Maintenance in Divorce Matters: What You Need to Know

In India, marriage is not only a social and cultural institution but also a legal relationship that creates enforceable rights and obligations between spouses. When a marriage breaks down or the parties begin living separately, one spouse may suffer financial hardship, often the economically weaker spouse. To protect dignity and prevent destitution, Indian law recognises the right to claim maintenance. Maintenance is not an act of charity but a legal obligation aimed at ensuring financial support and a reasonable standard of living. In this edition of The Kanoon Angle, we examine the legal framework of maintenance in India—under what laws maintenance can be sought and who can claim it.

Maintainance

The term maintenance has not been uniformly defined under all statutes in India. Broadly, it refers to the legal obligation of a person to provide financial support to those whom the law recognises as entitled to such support, including a spouse, children, parents, and, in certain cases, other dependants. The object of maintenance is to ensure that such persons are able to meet their basic needs and live with dignity.

Notably, The Hindu Adoptions and Maintenance Act, 1956 is the only statute that expressly defines the term. Under Section 3(b), "maintenance" includes provision for food, clothing, residence, education, and medical attendance and treatment, and, in the case of an unmarried daughter, also includes the reasonable expenses incidental to her marriage.

Who can claim maintainance and under which law?

Maintenance is a common legal right, not limited to wives alone. Depending on circumstances, it can be claimed by:

• Wife

• Husband (in limited cases)

• Children

• Parents

• Certain dependants

The applicable law varies depending on the relationship and facts of each case.

Maintenance for Wife

A wife has a legal right to claim maintenance from her husband during marriage, after separation, or even after divorce. The law recognises that she should not be left without financial support to meet her basic needs, such as food, clothing, shelter, medical care, and other essential expenses. A wife can claim maintenance under different laws depending on the nature of the marriage, the circumstances of the case, and the relief sought. The major laws are:-

• Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 – A secular remedy available irrespective of religion to prevent destitution.

• The Protection of Women from Domestic Violence Act, 2005 – Provides monetary relief and maintenance to women facing domestic violence.

• The Hindu Marriage Act, 1955 – Provides for interim maintenance during matrimonial proceedings and permanent alimony after the conclusion of the case.

• The Hindu Adoptions and Maintenance Act, 1956 – Recognises a Hindu wife's independent right to claim maintenance in specified circumstances.

• The Special Marriage Act, 1954 – Provides maintenance for spouses married under the Act.

• The Indian Divorce Act, 1869 – Governs maintenance in matrimonial disputes involving Christians.

• The Parsi Marriage and Divorce Act, 1936 – Contains provisions relating to maintenance and permanent alimony for Parsis.

• The Muslim Women (Protection of Rights on Divorce) Act, 1986 and principles of Muslim personal law – Govern maintenance rights of Muslim women in appropriate cases.

Maintenance of Children

Indian law gives strong protection to children by ensuring that their basic needs are met by their parents. Maintenance for children is mainly governed by the following laws:

• Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 – Allows a child (minor or, in some cases, a disabled adult child) to claim maintenance from parents to ensure basic necessities and welfare.

• The Hindu Adoptions and Maintenance Act, 1956 – Recognises the obligation of Hindu parents to maintain their legitimate or illegitimate minor children and, in certain cases, unmarried daughters.

• The Protection of Women from Domestic Violence Act, 2005 – Provides relief including monetary support for children who are affected by domestic violence within the household.

• Personal laws applicable to different religions also impose a duty on parents to maintain their minor children until they become financially independent.

Maintenance of Parents

Indian law also recognises the moral and legal duty of children to maintain their parents when they are unable to support themselves. This obligation is intended to ensure that elderly parents are not left without basic financial support and dignity in their old age.

• Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 – Allows parents (father or mother) to claim maintenance from their children if they are unable to maintain themselves.

• The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – A special law dedicated to the welfare of parents and senior citizens, enabling them to seek maintenance from their children or legal heirs through a simple tribunal process.

• Personal laws in India also recognise the duty of children to maintain aged or dependent parents who cannot sustain themselves.

Maintenance of Dependents

Under Indian law, “dependants” is a legally defined category and does not include all relatives. It is specifically provided under the The Hindu Adoptions and Maintenance Act, 1956, which recognises certain close family members of a deceased Hindu as dependants.

These include:

• Father and mother

• Widow (so long as she does not remarry)

• Minor sons and certain lineal descendants (subject to conditions of dependency)

• Unmarried daughters

• Widowed daughter (subject to conditions)

• Certain widows of sons (so long as they do not remarry and are unable to maintain themselves)

• Minor illegitimate children (son or daughter, subject to statutory conditions)

The law further provides that heirs of a deceased Hindu are legally bound to maintain such dependants out of the estate inherited by them. If a dependant has not received any share in the estate, they are still entitled to claim maintenance from those who inherit.

The liability is shared proportionately among heirs based on the value of the estate received. However, a person who is themselves a dependant is not required to contribute if doing so would reduce their own entitlement below what they would otherwise receive as maintenance.

Key legal principles include:

• Maintenance rights may be affected if a person ceases to be Hindu.

• Maintenance can be modified if circumstances change.

• Estate debts are paid before maintenance claims.

• Maintenance does not automatically create a charge on property.

• Property transferred may still be subject to maintenance obligations in certain cases, except for bona fide purchasers without notice.

Maintenance of Husband

Indian maintenance law is not entirely one-sided and, in certain circumstances, also recognises the right of a husband to seek financial support from his wife.

Under the The Hindu Marriage Act, 1955, both Section 24 (interim maintenance and litigation expenses) and Section 25 (permanent alimony and maintenance) are gender-neutral in wording. This means that either spouse, including the husband, may claim maintenance from the other depending on their financial position and ability to support themselves.

However, such claims are assessed strictly by courts. A husband seeking maintenance must clearly establish that he is unable to maintain himself while the wife has sufficient independent income and financial capacity to support him. In practice, maintenance being awarded to husbands remains rare, as courts carefully scrutinise the economic dependency and circumstances of the parties before granting such relief.

The Kanoon Angle

Maintenance law in India is not limited to one law or one type of person. It is a set of different laws that together ensure that people who are dependent on others are not left without basic financial support.

It may be a wife after separation, children needing support for their upbringing, parents in old age, or other dependants in specific situations—the basic idea is the same: no one who is legally entitled to support should be left without the means to live a dignified life.

At the same time, maintenance is not given automatically or without checks. Courts look at both sides—the need of the person asking for maintenance and the financial ability of the person who has to pay it—so that the decision remains fair.

In simple terms, maintenance law is about balance: providing support where it is needed, but also ensuring fairness for both sides.

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