Maintenance of wife|Husband doesn’t have to pay maintenance in each of the proceedings under different Maintenance laws [Explainer on Supreme Court guidelines]

[Note: This report is a detailed analysis of Supreme Court’s judgment in Rajnesh v. Neha*. To read the guidelines and directions issued by the Court, click here.]

Supreme Court: The bench of Indu Malhotra** and R. Subhash Reddy, JJ has framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

The directions came in a case which revealed that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and there have been difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.

Legislations dealing with the issue of maintenance

The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954, Section 125 of the Cr.P.C. ,1973; and the Protection of Women from Domestic Violence Act, 2005 which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities. Further, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 1956 , and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 by invoking Sections 24 and 25 of the said Act.

The different enactments provide an independent and distinct remedy framed with a specific object and purpose. In spite of time frames being prescribed by various statutes for disposal of interim applications, in practice that in a vast majority of cases, the applications are not disposed of within the time frame prescribed.

Special Marriage Act, 1954

  • Section 36 of this secular legislation, applicable to all persons who solemnize their marriage in India, provides that a wife is entitled to claim pendente lite maintenance, if she does not have sufficient independent income to support her and for legal expenses. The maintenance may be granted on a weekly or monthly basis during the pendency of the matrimonial proceedings. The Court would determine the quantum of maintenance depending on the income of the husband, and award such amount as may seem reasonable.
  • Section 37 provides for grant of permanent alimony at the time of passing of the decree, or subsequent thereto. Permanent alimony is the consolidated payment made by the husband to the wife towards her maintenance for life.

Hindu Marriage Act, 1955

  • Sections 24 and 25 make provision for maintenance to a party who has no independent income sufficient for his or her support, and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. The prerequisite is that the applicant does not have independent income which is sufficient for her or his support, during the pendency of the lis.
  • Section 24 of the HMA provides for maintenance pendente lite, where the Court may direct the respondent to pay the expenses of the proceeding, and pay such reasonable monthly amount, which is considered to be reasonable, having regard to the income of both the parties. The proviso to Section 24 providing a time line of 60 days for disposal of the application was inserted vide Act 49 of 2001 w.e.f. 24.09.2001.
  • Section 26 of the HMA provides that the Court may from time to time pass interim orders with respect to the custody, maintenance and education of the minor children.

Hindu Adoptions & Maintenance Act, 1956

HAMA is a special legislation which was enacted to amend and codify the laws relating to adoption and maintenance amongst Hindus, during the subsistence of the marriage.

Section 18 provides that a Hindu wife shall be entitled to be maintained by her husband during her lifetime. She is entitled to make a claim for a separate residence, without forfeiting her right to maintenance. Section 18 read in conjunction with Section 23 states the factors required to be considered for deciding the quantum of maintenance to be paid. Under sub-section (2) of Section 18, the husband has the obligation to maintain his wife, even though she may be living separately. The right of separate residence and maintenance would however not be available if the wife has been unchaste, or has converted to another religion.

Distinction between maintenance under HMA and HAMA

  • The right under Section 18 of HAMA is available during the subsistence of a marriage, without any matrimonial proceeding pending between the parties. Once there is a divorce, the wife has to seek relief under Section 25 of HMA.
  • Under HMA, either the wife, or the husband, may move for judicial separation, restitution of conjugal rights, dissolution of marriage, payment of interim maintenance under Section 24, and permanent alimony under Section 25 of the Act, whereas under Section 18 of HAMA, only a wife may seek maintenance.

Section 125 of the Cr.P.C

The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions :

  • the husband has sufficient means; and
  • “neglects” to maintain his wife, who is unable to maintain herself.

In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors.

Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application.

Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days’ from the date of service of notice on the respondent.

Protection of Women from Domestic Violence Act, 2005

The D.V. Act provides relief to an aggrieved woman who is subjected to “domestic violence.”

1.Sections 17 and 19 grant an entitlement in favour of an aggrieved woman to the right of residence in a “shared household”, irrespective of her having any legal interest in the same or not. From the definition of “aggrieved person” and “respondent”, it is clear that :

(a) it is not the requirement of law that the aggrieved person may either own the premises jointly or singly, or by tenanting it jointly or singly;

(b) the household may belong to a joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title, or interest in the shared household; 24

(c) the shared household may either be owned, or tenanted by the respondent singly or jointly.

2. The right to residence u/S. 19 is, however, not an indefeasible right, especially when a daughter-in-law is claiming a right against aged parents-in-law. While granting relief u/S. 12 of the D.V. Act, or in any civil proceeding, the court has to balance the rights between the aggrieved woman and the parents-in-law.

3. Section 20(1)(d) provides that maintenance granted under the D.V. Act to an aggrieved woman and children, would be given effect to, in addition to an order of maintenance awarded under Section 125 of the Cr.P.C., or any other law in force.

4. Under sub-section (6) of Section 20, the Magistrate may direct the employer or debtor of the respondent, to directly pay the aggrieved person, or deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

5. Section 22 provides that the Magistrate may pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence perpetrated by the respondent.

6. Section 26 of the D.V. Act provides that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil Court, Family Court or Criminal Court.

7. Section 36 provides that the D.V. Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force.

Analysis of the issues

(a)Issue of overlapping jurisdiction

The Court noticed that while it is true that a party is not precluded from approaching the Court under one or more enactments, since the nature and purpose of the relief under each Act is distinct and independent, it is equally true that the simultaneous operation of these Acts, would lead to multiplicity of proceedings and conflicting orders. This process requires to be streamlined, so that the respondent/husband is not obligated to comply with successive orders of maintenance passed under different enactments.

“It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding.”

The Court, hence, directed that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.

[Read detailed guidelines and directions here]

(b) Payment of Interim Maintenance

At present, the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of interim maintenance.

“While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.”

It was hence directed that the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

Apart from this the Court also directed that in the first instance, the Family Court in compliance with the mandate of Section 9 of the Family Courts Act 1984, must make an endeavour for settlement of the disputes.

For this, Section 6 provides that the State Government shall, in consultation with the High Court, make provision for counsellors to assist a Family Court in the discharge of its functions. Given the large and growing percentage of matrimonial litigation, it has become necessary that the provisions of Section 5 and 6 of the Family Courts Act are given effect to, by providing for the appointment of marriage counsellors in every Family Court, which would help in the process of settlement. If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.

[Read detailed guidelines and directions here]

(c) Criteria for determining quantum of maintenance

The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

“The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.”

For determining the quantum of maintenance payable to an applicant, the factors which would weigh with the Court inter alia are

  • the status of the parties; reasonable needs of the wife and dependant 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 she was working during the subsistence of the marriage; etc.
  • the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living.
  • On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years as she would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job.
  • In case where the wife is working, it cannot operate as a bar from being awarded maintenance by the husband. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
  • The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular/coaching classes, and not an overly extravagant amount which may be claimed.

“Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.”

  • Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance

The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

[Read detailed guidelines and directions here]

(d) Date from which maintenance is to be awarded

Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.

The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.

[Read detailed guidelines and directions here]

(e) Enforcement of orders of maintenance

Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law.

An application for execution of an Order of Maintenance can be filed under the following provisions :

(a) Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under Section 24 of the Hindu Marriage Act (before the Family Court);

(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and

(c) Section 128 of Cr.P.C. before the Magistrate’s Court.

Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be executable in accordance with the CPC / Cr.P.C.

Section 125(3) of the Cr.P.C provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier

Some Family Courts, however, have passed orders for striking off the defence of the respondent in case of non-payment of maintenance, so as to facilitate speedy disposal of the maintenance petition.

The Court, however, was of the opinion that striking off the defence of the respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.

Hence, it was directed that the order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.

[Read detailed guidelines and directions here]

[Rajnesh v. Neha,  2020 SCC OnLine SC 903, decided on 04.11.2020]


**Justice Indu Malhotra has penned this judgment

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  • If Wife cheating his husband and her love affairs with another boy outside. But i have not prove physically. At that time how to handle this. And in this situation also husband give the maintenance money?

    • Adultery is no more a crime, but you can take divorce on that ground. Regarding maintenance, there are many judgments in favor of the husband but recently there is Madras or Delhi (not sure)HC judgments that the husband has to pay maintenance even if the wife is staying in adultery.

  • Wife is entitled to get maintenance at to same time under both D. V Act and under section 125 crpc
    The question arising in my mind is
    If the husband have burden of other family members as well
    Is not it abusive process of law that he has to pay in both petitions
    Kindly share guidelines and judgments of Honble supreme Court regarding it how to protect the husband from it

  • Can a decision on maintenance be challenged in India ?

  • Wife was suffering from SCHEZO AFFECTIVE DISORDER PRIOR TO THE marriage and perform the marriage by suppressing the fact, which lasts for only 25 days. Now the wife filed a M.C. case on husband.Is it mandatory for the to pay MAINTENANCE to her or any other options for husband not to pay MAINTENANCE please let me know Sir.

  • Hi,

    My sister got married in 2007, Have 2 children. Her Husband is not living with their family and had not come to home since 2017. He didn’t send any money for the children education and my sister is facing hardships.
    Now, he is saying her to take care of her on her own. We didn’t know about his whereabouts. What can we do in this case to claim maintenance from him her mother in law keeps abusing my sister..

    • Firstly, consult a lawyer and explain your problem, you may file a divorce case under 498A(domestic violence) ground and claim maintenance. Try to consult a good lawyer.

      • She should work hard to earn money and maintain herself.
        Husband is not property of wife.
        Stop giving advice of filing fake 498a. Your child will bear the fruits of your bad deed.

  • It is a very appreciable judgement. Thereafter on 15-12-2020 there is another judgement wherein the distinction between the claim of Senior Citizen nAct 2007 and DVACT 2005 has been well elaborated. I have referred both these judgement before the trial court as well appellate court while handling the case under the Domestic violence Act case entrusted to me under the free legal aid, but the Judges are not ready to go in depth of judgement. I have had submitted the written submissions also before the trial court as well the appellate court but without any relief the victim is suffering for the last more than 2 years.
    1)The victim was residing with her in laws having 2 children but after 7years of her marriage her husband committ3ed suicide due to dispute with his own mother. Also his 2children of 4 & 6 years he forced in burning fire to die. The widow has been sent to her parents house so that her grief may lighten to certain extent but when she tried to enter to her matrimonial home shed was not allowed. (A) Her application for maintenance dismissed .(B) Her application for residence dismissed with the observation that it is not safe for her to live with her mother in law.(C)Her application for return of dowry articles/jewellary also dismissed.
    Against the impugned order of maintenance & residence she filed revision before HIgh court in December,2019 but after notice there was covind 19 and still matter is lingering. Mentioning was made and even written submissions made but still the case has not moved further. She is poor victim and has no monetary balance with her to hire a senior advocate but the High court of Pb.& Hr,has still kept her petition without any motion due to covind. Both these judgements of 4-11-20 & 15-12-20 referred in the written submissions but there is need of Lordships like Justice V.Krishanan, Justice Bhagwati or the Lord Denning who may hear her grievances. I have keep the victim still alive with a hope that some relief will be given by the High Court but with the each passing day her frustration is aggravated more.
    In regard to dismissal of her dowry articles application the appeal was filed in July 2020 before the Distt. Court Patiala but still the matter is pending at preliminary stage. Two times arguments on condonation heard by two Judges inspite of fact that condonation of delay granted by SCI as well HC due to pandemic but still the matter is at preliminary stage.
    Even application u/s 340 cr.p,c. filed before trial court patiala as well appellate court patiala for false pleadings of the respondents but the court has not granted any relief till now. The use of 340 cr.p.c. has al,so been emphasised in the SCI judgements 4-11-20 .

  • hi, my marriage held in 2016 and i have 3yrs daughter, due to the some misunderstanding we are living separately and my husband is not taking care of my kid, can i get maintenance for me and for my daughter. Please suggest me.

    • yes you can file for maintainance under section 125(1) crpc.

  • I need a help. I got married in 2001 and he is a central govt employee. Last 2 yrs back due to his violence and having a relation with an other women I came back to my mothers home. I applied a maintainance but still I dint get due to this covid or something. Should I wait till the court starts for my maintainance? I am financially not good . Please help me what to do

    • yes you can file for interim relief under section 125 and that application of interim relief has to be settled in 60 days from date of the service of notice of the application. please consult your lawyer. Please remember while calculating the amount for interim relief your present income will also be covered. so take care of that also before application

  • Nicely written.. very much informative..

  • My marriage held in 1970 when I was 17 year and 6 month old since marrige wife did not lived with me, but after 20 years she applied for maintenance in 1990. in 1995 rs, 200/- hundered per month maintenance were decieded. I have paid it up to 2011. IN faridaBAD court intrememaintenance was decieded Rs. 1000/-pm. After this in 2017 in other order maintenance decieded Rs. 2000/pm. from the date of filing. It is very difficult for me to pay this amount, because I am depend on pension is given by haryana govt. In other way I have challange that order and provide a appeal against the order. Can I get relief from the maintenance burden ,if it is so pl. answer me immediately.
    Since marriage wife is living alone at her maykai, No any relation is made between husband and wife till now, neither I have taken a glass of water from her hand, yet court has bound me to pay the maintenance forcely. Now just tell me that ‘have you any rule in favour of man or say husband’ all the rule and regulation or act and sections are made for women why it means men has no vale in his life, women what soever will say that is rule and true in front of the magistrate.
    Is it right when men is the power of world it is very bad I think so. Now pl. tell me how I can get relief. My age is 69 year old pension holder no source of income.

  • Both husband and wife are employed in Government sector have two adult children. Wife deserted the husband along with the children two decades ago. Father’s (Husband’s) initials in the certificate of the children were removed by the wife after their separation. Wife also removed her surname. Does the children and wife are entitled to claim maintenance from the husband?

  • Yes, if the husband and wife agree mutually agree that they don’t want to get back together, they can file for divorce by mutual consent. Yes, the husband, after the marriage with his first wife is nullified and a divorce is granted, can re-marry.

  • Yes, boy can go for divorce on the desertion ground.
    No, Boy can not do second marriage unless he gets the divorce from previous wife.
    Get the lawyer and communicate with the boy and go for MCD mutual consent divorce if both parties are ready.

  • All on papers only!!!

    Congratulations for the new law but in practice nothing happens ????. Justice, order, judgement is the biggest scam.

  • Hi
    Need an advice of one case.
    What can be done if both the spouse are living seperate n it’s been more than 2 years and a girl is not ready to give divorce even. No communication between both n both don’t interfere in each other’s life.
    Can a boy get a divorce ?
    Can boy do a second marriage under special marriage act 1954 ?
    What is the best solution?
    Pls advice.

    • The same can be done only thing is the boy will have to file a divorce petition in the concerned code mention the time period since both of them were separated and beast upon that a decree of divorce can be claimed on the point of desertion clarity which if agreed by the respondents can directly be converted into divorce by mutual consent

      संघर्ष समूह ग्वालियर
      7879 498 498

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