Maintenance Pendente Lite and Expenses of Proceedings

Relief of maintenance is available under section 125 of ode of Criminal Procedure and also under the Protection of Women from Domestic Violence Act. Hindu Marriage Act also provides for the relief of maintenance.

Under Hindu Marriage Act where in any proceeding under this Act it appears to the Court that either the wife or the husband has no independent income sufficient for her or his support, Court may order for payment of monthly maintenance to the petitioner by the respondent.

Section 24). For such a relief, one may file an application with the main petition or during pendency of the proceedings under this Act. Suppose you have filed a petition for decree of divorce while filing the same or during its pendency, such a relief of maintenance can be claimed. You are required to satisfy the Court that you have no independent income sufficient for her or his support and that the other party (husband or wife) has sufficient income.

While passing such an order, Court is to take into consideration income not only of the petitioner but also that of the respondent and further that the petitioner has no independent income sufficient for her or his support.

As and when -you file such an application before the Court, you are required to furnish detailed affidavit regarding your source of income or liability, if any. To prove the income of the opposite party, you may file any document in respect thereof, in case you are in possession of any such document. Otherwise, you can call upon the opposite party for production such document. These documents must pertain to source of income whatsoever it may be. Even Court may call upon the parties to file documents like income-tax-returns for the last three years, statements of accounts with any Bank, Lease deed, FDRs, etc.

Such like applications are decided on the basis of testimony of the prarties as contained in detailed affidavits and the documents placed before the Court. However, one can have assistance of the Court to call witnesses or record from the employer of the opposite party to prove the income. All this material would enable the Court to come to a just conclusion about the income and liabilities of the parties, while determining the question if the applicant is entitled to any maintenance or on the point of quantum of maintenance.

Litigation Expenses

Under the same provision of law, Court may also order the respondent to pay to the petitioner expenses of the proceedings, whenever Court finds that petitioner has no independent income sufficient to meet the necessary expenses to persue or defend the proceedings. If you are to seek such a relief, you have to file an application before the Court during pendency of any petition under the Act. Generally, such a relief is claimed while claiming maintenance under section 24 of the Act.

In such like applications, you are to submit to the Court, affidavits in support of the averments made in the application. However, where the Court finds 'fhat a matter cannot be disposed of properly on the basis of affidavits, Court may call upon you to lead evidence otherwise than on affidavits.

Permanent Alimony and Maintenance

Suppose, you (the husband) file a petition before the Court of District Judge to seek a decree of divorce and your petition is allowed. You cannot say that your duty to provide maintenance and support your wife comes to an end with passing of a decree of divorce. Even then you are duty bound to provide for maintenance of your wife. Such an order can be passed not only in favour of husband but also in favour of a wife.

The Act provides that any Court may order that the respondent shall pay to the applicant for her or his maintenance and support gross sum or such monthly or periodical sum, as it may seem to the Court to be just, (Section 25).

Such an order can be passed on an application filed before the court either by the wife or by the husband. Furthermore, such an order can be passed either at the time of passing any decree or at any time subsequent thereto. It means you can ask for permanent alimony or maintenance even after the petition for divorce or any other relief has been decided.

While passing such an order, Court is to take into consideration income and other property of the respondent and also the income and other property of the applicant. Court is also to consider conduct of the parties and other circumstances of the case.

Other Remedy under Hindu Adoptions and Maintenance Act, 1956

Suppose, you (being the wife) fail to get the relief prayed for, say, the decree of divorce, and your petition for decree of divorce is dismisses! by the Court. In-such a situation, you (the wife) would not be entitled to claim relief of permanent alimony or maintenance under section 25 of Hindu Marriage Act. However, you can resort to the other remedy available under section 18 of the Hindu Adoptions and Maintenance Act, 1956.

Section 18 of Hindu Adoptions and Maintenance Act, 1956 provides that subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

A Hindu wife is entitled to claim maintenance from her husband, while living separately from her husband, in the following circumstances:

1. If The Husband Abandons His Wife Without Reasonable Cause And Without Her Consent Or Against Her Wish, Or Wilfully Neglects Her;
2. If The Husband Has Treated Her With Such Cruelty As To Cause A Reasonable Apprehension In Her Mind That It Will Be Harmful Or Injurious To Live With Her Husband;
3. If The Husband Is Suffering From A Virulent Form Of Leprosy;
4. If The Husband Has Any Other Wife Living:
5. If The Husband Keeps A Concubine In The Same House In Which His Wife Is Living Or Habitually Resides With A Concubine Elsewhere;
6. If The Husband Has Ceased To Be A Hindu By Conversion To Another Religion;
7. If There Is Any Other Cause Justifying The Wife Living Separately.

 
It is significant to note that a Hindu wife is not entitled to separate residence and maintenance from her husband if she is unchaste or no more a Hindu because of conversion to another religion.

It is also noteworthy that maintenance under section 18 of Hindu Adoption and Maintenance Act can be claimed only during subsistence of marriage. In other words, a divorced wife cannot claim any maintenance under Hindu Adoption and Maintenance Act. A divorced wife can however claim maintenance under Hindu Marriage Act.

Power of Court to Vary, Modify or Rescind any such Order

Hindu Marriage Act provides that when the Court is satisfied that there is change in the circumstances of either party at any time after passing of the order of permanent alimony and maintenance, Court may vary, modify or rescind any such order as the Court may deem just. (Section 25) For such a relief, either party may apply to the Court at any time after passing of the order required to be varied, modified or rescinded.

It has also been provided that Court may vary, modify or rescind any order of permanent alimony or maintenance if Court is satisfied that:

1. The party who was granted relief of permanent alimony and maintenance has remarried;
2. If such party is the wife and she has not remained chaste;
3. If such party is the husband and he has had sexual intercourse with any woman outside wedlock. (Section 25).

So as and when you come to know that your spouse has remarried, you may file an application for varying or modifying or rescinding of order of permanent alimony or maintenance passed against you.

If you are husband and you come to know that your wife has not remained chaste after passing of order of permanent alimony or maintenance in her favour, you may file an application for varying or modifying or rescinding of order of permanent alimony or maintenance passed against you.

In case you are wife and you come to know that your husband has had sexual intercourse with any woman outside the wedlock, you may also apply for varying or modifying or rescinding the order of permanent alimony or maintenance passed against you.

Custody, Education and Maintenance of Children

In case of a matrimonial dispute, custody of children is another significant and sensitive aspect which the Court is required to deal with.

At times, when child is in the custody of mother, father applies for custody of the child, or when father is looking after the child, mother may ask for custody of the child. Sometimes, any one of them may ask to see the child on a certain day or time or occasion, while allowing the custody of the child to remain with the mother or the father. Even father or mother of the child may be inclined to take the child abroad. Such like disputes fall under section 26 of the Hindu Marriage Act.

This section provides that in any proceeding under this Act, Court is empowered to pass, from time-to-time, interim orders or make provisions in the decree i.e., at the time of final decision of the case, with respect to custody, maintenance and education of minor children. Such an order can be revoked, suspended or varied at any point of time.

For such a relief, an application is to be filed before the concerned Court where the matrimonial matter is pending. While dealing with such an application, Court is to see the welfare of the minor child. In this regard, Court also takes into consideration wishes of the child, 'wherever it is possible.

For grant of maintenance for the child or making provision for his or her education, again welfare of the child is to be taken into consideration. In addition thereto, Court is also to have regard to the income and liabilities of the parents.

Such an order can be revoked,' suspended or varied from time-to-time on the application of either of the. party.

Appeals from Orders

Section 28 Hindu Marriage Act provides that orders passed by the court under section 25 or section 26 shall be appealable, if the orders are not
interim orders. So, if you feel aggrieved by the order of grant or non-grant of maintenance or litigation expenses, you may prefer appeal before Hon'ble High Court. However, no appeal lies against an order on the subject of costs only.