Alimony Under Hindu Marriage Act : An Overview

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Under the present study an attempt is made to ascertain the nature and scope of the alimony under Hindu
Marriage Act enjoyed by both spouses against each other in view of recent Supreme Court decision in Savitaben
case[1] in which Supreme Court denied to provide alimony to the wife because her marriage was void in the eye of
the law. Various rights have been attributed to Hindu wife and husband on matrimonial issues under the Hindu
Marriage Act. Yet on few issues the rights of wife and husband are different from each other but on many issues
both the spouses stand on equal footing. Right of alimony is also one of them.
Alimony means the allowances which husband or wife by court order pays to other spouse for maintenance while
they are separated or after they are divorced (permanent alimony) or temporarily, pendig a suit for divorce
(pendente lite). The principle is that one who is unable to maintain oneself, has a right to be maintained. The
object is not to publish but to make realize ones legal liability, to provide for those who are unable to support
themselves, to make the weaker section of the society to exist the live, to prevent destitution on public grounds
and on the basis of moral support as well, the subject is legally acknolwedged.
Alimony pendente lite :
The object of enacting the provision for maintenance and expenses during the pendency of the proceeding in
Section 24 is that a wife or husband who has no independent income sufficient for her or his support or enough to
meet necessary expenses of the proceedings, may not be handicapped.[2] So the doctrine of pendente lite and
permanent alimony is based on economic tutelage of a spouse. It aims at administering justice and maintaining
equilibrium between the parties.
This section applies to both husband and wife equally. Law has placed both the spouses on the same footing for
this purpose.[3]
The power of the court of ordering alimony pendente lite in a pending proceeding for matrimonial relief has been
provided by Sec. 24 of Hindu Marriage Act, 1955.[4] The liability is on the person who initates the proceedings to
maintain the opposite party during the pendency of the proceedings if the opposite party is unable to maintain
herself and to meet the expenses of the proceedings.[5]
In order of alimony pendente lite should be supported by reasons and the applicant is to establish that he or she
has no independent income sufficient for his or her support and for necessary expenses of the proceeding or if he
or she has income the nature of quantum of it, the income, of the respondent of the application for alimony and
the quantum thereof, the nature and extent of applicants needs both for maintenance and expenses of
proceedings.[6]
The discretion in the matter of granting maintenance pendente lite and cost of litigation is to be exercised on sound
legal principles. If the applicant has no independent means, he or she is entitled to interim maintenance and
expenses unless good cause is shown for depriving him or her of it. The matters that may properly be considered in
this connection are :
(i) whether applicant is being supported by an adulterer, and
(ii) whether the respondent has not sufficient means.
Thus, where the wife was prepared to go and live with the husband but the husband did not wish to keep her with
him on the ground of her inability of consummate the marriage the wife is entitled to maintenance. The fact that
the petitioning spouse is maintained by his or her parents is no ground to deprive the petitioner of his or her
maintenance and expenses of litigation.[7] For considering the application for grant of interim maintenance, only
independent income of the petitioning spouse or the conduct of her is material.[8]
The expression sufficient in the collocation of the word sufficient means for his or her support. Sufficient is not
some. The word sufficient connotes that the income of the applicant must be such which would be sufficient for a
normal person for his or her sustenance as well as to meet the necessary expenses of the proceeding.[9] So the
fact that the wife sits in her fathers shop and earns a paltry sum by knitting and by tuition is not relevant in
deciding the question of alimony pendente lite,[10] neither the fact that the father of the wife is suporting her nor
her refusal to live with the husband could be any ground for denial of maintenance under Sec. 24.[11] The
question whether the wife is guilty of desertion cannot be decided at the time of passing order of maintenance
pendente lite.[12]
It is noticeable that Sec. 24 only refers to income and not other property. So in case of alimony pendente lite other
property of the spouses should not enter judicial consideration.[13] Therefore immovable property yielding no
income cannot be considered. Only the income out of it received by the applicant can enter judicial consideration.
[14]
To have almony pendente lite it is not necessary that petitioners should have no income of her or his own. If the
income of the petitioners is found by court to be insufficient to support her/him the court may order the other party
to pay to the petitioner an allowance monthly and litigation expenses. Even if the petitioner fails to aver that she
has no source of income the petition is not liable to be dismissed.[15] The word sufficient is a relative term and has
to be considered on facts of each case. Thus in a case the wife who was earning Rs. 900 per month was allowed
alimony pendente lite to the extent of Rs. 500 per month. Her husband was earning Rs. 8000 per month.[16]
Applicant spouse when is possessed of sufficient means, the applicant is neither entitled to maintenance pendente
lite nor litigation expenses. The comma after the word proceeding is to be ignored.

The words wife having no independent income insufficient for her support suggest that income of the wife must
be independent and must be sufficient for her support. So, even if the wifes parents are affluent, the wife has no
independent income of her sufficient to support her is entitled to maintenance pendente lite under Section 24 of
the Act.[17] The plea of having no job when the husband is qualified and he refuses several offers of job on the
pretext that it would not suit him is not available as a defence against a petition for alimony pendente lite by wife.
[18]
A husband who voluntarily incapacitates himself cannot be absolved of his liabiity to maintain the wife. In
Sousseau Mitra v. Chandana Mitra[19] Case, the husband graduate in science and a B.Ed. coming from respectable
family and able bodied capable of earning, contended that he was earlier working as a typist-cum-clerk but had
resigned and so was out of employment. The Court held that he couldnt avoid his liability to maintain his wife and
child by voluntarily incapaciting himself. The Court can legitimately take into consideration his ability to earn a
reasonable amount.
Alimony pendente lite and litigation expenses may be granted in any proceedings under the Hindu Marriage Act
provided other conditions for such grant are satisfied. The grant of such relief is not in any case dependent either
on the merits of the case or on the ultimate success of the main petition. In Shiva Kumar v. Pushpa Rekha[20] case
she filed a petition for nullity of marriage on ground of mental and physical cruelty caused on account of failure to
consummate the marriage. She also claimed pendente lite and expenses of proceedings under Section 24 which
was decreed. The husband admitted non-consummation but pleaded that it was the wife who deliberately avoided
consummation. He pleaded that a decree of nullity could have been passed on his admission (as to nonconsummation) thereby disentitling the wife from claiming maintenance. The plea however, was negatived and it
was held that such admission by the husband cannot be said to be unequivocal, besides grant of relief under
Section 24 is not dependent on the ultimate success of the petition.
Alimony pendents lite quantum : The preponderance of judicial opinion is that in respect of alimony pendente lite
under the Hindu Marriage Act there is no hide bound formula as to the quantum the Court is to award as alimony
pendente lite.[21] There is no fixed formula for allowing maintenance out of the income of the husband to the wife.
In some cases 1/3rd of the income of the husband has been allowed as maintenance to the wife and in some cases
one-half of the income. Maintenance for the wife is to be fixed keeping in view all the facts and circumstances of
each case.[22]
The wife is entitled to have the same status as her husband. She must have the necessary medical facility, food,
clothing etc. while fixing the amount of maintenance the Court should also take into consideration the inflation and
cost of living. Where the estimated income of the husband was Rs. 20,000 per month alimony pendente lite to the
tune of Rs. 5,000 per month was fixed by the Supreme Court.[23]
It is common knowledge that in maintenance cases parties rarely disclose their actual income. It is, therefore, left
to the Court to make an assessment by taking various factors into consideration. One of the most significant
guidelines or factors is the status and lifestyle of the parties. In Radhika v. Vineet Pungta[24] case the wife in her
application for interim maintenance admitted that she has some nominal income from interest on deposits though
she did not state the real income. Accepting wifes appeal the Court observed :
Experience. . . . . . . . . dictates that where a decision has to be taken pertaining to the claim for maintenance and
the quantum to be granted, the safer and surer method to be employed for coming to a reasonable conclusion is to
look at status of the parties since while income can be concealed, the status is palpably evident to all concerned. If
any opulent life style is enjoyed by warring spouses, he should not be heard to complain or plead that he has only
a meagre income.[25]
Section 24 does not bar proceedings under Section 125 of Cr.P.C.,[26] being separate and independent remedies.
[27] Also by reason of Section 4(b) of Hindu Marriage Act it does not prevail over the provisions under Cr.P.C.[28]
The amount of maintenance fixed under Section 125 of Cr.P.C. may be taken into account while awarding
maintenance pendente lite.[29]
Permanent Alimony :
Section 25 makes provisions for the grant of permanent alimony. The object of this section is to treat both the
husband and the wife on equal footing for the purpose of financial assistance to be rendered permanently to the
spouse who is poverty-stricken without having any independent income of its own for maintenance and support.
This grant of permanent alimony and maintenance is circumscribed by two conditions. First, this grant will remain
in force till the applicant remains unmarried and pursues the chaste life. Secondly, this grant is the personal right
of the applicant and extinguishes with the death of the applicant.
This section differs from the provisions of similar legislations on this issue to the effect that under analogous laws
permanent alimony is granted only to the wife, but this section recognizes this right for both the spouses alike
following the legal principle of equality before law. Though Section 25 does not use the expression permanent
alimony in any part of the enactment, the marginal note to the section clearly shows that the section is intended to
deal with permanent alimony.
The concept of permanent alimony is not an indigenous concept grown on the soil and there was no law of divorce
amongst Hindus in the country. But when the Act was enacted providing inter alia for divorce amongst Hindus, the
concept of permanent alimony was borrowed by the draftsmen of the Act from England. In England a wife is
entitled to permanent alimony from the husband where a decree is passed granting relief by way of judicial
separation, divorce or nullity of marriage. Whether the decree be passed in favour of the husband or the wife, the
wife can ask for permanent alimony from the husband. The reason for awarding permanent alimony to the wife
seems to be that if the marriage bond which was at one time regarded as indissoluble is to be allowed to be
severed in larger interest of society, the same considerations of public interest and social welfare also require that

the wife should not be thrown on the street but should be provided for in order that she may not be compelled to
adopt a disreputable way of life. The provision for permanent alimony is, therefore, really incidential to the granting
of a decree for judicial separation, divorce or annulment of marriage and that also appears to be clearly the
position if the language of Section 25 is looked at.[30]
The right of permanent alimony is statutory right and as such it cannot be abridged or taken away by any contract
of the parties to that effect. Thus the husband cannot contract out nor is the wife bound by any such contract.[31]
It is significant to note that the relief of permanent alimony is a relief incidental to the granting of the substantive
relief by the Court in the main proceeding. It is an incidental relief claimed in the main proceeding, though an
application is necessary for claiming it. The application is an application in the main proceeding for claiming an
incidental relief consequent upon the granting of the substantive relief by the Court.
The Punjab High Court in Full Bench[32] has laid down that when the language of Section 25(3) is taken along with
Section 25(1), it is clear that in Section 25 the statute has described the parties to the proceedings under the Act
as husband and wife and not only for the stage before or by the time of passing of decree under the Act but for the
purposes of grant of permanent alimony even after that. So, the description of the parties for purposes of Section
25 continues to be exactly the same as it was in the original proceeding for any decree under the Act. The fact
that the proceedings for grant of permanent alimony are incidental to the main proceedings also lends support to
this approach. Therefore an application under Section 25(1) can be made even after the grant of a divorce decree.
This section has no application where a marriage is admittedly a nullity. But where the question of nullity is in issue
and is contentious, the Court has to proceed on the assumption until contrary is proved that the wife is the
applicant.[33]
Section 25 differs from Section 18 of the Hindu Adoptions and Maintenance Act, 1956. Though this section confers
power on the Court to order the permanent alimony and maintenance but this power is discretionary and is
exercised with reference to certain well established principles. On the other hand, Section 18 of the H.A.M.A. does
not provide any such discretionary power and as such the Court is to pass order under this section on
determination of question of facts and questions of law. Thus, no question of judicial discretion is involved in this
matter. Further Section 4 of the HAMA, 1956 does not impliedly repeal Section 25 of the Act.[34] Under Section 18,
husband is personally liable for his wifes maintenance because such right is an incident of the status of matrimony.
[35] For such right valid marriage is a pre-condition. This right of wife is a part of our ancient law but such right
does not accrue in case of void marriage. The right may be refused if decree on restitution of conjugal right is
operating against wife.[36]
Section 25 does not deprive the wife of her right of maintenance even if the divorce is granted on the ground of
desertion on the part of the wife.[37] The Court can in appropriate cases grant relief of maintenance to women
from the estate of her deceased husband even though it is found by the Court that the marriage was void. This
power of the Court can be invoked on the principles of Section 25 of the Act in additon to the principles under
Section 151 of C.P.C.[38] Bombay High Court held that in place of written application oral request is quite
sufficient.[39] But contrary view was expressed by M.P. High Court.[40] Order of permanent alimony is not bar for
maintenance under Section 125 of Cr.P.C. but first order should be considered while passing later order.
It may be noted that in sub-section (1) of Section 25, apart from various other matters to be taken into account,
the Court is also to take into account the conduct of the parties when a request is made for payment of alimony
and maintenance. Sub-section (2) provides for the Court varying, modifying or rescinding any order already passed
under sub-section (1) on being satisfied that there is a change in the circumstances of either party at any time
after the order was passed under sub-section (1). But there is another special provision contained in sub-section
(3) making it obligatory on the Court to cancel an order passed under sub-section (1), under the circumstances
mentioned in that sub-section, the Court has to cancel an order passed under Section 25(1). These circumstances
are :
(i) The party in whose favour maintenance is awarded has remarried.
(ii) If that party is the wife, that she has not remained chaste, and
(iii) If such party is the husband, that he had sexual intercourse with any women outside wedlock.
In Raja Gopalan v. Rajamma[41] case the question was as to whether in a case where a charge of adultery is the
very foundation of a claim for asking judicial separation and that claim is accepted by a Court notwithstanding that
finding the respondent against whom that finding has been entered, can claim, as of right, to be awarded
maintenance under Section 25 of the Act. Even going by the wording of Section 25 of the Act, jurisdiction is given
to the Court, at the time of considering an application for grant of maintenance, to take into account, the conduct
of the parties, and in this case, the Court has adverted to the aspect that there has been a stray instance of lapse
on the part of the respondent, but nevertheless that conduct by itself is, according to the Court, not sufficient to
disable her from claiming maintenance.[42]
In the context of Section 25 the expression, only decrees means any of the decree referred to in the earlier
provision of the Act, i.e. nullity of marriage, or of divorce passed under Sections 9 to 14 of the Act. When the main
petition is dismissed and no substantive relief is granted under Sections 9 to 14, there is no passing of a decree as
contemplated by Section 25 and the jurisdiction to make an order for maintenance under the section does not
arise. The term any decree in the section, however, cannot be construed to include every decree. In Bhau
Saheb v. Leelabai[43] the issue involved was whether an order dismissing a wifes petition seeking declaration that
marriage was valid can come under the return any decree. The Court considered some hypothetical situation to
indicate that the term any decree cannot be expanded or streched too liberally to include any Court order.
A problem arising under Section 25(1) is of ascertaining the income and property of the parties for fixing the
quantum of alimony and maintenance. In practice the difficulty comes in ascertaining the income and property of

the respondent. The applicant is not generally aware of or is not in possession of documents from which the income
of respondents can be ascertained. Such documents are accessible to the respondent only. It is, therefore,
suggested that matrimonial statutes themselves should contain specific provisions which would make it obligatory
on the parties of maintenance proceeding to produce documents particularly Income-tax Return. In an instant
judgment Allahabad High Court observed that without recording any finding regarding income of the husband for
payment of maintenance is not proper.[44]
Conclusion :
According to the Preamble of the Indian Constitution the dignity of the individual man or woman be achieved with
justice, liberty and equality. The dignity of the women is a new human right recognized under Art. 21 of the
Constitution. The right to live under Art. 21 is not a mere life with dignity and worth. The justice includes economic
justice also. There is no period of limitation prescribed by the legislation for filing application for maintenance. But
it is the enforcement system provided by the legislature which keeps the poor facing starvation in dark. All these
should be balanced through utilizing the following doctrines :
Delay defeats justice too.
Justice delayed justice denied.
Justice hurried justice buried.
If balance is maintained among these doctrines, the right to maintenance may be protected in a proper way can be
utilized for the betterment of womens position at par with the respondent, which ultimately leads to womens
development in a holistic perspective. But it is unfortunate to see that few month back Supreme Court made an
observation that marriage of a woman in accordance with Hindu rites with a man having a living spouse is a
complete nullity in the eye of the law and such woman is therefore not entitled to the benefit of Section 25 of the
Hindu Marriage Act or Section 125 of Cr.P.C.[45] The Supreme Court ought to have realized a social realism and the
plight of women, while giving a technical interpretation to the wife. A woman who has been kept in the dark
about the husbands first marriage should not be made to suffer without any fault of hers. Her life has already been
ruined because of the fraud committed by her husband. Why should she be again made to suffer destitution and
denied maintenance. No injustice will be casued if the earning husband is made to bear the liability.
It may also be submitted that Sections 24 and 25 should be available for husband only in a rare case like physically
or mentally unfit to earn. However, wife should be given more liberty to get alimony even if she is leading an
adulterous life, because the right of maintenance should be treated a separate subject. It is entirely different from
the ground of divorce, validity of marriage etc. First wife should be given an opportunity to live the life properly
thereafter other matter should be taken into consideration as without opportunity live the existence of wife is
nothing.
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1. Savitaben Somabhai Bhatiya v. State of Gujarat, AIR 2005 SC 1809.
2. Rukhmanibai v. Kishanlal Ramlal, AIR 1959 MP 187.
3. Hema v. Lakshmana Bhat, AIR 1986 Ker 130.
4. Maintenance pendente lite and expenses of proceeding : where in any proceeding under this Act it appears to
the court that either the wife or the husband, as the case may be, has no independent income sufficient for her
or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the
husband, order the respondent to pay to the petitioner the expenses of the proceedings, and monthly, during the
proceeding such sum as, havig regard to the petitioners own income and the income of the respondent, it may
seem to the court to be reasonable.
5. Sangeeta Saxena v. Gyanendra Saxena, (1995) 2 DMC 78 (MP).
6. Dashrath Yadav v. Saroj, AIR 1989 MP 242.
7. Mukan Kanwar v. Ajeet Chand, AIR 1958 Raj 322; Babulal v. Premlata, AIR 1974 Raj 93; Balti Devi v. Chhotalal,
(1986) 2 DMC 248 (MP).
8. Dashrath Yadav v. Saroj, AIR 1989 MP 242.
9. Krishnapriya Mahapatra v. Birakishore Mahapatra, AIR 1987 Ori 68.
10. Gayatri Devi v. Laxmi Kant (1986) 2 DMC 214 (MP).
11.Munnibai v. Jagdish Rathore, 1998 AIHC 3600.
12. Prem Kumari v. Om Prakash, AIR 2000 Punj and Har 311.
13. Hema v. S. Lakshmana Bhat, AIR 1986 Ker 130; Gita Chatterjee v. Prabhat Kumar Chatterjee, AIR 1988 Cal 83.
14. Gita Chatterjee v. Prabhat Kumar Chatterjee, AIR 1988 Cal 83.
15. Sukhpal Singh v. Shinger Kaur, AIR 1997 P & H 186.
16. Ashok Kumar v. Satwant Kumar, (1983) 1 DMC 27.
17. C. B. Joshi v. Ganga Devi, AIR 1980 All 130.
18. Bibi Balbir Kaur v. Raghuvir Singh, AIR 1974 Punj 225.
19. AIR 2004 Cal 61, See also Sandeep Kumar v. State of Jharkhand, AIR 2004 Jhar 23; Chandana Guha Roy v.
Gautam Guha Roy, AIR 2004 Jhar 36; Vishesh Mathur v. Neel Kiran Mathur, AIR 2004 NOC 309 (Delhi).
20. AIR 2004 NOC 253.
21. Dharamichand v. Sobha Devi, AIR 1987 Raj 159; Parchauri Rayja v. Parchuri Viswa, AIR 1995 AP 147.
22. Gurveen Karu v. Ramjeet Singh Sandhu, (1990) 2 DMC 503 (P & H).
23. Jasbir Kaur v. Distt. Judge, Dheradun, AIR 1997 SC 3397; Chitra Sen Gupta v. Dhrubajyoti Sen Gupta, AIR
1988 Cal 98.
24. AIR 2004 Delhi 323.

25. Id at 324.
26. K. G. Ganga Dhar v. T. R. Parvathi, 1988 (3) Crimes 207.
27. Smt. Raj Virendra Singh v. Lt. Col. Virndra Singh, 1985 (2) Current Civil Cases.
28. Virendra Kr. Seth v. Smt. Roopa, 1983 All CC 17 (Sum); P. K. Radha Krishna v. Rajeshwari, 1978 Cri LJ NOC
216 (Mad).
29. Guttachatterjee v. Prabhat Kr. Chatterjee, AIR 1988 Cal 83 (85).
30. Section 25 Permanent alimony and maintenance : Any Court exercising jurisdiction under this Act may, at the
time of passing any decree or at any time subsequent thereto, on application made to it for purpose by either the
wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried,
pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for
a term not exceeding the life of the applicant as, having regard to the respondents own income and other property,
if any, the income and other property of the applicant and the conduct of the parties and other circumstances of
the case it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on
the immovable property of the respondent.
(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has
made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order
in such manner as the Court may deem just.
(3) If the Court is satisfied that the party in whose favour an order has been made under this section has
remarried, or if such party is the wife, that she has not remained chaste, or if such party is the husband, that he
has had sexual intercourse with any woman outside, wed lock, it shall rescind the order it may at the instance of
the other party vary, modify or rescind any such order in such manner as the Court may deem just.
31. Hyman v. Hyman, (1929) AC 601; Manjit Singh v. Savita Kirna, AIR 1983 P & H 281.
32. Durga Das v. Smt. Tara Rani, AIR 1971 P & H 141.
33. A.P.K. Narayanaswami Reddiar v. Padmanabhan, AIR 1996 Mad 394.
34. D. S. Seshadri v. Jayalakshmi, AIR 1963 Mad 283.
35. A. Bhagwathi Ammal v. Sethu, 1988 (1) HLR 131 (Mad).
36. Smt. Kiran v. Chandra Shekher, AIR 1998 MP 69.
37. Rajinder Prakash v. Roshmi Devi, AIR 1981 P & H 212.
38. Rajeshbai v. Shantabai, AIR 1982 Bom 231.
39. S. S. Rawool v. Sulochana S. Rawool, AIR 1989 Bom 220.
40. Jai Bardhan v. Gulab Devi, 1983 MPWN 17.
41. AIR 1967 Ker 181.
42. Ibid.
43. AIR 2004 Bom 283.
44. Smt. Pushpa v. State of Uttar Pradesh, AIR 2005 All 187.
45. Savitaben Somabhai Bhatiya v. State of Gujarat, AIR 2005 SC 1809.