Maintenance in Divorce in India : A simple guide

Maintenance in divorce is simply about money for daily living and legal costs, so that the financially weaker spouse, children, and sometimes parents are not pushed into poverty during or after a breakup. In India, this support can come from both personal laws (like Hindu, Muslim, Christian law) and “secular” laws that apply to everyone, such as section 125 of the old CrPC, now section 144 of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”).​​

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What does “maintenance” include?

Under Indian family laws, “maintenance” usually means money for food, clothing, housing, education, and medical needs, and for an unmarried daughter, even basic marriage expenses. The idea is not just bare survival, but a life with dignity that is roughly similar to the standard of living during marriage, so far as the paying person can afford.​​

Key points:

• It is not a “gift”; it is a legal right if you cannot maintain yourself and the other person has enough means.​
• Courts look at income, property, age, health, lifestyle, and responsibilities of both sides when fixing the amount.​

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Types of maintenance you should know

Across most laws, three stages are important:

1. Interim (temporary) maintenance – during the case

• Under section 24 of the Hindu Marriage Act (“HMA”) and section 36 of the Special Marriage Act (“SMA”), either husband or wife can ask for monthly support and case expenses while the divorce or other case is going on.​​
• The court checks whether the applicant has “sufficient independent income” for basic living and legal costs; if not, it orders the other spouse to pay a reasonable amount every month until the case is decided.​​

2. Permanent alimony – after the case ends

• Under section 25 HMA and section 37 SMA, the court can grant long‑term or one‑time (“lump sum”) maintenance when it gives the final divorce or separation decree, or even later on a separate application.​​
• The court can later increase, reduce, or cancel this amount if circumstances change (for example, remarriage, big rise or fall in income, or serious illness).​​

3. Basic, quick maintenance – section 125 CrPC / section 144 BNSS

• This is a secular (religion‑neutral) remedy for a wife (including a divorced wife who has not remarried), minor children, adult dependent children with disabilities, and dependent parents.​​
• If a person with sufficient means refuses or neglects to maintain these dependents, a magistrate can order monthly maintenance after a relatively simple procedure.​​

For more details on the procedure and how maintenance works at different stages of divorce, please refer to this article<link>

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Maintenance for women of different religions

Though details differ, some broad patterns emerge:

• Hindus (HMA + Hindu Adoption and Maintenance Act)
  • Interim and permanent maintenance can be claimed by either spouse under HMA.​
  • A Hindu wife can also claim separate maintenance while still married, and children and parents have clear rights to maintenance and support under the HAMA.
• Muslims
  • Under Muslim personal law, the husband must maintain his wife during marriage and, after divorce, at least during the iddat period.​
  • Muslim women also have rights, including a “reasonable and fair provision and maintenance” from the former husband, which courts have interpreted to cover more than just the iddat period.​​
  • Importantly, criminal law is available to Muslim women as an additional, secular remedy; the Supreme Court has clearly upheld this.​​
• Christians (Divorce Act)
  • A Christian wife can seek alimony during the suit and permanent alimony after decree, subject to conditions in that statute.
• Civil marriages under Special Marriage Act (SMA)
  • Either spouse can claim interim maintenance and permanent maintenance, similar in spirit to HMA.​​

Across all, section 125 CrPC / section 144 BNSS is a common backup, especially where personal laws are unclear or restrictive.​​

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Maintenance for children and parents

• Children
  • Under most personal laws and criminal law, minor children (legitimate or illegitimate) can claim maintenance until age 18, and longer if they are disabled or, in some laws, if an unmarried daughter cannot maintain herself.​​
  • The court can also order separate amounts for school fees, medical costs, and sometimes future marriage expenses of daughters.​
• Parents
  • Dependent parents can claim maintenance from children under section 125 CrPC / section 144 BNSS and also under specific laws like the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.​​

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Enforcement and practical issues

Knowing the right is only half the battle; you should also know how to enforce it.

• If the person ordered to pay does not pay, the court can:
  • Issue a warrant to recover the amount,
  • Attach property or salary, and
  • In some cases, order simple imprisonment for non‑payment.​​
• Under civil decrees (like under HMA), maintenance orders are enforced like money decrees—through attachment and, in extreme cases, civil jail.​
• Courts have recognised that delay in filing a maintenance case does not defeat the claim; a spouse may wait and file when she genuinely needs support.​

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What should one remember?

• You do not lose all financial rights just because you are separated or divorced; in many cases, your rights start or grow stronger at that point.​
• Maintenance is available:
  • During marriage,
  • During divorce proceedings, and
  • After divorce, through both personal law and secular provisions.
• Both husbands and wives can claim maintenance under some laws like the Hindu Marriage Act and Special Marriage Act, depending on who is financially weaker.​​
• Religion matters for some details, but the secular route under section 125 CrPC / section 144 BNSS is open to all, cutting across personal laws.​​

For anyone feeling lost in a divorce or separation, a simple rule of thumb is: if you cannot reasonably support yourself or your children, and the other side has the means, you almost certainly have a legal right to ask a court for maintenance, and you do not need to know complicated jargon to do so. A basic application with honest details of income, expenses, and needs is usually enough for the court to start helping.

References:

1. https://www.drishtijudiciary.com/to-the-point/ttp-muslim-law/law-of-maintenance-under-muslim-law
2. https://gyansanchay.csjmu.ac.in/wp-content/uploads/2023/06/05-MAINTENANCE-OF-MUSLIM-1-1.pdf
3. https://www.drishtijudiciary.com/to-the-point/ttp-hindu-law/law-of-maintenance-under-hindu-law
4. https://www.dhyeyalaw.in/maintenance-of-divorced-wife-in-muslim-law
5. https://gyansanchay.csjmu.ac.in/wp-content/uploads/2022/09/09-Maintenance-under-Hindu-Law-1.pdf
6. http://ijariie.com/AdminUploadPdf/Maintenance_Under_Hindu_Law_ijariie14947.pdf?srsltid=AfmBOoq1GMY_B4wpTKlqnHyrAsnvuhKqjmq0Yf9HgPXs3b5QT3b8sS6
7. https://www.youtube.com/watch?v=Bz_MvijD99w
8. https://advocatepriyapaul.com/blog/comprehensive-guide-to-maintenance-under-hindu-law/https://lawcrust.com/maintenance-under-christian-law/
9. https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080534.pdf
10. https://www.vipinraina.com/blog/maintenance-rights-for-women-in-different-religions.php
11. https://www.thedivorcelawfirm.in/pdf/Maintenance-for-wife-and-children.pdf