is earning or capable to work.
Interim maintenance: It is granted to the applicant during the pendency of the proceedings before the Court, and it continues till the Court reaches at its final decision. The purpose of this is to ensure that the applicant should not suffer financial crisis during the on-going Court proceedings. This is granted to the applicant on a monthly basis. Grant of interim maintenance is based on sole discretion of the Court and it grants the same based on facts and circumstance of each case.
Interim maintenance is covered under Section 24 of the Hindu Marriage Act, 1955 also known as maintenance pendente lite. In the case of Pradeep Kumar Saini v. Seema & Ors. Criminal Petition No. 1254/ 2009, the Apex Court held that while deciding interim maintenance, the Court has the power to reject such appeal for which a reason must be specified.
Final maintenance: It is given by the courts at the time of its final decision, the same may be granted in the form of alimony or maintenance. This is given in form of a lump sum payment of an amount. The interim maintenance comes to an end once the final verdict is delivered. Parties could lead oral and documentary evidence regarding their income, expenditure, standard of living, etc., before the Court, for fixing the permanent maintenance payable. The marriage duration should be taken into consideration to determine the permanent maintenance that is to be paid.
Provision relating to grant of reasonable expenses for children’s marriage must be made while determining permanent maintenance (in cases where the custody is with the wife). The expenses must be determined by considering the financial capacity of the husband and the customs of the family.
Conclusion
The Court determines various factors while granting maintenance or alimony to a wife, the prime factors are husband’s status, his income, number of children, their education, whether wife is educated or not, her earning capacity, etc. However, in the cases where the earning capacity of the wife is low and she has dependency or responsibility of her children then the Court considers such factors.
As discussed above, the maintenance can be ad interim that is granted immediately till the interim maintenance is decided by the Court, interim maintenance that is granted till the final disposal of the case or final maintenance is granted as a one-time lump sum amount to the applicant.
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