Essential Conditions for Granting Maintenance

What are the Essential Conditions for Granting Maintenance

Conditions essential maintenance to be granted:

(i) Sufficient means to maintain: As per Section 125(1) of the Code of Criminal Procedure, the person from whom maintenance is sought should have the means sufficient to maintain not just himself but also the person who has claimed maintenance. In this case “means” does not refer only to means which are visible such as definite employment or real property. When the man is healthy and has a body capable of earning, he must be thought to possess the above stated means such as definite employment and real property.”Sufficient means” is not confined to actual monetary resources but should also refer to the capacity of earning. The capacity or ability to earn is not confined to having a body or state of mind that is fit. It also requires the opportunity to be able to earn, experience and education, and also finances. A person who is healthy and has an able body must be taken to have the means necessary to support his wife, children or/and parents. In order to fix the amount of the maintenance, the capability of the person must also be proven.

(ii) Neglect or refusal to maintain: Under Section 125(1) of the Code of Criminal Procedure, the individual from whom maintenance is sought should have neglected or refused to maintain the person/persons claiming their entitlement to maintenance. Neglect is taken to mean either a default or omission when a demand is absent. “Refuse” pertains to a failure to maintain or even a denial of obligation to maintain even after a demand has been made. An act of neglect or refusal may be in the form of words or actions that may be implied or expressed. Neglect and refusal could also be taken to mean something more than just omission or failure. The burden of proving the neglect lies on the claimant. Although it has to be decided on the facts that are presented, wilful negligence happens to be a question of law. “Wilful” here means the deliberate design or set purpose of the mind and also the also the action moving at the same time. Failure or omission, even when there is a duty to be maintained, amounts to refusal and neglect. Maintenance includes lodging, clothing and food that are appropriate.

(iii) The person who is seeking maintenance must be incapable of maintaining himself/herself. As the primary objective of Section 125 of the Code is to prevent destitution and vagrancy, the order to pay maintenance should only be in respect to people who cannot and are unable to maintain themselves financially. The wife’s inability to maintain herself is an important fulfilment for being eligible to apply for maintenance. Section 125(1) (a) of the Code states that maintenance to a wife can only be granted when she cannot manage to maintain herself. Maintenance refers to food, lodgings and clothing that is appropriate. The phrase “unable to maintain herself” does not indicate that the wife should be in absolute destitution and vagrancy, begging on the streets in clothes that are tattered.

The amount of maintenance must be determined bearing in mind the standard of living of the claimant. The amount should be such that the woman is now enabled to maintain herself but it should not be drastically below the standard of living that the wife was accustomed to living before the separation. The wife is not specifically required to present the plea that she is not capable of maintaining herself. A hale and hearty wife who has been educated adequately enough to fend for herself but simply refuses to earn and even claims maintenance from her husband is very well entitled to claim maintenance but her circumstances will result in making her disentitled from getting the full amount of maintenance.


For more information, contact