In the realm of matrimonial law in India, the terms “alimony” and “maintenance” are often used interchangeably, leading to confusion. However, they are almost synonymous with somewhat similar legal implications and purposes. This article aims to clarify the difference between alimony and maintenance, exploring their definitions, legal provisions, and relevant case laws.
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Definition and Purpose
Alimony
Alimony refers to the financial support that a spouse may be ordered to pay the other spouse at the time of divorce. It is typically a one-time lump sum or a periodic payment that continues for a specified period. It is usually paid before the divorce decree is granted or at the time of final judgment. The primary purpose of alimony is to provide financial support to the spouse who may be at a disadvantage following the dissolution of the marriage.
Maintenance
On the other hand, maintenance encompasses financial support provided to a spouse during the subsistence of the marriage when the spouses are living separately, as periodic payment after the divorce/ judicial separation, or during the continuance of the matrimonial case. Maintenance can also extend to children born out of the marriage, ensuring their financial needs are met. Maintenance aims to provide for the dependent spouse’s and children’s basic needs and livelihood, ensuring they are not left destitute during and after the separation process. Divorce is not an essential element for claiming maintenance.
Alimony pendent lite
It is alimony pending the litigation. The purpose of this provision is to assist the financially dependent spouse by providing financial support to assist in the costs of legal proceedings. The matrimonial or maintenance case must be filed and is pending before the court to claim this.
Legal Provisions for Alimony & Maintenance
In the personal, secular, and other laws, the terms Alimony & Maintenance are used together. Let’s see all the provisions provided across different laws:
Under Hindu Laws:
- Sections 24 and 25 of the Hindu Marriage Act, 1955: These sections provide for interim and permanent maintenance for spouses. Applies to both spouses.
- Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956: These sections outline the maintenance rights of wives and children under Hindu law.
Under Muslim Laws:
- Sections 3 & 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986: This Act provides for the maintenance of Muslim women after divorce.
Under Christian Law:
- Sections 36, 37 & 38 of the Divorce Act of 1869 provide alimony pendente lite (can be claimed by both spouses) and permanent alimony (wife can claim).
Under Parsi Law:
- The Parsi Marriage and Divorce Act, 1936 Section 39 provides alimony pendente lite that both spouses can claim. Section 40 deals with Permanent Alimony and Maintenance, which both the spouses can claim.
Under Secular Law:
- Special Marriage Act, 1954 Sections 36 & 37 provide for Alimony pendente lite and Permanent Alimony & Maintenance, whereas the wife can claim both.
- Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) Section 144 (Previously Cr P C Section 125) – maintenance to wife, children, and parents from any person having sufficient means but neglects/ refuses to maintain.
- Protection of Women from Domestic Violence Act, 2005 – Section 20 provides for monetary relief, which also includes maintenance. This maintenance can be in addition to the relief obtained under Sec 144 of BNSS.
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Are working women denied maintenance by the court?
The Punjab & Haryana High Court, in the case of Chanchal Mehta v Supriya Mehta on 29th January 2016, gave a judgment ordering maintenance to a working wife based on the reasoning, “….what is not contemplated by the legislature cannot be read into it by the Court. The expression which is under discussion does not take into account the potential earning capacity of the wife. Still, all that it says is that if the wife but all that it says that if the wife is unable to maintain herself and if she satisfies other requirements of the section, namely, a person having sufficient means neglects or refuses to maintain his wife, the petition by the wife for maintenance cannot be rejected merely on the footing that a wife is capable of earning for herself.”
Muslim Women and their right to maintenance?
The Supreme Court, in the landmark case of Shah Bano (Mohd Ahmed Khan v Shah Bano AIR 1985 SC 945), held that Section 125 of the Criminal Procedure Code is a secular provision for all women irrespective of their religion and ordered maintenance in favor of Shah Bano.
The then legislature responded to this decision by enacting a special law, the Muslim Women (Protection of Rights on Divorce) Act, 1986, which made provisions for divorced Muslim women to seek maintenance under various provisions suiting the religious/ customary practices. In cases where the wife seeks to claim maintenance through the CrPC (now BNSS) provision, both spouses are required to give an affidavit stating the same. If the husband does not agree, the wife cannot claim the maintenance under the said provision.
But now we have come a full circle where the Supreme Court, in the case of Mohd Abdul Samad v State of Telangana 2024, has dismissed a petition challenging the applicability of Section 125 of the Criminal Procedure Code (alternatively Sec 144 of Bharatiya Nagarik Suraksha Sanhita, 2023). Petitioner challenged the direction to pay interim maintenance u/s 125 of CrPC to his divorced wife. The argument was that the Muslim Women (Protection of Rights on Divorce) Act, 1986, should override the secular law (CrPC Section 125). The Act of 1986 is a special law with maintenance provisions specifically for Muslim women.
In this case, the Supreme Court held that the Criminal Procedure Code applies to all women, and its application is universal across all religions. The judgment reaffirmed that Muslim Women have a right to claim maintenance under CrPC, ensuring legal parity and safeguarding constitutional guarantees of equality and nondiscrimination. Section 3 of the Act of 1986 starts with a non-obstante clause that does not restrict the application of Section 125 Cr PC but provides an additional remedy.
How is the maintenance amount calculated?
As ordered in Rajnesh v Neha (2021) 2 SCC 324 by the Supreme Court, all the applications seeking maintenance from the spouses must furnish an affidavit in a given uniform format of Disclosure of Assets and Liabilities. This Affidavit provides the complete picture of the financial position of both spouses to the court while deciding on the maintenance.
In the case of Kalyan Dey Chowdhury v Rita Dey Chowdhury Nee Nandy, AIR 2017 SUPREME COURT 2383, the Supreme Court followed the reasoning and principle set in 1970 case (Dr. Kulbhushan Kumar v Raj Kumari & Anr 1970, 3 SCC 129) “… that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must befitting the parties’ status and the spouse’s capacity to pay maintenance. Maintenance is always dependent on the factual situation of the case, and the court would be justified in molding the claim for maintenance based on various factors.’
Criteria for Determining Alimony and Maintenance
Alimony
When determining alimony, courts consider several factors, including:
– The income and financial resources of both spouses
– The age, health, and employability of the spouse seeking alimony
– The duration of the marriage
– The standard of living during the marriage
– The contributions of each spouse to the marriage, including non-financial contributions such as homemaking and child-rearing
Kalyan Dey Chowdhury v. Rita Dey Chowdhury (2017) AIR 2017 SUPREME COURT 2383
In Kalyan Dey Chowdhury v. Rita Dey Chowdhury, the Supreme Court held that while determining alimony, both spouses’ financial and social status must be considered. The judgment emphasized that the amount should be fair and just, providing a standard of living comparable to that enjoyed during the marriage.
Maintenance
For maintenance, the courts evaluate:
– The financial needs and requirements of the spouse and children
– The income, assets, and liabilities of the spouse liable to pay maintenance
– The living standard of the dependent spouse and children
– Any reasonable expenses for the education and upbringing of the children
– The conduct of the parties, especially if it involves any form of cruelty or neglect
Manish Jain v. Akanksha Jain AIR 2017 SC 1640
This case concerns maintenance pendente lite, whereas the Supreme Court ordered a reduction of the maintenance pendente lite issued by the lower court. The reasoning given by the court is as follows; “an order for maintenance pendente lite or costs of the proceedings is conditional on the circumstance that the wife or husband who claims the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. There is no answer to the maintenance claim; only the wife must be educated and able to support herself. Likewise, the financial position of the wife’s parents is also immaterial. The Court must consider the parties’ status, the spouse’s capacity to pay maintenance, and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon the factual situation; the Court should, therefore, mold the claim for maintenance determining the quantum based on various factors brought before the Court.”
Differences in Implementation and Duration
Alimony:
Alimony is typically awarded after the divorce proceedings have concluded. It is a one-time lump sum payment in cash or property. The award of alimony is generally final, though it can be modified if circumstances change significantly.
Maintenance:
Maintenance can be awarded during the subsistence of the marriage, during separation, and after divorce. It is generally periodic and subject to change based on the dependent spouse’s and children’s evolving needs and circumstances. Maintenance orders can be revised or revoked if there is a substantial change in circumstances, such as a change in the financial status of either party or the remarriage of the dependent spouse.
Conclusion
Understanding the distinction between alimony and maintenance is crucial for navigating matrimonial disputes and ensuring fair outcomes for all parties involved. While both aim to provide financial support, alimony is typically post-divorce financial assistance given as a one-time payment. In contrast, maintenance covers support during the marriage, separation, and after divorce. Indian courts, through various judgments, have consistently emphasized the importance of fair and adequate financial support, reflecting the principles of justice and equity. By recognizing and addressing each case’s unique needs and circumstances, the judiciary strives to uphold the dignity and welfare of spouses and children affected by marital breakdowns.uphold the dignity and welfare of spouses and children affected by marital breakdowns.
