Report No. 73

1.4. Provisions relating to right of maintenance.-

There are several provisions or rules of law under which a right to maintenance or alimony may arise in favour of a wife-

(i) In the first place, the right may arise by substantive law, codified, or not codified. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 is an example of codified law on the subject. Under sub-section (1) of that section, subject to the provisions of the section, a Hindu wife, whether married before or after the commencement of the Act, shall be entitled to be maintained by her husband during her lifetime. The rules of personal law applicable to persons who are not Hindus furnish examples of uncodified law recognising the wife's right to be maintained.

As regards Muslims, Mulla states the law on the subject thus1:

"277. Husband's duty to maintain his wife.- The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse), so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower, or she leaves the husband's house on account of his cruelty."

"278. Order for maintenance.- If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specified agreement. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, 1898 (sic), section 488 (sic) in which case the court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees".

A Christian wife can also sue her husband for maintenance2. The right is based on justice, equity and good conscience3.

To quote from a Madras case4 on the subject-

"Section 16 of the Madras Civil Courts Act enacts that wherever a question regarding succession, inheritance, marriage etc., were to arise, the court will have to decide the question, in cases where no specific rule exists, according to justice, equity and good conscience. Therefore, the question whether a Christian husband would he liable to maintain his wife, and, if so, what form of procedure the latter should adopt for enforcing such a right, will have to be decided not so much on the technical notions or procedure followed by the English law, but on principles of equity and justice and by adopting the procedure obtaining in this country".

(ii) Apart from this substantive right enforceable by suit, maintenance or alimony may be ordered by the court as a relief ancillary to the grant of a decree for matrimonial relief on conclusion of proceedings for such relief. Section 25 of the Hindu Marriage Act, 1955 is an example5 of a provision conferring such a right; there are analogous provisions in other6 enactments dealing with the grant of matrimonial relief in cases not governed by the Hindu Marriage Act.

(iii) There are statutory provisions empowering the court to grant maintenance or alimony during the pendency of proceedings for matrimonial relief. Section 24 of the Hindu Marriage Act, 1955 is an example7 of such a provision; there are analogous provisions8 in other enactments dealing with the grant of matrimonial relief in cases not governed by the Hindu Marriage Act.

(iv) Finally, the Code of Criminal Procedure, 1973, in section 125, provides for the grant of maintenance to wives and children by magistrates in certain cases.

Section 125 is not confined to persons belonging to particular communities, and constitutes a self-contained scheme with its own set of provisions for the enforcement of magisterial orders passed thereunder. We quote below the material portion of section 125(3) of the Code:-

"(3). If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it becomes clue:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation:-If a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him."

1. Mulla Principles of Mohammedan Law, (1977), p. 300, paras. 277, 278.

2. Stella Pakkiam v. Rajiah Ratnam, AIR 1966 Mad 225 (228), para. 13.

3. Stella Pakkiam v. Rajiah Ratnam, AIR 1906 Mad 225.

4. Stella Pakkiam v. Rajiah Ratnam, AIR 1966 Mad 225 (228), para. 13.

5. See Appendix 1.

6. Section 37, Special Marriage Act, 1954; section 40, Parsi Marriage and Divorce Act, 1936; section 37, Indian Divorce Act, 1869.

7. Appendix 1.

8. Section 36, Special Marriage Act, 1954, etc.