How to file for maintenance if husband is staying out of India

273 votes

Section- 125 (order for maintenance/ alimony of wives, children and parents) of the Criminal Procedure Code, 1973 has been passed to seek social justice thereby providing a powerful legal remedy for dependent persons to seek maintenance from the supporting spouse. A person of any religion can seek maintenance under this section without any limitation. This section provides relief to wives seeking alimony from husbands staying abroad as well.

Following are the different laws applicable on matters pertaining to maintenance of wives, parents, sons, daughters and other dependents -
- Hindu Adoptions And Maintenance Act, 1956
- Protection of Women From Domestic Violence Act, 2005
- Protection of Women From Domestic Violence Rules, 2006
- Hindu Marriage Act, 1955
- Special Marriage Act, 1954
- Divorce Act, 1869
- Family Courts Act, 1984
- Muslim Women (Protection of Rights on Divorce) Act, 1986
- Muslim Women (Protection of Rights on Divorce) Rules, 1986
- Maintenance And Welfare of Parents And Senior Citizens Act, 2007
- Maintenance Orders Enforcement Act, 1921
 
Maintenance for wife
A woman is considered to be a “wife” only if her marriage is legally valid. For instance, under Hindu law, a legal marriage requires:
- Both the spouses to be Hindus,
- the marriage is performed according to the customs of the religion,
- neither spouse has a living spouse at the time of marriage,
- neither spouse is of unsound mind at the time of marriage,
- the male is at least 21 years old,
- the female is at least 18 years old and
- spouses not related by sapinda or within forbidden degrees of relationships.
 
Under Hindu law, the 2nd wife cannot claim alimony because a 2nd marriage is prohibited by law and thus, invalid. The 2nd wife is entitled to claim maintenance only if the husband concealed his first marriage from her.

Under Muslim law, a legal marriage requires:
- Both the spouses to be Muslims and that of sound mind,
- both spouses have attained puberty presumed to be 15 years,
- both spouses have given consent to the marriage,
- the spouses are not temporarily or permanently forbidden from marrying each other,
- the woman is not married to another man or is observing iddat for another man,
- a proposal (ijab) is made and acceptance of the same (qubul) is made on the same occasion,
- the proposal and acceptance are accepted by the Shariat,
- the proposal and acceptance must be witnessed by 2 men or a man with 2 women who are Muslim adults of sound mind.
 
Under Christian Law
Christians in India are governed by the Indian Divorce Act. Under Section- 36 of the same act, a wife can claim her right to alimony to be paid by the husband, if directed by the court. This means that similar to the Muslim law, the Christian law does not recognize maintenance for men.
 
Enforcement of maintenance orders passed by courts in India in foreign countries Section- 5 of the Maintenance Orders Enforcement Act reads "Transmission of maintenance orders made in India: Where a Court in India has, whether before or after the commencement of this Act, made a maintenance order against any person, and it is proved to that Court that the person against whom the order was made is resident in a reciprocating territory, the court shall send to the Central Government, for transmission to the proper authority of that territory, a certified copy of the order."
 
Section- 125 can also be applied to a foreigner
A wife can maintain an application in India as the provision includes a foreigner from its purview and are applicable to all the persons irrespective of their citizenship and personal law of the husband.

How is the maintenance amount decided by the court? 
The court decides the amount of alimony to be paid by one of the spouses after checking numerous parameters. For instance-
- The income of each of the spouses
- Living standard as well as financial status
- Spouse’s income, investments, and net worth
- Financial requirements of the individuals
- The duration of marriage
- The total number of children and the kind of emotional investments made

Although there is no fixed formula to calculate the maintenance amount, but, most of the times it is in the range of one-fifth to one-third of the total earnings of the spouse who has to pay alimony.
 
Wife is earnings: The court will look into husband's financial status. If his income is extremely high, the wife will get some maintenance.

If Wife is not earning: Wife will get maintenance that will allow her to maintain a decent standard of living that is similar to that of the husband.

If Wife gets remarried: Wife won’t get anything. However, the husband will have to continue to pay for the children if any. If the husband is disabled and is thus, unable to earn then the wife can be asked to pay maintenance to the husband.
 
While deciding the mode of payment, the lump sum is a more chosen option due to its certainty. A regularly fixed payment can stop after a while due to reasons like the supporting spouse losing source of income or even death. The lump sum amount is not taxable as it is a capital receipt. However, if an investment made from this amount earns returns, then the return is taxable.

Furthermore, once the court passes the order, the supporting spouse has to pay maintenance decided by the court. If payments are not made in time, the court can take further action with penalties against the spouse since alimony is the right of the other spouse after divorce.

LawRato LawRato

591 votes

File a maintenance application before the family court .An interim maintenance petition also file along the original petition. The application for the interim maintenance shall,as far as possible,be disposed of within sixty days from the date of service of notice on the husband.

No fixed formula can be laid for fixing the amount of maintenance. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant.When your husband is hiding his income he is committing an offence under section 193 IPC. You can file a case against him. In your case, it is not expected that wife should earn. It is primary duty of married person to maintain his wife and children. However he is NRI so in this condition no coercive action can be taken by the court against him. So you can't succeed in criminal case but you have full right to get maintenance.

Advocate Ajay NS LawRato

989 votes

The queriest can rely on the due process of law to get the maintenance. It does not matter the husband is an NRI. It is only that the process needs to be duly served on him. If normal process is of no avail, the queriest can resort to substituted service. Nowadays, the facility of e-mail could be availed of, with the permission of the court. Once the process is duly served, law will take care of the due procedure.

Advocate P Venu LawRato