Divorce and marital separation bring not just emotional upheaval but also serious financial questions. One of the most common concerns clients bring to my office is: “Will I get maintenance?” or “How much alimony will I have to pay?” This blog breaks down the concepts of maintenance and alimony under Indian law, who is entitled to claim it, and how courts decide the amount.
What Is Maintenance?
Maintenance refers to the financial support one spouse is legally obligated to provide to the other, either during the subsistence of the marriage, during divorce proceedings, or after divorce, so that the dependent spouse (and children, where applicable) can maintain a reasonable standard of living.
Maintenance in India is not governed by a single law. Depending on personal circumstances, a claim can be made under:
- Section 125 of the Code of Criminal Procedure (CrPC) — now Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 — a secular provision available to wives, children, and parents regardless of religion.
- The Hindu Marriage Act, 1955 — Sections 24 (interim maintenance) and 25 (permanent alimony), applicable to Hindus, Buddhists, Jains, and Sikhs.
- The Hindu Adoptions and Maintenance Act, 1956 — independent of divorce proceedings.
- The Muslim Women (Protection of Rights on Divorce) Act, 1986, read with Section 125 CrPC as clarified by courts.
- The Special Marriage Act, 1954 — for inter-religious or civil marriages.
- The Protection of Women from Domestic Violence Act, 2005 — allows monetary relief as part of a broader protection order.
Maintenance vs. Alimony: What’s the Difference?
The terms are often used interchangeably, but there is a subtle distinction:
- Maintenance is a broader term covering ongoing financial support, which may be awarded during litigation (interim/pendente lite maintenance) or after the final decree (permanent maintenance).
- Alimony typically refers specifically to the sum awarded at the time of, or after, divorce — often as either a lump sum or periodic payments — to enable the recipient spouse to live with reasonable comfort.
In practice, Indian courts and statutes often use “maintenance” as the umbrella term that includes what is commonly called alimony.
Who Can Claim Maintenance?
Contrary to popular belief, maintenance is not a one-way entitlement. The law recognizes:
- Wives — the most common claimants, whether during marriage, during divorce proceedings, or after divorce, provided they do not have independent, sufficient means.
- Husbands — under certain personal laws (notably the Hindu Marriage Act), a husband unable to support himself can claim maintenance from a wife with independent income.
- Children — minor children, and in some cases, unmarried daughters or disabled adult children, are entitled to maintenance from either parent.
- Aged or infirm parents — who are unable to maintain themselves from their own earnings or property.
How Do Courts Decide the Amount?
There is no fixed formula, but Indian courts weigh several factors consistently, including:
- The income and earning capacity of both spouses.
- The standard of living the parties were accustomed to during the marriage.
- The reasonable needs of the claimant and any dependent children.
- The paying spouse’s financial obligations and liabilities.
- The duration of the marriage.
- Whether the claimant is capable of self-support or is actively seeking employment.
- Property owned by either spouse, whether self-acquired or inherited.
The Supreme Court, in various rulings, has cautioned against maintenance becoming either a tool of harassment or an inadequate pittance — the goal is to ensure the dependent spouse is not reduced to a state of destitution, without unjustly penalizing the paying spouse.
Interim vs. Permanent Maintenance
Interim maintenance (pendente lite) is granted while the case is still pending, to help the claimant meet litigation costs and daily expenses.
Permanent alimony/maintenance is decided at the conclusion of proceedings and may be a one-time lump sum settlement or a periodic (monthly) payment, sometimes with provisions for future modification.
Can Maintenance Be Modified or Terminated?
Yes. Maintenance orders are not necessarily permanent in the literal sense. They can be:
- Increased or decreased if there is a material change in circumstances — such as a significant change in either party’s income.
- Terminated typically upon the remarriage of the recipient spouse, or in some cases, if the recipient is found to be living in a manner inconsistent with need, such as cohabitation with another partner.