INTRODUCTION

In this project we will be thoroughly discussing about the Laws of Maintenance under Hindu
Law, and all of its aspects. Since in the social structure of Hindu society, the joint family system
looms large, the law of maintenance has a special significance in Hindu law. The right of
maintenance arises from the concept of an undivided family. The head of such a family is bound
to maintain its members, their wives and their children. All members of a joint family, whatever
be their status, are entitled to maintenance. Under Hindu Law, a person has personal obligation
to maintain his wife, children and aged and infirm parents. It arises from the very nature of the
relationship and exists whether he possesses property or not.

This paper deals with Maintenance of wife under Hindu Marriage Act. The concept of
maintenance aims at putting the wife back to the same position of comfort and lifestyle as she
was at the time when her marriage existed. There is no fixed amount of maintenance that the
husband is liable to pay to his wife, and it is upon the discretion of a family court to fix the
amount of maintenance that the husband needs to pay either on a monthly basis or in form of a
lump sum. Maintenance to wife is a very complicated issue under Hindu Marriage Act. It is often
stated as a mean to exploit the husband by asking alimony for life. Section 24 of Hindu Marriage
Act, 1955 (The Act) states that either husband or wife may claim maintenance pendent lite i.e.
maintenance till the proceedings are in process. Further, section 25 of the Act states the grounds
for permanent alimony.

Obligation of payment of maintenance can either during the subsistence of the marriage or after
the dissolution of the marriage. The most important aspect of maintenance is that the party which
relies on maintenance has no independent source of income to support himself/herself.
MAINTENANCE AS A PERSONAL
OBLIGATION
The maintenance of the aged parents, infant children and wife is considered to be the greatest
duty of a person. It is the belief of the Hindus that if one faithfully fulfils this duty, the gates of
heaven are wide open for one. One may also attain salvation for this. On the other hand, a person
who indulges in charity or dan at the cost of the maintenance of his aged parents, infant children
and wife is condemned by the sages: it is like tasting honey which turns to be poison later.
During the British period it was a well established rule that the maintenance of the aforesaid
three sets of persons was a personal obligation of every male Hindu. Under the modern Hindu
law, in respect of aged parents and minor children, this is an obligation of every Hindu, male or
female. Thus a Hindu has personal obligation to maintain (1) his wife, (2) children, and (3) aged
parents.

1) Wife
The obligation of a husband to maintain his wife does not arise out of any contract, express or
implied, but out of the status of marriage, out of the jural relationship of the husband and wife
created by the performance of the marriage.1 The obligation of the husband to maintain his wife
begins with marriage. It is irrespective of the fact whether he has or has no property. Hindu law-
givers did not deny maintenance even to unchaste wife, provided she continued to live with her
husband though in such a case she was entitled to starving maintenance.2 In the modern Hindu
law wife is entitled to maintenance after dissolution of marriage respectively.

Thus, wife’s right to maintenance may arise in the following three situations:-

(a) When the wife lives with her husband,

(b) When the wife lives separate from her husband, (not under a decree of the court), and

(c) When the wife lives separate under the decree of the court (judicial separation) or
when the marriage is dissolved.

1
Laxmi Devi v. Nagana, 1925 Mad. 757; Udayanath v. Siridei, 1973 Or. 196.

2
Parami v. Mahadevi, (1909) 34 Bom. 278.
S. 18 (1), Hindu Adoption and Maintenance Act.

When wife lives with husband. - In all patriarchal societies it has been considered an imperative
duty of the wife to live with her husband and perform all conjugal duties. Side by side with this
obligation of the wife, the husband’s obligation to maintain his wife begins with marriage. A
wife who resides with her husband must be maintained by him. It cannot be valid ground to
refuse maintenance that his financial condition is not good. The obligation of the husband to
maintain his wife is personal obligation.3 Where an immature wife lives with her parents, the
husband’s obligation to maintain her subsists. Except the husband, no other member of the
family has any personal obligation to maintain her.
The husband’s obligation to maintain her comes to an end only when she leaves him without any
good cause or without his consent.4 Before 1956, it was a settled law that unchaste wife who
continues to live with her husband was entitled to starving maintenance5. An unchaste wife, who
left her husband but subsequently repented, performed expiatory rites and returned to live with
her husband, was entitled to maintenance, the modern Hindu law lays down that a Hindu wife is
entitled to be maintained by her husband during her life time.
Sub-section (3) of section 18 lays down that “a Hindu wife shall not be entitled to separate
residence and maintenance from her husband if she is unchaste or ceased to be a Hindu by
conversion to another religion.” It is submitted that this provision is applicable to sub-section (2)
of section 18 which provides for separate residence and maintenance for wife in certain cases. It
cannot be applicable to the case of the wife who lives with her husband i.e. to sub-section (1).
This is made clear by section 24 which lays a general disqualification; a non-Hindu cannot claim
maintenance. Thus a wife who has ceased to be Hindu cannot claim maintenance under the
modern law; she could also not claim it under the old law. But an unchaste wife, who lives with
her husband, can claim maintenance against her husband under the modern law.

3
Jayanti v. Alamelu, (1904) 27 Mad. 45.
4
Mutyala v. Mutyala, 1958 A.P. 582.
5
Parami v. Mahadevi, (1909) 34 Bom. 278.
S. 18 (2) Hindu Adoption and Maintenance Act.
When the wife lives apart. - A wife who lives apart with the consent of the husband is entitled to
maintenance. She is also entitled to maintenance if she lives separate from her husband for a
justifiable cause. Section 18 (2) of the Hindu Adoption and Maintenance Act, 1956 lays down
the ground on which the wife may live separate and claim maintenance. These are:-
1. Desertion. - ‘Desertion’ as a ground for living separate is defined by section 18 (2) as
“abandoning her without reasonable cause or without or her consent or against her will
or of willfully neglecting her”. The distinction between “desertion” as a ground for
living separately and as a ground for judicial separation or divorce under sections 10 and
13, Hindu Marriage Act, 1995 is that under the latter desertion must be at least for two
years duration, while, under the former it may be of any duration. On the ground of
willful neglect by the husband, wife can live separately and claim maintenance.6
2. Cruelty.- Clause (b) of section 18 (2), Hindu Adoption and Maintenance Act, gives
same definition to cruelty as is given to it, in Hindu Marriage Act, 1995. In Rama Devi
v. Raja Ram7the husband by his conduct made it evidently clear that she was not wanted
in the house and her presence was resented by him, it was held that this amounted to
cruelty and justified wife’s living separate.8
3. Leprosy.- Clause (c) of section 18 (2) runs: “if he is suffering from virulent form of
leprosy.” Leprosy as a ground for separate residence may be of any duration, no period
is prescribed, but it must be existing at the time when the claim for separate residence
and maintenance is made: it may have been existing before the marriage or it may have
come into existence shortly before the claim is made.
4. Another wife is living. –Clause (d) of section 18 (2) runs: “if he has any other wife
living”. This clause has come for interpretation in number of cases. It should be noted
that any wife can claim separate residence and maintenance provided other wife should
be living at the time when the claim is made.9 It is also immaterial that the wife had
consented to the second marriage of the husband. A wife is entitled to separate residence

6
Meera v. Sukumar, 1994 Mad. 168.
7
1963 All. 564
8
Maharaja v. Mutturkani, 1986 Mad. 346
9
Mutyala v. Mutayala, 1958 A.P. 582.
 and maintenance if the other wife is alive, and it is not necessary the latter should have
been or is living with the husband.10
5. Keeps a concubine. – Clause (e) of section 18 (2) runs: “if he keeps the concubine in
the same house in which his wife is living or habitually resides with a concubine
elsewhere.” “Keeping a concubine” or “living with a concubine” are extreme forms of
“living in adultery”. In either cases the wife is entitled to live separately and claim
maintenance from her husband.
6. Conversion. –Clause (f) of section 18 (2) runs: “if he has ceased to be Hindu by
conversion to other religion”.
7. Any other justifiable cause. – Clause (g) is a residue clause. It runs: “if there is any
other cause justifying her living separately”. The conduct of the husband should be such
that, in the opinion of the court, the wife has “grave and weighty” or “grave and
convincing” reason for withdrawing from the society of the husband, and it would
amount to justifiable cause. If the husband refuses to comply with a decree of restitution,
the can claim maintenance under section 18 (2).11 Mere drinking habit of the husband is
not a sufficient ground for separate residence and maintenance.

S. 18 (3), Hindu Adoption and Maintenance Act.

Forfeiture of the claim of maintenance. –A wife is entitled to separate residence and maintenance
may forfeit her claim in the following three cases:-
a) An unchaste wife has no right to claim separate residence and maintenance. (Section 18
(3), Hindu Adoption and Maintenance Act.)
b) A wife who has ceased to be a Hindu by conversion to other religion has no right to claim
maintenance. (Sections 18 (3) and 24 of the Hindu Adoption and Maintenance Act.)
c) Once a view was that the wife who has resumed cohabitation with her husband forfeits
her claim for separate residence and maintenance because the precondition of the claim is
that the wife is living separately from her husband, if that precondition continue to exist
the wife cannot claim maintenance. The court observed that by mere resumption of
cohabitation the order of maintenance passed under section 18 (2) does not terminate. It

10
Kalawati v. Ratan, 1960 All. 601.

11
Laxmi v. Maheshwar, 1985 Or. 11
 is submitted that these are correct. So long as the basis of separate living is not
extinguished, she will be entitled to live separate and claim maintenance.12

The Hindu law does not recognize the right of the husband to claim maintenance against the
wife, except in cases which are covered under sections 24 and 25, Hindu Marriage Act, 1955.

2) Children
S. 20, Hindu Adoptions and Maintenance Act.

The obligation to maintain one’s children is personal obligation and arises out of the personal
relationship of parents and child. In most of the early systems of law, the obligation to
maintain children was imposed on the father alone and in respect of the legitimate child. The
modern Hindu law imposes the obligation on both the parents and in respect of both
legitimate and illegitimate children.

Legitimate and adopted sons. –A Hindu is required to maintain his natural as well as adopted
sons. The mere refusal of a son to live with his father does not disentitle him from claiming
maintenance, though of maintenance may be affected, held in Sardul Singh v Pratap Singh13.
The same is true about disobedient son. The obligation of parents to maintain the son ceases
on his attaining majority, even if the son is unable to maintain himself due to temporary
illness or disorder. But if disability or disorder is of permanent nature it would be in
consonance with the principles of Hindu law that parents’ obligation to maintain him is
recognized.

Illegitimate son. –Hindu law has never considered an illegitimate son as a filius nullius and
all along imposed an obligation on the putative father to maintain his illegitimate son. From
the point of view of maintenance, the illegitimate sons may be classified thus:

i. An illegitimate son of the first three classes born of an avarudha dasi, called a dasiputra,

ii. Dasiputra of a sudra,

iii. Illegitimate son of a non-Hindu woman, and

iv. Other illegitimate children such as born out of adultery or casual intercourse.

12
Dattu v Tarabai, 1985 Bom.106.
13
1977 P.R. 46.
 The Hindu Adoption and Maintenance Act, 1956, abolish all distinction between
illegitimate sons. All illegitimate sons are entitled to maintenance during their minority.
No illegitimate son can claim maintenance after he has become major.

Legitimate and adopted daughter. –Our sages, unequivocally, recognized it to be the

father’s obligation to maintain his legitimate daughter till her marriage and to pay for her
marriage expenses. It was the father’s personal obligation. After the father’s death she
was to be maintained out of the separate properties of her father.14 The obligation ceased
on her marriage. The obligation ceased on her marriage. The sages laid down that even
after the marriage of the daughter; the father has a moral obligation to maintain her, if she
failed to get maintenance from her husband’s family. Similarly father has the obligation
to maintain her widowed daughter. It has been seen earlier that if a son lived separately
from his father, he did not forfeit his right of maintenance. This was not the case with
unmarried daughter. She was required to live with her father. It was necessary that she
should obey her father. But if she lived separate from her father for a justifiable cause,
she could still claim maintenance. But mother cannot claim maintenance for her son
above five years who is living with her.

Section 20 (2) of Hindu Adoption and Maintenance Act lays down that a Hindu has an
obligation to maintain his children during their minority. It seems that in respect of
unmarried major daughters this obligation continues, though the father or mother required
to maintain a major unmarried daughter only so far she is “unable to maintain herself out
of her own earning or other property. In Sneh Prabha v. Ravinder Kumar,15 the Supreme
Court said that the court has power to award maintenance against the father for major
daughters also till they get married or settled gainfully.

Section 20 (3) does not speak of the capacity to earn an income but speaks of the
existence of the source of income and the ability to maintain oneself with such income.
The obligation to maintain a daughter includes reasonable expenses of her marriage.

The adopted daughter has the same right to claim maintenance as a natural born
legitimate daughter.

Illegitimate daughter. –The textual law is silent on the putative father’s obligation to
maintain illegitimate daughter. Before 1956 there was a controversy among out High
Courts whether the putative father has an obligation to maintain his illegitimate
daughters. In Vallaiappa v. Nataraja16 the Privy Council held that an illegitimate
daughter was as much a member of her father’s family as an illegitimate son and
therefore she was entitled to maintenance.

14
Bai Mangal v. Bai Rukmani, (1899) 23 Bom. 291.
15
1995 SC 2110.
16
58 I.A. 407.
 Under the modern Hindu law the controversy has been set at rest; she is entitled to claim
maintenance against both her putative father and natural mother, but only during
minority.

3) Aged or Infirm Parents

The obligation to maintain aged or infirm parents is personal obligation arising out of the
parents-child relationship. The modern Hindu law, (section 20, Hindu Adoption and
Maintenance Act, 1956) makes it an obligation of sons and daughters. The childless step-
father is still excluded from the purview of the expression “parent”.
The obligation to maintain one’s aged parents exists during one’s lifetime. The obligation
being personal, it exists independently of the personal possession of any property,
ancestral or personal. However, under the modern Hindu law this obligation is not
absolute. One is required to maintain one’s aged or infirm parent when the latter is unable
to maintain himself or herself out of his or her own earning or property’ and if they are not
able to maintain themselves, they should be treated as aged or infirm.
The wife, the children and the aged or infirm parents forfeit their claim of maintenance if
they cease to be Hindus.

S. 19, Hindu Adoption and Maintenance Act.

Daughter-in-law – Hindu law has, all along, recognized it to be an obligation of the joint
family to maintain the wives and widow of coparceners. A widowed daughter-in-law can
claim maintenance against the joint family property. The claim is enforceable against the
karta so long as the daughter-in-law has a right to claim maintenance against the
coparcenary property in the hands of father-in-law.17
Apart from this the father-in-law has no obligation to maintain widowed daughter-in-law.
But Hindu law recognizes it to be a moral obligation of father-in-law to maintain the
widowed daughter-in-law who has no other means of maintenance. On the death of the
father-in-law, the moral obligation becomes legal obligation against the person who
inherited the property of the father-in-law.
Under section 19, the father-in-law’s obligation to maintain the daughter-in-law is not a
primary obligation; it is not even a secondary obligation. It is remote obligation. The
father-in-law’s obligation will arise only if:-
a) The daughter-in-law is unable to maintain herself out of their earnings or other property,
or
b) The daughter-in-law (in case she has no property of her own) is unable to obtain
maintenance-
i. From the estate of her husband,
ii. From the estate of her father,
iii. From the estate of her mother, or

17
Animutta v. Gandhiammal, 1977 Mad. 372.
 iv. From her sons or daughters or from their estate.
Even then the obligation of the father-in-law only from “any coparcenary property in his
possession out of which daughter-in-law has not obtained any share”. Further, the father-
in-law should have the means to do so from such property, i.e., if the coparcenary property
is already very meager, he may not have any obligation to maintain daughter-in-law. If the
father-in-law has no coparcenary property, he has no obligation to maintain the daughter-
in-law.
MAINTENANCE OF DEPENDANTS
Ss. 21 and 22, Hindu Adoption and Maintenance Act. –

Sections 21 and 22 of the Act create rights of certain persons called dependants. Dependants are
relatives of deceased Hindu and they claim maintenance against the property of the deceased in
the hands of heirs. The term “heir” includes all those persons on whom the estate of the deceased
devolves. The right of dependants exists against the property and not against the heirs personally.
The right dependants as dependants, does not arise during the life time of the person on whom
they are dependant; they are termed dependants only after his or her death.

General Rules

The following general rules relating to the right of maintenance of dependants may be noted:-

i. The obligation is tagged to the estate and not to the person. Therefore, the
maintenance of dependants is not a personal obligation.

ii. Apparently, it is possible that the same person may be a dependant as well as heir.
For instance, widow is an heir as well as dependant. But in reality this cannot be.
The key is provided by section 22 (2) which lays down that a dependant is entitled
to claim maintenance only if he has not obtained “any share in the estate of a
Hindu dying after the commencement of this act by testamentary or intestate
succession.

iii. The liability of the heirs who take the property of the deceased is not a joint
liability. The liability of each heir is an individual liability in proportion of the
value of the share of the estate, inherited by him or her.

iv. Sub-section (4) of section 22 imposes another limitation on the liability to

maintain. It runs: “notwithstanding anything contained in sub-section (2) or sub-
section (3) no person who is himself or herself a dependant, shall be liable to
contribute to the maintenance of others, if he or she has obtained a share or part,
the value of which is, or would, if the liability to contribute were enforced,
become less than what would be awarded to him or her by way of maintenance
under this Act.”

The principle underlying the provision of maintenance of dependants is that all

those persons on whom the estate of the deceased devolves by testamentary or
intestate succession are liable in proportion to the share they get to maintain the
dependants. The liability is subject to other rules discussed above.
Who are Dependants?

S. 21, Hindu Adoption and Maintenance Act.

According to section 21 of Hindu Adoption and Maintenance Act, 1956, the following persons
are dependants of a Hindu, male or female:-

a) The father,

b) The mother,

c) The widow,

d) The minor legitimate son,

e) The minor illegitimate son,

f) The minor legitimate unmarried daughter,

g) The minor illegitimate unmarried daughter,

h) The widowed daughter,

i) The son’s widow,

j) The grandson’s widow,

k) The son’s unmarried daughter,

l) The grandson’s unmarried daughter,

m) Son’s son’s minor son.

Maintenance of the Members of the Joint
Family
So long as the family remains joint, all its members have a right of maintenance against the
joint family property. The persons who claim maintenance out of the joint family funds may
be classified under the following three heads:-

1) Coparceners, qualified as well as unqualified,

2) Wives, widows and the unmarried daughters of the coparceners, and

3) Other members of the family. Under this are included:

a) Those male members who are not coparceners (just as a male descendants beyond
the fourth degree,) and

b) Concubines and illegitimate children of the father.

The claim of maintenance of the entire aforesaid person is not dependent upon the age
but upon the status: so long as a person, whatever is his age, is a member of the joint
Hindu family, he can claim maintenance against the joint family property.

Coparceners

In the joint Hindu family the right of maintenance of all the coparceners out of the joint
family funds is an inherent right and an essential quality of the coparcenary. Every
coparcener, from the head of the family to the junior most members, is entitled to
maintenance. Obviously, the right of maintenance is dependant on the possession of joint
family property. The right exists because there is common property and status is joint. All
coparceners are entitled to get all their legitimate expenses defrayed out of the joint
family funds. This includes food, clothing, residence, education, medical care and
marriage.

The disqualified coparceners, who, on account of their disqualifications, cannot take a

share on partition, have a right of maintenance. Even if a partition takes place, a provision
for their maintenance has to be made before the joint family assets are partitioned.18

18
Rama Rao v. Raja of Pittapur, (1918) 45 I.A. 148.
Wives, Widows and Unmarried Daughters

The wives and unmarried daughter of coparcener, including that of the karta, have a right
of maintenance against joint family property. The daughters also have a right to have
their marriage expenses defrayed out of the joint family funds.

A widow of a coparcener, including the widow of the karta, is entitled to maintenance

out of the joint family property. But right of the widow to be maintained does not give
her any interest in the joint family property.

When a widow succeeded to her husband’s interest under the Hindu Women’s Right to
Property Act, 1937, her claim to maintenance was lost. Thus Hindu Adoption and
Maintenance Act, 1956 does not affect the right. Similarly, a widowed mother is also
entitled to maintenance and the fact that she got a share at partition, does not bar her
claim for maintenance.

Other Members of the Family

Under modern Hindu law under this head fall those descendants who are not coparceners
and some other members of joint family who, though have an inferior status, are, none-
the-less, members of the joint family, such as concubine and the illegitimate sons.

 Concubine
The Hindu Adoption and Maintenance Act, 1956, has not destroyed her right of
maintenance out of the estate of a deceased Hindu who has vested in her before
the coming into force of the Act. If the accrues to her after coming into force of
the Hindu Adoption and Maintenance Act, 1956, she cannot enforce it against the
separate estate of her paramour or against her paramour’s interest in the joint
family property.
 Illegitimate son and daughter
Before 1956 he had the right of maintenance against the estate of his father.
An illegitimate daughter has no right of maintenance under the old Hindu law.
Under the modern Hindu law she has the right of maintenance till minority or
marriage.
Quantum of Maintenance
The means and capacity of a person against whom the award has to be made should be taken into
consideration for determining the quantum of maintenance. In fact, in case of the husband, it is
not only the actual earning, but also his potential earning capacity, which must be considered i.e.
there is a presumption that every able-bodied person has a capacity to earn and maintain his wife.
The income of the husband is a significant factor to be considered by the court in fixing the
quantum of maintenance. It is disposable income and not the gross income, which is to be
considered. Section 23(2) of Hindu Adoptions and Maintenance Act states the factors to be
considered in determining the amount of maintenance payable to the wife, children and aged
parents, and they are as follows – the position of and status of the parties, the reasonable wants of
the claimant, the claimant if living separately is justified or not, the income of the claimant and
the value of the claimant’s property and the number of persons entitled to maintenance under the
Act.

Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she
has indulged in adulterous relationship or has converted herself into any other religion thereby
ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief,
the marriage must be a valid marriage. In other words, if the marriage is illegal then the
matrimonial relationship between the husband and wife is non-existent and therefore no right of
maintenance accrues to wife. However, thanks to judicial activism, in particular cases the
presumption of marriage is given more weight age and the bars to maintenance are removed.

Section 23, Hindu Adoption and Maintenance Act. –

The Hindu Adoption and Maintenance Act, 1956, now, lays down certain considerations which
the court will take into account in fixing the amount of maintenance.

Sub-section (i) of Section 23 lays down the general rule that the fixation of the amount of
maintenance is in the discretion of the court. In respect of quantum of maintenance of wife,
children and aged or infirm parents, sub-section (2) lays down the following considerations:-

i. The position and status of the parties;

ii. The reasonable wants of the claimant;

iii. If the claimant is living separately, whether the claimant is justified in doing so;

iv. The value of the claimant’s property and any income derived from such property, or from
claimant’s own earning or from any other source; and

v. The number of persons entitled to be maintained under the Act.

In regard to the quantum of maintenance of a dependent, sub-section (3) lays down the
following considerations:-

(a) The net value of the estate of the deceased after providing for the payment of his
debts;

(b) The provision, if any, made under a will of the deceased, in respect of the
dependent;

(c) The degree of relationship between the two;

(d) The reasonable wants of the dependant;

(e) The past relationship between the dependant and the deceased;

(f) The value of the property of the dependant and any income derived from such
property; or from his or her earning or from any other source; and

(g) The number of dependants entitled to maintenance under the Act.

Amount of maintenance may be altered
on change of circumstances.-
The amount maintenance, whether fixed by a decree of court or by agreement, either before or
after the commencement of this Act, may be altered subsequently if there is a material change in
the circumstances justifying such alteration.

Under Section 25(1) of Hindu Marriage Act, 1955, a gross sum can be decreed. In terms, sub-
section (3) does not restrict the powers of the Court to rescind only the payment of monthly and
periodical sums. Sub-section (3) has been widely couched and prima facie it might be made
applicable to rescission of an order awarding a gross sum. Though the matter is not free from
difficulty on account of the inartistic language in which the section has been worked and the
absence of any authority on the point, on a close scrutiny, the view that a decree awarding gross
sum cannot be rescinded appears to be more reasonable. The difference in wording in sub-
sections (2) and (3) is somewhat significant. Under sub-section (2), if the Court is satisfied that
there is a change in the circumstances of either party at any time after the order has been made
under sub-section (1), it may vary, modify or rescind any such order in such manner as it may
deem just. To illustrate, if the husband had higher income at the time of the decree, but he
becomes indigent later on and is not in a position to pay the sums towards maintenance, the
Court may step in to reduce the amount. Similarly if the wife gets an employment and earns a
substantial income sufficient to maintain herself, the Court may rescind the order or decree
granting maintenance. Thus in case of change in circumstances the Court has been given ample
power either to vary, modify or rescind the order.

Under sub-section (3), however the Court has been given the power only to rescind. The word
‘rescind’ means to annual or cancels. If the conditions prescribed under sub-section (3) exist, that
is, if a party in whose favour the order has been made remarries, or, if such a party is the wife
and she does not remain chaste, or, if such a party is the husband and he has had sexual
intercourse with any woman outside wedlock, the Court shall rescind the order. In case of
payment of monthly or periodical sums, the Court can rescind the order as such payments relate
to future payments only. Conferring power on the Court to annul future payments after accrual of
cause of action as prescribed in sub-section (3) appears to be reasonable. The same argument
does not, however, apply to rescission of an order granting gross sum, which would amount to
annulment of a past liability and not a future one. Such annulment also would lead to an
absurdity inasmuch as the past dues accruing in favour of the wife in between decree and the
remarriage cannot be rescinded under the sub-section as such liability constituted an integral part
of the gross sum decreed. The past and future liabilities constituting the gross sum are not
severable. Rescission of such an indivisible liability cannot therefore be countenanced.
The maintenance should not vary in any of the case where the wife is able to maintain herself.
The maintenance amount should be assessed by the courts on case to case basis and it should
only be treated and articulated as punishment for the erring spouse and not as a right of woman.
CONCLUSION
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.

It is evident from the recent judicial decisions that the Indian courts have been progressively
liberal in deciding cases pertaining to maintenance. The bone of contention however is whether a
paramour can become entitled to receive maintenance merely from the factum of living with a
married man, coupled with the dispute as to whether the bigamy is legally permissible.

Over a period of time improved rights are bestowed upon Indian Hindu women, the rights
available to them do not match with the rights required. Maintenance has been a 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 rest on the provision made available as maintenance.