Maintenance of Wife under Hindu and Muslim Law: Comparative Study

The whole concept of maintenance was introduced in order to see that if there is a spouse who is not independent financially than the other spouse should help him/her in order to make the living of the other person possible and independent. Providing maintenance means that the other person who is getting the maintenance should be able to live the life as he or she lived before marriage in case of divorce and in case where the two partners are not living together and they seek maintenance than the spouse getting maintenance should be able to live a life as when they lived together. Maintenance is the amount which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances. At this point of time I would also like to mention that according to my understanding maintenance not only includes basic necessities like food, clothing and residence but it also includes the things necessary for comfort and status in which the person entitled is reasonably expected to live. [1] According to me the main aim of providing maintenance is that the wife should not be left destitute on separation or divorce from her husband. In a laymen’s term maintenance are those things which are indispensible for the survival of human being.

The most important aspect of maintenance is that the party which relies on maintenance has no independent source of income to support himself/herself. The main point we have to focus on in independent income. Should the spouse who is claiming maintenance have movable or immovable property, the spouse can still claim maintenance if the property does not yield any income.

The quantum of maintenance and the expenses of the proceedings have not been specified in any of the Indian Matrimonial statutes except the Divorce Act. The court can fix the maintenance at any amount, depending on its discretion. When deciding the quantum of maintenance to be awarded, the court takes into account the income of both parties, their status and other circumstances. When the wife applies for maintenance, the onus is on the husband to declare his income.

The persons who are entitled to maintenance under the Hindu Adoptions and Maintenance Act (HAMA), 1956 are wife, widowed daughter-in-law, children, aged parents and dependants as enumerated in Section 21 of the Act. [2] Whereas, under the Muslim law, the persons entitled to maintenance are wife, young children, the necessitous parents, and other necessitous relations within the prohibited degrees. [3] The Muslim Law of maintenance is based on the Muslim personal laws and the law enactments such as the Indian Majority Act, 1875, the Criminal Procedure code 1973, Muslim Women (Protection of Rights on Divorce) Act, 1986.

Types of Maintenance

There are two types of maintenances:-

(1) Interim maintenance and maintenance pendente lite

(2) Permanent maintenance

The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the petitioner. And maintenance pendente lite is for providing the litigation expenses to the claimant. Interim maintenance is the amount that is paid by the financially independent spouse to their counterpart during the pendency of the proceedings in the matrimonial cause and which covers the expenses of the proceedings as well as the other expenses of the spouse during the course of the proceedings. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. The provision is silent on the quantum of maintenance and it is upon the discretion of the court to determine the quantum.

Section 24 provides of Hindu Marriage Act, 1955 (HMA) provides for maintenance. It talks about how either the wife or the husband can claim for interim maintenance. The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the petitioner. And maintenance pendente lite is for providing the litigation expenses to the claimant.

Interim maintenance can be claimed either by the husband or the wife, under the Hindu Marriage Act and the Parsi Marriage and Divorce Act and is called “Alimony Pedente Lite." Under all other statutes, the wife is the only spouse who can claim it. [4] Section 36 of the Divorce Act of 1869 says that the wife may file a petition for interim maintenance, regardless of who instituted the suit and whether the wife obtained an order for protection. It also says that the petition for the expenses of the proceedings and alimony pending the suit should be disposed of within sixty days of the service of the petition on the husband.

Permanent maintenance, on the other hand, is the maintenance that is paid by one spouse to the other after the judicial proceedings have resulted in either the dissolution of the marriage or a judicial separation. Section 25 of the act talks about permanent maintenance. It states that how the court can order the respondent to pay the applicant for her or his maintenance a gross sum or a monthly or periodical sum for a term not exceeding the life of the applicant unless there are changes in circumstances under which the court can change its order.

MAINTENANCE UNDER HINDU LAW

The right of maintenance under Hindu law is very old and it was one of the basic necessities of the joint family system. According to my understanding the maintenance of the women in the joint family system was an important system and this was followed as a tradition which governed the families. It was the obligation of the head of the family (karta) to look after the women of the family i.e. their wives and their daughters until they were married. Latter when the women grew older it was the duty of their children to mother and other old women of the family. The unchastity on part of the women disentitled them to maintenance. Their remarriage ended the claim and the amount of maintenance depended upon various factors like the status of the family, necessary requirements, wants, age, etc. [5] Section 24 provides of Hindu Marriage Act, (HMA) 1955 provides for maintenance.

Under this Act also, only a wife has a right to claim maintenance. The Hindu husband has a legal obligation to maintain his wife during his lifetime. However, if a wife ceases to be Hindu or lives separately under no legal grounds she looses the right to claim maintenance too. Also, a Hindu wife under this act shall not be entitled to separate residence and maintenance from her husband if she is unchaste or converts to another religion. Wife can claim separate residence only if husband remarries and the other wife stays in the same house.

Under this act (Section 19), a (Hindu) wife after the death of her husband is entitled to be maintained by her Father in-law, provided she has no means of her own earnings. However, the right cannot be enforced if her Father in-law does not have means to do so and if the wife remarries.

The liabilities of a Hindu to maintain others are personal liability and liability dependant on possession of property where the former arises from mere relationship between the parties and the latter arises due to possession of property. [6] 

Maintenance of Wife under Section 18, the Hindu Adoptions and Maintenance Act, 1956

Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her husband for lifetime i.e. she will be given maintenance until she dies or her husband dies. [7] Under section 18 of this Act a Hindu wife is entitled to live separately from her husband without canceling her right to claim maintenance. The grounds under which she can live separately are:-

(1) Husband is guilty of desertion

(2) The Husband has treated her with cruelty

(3) The husband is suffering from a virulent form of leprosy

(4)The husband has any other wife living.

(5) The husband keeps a concubine elsewhere

(6) The Husband has ceased to be a hindu by conversion to another religion and

(7) if there is any other cause justifying living separately

But there are two bars which will prevent a wife from claiming maintenance from her husband i.e. (i) if she is unchaste or (ii) if she ceases to be a Hindu by conversion to another religion.

The wife is entitled to live separately without forfeiting her right to maintenance, if her husband is guilty of desertion, if he subjects the women to cruelty, if he is suffering from a leprosy, if he has any other wife living, keeps a concubine in the house where his wife resides, if he has ceased to be a Hindu, or if there is any other cause justifying her to live separately under Section 18(2) of the HAMA. [8] According to me the exception given in this section according to which a wife cannot claim maintenance if she is converted from some other religion into a Hindu is not right. Now as the wife is related to a Hindu family and if she has married according to the Hindu religion and she is governed by Hindu law than she should not be separated from the rights which other women get as a Hindu lady.

Maintenance of wife under the Section 125 of CrPC:

Under CrPC, only wife (a woman who has been divorced by or has obtained divorce from her husband & hasn’t remarried) can claim for maintenance. A wife who refuses to stay with her husband due to legal grounds such as (bigamy, cruelty & adultery) has the right to special allowance under this act. But a wife does not possess right to claim maintenance if she’s living in adultery or she’s living separately by mutual consent. The various sections of CrPC are criminal in nature and are used for the criminal charges. The Section 125 of the CrPC states the provisions as follows:

“125 Order for maintenance of wives, children and parents.

(1) If any person leaving sufficient means neglects or refuses to maintain-

(a) His wife, unable to maintain herself, or

(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself,

or, (d) His father or mother, unable to maintain himself or herself" [9] 

In this section what I find is different according to my knowledge is that the magistrate has the power to give the maintenance from the date of the order and if gives the allowance from the date of filling the application than in that case he has to give reasons as to why he/she is giving the maintenance from the date of the application.

“Also one more interesting and a vague thing which I found during the research on my research paper is that a division of the Bombay High Court which said in its judgment that no maintenance will be granted to the second wife of a Hindu." [10] According to me this is one of the vaguest judgments I have read during the one and half years of my law school. I would like to critise this judgment on the basis that this judgment is in a way differentiating amongst women and also there is an angle of gender bias to this judgment. I am saying this on the fact that if the women are the second wife of a Hindu than it is not her fault and in case she is completely financially dependent on the husband than what does she have to do to survive. I think this judgment will is not good socially for the benefit of the society as a whole.

Award of maintenance to wife under Section 23(2):

Section 23 of the HAMA, 1956 clarifies or defines the people who get maintenance and how much of maintenance i.e. the amount they can get keeping in mind the various things. The court in the case of awarding maintenance has the authority to give the maintenance after analyzing various factors. The factors which are considered by the court according to section 23(2) and section 23(3) are:

“(2)a)the position and status of the parties. 

(b)the reasonable wants of the claimant 

(c)if the claimant is living separately, whether the claimant is justified in doing so, 

(d)the value of the claimant’s property and any income derived from such property, or from the claimants. 

(e)the number of persons entitled to maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to - 

(3)In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to - 

(a)the net value of the estate of the deceased after providing for the payment of his debts. 

(b)the provisions, if any, made under a will of the deceased in respect of the dependant. 

(c)the degree of relationship between the two. 

(d)the reasonable wants of the dependants. 

(e)the past relations between the dependant and the deceased. 

(f)the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other source. 

(g) the number of dependants entitled to maintenance under this Act." [11] 

The court awards maintenance to the wife considering various factors into consideration like status and position of the parties, wife’s wants, the value of wife’s property and income if any, derived from that property and the number of persons entitled to maintenance. The section says that the maintenance is given on the basis of the decree of relation between the two partners. I don’t understand how the court can determine the decree of the relation between a husband and wife, I think the husband and the wife can only determine the decree of the relationship between and the court has no idea and no statue can define a relation. Also say in case if there is some misunderstanding between the husband and the wife and the wife deserts the husband. The husband still loves the wife and if the wife does not come back than what is the decree of the relation between the two according to the court?

Maintenance under Muslim Law

Muslim Law passively considers male to be superior to the woman. It is believed that a man can take care of himself whereas the woman cannot, in other words it is deduced that a woman cannot be self reliant. Hence, in Muslim law the wife has been bestowed with an absolute right to be maintained and the husband is bound to maintain her regardless of the fact whether she’s poor or not. Wife’s right to maintenance is a debt against the husband.

In muslim law, wife is preferred over all the other persons (even the young children & other necessitous relations). However, the woman’s right and husband’s obligation exists only if the wife remains faithful to her husband and obeys all his reasonable orders.

Nonetheless, the wife does not loose the right to maintenance if she refuses access to her husband on legal grounds such as her illness or if the marriage cannot be consummated i.e. cannot be concluded by the sexual intercourse because of her old age, illness, his minority or faulty organ. However if the wife being too young for sexual intercourse, lives with her parents, she does not possess any right for maintenance.

The wife also possess the right to claim maintenance on the account of a pre/ante- nuptial agreement i.e. maintenance in the event of ill treatment. Along with this, the wife also gets the privilege of being entitled to a special allowance called Kharch-i-pandan, guzara under such agreement. Muslim law provides provisions for the right to maintenance if the wife stays separately due to cruel behavior or non-payment of prompt dower. But a wife cannot claim any maintenance during widowhood or Iddat because of her entitlement to inheritance.

Prior to the landmark judgment of Supreme Court in Shah Bano case, Divorced Muslim women did not have right to maintenance. This in the point of fact handicapped the situation of Muslim women as the husband according to Muslim law possesses the Authority to divorce from his wife whenever he wants whereas the woman lack this right. Hence, the said case led to the enactment of Muslim women (protection of rights on divorce) Act, 1986 which enables a divorced Muslim to have a reasonable and fair provision of maintenance from her husband and from the relatives who are entitled her property after her death after Iddat.

The right to maintenance of Muslim sons is governed by CrPC 1973 and by CrPC 1973 & Muslim women act, 1986 for Muslim daughters. The Muslim children are entitled to maintenance for the period till they gain majority or are able to maintain themselves (Section 125, CrPC). In the case of daughters, they possess the right to maintenance till they get married and two years post- marriage.

Maintenance of Muslim Women under Section 125 of the CrPC, 1973

Section 125 of the CrPC is basically secular in nature. Due to the secular nature of this act this does not affect the various personal laws and also the personal laws do not affect this section. If any Muslim women seek compensation under the section 125 and she will be awarded maintenance by the respected court only if she is not remarried. “If the wife exercises her right under the Muhammadan Law and refuses to live with her husband on the ground of non-payment of dower, cannot enforce her right to maintenance under this act." [12] The Muslim women in case if she is granted maintenance will be in the form of the monthly allowances.

In the Mohd Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C 556, there was a Muslim women who was divorced by her husband when she was 68 years old and was the mother of five children. She filled a case in the court for granting of maintenance by the court. She was given maintenance by the Supreme Court under section 125 of the CrPC even after the iddat period was over. Under the Muslim personal law a divorced women could be awarded maintenance only during the iddat period and not latter. In case if she wants maintenance than she will have to be given maintenance by the other relatives according to the Muslim personal law. This judgment of awarding maintenance to Muslim women under section 125 of the CrPC which is a secular section of the law was widely critised by the Muslim community throughout the country. The Supreme Court had its following judgment in the case:

“The Supreme Court of India mitigated the effect of Muslim laws that limited the maintenance payable to a divorcée. It held that, regardless of any previous payment of maintenance by a divorced man to his former wife during her iddat period and payment of her mahr, a former wife could still seek additional maintenance from her ex-husband under Section 125 of the CrPC, which permits courts to order maintenance payments for financially destitute women. In its decision, the Court quoted certain passages from the Qur'an in support of the position that a divorced man has an obligation to materially support his former wife. This decision triggered massive protests amongst conservative Muslim Indians, who viewed the decision as a deliberate attempt to undermine "their" personal laws and were outraged that a secular court tried to support its decision with references to the Qur'an. Fundamentalist Muslim leaders even pressured Shah Bano, to withdraw her support for the Court's decision in her favor. Despite acclaim for the decision from women's rights advocates, including from some Muslim women's groups, many Muslim leaders lobbied for legislation to overturn the Court's decision. As a result, without any consultation with either women's groups or moderate Muslim leaders, the national government hastily passed the Muslim Women Act of 1986, which limited a Muslim man's duty to pay maintenance to his former wife to her iddat period." [13] 

Maintenance under the Muslim Women Act, 1986

After the historic judgment of the Shah Bano case, what followed the judgment were the critics of the outcome of the judgment of the impact of the judgment on the Muslim personal law. According to the Muslim community if this judgment was accepted than in that case there personal law was suppressed and was superseded by the Hindu law which allowed the women’s right to maintenance life long as there was no iddat period in the Hindus.

The Indian government which was the congress party at that time was under pressure from the Muslim community to bring a law which would overrule this judgment. So the government under the pressure and in order to save its Muslim vote bank brought the law The Muslim Women (Protection of Rights on Divorce) Act, 1986.

According to this act a Muslim women is to be awarded maintenance by her husband only during the iddat period and not after that. But in case if she is financially not independent and needs maintenance than in that case her relatives who would get the share of her property will award her with maintenance. In the scenario where she does not have any such relatives than the State Waqf Board has to pay her the maintenance. So in a way the personal law of the Muslims was saved and the new law prevented any conflict between the two major communities of the country. The divorced wife is also entitled to unpaid dower and all such properties which were given to her during her marriage by her husband, his relatives, friends or her relatives. She also has an option to use the Sections 125-128 of the CrPC, 1973. Finally the cases pending under the provisions Sec. 125-127 shall be disposed by the Magistrate.

Maintenance under Muslim Law in comparison with Hindu law

A Hindu woman is more privileged than Muslim women according to me. I am saying it on the basis that a Hindu woman is entitled to maintenance by her husband throughout her life but in case of Muslim women she is entitled to maintenance by her husband only during the iddat period. The court tried to make both the communities on the same line and tried to provide women of both the communities with maintenance throughout the life. The judiciary tried to provide women of both communities with equal opportunities and rights. But as usual in the case of Indian democracy the congress government bowed in front of the vote bank politics and brought in the ‘The Muslim Women (Protection of Rights on Divorce) Act, 1986.’ This act completely took away the right of the women to maintenance beyond the period of iddat by the husband. Hindu women can ask for award of maintenance under section 125 of the CrPC but in case of a Muslim women she can file a case under the same but will be awarded maintenance under this act only if the husband recognizes this in a way.

The laws of the Muslims are considered to be old. Also this is recognized by the Muslim community there need some kind of reformation but in actual there are no reformations on the ground. Same is the case with the Hindu law the religious leaders do recognize the need for reformation but they are still sticking with the old traditions which are discriminatory in nature. The Muslim women face much more discrimination as compared to the other women of our country (India). Also one more thing which according to me makes the Muslim women much more disadvantaged is that they are the member of the minority community of the country and relatively belong to the poor sections of the society.

IS UNIFORM CIVIL CODE THE SOLUTION

The Indian constitution provides an article for the Uniform Civil Code. The founding fathers of the constitution made the constitution in such a way keeping in mind the diversity of the country and the need for a Uniform Civil Code. But the Uniform Civil Code has not yet been adopted due to the opposition from a major section of the minorities in the country mainly the Muslim community.

The Muslim community opposes the whole idea of UCC because they believe that if the UCC rules are made than in that case the Muslims laws and traditions will not be considered and the Hindu laws and tradition would take over their personal laws. Also one more argument which comes in forward whenever there is talk of the UCC is that the Muslim laws are not so much moderate as compared to the Hindu laws so in a way in order to modernize the whole state and the society of the India by bringing the UCC to provide equality the Hindu law being considered modern will supersede the Muslim personal law.

In my view bringing the UCC in action will be a good thing. But the UCC should be flexible in nature i.e. it should not overtake the personal laws of any religion. Also the individuals should be given choice so as to whether they want to follow the personal laws or the UCC. I would like to illustrate by giving a very simple example, say for example a couple is given a choice so as to marry under their personal law or under the UCC. If they marry under the personal law then in case of a divorce and maintenance they should be dealt with their religious law but in case they choose the UCC they should be dealt with the UCC. So in a way the formation of the UCC would be in such a way keeping in mind that more number of people would follow and adopt for UCC only if the UCC is not violating any ones personal laws and is practically secular in nature.

Conclusion

After reading and going through various sources of the personal laws, I feel that the Hindu law is much more clearly defined and gives much more rights to women in comparison to the Muslim law. Providing maintenance means that the other person who is getting the maintenance should be able to live the life as he or she lived before marriage in case of divorce and in case where the two partners are not living together and they seek maintenance than the spouse getting maintenance should be able to live a life as when they lived together. Maintenance is the amount which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances.

If we read the Shah Bano case we could see that the Muslim and the Hindu women were on the same side. But latter when the government passed The Muslim Women (Protection of Rights on Divorce) Act, 1986 the Muslim women were again seen to be more unprivileged than the Hindu women. But latter the court in the Daniel Latify judgment said that the Muslim women can also be awarded the same maintenance as Hindu women for life time. Therefore according to my understanding or according to my knowledge I would say that both the Hindu and the Muslim women are in the same place in case of awarding the maintenance.

Law of maintenance is personal as well as legal in character and arises from the very existence of relationship between the parties.

From the above discussion, it can be concluded that Law of maintenance with no doubts is inclined towards the females in both the structures whether it be Hindu Law or Muslim Law. Women have been bestowed with many more privileges in comparison to men and husbands have been granted a lot more of responsibilities and obligations. Although the given laws may sound unjust to a few but pragmatically they seem to be correct as in our country even till date women do not have the social status equal to that of men. Hence, it won’t be incorrect to extrapolate that Law makers while formulating these provisions must have kept in mind the situation of the women in the patriarchal society of India. The women of both the communities are suffering due to being poor, being women and than being a part of the patriarchic society.