Divorce is referred to as legal dissolution of a valid marriage thereby dissolving or putting an end to the matrimonial ties, duties and responsibilities between the spouses. 

Maintenance on the other hand is referred to as the legal obligation of one spouse towards the other of “maintaining” themselves as to the standards of living prior to divorce or initiation of divorce proceedings, which generally consists of financial support towards their well-being including but not limited to food, clothing and shelter.

Divorce and maintenance are concepts which have experienced various changes in India, largely due to the increased legal awareness, social, cultural and financial shifts and the progressing gender roles. Divorce, which once was considered a taboo, is now being discussed and understood as a legal right protecting the personal dignity and mental well-being of an individual.

Legal structure and Concept of Divorce & Maintenance in India

India being a land of diverse cultures and religions, recognizes multiple personal laws for solemnisation and dissolution of marriages. Each personal law has its own set of rules and processes largely based on the customary practices and religion such as Hindu Marriage Act, Marriage under the Muslim personal laws, Special Marriage Act etc.

Marriage, Maintenance and Divorce under the Hindu Marriage Act, 1955

1.     Marriage under the Hindu Marriage Act 1955

Hindu Marriage Act 1955 applies to Hindus, Jains, Buddhists, and Sikhs, where a marriage is solemnised on performance of Saptapadi (taking seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. The pre-requisites or conditions of a valid marriage explained under Section 5 of the Hindu Marriage Act are as below-

1. neither party has a spouse living at the time of the marriage;
2. at the time of the marriage, neither party- a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or, b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or, c) has been subject to recurrent attacks of insanity
3. the bridegroom has completed the age of twenty-one (21) years and the bride, the age of eighteen (18) years at the time of the marriage;
4. the parties are not within the degrees of prohibited relationship unless it is permitted in the custom governing each of them;
5. the parties are not sapindas of each other, unless it is permitted in the custom governing each of them.

2.     Divorce under the Hindu Marriage Act 1955

The Hindu Marriage Act 1955 permits dissolution of marriage under two categories which are-

A.    Contested Divorce

A contested divorce explained under Section 13 of the Hindu Marriage Act is a type of divorce wherein one spouse seeks for divorce however the other spouse objects to the divorce per se and the reasons thereof. This disagreement leads to a legal dispute which can be due to various reasons such as want of the other party to continue the marriage, issues on agreeing to terms with respect to child custody, alimony, division of assets held jointly, etc. and hence requires judicial intervention.

A marriage performed in accordance with the Hindu Marriage Act 1955, can be dissolved on a petition presented by either the husband or the wife, on the following grounds such as-

1. Adultery
2. Cruelty
3. Desertion
4. Conversion
5. Unsoundness of mind or psychopathic disorder
6. Venereal disease in a communicable form
7. Renunciation of the world by entering any religious order

B.    Divorce by Mutual Consent

Section 13B of the Hindu Marriage Act 1955 explains an amicable dissolution of marriage which is mutual consent divorce i.e. a divorce which is mutually agreeable to both the spouses.

A petition for dissolution of marriage by mutual consent can be presented to the court of competent jurisdiction by both the parties to a marriage together. The said petition is presented in two folds being First motion i.e. the first application seeking divorce from the Court and the Second motion  i.e. the second application qua the same. The divorce by mutual consent can be sought on the following grounds :

a)    they have been living separately for a period of one year or more before presentation of the first motion petition;

b)    that they have not been able to live together

c)     that they have mutually agreed that the marriage should be dissolved.

Cooling off period- whether mandatory or not

Sub-section (2) to Section 13-B of the Hindu Marriage Act provides that after the first motion is passed, the couple would have to move to the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than eighteen months of the first motion.

No action can be taken by the parties before the lapse of six months since the first motion. When the second motion is filed, the court is to make an inquiry, and on satisfaction that the averments made in the petition are true, a decree of divorce is granted.

The legislative intent behind incorporating sub-section (2) to Section 13-B of the Hindu Marriage Act is that the couple must have time to introspect and consider the decision to separate before the second motion is moved. However, there are cases of exceptional hardship, where after some years of acrimonious litigation and prolonged suffering, the parties, with a view to have a fresh start, jointly pray to the court to dissolve the marriage, and seek waiver of the need to move the second motion. 

3.     Maintenance under the Hindu Marriage Act 1955

Section 24 and 25 of the Hindu Marriage Act covers aspects of temporary and permanent maintenance and alimony for marriages solemnised under the HMA.

a)  Section 24 covers maintenance pendente lite and expenses of proceedings, which can also be referred to as temporary maintenance. It is provided by the court on application by either the husband or wife,  in case it appears to the court that the applicant has no independent income sufficient for her or his support and the necessary expenses of the proceedings.

The court, if convinced, may order the respondent to pay to the petitioner the expenses of the proceeding, and monthly maintenance during the proceedings, considering the petitioners own income and the income of the respondent and various other factors as well.

b)    Section 25 covers Permanent alimony and maintenance  which is granted by the court on an application made by either the wife or the husband, as the case may be, wherein the respondent shall 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 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.

Change of circumstances

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 granting maintenance or alimony, the court may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

Further, if the court is satisfied that the party in whose favour an order has been made under this section has re-married 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 wedlock, 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.

4.     Maintenance under Section 125 Criminal Procedure Code (Cr.Pc)

Section 125 of the Criminal Procedure Code orders for maintenance of wives, children and parents wherein any person neglects or refuses to maintain them even after having sufficient means to do so.  The following fall under the ambit of this section-

(a) his wife, unable to maintain herself.

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain themselves.

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself.

(d) his father or mother, unable to maintain themselves.

In conclusion, the legal framework governing divorce and maintenance for Hindus in India seeks to balance traditional values with contemporary notions of justice and equality. While the Hindu Marriage Act, 1955 provides clear grounds and procedures for divorce, it also emphasizes reconciliation and the sanctity of marriage. Maintenance, as outlined in both the Act and relevant case laws, serves as a crucial safeguard to ensure financial security, particularly for the economically weaker spouse. As societal norms continue to evolve, it remains essential that these laws adapt to protect the rights and dignity of all individuals involved, promoting not just legal resolution, but humane outcomes in the process of marital dissolution.