Maintenance and Alimony Laws in Asansol — Legal Rights Under CrPC & Personal Laws

Maintenance is the financial support that a person is legally obligated to provide to his dependants who are unable to maintain themselves, and it is one of the most commonly litigated issues in the family courts of Asansol. The law of maintenance in India is not codified in a single statute but is spread across several laws, including Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (which replaced Section 125 of the Code of Criminal Procedure from 1 July 2024), the Hindu Adoption and Maintenance Act, 1956, the Hindu Marriage Act, 1955, the Muslim Women (Protection of Rights on Divorce) Act, 1986, and the relevant provisions of the personal laws of the other communities. The underlying principle of all these provisions is that a person who has sufficient means must not allow his dependant wife, child, or parent to fall into destitution.

The concept of maintenance is distinct from the alimony. Maintenance is the ongoing financial support, which may be interim or permanent, paid during the subsistence of the marriage or during the separation or the divorce proceedings. Alimony, or the permanent maintenance, is the lump sum or the periodic payment ordered at the time of the divorce. The two are related but not identical, and the law provides for both the interim maintenance, which is granted at an early stage to prevent the dependant from suffering during the pendency of the proceedings, and the permanent maintenance, which is granted at the conclusion of the proceedings. In Asansol, the family court and the magistrate's court handle the maintenance matters, and the procedure is summary to ensure the speedy relief.

The law of maintenance recognises the right of the wife, the children, and the parents to claim the maintenance, and the entitlement, the quantum, and the procedure vary across the statutes. The choice of the forum and the statute depends on the relationship between the parties, the personal law applicable, and the relief sought. An advocate in Asansol advises on the appropriate statute and the forum, drafts the petition, and represents the claimant, ensuring that the maintenance is granted at the earliest and in the adequate quantum.

Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which succeeded Section 125 of the Code of Criminal Procedure, 1973 from 1 July 2024, is the most widely invoked provision for the maintenance in Asansol. The section provides that a magistrate of the first class may order a person who has sufficient means to pay a monthly allowance for the maintenance of his wife, child, father, or mother, who are unable to maintain themselves. The provision is quasi-criminal in nature, and the proceeding is summary, which makes it faster than a civil suit. The section applies to all persons, regardless of their religion, and it is a secular remedy that supplements the personal-law rights.

The expression "wife" under the section includes a divorced wife who has not remarried, and the right of the divorced wife to the maintenance continues until she remarries. The wife is entitled to the maintenance if she is unable to maintain herself, and the husband has the sufficient means. A working wife is also entitled to the maintenance if her income is insufficient to maintain herself in the standard of living that she enjoyed in the matrimonial home. The children, both legitimate and illegitimate, whether minor or major, are entitled to the maintenance if they are unable to maintain themselves, and a married daughter who is unable to maintain herself is also entitled. The father and the mother are entitled to the maintenance from their son and daughter if they are unable to maintain themselves.

The procedure under Section 144 is initiated by an application before the magistrate of the first class at Asansol. The magistrate issues a notice to the respondent, who is required to show cause why the order should not be made. The magistrate, on being satisfied that the respondent has neglected or refused to maintain the claimant, orders the monthly allowance, which may be paid from the date of the order or from the date of the application, as the magistrate may direct. The maximum amount that the magistrate can award is not capped by the section, and the courts in Asansol award the maintenance based on the income of the respondent, the needs of the claimant, and the standard of living. The order of the maintenance is enforceable as a fine, and the failure to pay can lead to the issuance of the warrant and the imprisonment. An advocate in Asansol drafts the application, presents the evidence of the income and the needs, and pursues the enforcement.

In addition to the secular remedy under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 of the CrPC), the personal laws of the different communities in Asansol provide for the maintenance, and the rights under the personal laws often supplement the rights under the secular law. Under the Hindu law, the Hindu Adoption and Maintenance Act, 1956, in Section 24, provides that a Hindu is bound to maintain his wife, children, and aged or infirm parents. The wife is entitled to be maintained by her husband during her lifetime, and the right of the wife to the maintenance continues even after the divorce, where she has not remarried. The quantum of the maintenance under the Act is determined on the basis of the number of the dependants, the reasonable wants of the claimant, the income of the person liable, and the value of the claimant's own property.

Under the Hindu Marriage Act, 1955, Section 24 provides for the interim maintenance and the expenses of the proceedings, which may be granted at any stage of the proceedings, and Section 25 provides for the permanent alimony and the maintenance, which may be ordered at the time of the decree or at any time subsequent. The court, in fixing the quantum, considers the income of the parties, the conduct of the parties, and the other relevant factors. Under the Muslim law, the Muslim Women (Protection of Rights on Divorce) Act, 1986, provides for the maintenance of the divorced wife during the iddat period, and the obligation of the husband to make a "reasonable and fair provision" for the future of the wife, which extends beyond the iddat period. The Supreme Court has held that the reasonable provision must be made within the iddat period, and it includes the maintenance for the future.

Under the Christian and the Parsi personal laws, the maintenance is provided for under the Indian Divorce Act, 1869, and the Parsi Marriage and Divorce Act, 1936, respectively, and the courts have the power to order the permanent alimony and the maintenance. The Special Marriage Act, 1954, which governs the inter-caste and the inter-religion marriages, also provides for the maintenance under Section 36 (interim) and Section 37 (permanent). The choice of the statute and the forum depends on the personal law of the parties, the nature of the proceeding, and the relief sought. An advocate in Asansol advises on the most advantageous statute, the interplay between the secular and the personal-law rights, and the strategy to maximise the maintenance, ensuring that the claimant obtains the relief under the most favourable provision.

The distinction between the interim and the permanent maintenance is of great practical importance, and the law provides for both. The interim maintenance is the maintenance granted at an early stage of the proceedings, before the final determination, to prevent the dependant from suffering during the pendency of the proceedings. The underlying principle is that the litigation takes time, and the dependant, who is often without the independent income, must not be left without the support during the pendency. The interim maintenance is granted under Section 24 of the Hindu Marriage Act, 1955, Section 36 of the Special Marriage Act, 1954, and the inherent power of the court in the proceedings under the other personal laws. Under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the magistrate may grant the interim maintenance pending the final disposal of the application.

The interim maintenance is granted on a prima facie view of the case, and the court does not, at this stage, enter into a detailed examination of the merits. The court considers the income of the respondent, the needs of the claimant, the standard of living, and the prima facie correctness of the claim. The interim maintenance is intended to be a stop-gap arrangement, and it is adjustable against the final maintenance. The quantum of the interim maintenance is typically lower than the final maintenance, but it must be sufficient to meet the basic needs of the claimant. The order of the interim maintenance can be modified during the pendency if there is a change in the circumstances.

The permanent maintenance, by contrast, is the maintenance granted at the conclusion of the proceedings, after a full examination of the merits. The permanent maintenance may be a monthly allowance or a lump sum, and it is granted under Section 25 of the Hindu Marriage Act, 1955, Section 37 of the Special Marriage Act, 1954, and Section 144 of the BNSS, 2023, as the case may be. The permanent maintenance is determined on the basis of the detailed examination of the income, the needs, the conduct, and the other relevant factors, and it is intended to provide for the long-term support of the claimant. The permanent maintenance may be modified or cancelled on a change of the circumstances, such as the remarriage of the wife or the change in the income. An advocate in Asansol pursues the interim maintenance at the earliest, secures the permanent maintenance at the conclusion, and ensures that the maintenance is adequate and enforceable.

The calculation of the maintenance amount is one of the most contested issues in the family courts of Asansol, and the courts have evolved a set of principles to determine the quantum. The first and the foremost principle is that the maintenance must be reasonable and fair, neither so low as to leave the claimant in the destitution nor so high as to be a punishment to the respondent. The Supreme Court has laid down, in the landmark judgments, that the maintenance should enable the wife to live with the dignity and the comfort, in a manner roughly comparable to the standard of living that she enjoyed in the matrimonial home.

The factors that the court considers in fixing the quantum include the income and the earning capacity of the respondent, the income and the earning capacity of the claimant, the reasonable needs of the claimant, the standard of living, the obligations of the respondent to maintain other dependants, the liabilities of the respondent, the age and the health of the parties, the duration of the marriage, and the conduct of the parties. Where the respondent has not disclosed his true income, the court may draw an adverse inference and estimate the income on the basis of the available evidence, such as the lifestyle, the bank statements, the income-tax returns, and the expenditure. The court also considers the inflation and the cost of the living, and the maintenance may be enhanced over the time to account for the inflation.

In the cases under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the Supreme Court has recommended the application of a formula, where the maintenance is calculated as 25 percent of the net salary of the husband as a guideline, with the adjustments for the specific circumstances. In the cases under the Hindu Marriage Act and the other personal laws, the courts award the maintenance that may range from one-fifth to one-third of the net income of the respondent, depending on the factors. The maintenance is typically paid monthly, but the court may also order a lump sum, particularly where the lump sum is more appropriate for the security of the claimant. An advocate in Asansol presents the evidence of the income, the needs, and the standard of living, argues the quantum, and ensures that the maintenance is calculated fairly and adequately.

The order of the maintenance is only as effective as its enforcement, and the law provides for the robust mechanisms for the enforcement of the maintenance orders in Asansol. Under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 of the CrPC), the order of the maintenance is enforceable as a fine. Where the respondent fails to pay the maintenance without the sufficient cause, the magistrate may issue a warrant for the recovery of the amount as the arrears of the land revenue, or may sentence the respondent to imprisonment for a term that may extend to one month for each month of the default, or until the payment is made, whichever is earlier. The imprisonment is a coercive measure, intended to compel the payment, and not a substitute for the payment.

Under Section 128 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 128 of the CrPC), the order of the maintenance may be enforced as a decree of the civil court, and the claimant may execute the order before the civil court for the recovery of the arrears, by the attachment of the property or the bank account of the respondent. This provision provides a civil remedy in addition to the criminal remedy, and it is particularly useful where the respondent has the property but no ready income. The order of the maintenance under the Hindu Marriage Act and the other personal laws is also enforceable as a decree, and the execution proceedings are conducted before the court that passed the decree or the court to which the decree is transferred.

The enforcement of the maintenance order requires the proactive steps by the claimant, and the court does not, on its own, enforce the order. The claimant must file an application for the enforcement, with the proof of the arrears and the proof of the service of the order, and pursue the matter through the hearings. Where the respondent is absconding or has hidden the assets, the claimant may need to take the assistance of the court for the discovery of the assets. An advocate in Asansol assists the claimant in the enforcement, prepares the application, marshals the evidence of the arrears, pursues the warrant or the execution, and ensures that the maintenance, once ordered, is actually paid. The advocate also advises on the modification of the order where the circumstances change, so that the maintenance remains adequate over the time.

The law recognises that the circumstances of the parties change over the time, and it provides for the modification and the cancellation of the maintenance order to reflect the changed circumstances. Under Section 144(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 127 of the CrPC), the magistrate may, on the application of either party, cancel, reduce, or increase the order of the maintenance if there is a change in the circumstances of the parties. The change of the circumstances may include a change in the income of the respondent, a change in the needs of the claimant, the remarriage of the wife, the attainment of the majority by the child, or the acquisition of the independent income by the claimant.

The modification is not automatic; an application must be made to the court that passed the original order, with the evidence of the change in the circumstances. The court, on being satisfied that the change is material, modifies the order to reflect the new situation. Where the wife remarries, the right to the maintenance from the former husband ceases, and the maintenance order is cancelled. Where the child attains the majority and becomes capable of maintaining himself, the maintenance for the child is reduced or cancelled. Where the respondent's income increases substantially, the claimant may seek the enhancement of the maintenance to reflect the higher standard of living that the respondent can now afford.

Under the Hindu Marriage Act, 1955, the court has the power to modify the order of the permanent alimony and the maintenance under Section 25(2) on the change of the circumstances, and the orders under the other personal laws are similarly modifiable. The cancellation of the maintenance may also arise where the claimant is found to have obtained the order by the fraud or the misrepresentation, or where the claimant has forfeited the right by the conduct, such as the conduct that disentitles the wife to the maintenance under the personal law. An advocate in Asansol advises on the grounds for the modification or the cancellation, prepares the application with the evidence of the change, and argues the matter to secure the modification or the cancellation as the case may be, ensuring that the maintenance order remains fair and reflective of the current circumstances.

A family lawyer in Asansol plays a central role in the maintenance matters, representing both the claimants and the respondents and handling the case from the initial advice to the enforcement. For the claimant, the lawyer begins by examining the facts, the relationship, and the financial position, and advising on the appropriate statute — Section 144 of the BNSS, the Hindu Marriage Act, the Hindu Adoption and Maintenance Act, the Muslim Women (Protection of Rights on Divorce) Act, or the other personal laws — and the appropriate forum. The lawyer then drafts the petition, with the clear statement of the relationship, the income of the respondent, the needs of the claimant, and the relief sought, and files it before the magistrate or the family court.

The lawyer pursues the interim maintenance at the earliest, presenting the prima facie evidence of the income and the needs, to secure the support during the pendency. At the final hearing, the lawyer presents the detailed evidence — the bank statements, the salary slips, the income-tax returns, the proof of the lifestyle, and the proof of the needs — and argues the quantum on the basis of the principles laid down by the courts. Where the order is passed, the lawyer assists in the enforcement, by the application for the warrant or the execution, and ensures that the maintenance is paid. Where the circumstances change, the lawyer advises on the modification or the enhancement.

For the respondent, the lawyer examines the petition, raises the defences — such as the lack of the ability to pay, the claimant's own income, the forfeiture of the right by the conduct, or the remarriage — and contests the quantum. The lawyer also advises on the modification and the cancellation where the circumstances so warrant, and, where the claim is exaggerated or fabricated, exposes the same through the cross-examination and the documentary evidence. By handling the matter comprehensively, the family lawyer in Asansol ensures that the maintenance is granted, enforced, and modified in accordance with the law, and that the rights and the interests of the client are protected at every stage of the proceedings.