Maintenance Maintenance under Hindu Law Maintenance under Hindu Adoption and Maintenance Act, 1956 Maintenance
Maintenance means the right of dependents to obtain food, clothing, shelter, medical care, education, and reasonable marriage expenses for marriage of a girl, from the provider of the family or the inheritor of an estate. The basic concept of maintenance originated from the existence of joint families where every member of the family including legal relations as well as concubines, illegitimate children, and even slaves were taken care of by the family. However, maintenance does not mean unreasonable expectations or demands. Historical Perspective
Joint family system has been a main feature of the Hindu society since vedic ages. In a joint family, it is the duty of the able male members to earn money and provide for the needs of other members such as women, children, and aged or infirm parents. In Manusmriti, it has been said that wife, children, and old parents must be cared for even by doing a hundred misdeeds.
Since in the social structure of Hindu society the joint family system looms large, the law of maintenance has a special significance s ignificance in Hindu law. All members of a joint family, whatever be their status and whatever be their age, are entitled to t o maintenance. Hindu law recognizes that a Hindu has a personal obligation to maintain certain near relations, such as wife, children, and aged parents and that the one who takes another’s property has an obligation to maintain the latter’s dependents. Thus Thu s husband has a direct obligation to maintain his wife. In modern system of law, the obligation exists even after the dissolution of marriage. Thus, a wife has right to maintenance in following situation:
When the wife lives with her husband. When the wife lives separate from her husband, and When the wife lives separate under a decree of the court or when is dissolved.
HAMA 1956 codifies a lot of principles governing the maintenance of dependents of a Hindu male. Under this act, the obligation can be divided into two categories - personal obligation and obligation tied to the property. Dependents based on personal obligation
Personal obligation means that a Hindu is personally liable, irrespective of the property that he has inherited or his earnings, to provide for certain relations who are dependent on him. These relations have been specified in the following sections of HAMA 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 lifetime.
Sec 18(2) says that a wife is entitled to live separately without forfeiting her right to claim maintenance in certain situations. Sec 18(3) says that a wife shall not be entitled to separate residence a nd maintenance of she is unchaste or ceases to be a Hindu. In the case of Jayanti vs Alamelu, 1904 Madras HC held that the obligation to maintain one's wife is one's personal obligation and it exists independent of any property, personal or ancestral.
Section 20(1) declares that a Hindu is bound to maintain his children, legitimate or illegitimate, and aged or infirm parents. 20(2) says that a child, legitimate or illegitimate, can claim maintenance from father or mother, until the child is a minor. 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.
In this case, a childless step-mother is also considered a parent. Dependents 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 devolved property. Section 21 specifies these relations of the deceased who must be supported by the person who receives the deceased property. 1. 2. 3. 4.
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8. 9.
father mother widow, so long as she does not remarry son, predeceased son's son, or predeceased son's predeceased son's son until the age of majority. Provided that he is not able to obtain maintenance from his father or mother's estate in the case of grandson, and from his father or mother, or father's father or father's mother, in the case of great grandson. daughter or predeceased son's daughter, or predeceased son's predeceased son's daughter until she gets married. Provided that he is not able to obtain maintenance from his father or mother's estate in the case of granddaughter, and from his father or mother, or father's father or father's mother, in the case of great granddaughter. widowed daughter, if she is not getting enough maintenance from her husband's, children's, or father in law's estate. widow of predeceased son, or widow of predeceased son's son, so long as she does not remarry and if the widow is not getting enough maintenance from her husband's, children's or her father or mother's estate in the case of son's widow. illegitimate son, until the age of majority illegitimate daughter, until she is married.
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. 22(2) says that where a dependent has not received any share, by testamentary or intestate succession, he shall be entitled to maintenance from those who take the estate. 22(3) says that the liability of each heir is in proportion to the estate obtained by him. 22(4) says that a person who himself is a dependent cannot be forced to pay any amount of maintenance if the amount causes his share to reduce below what is required to maintain himself. How much maintenance
Section 23(1) says that courts will have complete discretion upon whether and how much to maintenance should be given. While deciding this, the courts shall consider the guidelines given in sections 23(2) and 23(3). Section 23(2) says that that while deciding the maintenance for wife, children, and aged or infirm parents, the courts will consider: 1. 2. 3. 4.
the position and status of the parties. the reasonable wants of the claimants. If a claimant has a separate residence, is it really needed. the value of the estate and the income derived from it or claimant's own earning or any other source of income. 5. the number of claimants. Section 23(3) says that while determining the maintenance for all other dependents the courts shall consider the following points: 1. 2. 3. 4. 5. 6. 7.
the net value of the estate after paying all his debts. the provisions, if any, made in the will in favor of the claimants. the degree of the relationship between the two. the reasonable wants of the dependent. the past relations between the deceased and the claimants. claimant's own earnings or other sources of income. the number of dependents claiming under this act.
Separate earning of the claimant
Whether the claimant has separate earning on income is a question of fact and not a question of presumption. It cannot be, for example, presumed that a college educated girl can maintain herself. In the case of Kulbhushan vs. Raj Kumari wife was getting an allowance of 250/- PM from her father. This was not considered to be her income but only a bounty that she may or may not get. However, income from inherited property is counted as the claimant’s earning. Arrears of Maintenance
In the case of Raghunath vs Dwarkabai 1941 Bom HC held that right of maintenance is a
recurring right and non-payment of maintenance prima facie constitutes proof of wrongful withholding.
Wife's right to separate residence without forfeiting the right to maintenance Section 18(2) says that a wife can live separately and still claim maintenance from husband in the following situations. 1. Desertion: It the husband is guilty of deserting the wife without her consent, against wife's wishes, and without any reasonable cause, the wife is entitled to separate residence. In the case of Meera vs Sukumar 1994 Mad., it was held that willful neglect of the husband constitutes desertion. 2. Cruelty: If husband through his actions creates sufficient apprehension in the mind of the wife that living with the husband is injurious to her then that is cruelty. In the case of Ram Devi vs Raja Ram 1963 Allahbad , if the husband treats the wife with contempt, resents her presence and makes her feel unwanted, this is cruelty. 3. If the husband is suffering from a virulent form of leprosy. 4. If the husband has another wife living. In the case of Kalawati vs Ratan 1960 Allahbad, is has been held that it is not necessary that the second wife is living with the husband but only that she is alive. 5. If the husband keeps a concubine or habitually resides with one. In the case of Rajathi vs Ganesan 1999 SC , it was held that keeping or living with a concubine are extreme forms of adultery. 6. If the husband has ceased to be a Hindu by converting to another religion. 7. For any other reasonable cause. In the case of Kesharbai vs Haribhan 1974 Mah , it was held that any cause due to which husband's request of restitution of conjugal rights can be denied could be a good cause for claiming a separate residence as well as maintenance. In the case of Laxmi vs Maheshwar 1985 Orrisa , it was held that if the husband fails to obey the order of restitution of conjugal rights, he is liable to pay maintenance and separate residence Section 18(3) says that a wife is not eligible for separate residence and maintenance if she is unchaste or has ceased to be a Hindu. In the case of Dattu vs Tarabai 1985 Bombay , it was held that mere cohabitation does not by itself terminate the order of maintenance passed under 18(2). It depends on whether the cause of such an order still exists.
Maintenance (Alimony) under Hindu Marriage Act, 1955 Various rights have been attributed to Hindu wife and husband on matrimonial issues under the Hindu Marriage Act. Yet on few issues the rights of wife and husband are different from
each other but on many issues both the spouses stand on equal footing. Right of alimony is also one of them. Alimony means the allowances which husband or wife by court order pays to other spouse for maintenance while they are separated or after they are divorced (permanent alimony) or temporarily, pending a suit for divorce (pendente lite). The principle is that one who is unable to maintain oneself, has a right to be maintained. The object is not to publish but to make realize one’s legal liability, to provide for those who are unable to support themselves, to make the weaker section of the society to exist the live, to prevent destitution on public grounds and on the basis of moral support as well, the subject is legally acknowledged. Maintenance Pendente Lite:
The object of enacting the provision for maintenance and expenses during the pendency of the proceeding in Section 24 is that a wife or husband , who has no independent income sufficient for her or his support or enough to meet necessary expenses of the proceedings, may not be handicapped. So the doctrine of pendente lite and permanent alimony is based on economic tutelage of a spouse. It aims at administering justice and maintaining equilibrium between the parties. This section applies to both husband and wife equally. Law has placed both the spouses on the same footing for this purpose. The power of the court of ordering alimony pendente lite in a pending proceeding for matrimonial relief has been provided by Sec. 24 of Hindu Marriage Act, 1955. The liability is on the person who initiates the proceedings to maintain the opposite party during the pendency of the proceedings if the opposite party is unable to maintain herself and to meet the expenses of the proceedings. In order of alimony pendente lite should be supported by reasons and the applicant is to establish that he or she has no independent income sufficient for his or her support and for necessary expenses of the proceeding or if he or she has income the nature of quantum of it, the income, of the respondent of the application for alimony and the quantum thereof, the nature and extent of applicant’s needs both for maintenance and expenses of proceedings. The discretion in the matter of granting maintenance pendente lite and cost of litigation is to be exercised on sound legal principles. If the applicant has no independent means, he or she is entitled to interim maintenance and expenses unless good cause is shown for depriving him or her of it. The matters that may properly be considered in this connection are: (i) whether applicant is being supported by an adulterer, and (ii) whether the respondent has not sufficient means. Thus, where the wife was prepared to go and live with the husband but the husband did not wish to keep her with him on the ground of her inability of consummate the marriage the wife is entitled to maintenance. The fact that the petitioning spouse is maintained by his or her parents is no ground to deprive the petitioner of his or her maintenance and expenses of litigation. For considering the application for grant of interim maintenance, only independent income of the petitioning spouse or the conduct of her is material. The expression ‘sufficient’ in the collocation of the word ‘sufficient’ means for his or her support. ‘Sufficient’ is not ‘some’. The word ‘sufficient’ connotes that the income of the applicant must be such which would be sufficient for a normal person for his or her sustenance as well as to meet the necessary expenses of the proceeding. So the fact that the
wife sits in her father’s shop and earns a paltry sum by knitting and by tuition is no t relevant in deciding the question of alimony pendente lite, neither the fact that the father of the wife is suporting her nor her refusal to live with the husband could be any ground for denial of maintenance under Section 24. The question whether the wife is guilty of desertion cannot be decided at the time of passing order of maintenance pendente lite. It is noticeable that Section 24 only refers to income and not other property. So in case of alimony pendente lite other property of the spouses should not enter judicial consideration. Therefore immovable property yielding no income cannot be considered. Only the income out of it received by the applicant can enter judicial consideration. To have almony pendente lite it is not necessary that petitioners sho uld have no income of her or his own. If the income of the petitioners is found by court to be insufficient to support her/him the court may order the other party to pay to the petitioner an allowance monthly and litigation expenses. Even if the petitioner fails to aver that she has no source of income the petition is not liable to be dismissed. The word sufficient is a relative term and has to be considered on facts of each case. The words “wife having no independent income insufficient for her support” suggests that income of the wife must be independent and must be sufficient for her support. So, even if the wife’s parents are affluent, the wife has no independent income of her sufficient to support her is entitled to maintenance pendente lite under Section 24 of the Act. The plea of having no job when the husband is qualified and he refuses several offers of job on the pretext that it would not suit him is not available as a defence against a petition for alimony pendente lite by wife. A husband who voluntarily incapacitates himself cannot be absolved of his liability to maintain the wife. In Sousseau Mitra v. Chandana Mitra , the husband graduate in science and a B.Ed. coming from respectable family and able bodied capable of earning, contended that he was earlier working as a typist-cum-clerk but had resigned and so was out of employment. The Court held that he couldn’t avoid his liability to maintain his wife and child by voluntarily incapacitate himself. The Court can legitimately take into consideration his ability to earn a reasonable amount. Alimony pendente lite and litigation expenses may be granted in any proceedings under the Hindu Marriage Act provided other conditions for such grant are satisfied. Section 24 does not bar proceedings under Section 125 of Cr.P.C., being separate and independent remedies. Also by reason of Section 4(b) of Hindu Marriage Act it does not prevail over the provisions under Cr.P.C. The amount of maintenance fixed under Section 125 of Cr.P.C. may be taken into account while awarding maintenance pendente lite.
Permanent Alimony: Section 25 Section 25 makes provisions for the grant of permanent alimony. The object of this section is to treat both the husband and the wife on equal footing for the purpose of financial assistance to be rendered permanently to the spouse who is poverty-stricken without having any independent income of its own for maintenance and support. This grant of permanent alimony
and maintenance is circumscribed by two conditions. First, this grant will remain in force till the applicant remains unmarried and pursues the chaste life. Secondly, this grant is the personal right of the applicant and extinguishes with the death of the applicant. This section differs from the provisions of similar legislations on this issue to the effect that under analogous laws permanent alimony is granted only to the wife, but this section recognizes this right for both the spouses alike following the legal principle of equality before law. Though Section 25 does not use the expression ‘permanent alimony’ in any part of the enactment, the marginal note to the section clearly shows that the section is intended to deal with permanent alimony. The concept of ‘permanent alimony’ is not an indigenous concept grown on the soil and there was no law of divorce amongst Hindus in the country. The reason for awarding permanent alimony to the wife seems to be that if the marriage bond which was at one time regarded as indissoluble is to be allowed to be severed in larger interest of society, the same considerations of public interest and social welfare also require that the wife should not be thrown on the street but should be provided for in order that she may not be compelled to adopt a disreputable way of life. The provision for permanent alimony is, therefore, really incidental to the granting of a decree for judicial separation, divorce or annulment of marriage and that also appears to be clearly the position if the language of Section 25 is looked at. The right of permanent alimony is statutory right and as such it cannot be abridged or taken away by any contract of the parties to that effect. Thus the husband cannot contract out nor is the wife bound by any such contract. It is significant to note that the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding. It is an incidental relief claimed in the main proceeding, though an application is necessary for claiming it. The application is an application in the main proceeding for claiming an incidental relief consequent upon the granting of the substantive relief by the Court. Section 25 differs from Section 18 of the Hindu Adoptions and Maintenance Act, 1956. Though this section confers power on the Court to order the permanent alimony and maintenance but this power is discretionary and is exercised with reference to certain well established principles. On the other hand, Section 18 of the H.A.M.A. does not provide any such discretionary power and as such the Court is to pass order under this section on determination of question of facts and questions of law. Thus, no question of judicial discretion is involved in this matter. Further Section 4 of the HAMA, 1956 does not impliedly repeal Section 25 of the Act. Under Section 18, husband is personally liable for his wife’s maintenance because such right is an incident of the status of matrimony. For such right valid marriage is a pre-condition. This right of wife is a part of our ancient law but such right does not accrue in case of void marriage. The right may be refused if decree on restitution of conjugal right is operating against wife. Section 25 does not deprive the wife of her right of maintenance even if the divorce is granted on the ground of desertion on the part of the wife. The Court can in appropriate cases grant relief of maintenance to women from the estate of her deceased husband even though it is found by the Court that the marriage was void. It may be noted that in sub-section (1) of Section 25, apart from various other matters to be taken into account, the Court is also to take
into account “the conduct of the parties” when a request is made for payment of alimony and maintenance. Sub-section (2) provides for the Court varying, modifying or rescinding any order already passed under sub-section (1) on being satisfied that there is a change in the circumstances of either party at any time after the order was passed under sub-section (1). But there is another special provision contained in sub-section (3) making it obligatory on the Court to cancel an order passed under sub-section (1), under the circumstances mentioned in that sub-section, the Court has to cancel an order passed under Section 25(1). These circumstances are: — (i) The party in whose favour maintenance is awarded has remarried. (ii) If that party is the wife, that she has not remained chaste, and (iii) If such party is the husband, that he had sexual intercourse with any women outside wedlock. In the context of Section 25 the expression, “any decrees” means any of the decree referred to in the earlier provision of the Act, i.e. nullity of marriage, or of divorce passed under Sections 9 to 13 of the Act. When the main petition is dismissed and no substantive relief is granted under Sections 9 to 14, there is no passing of a decree as contemplated by Section 25 and the jurisdiction to make an order for maintenance under the section does not arise. The term “any decree” in the section, however, cannot be construed to include “every decree”. In Bhau Saheb v. Leelabai the issue involved was whether an order dismissing a wife’s petition seeking declaration that marriage was valid can come under the term “any decree”. The Court considered some hypothetical situation to indicate that the term “any decree” cannot be expanded or stretched too liberally to include any Court order.
MAINTENANCE UNDER MUSLIM LAW MAINTENANCE
Maintenance is a right to get necessities which are reasonable from another. It has been held in various cases that maintenance includes not only food, clothes and residence, but also the things necessary for the comfort and status in which the person entitled is reasonably expected to live. The term ‘maintenance’ means proper maintenance and it should not be narrowly interpreted. WIFE’S RIGHT TO MAINTENANCE UNDER MUSLIM LAW:
A Muslim husband is bound to maintain his wife of a valid marriage even if she is rich, and not withstanding that the husband is without any means. He is also bound to maintain his wife in a particular instance of an irregular marriage viz. when the marriage is irregular for want of witnesses. The wife’s right of maintenance is a debt against the husband and has priority over the rights of all other persons to receive maintenance. The wife, however, has no right to pledge the credit of her husband for providing herself with maintenance.
In Muslim law, the obligation to maintain wife does not commence on marriage and it exists only so long as the wife remains faithful to him and obeys all his reasonable orders. But the wife does not lose her right to maintenance if: (a) she refuses access to her husband on some lawful grounds, such as when the husband keeps a concubine, or is guilty of cruelty towards her (wife), or (b) marriage cannot be consummated owing to: husband having not attained puberty, (i) (ii) his absence without her prior permission, or (iii) his illness, or (iv) malformation It is pertinent to mention here that the wife cannot exercise her right of maintenance except after it has become due. So far as the quantum of maintenance is concerned, there is a difference of opinion among the Muslim authorities as to the amount of maintenance a wife is entitled to receive from her husband. It seems that under Hanafi law, the rank and the financial position of both the parties are to be considered, while under the Shafii law, only that of the wife, and the amount of maintenance is to be determined on the basis of wife’s requirements of condiments, food, clothing, residence, service and implements of anointing, due regard being also had to the custom of her equals among her own people in the same city. It further appears that that the wife (and where there are more than one wives, each wife) is also entitled to a separate apartment for herself, free from the intrusion of any person other than her husband. DIVORCED WIFE’S RIGHT TO MAINTENANCE
Holy Quran imposed an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife but prior to the decision of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, a divorced Muslim wife was not entitled to any maintenance from her husband after the expiry of the period of iddat . In the Shah Bano case the Supreme Court held that: Under section 125(1)(a) of the Code of Criminal Procedure,1973, a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred Rupees. By clause (b) of the Explanation to section 125(1), ‘wife’ includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under all obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code.
Considering the controversy and outrage following the Shah Bano ruling, the Indian Parliament passed the Muslim Women (Protection of Rights on Divorce) Act in 1986. This Act makes provisions for the protection of the rights of Muslim women who have been
divorced by, or have obtained divorce from, their husbands, which includes right of maintenance as well. It is interesting that the Supreme Court has again extended this protection to the divorced Muslim women by ruling that provision including maintenance extending beyond the iddat period must be made by the husband within the iddat period by terms of S. 3(1)(a) of the Act of 1986. It has been held that a Muslim wife is entitled to Maintenance under Section 125 till divorce by her husband is communicated to her. The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, was challenged in the case of Danial Latifi v. Union of India and while upholding the validity of the Act, the Apex Court summed up its conclusions as follows: 1) Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. 2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period. 3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. 4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 also says that If, on the date of the first hearing of the application under sub-section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Section 125 to 128 of the Code of Criminal Procedure, 1973, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly and as per explanation of Section 5, f or the purposes of this section, “date of the first hearing of the application” means the date fixed in the summons for the attendance of the respondent to the application.
Latest Case on this issue Shabana Bano Vs Imran Khan 2010 (1) CTC 121
Muslim Women (protection of Rights on Divorce) Act, 1986 (25 of 1986), Section 4 – Claim of maintenance by divorced Muslim woman – Whether restricted for iddat period only – Whether Petition under Section 125 of Cr.P.C. maintainable before Family Court – Held: Maintenance to be awarded under Section 125 of Cr.P.C. cannot be restricted for iddat period only – Divorced Muslim woman entitled to claim maintenance from her divorced husband as long as she does not remarry – Divorced Muslim women will be entitled to claim maintenance from her husband under Section 125 of Cr.P.C. after expiry of period of iddat as well.
Facts: The basic and foremost question that arises for consideration is whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 of Cr.P.C. and if yes, then through which forum. The Appellant’s petition under section 125 of the Cr.P.C., would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under Section 125 of the Cr.P.C., cannot be restricted for the iddat period only. Cumulative reading of the relevant portions of judgment of this Court in Danial Latifi would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.
In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C., after the expiry of period of iddat also, as long as she does not remarry.
