MAINTENANCE
A Hindu has a personal obligation to maintain
(i) his wife,
(ii) children; and
(iii) aged parents.
In addition, a widowed daughter-in-law, dependents of a deceased Hindu and members of the joint family are entitled to maintenance.
This topic deals with the maintenance of a Hindu wife.covers the following heads:
1. Maintenance: Meaning and Definition.
2. Persons entitled to get Maintenance.
3. Maintenance of Wife
A) The Hindu Adoptions and Maintenance Act, 1956 (Section 18).
B) The Hindu Marriage Act, 1955 (Sections 25 and 26).
C) The Code of Criminal Procedure, 1973 (Section 125).
1. MAINTENANCE : MEANING & DEFINITION
The term ‘maintenance’ has been used in a wide sense. It implies/ imposes an obligation to provide certain basic needs viz. food, clothing, shelter etc. without which a person cannot survive. It is a right to get the necessities which are reasonable. A text of Manu cited in the Mitakshara and the Parasara Madhavya lays down - ‘It is declared by Manu that the aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds’. Under Hindu law a person has personal obligation to maintain his wife, children and aged and infirm parents.
It arises from the very nature of the relationship and exists whether he possesses property or not. Supreme Court observed in Rcighubar Singh v. Gulab Singh (AIR 1998 SC 2401), that right to maintenance of Hindu wife is a pre-existing right that existed even under Hindu law. It was not created by 1937 or 1946 Acts. Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 states that maintenance includes:
i) In all cases, provision for food, clothing, residence, education and medical attendance and treatment.
ii) In the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.
Thus the Act recognizes five essential basic requirements in, namely food, cloth, residence, education and medical care necessary for proper maintenance of a person. Whenever provision is made for the maintenance of a dependant it contemplates that all lies essentials of life are provided to such a dependent.
The expression ‘includes’ of the definition shows that the definition is not exhaustive. In appropriate cases the court may hold that the expression ‘maintenance’ covers other cases also. Maintenance includes a wife’s right to residence. Clause 3(b)(ii) refers only to an unmarried daughter and therefore does not include a widowed daughter or a daughter who has obtained a decree for divorce. The daughter who has been forced to obtain a divorce should not be given the right to maintenance.
Personal Disqualification Are Not Allowed
In Vellaiyappa Chetty v. Natrajan [(1931) 581 A 402], it has been held that the right of maintenance includes persons who by reason of personal disqualification are not allowed to inherit, such as, the idiot, the mad man or the rest. Such persons are excluded from inheritance and a share on partition is given to them in lieu of maintenance.
Both Are Bound To Contribute To The Maintenance
In Anil Kumar v. R.Nair (AIR 1985 Kar. 20), it was observed that the expression ‘maintenance’ includes the basic requirements of life. This is the responsibility of parents and it cannot be avoided by one parent on the pretext that such liability is taken up by the other parent. Father and earning mother both are bound to contribute to the maintenance of their children in proportion to their income.
2. PERSONS ENTITLED TO GET MAINTENANCE
According to the personal law of Hindus, every member in a family is either entitled to a share or is entitled to maintenance out of the family property. Under the Hindu Adoption and Maintenance Act, 1956, the following categories of persons are entitled to claim maintenance:
1. Wife.
2. Widowed daughter-in-law.
3. Aged infirm parent and the children;
a) Legitimate and illegitimate son;
b) Legitimate and illegitimate daughter;
c) Aged and infirm parents.
4. The dependents of the deceased, which include:
a)His father.
b)His mother.
c)His widow.
d)The son, son of a predeceased son and the son of a predeceased son of a predeceased son of predeceased son of the deceased.
e) His unmarried daughters, the unmarried daughters
f) of a predeceased son and the unmarried daughters of a predeceased son of a predeceased son. His widow daughter.
g) The widow of the son and the widow of the predeceased son of a predeceased son.
h) His minor illegitimate sons.
i) His unmarried illegitimate daughters.
3. MAINTENANCE OF WIFE
Relevant Legal Provisions: A Hindu married woman, who has been separated from her husband on reasonable cause, is entitled to claim maintenance under the following provisions namely,
A) Section 18 of the Hindu Adoptions and Maintenance Act, 1956.
B) Sections 24 and 25 of the Hindu Marriage Act, 1955.
The above two provisions are applicable to Hindus only.
C) Section 125 of the Code of Criminal Procedure : It is a special provision, applicable to all irrespective of their religion i.e. Hindus and Non-Hindus. The relief under Sections 24 & 25 Hindu Marriage Act, 1955 and Section 125 Cr.P.C. is available to a married woman, who is unable to live on her own (or she has no source of livelihood). While the relief under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 is available to a Hindu Wife, though she is able to live on her own.
A) The Hindu Adoptions & Maintenance Act (Section 18) Section 18 of the Hindu Adoptions and Maintenance Act deals with the maintenance of a Hindu Wife. It reads as follows:
1. Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life-time.
2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:
i) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her.
ii) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
iii) If he is suffering from a virulent form of leprosy.
iv) If he has any other wife living.
v) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.
vi) If he has ceased to be a Hindu by conversion to another religion.
vii) If there is any other cause justifying her living separately,
3. A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
The relief (maintenance) under Section 18 is available, though she is able to live on her own (i.e. employed or properties). A Hindu Wife, who got married legally, before or after the Act can claim maintenance from her husband throughout her lifetime, under the following circumstances:
i) If her husband is guilty of desertion without reasonable cause or without her consent or against her will or wilfully neglecting her;
ii) If he is guilty of cruelty causing reasonable apprehension to her mind and that it will be harmful or injurious to live with him;
iii) If he is suffering from a virulent form of leprosy;
iv) If he has any other wife living (bigamy);
v) If he keeps a concubine (Avarudha Sthri) in the same house and resides with the concubine elsewhere;
vi) If he is ceased to be a Hindu by conversion to other religion; and
vii) Any other reason justifying her to live separately.
Under Section 18 of the Hindu Adoption and Maintenance Act, two separate rights have been conferred on the wife.
1. Right to maintenance.
2. Right to separate residence.
According to Section 18(4) of the Act, an unchaste wife is not entitled to claim maintenance. (Unchastity forfeits the claim of maintenance). Amount of Maintenance (Section 23); Section 23 of the Act empowers the Court to determine the amount of the maintenance. It runs as follows:
1. It shall be the discretion of the Court to determine whether my, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the ».msiderations set out in sub-section (2), or sub-section (3) as the use may be, so far as they are applicable.
2. In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, lizard shall be had to:
a) the position and status of the parties;
b) the reasonable wants of the claimant;
c) if the claimant is living separately, whether the claimant is justified in doing so;
d) the value of the claimant’s property and any income derived from such property, or from the claimant’s own earnings or from any other source;
e) the number of persons entitled to maintenance under this v Act.
3. In determining the amount of maintenance, if any, to be awarded to be a dependant under this Act, regard shall be had to:
a) the net value of the estate of the deceased after providing for the payment of his debts;
b) the provision, if any, made under a will of the deceased in respect of the dependant;
c) the degree of relationship between the two;
d) the reasonable wants of the dependent;
e) the past relations between the dependant and the deceased;
f) the value of the property of the dependant and any income derived from such property; or from his or her earnings or from any other source;
g) the number of dependants entitled to maintenance under this Act.
4.In simple words, the court, while determining the amount of maintenance, takes into consideration, the following factors.
i) The position and status of the parties;
ii) Reasonable wants of the claimant;
iii) Justification of separate living by the claimant;
iv) Claimant’s earnings, the value of her property, and income from such property; and
v) The number of persons entitled to maintenance under the Act.
According to Section 24, ‘no person shall be entitled to maintenance if he/she is ceased to be a Hindu by conversion to another religion. In other words, the claimant should be a Hindu, Section 25 says that the amount of maintenance is subject to alteration when the court thinks fit.
B) The Hindu Marriage Act (Ss. 24 & 25)
Section 24 of the Hindu Marriage Act, 1955 provides for th® Maintenance pendente lite and expenses of the proceedings, and Section 25 deals with permanent alimony and maintenance. The relief under Sections 24 & 25 is available to a Hindu wife, who is unable to live on her own. Further, it is to be noted that a Hindu husband unable to live on his own also can claim maintenance under Sections 24 & 25.
Maintenance pendente lite and expenses of proceeding! (S.24): A Hindu husband or wife, who does not have sufficient mean! for maintenance and expenses to conduct the proceedings can bring an action under Section 24 of the Hindu Marriage Act, 1955. Bolh the spouses are placed equally in respect of the liability for payment of the interim maintenance and expenses. If a petition is pending before the court for restitution of conjugal rights (Section 9) or judicial separation (Section 10) or nullity or annulment of marriage (Sectioni 11 and 12) or divorce (Section 13), the aggrieved party can claimfor an interim maintenance. The quantum of maintenance under
Section 24 is generally l/5th of the net income of the respondent, depending upon the circumstances of the case. Permanent Alimony and Maintenance (Section 25): Section .’5 of the Hindu Marriage Act provides for a permanent alimony and maintenance. An application under Section 25 may be made at the lime o f the decree under Section 9 or 10 or 11 and 12 or 13 o f the Act. The relief under Section 25 is available to either the wife or
I msband. The relief is not available if the wife or husband has remarried oi- if the wife has not remained chaste or the husband has had sexual intercourse with any other woman.
Sections 24 and 25 of the Hindu Marriage Act, and Section I8 of the Hindu Adoptions and Maintenance Act do not stand in the way for invoking relief under Section 125 Cr.P.C.
C) Maintenance of Wife under Section 125 Cr.P.C.
Right to claim maintenance under Section 125 Cr.P.C. is a special provision applicable to all including the Hindu Wife. Sections 125 to 128 of the Code of Criminal Procedure, 1973 lay down the provisions relating to the maintenance of dependent wives, children, and parents.
Section 125 provides for the maintenance of the wife, children, and parents. Section 126 lays down the procedure followed in the proper court, which takes cognizance of the complaint under Section 125. Section 127 empowers the Magistrate to alter i.e. increase or decrease the amount of monthly allowance/maintenance (fixed by him earlier). Section 128 provides for the enforcement of the order for maintenance issued by the Magistrate.
The provision under Sections 125 to 128 serves a special purpose to avoid vagrancy and are applicable to all persons irrespective of their religion (all Indians). These provisions provide a speedy, effective, and extensive remedy against such persons who refuse/neglect to maintain their dependent wives, children, and parents. AMagistrate i »f First Class on the proof of such refusal or neglect may order such person to pay a certain sum of money (monthly/periodically or in a lump sum) towards maintenance. Previously, the monthly allowance fixed * under the Code was ‘not exceeding five hundred rupees. Now, the
The court/Magistrate has discretionary power to fix the amount of maintenance, depending upon the circumstances of the case.
Section 125 Cr.P.C.: Section 125 of the Code empowers the Magistrate of First Class to order any person having sufficient means, neglect or refuses to maintain:
i) His legally wedded wife, unable to maintain herself;
ii) His minor son, legitimate or illegitimate;
iii) H is an unmarried daughter, legitimate o r illegitimate o f any age (whether a minor or major;
iv) His son or daughter, legitimate or illegitimate, of any age, who is physically or mentally disabled; and
v) His parents (both father and mother or father or mother) who are unable to live on their own. to pay a certain sum of money towards maintenance. The expression ‘sufficient’ means “does not mean only visible means such i as real property or a particular employment”. It refers to the earnings; the capacity of a person.
Section 125 Cr.P.C. is a statutory and mandatory provision. It runs as follows:
1. If any person having sufficient means neglects or refuses to maintain:
a) his wife, unable to maintain herself; or
b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or
c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or
d) his father or mother, unable to maintain himself or herself;
a Magistrate o f the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly i ale as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married is not possessed o f sufficient means.
[Inserted b yActNo.50 of 2001, w.e.f. 24-09-2001 - Provided
I hither that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the
expenses o f such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under tire second proviso shall, as far as possible, be disposed of within six days from the date of the service of notice of the application to such person.] Explanation: For the purpose of this Chapter,
i) ‘minor’ paeans a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
ii) ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
2. Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, i f so ordered, from the date of the application for maintenance, or interim maintenance and expenses of proceeding, as the ‘case may be’.
3. If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each m onth’s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment i f sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that i f such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds o f refusal stated by her,
and may make an order under this section notwithstanding such offer, i f he is satisfied that there is just ground for so doing.
Explanation: If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
4. No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding,as the case may be] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
5. On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.(N.B The expression ‘not exceeding Rs.500/-‘ is no more as law at present).
This section provides speedy relief and protects the deserted/ wife, children or parents from starvation and has nothing with conjugal rights.Persons entitled to maintenance under Section 125 As stated above, the following persons are entitled to claim maintenance under Section 125(1).
1. Wife.
2. Child, and
3. Parent (Father or Mother or Both).
For the purpose of Section 125 Cr.P.C. wife means a legitimate or legally wedded wife. It also includes divorced wife till she Is remarried. Section 125 Cr.P.C. is a special provision and it is
applicable to the married women o f all religions, viz. Hindu, Muslim For the purpose of claiming maintenance under Section 125 Cr.P.C.wife must be an ‘abandoned wife’ (i.e. husband left her without disenable cause), but not an ‘abandoning wife’ (i.e. the wife, who
Id! her husband without reasonable cause).
A Hindu married woman, who has been separated from her husband on reasonable cause, is entitled to claim maintenance under the following provisions, namely:
1. The Hindu Adoptions and Maintenance Act, 1956.
2. The Hindu Marriage Act, 1955, and
3. The Code of Criminal Procedure, 1973.
1. The Hindu Adoptions and Maintenance Act, 1956:Section 18(1) and (2) of the Act provides for maintenance. According in Section 18(2), a Hindu married woman, having sufficient means also is entitled to maintenance from her husband. According to Section 18(1) of the Act, a Hindu married woman living in the same roof along with the husband also is entitled to claim maintenance fromher husband. Under this Act, employed, propertied and even those residing with the husband are entitled to claim maintenance.
2. The Hindu Marriage Act, 1955: According to Section*24 and 25 of the Act, either of the spouses (i.e. either wife or husband)not having sufficient means to live on her/his own is entitled to claim maintenance from the other source. Section 24 provides for maintenance pendente lite (temporary relief) and Section 25 provides for permanent alimony and maintenance/permanent relief.
3. The Code of Criminal Procedure, 1973: Section 125 of the Code of Criminal Procedure, 1973, confers on married woman of any religion, right to claim maintenance from her husband, if he neglects or refuses to maintain her without any reasonable cause.It is a special provision and provides for speedy relief. It also extends to children and aged parents unable to live on their own.
According to this section, a married woman (wife) of anyage or any religion who has been separated from her husband on reasonable cause and is not having sufficient means to live on her own is entitled to claim maintenance. Conditions : To invoke relief (claim maintenance) under Section125 Cr.P.C. by the married woman (wife) the following conditions are to be satisfied.
i) the marriage must be a legal one as per their religion;
ii) the wife must not refuse to live with her husband without reasonable cause;
iii) she must not be unch aste/live in adultery or remarried; and
iv) she must not live separately by mutual consent.
There is no period of limitation for filing an application under Section 125 Cr.P.C. The payment o f maintenance comes into force with effect from the date of the order.
Meaning :
Sn. 3. (b) of the Hindu Adoptions and Maintenance Act defines maintenance. Maintenance is defined as including
(i) in all cases, provisions for food, clothing, residence, education, medical attendance and treatment,
(ii) Maintenance in case of an unmarried daughter includes also the reasonable expenses of her marriage.This definition is merely declaratory and explanatory and not exhaustive.
Maintenance may stem as a liability under two circumstances
(i) as dependent on the possession of the property and
(ii) independent of the possession of the property, that is a personal liability. Manu has specified the persons who are entitled to maintenance: i.e., aged parents, virtuous wife and minor children. According to Manu, 'these persons must be maintained irrespective of the income ; Even by doing misdeeds, they must be maintained.
There are provisions for
1) Maintenance of wife Sn. 18.
2) Maintenance of widowed daughter in law Sn. 19.
3) Maintenance of children and aged parents Sn. 20.
4) Maintenance of dependents Sn. 22.
Maintenance of wife :
Sn. 18 provides that a Hindu wife is entitled to be maintained by her husband during her life-time, when she lives with him. However, when she lives separately she may claim maintenance as a matter of right, from her husband during her lifetime, only
under special circumstances
as stated in the Act.
i) Husband is guilty of desertion : This means abandoning her without any reasonable cause, and without her consent or against her will. He may have even wilfully neglected her Desertion : Same as understood in the ground for divorce.
ii) Cruelty: When the husband treats her with cruelty, she may claim maintenance. Cruelty
must be of such a nature as to cause a reasonable fear that it will be injurious to live with him. (Cruelty : same as understood in the ground for divorce. )
iii) Leprosy : If the husband is suffering from a virulent form of leprosy, the wife may live separately and claim maintenance.
vi) Another wife : If the husband is having another wife living, the wife may refrain from
the company of her husband and claim maintenance.
v) Concubine: If the husband has kept a concubine in the same house or has been habitually residing with her or living with her, the wife may claim maintenance by living separately.
vi) Conversion: If the husband becomes a convert to any other religion the wife
may live separately and claim maintenance.
vii) Any other cause : The Act after enumerating the above reasons leaves a discretion to the court to consider any other reason that may be substantiated by the wife. Her living separately from her husband must have a justifiable cause. The leading case is Russell V. Russell.
Exceptions : The Act has provided certain exceptions also. If the wife is unchaste, or ceases to be a Hindu by conversion to some other religion, she is not entitled to claim maintenance.
Maintenance of widow by father-in-law.
If the husband is dead, the widow may claim maintenance from her father-in-law subject to certain conditions :
a) She must be unable to maintain herself out of her own earning or other property.
b) She is unable to obtain maintenance from the estate of her husband or her father or mother.
c) She is unable to obtain maintenance from her son or daughter, if any, or his or her estate.
Exception :
If the father-in-law has no means or
If she has obtained already her share in her husband's property
or
If she ceases to be a widow as on her remarriage, she is not entitled to claim maintenance.
Maintenance of children and aged parents
A Hindu is bound during his or her lifetime, to maintain the children and the aged or infirm parents. A minor child (legitimate or illegitimate) may claim maintenance from the father or mother.
This obligation to maintain extends only as long as the person to be maintained is unable to maintain himself or herself. In case of an unmarried daughter the obligation extends evenafter minority if she is unable to maintain herself. Special feature: A Hindu female is also under an obligation to maintain her children and aged parents, if they are unable to maintain themselves. There was no such law in Old Hindu law.
Maintenance of dependants :
Sn. 21 defines who are dependants of a 'Hindu'. Sn. 22 deals with the right of a dependant against the estate of a deceased Hindu.
a) The heirs of the deceased Hindu are bound to maintain the dependants out of the estate of the deceased Hindu. This is subject to certain conditions.
i) The dependant has not received any share in the estate of the deceased then, he can claim the maintenance.
ii) The liability to pay maintenance is on all those who get the estate. They must pay proportionately.
iii) One dependant heir need not contribute to the other dependant if what he gets is itself less.
b) Dependants : The following '"relatives' are entitled to maintenance from the estate of the deceased male or female Hindu (Propositus).
i) Father
ii) Mother
iii) Widow, so long as she remains unmarried
iv) Son, son of a predeceased son provided he is a minor and unable to maintain himself.
v) Unmarried daughter or the unmarried daughter of a predeceased son provided she is
unable to main herself.
vi) Widowed daughter if she is unable to maintain herself from the estate of her husband or from son/daughter or from father in law.
vii) Any widow of the son, or a widow of predeceased son as long as she remains unmarried.
viii) Minor illegitimate children (son or daughter) Amount of maintenance : Sn. 23. The quantum (amount) of maintenance is determined by the court at its discretion. Its discretion is judicial. The Act has given certain factors which must weigh with the Court to award maintenance. There cannot be any mathematical certainty, but the court must take all factors into consideration.
i) In respect of wife, children and parents the following factors are important.
a) The position and status of the parties
b) Reasonable wants
c) Claimants separate living -justified or not ?
d) Claimants income, property and other sources
e) The number of persons entitled to maintenance under the Act
ii) In respect of maintenance of dependants : the factors are
a) Net value of the assets of the deceased after paying all debts.
b) Provisions for dependants in the will if any
c) The degree of relationship
d) Reasonable wants
e) Past relations if any
f) Assets of the dependant
g) The number of dependents
Furthere, the claimant should be a Hindu" The amount fixed by the court (or by agreement) may be altered, if there is material change in circumstances.
