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Divorce in Process

What you need to know about Interim Maintenance

What you need to know about Interim Maintenance

Under the provisions of the Indian law, one can claim two types of maintenance: Interim Maintenance (under Section 125 of Code of Criminal Procedure, 1973 and under Section 25 of the Hindu Marriage Act and Protection of Women from Domestic Violence Act) and Permanent Maintenance (under Section 25 of the Hindu Marriage Act).

Interim maintenance can be claimed during the divorce proceedings and shall not be paid after the divorce is finalized. Permanent Maintenance, in contrast, is claimed after a divorce or judicial separation has been granted by the Court.

Here are a few facts that will help you:

  • Interim maintenance can be sought by the husband or the wife, if they are incapable of supporting themselves financially
  • Interim maintenance is NOT a legal right
  • Granting interim maintenance is wholly the discretion of the judiciary
  • Interim maintenance includes the estimated amount that will be spent on divorce proceedings by the petitioner (receiving spouse)
  • The amount of maintenance is decided by the court based on several factors like the paying spouse’s total income and assets, petitioner’s own income and expenses etc.
  • Usually, the order for maintenance is passed from the date of filing of the divorce proceedings
  • The amount received as interim maintenance is taxable for the petitioner and tax-deductible for the responded (paying spouse)

 

Can you claim interim maintenance when separating from a live-in relationship?

In a thought-provoking case, Sheela, who was separated from her first husband, began residing with Jigar in 2008 in a live-in relationship. In 2011, she bore his twins. After a while, she obtained a decree of divorce from her previous husband, who gave her permanent maintenance of INR 40 lakhs.

In 2012, Sheela found out that Jigar was already married. Consequently, Jigar filed an application for eviction (an application to get her out of the house) following which Sheela demanded interim maintenance for herself and her twins (under Section 125 of Code of Criminal Procedure, 1973).

While determining whether a live-in partner would be entitled to maintenance, the Bench reiterated the holding of the Supreme Court in an earlier case. It said that where partners live together as husband and wife, a presumption would arise in favor of wedlock.

The Court referred to an earlier judgment which recommended that the word ‘wife’ in Section 125 of Code of Criminal Procedure, 1973 should be amended to include a woman who was living with the man like his wife for a reasonably long period. The Bench said that the fact that twins were born out of this relationship indicated the couple’s intent to give it some permanence. That can entitle the woman to claim interim maintenance over and above the permanent maintenance she had already received from her first husband. The Court, therefore, awarded a reduced sum of interim maintenance to the woman to tide over any immediate difficulty.

(The above-mentioned case is a factual one in the records of the Punjab and Haryana Court. Names have been changed to protect identities.)

 

Seasoned lawyers share noteworthy judgments

Advocate Nirmala Menghrajani, 65, Advocate Family Court, Bandra, Mumbai, is a specialist for mutual consent divorces in Mumbai. About maintenance during divorce proceedings, she says: “Either the husband or the wife can make an interim application for maintenance during the divorce proceedings if he or she is unable to maintain himself or herself. If the said party fails to pay the maintenance amount, the other party can file a contempt proceeding in the Honorable Court of Law.”

Geetika Jain, 30, Advocate High Court, Mumbai makes notable points, “Granting interim maintenance is at the discretion of the judge and may be applicable to both the man and the woman. In most cases, it is a woman who demands interim maintenance. Financial stability of both the parties is taken into consideration while granting or rejecting an interim maintenance plea. In an ideal scenario, the judge needs to be unbiased. Also, certain factors like deserting, infidelity, etc. need to be taken into consideration in interim maintenance cases.”

Mahesh Dhaloomal, 66, Advocate City Civil and Small Causes Court, Kalbadevi, Mumbai refers to a very interesting case, “There was an impressive case where the interim maintenance law was in favor of the husband. The premise of the case was that an interim or permanent maintenance will not be granted as it is proved that the wife wants to reside separately. No maintenance to a deserting wife.”

Knowing the law may not ease your emotional upheaval, but it can help you ease your financial woes. Stay aware and stay vigilant.

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