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Amount Of Maintenance

Child support is the amount a husband must pay his wife if she is unable to support her during the marriage or separation. Support includes various benefits such as housing grants, wife support, and child support.

The main reason for alimony is to provide the spouse with the same quality of life and standard of living as before the separation.

Courts base spousal support decisions on a variety of factors.
These factors include:
  1. Source of income.
  2. Standard of living of both parties.
  3. Child Support.
  4. Spouse's abilities, skills and education.

Statement of Research Problem
In this paper an attempt has been made to ascertain the Amount of Maintenance and maintenance of wife, widow and dependent under Hindu Adoption and Maintenance Act 1956. Also, an attempt has been made to bring out the lacunae in the core maintenance laws governing the head of the Hindu family and sufficient remedies have been provided for the same.

Objectives
  • To study the maintenance under Hindu Marriage Act
  • To analyze whether women get satisfying maintenance
  • To examine whether women really need maintenance
Hypothesis
Through this research paper, we will understand the Amount of Maintenance under Hindu Law to see its historical evolution and the current state, the barriers, and also the initiatives taken to improve it.

Research Methodology
The study is based on secondary data. This doctrinal study revolves around The Hindu Adoptions and Maintenance Act, 1956. The collection of Data and information will be from published papers, relevant articles, relevant cases, internet websites, etc. Also, include various texts from legal and non-legal sections; the period of the proposed study will be limited to understanding the concept of Amount of Maintenance in India.

Scope and Limitations
The study focuses on the need of Maintenance of Dependants. Further, the research also talks about the Maintenance under Hindu Law, When is the wife entitled to get maintenance, Maintenance of children and aged parents, Amount of Maintenance, Alteration of the amount due to change in circumstances. After collecting all the data, the author has analyzed and provided possible solutions for bettering the laws. The study is limited to secondary sources that were available and the data that was collected from articles and other sources available on the web and in books.

Sources and Study Method
The study is doctrinal in nature and the sources are secondary sources which includes books, articles, journals and internet sources.

Literature Review
The author referred to several legislations, case law, and articles during the process of writing this paper. The laws over the years have vested the female section of the society with rights and powers and several rigid provisions have been introduced to minimize the scope of discrimination and inequality. Under Section 24 and Section 25 of the Hindu Marriage Act, 1955 relates to allowing maintenance pendente lite and permanent maintenance respectively.

In Kulbhushan Kumar (Dr) v/s Raj Kumari 3, the court declared that wife is entitled to 25% of husband's net income as maintenance.

Introduction
Maintenance is the amount payable by the husband to his wife in case she is unable to maintain herself either during the existence of the marriage or upon the separation of the marriage. Maintenance includes various provisions like provision of residence, maintenance of wives, maintenance of children etc.

The main reason for maintenance is to offer the spouse the same quality of life, standard of living that was offered before separation.

The spouse maintenance is decided on various factors by the court.

These factors may include:
  1. Sources of income.
  2. Standard of living of both the parties.
  3. Expense required to maintain children.
  4. Skills, capabilities, educational qualification of the spouse.

Types of Maintenance:

  1. Interim Maintenance:
    It is also known as pendent lite which is given by the court during the continuation of proceedings if the divorce.
     
  2. Permanent Maintenance:
    It refers to the granting of a sum on a periodical basis or on a continued basis once the proceedings have been disposed.

Maintenance under Hindu Law:

Maintenance can be described as something that can provide for food, clothing, shelter, education and medical expense.

Maintenance of wife

Wife must be paid maintenance after divorce by the time she is married again. There is no fixed amount to be paid as maintenance by husband, the amount is decided by the earning capacity of the husband.

The amount of maintenance also depends upon the income of the husband, higher the income of the husband, higher is the maintenance.

When is the wife entitled to get maintenance?

  1. The wife has been subjected to cruelty during her marriage.
  2. If the husband is suffering from incurable disease.
  3. The husband has been keeping another wife while being in marriage.
  4. The husband has converted his religion to another religion.

In the case of Ankita Thukral v. Shri Satbir Singh Tukral, wife had some source of income and also some property but she was unable to meet her medical expenses.

The court held that:
  • The wife can use one of the debit card of the husband.
  • With a condition she will withdraw a specific amount and only for medical purpose.
When the wife is not entitled to get maintenance:
  1. If Hindu wife has committed adultery or has any sexual relationship with anyone else, she shall not be entitled for maintenance.
  2. If she no longer remains in Hindu religion and gets her religion changed, then she is no longer entitled for maintenance.

Maintenance of widowed daughter-in-law

A husband is liable to pay to his wife after they get divorced. But, if the husband is dead it is the duty of the father to pay maintenance to his daughter-in-law.

Maintenance of Children and aged parents

A Hindu male is or female is bound to give maintenance to their children whether they are legitimate or illegitimate. Children can too claim their maintenance from parents till they are minor. An unmarried daughter is entitled to get maintenance even after getting the age of majority till the time she is married.

Maintenance of Dependents

(A dependent is someone who relies on parents, brother or some other relative for sustaining themselves).

Section 21 of the act says that in the context of this act dependents refer to the following relatives of the deceased:

  • A father
  • A mother
  • A widow who has not remarried.
  • A minor son, grandson or great-grandson.
  • Unmarried daughter, granddaughter or great-granddaughter.
  • An illegitimate minor son or illegitimate unmarried daughter.
     

Amount of Maintenance

There is never a fix amount for maintenance that shall be paid. The decision is to the court that how much maintenance is to be given.

Section 23 of the act states that while deciding the maintenance, what all are the factors that shall be considered:
  • Standard of living of the parties.
  • All types of sources of income of the parties.
  • Number of people who are eligible for the maintenance.
  • All the assets that are owned by the parties.
  • The claims of the parties within reasonable limits.

Section 23(3) simplifies the process of deciding the amount of maintenance payable to other dependent

  • The net value of deceased's property after clearing all his debts.
  • Will of the deceased (if any).
  • All sources of income of the dependent and the total value of all their properties.
  • The number of departments that can be entitled to maintenance.
Alteration of the amount due to change in circumstances
The court may make this determination or the parties may agree on the amount of maintenance to be paid.

In the event that a person lacks the resources or capacity to care for oneself, maintenance is provided to provide aids for the necessities of daily life.

According to Section 25 of the legislation, maintenance payments may change depending on the situation.

However, the part is unclear. It is unclear how the change can be made and under what new circumstances it can be sought.

The High Court of Patna noted in the case of Binda Prasad Singh v. Mundrika Devi that Section 25 did not specify a specific process for how the amount can be altered.

The court stated that:
  • Either a ruling or an agreement sets the maintenance payment amount.
  • A decree can be changed by amendment of degree, while an agreement can only be changed by means of another agreement.

Therefore, a new lawsuit must be brought in order to change the maintenance payment amount, and the court may award a new decision that supersedes the prior one.

The claimant of Maintenance should be a Hindu
Only those who practice the Hindu religion are subject to the Hindu Adoption and Maintenance Act, which was passed into law only for Hindus.

According to this act, no party may make a maintenance claim if they are no longer Hindu or were once Hindu.

No one who has ceased to be a Hindu by converting themselves to another faith will be eligible to make a claim for maintenance under the Hindu Adoption and Maintenance Act, according to Section 24 of the Act.

Can maintenance be a charge?
The term "Charge" is not specifically defined in the Hindu Adoption and Maintenance Act.

The Transfer of Property Act of 1882, Section 100, however, provides the following definition of charge:
  • Using real estate as collateral to ensure that someone will receive their money. Such a deal will be referred to as a charge on the property rather than a mortgage and not a mortgage.
According to Section 27 of the Hindu Adoption and Maintenance Act, a dependent's maintenance claim cannot be a burden on the estate of the deceased unless specifically stated in the decedent's will or in a contract between the decedent and the dependent.

Kare More Sharabanna Rudrappa & others v. Basamma & others, it was decided that:
A person must provide support to his wife and children, who are entitled to maintenance from his property, by putting a charge against the property he owns. This also applies to properties that have been given away for free to avoid obligations.

In the case of Gangubai Bhagwan Kolhe v. Bhagwan Bandu Kolhe, it was determined that:
  • If a wife is entitled to maintenance, she may recover it from her husband's estate even after his death; and
  • It was further determined that if the husband's estate is sufficient to allow for her maintenance, no charge may be made over that property; however, if it is insufficient, a charge must be maintained in order to recover her maintenance.
As judicial precedent has the authority to take precedence over legislative provisions, maintenance may be assessed with or without the decedent's consent or will.

Debts to have priority
If there is a charge on the estate of the deceased, the money must first be used to clear out all the debts that are payable by the deceased, as per Section 26 of the Hindu Adoption and Maintenance Act. Under Hindu law payment of one's debts is considered essential for the salvation of their soul and so one's duty to pay their debts back has a religious connotation.

In the case of Kripal Singh v. Balwant Singh, it was held by the court that such debts shall be binding on the son which is not:
  • Immoral,
  • Illegal,
  • Opposed to public policy, or
  • Agreed upon due to a reckless borrowing of money for no reasonable grounds or for deliberate waste.

Effect of transfer of property on rights to maintenance
It is the transferee's responsibility to maintain a dependent who is entitled to maintenance from a property or estate and whose estate is transferred if the transferee has been informed of this entitlement or if the transfer was made without a justifiable reason.

The transferee must support the dependent out of the property he acquired if he has knowledge of the right or the transfer is gratuitous, according to Section 28 of the Hindu Adoption and Maintenance Act.

This concept derives from Section 39 of the Transfer of Property Act of 1882, which states that: If a third party is entitled to maintenance from the profit made from immovable property and such property is transferred, If there was a notice or if the transfer was gratuitous, the transferee will be responsible for paying for the upkeep; however, if the property was transferred for consideration and no notice of the upkeep was given, the transferee will not be responsible for paying for upkeep.
  • The maintenance cannot be recovered from any other property owned by the transferee; it can only be recovered from the property transferred by the person who was initially obligated to pay maintenance.
One of the most significant laws protecting children's rights during adoption is this one. It prevents women, children, the elderly, and the infirm from starving to death on the streets. It guarantees their upkeep by the statute has been progressively strengthened by someone and legal rulings in order to strengthen our rights and make portions much clearer.

Expenses for Maintenance:
There is no set maintenance fee that must be paid. The amount of maintenance is left up to the court's discretion.

According to Section 23 of the act, the court must take the following factors into account when determining the amount of maintenance to be given to a wife, children, or old and infirm parents:
  • Current positions and status of the parties; Claims of the parties that are reasonable in scope;
  • If the claimant is living separately and has good reason to; the claimant's total income sources and the value of their assets; the number of individuals who are entitled to maintenance.
The process of determining the amount of maintenance due to other dependents is further made simpler by section 23(3). According to this, the required payment should take into account: the worth of the deceased person's assets after all of his debts have been paid; whether the dead left a will; the extent of the claimant's relationship with the deceased and their previous interactions; within fair bounds, whatever the dependents desire; the dependent's total annual income and the value of all their assets; how many dependents may be eligible for maintenance.

Change in the quantity as a result of a circumstance change

The court may make this determination or the parties may agree on the amount of maintenance to be paid.

In the event that a person lacks the resources or capacity to care for oneself, maintenance is provided to provide aids for the necessities of daily life.

According to Section 25 of the legislation, maintenance payments may change depending on the situation.

However, the part is unclear. It is unclear how the change can be made and under what new circumstances it can be sought.

In the case of Binda Prasad Singh v. Mundrika Devi, the High Court of Patna noted that Section 25 did not specify a specific mechanism for changing the sum.

The judge ruled that:
Either an agreement or a decree sets the maintenance payment amount.

A decree can be changed by amendment of degree, but an agreement can only be changed by means of another agreement.

Therefore, a new lawsuit must be brought in order to change the maintenance payment amount, and the court may award a new decision that supersedes the prior one.

References:
  1. https://www.indiafilings.com/learn/hindu-adoptions-and-maintenance-act/
  2. http://www.legalserviceindia.com/articles/hmcp_adopt.htm
  3.  http://www.legalservicesindia.com/article/2211/Right-of-Hindu-Wife-To-Maintenance-Under-Hindu-Adoption-And-Maintenance-Act.html
  4. https://www.lawzgrid.com/legal-blog/Essentials-of-Adoption-under-Hindu-Adoption-and-Maintenance-Act-1956
  5. https://www.latestlaws.com/articles/all-about-the-hindu-adoptions-and-maintenance-act1956-by-akanksha-yadav/

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