Maintenance Pendente Lite, Permanent Alimony, Custody and Property

as, having regard to the respondent's own income and other property, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, seems 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.

Four things on the face of sub-section (1)

"At the time of passing any decree or at any time subsequent thereto." The application may be made later, after the decree. What it may not be made without is a decree, and that is the practical limit of the section.

The words "while the applicant remains unmarried" were omitted by the 1976 amendment. Remarriage is now dealt with under sub-section (3) as a ground to vary or rescind, rather than as an automatic cut-off.

The four factors are cumulative and one of them is conduct. The words "the conduct of the parties and other circumstances of the case" were inserted in 1976. So conduct is expressly relevant to the amount, though it is not a bar.

A charge on immovable property. This is what makes an order under section 25 worth having. A monthly sum from a person who disappears is worth nothing; a charge on land survives him.

Variation and rescission

Section 25(2). If the court is satisfied that there is a change in the circumstances of either party at any time after an order under sub-section (1), it may at the instance of either party vary, modify or rescind the order as it deems just.

Section 25(3). If the court is satisfied that the party in whose favour the order was made:

• has re-married; or
• being the wife, has not remained chaste; or
• being the husband, has had sexual intercourse with any woman outside wedlock,

it may, at the instance of the other party, vary, modify or rescind the order as it deems just.

Read sub-section (3) carefully, because it is the most examinable sentence in the chapter and it is not what most students expect.

The consequence is not automatic. Before 1976 the words were that the court "shall rescind the order"; they were substituted so that the court now may vary, modify or rescind, in such manner as it deems just. So unchastity or remarriage opens the order to review; it does not end it by operation of law.

The provision is also, on its face, unequal in expression. The wife's conduct is described as not remaining chaste, the husband's as sexual intercourse outside wedlock. Whether those come to the same thing is a fair question for an essay, and the honest answer is that the drafting reflects the standards of 1955 and has never been redrafted.

Section 26: custody of children

Section 26 provides that in any proceeding under the Act the court may, from time to time, pass such interim orders and make such provisions in the decree as it deems just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible; and may after the decree, on application, make from time to time all such orders and provisions with respect to custody, maintenance and education as might have been made by the decree or by interim orders had the proceeding still been pending; and may from time to time revoke, suspend or vary any such orders.

Four features are worth naming.

Only minor children, and only in a proceeding under this Act. A custody dispute where there is no matrimonial petition goes to the Guardians and Wards Act 1890.

Interim, final and post-decree. The section covers all three stages expressly, so the court does not become functus officio on passing the decree.

The child's wishes are named in the section itself, "consistently with their wishes, wherever possible". That is unusual for a statute of 1955 and it should be pointed out.

Everything is variable. The words "from time to time" appear three times, and orders may be revoked, suspended or varied. Custody orders are never final in the way a decree is, because the welfare of a child is a moving fact.

Section 26 does not itself state the welfare principle in terms. That comes from section 13 of the Hindu Minority and Guardianship Act 1956 and section 17 of the Guardians and Wards Act 1890, and the whole subject is drawn together in the custody chapter of Module IV.

Section 27: disposal of property

Section 27 provides that in any proceeding under the Act the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

The section is short and its limits are the point.

It reaches only property presented at or about the time of the marriage. Not property acquired afterwards, and not property bought during the marriage.

It reaches only property belonging jointly to both. Property presented to the wife alone is her stridhana and is not within the section; property presented to the husband alone is his.

It operates only through the decree, in a proceeding under the Act.

So section 27 is not a matrimonial property regime. India has none, and that is why MU sets "Existing Legislative Provisions as to Settlement of Spousal Property" as a short note, as it did in February 2023. The honest answer to that question is that the provisions are thin: section 27 of this Act for joint wedding presents, section 6 of the Dowry Prohibition Act 1961 for dowry received by anybody else, which must be transferred to the wife, and the general law of property for everything else. There is no statutory division of matrimonial assets on divorce in India.

That is a real gap and it is worth saying so. A spouse who has spent a marriage running a household and has no title to anything acquires no share in it by the fact of the marriage.

How the four sections fit with the rest of the law

A student should be able to say where else a claim could go.

The lesson of the table is that this Act deals with money and children only as an incident of matrimonial litigation. Every free-standing claim lives in another statute.

A worked example

Nisha has filed for divorce. She has no income; her husband earns well. They have a daughter of six. At the wedding both families gave jewellery which is now in the husband's custody.

While the petition is pending. Section 24: where it appears that either the wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, the court may order the respondent to pay the expenses of the proceeding and a monthly sum, having regard to the petitioner's own income and the respondent's income. The application is to be disposed of within sixty days from the date of service of notice as far as possible.

Is it only for the wife? No. It is expressed for either spouse.

At the end of the case. Section 25: at the time of passing any decree or at any time subsequent, the court may order the respondent to pay a gross sum or a monthly or periodical sum for a term not exceeding the applicant's life, having regard to the respondent's income and other property, the applicant's own, the conduct of the parties and other circumstances, and may secure it by a charge on immovable property.

Can it be changed later? Section 25(2): on a change in circumstances the court may vary, modify or rescind the order. Section 25(3): if the party in whose favour it was made remarries, or, being the wife, is not remaining chaste, or, being the husband, has sexual intercourse with a woman outside wedlock, the court may vary, modify or rescind it as it thinks just.

The daughter. Section 26: the court may pass interim orders and make provisions in the decree about the custody, maintenance and education of minor children, consistently with their wishes wherever possible, may make such orders after the decree, and may revoke, suspend or vary them; an application about maintenance and education pending the proceeding is to be disposed of within sixty days of service.

The jewellery. Section 27: in any proceeding under the Act the court may make such provisions in the decree as it deems just and proper with respect to any property presented at or about the time of marriage which may belong jointly to both the husband and the wife.

And what section 27 does not reach. Property that is hers alone is not "jointly" owned, and her remedy for that lies elsewhere, in the Domestic Violence Act and in the Dowry Prohibition Act.

What it does NOT mean

Section 24 is not a wife's remedy. It is available to either spouse who lacks sufficient independent income.

It is not a maintenance order for the future. It is pendente lite, and it includes the expenses of the proceeding.

Section 25 is not confined to the time of the decree. The court may act at the time of passing any decree or at any time subsequent to it.

Permanent alimony is not necessarily permanent. It may be a gross sum, and any periodical sum is for a term not exceeding the applicant's life, and it may be varied or rescinded.

Rescission on remarriage or unchastity is not automatic. The court may vary, modify or rescind as it thinks just.

Section 26 is not limited to the decree. Orders may be made before it, in it, and after it, and may be revoked, suspended or varied.

Section 27 does not divide all matrimonial property. It reaches property presented at or about the time of marriage which belongs jointly to both.

Quick revision

• s.24, maintenance pendente lite: for either spouse with no independent income sufficient for support and the necessary expenses; the court orders the expenses of the proceeding and a monthly sum, having regard to both incomes; to be disposed of within sixty days of service of notice as far as possible.
• s.25, permanent alimony and maintenance: at the decree or at any time subsequent; a gross sum or a periodical sum for a term not exceeding the applicant's life; regard to income and other property of both, the conduct of the parties and other circumstances; may be secured by a charge on immovable property; may be varied, modified or rescinded on changed circumstances, and on remarriage or unchastity as the court thinks just.
• s.26, custody: interim orders, provisions in the decree and orders after it, about custody, maintenance and education of minor children, consistently with their wishes wherever possible, revocable and variable; the interim application to be disposed of within sixty days.
• s.27, property: provisions in the decree about property presented at or about the time of marriage which may belong jointly to both.

Test yourself

1. Who may claim maintenance pendente lite, and what may be ordered? Either the wife or the husband, where the applicant has no independent income sufficient for his or her support and the necessary expenses of the proceeding. The court may order the respondent to pay the expenses of the proceeding and such monthly sum during the proceeding as it may seem reasonable, having regard to the petitioner's own income and the income of the respondent.

2. What is permanent alimony, and on what is it fixed? An order under section 25 made at the time of passing any decree or at any time subsequent to it, requiring the respondent to pay a gross sum or a monthly or periodical sum for a term not exceeding the applicant's life, having regard to the respondent's own income and other property, the applicant's income and property, the conduct of the parties and other circumstances of the case. It may be secured by a charge on immovable property.

3. When may such an order be varied or rescinded? On a change in the circumstances of either party, under section 25(2); and under section 25(3) if the party in whose favour it was made has remarried, or, being the wife, has not remained chaste, or, being the husband, has had sexual intercourse with any woman outside wedlock, the court may vary, modify or rescind it as it thinks just.

4. What does section 27 allow the court to do? To make, in any proceeding under the Act, such provisions in the decree as it deems just and proper with respect to any property presented at or about the time of marriage which may belong jointly to both the husband and the wife.