Divorce and Maintenance in India under Hindu Law

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.

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.

1. 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 :
   1. they have been living separately for a period of one year or more before presentation of the first motion petition;
   2. that they have not been able to live together
   3. that they have mutually agreed that the marriage should be dissolved.

1. 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 :
   1. they have been living separately for a period of one year or more before presentation of the first motion petition;
   2. that they have not been able to live together
   3. that they have mutually agreed that the marriage should be dissolved.

1. 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

1. 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.
2. 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.

1. 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.
2. 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.

1. 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-

1. his wife, unable to maintain herself.
2. his legitimate or illegitimate minor child, whether married or not, unable to maintain themselves.
3. 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.
4. 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.

1. his wife, unable to maintain herself.
2. his legitimate or illegitimate minor child, whether married or not, unable to maintain themselves.
3. 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.
4. 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.