Mentoassociates.com – Legal Articles

1. This Act protects the rights of Muslim Women who have been divorced by their husbands or who have obtained the divorce from their husbands.

2. A divorced Muslim women is entitled to reasonable and fair provision and maintenance within Iddat period from her former husband. Similarly the divorced Muslim woman is entitled to all the properties given to her before or at the time of marriage or after her marriage by her relatives, friends, husband, relatives of husband and friends of the husband.

3. A Divorced Muslim Women is also entitled to an amount equal to the sum of dower agreed to be paid to her at the time of her marriage or at any time there after.

4. If a divorced Muslim Women herself maintains the children born to her before or after her divorce, the husband shall make her a reasonable and fair provision and pay her maintenance for 2 years from the date of birth of children.

5. If the husband fails to discharge his duties under this act, the wife is entitled to make an application to jurisdictional magistrate for suitable orders. If a husband fails to comply with the order of the magistrate, the magistrate is empowered to sentence such person to an imprisonment for a term which may extend to 1 year.

6. A magistrate can also pass necessary orders of maintenance, against the relatives of divorced Muslim Women who has not remarried and who is not able to look after herself. The relatives may include children, parents etc. If a divorced woman has no relatives the magistrate can order the state Wakf board to pay such maintenance.

In Daniel Latif –vs- Union of India, AIR 2001 SC 3958 the Supreme Court held that the husband is duty bound to give maintenance to the divorced wife and she is entitled for lifelong post divorce maintenance within iddat period

1. Under the Muslim law, the husband is duty bound to maintain wife provided (i) she is faithful to him and (ii) obeys his reasonable orders. If a wife refuses herself to the husband due to non payment of prompt dower or she leaves the house of husband on account of his cruelty, the wife is entitled for maintenance. If the husband does not maintain the wife, the wife is entitled to sue him for maintenance or she can apply for an order of maintenance under the provisions of CrPc, 1974.

2. After divorce, a Muslim wife is entitled for maintenance during the period of iddath. If a wife is not informed about the divorce, she is entitled for maintenance until the same is informed to her. Agreements between husband and wife for future maintenance are perfectly legal.

The above Act was enacted by the Indian Parliament with an intention to provide effective provisions for the maintenance and welfare of parents and senior citizens. According to this Act, senior citizens who are unable to maintain themselves can make an application against their children for maintenance. If a senior citizen is a childless person, he can file an application against his relatives for maintenance.

The obligation of the children or the relatives to maintain a senior citizen extends to the needs of such senior citizens, so that such parents may lead a normal life.

If a person being relative of a senior citizen and is having sufficient means and is in possession of property of the senior citizen or if he would inherit the property of such senior citizens, then he is liable to maintain such senior citizens.

A senior citizen can file an application for maintenance to the maintenance tribunal. If he is incapable of making the application himself, he can authorize any organization or person to do the needful.

The tribunal is empowered to grant interim maintenance to senior citizens, during the pendency of proceedings before it. An application for maintenance shall be disposed off, in the normal course within 90 days from the date of service of notice and in exceptional cases, the tribunal may extend the said period, once for a maximum period of 30 days.

An application for the maintenance may be filed against one or more persons. The allowance for maintenance and for expenses for the proceedings may be passed from the date of the order or even from the date of filing the application. If the children or relative fails to pay maintenance to a senior citizen, then the tribunal can issue a warrant against them and send them for imprisonment for a term which may extend to one month or until payment, if sooner made which ever is earlier. The proceedings against the children and a relative shall be taken before the tribunal in a district where they resides or resided last.

The Act also provides for a conciliation officer who can try for a negotiated settlement between the parties. Normally the order for maintenance is made on a monthly basis. The maximum monthly maintenance is Rs.10,000/- per month. The tribunal has the power to make alteration in the allowances if there is a change in the circumstances or for other reasons like misrepresentation or mistake of fact done by the applicant before it.

We hear about children claiming maintenance from their parents, wives seeking maintenance from their husbands, but it is very uncommon to have heard parents claiming maintenance from their children. In the present technology driven society where children fail to take care of their parents, this is a valuable right available to aged and infirm parents, which is found in Chapter 9 of The Code of Criminal Prodcedure, 1973.

A father or mother who is unable to maintain himself or herself, and who has a son or daughter who has sufficient means and who refuses or neglects to maintain his parents, may file a petition before a magistrate of the first class. The magistrate after such enquiry can order the son or daughter to make a monthly maintenance to his or her parent. Such maintenance has to be paid from the date of application or from the date of order as decided by the court.

If any person who is ordered to pay such maintenance fails to comply with the said order, then the magistrate may issue a warrant for levying the amount due, or may even sentence the defaulter to simple imprisonment. It is pertinent to note that the parents need not to have given some assets or share of wealth to their children before they can enforce this right.

The proceedings are normally filed in the jurisdictional family court and may take on an average one to two years for the completion of the proceedings depending on the workload of the respective courts.

The Hindu Adoptions and Maintenance Act, 1956 provide for the maintenance of a Hindu wife by her husband during her lifetime.

A Hindu wife is also entitled for live separately from her husband without forfeiting her claim to maintenance if the husband is guilty of desertion, has treated the wife with cruelty, is suffering from virulent forms of leprosy, if the husband has another living wife, if he has converted to another religion, and/or if the husband keeps a concubine in the same house. However a Hindu wife is not entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by converting to another religion.

The right of a wife to claim maintenance is an incident of the status of matrimony and if the wife succeeds in establishing the relationship of husband and wife, as a matter of course, the wife is entitled for maintenance.

In determining the amount of maintenance, the court will consider the following factors:
a. Position and status of the parties.
b. The reasonable wants of the claimant
c. Properties and income of the claimant etc.

The court can alter the amount of maintenance, whether fixed by a decree of court or by agreement, if there is a material change in the circumstances justifying such alteration.