Interim Maintenance for Wife during pendency of Divorce Proceedings

In most of the divorce proceedings, the question of maintenance crops up sooner or later. In the present situation, it is pretty much a common scenario where the wife is forced to leave her matrimonial home due to some persistent derogatory acts of the husband. And in most of such cases, the wife does not have a proper source of income, resulting in her facing extreme difficulties in leading her livelihood. Even continuing with the divorce proceedings become difficult for them due to lack of financial stabilities. So, what does a wife in such situations do? What rights does she have? Can she claim maintenance from her husband? Read on to know the legal provisions covering such circumstances.

Maintenance and Alimony

The Hindu personal laws provide for two kinds of maintenance. Firstly, a spouse not having an income can claim from the other spouse an ‘Interim Maintenance’ at the time when their matrimonial proceedings are pending before the court. And, secondly, there is the ‘Permanent Maintenance or Alimony’ which may be awarded to such spouse after the matrimonial proceedings have been disposed of.

We will deal with all kinds of maintenance available to a wife, in a series of articles. In this first part of the series, lets gain some knowledge about the Interim Maintenance.

Interim Maintenance and Expenses of Proceedings:

Section 24 of the Hindu Marriage Act provides for ‘Maintenance Pendente Lite’. It refers to the maintenance, which is provided while a litigation is pending before a court of law. Under the Indian law, maintenance can be claimed both by husbands and wives. There is no strict rule that only a wife can claim maintenance from her husband. If proper situation is established, the Court may even order a wife having source of income to maintain her husband who does not have an income. But in this article, we will deal with the maintenance for the wife only.

The law says that a wife may make an application to the Court during the pendency of any matrimonial proceeding, praying for a direction to the husband to provide temporary or interim maintenance to the wife along with the expenses for the proceedings. Maintenance may be claimed for two purposes:

i. Personal Maintenance of the Party - Maintenance may be claimed by the wife when her husband has filed a suit against her. She may also claim maintenance when she herself has initiated a matrimonial proceeding against her husband. During the pendency of such proceeding, she may make an application before the Court for granting her maintenance. On such application being made, the Court may, after being satisfied of some basic conditions, direct the husband to pay a sum of money to the wife for her personal maintenance.

Illustration: ‘Rajesh’ and ‘Manashi’ are a married couple. ‘Manashi’ has been facing extreme torture and cruelty from her husband ‘Rajesh’ for many days, and finally, being unable to bear with that anymore, decides to leave her matrimonial home. Accordingly, she leaves the house of ‘Rajsesh’, goes back to her father’s house, and subsequently files a petition for divorce against her husband. However, ‘Manashi’ does not have any source of income and she is completely unemployed. As a result, she has been facing hardships in leading a decent livelihood and maintaining herself. In such situation, she may approach the Court with an application for temporary maintenance. If the Court is satisfied that ‘Manashi’ indeed does not have any source of income, the Court may direct ‘Rajesh’ to provide maintenance to her.

ii. Expenses for the proceedings - The ‘Maintenance pendent lite’ under Section 24 of the Hindu Marriage Act also includes the expenses for the proceedings. That means, the Court may also direct the husband to provide the litigation cost to the wife. Such expenses shall also be available even when it is the wife who herself has filed the suit.

Illustration: Continuing with the above illustration, ‘Manashi’ may also pray before the Court to grant her the expenses for continuing the divorce proceeding against her husband, because she does not have any income. So, the Court may also direct the husband ‘Rajesh’ to pay the cost of litigation (including lawyers’ fees) to ‘Manashi’ for the divorce proceeding instituted by her.

On What Ground Interim Maintenance and Litigation Expenses may be claimed?

The Hindu Marriage Act makes provision for one basic condition for granting maintenance. That it, the party claiming maintenance must establish before the Court that she does not have any independent income which is sufficient for her daily maintenance and support, and also for meeting the expenses for the litigation.

Once it is established that the wife does not have any sufficient source of income to maintain herself or to fund the litigation, the Court should pass an order directing the husband to pay some monthly or periodic amount as interim maintenance or some lump sum amount of money to meet the litigation cost.

Amount of Interim Maintenance

What should be the amount of interim or temporary maintenance, is entirely a discretion of the Court. The Court shall decide as to the amount or quantum of maintenance, having regard to the facts of the case and certain conditions.

The first and foremost particular which the Court will take into consideration while deciding the amount of maintenance is whether the wife has no sufficient means to support herself. Apart from that, the Court also takes up certain factors for consideration, like:

The conduct of the wife;
Income of the husband;
Number of members the husband has to maintain;
Reasonable wants of the wife;
All reasonable expenses of the proceedings; etc.

The Court, after taking into account all such factors, and other factors as may appear necessary, fixes a quantum of maintenance which it deems reasonable. However, if the wife has sufficient means to maintain herself, she will not be granted any interim maintenance.

In case there is any change in circumstances of the parties, the Court may, on an application made to it, increase the amount of maintenance.

What happens if husband refuses to provide interim maintenance to wife?

A situation may arise where the husband may refuse to pay the interim maintenance to wife even when the Court has ordered him to pay it. In such situation, the consequence may be two types, depending on the status of the husband.

Firstly, where it is the husband who has instituted the matrimonial proceeding against the wife, then on refusal to pay maintenance, the Court may stay all further proceedings in the matter until he pays up. That means, the Court may order that the husband cannot proceed with her suit against the wife as long as he refrains from paying the interim maintenance or expenses for litigation to the wife.

Secondly, where it is the wife who has instituted a suit against the husband, the defence taken by the husband in such suit may be struck out by the Court in case he refuses to pay the interim maintenance as has been directed by the Court.

In case the matter is in the appellate stage, the Court may even dismiss the appeal on such refusal to provide maintenance to the wife.

How to make and application for interim maintenance?

An application for claiming interim maintenance and litigation expenses may be made to the Court before which the primary matrimonial proceeding (like divorce proceeding, etc.) is pending. Such application may be made at any time during the pendency of the original suit. For making such application, all the averments should be supported by an affidavit.

Some Important Points

An order granting interim maintenance shall remain valid as long as the original matrimonial suit will be pending. The maintenance would start from the date when the application is made till the disposal of the suit.
In any matrimonial suit, when an application under Section 24 is made for interim maintenance and litigation expenses, the Court shall take up that application first, before proceeding with the original suit. It shall be the duty of the Court to dispose of such application as early as possible, and efforts shall be made to decide it before the trial in the main suit.
In granting interim maintenance, the conduct of the wife is immaterial. The wife is entitled to interim maintenance from her husband, even if she has been living an immoral or unchaste life, as long as she does not have a source of income. Even where there is an accusation of adultery against the wife, she can get maintenance.
Section 24 of the Hindu Marriage Act talks about only one basic requirement for grant of interim maintenance - i.e., the claimant should not have sufficient income. Here, for fixing the amount of maintenance, only the income of the parties are to be considered, and not any property which is held by them. So, even if the wife as enough land and property but no income, she may successfully claim interim maintenance for her husband.

That is all you need to know about interim maintenance and expenses for proceedings to the wife. In our other articles, we will deal with all other kinds of maintenance and alimony which the wife is entitled to claim from her husband.

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Maintenance for Wife - Part I (Interim Maintenance during pendency of Divorce Proceedings)