Granting of maintenance could be a measure of social justice, by itself. it's
the elemental duty of a person to take care of his wife, children, parents, near
relations, etc. see you later as they're unable to take care of themselves. the
item of maintenance is to forestall immorality and destitution and ameliorate
the condition of ladies and kids. Maintenance law in India referring to Hindu
female is classified in to 2 types.
The primary type envisages maintenance
following a divorce, or another matrimonial remedy, such as, nullity of
marriage. The second type envisages maintenance during the subsistence of
marriage within the first category the upkeep may be claimed under the Section
25 of Hindu Marriage Act 1955 and within the second category maintenance to
wife, parent and youngsters under Section 125 of CrPC and Hindu Adoption and
Maintenance Act, 1956.
In this paper an effort has been made to establish the character and scope of
the alimony and maintenance of wife, widow and dependent under Hindu Adoption
and Maintenance Act 1956. and Section 125 of CrPC. Also, a trial has been made
to bring out the lacunae within the core maintenance laws governing the pinnacle
of the Hindu family and sufficient remedies are provided for the same. The
research methodology of the paper is basically descriptive, analytical and
doctrinal in nature.
Concept Of Maintenance
The term maintenance
has been defined in Section 3 (b) of the Hindu Adoption
and Maintenance Act, 1956, as follow; (b) Maintenance includes (i) in all
cases, provisions for food, clothing residence, education and medical attendance
and treatment; (ii) in the case unmarried daughter also the reasonable expenses
of an incident to her marriage. It must be noted that in the Indian matrimonial
law the term ‘alimony' is used interchangeably with 'maintenance'.
synonymous terms. Though, in strictly legal sense, the term alimony relates to
the provisions made pendente lite, no such distinction can be attributed under
the Indian matrimonial law. In Black's Law Dictionary, the meaning of the word
'Alimony' has been explained on the basis of the decided cases as follow; The
word alimony comes from Latin alimonia meaning sustenance, and means,
therefore, the sustenance or support of the wife by her divorced husband.
The Right to maintenance comes from the concept of an Undivided family, where
the top of such family is absolute to maintain the one who isn't financially
independent to create a correct living and capable of enjoying the fundamental
necessities of life that he or she is cheap expected to enjoy. the full concept
of maintenance was introduced to form the living of such person possible and
independent. Maintenance is that the duty of an individual which he owes to his
dependent relatives by which both the person and also the property are bound.
Under Indian law, the term ‘maintenance’ includes an entitlement to food,
clothing and shelter, being typically available to the wife, children and
oldsters. it's a measure of social justice and an outcome of the natural duty of
a person to keep up his wife, children and fogeys, once they are unable to keep
up themselves . Maintenance has been a priority not only for the weaker
sections but of the society as an entire. When one despite having the sufficient
means fails to support his dependents then such concerned persons are forced to
happen upon the state for assistance alternatively take a carrier detested or
prohibited by the society which matches against the interest of the society.
Thus, within the acknowledgement of this and with the aim to forestall the
outcome that may tend to arise out of poverty and destitution a right, parallel
to at least one provided under personal laws, is additionally made available
under Criminal Jurisdiction in India. the thing of maintenance is to stop
immorality and destitution and ameliorate the financial condition of ladies and
youngsters. The persons who are qualified for maintenance under the Hindu
Adoptions and Maintenance Act (HAMA), 1956 are wife, widowed daughter-in-law,
children, aged parents and dependents as enumerated in Section 21 of the Act.
Whereas, under the Muslim law, the persons entitled to maintenance are wife,
young children, the necessitous parents, and other necessitous relations within
the prohibited degrees. The Muslim Law of maintenance is predicated on the
Muslim personal laws and also the law enactments like the Indian Majority Act,
1875, the Criminal Procedure code 1973, Muslim Women (Protection of Rights on
Divorce) Act, 1986.
The provisions of Section 125, Cr. P.C., 1973 apply and are to be enforced
regardless of whatever maybe the non-public law by which the persons in India
are governed Simultaneously, it must be understood that non-public laws of
the parties concerned, Hindus, Muslims, Christians are to be duly cared of
because the same are important to come to a decision the validity of the wedding
tie, if any, (existent or not) then cannot be completely put aside from due
Maintenance Under Hindu Law
Many Hindu sages of Ancient India including Manu and Brihaspati were of the
opinion that maintenance of certain persons may be a personal obligation. “A man
may give what remains after the food and clothing of family. The one (giver) who
leaves his family unfed may taste honey initially but afterwards finds it
poison.”4 Mitakshara, which is one among the foremost important and oldest
school of Hindu Law says that “Where there could also be no property but what
has been self- acquired, the sole persons whose maintenance out of such property
is imperative, are aged parents, wife and minor children.”
The provisions of maintenance under Hindu law finds its roots in (a) the
Shastric Hindu personal laws which has its underlying foundations within the
Dharmashastra. With the passage of your time the necessity for codification of
Hindu Law with relevance marriage, adoption, succession and maintenance was felt
and thus two principle acts:
- The Hindu Marriage Act and
- The Hindu Adoptions and Maintenance Act, 1956 were promulgated.
However, Modern sources of Hindu Law consists of three main sources like:
- Equity, Justice and good conscience
Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 defines
This section says Maintenance include:
- In all cases, provision for food, clothing, residence, education and
medical attendance and treatment,
- In the case of an unmarried daughter, also the reasonable expenses of an
incident to her marriage, (c) “minor” means a person who has not completed
his or her age of eighteen years.
In State of Haryana v. Smt. Santra
5 it was held
that it is a liability created by Hindu Law and arises out of jural relation of
the parties. Section18 of the HAMA, 1956 deals with the maintenance and separate
residence of wife.
The interim maintenance is payable from the date of presentation of the petition
till the date of dismissal of the suit or passing of the decree to fulfill the
immediate needs of the petitioners. In Purusottam Mahakud v. Smt. Annapurna
6, Supreme Court held that the right to claim interim maintenance during
a suit may be a substantive right under section 18 of the Act. Since no form is
prescribed to enforce the said right civil court in exercise of its inherent
power can grant interim maintenance.
Maintenance Pendente lite:
Pendente lite means counting on the end results of the litigation. The rule is
that after considering the financial status of the husband during the litigation
process, the wife is awarded maintenance pendente lite despite the very fact
that there is no specified provision mentioned within the act for the grant of
Divorced woman can claim maintenance so long as she continues to
enjoy the status of wife. The husband of the lady who divorced her has a
statutory duty to maintain her if she cannot maintain herself and, she remains
unmarried.7 The duty to keep up the wife remains on the husband although the
wife could be living separately. It is a settled law that a court empowered to
grant a substantive relief is competent to award it on interim basis
furthermore, while there is no express provision within the statute to grant it.
It is the maintenance granted permanently after the disposal of the proceeding
for divorce or separation.
Hindu Marriage Act, 1955, Section 25:
Applicant, either wife or husband is
entitled to receive from the spouse for his/her maintenance and support a gross
sum or monthly or periodical sum for a term not exceeding the applicant’s
lifetime or until he/she remarries or remains unmarried.
Hindu Adoption and Maintenance Act, 1956, Section 18:
Hindu wife is entitled to
be maintained by her husband during her lifetime. Wife also has a right to
separate residence and maintenance if any of the condition in Section 18(2)
[desertion, cruelty, leprosy, any other wife/ concubine living in the same
house, conversion of religion or any other reasonable cause] is fulfilled until
she remains chaste or does not convert to other religion. It may also be noted
that Section 19 of this Act makes a provision for a widowed wife to be
maintained by her father-in-law.
Maintenance to widow:
Widow has no charge on separate property of husband. Neither section 18 relating
to maintenance of wife nor section 21 dealing with widow provides for any charge
for maintenance on separate property of husband.
Right of Separate residence:
The wife is entitled to live separately without forfeiting her right to
maintenance, if her husband is guilty of desertion, if he subjects the women to
cruelty, if he is suffering from a leprosy, if he has any other wife living,
keeps a concubine in the house where his wife resides, if he has ceased to be a
Hindu, or if there is any other cause justifying her to live separately under
Section 18(2) of the HAMA.
The wife had been living alone and all the children had been brought up by her
without any assistance and help from the husband and there was a clear case of
desertion, the wife was entitled to separate residence and maintenance. The
claim for maintenance by a wife can also be sustained under clause (g) even on a
ground covered by one or other clauses i.e. clause (a) to (f) of section 18(2)
substantially but not fully. Merely because the wife fails to strictly prove the
specific grounds urged by her, she cannot be denied relief.7
In Komalam Amma v. Kumara Pillai Raghavan Pillai,
the Supreme Court ruled that
maintenance necessarily encompasses a provision for residence and therefore
ordered that the woman be provided with a residential facility similar to that
which she had been accustomed in the past.
Maintenance of widowed daughter in law:
Section 19 of the HAMA, provides that a widowed daughter-in-law is entitled to
be maintained by her father–in –law. In Raj Kishore Mishra v. Meena Mishra
was held that where from the estate of the parents, the daughter-in-law can
maintain herself; question of father-in-law does not arise.
Section 20 of HAMA obligates the head of the Hindu Family to maintain the
children and the aged and the infirm parents. Here not only the father but the
mother is also obligated to maintain them. Section 22 of Hama obligates the head
of the Hindu Family to maintain his dependents which is defined under section
Maintenance Of Wife:
The right of maintenance under Hindu law is incredibly ancient and it had been
one among the first necessities of the joint family system. According to my
understanding the maintenance of the women in the joint family system was a
crucial system and this was followed as a convention which governed the
families. It absolutely was the responsibility of the head of the family (karta)
to look after the women of the family i.e. their wives and their daughters until
they were married.
Later when the women grew older it had been the duty of their
children to mother and other old women of the family. The unchastity on part of
the women excluded them to maintenance. Their remarriage ended the claim and
therefore the amount of maintenance depended upon various factors like the
status of the family, necessary requirements, wants, age, etc. Section 24 of
Hindu Marriage Act, (HMA) 1955 allocates for maintenance.
Under this Act also,
only a wife has a right to claim maintenance. The Hindu husband contains a legal
obligation to take care of his wife during his lifetime. However, if a wife
ceases to be Hindu or lives individually under no legal grounds, she loses the
right to claim maintenance too. Also, a Hindu wife under this act shall not be
entitled to separate accommodation and maintenance from her husband if she is
unchaste or converts to a different religion.
Wife can claim separate residence
only if husband remarries and therefore other wife stays within the same house.
Under this act (Section 19), a (Hindu) wife after the death of her husband is
entitled to be maintained by her Father in-law, if she has no means of her own
earnings. However, the right cannot be enforced if her Father in-law does not
have means to try and do so and if the wife remarries.
The liabilities of a
Hindu to maintain others are personal liability and liability dependent on
possession of property where the former arises from mere relationship between
the parties and the latter arises due to possession of property. Maintenance of
Wife under Section 18, the Hindu Adoptions and Maintenance Act, 1956 Under the
section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her spouse
for lifetime i.e. she will be given maintenance until she dies or her husband
Under section 18 of this Act a Hindu wife is entitled to live separately
from her husband without cancelling her right to claim maintenance.
The grounds under which she can live separately are:
- Husband is guilty of desertion
- The Husband has treated her with cruelty
- The husband is agonizing from a virulent form of leprosy
- The husband has any other wife living.
- The husband keeps a concubine elsewhere
- The Husband has halted to be a Hindu by conversion to another you
- if there is any other cause justifying living separately but there are
two bars which will prevent a wife from claiming maintenance from her
husband i.e. (i) if she is unchaste or (ii) if she halts to be a Hindu by conversion to
Calculation of Maintenance under Hindu Laws
The amount of maintenance to paid depends upon different factors. The courts
rely on the provision of Section 23 of the Act while asserting the total
maintenance that the husband needs to pay to his wife.
The provision lays down
the following factors that must be considered to fix a maintenance amount:
- The position and status of the husband and wife
- Whether the wife has an actual claim for maintenance.
- If the wife is living separately, whether the reason to do so is
- The wife’s total property and income.
- The husband’s total property, income generated from this property, and
- The total number of dependents and their expenses borne by the husband
and the personal expenses of the husband.
In determining the amount of maintenance, the following has to be considered;
- The net value of the estate of the deceased after providing for payment
- The provision, if any made under a will of the deceased.
- Degree of relationship with the dependent.
- Reasonable wants of dependent.
- No. of dependents.
The claim of a dependent for maintenance does not impose
any change on the estate of deceased unless a will mandates the same. Under
Section 24 of the Hindu Marriage Act, 1955 relief may be provided by way of
maintenance and litigation expenses to either of the spouse if he/she is unable
to maintain herself during the pendency of proceedings.
Under Section 25 of the
Act, 1955 both husband and wife may be granted maintenance and permanent alimony
after passing a decree of restitution of conjugal rights, judicial separation,
divorce and annulment of marriage under the said Act, if the husband or wife is
unable to maintain himself/ herself
It is evident from the recent judicial decisions that the Indian courts have
been progressively liberal in deciding cases pertaining to maintenance. The root
of contention however is whether a paramour can become entitled to receive
maintenance merely from the fact that living with a married man, coupled with
dispute as to whether the bigamy is legally permissible.
While it appears from the decisions passed under the personal laws that the same
may be possible, judicial decisions pertaining to section 125 continue to uphold
the view that maintenance can be claimed only by a legally wedded wife.
Maintenance has been concern of not only weaker sections but of the society as
well. For weaker sections, it is a problem in the sense their very survival
rests on the provision made available as maintenance.
- A.I.R. 2005 SC 1809
- Nanak Chand v. Chandra Kishore, A.I.R. 1970 SC 446.
- Yamunabai v. Anant Rao, A.I.R. 1988 SC 644.
- Brihaspati, XV
- (2005) 5 S.C.C. 182
- Meera Nireshwalia v. Sukumar Nireshwalia, A.I.R. 1994 Mad 168
- Meera Nireshwalia v. Sukumar Nireshwalia, A.I.R. 1994 Mad 168. 13 A.I.R.
2009 SC 636.
- Law Commission’s 41st Report, 303