Can I get maintenance while divorce proceedings are going on?
There is a provision in Hindu Marriage Act, 1955 under section 24, called, ‘maintenance pendente lite and expenses of proceedings’. The section says that where in any proceeding under this Act it appears to the court that either party is in dire need of financial needs financial support to bear expenses, it may award maintenance while proceedings are going on.
However, to attract this section, the party must file an application asking for maintenance and convince the judge to get monthly expenses during the proceedings. Depending upon the requirement and the earnings of the respondent, the court decides what is the reasonable amount should be awarded.
There are precedents as well for such cases; one of them is Sudeep Chaudhary vs Radha Chaudhary wherein it was held by the Supreme Court of India that wife is eligible for interim alimony as well. In a recent case, the Bombay High Court held that a family court can pass an ex parte order and even direct the husband to pay maintenance to his wife and children.
Even if you are educated, you can claim maintenance
In the case of Abdul Salim v. Nagima Begam the Supreme Court held that the phrase ‘unable to maintain herself’ should not be interpreted to mean that a wife in order to claim maintenance should be an absolute destitute or should be in tattered clothes, or should be the first one out of the street to beg.
The honorable court pointed that the very fact is that she has no other means of her own other than that of her husband to maintain her adequately to entitle her to the right of maintenance.
Ex parte divorce and maintenance
The Bombay High Court observed that such orders under section 125 of the Criminal Procedure Code (Cr.PC) can be granted by the family court judge; however, they must be satisfied that there is a prima facie case for ordering maintenance. For the satisfaction the family court judge can even call for affidavits to be filed by the person applying for maintenance.
The fundamental logic behind the court’s decision was that a person approaches the court for maintenance as he or she is not in a position to maintain him or herself. Justice Bhangale held that if such a person is told that she will have to wait and will be entitled to maintenance only after considerable time, it would be difficult for her to maintain herself for years.
The High Court of Bombay paid attention to delay by husbands who avoid receiving notices, a lot of time is spent on serving notice to the husband and it becomes difficult for the applicant. The judge observed that an application can be filed under section 127 of the Cr.PC to modify or cancel the order of maintenance, if changed circumstances are pointed out.