Maintenance in India: who is entitled, how to claim, and what to expect

Maintenance claims in India are governed by different statutes depending on the religion and marital status of the parties. For Hindus, Buddhists, Jains, and Sikhs, the primary laws are the Hindu Marriage Act, 1955 (Section 24 for pendente lite maintenance and Section 25 for permanent alimony) and the Hindu Adoption and Maintenance Act, 1956 (Section 18 for a wife's right to maintenance). For Christians, the Indian Divorce Act, 1869 applies. For Parsis, the Parsi Marriage and Divorce Act, 1936 governs. For Muslims, maintenance is governed by the Muslim Personal Law (Shariat) Application Act, 1937 and the Code of Criminal Procedure, 1973. For inter-faith or civil marriages, the Special Marriage Act, 1954 applies. Additionally, Section 125 of the Code of Criminal Procedure, 1973 provides a summary remedy for maintenance to wives, children, and parents regardless of religion.

A wife, husband, minor children (including adopted children), and in some cases, adult children who are unable to maintain themselves due to physical or mental disability, and parents who are unable to maintain themselves, are entitled to claim maintenance. Under Section 125 of the Code of Criminal Procedure, 1973, a wife includes a divorced wife who has not remarried. The Supreme Court has held that the wife's right to maintenance is not defeated by her living separately if she has sufficient reason, such as cruelty or desertion. No reported decision was found on this point from the retrieved cases.

The grounds for claiming maintenance depend on the statute under which the claim is made. Under the Hindu Adoption and Maintenance Act, 1956, a Hindu wife is entitled to maintenance from her husband during her lifetime if she is living separately for reasons such as desertion, cruelty, conversion to another religion, or if the husband has another wife living. Under Section 125 of the Code of Criminal Procedure, 1973, a wife can claim maintenance if her husband has neglected or refused to maintain her despite having sufficient means. The Supreme Court has held that the wife does not need to prove that she is unable to maintain herself; the husband's failure to maintain is sufficient. No reported decision was found on this point from the retrieved cases.

The procedure for claiming maintenance varies depending on whether the claim is filed in a civil court or a criminal court. Below is the general step-by-step process:

1. Filing the petition: The claimant files a petition in the appropriate court. For claims under Section 125 CrPC, the petition is filed in the court of the Judicial Magistrate of the First Class having jurisdiction over the place where the claimant resides. For claims under the Hindu Marriage Act, the petition is filed in the family court or district court where the marriage was solemnized or where the parties last resided together.

2. Service of notice: The court issues notice to the respondent (the spouse against whom maintenance is claimed). The notice must be served personally or through registered post.

3. Interim maintenance: The court may grant interim maintenance (pendente lite) during the pendency of the main proceedings. The court considers the income and needs of both parties.

4. Evidence and hearing: Both parties present evidence, including income documents, bank statements, and proof of expenses. The court may also consider the standard of living during the marriage.

5. Order: The court passes an order determining the quantum of maintenance. The order may be for a lump sum or monthly payments.

6. Enforcement: If the respondent fails to pay, the claimant can file an execution application. Under Section 125 CrPC, the court can issue a warrant for the respondent's arrest or attach his property.

• Marriage certificate or proof of marriage
• Proof of income of both parties (salary slips, income tax returns, bank statements)
• Proof of expenses (rent receipts, school fees, medical bills)
• Proof of assets (property documents, investment statements)
• Proof of the respondent's income and assets (if available)
• Any correspondence showing refusal to maintain
• In cases of cruelty or desertion, evidence such as police complaints, medical reports, or witness statements
• Proof of residence (Aadhaar card, voter ID, ration card)

You should engage an advocate if the respondent is overseas, if there is a criminal overlap (such as a domestic violence complaint under the Protection of Women from Domestic Violence Act, 2005), if there are complex assets or businesses involved, if there is a risk of child abduction, or if the respondent is likely to contest the claim vigorously. An advocate can help you navigate the procedural requirements and ensure that your evidence is properly presented.

Can a husband claim maintenance from his wife? Yes, under Section 24 of the Hindu Marriage Act, 1955 and Section 125 of the Code of Criminal Procedure, 1973, a husband can claim maintenance if he is unable to maintain himself due to physical or mental disability. However, the courts have held that the husband must prove his inability to maintain himself.

Is maintenance taxable? Maintenance received by a spouse is taxable as income under the Income Tax Act, 1961. However, maintenance received for the benefit of minor children may be exempt.

Can maintenance be modified after the order? Yes, either party can apply for modification of the maintenance order if there is a change in circumstances, such as a change in income, remarriage, or the birth of a child.

What happens if the respondent does not pay maintenance? The claimant can file an execution application. Under Section 125 CrPC, the court can issue a warrant for the respondent's arrest or attach his property. The court may also order the respondent to pay arrears with interest.

Can maintenance be claimed after divorce? Yes, permanent alimony can be claimed after divorce under Section 25 of the Hindu Marriage Act, 1955 or under the relevant personal law. The court considers the income and needs of both parties.

Is there a time limit for claiming maintenance? There is no specific time limit for claiming maintenance under Section 125 CrPC. However, for claims under the Hindu Marriage Act, the petition must be filed during the pendency of the divorce proceedings or within a reasonable time after the decree.