Maintenance can be claimed from your spouse through criminal proceeding or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings, simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties does not matter at all, unlike in civil proceedings.
In case of divorce, where the wife cannot support herself, then under S.37 of The Indian Divorce Act, 1869, the wife can apply for alimony/ maintenance in a civil court or High Court and the husband will be liable to pay alimony, such sum, as the court may order, till her lifetime.
In the same way, the Court can order a lump-sum payment of alimony or, if it is satisfied that circumstances so warrant, it can also order payment on a weekly or monthly basis. Whenever the Court grants interim alimony, it has to take into account the social status of the parties, earnings of the husband, who has to pay maintenance to the wife and, the particular needs of the wife.
Under Christian law the wife alone is entitled to present a petition for alimony, pending the suit, and not the husband.
If a husband, who has sufficient means, neglects or refuses to maintain his wife, who is unable to maintain herself, the husband is liable to pay such amount as directed by the court for maintenance of his wife.
To claim maintenance you will have to prove the following:
- that there was a marriage;
- the fact that your husband has neglected/refused to provide for food, clothing, residence, and medical attendance etc. for her.
The factors that determine the quantum of maintenance are as follows:
- The position and the status of the parties;
- The reasonable wants of the claimant;
- The value of the claimant property and any income derived from such property; or from claimant’s own earnings from any other source.
- Conduct of the parties.
An application for maintenance can be filed at any of the following places:
- where the husband resides; or
- where the wife resides; or
- where the husband last resided with the wife or, as the case may be, with the mother of the illegitimate child.