Maintenance

What is 'maintenance'

The dictionary meaning of maintenance is ‘support’ or ‘sustenance.’ Maintenance generally covers the expenses a person requires to sustain themselves. Therefore, a claim for maintenance is made by one who is assumed to not have sufficient means to support themselves. Amounts of maintenance to be paid to a claimant are determined by courts while taking several factors into consideration, such as the financial status of the claimant and the person from whom maintenance is being sought, their ability to earn, their conduct and the grounds on which maintenance is being claimed. The object of maintenance provisions are to compel a person to perform their moral obligations, owed to members of their family, such as their spouses, children and parents, such that they are not left destitute.

Evolution of 'maintenance'

The provision for maintenance is not limited to any one law. All personal laws in India have accepted the obligation a person has to maintain the members of his family. The Hindu Marriage Act, 1955, applicable to Hindus, the Parsi Marriage and Divorce Act, 1935, applicable to Parsis and the Indian Divorce Act, 1969, applicable to Christians provide for the maintenance of a wife by her husband upon separation and divorce. The Special Marriage Act, 1954, provides for the same for persons married under it, irrespective of their religion. Apart from these personal laws, S. 125 of the Code of Criminal Procedure provides for maintenance to a wife, irrespective of her religion.

In 1882, James Fitz James Stephen, an English lawyer and judge, who contributed to the development of the CrPC, helped formulate S. 488, corresponding to the present S. 125, to “prevent vagrancy or at least of preventing its consequences.” Under S.488, deserted wives and children were entitled to claim maintenance - the applicability of the provision did not extend to parents. The provision surprisingly did not apply to divorced wives either. However, in the new CrPC, the scope of the provision was extended to apply to wives, married or divorced, minor children, legitimate or illegitimate, and parents.

Legal framework relating to 'maintenance'

Secular/General Provisions:

Criminal Procedure Code, 1908: Chapter IX (S. 125 - 128)

This enactment is consistent with Art. 15(3) of the Constitution of India, which states that the prohibition contained in the Article shall not prevent the State from making any special provisions for women and children. It is also in consonance with Art. 39 of the Constitution, which states inter alia, that the State shall, in particular, direct its policies towards securing the right of its citizens, men and women equally, to an adequate means of livelihood, and ensuring that children are given opportunities and facilities to develop in a healthy manner, against moral and material abandonment. Thus, this secular provision enables persons abandoned by their family to access a speedy remedy, and avoid becoming destitute.

Maintenance is commonly claimed by spouses who have been divorced or abandoned by their husbands. To be entitled to claim maintenance, the following circumstances must be demonstrated:

• The relationship between the parties as one of husband and wife must be proved
• The wife must be unable to maintain herself
• The husband must be having sufficient means to maintain the wife
• That the husband has not neglected or refused to maintain the wife must be proved

Notwithstanding this, under S. 125, a parent is also conferred the statutory right to claim maintenance from their child. 125(1)(b) also provides for maintenance for a child up to 18 years of age, legitimate or illegitimate, married or unmarried, from their father. As per 125(1)(c), even a child who has attained majority may be entitled to maintenance if by reason of any physical or mental incapacity, the child is unable to maintain themselves. However, a daughter who has attained the age of majority and is married will not be entitled to claim maintenance from her parents under this provision.

Additionally, 125(1)(d) obliges one to maintain their parents, if they are unable to maintain themselves.

It must be noted that there is no conflict between the provisions for maintenance under various personal laws and the CrPC. If a person has already obtained an order for maintenance under a personal law, they can apply for maintenance under the CrPC too, and the Magistrate, while fixing the quantum of maintenance under the Code may consider the amount of maintenance the claimant has already availed.

Protection of Women from Domestic Violence Act, 2005

Section 20 of the Act provides that while disposing of an application made under S.12 of the Act, the Magistrate may direct the respondent to pay monetary relief to the aggrieved party, to the meet any expenses incurred or losses suffered as a result of domestic violence, which may include, but are not limited to:

• Loss of earnings
• Medical expenses
• Loss caused due to destruction, damage or removal of any property belonging to the aggrieved party
• The maintenance of the aggrieved person, as well as her children, if any.

Such an order can be made under or in addition to an order of maintenance under S.125 of the CrPC.

The monetary relief granted must be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The amounts can be paid in lump sum, or at periodical intervals.

The order for monetary relief will not only be shared with the parties to the application, but also the in-charge of the police station within whose jurisdiction the respondent resides.

If the respondent fails to make payments as per the Magistrate’s directions, the Magistrate may direct the employer or a debtor of the respondent to directly pay the amounts to the aggrieved party, or to deposit with the Court a portion of the wages or debt, which will then be adjusted towards the monetary relief payable by the respondent.

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

As per S.4 of this Act, a senior citizen who is unable to maintain themselves from their own earnings or property owned by them, is entitled to make an application under S.5 of the Act for maintenance.

• In case of a parent or a grandparent, the application can be made against one or more of their children, provided they are not minors.
• In case of a childless senior citizen, against any relative that is a legal heir of the citizen, not a minor, and is in possession of the citizen’s property or would inherit it after their death. Provided where there is more than one relative entitled to inherit the property of the senior citizen, the maintenance shall be payable by such relative in proportion to the share they would inherit in the property.

The obligation of the children or relatives is to ensure the needs of such senior citizens are met, such that they may lead a normal life.

Provisions under Personal Laws:

Hindu Marriage Act, 1955

Under S.24 of the Act, either the wife or the husband can apply for interim maintenance. The basis for claiming maintenance must be that the claimant has no independent income of their own to support themselves. The provision is however silent on the quantum of maintenance, and it is the discretion of the court to determine the same. It is also meant to cover the claimant’s litigation expenses. The interim maintenance is ordinarily payable from the date of the presentation of the petition till the date of the dismissal of the same or passing of the decree. The Court can also direct the respondent to bear the expenses of proceedings and provide monthly sums to the claimant, as it deems fit, during the course of the proceedings.  

S.25 of the Act provides for permanent maintenance, which can be in the form of a gross or periodical sum, not for a term exceeding the lifetime of the claimant.

Hindu Adoptions and Maintenance Act, 1956

Section 3(b)(i) of the Act defines maintenance as “provision for food, clothing, residence, education, medical attendance and treatment.” In the case of an unmarried daughter, it also includes her marriage expenses.

Provisions relating to a wife's right to maintenance:

Under Section 18 of the Act, a married woman has a right to reside separately and claim maintenance, even if she is not seeking divorce or any other matrimonial relief. The Act envisages certain situations in which it may become impossible for a wife to continue to reside and cohabit with a husband, but she may not want to break the matrimonial title for various reasons. The grounds of which any one or more has to be proved in order to avail maintenance, are as follows:

• The husband has deserted the wife or willfully neglected her
• The husband has subjected the wife to cruelty
• The husband is suffering from a virulent form of leprosy, venereal disease or any other infectious disease
• The husband has taken a second wife, during the subsistence of the first marriage
• The husband keeps a concubine in the same house where the wife resides, or resides with a concubine elsewhere
• The husband has ceased being a Hindu, by conversion to another religion
• Any other cause justifying the wife’s living separately

The quantum of maintenance is determined by taking the means and capacity against whom the decree is to be passed into consideration. For example, not only are the husband’s actual earnings considered, but also his potential earning capacity, based on the presumption that every able-bodied man has a capacity to earn and maintain his wife. Moreover, it is the husband’s disposable income that is considered, not his gross income.

Section 19 of the Act imposes, on the Hindu father-in-law, an obligation to maintain his widowed daughter-in-law, if she cannot maintain herself out of her own income, or out of her late husband's estate, her parents' estate or her children's estate.

Section 23(2) of the Act lists some other factors to be taken into consideration while determining the amount of maintenance payable to the wife, children or aged parents, such as:

• The position of and status of the parties
• The reasonable wants of the claimant
• Whether the claimant lives separately and if the same is justified or not
• The income of the claimant
• Property, if any, owned by the claimant and the value of the same

However, if the wife herself has engaged in an adulterous relationship or has converted to any other religion, thereby ceasing to be a Hindu, she would not be entitled to maintenance.

Most importantly, in order to avail maintenance from a husband, it is to be proved that the marriage between the spouses was valid, as per the requirements of the Hindu Marriage Act. If the marriage is void, or there exists no matrimonial relationship between the parties, no right of maintenance accrues to the wife.

Provisions relating to children's right to maintenance:

Section 20 of the Act imposes an obligation upon both parents to equally maintain their children, legitimate or illegitimate. 20(2) lays down that the children are entitled to maintenance until they attain majority - this right is extended for daughters till they get married. Thus, the parents are obliged to even bear her marriage expenses.

However, as per Section 24 of the Act, a Hindu child who ceases to be Hindu by conversion to another religion, loses his right to claim maintenance under the Act.

Provisions relating to parents' right to maintenance:

Section 20 of the Act lays down an obligation to maintain old and infirm parents who are unable to maintain themselves out of their personal earnings and property. This obligation is extended to both sons and daughters. Both the father and mother have an equal right to claim maintenance under this provision. The explanation to this section additionally extends the scope of this section to step-parents. By creating this provision, the HAM Act was the first statute in India to impose an obligation on children to maintain their parents.

Maintenance under Muslim personal laws:

The Islamic legal term for maintenance is nafqah - meaning that which a man spends to support his wife and children, including expenses for feeding, clothing and lodging. It is the father who has the absolute liability to maintain his children. This obligation is not to be shirked off even if he is indigent or if the children are in the custody of the mother, provided he has the capacity to earn.

It is the husband’s duty to maintain the wife, even if she has means to maintain herself, provided the marriage is a valid one. As per S. 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim woman is entitled to claim from her husband:

• A reasonable and fair provision of maintenance
• An amount equal to the sum of mehr or dower agreed to be paid to her at the time of marriage or any time thereafter, according to Muslim law
• All the properties given to her before, during or after her marriage by her relatives, friends, husband or any of the husband’s friends and relatives
• If the divorced woman herself maintains children born to her, before or after the divorce, a reasonable and fair amount of maintenance for a period of 2 years from the respective dates of birth of such children.

However, if the wife unjustifiably refuses to cohabit with her husband, she loses her right to maintenance. The right to maintenance would also be lost if the wife refuses to obey any reasonable commands issued to her, but it would not be lost if the wife’s refusal to cohabit with or obey her husband is justified, on account of cruelty meted out to her by her husband, or if the husband refuses to maintain his wife unlawfully.

If the husband brings in a second wife and the first wife is unable to cohabit with her, the wife, or her guardian may enter an agreement with the husband, so as to entitle her to live separately from the husband and take maintenance from him.

If a Muslim couple undergoes talaq (divorce), the wife is entitled to maintenance during the period of iddat, after the expiry of which the enforceability of the order for maintenance ceases.

Islamic law additionally prescribes rules for the maintenance of legitimate children. A father is bound to maintain his sons until they attain puberty, and maintain his daughters until they are married. An adult son, however, may be required to be maintained, if he is infirm. Additionally, a widowed or divorced daughter who returns to live with her parents is also entitled to be maintained by her father. However, if the daughter is married and the husband is unable to maintain her, then too, the father may be required to maintain her.

In the absence of the father, if the children are minors or adults unable to make a living, the obligation to provide for them falls on the grandfather.

Maintenance under Christian law

A Christian woman can claim maintenance from her spouse both through criminal proceedings (S. 125 of the CrPC) and/or civil proceedings, under S. 36 of the Indian Divorce, Act, 1869, which is largely similar to S. 24 of the Hindu Marriage Act, which provides for maintenance pendente lite, including the expenses for the legal proceedings. Post the divorce, if she continues to be unable to support herself, she can apply for permanent maintenance under S.37 of the Indian Divorce Act, for the rest of her life. However, if the husband afterwards, due to any cause, becomes unable to make such payments, the Court can discharge or modify the order for maintenance, or temporarily suspend the operation of the same. Later, if the husband becomes capacitated to pay the amounts, the Court may review the same order wholly or partly, as it deems fit.

Maintenance under Parsi Law:

A Parsi can claim maintenance from their spouse through criminal proceedings, under S.125 of the CrPC and civil proceedings under The Parsi Marriage and Divorce Act, 1936. S.39 of the Act is similar to S.24 of the Hindu Marriage Act, providing for interim/pendente lite maintenance. Under S.40 of the Act, it is provided that the defendant shall pay to the claimant for his or her  permanent maintenance and support, a gross sum or monthly or periodical sum, for a term not exceeding the claimant’s life. The sum is determined by taking into consideration the defendant’s income and property, the claimant’s income and property, the conduct of the parties and circumstances of the case. If the Court deems it necessary and fit, it may secure the payment of maintenance by creating a charge on the property of the defendant, movable or immovable.

In a situation where the Court finds that the party in whose favour an order has been made has remarried or had relations outside of wedlock, at the instance of the other party, the order for maintenance can be modified or rescinded.

'Maintenance' as discussed in Law Commission Reports

Report No. 252 of the Law Commission of India (2015)

The need to make this Report emanated from a legal lacuna identified in the case of Avtar Singh v. Jasbir Singh, where the plaintiff, the wife of an unsound man, sought maintenance from her father-in-law for herself, her husband and her minor sons, under S.19 of the Hindu Adoptions and Maintenance Act. However, S.19 dealt with the right of a widowed daughter-in-law to seek maintenance from her father-in-law. The Act was silent on the right to maintenance of a wife of an incapacitated person, against members of his family. This put the wives of incapacitated persons in a disadvantaged position, more so because as per the Hindu Succession Act, 1956, they are not entitled to a share in their in-laws' ancestral property, and can only avail such shares through their husbands, after their deaths.

Accordingly, the Report suggested that the father-in-law is liable to maintain his daughter-in-law, if her husband, though alive, is unable to do the same, on account of physical or mental disability, disappearance, or renunciation of the world.

'Maintenance' as discussed in case laws

• Rajnesh v. Neha, AIR 2021 SC 569: In this case, the respondent wife left her matrimonial home after the birth of her son, and applied for maintenance under S.125 of the CrPC. In 2015, she was allocated an amount of Rs. 10,000, but by 2021, this amount was deemed inadequate in light of higher expenses being incurred for her son's education. The husband argued that his income was insufficient to bear these expenses, but the wife contended that he was concealing his true income from the Court and diverting the same to his family members. In this factual background, the Supreme Court laid down detailed guidelines relating to aspects of maintenance in matrimonial matters, including criteria on how to determine quantum of maintenance and how to enforce orders of maintenance. Some of the key guidelines are as follows:
  • With respect to issue of overlapping jurisdiction, i.e. if a Hindu wife claims maintenance under the Hindu Adoptions and Maintenance Act, and and also in a substantive proceeding for dissolution of marriage, or restitution of conjugal rights, under the Hindu Marriage Act, the Court held that the party would not be precluded from approaching the Court under one or more enactments, since the purpose of relief under each Act is distinct and independent. However, this could lead to the multiplicity of proceedings. Therefore, it was held that if in a previous proceeding, for instance, under S.125 of the CrPC, an amount is awarded towards maintenance, if maintenance is sought again in subsequent proceeding filed for dissolution of marriage under a personal law, the payment awarded in the earlier proceeding must be taken note of. It is also mandatory for the applicant to disclose the previous proceeding and the orders passed therein.
  • The interplay between Hindu Marriage Act and Hindu Adoptions and Maintenance Act: S.24 of the Hindu Marriage Act provides for maintenance pendente lite, where the Court may direct the respondent to pay the expense of the proceeding, and pay a reasonable monthly amount to the petitioner, having regard to the income of both parties. S. 25 provides for the grant of permanent alimony. S.18 of the Hindu Adoptions and Maintenance Act also provides that a Hindu wife shall be entitled to be maintained by her husband during her lifetime, even if she resides separately. The distinction between these provisions lies in the fact that S.24 and S.25 of the HMA are to be resorted to by a party in the evWent of a divorce, judicial separation or case of restitution of conjugal rights. Moreover, the provisions of the HMA are available to both husbands and wives, but under S.18 of the HAMA, only a wife may seek maintenance. Moreover, a wife's claim to maintenance cannot be agitated under the HMA if her marital status is not being affected, leaving the HAMA to provide for her remedy.
  • With respect to the payment of interim maintenance: The Court noted how the third proviso to S.125 of the CrPC provides that proceedings for interim maintenance, as far as possible, need to be disposed of within 60 days from the date of service of notice on the contesting spouse. However, despite statutory provisions stipulating this period, several such applications continue to remain pending in courts for years. To curb this issue, the Court proposed a few measures:
    • The Court noted how interim maintenance is decided on the basis of pleadings, where parties submit scanty material with insufficient details, making it difficult for courts to make objective assessments for grant of interim maintenance. To deal with this, the Court mandated that a party claiming maintenance, who can be a spouse or a partner in a live-in relationship, needs to file a concise application, along with an Affidavit of Disclosure of Assets and Liabilities mandatorily.
    • If the respondent willfully delays filing the Affidavit, the time period for which is within 4 weeks from the filing of the original application, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence, and decide the application for maintenance on the basis of the pleading and Affidavit filed by the applicant. However, this format may be modified by the concerned Court, if the exigencies of a case require the same.
  • Criteria for determining the quantum of maintenance: With respect to this, the Court held that there is no straitjacket formula. However, some of the relevant factors that would be considered are as follows:
    • The reasonable needs of the wife and dependent children
    • Whether the applicant is educated and professionally qualified
    • Whether the applicant has any independent source of income
    • Whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home
    • Whether the applicant was employed prior to her marriage
    • Whether the applicant was working during the subsistence of her marriage
    • Whether the applicant was required to sacrifice her employment opportunities to nurture the family and rear children
    • The reasonable costs of litigation
    • The financial capacity of the husband, the reasonable expenses for his own maintenance and whether there are other dependent family members whom he is obliged to maintain under the law

All in all, the maintenance amount awarded must be reasonable and realistic, such that it is neither too extravagant, thus oppressing the respondent, nor is it too meagre, that drives the applicant to penury.

Cases relating to S.125 of the CrPC:

• Sunita Kachwaha v. Anil Kachwaha, AIR 2015 SC 554 - in this case, the Supreme Court held that a wife cannot be denied maintenance under S.125 of the CrPC merely on the ground that she has a source of income.
• Ram Chandra Giri v. Ram Suraj Giri - A minor filed a petition under S.125 of the CrPC, seeking maintenance from his father, who had neglected to take care of him. The father contended that the son was physically and mentally able and hence, had the ability to provide for himself. The Court rejected this contention and stated that the potential to earn could not be applied to shirk off the obligation to maintain minor children.
• S.P.S. Balasubramanyam v. Suruttayan Andalli Padayachi, 1994 SCC (1) 460 - In this case, the Supreme Court held that partners in a live-in relationship, to whom the presumption of marriage is attached under S.114 of the Evidence Act, and consequently are treated akin to married couples, can claim maintenance under S.125 CrPC. The same right to maintenance was upheld for partners in live-in relationships, under the Protection of Women from Domestic Violence Act, 2005, in Lalita Toppo v. State of Jharkhand. It was held that a man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such a marriage. A broad and expansive interpretation must be given to the term "wife," to include even those couples who have been living together for a reasonably long period of time, without strict proof of marriage.
• Divyananda v. Jayarai - In this case, two Roman Catholics entered a Suryamaryadhai form of marriage (a type of marriage practised in Tamil Nadu, recognised under the Hindu Marriage Act) and lived together as husband and wife for a period of 5 months, during which period the wife conceived a child. The wife later claimed maintenance from her husband under S.125 of the CrPC, but the Court held that she was not a legally wedded wife. Her being a Christian and marrying in accordance to Hindu customs, without converting to Hinduism, made the marriage void ab–initio. However, it was held that her children, although illegitimate, would be entitled to maintenance under S.125.
• Badshah v. Urmila Badshah Godse, Cr. A. No. 19530/2013 - In this case, the Supreme Court held that victims of a bigamous marriage are entitled to maintenance under S. 125 CrPC. For instance, if a man deceitfully marries a woman, withholding information about an earlier, existing marriage, he is obliged to pay the woman maintenance under S. 125.
• Mohd. Abdul Samad v. State of Telangana, 2024 SCC OnLine SC 1686 - the Supreme Court affirmed that S.125 CrPC applies to all married women, irrespective of their religion. For Muslim women married under Muslim personal laws, this remedy exists alongside the remedies available under the Muslim Women Act, 1986, as the latter is not in derogation of the former. If a Muslim woman opts for a remedy under 125 CrPC, then an order passed under the 1986 Act shall be taken into consideration, as per S.127(3)(b) of CrPC.

Cases relating to maintenance under Hindu laws:

• Mangala Bhivaji Lad v. Dhondiba Rambhau Aher, AIR 2010 Bom 122 - A second wife is not entitled to maintenance under the provisions of the Hindu Marriage Act and the Hindu Adoptions and Maintenance Act. In such a case, inherent powers of the Court cannot be used to entitle her to maintenance, because inherent powers cannot be exercised to circumvent statutory provisions. They can only be exercised in the absence of statutory provisions.
• Dayali Sukhlal Sahu v. Anju Bai Santosh Sahu, AIR 2010 Chhat 80 - Under Section 19 of the Hindu Adoptions and Maintenance Act, a father-in-law is obliged to maintain his widowed daughter-in-law, if the daughter-in-law is unable to maintain herself from the estate of her parents. For this purpose, the parents of the daughter-in-law must be heard, by being made parties to the suit.
• D. Krishna Prasada Rao v. K. Jayashri, AIR 1986 AP 126 - S. 20 of the Hindu Adoptions and Maintenance Act casts an absolute obligation on a parent to maintain their child, though it purports to preserve a child’s right to claim maintenance. Therefore, in a claim for maintenance, the burden is on the parent to establish that there was no default on their part to provide for the child. In this case, a man had set up a family in a town and shifted to his native village later on, assuming that his wife and children would not join him there. The omission of the father in taking steps to bring the children to the village or sending money to them for maintenance established default on his part, attracting the liability under S. 20.
• D. Thimmappa v. R. Nagveni, ILR 1976 Kant 250 - In this case, the issue discussed was whether maintenance could be given to a child under S.26 of the Hindu Marriage Act, on an application field by the wife under S.25 of the Act, even if no specific mention of S.26 is made in the wife’s plea. The Court held that even in the absence of a formal application to seek maintenance for the child, when the wife pleads for maintenance and has children, maintenance granted to her would have to include maintenance for her children, which would otherwise render the order for maintenance meaningless. However, in Dalli Ram v. Taravati and Sumathi v. R. Sharavanakumar, the Bombay and Madras High Courts respectively dismissed the earlier view, holding that the requirement of a separate, formal application under S. 26 of the Hindu Marriage Act was mandatory.

Cases relating to maintenance under Muslim law:

• Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 - This is a landmark case, determining a Muslim woman’s right to claim maintenance. The appellant, a Muslim, drove the respondent, his wife, out of their matrimonial home in 1975. The respondent filed a petition under S.125 CrPC claiming maintenance at the rate of Rs. 500 per month. In 1978, the appellant divorced the respondent and argued that consequently, she ceased to be his wife and hence, was not entitled to maintenance from him. The husband’s appeal was dismissed by the Supreme Court, holding that it would be open to the respondent to make an application under S. 127(1) of CrPC for increasing the amount of maintenance granted to her, on proof of a change in circumstances. Most importantly, the Court held that S.125 was applicable to all, irrespective of their religion, since the section contains no limitations to justify the exclusion of Muslim women. Additionally, in Bai Tahira v. Ali Hussain Fissali, it was held by the Supreme Court that if the amount of mehr (dowry) paid at the time of divorce to a Muslim wife is adequate to sustain her throughout her lifetime, then an order of maintenance passed in her favour under S.125 CrPC, ought to be cancelled, as per S. 127(3) of the CrPC. However, in Shah Bano’s case, the Supreme Court reversed this view, holding that irrespective of the amount of mehr paid to a wife at the time of divorce, an order of maintenance passed in her favour cannot be cancelled under S.127(3)(b) of the CrPC. Following this judgement, fierce opposition was staged by orthodox Muslim groups, leading to the Parliament introducing the Muslim Women (Protection of Rights on Divorce) Act, 1986, whereunder alternate remedies were provided to Muslim women. As per the S.5 of the Act, a Muslim woman could seek maintenance under S. 125, only if her husband consents to it and the two file an affidavit or declaration in court to that effect.
• Danial Latifi v. Union of India, AIR 2001 SC 3958 - A divorced Muslim woman who has not remarried and is unable to maintain herself, even after the expiry of the iddat period, can proceed under S. 4 of the Muslim Women Act to seek maintenance from her relatives, in proportion to the properties they will inherit from her on her death. If the relatives are unable to pay maintenance, the Court may direct the State Wakf Board to pay maintenance as per the Act.

Comparatives in international jurisdictions:

In the USA, alimony can be paid by either the wife or the husband in support of the other, after the US Supreme Court ruled that only compelling the husband to pay alimony violates the equal protection clause under the 14th Amendment of the US Constitution.

In Australia, the Family Law Act, 1975 sets out, under Sections 160 to 169, the basic responsibility of one of the parties to a marriage to contribute in support of the other. Some of the factors considered while determining the grant of maintenance are the nature of the parties to the marriage, their post-marital relationships, their financial situations, prospects of employment and their parental obligations to children born out of the marriage.

In Ireland, maintenance is provided to both spouses and children. Children in Ireland may be considered dependent up to the age of 23. However, not all children between the ages of 18 and 23 are considered as dependent, and legal perception of the child's needs and situation are taken into consideration. Maintenance paid to a spouse can be made to the serve not only the needs of the spouse, but that of their dependent children as well.

International Instruments relating to 'maintenance'

The Hague Conference, 1893 was the first authority to focus primarily on issues of private international law, including the issue of maintenance of family members across different legal system. India is a signatory to the "Hague Convention on the Law Applicable to Maintenance Obligations in Respect of Children" of 1967 and the "Convention on the Law Applicable to Maintenance Obligations" of 1973. These were clubbed together to form the "Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance" and the "Protocol on the Law Applicable to Maintenance Obligations," both coming into force in 2007. These instruments deal with maintenance obligations towards children below the age of 21 years, and spousal support to raise children.

The UN Charter implicitly provides for principles regarding maintenance. The Charter's foreword stipulates the need "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women." Art. 1 outlines the need to promote and encourage respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Likewise, Art. 13 also provides that the General Assembly shall promote international cooperation in economic, social, cultural and educational matters and assist in the realisation of human rights.

Notwithstanding this, the Convention on the Political Rights of Women, 1952, Convention on the Consent of Marriage, Minimum Age of Marriage and Registration of Marriages, 1962 are some instruments that mention the need for maintenance support. The UN Convention on the Recovery Abroad of Maintenance, 1956, deals inter alia with maintenance claimed by a claimant form a respondent living abroad.

The UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979 is another significant instrument that India is a signatory to. The CEDAW mentions that irrespective of marital status, men and women have equal human rights and fundamental freedoms in political, social, cultural, civil and other fields. In Part III, economic and social benefits are listed as non-discriminatory agenda under Art. 12, which can be said to cover the concept of maintenance.

Additionally, the Special Commission on the Status of Women, 1946 was initiated to assist the UN's Economic and Social Council (ECOSOC) in promoting the rights of women, including researching on various aspects of maintenance, such as providing for the upbringing of children and maintenance of family members by virtue of parental and spousal relations.

On the other hand, the UN Convention on the Rights of Child, 1990, mandates the need to maintain of children. The following are the key aspects of maintenance focused on:

• The safety and health of the children
• The survival and development of children
• The upbringing of children with the best facilities
• Protection of children form negligent treatment, violence, abuse, hurt and mistreatment
• Special protection and care of children by governments, if their families are unable to look after them.
• The children's right to education

Considering that the concept of maintenance was heralded in the first place to prevent vagrancy and protect persons who are unable to support themselves, it can be said that these international instruments provide sufficient backing for this concept. By virtue of Art. 51 of the Constitution, India has incorporated several of these principles in its own legislative and judicial system.