Maintenance & Division Of Property
How can you claim maintenance?
Under Hindu Marriage Act, maintenance can be claimed either by the husband or the wife depending on their income or ability to earn.
Maintenance includes food, clothing, shelter and other basic necessities required for maintaining a decent standard of living. It is never given in kind; it is usually paid in cash either on a monthly or yearly basis, as decided by the court.
When can claim maintenance be claimed?
Under the provisions of Indian law, you can claim two types of maintenance:
- Interim Maintenance
- This kind of maintenance can be claimed when your divorce case is still pending in court.
- Can only be claimed by wife or for the child.
- This also includes the amount spent on the divorce proceedings.
- Cannot be claimed after the divorce proceedings are over.
- It is claimed under Section 125 of Code of Criminal Procedure.
- Permanent Maintenance
- This kind of maintenance is claimed after the divorce or judicial separation has been granted by the court.
- Can be claimed by either of the spouse.
- This includes all kinds of basic necessities.
- This is paid on a monthly or yearly basis and is not required to be paid after the death of the spouse entitled to it.
- It is claimed under Section 25 of Hindu Marriage Act.
In mutual consent divorce, the following matters are harmoniously decided between the spouses depending on their mutual understanding:
- whether any maintenance is to be given or not, or
- the amount of maintenance to be given, or
- which party to give maintenance to the other,
What will be the amount of Maintenance?
Maintenance not only includes food, clothing and shelter, but also includes other necessities. The amount and type of necessities covered within the scope of maintenance may vary, depending on
- the status,
- financial position and
- number of dependents, etc and
- as the court decides
Maintenance for Hindu Women
A Hindu woman, who is unable to maintain herself can claim maintenance under Section 125 of the Code of Criminal Procedure, (CrPC) which includes both interim maintenance as well as permanent maintenance.
- Interim maintenance can be claimed during the divorce proceedings and shall not be paid after the divorce is finalized.
- Permanent Maintenance is paid on monthly or periodical basis post divorce orders.
If a couple is married under Special Marriage Act, only the wife is entitled to permanent maintenance and support from the husband in terms of monthly or periodical payment of money for the rest of her life. Section 37 of the Act states these provisions.
Exception-
- If there is a change in circumstances of either of the spouse, they may request the court to and if it is satisfied it may change, modify or cancel such maintenance orders.
- If the wife is remarried or is not living a chaste life and, the husband may request the court and if the court is satisfied it may change, modify or cancel such maintenance orders.
Maintenance for Muslim Women
A Muslim woman possesses certain rights over the property of her husband post divorce that includes:
- Reasonable and fair maintenance within Iddat period;
- If you have custody of your children born before or after divorce, you can claim maintenance for a period of two years from the respective dates of birth of such children.
- An amount equal to the sum of Mahr or dower agreed to be paid to you
- All the properties given to you by your husband, relatives or friends before, during or after the marriage.
You can also claim maintenance under Section 125 of CrPC, if you are unable to maintain or support yourself.
Maintenance for Christian Women
If you are a Christian woman you can claim maintenance under Section 37 of the Indian Divorce Act, 1869 for this
- You must make an application either in the civil court or the high court.
- You can claim maintenance either through a criminal proceeding or a civil proceeding.
- You can also pursue both the proceedings simultaneously.
- In deciding permanent maintenance, the court will consider:
- the husband’s ability to pay,
- wives own assets, and
- conduct of both the spouses.
Maintenance for Parsi Women
If you are a Parsi woman you can claim for maintenance under the Parsi Marriage and Divorce Act, 1936. For this:
- You must make an application either in the civil court or the high court.
- You can claim maintenance either through a criminal proceeding or a civil proceeding.
- You can also pursue both the proceedings simultaneously.
- You can claim for interim as well as permanent maintenance.
- The amount of maintenance shall be one-fifth of the husband's net income.
- In deciding permanent maintenance, the court will consider:
- the husband’s ability to pay,
- wives own assets and
- conduct of both the spouses.
- The order for maintenance shall be applicable till the time you are chaste and unmarried.
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