Granting of maintenance is a measure of social justice, by itself. It is the
fundamental duty of a man to maintain his wife, children, parents, near
relations, etc. so long as they are unable to maintain themselves. Maintenance
law in India relating to Hindu female can be classified in to two types. The
first type envisages maintenance following a divorce, or some other matrimonial
remedy, such as, nullity of marriage.
The second type envisages maintenance during the subsistence of marriage In the
first category the maintenance can be claimed under the Section 25 of Hindu
Marriage Act 1955 and in the second category maintenance to wife, parent and
children under Section 125 of CrPC and Hindu Adoption and Maintenance Act, 1956.
In this paper an attempt has been made to ascertain the nature and scope of the
maintenance and maintenance of wife, widow and dependent under Hindu Adoption
and Maintenance Act 1956. & Section 25 of CrPC. Also, an attempt has been made
to bring out the lacunae in the core maintenance laws governing the head of the
Hindu family and sufficient remedies have been provided for the same.
Not only is maintenance a concern for the person, but also for society as a
whole. It has a propensity to foresee famine, so indirectly defending the
fundamental human right. Even though the legislation allows for both temporary
and permanent maintenance for the aforementioned parties, there is still much to
be done in this area. This paper aims to identify those gaps and offers some
recommendations for how to close them.
"The aged parents, a virtuous wife and an infant child must be maintained even
by doing hundred misdeeds". -- Manu
The benevolent jurisprudence of maintenance is rooted in the humanistic approach
towards social and individual morality. The word 'maintain' is derived from the
French term 'maintenir' and in Latin the French word 'main' is identical to
'manus' which means 'hand' and 'tenir' is identical to 'tenco' means 'to hold'1
i.e. to provide hand to the one in need. The term maintenance comprehends food,
clothing, shelter, and medical care. It means the supply of the necessaries of
In simple words, maintenance is an amount paid to one of the parties in the form
of financial assistance. All provisions of Hindu law apply to Hindus, including
Sikhs, Jains and Buddhists, as defined in Section 2 of the Hindu Marriage Act
1955. I Section 3(b)1, "Maintenance" includes:
(ii) in the case of an unmarried daughter, the reasonable costs of the case in
her marriage; The primary reason for granting child support is to maintain a
reasonable standard of living for your spouse or other dependents prior to
separation. This article provides an insight into the various provisions related
to maintenance under Hindu law.
Types of Maintenance:
- 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
fulfil the immediate needs of the petitioners.
In Purusottam Mahakud v. Smt. Annapurna Mahakud 2, Supreme Court held
that the right to claim interim maintenance during a suit may be a
substantive right under section 183 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.
- Permanent Maintenance:
This refers to the granting of maintenance in the form of a periodic or
monthly amount after completion of the procedure. This is provided for in
Section 254 of the Hindu Marriage Act, 1955. Each spouse can claim this
Concept of Maintenance
The concept of maintenance has a social purpose. It is to give legal recognition
to a moral obligation of a man which is to provide maintenance to the people who
are dependent on him such as his children, wife and aged parents. The inability
of the dependents to maintain themselves could lead to a plethora of social
The state here is obligated to enact provisions supporting the dependents which
otherwise could lead a multitude of problems as they would be left destitute and
without any support from anywhere.
The concept of maintenance given in the above stated acts is in consonance with
Part IV Article 395 of the act which clearly states that the State shall, in
particular, direct its policy towards securing that the citizens, men and women
equally, have the right to an adequate means of livelihood, and that the tender
age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength and are
protected against exploitation and against moral and material abandonment.
Maintenance can be rightfully claimed by persons under their personal laws owing
to the fact that such claims are of civil in nature. When maintenance is claimed
under the CrPC, it is of criminal in nature and any person regardless of their
religious background can claim maintenance under this.
Under Indian law, the concept of maintenance usually includes the right to food,
clothing, and housing available to wives, children, and parents. It is a measure
of social justice and is the result of a man's natural duty to support his wife,
children, and parents when they are unable to provide for them on their own.
Maintenance was a problem for society as a whole, not just for the
underprivileged. When someone, despite having adequate means, is unable to
provide for their loved ones, the affected people may become disliked or banned
by society and turn to countries that are against the interests of society are
forced to use transportation. Recognizing this, for the purpose of preventing
poverty and the consequences that may arise from poverty, rights equivalent to
those set out in the People's Law have been made available under the criminal
jurisdictions of India.
Burden of Proof:
The burden of proof initially is on the dependent claiming the maintenance to
prove that the other party has a moral duty of maintenance toward the dependent
and that he has sufficient means to maintain him moreover that the dependent was
'neglected' or the other party has 'refused to maintain' him/her.
In the recent case of Kamala and ors. v. M.R. Mohan Kumar,
7 the court
reiterated an already settled principle of law that unlike other proceeding of
marital nature, when maintenance is under question a strict proof of marriage is
not essential. If the parties have been living together as husband and wife it
will be presumed that they are legally married for the purpose of maintenance.
In Shailja & Anr. v. Khobanna
,8 it was stated by the supreme court that
the wife's capability to earn could not be a reason to reduce the maintenance
awarded to her. The difference was pointed out that capability to earn and
actually earning are two very different factors.
Maintenance of Dependants:
- Subject to the provisions of sub-section (2)9 the heirs of a deceased
Hindu are bound to maintain the dependents of the deceased out of the estate
inherited by them from the deceased.
- Where a dependent has not obtained, by testamentary or intestate
succession, any share in the estate of a Hindu dying after the commencement
of this Act, the dependent shall be entitled, subject to the provisions of
this Act, to maintenance from those who take the estate.
- The liability of each of the persons who takes the estate shall be in
proportion to the value of the share or part of the estate taken by him or
- Notwithstanding anything contained in sub-section (2) or sub-section (3)
no person who is himself or herself a dependent shall be liable to
contribute to the maintenance of others, if he or she has obtained a share
or part the value of which is, or would, if the liability to contribute were
enforced, become less than what would be awarded to him or her by way of
maintenance under this Act.
Do dependants need to be maintained?
Now that we have already seen who dependents are and why they need maintenance,
let us proceed further and see how to maintain them and who is obligated to
Section 22 of the act states:
- That dependants of a deceased Hindu must be maintained by his heirs with
the aid of the estate that they inherited from the deceased
- When the dependents have not been left with any share in the property or
estate by way of will or succession, they are still entitled to be
maintained by whoever takes over the estate.
- If multiple persons have taken over the property of the deceased, each
one of them will be liable to maintain the dependents.
- The amount of maintenance to be paid will be divided among them
depending on the value of the share they hold in that property.
- In case a dependent has obtained some part of share in the property of
the deceased, they will not be liable to maintain other dependents.
- Others who have taken over the property will still have to maintain
other dependents but the dependent holding a share shall be excluded and
maintenance will now be paid from the remaining property.
General Rules of Maintenance of Dependants Section (22):
- The obligation is tagged to the estate and not to the person. Hence the
obligation limited to the extent to which the heir has the estate of
deceased in his or her hands.
- Dependants are entitled only if has not obtained, share by testamentary
or intestate succession, in the estate of the Hindu cloying after the
commencement of their act.
- Liability of each of the persons who takes estate shall be in proportion
to the value of the share or part of the estate taken by him or her.
- No person is obliged to maintenance if she/he obtains a share or part,
the value of which is, or would sufficient for maintenance for his/her life.
- EX: - under a will of a Hindu his widow takes an estate yielding an
annual income of 5000/- and this a mount is just sufficient to maintain her.
Now suppose there is a mother of the deceased Hindu who has not got no share
in the estate. Both are dependents under section 2114 of Act.
- None of the dependents is entitled to maintenance, if he or she has
ceased to be a Hindu by conversion to some other religion.
- Section 22 then provides that, subject to what is stated below, the
heirs of a deceased Hindu are bound to maintain the dependants of the
deceased out of the estate inherited by them from the deceased.
- It is further provided that if a dependent has not obtained (by
testamentary or intestate succession) any share in the estate of a Hindu
dying after the commencement of the Act, such a dependent can claim
maintenance from those who take the estate.
- It may also be noted that the liability of such persons (as are referred
to above) is not joint and several, but is proportionate to the value of the
share or the part of the estate received by each of such persons.
- Section 22 also lays down that a person who is himself a dependant of
the deceased male or female, and has taken a share or part of the estate of
the deceased, is liable to contribute towards the maintenance of any other
dependant who has not obtained any share by testamentary or intestate
His proportionate contribution in any such case is, however, to be computed
in such a manner that what remains with him of the share of the estate after his
liability to make contribution is enforced, is not less than what would have
been awarded to him by way of maintenance as a dependant.
Dependants based on personal obligation:
- Personal obligation means that a Hindu is personally liable,
irrespective of the property that he has inherited or his earrings, to
provide for certain relations who are dependent on him.
- These relations have been specified in the following sections of Hindu
Adoption and Maintenance Act, 1956.
- Section 18(1) declares that whether married before or after this act, a
Hindu wife shall be entitled to claim maintenance by her husband during her
- Section 20(1) declares that a Hindu is bound to maintain his children,
legitimate or illegitimate, and aged or infirm parents. Section 20(2) says
that a child, legitimate or illegitimate, can claim maintenance from father
and mother, until the child is a minor.
- Section 20(3) says that the right to claim maintenance of aged or infirm
parents and unmarried daughter extends in so far as they are not able to
maintain themselves through their other sources of income.
Dependants based on obligation tied to property:
- A person has obligation to support certain relations of another person
whose property has devolved on him. In this case, this obligation is not
personal but only up to the extent that it can be maintained from the
- Section 21 specifies the relations of the deceased who must be supported
by the person who receives the deceased property.
- Section 22 (1) says that heirs of a Hindu are bound to maintain the
dependents of the deceased out of the estate inherited by them from the
deceased. Thus, this obligation is to be fulfilled only from the inherited
property and so it is not a personal obligation.
Recent court rulings make it clear that the Indian courts have been increasingly
lenient when making decisions about maintenance. However, there is debate over
whether a paramour may be considered entitled to support simply by virtue of
living with a married man, and there is also debate over whether bigamy is
Even if it seems like it from the decisions made under the personal laws,
section 12521 court rulings continue to support the idea that only a lawfully
married woman can request maintenance. Not just the community as a whole, but
also the weaker groups, have been concerned with maintenance. For weaker
sections, it is a problem in the sense their very survival rests on the
provision made available as maintenance.
References & Bibliography:
- Cambridge Dictionary (2020). MAINTENANCE | meaning in the Cambridge
- The Constitution of India.Art 39
- The Code of Criminal Procedure, 1973.S. 125
- The Hindu Marriage Act, 1955.S 25
- The Hindu Adoptions and Maintenance Act, 1956.S 20
- The Hindu Adoption and Maintenance Act, 1956
- The Hindu Marriage Act, 1955
- Dr Saxena Poonam, Family Law Lectures, ed. 3, LexisNexis, 2011.
Award Winning Article Is Written By: Mr.Vibhu Verma
Authentication No: SP227079243181-27-0922