Maintenance Under Section 125 CrPC / Section 144 BNSS
This is the most commonly invoked maintenance provision. Key features:
Who Can Claim:
- Wife: A wife (including a divorced wife who has not remarried) who is unable to maintain herself.
- Children: Legitimate or illegitimate minor children (whether married or not) and adult children who are unable to maintain themselves due to physical or mental disability.
- Parents: Father or mother who is unable to maintain himself or herself.
Conditions:
- The husband must have sufficient means and must have neglected or refused to maintain the wife.
- A wife living in adultery is not entitled to maintenance.
- A wife who refuses to live with the husband without sufficient cause is not entitled.
- A divorced wife is entitled to maintenance until she remarries.
Quantum: The magistrate determines the quantum based on the husband's income and the needs of the claimant. There is no statutory minimum or maximum (the ceiling under the old CrPC has been removed under BNSS).
Jurisdiction: The application can be filed where the wife resides, where the husband resides, or where they last resided together.
Pendente Lite Maintenance and Permanent Alimony
Under the Hindu Marriage Act:
Section 24 — Pendente Lite Maintenance: During matrimonial proceedings (divorce, judicial separation, restitution of conjugal rights), either spouse can apply for maintenance to cover the expenses of the proceedings and monthly support. The court considers the income of both parties. The objective is to ensure that the spouse without means is not handicapped in contesting the proceedings.
Section 25 — Permanent Alimony: At the time of passing the decree (or any time thereafter), the court can order one spouse to pay a lump sum or periodic sum to the other. Factors considered include the income and property of both parties, the conduct of the parties, the duration of the marriage, and other circumstances.
Advocate Shaw ensures that clients receive adequate pendente lite maintenance and secures permanent alimony that reflects the true financial capacity of the paying spouse.
Maintenance for Children
Children have an independent right to maintenance:
Minor Children: Both parents have a legal duty to maintain their minor children. Under Section 125 CrPC / Section 144 BNSS, a minor child can claim maintenance from the father (or mother, if the father is unable).
Adult Disabled Children: If an adult child is unable to maintain themselves due to physical or mental disability, they can claim maintenance.
Unmarried Daughters: Under the Hindu Adoption and Maintenance Act, an unmarried daughter is entitled to be maintained by her parents.
Quantum: The quantum includes not just food and shelter but education, healthcare, and extracurricular activities. Advocate Shaw argues for maintenance that covers the full cost of raising the child.
Interim Maintenance and Enforcement
Maintenance proceedings can take time, so interim maintenance is crucial. Advocate Shaw files applications for interim maintenance at the very first hearing, supported by the claimant's affidavit detailing their needs and the respondent's income.
If the respondent fails to pay maintenance as ordered, enforcement proceedings can be initiated:
Attachment of Salary: The court can direct the employer to deduct maintenance from the salary.
Attachment of Property: The court can attach and sell the respondent's property.
Imprisonment: The court can sentence the defaulter to imprisonment for the period of default (typically up to one month).
Contempt: Wilful disobedience of a maintenance order may constitute contempt of court.
Senior Citizens' Maintenance
Under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, parents and senior citizens who are unable to maintain themselves from their own earnings or property can apply for maintenance from their adult children, grandchildren, or relatives who are legal heirs.
The application is filed before the Maintenance Tribunal (usually the Sub-Divisional Officer). The proceedings are summary in nature, and the tribunal can award monthly maintenance. Failure to pay can result in imprisonment.
Advocate Shaw assists senior citizens in Kolkata in filing and pursuing maintenance applications, ensuring that their twilight years are free from financial distress.