ADOPTION AND MAINTAINANCE

Guided By: Prof. Dr. KAHKASHAN Y. DANYAL

SUBMITTED BY:

MD AHMAR MATIN

B.A. LL.B. (HONS.) 5TH SEMESTER

 TABLE OF CONTENT
1) ADOPTION UNDER HINDU LAW
 INTRODUCTION
 THE ADOPTION UNDER HINDU ADOPTION AND MAINTENANCE
ACT,1956
o ESSENTIALS OF VALID ADOPTION
o CAPACITY OF A HINDU MALE TO TAKE IN ADOPTION
o CAPACITY OF A HINDU FEMALE TO TAKE IN ADOPTION
o PERSON CAPABLE OF GIVING IN ADOPTION
o WHO CAN BE ADOPTED
o OTHER CONDITION FOR A VALID ADOPTION
o EFFECTS OF VALID ADOPTION
o EFFECTS OF INVALID ADOPTION
2) MAINTENANCE
 INTRODUCTION
 TYPES OF MAINTENANCE
o INTERIM INDEX AND MAINTENANCE PENDENT-LITE
o PERMANENT MAINTENANCE
 MAINTENANCE OF WIFE UNDER HINDU LAW
 THE HINDU MARRIAGE ACT, 1955
 THE ADOPTION UNDER HINDU ADOPTION AND MAINTENANCE
ACT,1956
3) CONCLUSION AND SUGGESTION.
4) BIBLIOGRAPHY
 ADOPTION UNDER HINDU LAW

INRODUCTION

Under the Hindu law institution of Adoption is considered as important as the institution of
Marriage. To have a son was considered must for every Hindu begetting a son was on of the
three debts of ancestor that a Hindu was required to discharge in this world. Just as a marriage
was never considered purely secular act so was Sonship. Son is called ‘Putra’ because he save
from hell. From pre Vedic Age the Hindu wanted natural legitimate son1.

The Shastric Hindu Law looked at adoption more as a sacramental than secular act. Some judges
think that the object of adoption is twofold: 1) to secure one's performance of one's funeral rites
and 2) to preserve the continuance of one's lineage 2. Hindus believed that one who died without
having a son would go to hell called put and it was only a son who could save the father from
going to Put. This was one of the reasons to beget a son and recognized Dataka as a type of son.

In the Hindu Shastras, it was said that the adopted son should be a reflection of the natural son.
This guaranteed protection and care for the adopted son. He was not merely adoptive parents, but
all relations on the paternal and maternal side in the adoptive family also came into existence.
This means he cannot marry the daughter of his adoptive parents, whether the daughter was
natural-born or adopted. In the modern adoption laws, the main purpose is considered to be to
provide consolation and relief to a childless person, and on the other hand, rescue the helpless,
the unwanted, the destitute or the orphan child by providing it with parents. However, in the
Chandrashekhara case 3it was held that the validity of an adoption has to be judged by spiritual
rather than temporal considerations and devolution of property is only of secondary importance.

1
ParasDiwan, Family Law, (Allahabad Law Agency, Faridabad, Seventh Edition 2005), p. 307.
2
Inder Singh v. Kartar Singh (AIR 1966 Punj. 258).
3
ChandrashekharaMudaliar v. KulandaiveluoMudaliar (AIR 1963 SC 185), as cited in B.M. Gandhi, Hindu Law,
(Eastern Law Book Company, Lucknow, Second Edition 2003), p. 339.
THE ADOPTION UNDER THE HINDU ADOPTION AND MAINTENANCE ACT 1956

Hindu Adoption and Maintenance Act, 1956 extends to only the Hindus, which are defined under
Section-2 of the Act and include any person, who is a Hindu by religion, including a Virashaiva,
a Lingayat or a follower of the Brahmo, Prarthana or AryaSamaj,or a Buddhist, Jaina or Sikh by
religion, to any other person who is not a Muslim, Christian, Parsi or Jew by religion. It also
includes any legitimate or illegitimate child who has been abandoned both by his father and
mother or whose parentage is not known and who in either case is brought up as a Hindu,
Buddhist Sikhs and jainas.

Adoption is recognized by the Hindus and is not recognized by Muslims, Christian and Parsis.
Adoption in the Hindus is covered by The Hindu Adoptions Act and after the coming of this Act
all adoptions can be made in accordance with this Act. It came into effect from 21st December,
1956. Prior to this Act only a male could be adopted, but the Act makes a provision that a female
may also be adopted. This Act extends to the whole of India except the state of Jammu and
Kashmir. It applies to Hindus, Buddhists, Jainas and Sikhs and to any other person who is not a
Muslim, Christian, Parsi by religion.

ESSENTIALS OF VALID ADOPTION

Section 6 of the Act enumerates the requisites of a Valid Adoption:

1. The person adopting has the capacity and also the right to take in adoption.

2. The person giving in adoption has the capacity to do so,

3. the person adopted is capable of being taken in adoption and

4. the adoption made in compliance with the other conditions mentioned in this Chapter.
Therefore, no adoption is considered valid unless it fulfils the abovementioned conditions under
Section 6 of the Hindu Adoption and Maintenance Act, 1956. According Section 5 of the Act, an
adoption made in contravention of the provisions of Chapter II of the Hindu Adoptions and
Maintenance Act, 1956 is void.
Capacity of a male Hindu to take in adoption According to Section 7 of Hindu Adoption and
Maintenance Act, 1956, any male Hindu who is of sound mind and is not a minor has the
capacity to take a son or a daughter in adoption. But if the male Hindu has a wife living at the
time of adoption, he shall not adopt except on the consent of his wife.
In the case of Sarabjeetkabir v. GurumalKaur4, the Court upheld that if adoption taken by the
husband without the consent of the wife, that adoption will be illegal.But the consent of the wife
of a male Hindu is not necessary in the following three conditions:-(1)The wife has completely
and finally renounced the world, or(2)The wife has ceased to be Hindu, or (3)The wife has been
declared by a Court of competent jurisdiction to be unsound mind.
In Krishna Chandra Sahu v. Pradeep Das5, the Court held that where the above three
disabilities of wife have not been established the consent of such wife would be mandatory for a
valid adoption. If the consent of wife is not established, the Court will declare the Adoption null
and void.
If a man has more than one wife living at the time of adoption, the consent of all the wives must
be obtained. The Act has given two qualification for a male Hindu to be capable to take a child in
adoption i.e. the person must be of sound mind and he must not be a minor. The man is required
to take consent of the wives or wife, before adoption. Without the consent of wife or wives the
adoption will be void.

Capacity of a female Hindu to take in adoption A female has also the capacity to adopt any
child. Section 8 of the Act provides that any female Hindu who is of sound mind, who is not
minor and who is not married or if married, whose marriage has been dissolved or whose
husband is dead or her husband has renounced the world finally and conclusively or her husband
has become a convert or her husband has been declared to be of unsound mind by a court of
competent jurisdiction has the capacity to take a son or daughter in adoption.
A woman who is of sound mind and is not a minor can take child in adoption. The woman has no
right to adopt, during the subsistence of the marriage, if the husband not suffering with any of the

4
AIR 2009 NOC 889 (P & H)
5
AIR 1982 Orissa 114
disabilities mentioned in Section 8 of the Act. The unmarried and widow woman has also the
right to take in adoption any child.

In the case of NarinderjitKaur v. Union of India and another 6, it was held that the adoption of a
child under the authority of parents is valid. Where a child was given in adoption willingly by
natural parents and was taken in adoption by the adoptive mother through her attorney, it was
held to be a valid adoption. It was also held that subsequent marriage of adoptive mother does
not invalidate the adoption.

However the 2010 amendment of the Section 8 of the Hindu Adoption and Maintenance Act,
1956 has brought a radical change in the Hindu Law. The newly enacted Section 8 reads as
under,“Any female Hindu who is of sound mind and is not a minor has the capacity can take a
son or daughter in adoption. Provided that, if she has a husband living, she shall not adopt a son
or daughter except with, the consent of her husband unless the husband has completely and
finally renounced the world or has ceased to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind.”

Person capable of giving in adoption Section 9 of the Act lays down the capacity of person,
who may give the child in adoption to another. No persons except the father or mother or the
guardian of the child shall have the capacity to give in adoption.
 Capacity of the father to give in adoption: – If the father is alive, he shall alone have the
right to give in adoption but such right shall not be exercise save with the consent of the
mother.

 Capacity of the mother to give in adoption: – The mother may give the child in adoption
if the father is dead or had completely and finally renounced the world or has ceased to
be a Hindu or has been declared by a court jurisdiction to be unsound mind.

 Capacity of the guardian to give in adoption: – Where both the father and mother are
dead or to be unsound mind or had finally renounced the world, is declare by the court
then the guardian of a child may give the child in adoption with the following conditions
laid down by the courts:-

6
AIR 1997 P&H 280
 1. That the adoption will be for welfare of the child.

2. That the applicant for permission has not received any payment in consideration
of the adoption.

3. That no person has given any payment to the applicant for consideration of the
adoption of child.

The father has preferential right to give the child in adoption. If he is unsound mind or suffering
from chronic disease has the right to give a child in adoption. The guardian may give the child in
adoption with the prior permission of the court.

Who can be adopted:-Section 10 of the Hindu Adoption and Maintenance Act, 1956 the
following person who fulfill the conditions are capable for adoption:-
1. He or she should be Hindu. It is necessary that the child adopted must be Hindu.
Therefore the adoption of Muslim child by the Hindu is not recognized as adoption under
the Act.

2. He or She not already be adopted any child adopted. Two persons cannot adopt same
child.

3. He or She has not been married unless there is a custom applicable which permits being
can adopt. Before 1956, the adoption of married child among all the classes is invalid
except in Bombay among the Jats. In Bombay, the adoption of married person or married
person with child was valid. Section 10(iii) prohibits adoption of married person but
recognized custom to the contrary.7

4. He or She has not completed the age of fifteen years which is to be considered being
taken for adoption unless there is a usage or custom applicable to the parties which
permits persons who have completed the age of fifteen being taken in adoption.

Adoption of an orphan-Under the present law an orphan could also be taken in adoption8. In such
cases the guardian of the orphan can obtain the permission of the court to this event and
7
Maya v. Jay 1989 P&H 202.
8
See ParasDiwan Adoption of an Orphan under Hindu Law 1963 XV the law review, 153-165.
thereafter could give the child in adoption. It was held that where customs or traditions allow
there a person above 15 years of age or married can be adopted 9.Another case of DevGonda v.
Sham gonad -1992, the Bombay High Court held that any insane can also be adopted. Further
any orphan found child or abandon child may be adopted.

Other conditions for a valid adoption

According to Section 11, in every adoption, the following conditions must be complied with:
1. if the adoption is of a son , the adoptive father or mother by whom the adoption is made
must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood
relationship or by adoption) living at the time of adoption;

2. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son’s daughter (whether by legitimate blood
relationship or by adoption) living at the time of adoption;

3. if the adoption is by a male and the person to be adopted is a female, the adoptive father
is at least 21 years older than the person to be adopted;

4. if the adoption is by a female and the person to be adopted is a male, the adoptive mother
is at least twenty-one years older than the person to be adopted;

5. the same child may not be adopted simultaneously by two or more persons (does not refer
to if both persons are adoptive mother and father) ;

6. the child to be adopted must be actually given and taken in adoption by the parents or
guardian concerned or under their authority with intent to transfer the child from the
family of its birth  or in the case of an abandoned child or child whose parentage is not
known, from the place or family where it has been brought up to the family of its
adoption: Provided that the performance of Dattahomam shall not be essential to the
validity of adoption.

9
The case of Balakrishna v. Sadashive-1977, another case of Mayaram v. Jai Naraian -1989 and Kodippa Rama
Papal urfShirke v. Kannappam -1990.  
 EFFECTS OF VALID ADOPTION –

Section 12 An adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of the adoption and from such date all the ties
of the child in the family of his or her birth shall be deemed to be severed and replaced by those
created by the adoption in the adoptive family:

Provided that- (a) the child cannot marry any person whom he or she could not have married if
he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in
such person subject to the obligations, if any, attaching to the ownership of such property,
including the obligation to maintain relatives in the family of his or her birth;

(c) The adopted child shall not divest any person of any estate which vested in him or her before
the adoption. In Rangappa v. Channappa10it was observed that after adoption adopted child is not
entitled to any property of his natural parents.

Right of adoptive parents to dispose of their properties – Section 13

Section 13 lays down that where there is no agreement to the contrary, an adoption does not
deprive the adoptive father or mother of the power to dispose of his or her property by transfer
inter vivos or by will.Thus an adoptive parent is in no way restrained in the disposal of their
property by reason of adoption.

Adoptive parent’s right to disposing off his property is subject to an agreement to the contrary
that might have been entered into at the time of adoption between the adoptive parents and the
natural parents on behalf of the child for his benefit. Under the Act, thus, agreements restricting
the power of alienation of the adoptive parents is void.

10
2008 kar.47 (DB).
 Relationship of adopted child – Section 14

Section 14 lays down as to how an adopted child will be related to certain relations of adopter.
The Section provides for the determination of adoptive mother in certain cases. The Section lays
down that –

(1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive
mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior-most in
marriage among them shall be deemed to be the adoptive mother and the others to be step-
mothers.

(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall
be deemed to be the step-mother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries
subsequently shall be deemed to be the step-father of the adopted child.

Valid adoption not to be cancelled – Section 15 lays down that no adoption which has been validly
made can be cancelled by father or mother. An adopted child also cannot renounce his/her status
as the adopted child and return to the family of his/her birth. Prohibition of certain payments –
Section 17 prohibits certain payments. Section 17 (1) states that no person shall receive and no
person shall make or give to any other person any payment or reward the receipt of which is
prohibited by this section. Section 17 (2) provides that if any person contravenes the provisions
of Section 17 (1), he shall be punishable with imprisonment which may extend to six months, or
with fine, or with both. Finally, Section 17 (3) states that no prosecution under this section shall
be instituted without the previous sanction of the State Government or an officer authorized by
the State Government in this behalf.
 Effects of invalid adoption

The adopted son does not acquire any right in the adopted family. He does not forfeit his right in
the natural family. Formalities of Adoption:-(i) The child to be adopted must be actually given
and taken in adoption by the parents/guardian.(ii) Only after the transfer of a boy from one
family to another with a ceremony will be valid. In the case of Lakshman Singh Kothari v/s Smt.
Rup Kuwar, 1961 the court held that under the Hindu Law there cannot be a valid adoption
unless the adoptive boy is transferred from one family to another by doing the ceremony of given
and taken.

MAINTENANCE
INTRODUCTION

The whole concept of maintenance was introduced in order to see that if there is a spouse who is
not independent financially than the other spouse should help him/her in order to make the living
of the other person possible and independent. Providing maintenance means that the other person
who is getting the maintenance should be able to live the life as he or she lived before marriage
in case of divorce and in case where the two partners are not living together and they seek
maintenance than the spouse getting maintenance should be able to live a life as when they lived
together. Maintenance is the amount which a husband is under an obligation to make to a wife
either during the subsistence of the marriage or upon separation or divorce, under certain
circumstances.

The most important aspect of maintenance is that the party which relies on maintenance has no
independent source of income to support himself/herself. Should the spouse who is claiming
maintenance have movable or immovable property, the spouse can still claim maintenance if the
property does not yield any income.

The quantum of maintenance and the expenses of the proceedings have not been specified in any
of the Indian Matrimonial statutes except the Divorce Act. The court can fix the maintenance at
any amount, depending on its discretion. When deciding the quantum of maintenance to be
awarded, the court takes into account the income of the parties, their status and other
circumstances. When the wife applies for maintenance, the onus is on the husband to declare his
income.11

The persons who are entitled to 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. 12Whereas, under the Muslim law, the persons entitled to
maintenance are wife, young children, the necessitous parents, and other necessitous relations
within the prohibited degrees.13 The Muslim Law of maintenance is based on the Muslim
personal laws and the law enactments such as the Indian Majority Act, 1875, the Criminal
Procedure code 1973, Muslim Women (Protection of Rights on Divorce) Act, 1986.

TYPES OF MAINTENANCE

There are two types of maintenances:-

(1) Interim maintenance and maintenance pendent-lite

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. Interim maintenance is supposed to meet the
immediate needs of the petitioner. And maintenance pendent-lite is for providing the litigation
expenses to the claimant. Interim maintenance is the amount that is paid by the financially
independent spouse to their counterpart during the pendency of the proceedings in the
matrimonial cause and which covers the expenses of the proceedings as well as the other
expenses of the spouse during the course of the proceedings. The basis of the claim for interim
maintenance is that the claimant has no independent income of his/her own to support
himself/herself. The provision is silent on the quantum of maintenance and it is upon the
discretion of the court to determine the quantum.

11
http://www.legalserviceindia.com/articles/hmcp.htm
12
Hindu Adoptions and Maintenance Act (HAMA), 1956.
13
https://www.legistify.com/blogs/view_detail/1603-maintenance-under-hindu-laws
Section 24 provides of Hindu Marriage Act, 1955 (HMA) provides for maintenance. It talks
about how either the wife or the husband can claim for interim maintenance. 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. Interim maintenance is supposed to meet the immediate needs
of the petitioner. And maintenance pendent-lite is for providing the litigation expenses to the
claimant.

Interim maintenance can be claimed either by the husband or the wife, under the Hindu Marriage
Act and the Parsi Marriage and Divorce Act and is called “Alimony Pedente Lite" Under all
other statutes, the wife is the only spouse who can claim it. 14Section 36 of the Divorce Act of
1869 says that the wife may file a petition for interim maintenance, regardless of who instituted
the suit and whether the wife obtained an order for protection. It also says that the petition for the
expenses of the proceedings and alimony pending the suit should be disposed of within sixty
days of the service of the petition on the husband.

(2) Permanent maintenance

Permanent maintenance, on the other hand, is the maintenance that is paid by one spouse to the
other after the judicial proceedings have resulted in either the dissolution of the marriage or a
judicial separation. Section 25 of the act talks about permanent maintenance. It states that how
the court can order the respondent to pay the applicant for her or his maintenance a gross sum or
a monthly or periodical sum for a term not exceeding the life of the applicant unless there are
changes in circumstances under which the court can change its order.

MAINTENANCE OF WIFE UNDER HINDU LAW

The relevant legislations which govern the maintenance of wife under Hindu law are: The Hindu
Marriage Act, 1955, and the Hindu Adoption and Maintenance Act, 1956. The relevant
provisions are: Section 24, and Section 25 of the Hindu Marriage Act, 1955, and Section 18 of
the Hindu Adoption and Maintenance Act, 1956.

14
https://www.lawteacher.net/free-law-essays/family-law/maintenance-of-wife-under-hindu-law-essays.php#ftn1
THE HINDU MARRIAGE ACT, 1955

Section 24 of the Hindu Marriage Act, 1955, deals with the alimony pendent-lite and the
expenses of the proceedings. This Section empowers the court to order the respondent to pay the
petitioner the expenses of the proceedings, if it appears that either wife or the husband has not
independent income for his or her support and to meet out the necessary expenses of the
proceedings. It is to be noted that the court while making order under this Section, pays due
regard to the petitioner's own income and the income of the respondent. The Marriage Laws
(Amendment) Act, 2001 was introduced. This amendment inserted the proviso in Section 24 of
the Hindu Marriage Act, 1955, which aimed to fix the duration of six months in the disposal of
the application of the payment of the expenses of the proceeding and monthly sum during
proceeding within the sixty days from the date of the service of notice on the wife or husband, as
the case may be.

Section25 of the Hindu Marriage Act, 1955 deals with the permanent alimony and maintenance.
It comprises three Subsections.

Subsection 1 of this Section deals with the condition where any husband or wife may for the
permanent alimony or maintenance at the time of passing any decree or at any time subsequent
thereto. This Subsection empowers the court to order the respondent to pay the maintenance and
support the gross sum or the respondent's own income and other property and the income and
other property of the applicant. The court may, if necessary, also secure the payment of
permanent alimony by a charge on the immovable property of the husband.

Subsection 2 of this Section says that after the passing of the order of the payment of permanent
alimony under this Section, in case the court is satisfied that there is a change in the
circumstances of either party. In this condition, the court may, at the instances of either party,
vary, modify or rescind any such order in such manner as court deems just.

Subsection 3 of this Section empowers the court to rescind the order of the payment of
permanent alimony, if it is satisfied that the party in whose favor an order has been passed under
this Section has been remarried or if such party is the wife, that she has not remained chaste, or if
such party is the husband, that he had sexual intercourse with any woman outside the wedlock.

THE HINDU ADOPTION AND MAINTENANCE ACT, 1956.

Section 18 of the Hindu Adoption and Maintenance Act, 1956, deals with the married women's
right to reside separate and claim maintenance. This Section comprises three Subsections.

Subsection 1 of this Section entitles the Hindu wife to get the maintenance from her husband
during her life time. The right to be maintained is irrespective of the fact that whether she was
married before or after the commencement of the Act.

Subsection 2 of this Section provides justifiable grounds to the Hindu wife under clause (a) to
clause (g) which entitle the Hindu wife to live separately from her husband without forfeiting her
claim to maintenance. The grounds are desertion, cruelty leprosy, having another wife by the
husband, keeping a concubine by the husband, conversion from Hinduism to another religion by
the husband or any other justifiable cause.

Sub-Section 3 of this Section disentitles the Hindu wife to separate residence and claim of
maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to
another religion. The rule laid down in Section 18 of the Hindu Adoption and maintenance Act,
1956 must also be read with Section 23 of this Act which lays down that it shall be the discretion
of the court to determine whether any, and if so what maintenance shall be awarded under the
provisions of this Act.15

Here in this Section, the right of the Hindu wife whether married before or after the
commencement of this Act, to be maintained by her husband during her life time has been,
reiterated substantially in Subsection (1).However, this Subsection (1) must be read with
Subsection (2) and Subsection (3). Subsection (3) is an exception to Subsection (1) which lays
down that the Hindu wife cannot claim separate residence and maintenance, if she is unchaste or
ceases to be a Hindu by conversion to another religion. Subsection (2) shows the justifiable
ground upon which a Hindu wife lives separately from her husband without forfeiting her claim
to maintenance.

15
Mulla, Principles of Hindu Law (ed. 19th, 2006, New Delhi), p. 565
Clause (a) of Subsection 2 of the Hindu Adoption and Maintenance Act, 1956 deals with the
“Desertion of wife by husband”. This clause aims at giving the meaning of desertion as
abandonment of the wife by the husband without reasonable cause without her consent or against
her will or willful neglect of the wife by the husband. It accords with the meaning given to the
expression as used in Section 13(1) of the Hindu Marriage Act 1955. The only distinction
between Section 18(2) (a), and explanation to Section 13(1), the Hindu Marriage Act, 1955 is
that under the latter the petitioner should show the respondent had deserted him or her for a
period of 2 years prior to the presentation deserted him or her for a period of 2 years prior to the
presentation of the while under Section 18(2)(a) of the Hindu Adoption and maintenance Act,
1956, desertion might be any duration16 A full bench of the Kerala High Court has held that if a
husband had deserted the wife, the wife need not give the proof of animus.17

Clause (b) of Section 18(2) of the Hindu Adoption and Maintenance Act, 1956 deals with the
“Cruelty” by the husband to wife. For succeeding the claim of cruelty, the wife must prove two
distinct element, first, ill treatment complained of, and secondly, the result and danger of
apprehension thereof. Any conduct of husband which causes disgrace of wife or subject to a
course of annoyance and indignity amounts to legal cruelty. The harm apprehended by the wife
may be a mental suffering as distinct from bodily harm, because the pain of the mind may be
even more severe than bodily pain18 In Swajyam Prabha v. A.S. Chandra Shekhar19, it was held
that "the baseless allegations about the adultery would constitute mental cruelty to the wife, so
that cruelty is a solid ground for claiming maintenance and separate residence". It is well settled
principle of law that leveling allegations of adultery without proper foundation and basis would
tantamount to perpetrating mental cruelty on the other spouse20 In Ram Devi v. Raja Ram21, the
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
separately.

16
Preeti Sharma, Hindu Women's Right to maintenance (ed. I, 1990, New Delhi) p. 135.
17
Raghavan v. Satyabhama Jaya Kumari AIR 1985 Kerala 193 (FB).
18
Supra note: 2, p. 136
19
AIR 1982 Kant. 295.
20
Madan Mohan v. Sarda AIR 1967 Punj. 397; Iqbal Kaur v. Pritam Singh AIR 1963 Punj. 242; Mohinder Kaur v.
Bhagram AIR 1979 P & H 71.
21
1963 All. 564.
Clause (c) of Section 18(2) of the Hindu Adoption and Maintenance Act, 1956, deals with the
“Leprosy” of the husband. A Hindu wife is also entitled to live separately from her husband and
has a right to claims maintenance from him on the ground that he is suffering from a virulent
form of leprosy. It may be noted that no period is prescribed, but it must be existing at the time
when the claim for maintenance is made22. It does not make any effect whether the disease
started before or after the coming into force of the Act.23A mild type of leprosy which is capable
of treatment cannot be called virulent leprosy which is malignant and contiguous and in which
prognosis is usually grave.24

Clause (d) of Section (18)2 of the Hindu Adoption and Maintenance Act, 1956 deals with the
ground which is “the husband having another wife”. A Hindu husband cannot marry another
wife after the commencement of the Hindu marriage Act, 1955. Act lays down monogamy as a
rule of law. This gives the right to a wife to claim maintenance, while living separately without
forfeiting her claim to maintenance on the ground that his husband has another wife living with
him. The interpretation of this Subsection has resulted into conflicting judicial pronouncements
by the entitlement of the second wife to claim maintenance from the husband after the
commencement of the Hindu Marriage Act, 1955.25

In Annamalai v. Perumayee Ammamal26, the High Court of Madras has held that clause (d) of
sec18(2), would apply only in case of marriage solemnized before this Act came into operation.
The Andhra Pradesh High Court had earlier taken the view that the second wife would be
entitled to claim maintenance under this provision.27The High Court of Calcutta has taken the
view that second wife would not be so entitled. 28The Madhya Pradesh High Court as well as the
Bombay High Court had in the context of Sections 24-25 of the Hindu Marriage Act, 1955 and
also taking into consideration of present Section had expressed the view that the expression 'wife'
and 'husband' used in the Act cannot be given a strict literal meaning so as to convey only a
legally married husband and wife. It was also held that the word used in Section would refer to
parties who have gone through the ceremonies of marriage, and the court can make order of
22
Supra Note: 4, p. 137 . 12 AIR 1965 Mad 139, 141
23
Supra Note: 1 p. 569
24
Sivaraya v. C.C. Padma Rao (1974) 1. SCJ 79.
25
Supra Note: 1 p. 570.
26
AIR 1965 Mad 139, 141
27
C. Obula Konda Reddy V.C. Pedda Venkata AIR 1976 AP.
28
Ranjit Bhattacharya v. Sabita AIR 1996 Cal 301.
maintenance at the instance of the second wife. 29 The Andhra Pradesh High Court in a recent full
bench decision over ruled the earlier decision while holding that second wife is not entitled to
maintenance under this Section, since after coming into force of the Hindu Marriage Act, 1955,
bigamous marriage is prohibited. The second Marriage being void, the second wife cannot claim
maintenance under this Section since the parties to the marriage will not have the status of
legally married husband and wife.30 The decision of the High Court of the Bombay in
Kirshnakant's Case was overruled by the decision of the Full Bench.

In Bhau Saheb v. Lilabai,31 which took the view that petition challenging the nullity of marriage
by Virtue of Section 5(1) of the Hindu Marriage Act, 1955, is petition seeking declaration of the
nullity of the marriage and is not a petition affecting marital status and thus, would not entitle the
wife if such is void marriage to the relief of maintenance. The Court held that the words 'any
decree' in Section 25 of the Hindu Marriage Act can't be construed to mean 'every decree' so as
to entitle such spouse to maintenance. The Supreme Court has in the context of entitlement to a
spouse of void marriage, now held that once there is a decree of nullity in respect of void
marriage such spouse would be entitled to maintenance. The Court taking note of its earlier
decision in the Chand Dhawan v. Jawahar Lai Dhawan32 held that decision clearly stipulated
that once there is decree bringing about disruption of marital tie, including a decree nullifying a
void marriage, the spouse was entitled to maintenance.

Section 25 of the Hindu marriage Act, 1955 applies on the disruption of the marriage tie, as
explained and interpreted by Supreme Court in above decisions, whereas Section 18 of the Hindu
Adoptions and Maintenance Act. 1956 applies in cases where the marriage Subsists and confers
upon the wife the right to claim maintenance without seeking disruption and the marriage tie. 33In
fact Supreme Court while analyzing the provisions of the Hindu Marriage Act, 1955 in Ramesh
Chandra Daga v. Rameskwari Daga34 stated where the marriage is not dissolved by any decree
of the court, resort to Section 25 of the Hindu Marriage Act, 1955 is not allowed as any of the

29
Laxmi Bai v. Ayodhya Prasad AIR 1991 p. 47; Krishnakant v. Reema AIR 1999 Bom. 127.
30
Abayalla M. Subbareddy v. Padmamma AIR 1999 AP 19(FB); Soloman v. Jaini Bai AIR 2004 Mad. 460 (void
marriage-second wife not entitled).
31
JT 2004 (10) SC 366
32
JT 2004 (10) SC 366
33
Supra Note: 1 p. 571
34
JT 2004 (10) SC 366
spouse whose marriage continues can resort to any other provision like Section 125 of Criminal
Procedure Code, 1973 or Section 18 of the Hindu Adoptions and Maintenance Act, 1956.

It appears that though the Hindu Marriage Act, 1955, the second marriage during the life time of
first wife, the present Sections does not clearly states that it is only the legally married wife who
can claim maintenance in the above circumstance. If it had been the language of the Section the
claim of the second wife would necessary fail.35

The Hindu Marriage Act, 1955, which prohibited bigamy, was enacted before the Hindu
Adoption and Maintenance Act, 1956.The legislature therefore conscious of the fact that the
Hindu marriage Act, 1955, prohibited of bigamous marriage, and yet the present Section, as it
stands today had been enacted. It is submitted that if the legislative intent in the context of this
Section were to grant the right of maintenance only to a legally married wife, it would have
clearly stated so. It is worthwhile to note that maintenance under Section 18 of the Hindu
Adoption and Maintenance Act, 1956 has been construed the beneficial piece of legislation. It
also appears that the word 'husband' and wife in the context of this Section cannot be read to
convey only a legally needed but be read as conveying the meaning of person who has
undergone the ceremonies of marriage. The provision as it stands today is widely worded so as to
sustain the claim of maintenance by second wife. The claim is maintainable irrespective of the
fact that the other marriage had taken place after or before the marriage of applicant wife,
provided the other wife is living. 36 The word any other wife living, in this clause are of
sufficiently wide connection to include any wife other them the wife claiming maintenance under
this Section. The meaning is not confined to a wife who is junior to the wife who is claimant, 37
nor is it necessary that the husband and other wife should be living together. The word living
here means alive and not living with the husband,38 a Second wife who had abandoned her
husband for no justifiable reasons and not for immoral purpose would be entitled to live
separately from the husband by virtue of present clause, and claim maintenance under present
Section.39

35
Supra Note: 1 p. 571-572.
36
Ibid p. 572
37
Jagamma v. Satyanarayana Murti AIR 1958 All 582.
38
Kalawati v. Ratan Chand AIR 1960 All 601
39
Ram Prakash v. Savitri Devi AIR 1958 Punj. 87
 Clause (e) of Section 18(2) of the Hindu Adoption and Maintenance Act, 1956 deals with a
ground which is "husband keeping a Concubine". A Hindu wife is also entitled to live
separately from her husband and claim maintenance from him and the ground that he keeps a
concubine in the same house in which she is living or habitually resides with a concubine
elsewhere. In the second part of this clause, the emphasis is the “habitually” and not so much on
residence.40It is not necessary that the husband should have actually shifted his residence to the
place where concubine lives.

Clause (f) of Section 18(2) of the Hindu Adoption and Maintenance Act, 1956 deals with the
ground which is "husband ceased to be a Hindu by conversion". A Hindu wife is entitled to
live separately from her husband if he has ceased to be a Hindu. However, the terms Hindu in
this clause must be understood in the wide sense given to it in Section 2 as will be seen from
Subsection 3 of that Section. So husband continues to be a Hindu even though he may have been
converted to any other of four religions: Hinduism, Buddhism, Jainism, and Sikhism. Conversion
in the present context implies that the husband has voluntarily relinquished his religion and
adopted another religion after a formal ceremonial conversion; A Hindu does not cease to be a
Hindu merely because he professes an ardent admirer and advocate of such religion and its
practices.41 However if he abdicate his religion by a clear act of renunciation and adopts the other
religion, he would cease to be Hindu within the meaning of that clause.

Clause (g) of this Section 18(2) of the Hindu Adoption and Maintenance Act, 1956 deals with
the ground which is 'any other justifiable cause'. It is a residue clause; it runs, "if there is any
other cause justifying her living separately". For seeking in the remedy under this clause 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 a justifiable cause. It is submitted that all those cases where the court may refer
husband's petition for the restitution of conjugal right will be covered under this clause entitling a
wife to claim separate residence & maintenance under this clause.42 In Subbegowda v.
Homnamma,43 wife claimed maintenance on the ground that husband treated her with cruelty
and that he remarried and was living with second wife. The charge of cruelty was not
40
Kesar Bai v. Hari Bhan AIR 1975 Bom. 115
41
Supra Note: 1 p. 574.
42
Kesar Bai v. Haribhan AIR 1974 Bom 115
43
AIR 1984 Kant. 41
established, but it was found by the court that husband was living with woman, having illicit
relation with her and from which a child was born. Since marriage with this wife was not
established, the case was not covered by clause (d) of Section 18(2). The court held that this was
nonetheless a just cause for her to live separate and she was entitled to claim maintenance. The
court took recourse to clause (g).

But according to Subsection (3) of Section 18, a Hindu wife shall not be entitled to separate
residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by
conversion.

CONCLUSION AND SUGGESTIONS

After the commencement of Hindu Adoption and Maintenance act 1956, the power of Hindu
female has considerably increased as without consent of wife husband cannot adopt nor the child
could be given in adoption, power of widow to adopt a child is also in favour of women. Wife
can also adopt in certain circumstances and daughter can be adopted. Unmarried girl, divorcee
and widow can also adopt. According to this act ceremony of Datta Homan is not essential. Also
this act abolished the theory of relating back, an adopted child comes into existence from the
date of adoption. The maximum age of adopting a child is 15 yrs (unless custom prevails) which
is for the welfare of the child as it will be easier for the child to mix up with the new adopter’s
family.

The judgments delivered by the Supreme Court and various High Courts of the country from a
very long time cast an unavoidable legal obligation on the husband to provide maintenance to his
deserted wife. The fact that the husband is responsible for the desertion gives an absolute right to
the wife to claim maintenance and the husband cannot avoid it at any cost. Even if the wife
separates from the husband due to his conduct, then also he is supposed to give for her
maintenance. This thinking finds support from all the jurists as well as the Hon’ble judges and all
the other legal luminaries. The above thinking lends full support to the 252nd Law Commission
Report and the researcher also fully agrees to this concept. In the light of the discussion going on
about the subject matter of research, after dealing with all the intricacies of the issue, the
researcher is in full support to the recommendations of the Law Commission of India. However,
the researcher would suggest that if the desertion is done by wife due to some mental disorder of
the husband, then the maintenance should be provided by the husband’s family. Second
suggestion would be the removal of the term “unchaste” in relation to a woman. The court can
determine a woman to be chaste or not by her conduct and not if the husbands falsely pleads so.
The suggestion by the researcher would be to provide maintenance to the deserted wife even if
the couple is living separately by consent. For example, a married Hindu couple does not have a
good relation and fight constantly and they separate by mutual consent and the wife is not
qualified enough to earn a living for herself, she should still get maintenance for survival. The
law says that if separation is mutually consented, no maintenance will be provided. But the
researcher would suggest that in such case as above mentioned, the maintenance should be
provided.

BIBLIOGRAPHY

1) PARAS DEEWAN, FAMILY LAW

2) R.K.AGGARWAL, HINDU LAW
3) U.P.D.KESARI, MODERN HINDU LAW
4) HINDU LAW, D.F.MULLA