MAINTENANCE:

MAINTENANCE:

Ø  Maintenance is a monetary support that a woman is entitled to get from her husband following divorce or separation, so that she may fulfill her needs for living. The maintenance amount is fixed based on her life status and her husband's earning capacity. The amount can be given on a monthly basis or in a lump sum. All women are entitled to get maintenance irrespective of their religion.

Ø  Among Hindus and Christians, woman can claim maintenance for her entire life if she doesn't remarry or does not have a sexual relationship with another man. However, under Muslim personal laws, a divorced Muslim woman is to be maintained by her husband only during the period of 'Iddat'. Iddat is that the period during which a divorced woman is not permitted to remarry. This period could be:

·         Three menstrual cycles after the divorce

·         If the woman is not subject to menstruation, then three months after the divorce

·         If the woman is pregnant, then the period upto the delivery of the child

A Muslim woman's children are also entitled to maintenance till they are two years of age.

Application for maintenance should be made to the court while the divorce proceedings are still ongoing, so that the court can pass an order for payment of maintenance both during the case proceedings and after the divorce.

 If the husband does not pay in spite of the court order, the woman must notify the court and it can jail him through criminal court proceedings. The court can also order attachment of his property.

In the absence of a husband, from whom can she ask maintenance?

Ø  If a Hindu woman is unable to maintain herself on her own or from the estate of her husband, she can seek maintenance from her parents, or her children, failing which she can seek maintenance from her father-in-law.

Ø   A Muslim woman (daughter), after the iddat period can ask for maintenance from her parents, children, relatives who would be entitled to inherit her property and the State Wakf board.

CHILD CUSTODY:

Ø  After a divorce, the husband and wife start living separately. The question arises as to with whom their children will live, and who will pay for their maintenance and for how long.

Ø  In all the child custody cases, the court considers the welfare of the child. Examining all circumstances, the court will decide whether the child should be with the mother or the father.

Ø   If the welfare of the child demands, the child will be given to the mother even if she has no means to support herself. The father will have to pay for their maintenance. While all the above points are applicable to all religions, the two points mentioned below are applicable only to Hindus and Muslims respectively.

Ø  Although the father is the natural guardian of the child, the Hindu mother is entitled to the custody of her small children until they are at least five years old unless she is proved unfit.

Ø  Under some schools of Muslim Law the mother is entitled to custody of the children until they are seven years old. Under others, she is entitled to custody of the children upto the time they attain puberty.^[1]

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[1] Property Rights of Women in India, Elizabeth Glaser Pediatric AIDS Foundation and European Union, http://www.saathii.org/sites/default/files/legal-literacy/property-rights/Job%20aid%20on%20Property%20Rights%20of%20Women%20in%20India.pdf