A significant share of Delhi marriages — inter-faith marriages, civil marriages, and registrations chosen for their neutrality — are solemnised or registered under the Special Marriage Act, 1954. When those marriages break down, maintenance is governed not by the Hindu Marriage Act but by the SMA's own provisions: Section 36 for alimony pendente lite and expenses of proceedings, and Section 37 for permanent alimony and maintenance. The architecture will feel familiar to matrimonial practitioners, but the provisions have their own text and their own edges, and they coexist with the religion-neutral remedy under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023. This explainer sets out how the two sections work.
Where SMA maintenance sits in the statutory map
Maintenance in Indian law runs on parallel tracks: the personal-law or marriage-statute track, the religion-neutral criminal-procedure track (Section 125 of the Code of Criminal Procedure, 1973, now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023), and the Domestic Violence Act track. For couples married under the Special Marriage Act, the first track runs through Sections 36 and 37 of that Act — provisions that mirror, with differences, Sections 24 and 25 of the Hindu Marriage Act, 1955. The forum in Delhi is the Family Court dealing with the matrimonial case.
| Provision | Stage | Who may claim | What is granted |
|---|---|---|---|
| Section 36, SMA | During a pending SMA proceeding | Wife | Expenses of the proceeding and weekly or monthly sums pendente lite |
| Section 37, SMA | At or after a decree under Chapter V or VI | Wife | Permanent alimony — gross sum or periodical payments, chargeable on property if needed |
| Section 144, BNSS | Independent of any matrimonial case | Wife, children, parents | Monthly maintenance; interim maintenance; enforcement through the Magistrate |
Section 36: interim support and litigation expenses
Section 36 answers the first practical problem of matrimonial litigation — how a wife without independent income funds her defence and survives while the case runs. Where it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may order the husband to pay her the expenses of the proceeding and such weekly or monthly sum as the court considers reasonable, having regard to the husband's income. Two features deserve emphasis. First, the provision is need-and-means driven: the wife's own income is weighed against the husband's, and Delhi practice tests both through sworn affidavits of assets, liabilities, income and expenditure filed by each side. Second, Parliament added a disposal timeline: the application is, as far as possible, to be decided within sixty days from service of notice on the husband — a recognition that interim maintenance delayed is interim maintenance denied.
Section 37: permanent alimony
Section 37 operates at the decree stage and afterwards. The court exercising jurisdiction under Chapter V (restitution and judicial separation) or Chapter VI (nullity and divorce) may, at the time of passing the decree or subsequently on application, order the husband to secure to the wife such gross sum or such monthly or periodical payment of money for a term not exceeding her life as the court thinks just, having regard to her own property and income, the husband's property and income, and the conduct of the parties. The payment may be secured by a charge on the husband's movable or immovable property — a device worth invoking where compliance history is poor or assets may be alienated.
Change of circumstances
Section 37(2): on proof of changed circumstances after the order, the court may vary, modify or rescind it — upward or downward.
Remarriage and conduct
Section 37(3): remarriage of the wife, or proof that she is not leading a chaste life, permits variation or rescission of the order.
Security
Alimony may be secured by a charge on property, converting a personal obligation into a real one enforceable against the asset.
Working the overlap
Nothing bars a wife in an SMA marriage from proceeding under Section 144 BNSS or claiming monetary relief under the DV Act; those remedies are statute-neutral, and each has advantages — the BNSS route offers the Magistrate's enforcement machinery, the DV route travels with residence and protection orders. The discipline lies in adjustment: where more than one forum awards maintenance, later orders account for earlier ones, and every affidavit must disclose parallel proceedings and payments. Practitioners should also mind the sequence at the decree stage — a wife who lets the divorce decree pass without a Section 37 claim must move the same court subsequently, and questions of arrears run from order, not from need. The clean course is to plead interim relief under Section 36 at the outset and to place the Section 37 claim squarely before the court prior to the decree.
Inter-faith couples registered under the SMA sometimes assume their maintenance rights are weaker than under personal law. They are not — but they are differently worded, wife-specific within the SMA itself, and supplemented by the neutral remedies of the BNSS and the DV Act. Choosing the sequence of forums is a strategic decision best taken at the first consultation, not after the first adverse order.
The chamber of Advocate Manish Jha advises and appears in matrimonial and maintenance proceedings before the Family Courts of Delhi and the High Court of Delhi. This article is for general information; it is not legal advice and does not create an advocate-client relationship.
Frequently Asked Questions
Who can claim maintenance under Sections 36 and 37 SMA?
The wife. Sections 36 and 37 of the Special Marriage Act are, by their text, remedies for the wife against the husband — interim support and expenses under Section 36, and permanent alimony under Section 37. A husband seeking support in an SMA marriage must look elsewhere; there is no SMA counterpart to Section 24 of the Hindu Marriage Act's spouse-neutral drafting.
When is Section 36 relief available?
While a proceeding under Chapter V or VI of the SMA — divorce, judicial separation, nullity or restitution — is pending. The court may order the husband to pay the expenses of the proceeding and weekly or monthly interim maintenance, having regard to the husband's income and the wife's own income, and the application is to be disposed of, as far as possible, within sixty days of service of notice.
Can a Section 37 permanent alimony order be changed later?
Yes. Section 37(2) permits variation, modification or rescission where the court is satisfied that circumstances have changed after the order. Section 37(3) permits variation or rescission where the wife has remarried or is not leading a chaste life. Orders may be secured, if necessary, by a charge on the husband's property.
Can the wife also invoke Section 144 BNSS or the DV Act?
Yes. Section 144 BNSS is religion- and statute-neutral, and monetary relief under Section 20 of the DV Act is independently available. But the entitlements overlap rather than accumulate: courts adjust amounts awarded across forums so that the same need is not compensated twice, and full disclosure of every parallel order is expected.