Right to maintenance and the legal provisions

As nuclear families replace the older joint-family system, the mutual support that once cushioned spouses and children through difficult times has thinned. When a marriage breaks down and ends in divorce or separation, the law steps in to ensure that a dependent spouse, children and elderly parents are not left destitute. That financial support is what the law calls maintenance.

What maintenance means

Maintenance is the allowance one person is legally bound to pay to support a spouse, child or parent who cannot support themselves. The word “alimony” comes from the Latin alimonia, meaning sustenance. In Indian practice, a court can order interim maintenance (paid pendente lite, that is, while the case is pending) as well as permanent maintenance after the matter is decided. The purpose of these provisions is the prevention of vagrancy and destitution, and they are consistent with Articles 15(3) and 39 of the Constitution of India (see Bala Nair v. Bhavani Ammal, 1987 Cr.L.J. 399).

In deciding how much to award, a court weighs the income, assets and standard of living of the person liable to pay against the needs, income and status of the person claiming maintenance. As a benchmark, the Supreme Court in Kalyan Dey Chowdhury v. Rita Dey Chowdhury (2017) treated roughly 25% of the husband’s net salary as a reasonable figure, though the court ultimately decides on the facts of each case.

Maintenance under the Hindu Marriage Act, 1955

Under the Hindu Marriage Act, 1955, either spouse may seek relief:

• Section 24 allows the court to order maintenance pendente lite and the expenses of the proceedings to the spouse who has no independent income sufficient to support themselves and to meet the legal costs.
• Section 25 empowers the court to grant permanent alimony and maintenance at the time of, or after, passing any decree, payable as a lump sum or by periodic payments.

Maintenance under the Hindu Adoptions and Maintenance Act, 1956

Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA) gives a Hindu wife the right to be maintained by her husband during her lifetime. A wife may live separately and still claim maintenance on specified grounds, for example if the husband keeps another woman in the house or lives with a mistress, deserts her, treats her with cruelty, or has converted to another religion. She loses this right if she is unchaste or has herself converted.

Maintenance under Section 144 BNSS, 2023

A quick, secular remedy is available under Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (formerly Section 125 of the Code of Criminal Procedure, 1973), which replaced the CrPC on 1 July 2024. It allows a wife (including, on settled law, a divorced wife who has not remarried), children and parents who are unable to maintain themselves to claim maintenance from a person with sufficient means, regardless of religion. There is no upper monetary ceiling on the award; the old Rs 500 cap was deleted in 2001.

A wife is not entitled to maintenance under this provision if she is living in adultery, if she refuses without sufficient reason to live with her husband, or if the couple are living separately by mutual consent. An applicant may file a fresh petition for enhancement whenever circumstances change, and the court can revise the order accordingly. While a spouse may also file a civil suit for maintenance, this provision exists to secure relief as quickly as possible.

Maintenance under the Domestic Violence Act, 2005

Section 20 of the Protection of Women from Domestic Violence Act, 2005 lets a Magistrate direct the respondent to pay monetary relief to an aggrieved woman and her children. This can cover loss of earnings, medical expenses, loss caused by destruction or removal of property, and maintenance for the woman and her children, including an order that runs in addition to any maintenance ordered under Section 144 BNSS.

Maintenance of parents and senior citizens

Adult children and certain relatives also owe a duty of support to elderly parents. Besides Section 144 BNSS, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 provides a simple, low-cost forum: a senior citizen or parent unable to maintain themselves can apply to a Maintenance Tribunal, which can order children or heirs to pay a monthly allowance.

If you need any further information or clarification in this regard, please feel free to contact us or post your queries on our website where one of our exclusively appointed legal experts will help you more.