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Maintenance Under Hindu Law
Maintenance Under Hindu Law
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 and 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.
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. father
2. mother
3. widow, so long as she does not remarry
4. 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.
5. 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.
6. widowed daughter, if she is not getting enough maintenance from her husband's,
children's, or father in law's estate.
7. 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.
8. illegitimate son, until the age of majority
9. 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. the position and status of the parties.
2. the reasonable wants of the claimants.
3. If a claimant has a separate residence, is it really needed.
4. 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. the net value of the estate after paying all his debts.
2. the provisions, if any, made in the will in favor of the claimants.
3. the degree of the relationship between the two.
4. the reasonable wants of the dependent.
5. the past relations between the deceased and the claimants.
6. claimant's own earnings or other sources of income.
7. 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 claimants 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.
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.
nature and extent of applicants 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 fathers shop and earns a paltry sum by knitting and by tuition is not 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 Sec. 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 Sec. 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 should 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
wifes 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 couldnt 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.