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A Comprehensive review of maintenance under Hindu law

Granting of maintenance could be a measure of social justice, by itself. it's the elemental duty of a person to take care of his wife, children, parents, near relations, etc. see you later as they're unable to take care of themselves. the item of maintenance is to forestall immorality and destitution and ameliorate the condition of ladies and kids.

Maintenance law in India referring to Hindu female is classified in to 2 types. the primary type envisages maintenance following a divorce, or another matrimonial remedy, such as, nullity of marriage. The second type envisages maintenance during the subsistence of marriage within the first category the upkeep may be claimed under the Section 25 of Hindu Marriage Act 1955 and within the second category maintenance to wife, parent and youngsters under Section 125 of CRPC and Hindu Adoption and Maintenance Act, 1956.

In this paper an effort has been made to establish the character and scope of the alimony and maintenance of wife, widow and dependent under Hindu Adoption and Maintenance Act 1956. and Section 125 of CrPC. Also, a trial has been made to bring out the lacunae within the core maintenance laws governing the pinnacle of the Hindu family and sufficient remedies are provided for the same. The research methodology of the paper is basically descriptive, analytical and doctrinal in nature.

Concept Of Maintenance

The term maintenance has been defined in Section 3 (b) of the Hindu Adoption and Maintenance Act, 1956, as follow; (b) "Maintenance" includes (i) in all cases, provisions for food, clothing residence, education and medical attendance and treatment; (ii) in the case unmarried daughter also the reasonable expenses of an incident to her marriage. It must be noted that in the Indian matrimonial law the term �alimony' is used interchangeably with 'maintenance'.

These are synonymous terms. Though, in strictly legal sense, the term alimony relates to the provisions made pendente lite, no such distinction can be attributed under the Indian matrimonial law. In Black's Law Dictionary, the meaning of the word 'Alimony' has been explained on the basis of the decided cases as follow; "The word "alimony" comes from Latin "alimonia" meaning sustenance, and means, therefore, the sustenance or support of the wife by her divorced husband.

The Right to maintenance comes from the concept of an Undivided family, where the top of such family is absolute to maintain the one who isn't financially independent to create a correct living and capable of enjoying the fundamental necessities of life that he or she is cheap expected to enjoy. the full concept of maintenance was introduced to form the living of such person possible and independent. Maintenance is that the duty of an individual which he owes to his dependent relatives by which both the person and also the property are bound.

Under Indian law, the term �maintenance� includes an entitlement to food, clothing and shelter, being typically available to the wife, children and oldsters. it's a measure of social justice and an outcome of the natural duty of a person to keep up his wife, children and fogeys, once they are unable to keep up themselves[1] . Maintenance has been a priority not only for the weaker sections but of the society as an entire.

When one despite having the sufficient means fails to support his dependents then such concerned persons are forced to happen upon the state for assistance alternatively take a carrier detested or prohibited by the society which matches against the interest of the society. Thus, within the acknowledgement of this and with the aim to forestall the outcome that may tend to arise out of poverty and destitution a right, parallel to at least one provided under personal laws, is additionally made available under Criminal Jurisdiction in India. the thing of maintenance is to stop immorality and destitution and ameliorate the financial condition of ladies and youngsters.

The persons who are qualified for maintenance under the Hindu Adoptions and Maintenance Act (HAMA), 1956 are wife, widowed daughter-in-law, children, aged parents and dependents as enumerated in Section 21 of the Act. Whereas, under the Muslim law, the persons entitled to maintenance are wife, young children, the necessitous parents, and other necessitous relations within the prohibited degrees. The Muslim Law of maintenance is predicated on the Muslim personal laws and also the law enactments like the Indian Majority Act, 1875, the Criminal Procedure code 1973, Muslim Women (Protection of Rights on Divorce) Act, 1986.

The provisions of Section 125, Cr. P.C., 1973 apply and are to be enforced regardless of whatever maybe the non-public law by which the persons in India are governed[2] Simultaneously, it must be understood that non-public laws of the parties concerned, Hindus, Muslims, Christians are to be duly cared of because the same are important to come to a decision the validity of the wedding tie, if any, (existent or not) then cannot be completely put aside from due consideration.3

Maintenance Under Hindu Law

Many Hindu sages of Ancient India including Manu and Brihaspati were of the opinion that maintenance of certain persons may be a personal obligation. �A man may give what remains after the food and clothing of family. The one (giver) who leaves his family unfed may taste honey initially but afterwards finds it poison.�4 Mitakshara, which is one among the foremost important and oldest school of Hindu Law says that �Where there could also be no property but what has been self- acquired, the sole persons whose maintenance out of such property is imperative, are aged parents, wife and minor children.�

The provisions of maintenance under Hindu law finds its roots in (a) the Shastric Hindu personal laws which has its underlying foundations within the Dharmashastra. With the passage of your time the necessity for codification of Hindu Law with relevance marriage, adoption, succession and maintenance was felt and thus two principle acts:
  1. The Hindu Marriage Act and
  2. The Hindu Adoptions and Maintenance Act, 1956 were promulgated.
However, Modern sources of Hindu Law consists of three main sources like:
  1. Equity, Justice and good conscience
  2. Precedents
  3. Legislation.[3]

Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 defines maintenance.

This section says �Maintenance include:

  1. in all cases, provision for food, clothing, residence, education and medical attendance and treatment,
  2. in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage, (c) �minor� means a person who has not completed his or her age of eighteen years.
In State of Haryana v. Smt. Santra5 it was held that it is a liability created by Hindu Law and arises out of jural relation of the parties. Section18 of the HAMA, 1956 deals with the maintenance and separate residence of wife.

Interim Maintenance:

The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree to fulfill the immediate needs of the petitioners. In Purusottam Mahakud v. Smt. Annapurna Mahakud 6, Supreme Court held that the right to claim interim maintenance during a suit may be a substantive right under section 18 of the Act. Since no form is prescribed to enforce the said right civil court in exercise of its inherent power can grant interim maintenance.

Maintenance Pendente lite:

Pendente lite means counting on the end results of the litigation. The rule is that after considering the financial status of the husband during the litigation process, the wife is awarded maintenance pendente lite despite the very fact that there is no specified provision mentioned within the act for the grant of pendente lite.

Divorced woman can claim maintenance so long as she continues to enjoy the status of wife. The husband of the lady who divorced her has a statutory duty to maintain her if she cannot maintain herself and, she remains unmarried.7

The duty to keep up the wife remains on the husband although the wife could be living separately. It is a settled law that a court empowered to grant a substantive relief is competent to award it on interim basis furthermore, while there is no express provision within the statute to grant it.

Permanent Maintenance

It is the maintenance granted permanently after the disposal of the proceeding for divorce or separation.

Hindu Marriage Act, 1955, Section 25 � Applicant, either wife or husband is entitled to receive from the spouse for his/her maintenance and support a gross sum or monthly or periodical sum for a term not exceeding the applicant�s lifetime or until he/she remarries or remains unmarried.

Hindu Adoption and Maintenance Act, 1956, Section 18:

Hindu wife is entitled to be maintained by her husband during her lifetime. Wife also has a right to separate residence and maintenance if any of the condition in Section 18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same house, conversion of religion or any other reasonable cause] is fulfilled until she remains chaste or does not convert to other religion. It may also be noted that Section 19 of this Act makes a provision for a widowed wife to be maintained by her father-in-law.[4]
Maintenance to widow:

Widow has no charge on separate property of husband. Neither section 18 relating to maintenance of wife nor section 21 dealing with widow provides for any charge for maintenance on separate property of husband.

Right of Separate residence:

The wife is entitled to live separately without forfeiting her right to maintenance, if her husband is guilty of desertion, if he subjects the women to cruelty, if he is suffering from a leprosy, if he has any other wife living, keeps a concubine in the house where his wife resides, if he has ceased to be a Hindu, or if there is any other cause justifying her to live separately under Section 18(2) of the HAMA.

The wife had been living alone and all the children had been brought up by her without any assistance and help from the husband and there was a clear case of desertion, the wife was entitled to separate residence and maintenance. The claim for maintenance by a wife can also be sustained under clause (g) even on a ground covered by one or other clauses i.e. clause (a) to (f) of section 18(2) substantially but not fully. Merely because the wife fails to strictly prove the specific grounds urged by her, she cannot be denied relief.7

In Komalam Amma v. Kumara Pillai Raghavan Pillai, the Supreme Court ruled that maintenance necessarily encompasses a provision for residence and therefore ordered that the woman be provided with a residential facility similar to that which she had been accustomed in the past.

Maintenance of widowed daughter in law:

Section 19 of the HAMA, provides that a widowed daughter-in-law is entitled to be maintained by her father�in �law. In Raj Kishore Mishra v. Meena Mishra 8, it was held that where from the estate of the parents, the daughter-in-law can maintain herself; question of father-in-law does not arise.

Section 20 of HAMA obligates the head of the Hindu Family to maintain the children and the aged and the infirm parents. Here not only the father but the mother is also obligated to maintain them. Section 22 of Hama obligates the head of the Hindu Family to maintain his dependents which is defined under section 21. [5]

Maintenance Of Wife:

The right of maintenance under Hindu law is incredibly ancient and it had been one among the first necessities of the joint family system. According to my understanding the maintenance of the women in the joint family system was a crucial system and this was followed as a convention which governed the families. It absolutely was the responsibility of the head of the family (karta) to look after the women of the family i.e. their wives and their daughters until they were married. Later when the women grew older it had been the duty of their children to mother and other old women of the family.

The unchastity on part of the women excluded them to maintenance. Their remarriage ended the claim and therefore the amount of maintenance depended upon various factors like the status of the family, necessary requirements, wants, age, etc. Section 24 of Hindu Marriage Act, (HMA) 1955 allocates for maintenance. Under this Act also, only a wife has a right to claim maintenance. The Hindu husband contains a legal obligation to take care of his wife during his lifetime.

However, if a wife ceases to be Hindu or lives individually under no legal grounds, she loses the right to claim maintenance too. Also, a Hindu wife under this act shall not be entitled to separate accommodation and maintenance from her husband if she is unchaste or converts to a different religion. Wife can claim separate residence only if husband remarries and therefore other wife stays within the same house. Under this act (Section 19), a (Hindu) wife after the death of her husband is entitled to be maintained by her Father in-law, if she has no means of her own earnings. However, the right cannot be enforced if her Father in-law does not have means to try and do so and if the wife remarries.

The liabilities of a Hindu to maintain others are personal liability and liability dependent on possession of property where the former arises from mere relationship between the parties and the latter arises due to possession of property. Maintenance of Wife under Section 18, the Hindu Adoptions and Maintenance Act, 1956 Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her spouse for lifetime i.e. she will be given maintenance until she dies or her husband dies. Under section 18 of this Act a Hindu wife is entitled to live separately from her husband without cancelling her right to claim maintenance.

The grounds under which she can live separately are:

  1. Husband is guilty of desertion
  2. The Husband has treated her with cruelty
  3. The husband is agonizing from a virulent form of leprosy
  4. The husband has any other wife living.
  5. The husband keeps a concubine elsewhere
  6. The Husband has halted to be a Hindu by conversion to another you religion and
  7. if there is any other cause justifying living separately but there are two bars which will prevent a wife from claiming maintenance from her husband i.e. (i) if she is unchaste or (ii) if she halts to be a Hindu by conversion to another religion.

Calculation of Maintenance under Hindu Laws

The amount of maintenance to paid depends upon different factors. The courts rely on the provision of Section 23 of the Act while asserting the total maintenance that the husband needs to pay to his wife.

The provision lays down the following factors that must be considered to fix a maintenance amount:

  • The position and status of the husband and wife
  • Whether the wife has an actual claim for maintenance.
  • If the wife is living separately, whether the reason to do so is justified.
  • The wife�s total property and income.
  • The husband�s total property, income generated from this property, and his other income.
  • The total number of dependents and their expenses borne by the husband and the personal expenses of the husband.

In determining the amount of maintenance, the following has to be considered;

  1. The net value of the estate of the deceased after providing for payment of debts
  2. The provision, if any made under a will of the deceased.
  3. Degree of relationship with the dependent.
  4. �Reasonable wants of dependent.
  5. No. of dependents.
The claim of a dependent for maintenance does not impose any change on the estate of deceased unless a will mandates the same. Under Section 24 of the Hindu Marriage Act, 1955 relief may be provided by way of maintenance and litigation expenses to either of the spouse if he/she is unable to maintain herself during the pendency of proceedings.

Under Section 25 of the Act, 1955 both husband and wife may be granted maintenance and permanent alimony after passing a decree of restitution of conjugal rights, judicial separation, divorce and annulment of marriage under the said Act, if the husband or wife is unable to maintain himself/ herself

It is evident from the recent judicial decisions that the Indian courts have been progressively liberal in deciding cases pertaining to maintenance. The root of contention however is whether a paramour can become entitled to receive maintenance merely from the fact that living with a married man, coupled with dispute as to whether the bigamy is legally permissible.

While it appears from the decisions passed under the personal laws that the same may be possible, judicial decisions pertaining to section 125 continue to uphold the view that maintenance can be claimed only by a legally wedded wife. Maintenance has been concern of not only weaker sections but of the society as well. For weaker sections, it is a problem in the sense their very survival rests on the provision made available as maintenance.

  1. A.I.R. 2005 SC 1809
  2. Nanak Chand v. Chandra Kishore, A.I.R. 1970 SC 446.
  3. Yamunabai v. Anant Rao, A.I.R. 1988 SC 644.
  4. Brihaspati, XV
  5. (2005) 5 S.C.C. 182
  6. Meera Nireshwalia v. Sukumar Nireshwalia, A.I.R. 1994 Mad 168
  7. Meera Nireshwalia v. Sukumar Nireshwalia, A.I.R. 1994 Mad 168. 13 A.I.R. 2009 SC 636.
  8. Law Commission�s 41st Report, 303

    Award Winning Article Is Written By: Ms.Bussa Lohitha Krishna
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