Property - Matrimonial laws are lacking in provisions relating to the settlement of the spouses' properties and the matrimonial home. A woman can ordinarily claim maintenance and not a right over the property/house in which she resides. A woman can claim "right to reside" in her matrimonial home under the Protection of Women from Domestic Violence Act 2005. Cases under this Act can be filed in the court of the place where the aggrieved woman resides. Section 27 of the Hindu Marriage Act 1955 provides only for the settlement of property presented jointly to the husband and wife at or about the time of marriage. It does not address the issue of settlement of property owned jointly or separately. This is because there is no concept of matrimonial property and therefore there is no division of assets.
Maintenance - is available to the wife as well as the husband as a statutory right on the breakdown of marriage. The courts have very widely interpreted the term "maintenance", to allocate financial resources and property to the wife. The courts have powers to award maintenance under the personal laws, as well as under section 125 of the Criminal Procedure Code (CrPC) and section 20 of the Protection of Women from Domestic Violence Act 2005.
Assets from trusts or companies where the legal title to which is not held by one of the parties will also be taken into account as a financial resource. The court will take such assets into account when evaluating the living standards of a party, for the purposes of making an investment in the name of the wife/child or when awarding maintenance.
A wife or the husband is only entitled to be awarded maintenance, permanent or interim. The quantum of maintenance may vary from case to case and is determined by the spouse's income. It may usually be up to one-third of the husband's net income.
It has been held that while considering a claim for interim maintenance, the court must keep in mind the status of the parties, reasonable wants of the applicant, and the income and property of the applicant. The requirements of the non-applicant, the income and property of the non-applicant and the other family members to be maintained by the non-applicant must also be taken into account. While it is important to ensure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in a similar degree of comfort as in the matrimonial home, it should not be so exorbitant that the non-applicant is unable to pay.
Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar lifestyle that he or she enjoyed in the matrimonial home. It should not expose the non-applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.
While estimating the spouse's income or to get an idea of the income and lifestyle of the parties, the court can take into consideration, the lifestyle of the spouse, the amount spent at the time of marriage and the manner in which marriage was performed, any property or properties purchased, any rental income, the amount spent on fees and other expenses incurred (and so on).
Maintenance is available as a statutory right by way of independent relief, both under civil and criminal laws, and also as an ancillary relief.
Hindus -Maintenance to Hindus is provided for under:
Section 24 (maintenance pending suit) and section 25 (permanent alimony and maintenance) of the Hindu Marriage Act 1955.
Section 18 of the Hindu Adoptions and Maintenance Act 1956.
Muslims -A wife is entitled to maintenance from her husband after the breakdown of the marriage. A divorced woman is entitled to:
A reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband.
If she maintains the children born to her before or after her divorce, a reasonable provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children.
An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time after that according to Muslim law.
All the properties given to her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relatives of the husband or his friends. Under Section 3, Muslim Women (Protection of Rights on Divorce) Act 1989.
Christians - Alimony pending the suit of divorce can in no case exceed one-fifth of the husband's average net income for the three years preceding the date of the order, and continues until the decree for dissolution of marriage or of nullity of marriage is made absolute or is confirmed under section 36 of Indian Christian Marriage Act 1872. The Section 37, regarding permanent maintenance, states that the court will order the husband to secure to the wife such gross sum of money, or such annual sum of money, for any term not exceeding her own life, to the satisfaction of the court.
There is no set formula for fixing the amount of maintenance. The award of maintenance will therefore depend on the facts and circumstances of each case.
Case Laws
The court is required to consider certain specific factors, however, such as the status of the parties, the parties' respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and to those the husband is to provide (both in relation to payments he is legally obliged to make as well any involuntary payments or deductions. The amount of maintenance for the wife should be fixed so she can live in reasonable comfort taking into consideration her status and the standard of living she was accustomed to when she was living with her husband. However, the amount fixed cannot be excessive or extortionate (Jasbir Kaur Sehgal v District Judge, Dehradun and others (1997) 7 SCC 7).
In Sh Bharat Hegde v Smt Saroj Hegde, 140 (2007) DLT 16 the High Court of Delhi observed that the relevant considerations to be taken into account at the time of assessing maintenance claims are the:
Equally, as is often the case, some guesswork is used when estimating the income of the non-applicant, if there is undisclosed or incorrect disclosed information.
A wife/aggrieved woman can only claim the right to reside in the matrimonial home. In the case of Aishwarya Atul Pusalkar v Maharashtra Housing & Area Development Authority and Others (Civil Appeal No 7231 of 2012), decided on 27 April 2020, the Supreme Court recognised the woman's right to reside in her matrimonial home and held that such right has a legitimate basis. The Supreme Court ruled that, subsequent to her marriage, a married woman has an entitlement to live with the rest of her family members (on the husband's side) when the property is owned on a joint basis. If the wife resides in accommodation as an independent family unit with her husband and children, the matrimonial home would be that residential unit. The Supreme Court ruled this right to reside in matrimonial home is embedded in her right as a wife. Such right is also implicit in section 18 of the Hindu Adoption and Maintenance Act 1956 where such statue is applicable.
The right to residence has also been recognised under the Protection of Women from Domestic Violence Act 2005 and by the Supreme Court in SR Batra v Taruna Batra (2007) 3 SCC 169.
In Shamima Farooqui v Shahid Khan (2015) 5 SCC 705, the Supreme Court of India held that the husband is under a higher obligation when the question of providing maintenance to the wife and children arises. In the case, it was held that it is the obligation of the husband to maintain his wife. The husband cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.