• Entitlement of wife/children monthly maintenance from husband

One of my relative (mother of two) is faced with the following case scenario. 

She is a graduate, 42 year old, living in Faridabad (with her seventy year old mother) with two children aged 7(girl) and 2 (boy). The girl goes to school in a reputed school.  

When couple was married nine years ago my relative earned more than her husband. She was a fashion designer. 

She had to leave the job five years ago and take care of two children. 

Five years ago the husband went abroad. He began earning about forty lak per year. In these five years the couple has bought two flats in their joint names. Husband has been paying monthly regular maintenance and supporting my relative and their two children rather decently.    

Recently   the husband has threatened divorce and stopped paying monthly maintenance and blocked access to his bank account. They did not have a joint account. 

Questions: 
What is the remedy for the wife to claim maintenance, what percentage of husband’s salary can she claim and its chances of success. 

Approximate time that maintenance order might take pending other proceeding including that of separation, custody of children, division of property etc. 

If a final divorce comes through what could be wife’s share in the property. Does it include ancestral property such as land in village also?
Asked 1 year ago in Family Law from Australia
Religion: Hindu
1) wife can get one third of husband income as maintenance 

2) maintenance may take 6 months to one year to be awarded 

3) if wife files suit for partition it may take some years to be disposed of 

4) wife had no share in husband property except those properties that are in joint names 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
1. The wife can claim maintenance from her husband and the quantum of maintenance varies from 1/3 to 1/5th of income of husband. The wife can claim maintenance in a case u/s 125 crpc or under PWDV Act.
2. The maintenance case takes time but if interim relief is sought for then the interim order comes within 6 months from the date of order.
3. The case of  maintenance has no relation with the pendency of other case like the ones you have mentioned.
4. In maintenance case the wife is not granted with any share in property of her husband. Only monthly maintenance is granted.
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
4.9 on 5.0
1. The remedy for wife is to file a case for maintenance in the court against her husband. It is the duty of husband to give financial support to his wife if she is not earning. He is also under an inescapable obligation to maintain his children. The amount of maintenance cannot be foretold by us as it is for the court to decide, albeit it may be 1/3rd of his income. 

2. The issue of child custody has no connection with the claim to maintenance. If she is desirous of getting the custody of her child then she is required to file a separate case for child custody.

3. She can cull out her share in the joint properties by filing a lawsuit for partition. She has no share in the ancestral property, but her child has it which his mother can cull out by filing for partition.

4. It may take 4-6 months before she may get maintenance interim from the court.

5. Divorce will not emasculate the share of wife in the joint property. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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What is the remedy for the wife to claim maintenance, what percentage of husband’s salary can she claim and its chances of success. 
If there is no divorce pending, she can file a maintenance case for herself and her two children before a Judicial magistrate first class under the provisions of section 125 cr.p.c.  The quantum of maintenance will depend on the amount she  reliably believes it to be true, if possible she may produce the authentic documents before the court to prove his income or source of income. There is no yard stick to measure the quantum however it may be between 1/3rd and 1/2 of his income when it comes for consideration for three people seeking maintenance. 


Approximate time that maintenance order might take pending other proceeding including that of separation, custody of children, division of property etc. 

It  depends on the court and its proceedings. 




If a final divorce comes through what could be wife’s share in the property. Does it include ancestral property such as land in village also?
Whether divorce or otherwise, she is entitled to an equal share in the jointly owned property, she cannot claim anything beyond that including the ancestral property or the properties lying on his name alone. 
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
5.0 on 5.0
1. Wife can file a DV case claiming maintenance for herself and her children. If he files a divorce suit, wife can file a maintenance petition as per HM Act pending disposal of the suit. Normally any thing in between 1/5th to 1/3rd of his salary is awarded as maintenance for the wife and children. Chances of getting maintenance is very bright,

2. Maintenance  will be provided from the date of filing divorce suit if the maintenance application is filed as per HM Act while contesting the divorce suit. Otherwise it is from the date of filing the application. Ad-interim order will be granted on the 2nd or 3rd hearing of the petition,

3.  Divorced wife is not entitled to any share of husband's property.She is entitled to maintenance only.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
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