Maintenance and alimony
Maintenance is the issue that decides how a matrimonial dispute is actually fought. It is available under at least four separate statutes, each with its own court, standard and timeline, and the choice between them is a strategic decision made at the outset.
- s. 24 HMA
- s. 25 HMA
- s. 144 BNSS
- s. 20 PWDVA 2005
- s. 18 HAMA 1956
- Rajnesh v. Neha (2020)
Four routes to maintenance
The same claim can be brought under several provisions. They are not alternatives in the sense that choosing one closes the others, but courts adjust for amounts already awarded so that a claimant is not paid twice for the same period.
| Provision | Who may claim | Court | Note |
|---|---|---|---|
| s. 24 & 25 HMA | Either spouse | Family Court | Only where a petition under the Act is already pending; section 24 is interim, section 25 is permanent |
| s. 144 BNSS | Wife, children, parents — any religion | Magistrate | Formerly section 125 CrPC; a summary, secular remedy that does not require a divorce petition |
| s. 20 PWDVA | Aggrieved woman in a domestic relationship | Magistrate | Monetary relief within DV proceedings, including for loss of earnings and medical expenses |
| s. 18 HAMA | Hindu wife | Civil Court | A right to be maintained by the husband, including while living separately for justified cause |
In Rajnesh v. Neha (2020) the Supreme Court addressed the overlap directly, directing that a party must disclose all previous and pending maintenance proceedings and any orders already made, and that an adjusting court should account for them. Concealing an existing order is a serious problem when it surfaces, and it usually surfaces.
Interim maintenance
Section 24 of the Hindu Marriage Act allows either spouse, during the pendency of any proceeding under the Act, to apply for maintenance pendente lite and the expenses of the proceeding, where that spouse has no independent income sufficient for their support. It is expressly gender-neutral: a husband without sufficient means may apply against a wife who has them.
The application is normally moved with or immediately after the main petition, because interim maintenance runs from a date the court fixes and delay in filing costs money. Rajnesh v. Neha laid down that maintenance should ordinarily be awarded from the date of the application, and that reasons should be given for any other date.
Permanent alimony
Section 25 empowers the court, at the time of passing a decree or at any time afterwards, to order a gross sum or a monthly or periodical payment for the applicant's lifetime, secured if necessary against the respondent's property. Two features are often overlooked. First, an order under section 25 can be varied, modified or rescinded if circumstances change. Second, the court may vary or rescind the order if the party in whose favour it was made remarries, or is not remaining chaste, or has not remained chaste — a provision that is applied with considerable care.
Where the parties settle, permanent alimony is usually expressed as a one-time consolidated payment recorded in the settlement, because a lump sum ends the relationship between the parties in a way a monthly obligation does not.
What the court weighs
No statutory formula fixes quantum. The Supreme Court in Rajnesh v. Neha collected the criteria that courts apply:
- the status of the parties and the standard of living enjoyed during the marriage
- the reasonable needs of the claimant and of any dependent children
- the claimant's qualifications, employment status and earning potential — and, where a spouse gave up a career for the family, the sacrifice made
- independent income or assets owned by the claimant
- the respondent's income, other liabilities and existing maintenance obligations
- the number of dependants the respondent supports
- the duration of the marriage
- the age and health of both parties
On the "25 to 30 per cent" figure. A proportion of the husband's net income is often quoted as though it were a rule. It is not in any statute. Courts have used broad proportions as a starting point in some judgments, but quantum is decided on the material actually before the court, which is why the income and expenditure disclosures matter more than any rule of thumb.
The affidavit of assets and liabilities
Rajnesh v. Neha made a detailed affidavit of assets and liabilities compulsory for both parties in every maintenance proceeding across the country, with a prescribed format and directions on the consequences of non-disclosure and false disclosure. It covers income from all sources, movable and immovable assets, liabilities, dependants, and monthly expenditure, supported by documents.
Preparing it properly is the single most useful thing a claimant or a respondent can do in a maintenance case. An affidavit that understates income and is then contradicted by an income tax return damages the party's credibility on every other issue in the case. This is covered in detail in the guide to the affidavit of assets and liabilities.
Documents that support a maintenance claim or defence
- Income tax returns and computation for the last three years
- Form 16 and salary slips for the last twelve months
- Bank statements for all accounts for at least one year
- Property documents, and rent agreements where property is let out
- Loan and EMI statements, and credit card statements
- School fee receipts, medical bills and rent receipts evidencing expenditure
- Proof of the claimant's qualifications and any past employment
- Copies of every order already passed in any other maintenance proceeding
Enforcing an order
An order that is not complied with can be enforced. Under section 28A of the Hindu Marriage Act, decrees and orders are executable in the same manner as decrees of a civil court. Maintenance ordered under section 144 BNSS can be recovered by issuing a warrant for levying the amount as a fine, and by sentencing the defaulter to imprisonment for each month's unpaid amount. Under the Domestic Violence Act, breach of a protection order is itself an offence, and monetary relief may be recovered by directing an employer or debtor to pay directly. Rajnesh v. Neha also set out that arrears may be recovered as a lump sum or in instalments as the court directs.
Questions we are asked most often
Can a husband claim maintenance from his wife?
Under sections 24 and 25 of the Hindu Marriage Act, yes — those provisions are worded neutrally and refer to either the wife or the husband. Section 144 BNSS, by contrast, allows a wife to claim from a husband, not the reverse.
Can I claim maintenance if I am working?
Employment does not automatically disqualify a claim. The question is whether the income is sufficient for support at a standard reasonably comparable to that enjoyed during the marriage. A significant disparity in incomes can still support an award, though it will affect quantum.
From what date is maintenance payable?
Rajnesh v. Neha directs that maintenance be awarded from the date of the application, with reasons required if the court fixes a different date. Delay in filing therefore has a direct financial cost.
Is there a fixed percentage of income awarded as maintenance?
No statute prescribes one. Proportions are sometimes used by courts as a reference point, but quantum turns on the disclosed income, the needs of the claimant, the respondent's liabilities and the standard of living during the marriage.
Can a maintenance order be changed later?
Yes. Both section 25 of the Hindu Marriage Act and section 144 BNSS allow variation on a change in circumstances — loss of employment, a substantial rise in income, remarriage, or a change in the needs of a dependent child. A separate application has to be moved with evidence of the change.
What happens if my spouse simply does not pay?
Execution proceedings can be initiated. Depending on the provision under which the order was made, recovery may be by attachment, by a warrant levying the amount as a fine, by directing an employer to remit from salary, or by imprisonment for default. Arrears remain recoverable.
Discuss your own facts
General information cannot account for the specifics of a marriage, a family or a pending case. A first consultation covers what applies to your situation, what the realistic options are, and what each one is likely to cost and take.