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Maintenance

The first legislative provision relating to right of maintenance was made under the
Native Converts Marriage Dissolution Act, 1866. In the Mysore state, the law of
maintenance was reformed and codified under the local Hindu Law Women’s
Right Act, 1933. Code Of Civil Procedure, 1898 provided to all Indian Women
including Hindu wives, a speedy remedy in respect of maintenance. Hindu Married
Women’s Right to separate residence and Maintenance Act secured to the Hindu
wives the right to seek maintenance from their husbands while living separate from
them on certain specified grounds. In 1914 the Hindu law Committee headed by
Sir Benegal Narsing Rau was appointed to evolve a uniform code of Hindu Law.
One of the parts of the Hindu Code as evolved by the Committee dealt with the
subject of adoptions and maintenance. The recommendations of the Hindu Law
Committee along with the Draft Bill was referred to the Select Committee of the
Provincial Parliament in 1948. Based on the recommendations of the Select
Committee the Hindu Adoption and Maintenance Bill was introduced in the
parliament to codify the law relating to adoptions and maintenance among Hindus.
The bill was passed by both the houses of Parliament and received the assent of
the president on 21st December 1956. It came on the statute book as THE HINDU
ADOPTIONS AND MAINTENANCE ACT,1956 (78 OF 1956) (Came into force
on 21-12-1956).1

The right of maintenance arises from the concept of an undivided family. The head
of such a family is bound t maintain its members, their wives and their children.
All members of joint family, whatever be their status and whatever be their age,
are entitled to maintenance.2

Under the modern law the liability to maintain comes under three heads;

 Personal obligation to maintain one’s wife,3 legitimate or illegitimate


children and aged or infirm parents;4

1
Bare act, Hindu laws, 2018.
2
R.K.Aggarwal, the Hindu Law, central law agency, Allahabad, 25th edition,2016.
3
Section 18
4
Section 20
 Obligation to maintain the dependents of another whose property has been
inherited by him;5 and
 Liability of joint family to maintain its members irrespective of the fact
whether it owns property or not.

By virtue of Section 24 of the Act, only a Hindu can claim maintenance under the
act. The right to claim ceases if the claimant ceases to be a Hindu.6

Maintenance- Meaning of- Section 3(b)


It is a right to get the necessities which are reasonable. Section 3(b) of the Act
defines maintenance which is an inclusive definition. It defines ‘maintenance’ as to
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 and incident to her marriage.

The obligation to maintain besides being statutory in nature is also personal in the
sense that it arises from the very existence of the relationship between parent and
the child. The obligation is absolute in terms and does not depend on the means of
the father or the mother.7

Remedy by way of a civil suit.- The Act does not provide a forum for claiming
maintenance under the Act, therefore, the remedy under the act is by filing a suit
before a civil court of competent jurisdiction.

(A)Maintenance of wife- section 18.


This may be divided into groups: (1) Maintenance: and (2) Separate Residence

Maintenance
Section 18 of the Act deals with the maintenance and separate residence of a wife.
Prior to this act the Hindu Married Women’s Right to Separate Residence and
Maintenance Act,1946, was in force but this act has now been repealed by Section
29 of the Hindu adoptions and maintenance act, 1956.

5
Section 19 and 22
6
Basant Sharma, Hindu law, central law publications, Allahabad, 5 th edition,2017.
7
Supra note 2.
Position under the Act

A Hindu is under a obligation to maintain his wife. The obligation to maintain the
wife is personal in character and arises from the very existence of the relation
between the parties. Section 18 of the hindu adoptions and maintenance act,1956,
substantially reiterates that right and lays down the general rule that a hindu wife.
Whether married before or after the commencement of the Act, is entitled to be
maintained by hey husband during her lifetime.8 Section 18 reads as under:

“(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 lifetime:

(2) A Hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance,- (a) 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 willfully neglecting her; (b) 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; (c) if he is suffering from a virulent form of leprosy; (d) if
he has any other wife living; (e) if he keeps a concubine in the same house in
which his wife is living or habitually resides with a concubine elsewhere; (f) if he
has ceased to be a Hindu by conversion to another religion; (g) 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.9

Application of the section.-

Under section 18(1) of the act, a Hindu married women, irrespective of the date of
the marriage, shall be entitled to be maintained by her husband and this obligation
on her husband will continue throughout the life of the wife. The right of the wife
to claim maintenance from her husband is hr personal right against her husband

8
Supra note 2.
9
Bare act, hindu laws, 2018.
and it arises irrespective of the fact whether the husband has got any property
either ancestral or self-acquired.

The expression ‘Hindu Wife’ in section 18 has given a controversy and a question
whether wives under void marriages would be able to claim maintenance under
this Act. Under the Hindu Marriage Act, a divorced wife or a wsife whose
marriage is void is also entitled to maintenance but under the Hindu Adoptions and
Maintenance Act, a Hindu wife whose marriage is void under section 5 is not
entitled to claim maintenance.10

Conditions under which wife may claim maintenance-

There is no absolute right vested in Hindu wife to be maintained by her husband.


This maintenance is dependent on her living with him and discharging the duties as
wife. The wife will also be entitled to claim maintenance while living separately
from her husband, if any of the conditions laid down in section 18(2) is fulfilled.
She is entitled to maintenance so far as she is a Hindu and unchaste.

Interim maintenance

Section 18 of the Act recognize absolute right of a wife to seek maintenance. The
provision do not expressly prohibit the claim of interim maintenance. The court on
prima facie consideration of the matter would be at liberty to grant interim
maintenance to do justice where the case justifies grant of interim maintenance.

When matrimonial proceedings are pending between the parties, the wife would be
entitled to claim maintenance under section 18 of the Act. The quantum of interim
maintenance should be so much to provide the wife to live a similar style and
status.11 In Purusottam Mahakud v. Smt. Annapurna Mahakud, Supreme
Court held that the right to claim interim maintenance in a suit is 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.12

10
Paras diwan, modern hindu law,Allahabad law agency,Faridabad,19th edition,2008.
11
Rekha v. Deepak, AIR 1999 Bom. 291.
12
http://www.legalservicesindia.com/article/2211/Right-of-Hindu-Wife-To-Maintenance-Under-Hindu-Adoption-
And-Maintenance-Act.html, seen on 06-04-2019.
Effect of husband ceasing to be Hindu-

The husband would not be absolved from his liability to maintain his wife simply
because he has ceased to be Hindu. But, sub-section 3 of section 18 takes away the
right of wife to claim maintenance under this Act if she ceases to be Hindu by
conversion to another religion.

Liability of other relations to maintain her during husband’s lifetime.

a wife is not entitled during her husband’s lifetime to be maintained either by her
relations or by her husband’s relations, even if she has been deserted by him unless
they have in their possession property belonging to her husband.13

Separate residence
Sub-section (2) of section 18 of the Ac enumerates the contingencies in which a
wife may live separately from her husband without forfeiting her right of
maintenance. Sub-clauses (a) to (g) of section 18(2) lays down the grounds for
claiming separate residence and maintenance.

According to Manu, “Married women must be honored and adorned by their


fathers and brothers, by their husbands, if they seek abundant prosperity.”

Thus the husband is bound to give his wife the security and comfort of his house
and she is entitled to the society and protection of her husband. If neither of these
is present and if cohabitation which is the first object of marriage fails, separation
is the only expedient method which can be resorted to.14

Grounds to claim separate residence-section 18(2)

Where the wife claims separate residence, the burden lies upon her to show the
special circumstance,(i.e., grounds mentioned in clauses (a) to (g) ) which entitle
her to a separate residence. So in order to claim separate residence and
maintenance from the husband it is necessary for the wife that she had sufficient
grounds to claim separate residence. If she fails then she cannot succeed. The
following are the grounds:

13
Supra note 2.
14
Supra note6.
Clause (a). Desertion by the husband.-

Under this clause a Hindu wife is entitled to live separately from her husband and
claim maintenance if he is guilty of desertion, i.e., abandoning her without any
reasonable cause. Desertion is a ground of divorce as well as judicial separation in
Hindu Marriage Act.15 In the case, Neelam singh v. Vijay singh16, husband didn’t
take his wife with him at the place of service and left her to live in the village, the
wife would be entitled to separate residence and maintenance.According to several
decisions, there can be desertion by the husband even though the wife and the
husband are living in the same house, and that there can be desertion if the husband
has no reasonable cause for leaving the wife.

In case of desertion, the wife has to prove the following facts:

 That the husband has abandoned her;


 That he has done so (a) without any reasonable cause, (b) without her
consent, or (c) against her wish;
 That he is guilty of willfully neglecting her.

Generally speaking desertion begins when the factum of separation of husband and
wife is completed with the intention to bring the marital relationship permanently
to an end.17 To prove the desertion two things has to be proved on the part of
deserting spouse and must exist simultaneously, one, factum of separation and two,
animus deserendi, i.e., intention to desert. But in the suit for maintenance it is not
necessary for the wife to prove intention on the part of husband. Refusal by the
wife to live with the husband who has another wife living is not desertion.18

Clause (b). Cruelty

Another ground for the wife to live separate and claim maintenance is cruelty on
the part of husband so as to cause reasonable apprehension in wife’s mind that it
would be harmful or injurious to live with him. It is also a ground of divorce under

15
Section 13 and 10 of the act.
16
AIR 1995 All. 214.
17
Pankajinidas v. hrushikesh, AIR 1986, Ori. 184.
18
Malappa v. Neelawa AIR 1970.
the Hindu Marriage Act. Whether a particular conduct amounts to cruelty or not
will depend on myriad factors. Under this clause, legal concept of cruelty
comprises of two elements which the wife has to prove. She should firstly prove
the ill-treatment complained of, and secondly, she should prove the result and
danger of apprehension thereof. In Anubha v. Vikas Aggarwal19 the wife was
harassed, beaten, shouted at and mentally and physically tortured for dowry. She
was not even allowed to telephone her parents except in the presence of the
husband and also made unfounded allegations of unchastity, the wife was held
entitled to relief under the act.

Clause (c). leprosy

The third ground on which a wife can claim the relief is virulent form of leprosy.
Virulent means extremely harmful or dangerous. Any disease other than leprosy
doesn’t fall under this ground and even mere affliction of leprosy will not do. The
same is also a ground of divorce under Section 13 of Hindu Marriage Act.

Clause(d). Having another wife

Clause d of section 18(2) entitles the wife to claim separate maintenance and
residence where her husband has another wife living. If there are more than one
wife living (which was possible if the man had married before the passing of
Hindu Marriage Act), all the wives can desert him and claim separate residence
and maintenance. But after coming into force of the Hindu Marriage Act, the wife
of a second marriage, which s bigamous and hence void, is not entitled to claim
maintenance under this clause. It is only the first wife who would be entitled under
this clause.20 The right would accrue to the wife if the marriage was a void
marriage since under the provisions of the Act, the right to separate maintenance
would accrue only if the second marriage was a god marriage. Hindu husband
contracting a second marriage itself is a good ground for a Hindu wife to seek
separate maintenance. It may be noted that Hindu Married Women’s Right to
Separate Residence and Maintenance Act,1946, also gave the same right to the
wife on the same ground.

Clause (e). Concubine

19
AIR 2003 Del. 175.
20
Supra note 2.
To claim separate residence and maintenance on this ground, it is necessary for w
wife to prove the following:-

(i) That her husband keeps a concubine; and


(ii) That the concubine lives in the same house in which the married wife
lives; or that the husband habitually resides with the concubine
elsewhere.

A concubine is a woman in the permanent and exclusive keeping of a ma though


not married to him. In Kesavabai v. Haribhan,21 the Bombay High Court has held
that where the husband keeps a mistress in the same house in which his wife is
living or where it is shown that he resides habitually with such concubine, the wife
is enabled to have the relief. The appeal filed by the wife was allowed in this case.
The whole phrase ‘ habitually resides with a concubine elsewhere’ is indicative of
a customary behavior of married man. Though he might not have changed his
ordinary place of residence.22

Clause(f). where husband ceased to be Hindu by conversion

A wife is entitled to maintenance and separate residence where her husband


abandons Hinduism. But it should be remembered that the mere fact that a man
ceases to be Hindu by religion would not itself break the Hindu marriage. In these
circumstances, that wife may, under section 13 of Hindu Marriage Act,1955, claim
dissolution of marriage by decree of divorce or treat the marriage as subsisting and
claim maintenance and residence.

Clause(g). any other justifiable cause

The last clause is residuary clause and provides for a cause which is justifiable but
is not covered in any of the six clauses.

Disqualification. Section 18(3):

It further provides that wife should not be entitled to maintenance if she is unchaste
or if she ceases to be a Hindu by conversion to any other religion. 23

21
Air 1975 BOM.115 1975
22
Bsank Sharma,hindu law, central law publications,Allahabad, 5 th edition,2017.
23
Menu chopra v. Deepak chopra, AIR 2002 del. 131
(B) Maintenance of widowed daughter-in-law. Section 19
During the lifetime of the husband, the wife is entitled to claim maintenance
against the husband which is his personal obligation. But after the death of the
husband, sub-section (1) of section 19 confers a right on a widow to claim
maintenance from her father-in0law provided the conditions laid down in the
section exists in her favor. The liability of father-in-law created under the section is
not personal one and is dependent upon the existence of any coparcenary property,
he would not be liable to maintain the daughter-in-law under the act. The sub-
section confers a right on a widowed daughter-in-law to claim maintenance by
Mitakshara or Dayabhaga school of Hindu law.24

Proviso – proviso to section 19(1) of the Act further provides that the liability of
father-in-law is dependant upon the conditions that the daughter-in-law;-

(a) is unable to maintain herself out of her own earnings or other property;
(b) she is unable to obtain maintenance from the:
(i)estate of husband, or
(ii)estate of her father; or
(iii)estate of her mother;

(c)she is unable to obtain maintenance from her son or daughter in whom the
personal obligation is created in Section 20 of the Act or from his or her estate.25

Any order making father-in-law liable to pay maintenance, without considering all
these aspects would be without jurisdiction.26 In Raj Kishore Mishra v. Smt.
Meena Mishra, Court held that the obligation of father-in-law shall not be
enforceable if he has no means to maintain his daughter-in-law from any
coparcenary property in his possession out of which the daughter-in-law has not
obtained any share. The object of this Section is to make it clear that the widowed
daughter-in-law can claim maintenance from her father-in-law only where she is
unable to maintain herself out of her own property or from the estate of her
husband, father, mother, son or daughter. It is also provided that the father-in-law
shall be under no obligation to maintain his daughter-in-law except in cases where

24
Supra note 10.
25
Bare act, hindu laws, 2018.
26
Raj kishore v. meena, AIR 1995 all. 70.
there is some ancestral property in his possession from which the daughter-in-law
has not obtained any share.27

During the lifetime of father it is personal obligation under Section 19 and after his
death it is of heirs out of estate of deceased father under Section 21.

The liability of father-in-law is limited by clause (2) of Section 19, in so far as he


is possessed of any coparcener’s property on his hands and the widow has not
obtained any share out of his property after the death of the husband and the
liability in any cases ceases on her remarriage.28

(C)Maintenance of children and aged parents- Section 20.


Section 20 of the Act provides for the maintenance for legitimate or illegitimate
children and aged or infirm parents. The obligation is personal and arises out of
personal relationship of parent and child. Under the old law the liability to
maintain the children or parents was of the son but now both the sexes are treated
equally so mother of the children or daughter is equally liable to maintain their
children or parents, as the case may be. Under section 20(1) of the act it is enjoined
that a Hindu is bound during his or her legitimate or illegitimate children and under
section 20(2), a legitimate or illegitimate child is entitled to claim maintenance
only during his minority.

Father or mother- section 20(2) it lays down that a legitimate or illegitimate child
may claim maintenance from his/her father or mother during minority. ‘or’
occurring in the sub-section has to be read ‘and’ and the child can claim
maintenance from both the parents where both the parents are capable of
maintaining the child.

Legitimate and adopted children

A Hindu parent is under an absolute obligation to maintain his/her legitimate and


adopted children. Since the objectives of the section is to preserve the child, so

27
Supra note 9.
28
Supra note 6.
burden is on the father to establish in an action for maintenance that there is no
default on his part. An adopted child has no higher claim than a natural born son.29

Unmarried daughter

Under sub-section (3) the liability of a daughter extends till her remarriage. It does
not ceases on her attaining the age of majority. Under section 125 of C.R.P.C and
sections 24 and 25 of Hindu Marriage Act, the liability to maintain one’s children
is limited till the age of majority of the child. The obligation to maintain an
unmarried daughter is absolute and extends so long as she is not able to maintain
herself out of her own earnings or property. It is under this act that the
maintenance of an unmarried major daughter can be awarded. Maintenance
includes marriage expenses, so it is liability of the parents to provide for marriage
expenses of the daughter. The primary liability to marry a daughter is that of the
father and not on brothers unless they inherit the joint family property from the
father.30

Aged or infirm parents

The expression ‘aged or infirm’ occurring in Section 20 of the Act is closely


connected with the ability of a person to earn his/her livelihood. Parents are aged
vis-à-vis their children and if they are unable to make their own living, they may
be called infirm also. There could be no absolute test for determining whether a
person was aged or infirm. In Munni Dei v. Chhoti31, the mother gifted some of
her property to her only daughter and remaining property to her brother, the
daughter though married would be liable to maintain her as there was nothing left
with the woman to feed herself.

29
Nanda Krishna v. bhupendra, AIR 1966 cal. 181.
30
Supra note 10.
31
AIR 1983 All. 444