Alimony and Maintenance under the Special Marriage Act

Matrimonial litigation often leaves one spouse without the means to sustain herself or conduct the case. The Special Marriage Act provides for maintenance during the proceedings under section 36 and permanent alimony under section 37. Unlike the Hindu Marriage Act, both provisions are framed in favour of the wife alone. This note covers the two sections, how alimony is fixed and varied, the parallel remedies, and the Supreme Court's guidelines in Rajnesh v Neha.

1. The Two Provisions

Figure 1: Sections 36 and 37

• Section 36. In any proceeding under Chapter V or VI, where the wife has no independent income sufficient for her support and the expenses of the proceeding, the district court may, on her application, order the husband to pay the expenses of the proceeding and a weekly or monthly sum during the proceeding, having regard to his income.
• Sixty days. A proviso inserted in 2001 requires the application to be disposed of, as far as possible, within sixty days from service of notice on the husband.
• Section 37(1). At the time of passing any decree, or at any time afterwards, the court may order the husband to secure to the wife, if necessary by a charge on his property, a gross sum or a monthly or periodical payment for a term not exceeding her life, having regard to her own property, the husband's property and ability, the conduct of the parties and other circumstances.
• Variation, s.37(2) and (3). The court may vary, modify or rescind the order on a change in the circumstances of either party, and, at the husband's instance, if the wife has remarried or is not leading a chaste life.

2. Wife Only: Comparison with the Hindu Marriage Act

Figure 2: Who may claim under each Act

• The difference. Sections 36 and 37 speak only of the wife. A husband married under this Act cannot claim maintenance or permanent alimony under them, whereas ss.24 and 25 of the Hindu Marriage Act allow either spouse to claim.
• Other remedies. A wife may also claim maintenance under s.144 of the BNSS (formerly s.125 CrPC) and monetary relief under the Protection of Women from Domestic Violence Act, 2005, which apply regardless of religion or form of marriage.
• Decree of any kind. Permanent alimony may be granted on any decree under Chapter V or VI, including nullity and judicial separation, not only divorce.

3. Rajnesh v Neha (2020)

Figure 3: Supreme Court guidelines on maintenance

• Purpose. The Supreme Court laid down guidelines for all maintenance proceedings, whatever the statute, to avoid conflicting orders and delay.
• Overlapping claims. Where a wife claims under several laws, she must disclose earlier proceedings and orders, and the court must take into account amounts already awarded.
• Disclosure. Both parties must file affidavits disclosing their assets and liabilities in the prescribed format at the outset.
• Date and enforcement. Maintenance is payable from the date of the application, and orders may be enforced as money decrees, including by civil detention and attachment.

4. Frequently Asked Questions

Can a husband claim maintenance under the Special Marriage Act?

No. Sections 36 and 37 provide for maintenance pendente lite and permanent alimony only in favour of the wife. This differs from ss.24 and 25 of the Hindu Marriage Act, under which either spouse may claim.

From which date is maintenance payable?

From the date of the application, as directed by the Supreme Court in Rajnesh v Neha (2020) for all maintenance proceedings, to avoid prejudice from delay in deciding the claim.

5. Related Topics

• Topic 23: Custody of Children, Section 38. Maintenance and education of children.
• Topic 28: Special Marriage Act and Hindu Marriage Act Compared. Differences in ancillary relief.