MAINTENANCE PENDENTE LITE AND PERMANENT ALIMONY
Maintenance pendente lite
Section 24 of Hindu Marriage Act makes provision for interim maintenance and expenses of proceedings. It confers on the court, the power to grant interim maintenance and expenses of the proceedings to either spouse who does not have independent income to provide for his or her support. It can be claimed in any proceedings under the Act, i.e. including proceeding to obtain decree of nullity under Section 11 of the Act.
The expenses of proceedings include the fees of lawyer, sums to meet up stamp charges, clerical charges, travelling expenses, etc. The court shall consider income of both spouses before making an order under Section 24. This provision applies irrespective of whether such spouse appeared as the initiator of the main proceeding or not. In deciding the question of maintenance pendente lite the only issue to be considered is whether the claimant is or is not in a position to maintain herself or himself. In Chitra Lekha v. Ranjit Rai, AIR 1977 Del. 176, it has been laid down that the object behind Section 24 is to provide financial assistance to the indigent spouse to maintain herself (or himself) during the pendency of the proceedings and also to have sufficient funds to defend or carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for the want of funds.
Court cannot refuse to grant interim maintenance and expense of proceedings under this provision on the ground that the applicant is not likely to succeed in the dispute. Section 24 contemplates a summary enquiry and not a trial at length. Proviso appended to Section 24 provides that the application for the payment of interim maintenance and expenses of proceedings shall as far as possible be disposed of within sixty days from the date of service of notice on the party.
Maintenance to Children : It may be noted that the central idea behind provisions of this section is to provide maintenance to the needful spouse during pendency of the proceedings. But, in exceptional cases the court can order the maintenance also for such children who are dependent on and are living with spouse whose claim has been found justified by the court. In Jasbir Kaur Sehgal v. District Judge, Dehradun, AIR 1997 SC 3397, the Supreme Court has held that provisions under Section 24 cannot be given restricted meaning; the wife’s right to claim maintenance pendente lite would include her own maintenance and that of her unmarried daughter living with her.
Section 25 of the Hindu Marriage Act, 1955 empowers the court to grant a right on either spouse to claim permanent alimony and maintenance. Such alimony or maintenance is to be decided ‘at the time of passing any decree’ or any time subsequent to it. This section empowers the court to award any of the following:-
1. A gross sum.
2. A monthly sum.
3. A periodical sum for a term exceeding the life of the applicant.
‘Passing any decree’: The right to get alimony and maintenance under Section 25 is dependent on the court passing a decree of the kind envisaged under Section 9 to 13 of the Hindu Marriage Act, 1955. Supreme Court in Chand Dhawan v. Jawaharlal Dhawan, (1993) 3 SCC 406, held that the phrase ‘passing any decree’ means that an order for permanent alimony can be made when a decree is passed granting any substantive relief under the Act and not where the main petition is dismissed or withdrawn. The word ‘decree’ refers to decree passed under Sections 9-13 of the Act which results in disruption of marital status of the parties. If the relief under any of these sections is declined the relief of alimony and maintenance cannot be granted under Section 25. If a spouse fails to get any relief under Section 25 owing to the failure of main proceedings then that spouse can claim maintenance under Section 18 of Hindu Adoption and Maintenance Act.
Another important question which arise in this connection is whether a second wife whose marriage has been declared nullity under Section 11 can get maintenance under Section 25 of the Act. In Savitaben v. State of Gujarat, AIR 2005 SC 1809, Supreme Court held that where a marriage is void on the ground of bigamy, the wife is not entitled to maintenance under Hindu Marriage Act. Later, in Ramesh Chandra Daga v. Rameshwari Daga, AIR 2005 SC 422, Supreme Court held that spouse of null and void marriage, entered into during pendency of an earlier marriage is entitled to maintenance on passing of a decree of nullity.
Quantum of maintenance : Section 24 and 25 does not lay down any rigid rule for fixing quantum of maintenance. It will depend on various factors such as—
(a) Means and conduct of the spouses.
(b) Duration of marriage.
(c) Education and support of children.
(d) Ability of spouse to earn.
(e) Other reasonable wants of the applicant.
In the matter of granting maintenance pendente lite, the court exercises a wide discretion, but this discretion is not to be exercised arbitrarily. It should be within the purview of the section and guided by the sound principles of matrimonial laws.
Variation or rescission of order : Section 25(2) of the Act lays down that on proof of change of circumstances, the court may, at the instance of either party, vary, modify or rescind any order for permanent alimony. But an order for the payment of gross-sum is an out-and-out payment, hence, such an order cannot be varied or modified. Section 25(3) further envisages following two circumstances on the happening of which maintenance under Section 25(1) may be rescinded if the party in whose favour order is made has:—
2. In case of wife, she has not remained chaste.
3. In case of husband, he has had sexual intercourse with any woman outside wedlock.