– 53 –

CHAPTER 3

WOMEN’S RIGHT OF MAINTENANCE: STUDY OF THE

VARIOUS PERSONAL LAWS AND SOCIAL WELFARE

LEGISLATIONS

3.1 Introduction

India being a multi religion Country stands for unity in diversity

which comprises various regions, religions and cultures. Being diverse

about the cultural and religious beliefs, every religion has got certain

norms and conditions as far as there various religious aspects are

concerned.

Even the maintenance jurisprudence which aims to establish and

provide a social and financial security to the destitute females vary

from religion to religion and the set of rules applicable to the various

categories vary as per their own religious beliefs which are applicable

in the same conditions on the same segment of the fair sex. Our law

makers have always shied away from legislating on the various points

of personal laws which are considered to be that of controversial or

sensitive nature, for the fear that such legislation being labeled as

intrusion on their rights thereby resulting in strong backlash.

Even the Constitution of India1 incorporates in the Seventh

Schedule that concept of Marriage, Divorce, Adoption, Wills,

Intestacy, Joint Family; Succession, Partition etc. are to be subjected

by the Personal Laws of the individual, which are amended from time

1 Seventh Schedule: Concurrent List, Entry 5 states that, “Marriage and divorce;

infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law”.

– 54 –

to time by the various communities to incorporate the changing times

and to keep pace with the requirement of time.

In the present chapter an attempt has been made to study and

analysis the diversified provisions related to maintenance as far as the

claim of various categories of women is concerned the various

parameters which are to be achieved for a successful claim of

maintenance will be elaborately discussed in relation to the various

religions in India namely Hindu, Muslim, Christians and Parsis.

Though many personal laws have incorporated the provision related to

the husband’s entitlement to claim the maintenance from the wife as

well, but this aspect has not been covered under the present work.

The Chapter has been divided in to following parts:

I. Law of maintenance under the Hindu Law:

• The Hindu Adoption and Maintenance Act, 1956

• The Hindu Marriage Act, 1955

II. Law of maintenance under Muslim Law:

• Obligation under the Muslim Personal Law

• The Muslim Women ( Protection of Rights on

Divorce0 Act, 1986

III. Maintenance under the Special Marriage Act, 1954

IV. Maintenance under the Indian Divorce Act, 1869

V. Maintenance under the Parsi Marriage and Divorce Act,

1936

VI. Maintenance of Parents and Childless Senior Citizens

under the maintenance of Parents and Senior Citizens

Welfare Act, 2007

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3.2 Law of Maintenance under the Hindu Law

The Hindu Law for maintenance can be segregated as Pre-

Codification period and Post-Codification Period. The presence of

Concept of maintenance in the Pre-Codification period emerged as

personal liability to maintain certain relations and that the liability of

Joint Family to maintain certain relation. The Post Codification Law

of maintenance which is applicable on the Hindus can be summarized

under the following heads:

• The Hindu Adoption and Maintenance Act, 1956

• The Hindu Marriage Act, 1955

• The Code of Criminal Procedure, 1973

Since the scope of this chapter has been confined to personal

laws, an elaborate discussion regarding the provisions of maintenance

incorporated in the Hindu Adoption and Maintenance Act, 1956 and

The Hindu Marriage Act, 1955 exclusively applicable to Hindus has

been made as part of this chapter. Provisions incorporated in the Code

of Criminal Procedure, 1973 which is statutory right secular in nature

and the provisions are applicable to individuals irrespective of religion

or the communities to which they belong are elaborately discussed in

the next chapter.

3.2.1 Situation Prior to 1955 (Pre-Codification Period)

Since the ages and time immemorial, Hindu sages in an

unequivocal terms have supported and advocated the claim of

maintenance, may it be Manu, Brahaspati or old school of Mitakshara.2

2 The concept of these sages has already been discussed in the previous chapter, in

which they have strongly supported the claim of maintenance and the liability of man to maintain certain relations which is not only moral but legal too.

– 56 –

As previously discussed, the law prior to codification was

confined to two categories i.e. maintenance as a personal obligation

irrespective of any property and maintenance as an obligation of a

person to maintain the dependant of another whose property has

devolved on him and thus it includes obligation of joint family to

maintain its members.3

3.2.1.1 Personal Obligation to Maintain Certain Relation

Prior to codification also, a Hindu was liable maintain the

following relations as his personal obligation:

3.2.1.1.1 Wife

‘Wife’ which is known as ‘Ardhangini’ which literally means

better half of a man gives him a sense of completeness. To maintain a

wife comes under the personal obligation of the husband whether he

possesses the property or not and this obligation arises from the

relationship of husband and wife. The maintenance being personal

obligation, the wife use to have no claim against the husband’s

property and even against the person to whom it is transferred and

even she had no claim against the property from the government in

case the husband is declared absconder and his property is attached.4

In the system of old patriarchal society, the wife was supposed

to be manager of all the household activities and she was not supposed

to go out of the house for the purpose of earnings. Husband was only

considered to be the bread winner of the family and the wife use to be

dependent on him for food, cloth etc. In the modern era also, few of

the people living in the Joint Family are of same view that wife should

remain occupied with the household works within the four walls of the

house only. The oldest systems use to persist that the husband had a

3 Mulla, Principles of Hindu Law, 737(2010). 4 Id., at 744.

– 57 –

duty to maintain his wife as long as she remains his wife or she

remains loyal to him. But in the modern era the law has extended the

duty of the husband to maintain his wife even after the dissolution of

the marriage.5

The nature of obligation to maintain a wife, being personal in

character, begins as soon as one enters in to wedlock, and remains till

end. In case of some customary societies, where the wife is required to

live with her parents for some time before going to her husband house

for, even in that case the obligation of the husband is not haulted and

he is supposed to maintain her, though the parents of wife are well off

who can take due care of their newly wedded daughter.6 In fact it

imposes another obligation on the husband to re compensate his in

laws for maintaining his wife during her stay with them. In the old law

no one except the husband has the liability to maintain the wife. But

wife being the part of the joint family, the position was quite different

and she would be liable to be maintained out of Joint Family’s estate

being member of the same.7

Hindu law givers in the ancient time have kept the chaste as

well as unchaste wife on the same platform and an unchaste wife was

entitled for maintenance as long as she remained with her husband and

that was called as starving maintenance. In the old law, the only thing

which was required for a wife to be maintained by her husband that

she should not leave his company and the wife who did not use to live

with her husband whatever may be the reason was not entitled to

maintenance. Later the law developed and she was entitled to claim

maintenance if she was staying away from her husband on some

justifiable grounds.8

5 Paras Diwan, Indian Personal Laws, Vol. 5, 346 (1993). 6 Mayne, Treaties on Hindu Law & Usages, 1285 (2010). 7 Supra note 5 at 347. 8 Ibid.

– 58 –

In the old Hindu Law, a Hindu male was not allowed to

absolutely abandon the wife, even in the case she was living an

unchaste life, as mentioned in the previous paragraph, the husband was

bound to keep and maintain her in the house under the restrain and

provide her the food and other necessities so that she could live a

stable life, but other than that she was not entitled to any other right.

But later, if she repented and performed expiatory rites, she acquired

the right of bare maintenance, but if not she use to lost her right of

maintenance.9

As stated earlier also, Hindu law imposes the personal

obligation upon the husband, to maintain his wife; the wife has got a

right to enforce her right to get maintenance by creating a charge over

the property, whether it’s self-acquired or ancestral. She was entitled

to be maintained out of the profits of husbands’ property within the

meaning of Section 39 of Transfer of Property Act, 1882 and can

enforce the rights against the properties in the hands of the alinee with

the notice of her claim.10

A wife living apart from her husband doesn’t forefeet her right

to claim maintenance, as the right is not forfeited but merely

suspended. The right revives if she returns to her husband or at the

death of the husband, as at the death, the husband ceases to exist. Her

right being existent, she cannot be excluded by the husband by making

a will and thus he cannot defeat her right. A wife, who is unlawfully

excluded from her own home or has been refused the proper

maintenance in it, has the same right to pledge her husband’s credit,

same as a right of wife in England.11

9 R.K. Agarwala, Hindu Law, 130 (2006). 10 Supra note 6. 11 Id., at 1287.

– 59 –

3.2.1.1.1.1 Maintenance Under Hindu Married Women’s Right to

Separate Residence and Maintenance Act, 1946

Under Section 2 of Hindu Married Women’s Right to Separate

Residence and Maintenance Act, 194612 a Hindu married Woman is

entitled to separate residence and maintenance from her husband on

one or more of the grounds, basically:

(i) If he is suffering from some lithesome disease not

contracted from her;

(ii) If he is guilty of such cruelty towards her as renders it

unsafe or undesirable for her to live with him;

(iii) If he is guilty of desertion;

(iv) If he marries again;

(v) If he ceases to be Hindu by conversion to another

religion;

(vi) If he keeps a concubine in the house or habitually resides

with a concubine;

(vii) For any other justifiable cause.

It has been further stated that, she would be disentitled from

claiming any maintenance on the following grounds:

(i) Her own unchastity;

(ii) Conversion to some other religion;

(iii) Failure without sufficient cause, to comply with the

decree of competent Court for the restitution of conjugal

12 Section 2, Hindu Married Women’s Right to Separate Residence and Maintenance

Act, 1946 as came in to force on 23 April, 1946.

– 60 –

rights disentitles a female to claim separate residence for

her.

Prior to commencement of this Act, a woman was not supposed

to leave the house of her husband even he contacted the second

marriage, whether with or without her consent, as long as the husband

was willing to keep the first wife in his house with him.

3.2.1.1.2 Concubine

The old Hindu Law recognized the concept of concubines and

the woman who was living permanently exclusive keep had a special

status. A concubine, who had been kept continuously by the Hindu till

the time of his death was entitled for maintenance, irrespective of the

fact that it was ancestral or self-acquired property of her paramour.13

It is laid down that neither a casual nor an adulterous connection

entitles a woman for maintenance and even a discarded concubine has

no right to claim any maintenance from her paramour or otherwise

from his property. It is also not required that she had stayed with her

paramour in his own house where the family member stays.14

The position of concubine was just below the wife. It was a

peculiar condition in the Hindu law that a concubine could claim the

maintenance not from the paramour but only against his estate that too

after his death, only if she was staying along with him as a concubine

till the time of his death, because had he been living he might have

discarded her and as discussed earlier too, a discarded concubine has

no right to claim maintenance and vice versa too. But being Hindu was

necessary and an avarudha and should remain faithful to her paramour.

If she lived with him permanently and exclusively, she gets the status

of avarudha stree and could claim maintenance.15 The term literally

13 Supra note 6 at 1282. 14 Ibid. 15 Supra note 5 at 370.

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meant “Protected or Confined woman”. which was applicable on the

woman, who was kept permanently in his own house as confined under

his own protection, as to make it impossible for to have any

connection with a stranger.16

“The English expression ‘Continuously kept Concubine’ is the

closest approach to the word ‘Avarudha Stree’ and connotes open

residence and an avowed connection with the man. The woman, in

order to be covered under the term ‘Avarudha Stree’ must be a

concubine, living under the man’s immediate protection and control.

The connection should be secret but the evidence must show that she

lived with the man openly as a member of the Joint Family”.17

A Hindu is neither entitled to transfer joint family property to

the concubine for maintenance nor is he bound to maintain.18 In the

case of Haidri v. Narindra,19 it was held that in order to be an

Avaruddhastree, she must be a concubine with whom the deceased had

open and recognized connection and whom he had kept as member of

his own family. But later in Bai Nagubai v. Baimonghibai,20 It was

laid down that it was not necessary that concubine should stay in the

house of paramour with his wife and other family members.

In case, a female left her husband just for the sake of her

paramour and later he kept her as permanently kept mistress, can be

considered as Avaruddhastree, if she is remain faithful and retains her

sexual fidelity exclusively for him. Her marital status would not act as

a bar in her claim for the maintenance.21

16 Akku Parahlad v. Ganesha Prasad, AIR 1945 Bom 216 (FB). 17 Supra note 9 at 140. 18 Supra note 3 at 743. 19 AIR 1926 Ori 294. 20 AIR 1926 PC 73. 21 Supra note 3 at 743.

– 62 –

It has been laid down that, in order to determine the amount of

maintenance to be awarded to the concubine, due regard shall be given

to her age, her mode of life and the estate of deceases paramour.22

3.2.1.1.3 Coparcener’s Widows

The ‘Widows’ right of maintenance, in the case when she isn’t

the successor of her husband’s property is of utmost importance and

she could claim maintenance out of husband’s separate property and

from the coparcenary property. In such a case the liability to maintain

her would lie upon the Karta. She did not lose her right to maintenance

out of her husband’s estate although she may live apart from him

during his lifetime without any justifiable reason and even at the time

of his death she was staying away from him.23

Widow is entitled to maintenance from her son, in her character

as mother, even though he does not hold any ancestral property.24 Even

a step mother had a right to claim maintenance from her step son if the

portion or share of his father is allotted or devolved upon him. In case

where the widow of deceased Hindu obtained a decree for maintenance

with a charge on the joint family property, it was binding on her step

son subsequent to the partition of the joint family property.25

Nobody except widows own son was under a Personal and Legal

obligation to maintain her and in all other cases she was liable to be

maintained out of her husband’s estate reason being that they have

inherited her husband’s property. It is required that a widow to be

maintained out of the husband’s property and also in case even a

22 Ibid. 23 Id., at 748. 24 Subbarayanna v. Subbakka, (1885) 8 Mad 236. 25 Rangayya v. Chinnaiah, AIR 1970 AP 33.

– 63 –

charge is created over the property or it has been attached by the

government but it is not an ipso facto charge.26

But the tricky question arises where the widow is able to

maintain herself, whether she will be allowed to have maintenance

from the joint family property not? The various courts have taken

various different stances over the topic, for example, the Calcutta

High Court has answered this question negatively27 and stated that she

cannot claim any maintenance in such case, whereas the Hon. Andhra

Pradesh High Court have taken an affirmative view28 and has laid

down that a widow has a complete and absolute right for maintenance,

she being the part of Joint Family herself. It doesn’t depend on the

fact that whether she has any specific necessity nor has means to

support her or not.

After the enforcement of the Hindu Women’s Right to property

Act, 1937, a woman inheriting the share of property of her husband

after his death, will be liable to get maintenance from the joint family,

but while fixing the quantum of maintenance, the amount of property

which she has acquired, has to be given a due consideration.29

A married woman is always expected to stay with her husband

and remain loyal to him, whereas widow in order to claim maintenance

is not required to stay in her husband’s house after his death and even

in case she is staying apart, she doesn’t forefeet her right of

maintenance out of estate of her husband. All that is required of her

that she should not left the house for immoral or unchaste purpose.30

But in case the husband has expressed a condition that wife should

keep residing in the same house along with the other family members,

26 Supra note 3 at 748. 27 Ramawati v. Manjihari, (1906) 4 CLJ 74. 28 Varahalu v. Sithamma, AIR 1962 AP 272 (FB). 29 Sarojind Devi v. Subramanyam,1945 ILR Mad 61. 30 Supra note 3 at 750.

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the wife would not be entitled to separate maintenance such a case,

except she leaves and resides somewhere else with a just cause.31

Though the widow is entitled to live in the husbands’ house at her own

wish and it cannot be made a condition precedent that she should first

leave the husband’s house in order to claim the maintenance from the

relatives.32

It is established that private sale made by the surviving

coparcener which is not meant for family necessity or an execution

sale held for a decree debt not arising from the family necessity will

not authorize the purchaser to oust the widow of deceased coparcener

including widow mother as she is entitled to live in family house till

any other adequate provision is made.33

3.2.1.1.3.1 Widow’s Right on Remarriage

Another important question arises about the maintenance of

widow is that if a widow is allowed to maintenance after her

remarriage or not? The answer lies in Section 21 of the Hindu

Widow’s Remarriage Act, 1956 which states that on remarriage, a

widow forfeits her right to claim the maintenance out of her husband’s

estate; even various High Courts have expressed divergent views over

the same. Putting to the rest this controversy, Hon’ble Supreme Court

in Gajodhra Devi v. Gopal,34 has stated that, if a widow remarries

once the partition is opened i.e. subsequently, the claim will be

considered on the basis of death of the husband and the time between

the death and the partition. If the widow marries subsequently of

opening of partition, in such a case she would not be disentitled from

the right. The Court has also given the due weightage to the custom

31 Ibid, Also see Mulji v. Bai Ujjam, (1889) 13 Bom 218; Ekradenswari v. Homeshwar,

AIR 1929 PC 128. 32 Id at 753. 33 Supra note 6 at 1303. 34 AIR 1990 SC 46.

– 65 –

and if the custom permits the remarriage, in that case also she will be

entitled to the maintenance.35

The widow does not have any charge over the husband’s

property unless or until it is created by Court or by the husband itself

in the decree of the Court duly executed. For instance, it can be said

that if the husband has mortgaged the house to some third person, the

widow cannot claim to reside in that house as matter of right and she

cannot proceed to enforce that right against the third person as the

same was the right against her husband and not anyone else i.e.

Mortgagee.36

Another important thing which was to be determined while

granting maintenance was that what would be the amount for the same

for which due consideration was given to the wants of a person in the

position and the status of the claimant. In such a case wealth held by

the family will be relevant consideration, as the person who has stayed

affluently, his level would demand the same and his wants will also be

more expensive than had he been born and brought up in the poverty.37

Like any other married woman, a widow also has an absolute

right over her Stridhan such as jewels, clothes or money (if any) and

this was not taken in to consideration while awarding an amount of

maintenance to the widow, since theses object absolutely belonged to

her. She has an unfettered right over the same along with claiming

maintenance from the husband’s family. There is no point that why

should Court take these things in to consideration as her right is

absolute and the duty of husband’s relative who have inherited the

property is unqualified and unconditional.38

35 Ibid. 36 Satwati Mst. v. Kali Shanker, 1954 ALJ 645 (FB). 37 Supra note 6 at 1292. 38 Shyama BhaI v. Purushottam Dass, AIR 1925 Mad 645; Krishnaji v. Annusaya Bai,

AIR 1939 Nag 130.

– 66 –

In assessing maintenance based on the change in circumstances,

the Court is entitled to look into the changes not only in the needs of

the widow but also any changes of those other circumstances to which

the Court had regard in fixing the original rate of maintenance. For

instance, the Court must have regard to any rise of prices; it must have

regard to additional expenses necessitated by the deterioration of the

health of maintenance holder; it must have also regard to any

reasonable change in the standard of comfort and in the conventional

necessities of the widow due to the improvement in the circumstances

of the family to which she belongs . . . finally, the Court must have

regard to the growth of the income of the family in order to ascertain

the maximum which must govern the maintenance allowance”.39

3.2.1.1.3.2 Maintenance to Widow Under The Hindu Women’s

Right to Property Act, 1937

Under the Act, the Widows of deceased coparcener in a

Mitakshara Family become entitled to their husband’s interest in non-

agricultural property. “If the act conferred upon the widow the right of

succession in respect of all her husband’s property, the right of

maintenance allowed to her under the Hindu law as compensation for

her exclusion from inheritance would no longer be available. But the

widow still stands excluded from succession to the Agricultural land

in the absence of provincial legislation on the parallel lines in respect

of such land. It cannot be therefore, be said that the reason of the right

has ceased to exist and the right is gone”. 40

Later, when various enactments of the Provincial Acts made the

Act applicable to the agricultural land, the law as to maintenance of

widows of coparceners or of divided members, whether under

39 Veeraya v. Chellamma, ILR (1939) Mad 234. 40 Supra note 6 at 1288.

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Dayabhaga or Mitakshara will in course of time, becomes obsolete.

The Act being not retrospective in nature, kept on governing right to

maintenance of widows of coparceners and divided members, which

were vested in them, before the act came in to force. This was also

laid down that the claim of the widow as far as the maintenance is

concerned was not affected by her share to property under the Hindu

Women’s Right to Property Act, 1937 until she claims the partition. It

was open to her to claim maintenance or open the partition as

whatever was more favorable to her.41

3.2.1.1.4 Daughter-in-Law

In the Hindu Law, since the conception of civilization, the

obligation to maintain a daughter in law remained on the Joint Family.

A widowed daughter in law had the right to claim maintenance out of

joint family property. The claim could be enforced against the Karta,

as long as the daughter in law had the right to claim maintenance from

the property in the hands of father-in-law.

According to the Ancient texts, there was no distinction

between the moral duty and the legal duty. It developed at a later stage

and has been well accepted now including Privy Council. If the father

in law has inherited the self-acquired property of his son, he will be

under a legal obligation to maintain his daughter in law and in case he

has not acquired any such property, he will be under moral obligation.

Hindu law recognized it as moral duty on the father-in-law to maintain

his daughter in law as long as she remains incapable of doing so and

who has no means of subsistence. After the death of father in law, the

obligation rested upon the persons who inherited the property of the

father in law and the moral duty turns in to legal duty.42

41 Ibid. 42 Supra note 5 at 358.

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3.2.1.1.5 Children

Begetting children in the ancient times was considered to be

paying off one debts and having children was one of the most

important feature of the Indian Society. A woman without children

was stigmatized as barren, witch and she was not even considered to

be worth having company of her husband. Having children was

considered to be aim for marriage.

3.2.1.1.5.1 Sons

Upbringing and maintaining children is one of the utmost

important and one of the personal obligation which arises as soon as

the bond comes in to existence. The obligation on Hindu to maintain

his minor sons is of personal character. He is not only bound to

maintain them out of joint family property, but also from the separate

or self-acquired property too. However in case of his major sons, he is

not having any such obligation, therefore he is not bound to maintain

them out of the property which belongs exclusively to him.43

However if the father as well as the sons are members of the

Joint Family under the Mitakshara School and they do hold the Joint

Family property, the sons even they are adult will be entitled for

maintenance out of Joint Family property, since they use to acquire the

share in the property as soon as they were born and the liability would

not confined to the extent of the share they would have got at the time

of the partition.44 However in the cases governed by the Dayabhaga

law, a father was under no obligation to maintain his major sons

neither out of ancestral nor out of self-acquired property, as in case of

Dayabhaga Law, the right to property does not arise with the birth of

son.45

43 Supra note 3 at 738. 44 Id., at 739. 45 Ibid.

– 69 –

3.2.1.1.5.2 Illegitimate Sons

Most of the old system used to acknowledge this obligation

which was confined to the legitimate children only where as our old

Hindu law moved one step ahead and acknowledged the liability of

maintaining illegitimate children also. Illegitimate sons, when not

entitled as heir are to be maintained, which could be secured by

creating a charge on the family estate and in case of existence of any

such estate, the illegitimate son is entitled to be maintained out of it

not only after the death of the father but also during his life time.46

The old Hindu law recognized the concept of concubines and

the woman who was living permanently exclusive kept had a special

status. Even the children born were having a special status. Son of

dasi putra also use to have a special status and amongst of them

position of dasi putra’s son of shudra was better. As per Mitakshara

School, during the life time of the father, a dasi putra of shudra can

obtain the share of the property by father’s wish and will as much as

he want, but in case the father is dead, the dasi putra will be eligible

to get the share as much as share of one son of the legally wedded

wife. In other words he will be at par with them.47 In this case, his

position in this respect was analogous to that of window and the

disqualified heirs, to whom the law allows maintenance because of

their exclusion from the inheritance and from share on partition, and

the Court may, as in their case, award not only future, but also the past

maintenance, so far as it is not barred by the law of limitation and may

direct the same to be secured by a charge on the joint family property.

This amount is to be paid throughout the life of illegitimate son.48

46 Supra note 6 at 1281. 47 Supra note 5 at 355. 48 Supra note 3 at 741.

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According to noted Jurist Mayne:49 in case of an illegitimate

son, who is born to a Hindu male from a Hindu Female, who is not a

permanent kept concubine or who is a result of adulterous intercourse

use to be entitled to maintenance from his putative father as long as

the father is alive and after the death of the father he will be entitled

to maintenance not only from his self-acquired property but also from

his joint family property as well. He has further opined that but in no

case an illegitimate son of the Hindu can claim higher rights than that

of legitimate son. In such a manner, a Hindu male who doesn’t has any

joint family property, is not bound to maintain his illegitimate son

after the attaining of majority. The right of illegitimate son to be

maintained out of his father’s property is personal in character and

does not descent to the children of illegitimate son.50

In case of illegitimate son of Hindu born out of Non Hindu

Female, is not entitled to maintenance under the Hindu Law, but he

may claim naintenance under Code of Criminal Procedure, 1898. The

right under this Section the right under the Section can be enforced

during the father’s life and not afterwards.51 Under the old Hindu law,

an illegitimate son of Hindu born of non-Hindu woman was entitled to

maintenance only if he was brought up as a Hindu and not otherwise.

As earlier discussed, an illegitimate son had always been considered

as part of his putative father’s family and has right to be maintained,

but he cannot be considered as coparcener. Though, a dasi putra of

shudra becomes a coparcener after death of his father and can claim

the partition.52

While awarding the amount of maintenance to an illegitimate

son, due consideration will be given to the estate, including status of

the father and his own standard of living. The maintenance to him is 49 Supra note 6 at 1281. 50 Ibid. 51 Supra note 67 at 742. 52 Supra note 5 at 355.

– 71 –

not awarded on some compassionate grounds, but being on the ground

that he is given a recognition of his status and on the grounds that he

is excluded from inheriting the estate of his putative father.53

3.2.1.1.5.3 Legitimate and Adoptive Daughters

The maintenance of legitimate daughters used to be personal

obligations under the old Hindu Law. Even our sages have in

unequivocal terms recognized this claim, in which the provision is to

be made not only till her coverture but for the marriage expenses as

well and in case the father is dead, she has right to maintained from

the separate property of the father.54 An unmarried daughter of a

Hindu Coparcener is not bound to sue her father and to claim the

maintenance from his estate only, but she can sue the manager of the

joint family for the maintenance.55

A daughter after marriage ceases to be member of family of his

father and being member of her husband’s family, she is liable to be

maintained by the husband and in case of his death; she was liable to

be maintained out of his estate. But in the case where husband left no

estate, she was liable to be maintained by the father in law out of his

separate property, though this remained a moral not legal obligation

upon the father in law, but after the death of the father in law, the

legal right of claiming maintenance rises against whom, who have

inherited the property of father in law. But in case, if she is unable to

get maintained from husband and after his death from the family, then

father, if he has got separate property of his own was under a moral

obligation to maintain her. However whether she acquire any legal

claim or not over the people who inherited the property of her father

53 Supra note 6 at 1282. 54 Bai Mangal v. Bai Rukmani, ILR (1899) 23 Bom 291. 55 Supra note 6 at 1282.

– 72 –

after the death was not yet settled and various courts have opined

differently over the matter.56

In the case of unmarried daughter, it used to be condition

precedent for her that she should remain with her father in ordered to

get maintained by him but in case some justifiable cause exists, she

was entitled to get maintenance from the father even after staying

away from him.57 In the case of Luxmi v. Krishna,58 the father was

living separately with the second wife and the girl was staying with

her natural mother. It was held to be a justifiable case and the girl was

held to be entitled to claim maintenance though staying separate from

the father.

3.2.1.1.5.4 Illegitimate Daughter

There was no provision in Old Hindu Law for the maintenance

of illegitimate daughters; however they could claim maintenance from

the putative father under Section 488, Code of Criminal Procedure,

1898. Thus this point clears the air that the word illegitimate put in

the Ancient Law would remain confined to illegitimate sons only and

not the illegitimate daughters.

3.2.1.1.6 Aged Parents

Our culture stated status of parents as that of God through

sayings like “Matrudeo Bhava”, “Pitrudeo Bhava” etc. The famous

“Shravankumar’s” story which was stated in “Ramayana” establishes

this fact. Our culture considers them as first teachers. The foundation

of our life is built up by them. So children should take care of them

and respect them. It should be the moral duty of children to maintain

their parents. Our traditional values and norms lay stress on showing

56 Supra note 67 at 739. 57 Supra note 5 at 356. 58 AIR 1968 Mys 288.

– 73 –

respect and providing care for the aged. In joint family system all

members are cared by the family itself.

Quoting Manu as cited in Mitakshara and Parasaramadhaviya

says that: “It is declared by Manu that aged mother and father, the

chaste wife and an infant child must be maintained by doing hundred

misdeeds”. So the Mitakshara also lays down that, “where there may

be no property but what has been self- acquired, the only person

whose maintenance out of such property is imperative are aged

parents, wife and minor children”.59

3.2.1.2 Disqualified Heirs

Whenever a person was excluded from inheriting the joint

family property owing to his own incapacities such as blindness,

lunacy, idiocy, leprosy etc., in such a case he will be entitled to claim

maintenance not only for him but for his family as well from the

property he would have inherited not being disable.60

3.2.1.3 Arrears of Maintenance

Previously, whether to award the arrears of maintenance was

held to be under the discretion of the Court and which were usually

refused. But later it was established that in order to recover arrears,

the demand and refusal were not necessary to be proved. The right of

maintenance is a recurring right and holding it and non-payment of

maintenance prima facie constitutes proof of wrongful withholding.

Unless it is proved and reasonable grounds have shown that the person

entitled has abandoned or waived her right, the person liable for the

same cannot escape the liability. The claim of maintenance arrears

which were accrued during the life time of the husband is no a

59 Supra note 6 at 1223. Also see Jayanti Subbaiah v. Alamelu, (1904) 27 Mad 45;

Appibai v. Khimji Cood Verji (1936) 60 Bom 455, Savitribai v. Luxmibai (1878) 2 Bom 573.

60 Yashwant Rau v. Kashi Bai, 12 Bom 26.

– 74 –

personal cause of action, but one against the property in the hands of

either the heir or surviving coparceners and it is not required to prove

that the wife contracted the debts in order to maintain herself.61 As

discussed above, the unmodified Hindu Law was not only governed by

the Ancient law givers but also by the Hindu Married Women’s Right

to Separate Residence and Maintenance Act, 1946, Which was

repealed by Section 29 of the Hindu Adoption and Maintenance Act,

1956.

3.2.2 Modern Hindu Law on Maintenance

Modern Hindu law on maintenance can be studies under the

following three heads:

(1) Where the wife lives with the husband under the same

roof;

(2) When the wife lives separately away from her husband

(but not under the decree of the Court);

(3) When the wife lives separately under the decree of the

Court say judicial separation or after the dissolution of

the Marriage.

The first two aspects have been covered under the Hindu

Adoption and Maintenance Act, 1956, whereas the maintenance to be

awarded under the judicial separation or on the dissolution of the

marriage has been governed by the Hindu Marriage Act, 1955

3.2.2.1 Maintenance Under the Hindu Adoption and

Maintenance Act, 1956

Chapter III of the Hindu Adoption and Maintenance Act, 1956,

contemplates the provisions related to the maintenance to Wife,

61 Supra note 6 at 1296-1297.

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Widowed Daughter in Law, Children, Aged Parents and various other

Dependents of deceased Hindu, whom a person is, oblige to maintain.

The present chapter of the Act, not only lay downs various conditions

which are to be fulfilled prior to the grant of maintenance, but also

various rules and guidelines which are to be followed by the courts for

the grant of maintenance while not only determining the quantum in

the individual cases, but also which are to be followed in case of any

change of quantum in case if there is any change in the circumstances.

As previously discussed, under the old Hindu Law, a person was

under the personal obligation to maintain his wife, children and the

aged parents and further was under the moral obligation to maintain

other dependants of the family.

3.2.2.1.1 Statement of Objects and Reasons-Pertaining to

Maintenance

The statement of Objects and Reasons for the Bill62 relating the

subject of maintenance is reproduced below:

“In Hindu Succession Act, 1956, a specific provision was

inserted whereby it was declared that the power of a Hindu to make a

testamentary disposition of his property shall not affect the right of

maintenance of any heir by reason only of the fact that under the

testamentary disposition, the heir has been deprived of a share in the

property to which he would have been entitled if the deceased died

intestate. An assurance was then given that the chapter of the Hindu

Code relating to maintenance would be introduced in Parliament as

soon as possible. The latter part of this Bill deals with maintenance.

This Chapter does not call for detailed comments. It is largely based

62 Statement & Object, The Hindu Adoption and Maintenance Act, 1956.

– 76 –

on the existing law as codified in the Bills of Rau Committee and the

Select Committee of the Provisional Parliament in 1948”.63

3.2.2.1.2 Object of Hindu Adoptions and Maintenance Act

The object of this Act so far as it relates to maintenance is to

crystallise and give statutory recognition to certain parts of Judge

made law and at the same time to liberalise it in favour of Hindu

Married Women.

These legislative measures appear clearly to reflect the modern

liberal aspect of the Hindu society to confer on Hindu women much

larger rights than they had have been enjoying under the Mediaeval

Conservative Theory of treating women as inferior beings finally been

discarded by the Parliament in the clearest possible terms.64

The Hindu Adoptions and Maintenance Act, 1956 is a beneficial

legislation containing the provisions regarding the maintenance not

only to the wife and children but also the other blood relations and

also to those who are not blood relations but are related through the

marriage. Though the title of the act use word ‘maintenance’ only, it

deals with the right of the wife to the ‘Residence’ also.65

Under the present Act, provisions related to maintenance are

incorporated in Sections 18 to 28, which includes the person entitled

to the maintenance along with other procedural guidelines. The

chapter of maintenance under the Act in effect of codifying the old

law of maintenance and Residence as modified by the Hindu Women’s

Right to Separate Residence and Maintenance Act, 1946. It does not,

however, make any radical change in the old law of maintenance

except in one or two respect.

63 Ibid. 64 Jai Kaur v. Pala Singh, AIR 1961 Punj 391. 65 Supra note 6 at 1307.

– 77 –

The detailed analysis can be made as follows:

3.2.2.1.3 Maintenance to Wife

From the concept of marriage, the family and house spring out.

The husband is obliged to furnish roof and further protection which

the wife is enjoined to remain under the roof and ensure the growth of

the family. The bond of husband and wife enjoin upon then the

respective obligations and duties, loyalty, love, chastity and care are

all the party of the same, bond on the social plain that ensure the

character either of the husband or the wife. Negative injunctions are

also ingrained in this relationship. The Hindu wife was enjoined to a

share the life and love, joys and sorrows, the troubles and tribulations

of her husband, to render selfless service unstinted devotion and

profound dedication to her husband.66

Corresponding duties of the husband also accrued the moment

the wife entered, the house i.e. to protect the wife, to give her a house,

provide her with comfort and necessities of life within his means to

treat her kindly and not cruelty and inhumanly and to discharge the

duties arising out of marital relations. The wife was the central figure

of the law of maintenance under the Shastric Hindu Law and the same

has now been, statutorily recognized in Hindu Adoptions and

Maintenance Act, 1956.67

Similarly as the Ancient Hindu Law, the liability of husband to

maintain his wife is personal in nature. Sec 18 of the Actprovides for

the maintenance of the wife. The provision lay down as follows:

Section 18: Maintenance of Wife

(1) Subject to the provisions of this Section, a Hindu wife,

whether married before or after the commencement of this

66 V. Tulasamma v. V. Sesha Reddy, AIR 1977 SC 1944. 67 M.R. Mallick, Maintenance Law & Practice, 302 (2012).

– 78 –

Act, shall be entitled to be maintained by her husband

during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her

husband without forfeiting her claim to maintenance,-

(a) if he is guilty of desertion, that is to say, of

abandoning her without reasonable cause and

without her consent or against her wish, or of

willfully neglecting her;

(b) If he has treated her with such cruelty as to cause a

reasonable apprehension in her mind that it will be

harmful or injurious to live with her husband;

(c) If he is suffering from a virulent form of leprosy;

(d) If he has any other wife living;

(e) If he keeps a concubine in the same house in which

his wife is living or habitually resides with a

concubine elsewhere;

(f) If he has ceased to be a Hindu by conversion to

another religion;

(g) If there is any other cause justifying her living

separately.

(3) 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 to another religion”.68

Section 18 as stated above thus not only provide for the

maintenance to the destitute wife but also provide for the separate

residence in the certain cases. 68 Section 18, the Hindu Adoption and Maintenance Act, 1956.

– 79 –

3.2.2.1.3.1 Meaning of Term ‘Wife’

The expression “Hindu Wife” has to be given its ordinary

meaning. The word ‘wife’ though not defined under the Act, a Hindu

woman whose marriage is solemnized with a Hindu man in accordance

with the provisions of the Hindu Marriage Act, 1955 and is not void or

dissolved by a decree of divorce is, as such, a Hindu wife within the

meaning of Section 18 of the Act.69 It is to be noted that the right of a

wife to claim maintenance is an incident of the status of matrimony

and if the relationship of husband and wife is established, as matter of

course the wife is entitled to maintenance. The wife is not a dependent

within the meaning of Section 21 so long as her husband is alive. The

obligation of the Hindu 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 husband and wife created by

the performance of the marriage.70

The marriage under the Hindu law is a sacrament, a religious

ceremony which results in the sacred and holy union of by a man and

woman. By such union the wife is transplanted from the family of her

parents to the family of her husband by such status of wife. By that

union the wife is obliged to live under the roof of her husband and

under his protection.71 This is because the goal of life is joy and the

aim of life is a happy harmony between man and woman when they are

united into the marital status.72 The Right of maintenance is often

exercised when the smooth running of life between the husband and

wife becomes impossible and holy union of two souls starts leaving

69 Suresh Khullar v. Vijay Khullar, 2002 (2) HLR 727 (Del). 70 Laxmi Devi v. Nagana, 1925 Mad 757; Rattamma v. Seshachalam, 1927 Mad 502;

Bai Appitbai v. Khimji, 1936 Bom 138; Udayanath v. Siridei, 1973 Ori 196. Mohan (HC) v. Sulochena, 2001 (1) HLR 252 (Kar).

71 V. Tulasamma v. V. Sesha Reddy, AIR 1977 SC 1944; (1978) 1 SCJ 29; (1977) 3 SCR 261.

72 Maharaja Nadar v. M. Ammal, AIR 1986 Mad 346.

– 80 –

apart because of growing disharmony between the two.73 The Right of

maintenance includes the right of residence. The wife residing in the

matrimonial home is neither a licensee nor a trespasser and has right

to reside in, a room of her husband and it is continued till terminated

by divorce.74

3.2.2.1.3.2 Must Be Legally Wedded Wife

Since with the very first implication which we clearly get by

reading this Section is that the Section provide the provision for the

maintenance to the wife, so it is very clear that in order to claim the

maintenance under this Section the female must have the status of wife

and she must be legally wedded to the person against whom the claim

is made.75 In order to be a ‘Hindu Wife’ the marriage must be valid

one and as per the provisions of the Hindu Marriage Act, 1955. On the

clear reading of Section 18(1) of the Act, an clear implication which

could be drawn as that the Section not only apply to the marriages

solemnized after the act but also available to the wives whose

marriages have been solemnized prior to the commencement of the

Act. Similarly as ancient law the right being absolute and personal in

nature, exist irrespective of any property, whether ancestral or self-

acquired.76

The expression “Hindu wife” in Section 18 has given rise to a

controversy and a question whether the wives under void marriages

would also be able to claim maintenance under Section 18 of the

Hindu Adoptions and Maintenance Act, 1956. The question was raised

in C. Obula Konda Reddl v. C. Pedda Venkata Lakshmma,77 where the

Court held that the words “Hindu wife” In Section 18 cannot be

73 M. Kanthinath v. S.P. Iyer, AIR 1974 Ker 124. 74 Bamdev Dey Sarkar v. Chhaya Dey Sarkar, AIR 1991 Cal 399. 75 Natesa Chettiar v. Atchiyayi Ammal, AIR 1975 Mad 2002. 76 Ibid. 77 AIR 1976 AP 43.

– 81 –

interpreted to mean only a wife whose marriage is valid according to

the provisions of the Hindu Marriage Act. The Hindu wife

contemplated by Section 18 means a wife whose marriage is

solemnized, though void under Hindu Marriage Act, 1955. She will

therefore be entitled to claim maintenance from the husband.78

In Rajeshbai v. Santhabai,79 the Court had to consider the claim

of maintenance or a woman from the estate of her husband even on its

finding that the marriage was void. The Court rightly held that the

words “Wife or Widow” in the context of marriage, succession, or

maintenance enactments are of restrictive legal character and imply

relationship that results from a recognized legal mode of marriage and

would not include a relationship which is not recognized by law. But it

went on to observe that there can be a class of persons who may be

called “illegitimate wives or widows” who can be the subject of

benefaction of the law of maintenance and notwithstanding that

eventually the legal status is annulled, such an illegitimate wife would

be entitled to maintenance under Section 25 of the Hindu Marriage

Act. The same principle could be extended to a case where she filed a

suit for maintenance after the death of the husband and she could be

awarded maintenance under Section 151, Code of Civil Procedure.

This raises another important question whether apart from the personal

law of the claimant including the statutes governing the personal law;

a person is entitled to maintenance under the principles of justice,

equity and good conscience.

3.2.2.1.3.3 Proper Remedy of A Woman Whose Marriage is Void

When the marriage of Hindu woman is void as it has been

solemnized during subsisting of the first marriage after the

enforcement of the Hindu Marriage Act, her remedy is to file a suit

78 Ibid. 79 AIR 1982 Bom 231.

– 82 –

under Section 11 of the Hindu Marriage getting such marriage

declared null and void and to claim maintenance under Section 25 of

the Hindu Marriage Act by way of permanent Alimony.80 But till the

time, it has not been declared void and annulled by the Court of

competent jurisdiction, the Court in collateral proceedings for

maintenance cannot hold the marriage void and cannot deny the wife’s

right to claim maintenance.81

3.2.2.1.3.4 Effect of Husband Ceasing To Be Hindu

The husband would not be absolved from his liability to

maintain his wife simply because he has ceased to be Hindu. But, sub-

Section (3) of Section 18 takes away the right of wife to claim

maintenance under this Act if she ceases to be Hindu by conversion to

another religion. The effect of husband ceasing to be Hindu would be

that the wife would be entitled to separate residence and to her claim

for maintenance.82

3.2.2.1.3.5 Whether Includes A Divorced Wife or Not?

Under Section 18 of this Act, when it provides for maintenance

for wife, it includes a divorced wife. The legislative intention to

provide maintenance to the spouse even after divorce which is

contained in Section 25 of the Hindu Marriage Act, 1955 has to be

read into both the provisions of both the Acts. Same legislature cannot

be imputed with two different intentions in respect of the same couple

on the same question. Under Section 25, if the provision regarding

maintenance is to be applicable, both to a wife and a divorced wife,

there is no reason why the same word ‘wife’ which is used in Section

18 should not be read in the same manner because both these

80 Govindrao R. Musala v. Sow Anandibai, AIR 1976 Bom 433; Kishan v. Sukhasabai,

1 (1988) DMC 60. 81 Deoki Panjhiyara v. Shashi Bhushan Narayan Azad &Anr, AIR 2013 SC 346. 82 Mana v. Jiwan, 6 All 617; see also Section 18(3) of the Hindu Adoption and

Maintenance Act, 1956.

– 83 –

provisions deal with the question of maintenance between a husband

and a wife. The scheme of both these sections is the same; the purpose

is the same; the words used are the same. Any other construction will

lead to anomalous and contradictory situations and orders. If the wife

makes an application under Section 25 of the Hindu Marriage Act for

maintenance even after divorce, that would be maintainable, but if she

makes an application for the same purpose under Section 18 of the

Hindu Adoptions and Maintenance Act, it would not be maintainable

even though both the provisions have the same purpose in mind and

the same intention to provide maintenance to the wife.83 Therefore, it

is reasonable to hold that the words “wife” and “husband” are used to

describe for the relationship to provide the maintenance during the

life-time of the wife and it includes a divorced wife and by doing so,

there is no violation done of the language or the meaning because the

meaning is always to be taken from the context and intention. But in

case where the husband claims that he has divorced his wife a long

back before the panchayat and she was living separately since then is

not acceptable to the Court to be proved and in such a case, she

remains to be legally wedded wife who can claim maintenance and is

entitled for the same.84

3.2.2.1.3.6 Wife to Live With Her 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 a

valid ground to refuse maintenance that his financial condition is not

good and is personal obligation.85 Where an immature wife lives with

83 Vikas Pandey v. Smt Vandita Gautam, AIR 2013 All 28. 84 P. Raju v. Nallamal, AIR 2012 (NOC) 268 (Mad). 85 Jayanti v. Alamelu, (1904) 27 Mad 45.

– 84 –

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. A wife living apart from the husband

without justifying cause was not entitled to claim maintenance as she

was guilty of breach of her marital duty to him.86

A Hindu female’s right to maintenance including the right to

residence is a tangible right which can be enforced against the

property of the husband or his family. If the husband alienates the

share in the dwelling house in which his wife is living, she cannot be

evicted from the dwelling house at the instance of the transferee.

When there is a dispute pending in Court between her and her

husband, until the dispute, is settled, she is also entitled to enforce the

right to residence against the transferee under Section 39 of the

Transfer of Property Act.87

3.2.2.1.3.7 Grounds to Live Separately and Claim Maintenance

As stated in the previous paragraphs, since the time of

patriarchal societies, it is established that maintaining a wife by her

husband put a reciprocating duty upon her to stay with her. But it

doesn’t mean that we should jump to the conclusion that she is bound

to stay with him even after facing all the odds and humiliations which

make impossible for a person with normal prudent to live a healthy

balanced life.As a rule a wife is not entitled to separate residence from

her husband, unless she proves that by reasons of his misconduct or

refusal to maintain her in his own place of residence or other

justifying cause, she is compelled to live apart from him.88

Similarly, going through the provisions of Section 18 (2) of we

come across to the exception of this old established rule, where ‘Wife’ 86 Surampalli v. Brambaze, AIR 1931 Mad 238. 87 Basu Deb Sarkar v. Chhaya Dey Sarkar, AIR 1991 Cal 399; Kulwant Kaur @ Preeti

v. Prem Nath, 1 (2002) DMC 565 (P&H). 88 Sitnath v. Haimabutty, 24 WR 367.

– 85 –

use to enter as a ‘Bride’ and was supposed to leave only ‘ On Her

Funeral Procession’. Under Section 18(2)(a) to (g) various

contingencies are enumerated, in which a wife can live separately

without forfeiting her right to claim maintenance from her husband.

The Orissa High Court in Pankajini Das v. Hrusaikesh,89 has

held that ordinarily, a Hindu’s wife is bound to live with her husband

under the same roof and protection of her husband as has been held in

large number of cases. Sub-Section (2) of Section 18 of the Act,

however, lays down the circumstances in which a wife may live

separately from her husband without forfeiting her claim to

maintenance. The law relating to the claim of maintenance by a wife

while living separately from her husband is substantially the same all

through, though such a right got the statutory recognition for the first

time in the Hindu Married Women’s Right to Separate Residence and

Maintenance Act, 1946.

These are more or less similar to various grounds incorporated

under Section 2 of the Hindu Married Women’s Rights to Separate

Residence and Maintenance Act, 1946, which came into operation on

the 23rd April, 1946. The various grounds mentioned under Section 18

(2) of the Hindu Adoption and Maintenance Act, 1956 can be

elaborated as below:

3.2.2.1.3.7.1 Desertion

‘Desertion’ as a ground for living separate is defined by Section

18(2) as “abandoning her without reasonable cause and without her

consent or against her wish or of willfully neglecting her”.90The

distinction between “desertion” as a ground for living separately and

as a ground for judicial separation divorce under Sections 10 and 13,

Hindu Marriage Act, 1955 is that under the latter desertion must be at

89 AIR 1986 Ori 184. 90 Supra note 67 at 315.

– 86 –

least for two years duration, while under the former it may be of any

duration.

In a case of desertion, the wife has to prove the following facts:

That the husband has abandoned her;

1. That he has done so

(a) Without any reasonable cause,

(b) Without her consent, or

(c) Against her wish;

2. That he is guilty of willfully neglecting her.

Generally speaking desertion begins when the factum of

separation of husband and wife is completed with the intention to

bring the marital relationship permanently to an end.91

In Purushottam Kewalia v. Smt. Devki,92 it was laid down that

the offence of desertion commences when the fact of separation and

the animus deserendi co-exist but it is not necessary that they should

commence at the same time. The de facto separation may have

commenced without the necessary animus or it may be that the

separation and the animus coincide in point of time. Where a husband

brings a prostitute in the house in which his wife is living and as a

consequence the wife has to leave the house, the husband is guilty of

desertion.93

In Neelam Singh v. Vijaya Narain Singh,94 the husband was a

bank manager but was not keeping his wife with him and also not

providing her comforts of life which he should according to his social 91 Pankajini Das v. Hrusaikesh, AIR 1986 Ori 184. 92 AIR 1973 Raj 3. 93 Rai v. Ramniga Naik, AIR 1954 Mad 54. 94 AIR 1995 All 214.

– 87 –

and financial status. The wife was compelled to live in village. The

Allahabad High Court held that it amounted deserting the wife within

the meaning of Section 18(2)(a) of the Act and while living separately

the wife would be entitled to maintenance �1000 Per Month what

amounts to discretion in a particular case, depends upon the

circumstances and the mode of life of the parties. But there can be no

doubt that an active withdrawal from cohabitation and breaking off of

the marital relations is an indication of an intention of the husband to

forsake his wife.95

For the purpose of divorce under Section 13 of the Hindu

Marriage Act, 1955 the petition could be either by the husband or by

the wife. As divorce cuts away the matrimonial tie completely and the

desertion as a ground of divorce should be of the higher degree.

Notionally it has to be desertion coupled with the animus to do so.

That appears to have been legislative policy behind the rigidity of the

of proof in regard to the desertion as used in Section 13 of the Hindu

Marriage Act in contrast to the expression used in clause (a) of sub-

Section (2) of Section 18 of the Hindu Adoptions and Maintenance Act

1956. If that rigidity by reading in the clause (a) of Section 18(2), the

word “animus” which legislature has not chosen to incorporate is

insisted upon, it would defeat the very purpose of the legislature to

protect the interest of the abandoned and neglected wives.96

3.2.2.1.3.7.2 Cruelty

Section 18 (2)(b) of the Hindu Adoption and Maintenance Act,

1956 states that the wife is entitled to live separately from her

husband and claim maintenance from him, if she has been treated with

cruelty by him. The term has not been separately defined neither in

Section 18(2) nor in the Section 13(1)(i)(a) of the Hindu Marriage Act,

95 Anjani Devi v. Krishna Chandra, AIR 1954 TC 117. 96 Raghavan v. Satyabhama Jayakumari, AIR 1985 Ker 193.

– 88 –

1955, in which cruelty has been separately made as a ground of

divorce.The conduct complained of should be so grave and weighty

that wife cannot reasonably be expected to live with the husband. It

must be more serious than the ordinary wear and tear of married life.

A few stray incidents indicating a short tempered nature and somewhat

erratic behavior are not sufficient to constitute cruelty.97

It may, however, be noted that whereas Section 13(1)(i)(a) the

Hindu Marriage Act, 1955 refers only to treatment with cruelty, under

this Section there is a further condition that the cruelty should be such

as to cause a reasonable apprehension in the mind of wife that it would

be harmful or injurious to live with her husband. This provision is

more akin to clause (2) of Section 2 of the Hindu Married Women’s

Separate Residence and Maintenance Act.98 It may again be noted that

under that Act the cruelty must be such as to render it unsafe or

undesirable to live with her husband. Under this Act it is not necessary

for the wife to prove that it would be harmful or injurious to live with

her husband. It is sufficient if the cruelty causes a reasonable

apprehension in her mind that it will be harmful or injurious to live

with her husband.99

In Kousalya v. Vaisaki Ram,100 it was held that new rules of

social behavior and conduct in respect of the status of the women in

the Indian society of today have to be recognized and kept in mind

while deciding what would really amount to cruelty. Where the

mother-in-law misbehaved and the wife suffered, it is no defense for

the husband to say that his mother was responsible, as he is to protect

his wife and this would amount to mental cruelty.101

97 Nirmala v. Manohar Shivaram, AIR 1991 Bom 259. 98 Supra note 6 at 1323. 99 Ibid. 100 AIR 1961 Punj 521. 101 Kasinath v. Devi, AIR 1971 Ori 295.

– 89 –

But when the wife for the first time alleges cruelty by her

husband for her separate living only in the suit for maintenance, even

though she has been living separately from her husband for a long time

it is a circumstance which disproves her allegation. Moreover if she

had to leave the matrimonial house for cruelty then it is expected that

she would raise hue and cry after coming back to her father’s house.

When the father of the wife got opportunity to complain to the parent

of the husband it would be expected that he would speak about the

cruelty but her father only requested the parent of the husband to take

her back. So the charge of cruelty fails.102

3.2.2.1.3.7.3 Husband Suffering From Virulent Form of

Leprosy

Leprosy to be ground for separate maintenance must be a

virulent type in the sense of a repulsive character, making the man

afflicted unfit for social intercourse. . To compel a wife to be in his

company is abhorrent to anybody and hence this provision is made.103

It may be of any duration, but it must be existing at the time when the

claim for separate residence and maintenance is made: it may have

existed before the marriage or it may have come into existence shortly

before the claim made.104

The word ‘virulent’ is not a medical term. It is description of

the decease which spreads quickly and extensively over the patient’s

body. The disease leprosy under the Shastric Hindu law was

considered a disqualification of the person from inheritance when it

was serious and of ulcerous kind which could be considered a virulent

or aggravated type of leprosy. Therefore, in the context of exclusion

from inheritance as a disqualification, any leprosy that let to deformity

and unfitness for sexual intercourse could be considered virulent as a

102 K. Kanthimathi v. S.P. Iyer, AIR 1974 Ker 124. 103 Supra note 9 at 125. 104 Supra note 5 at 351.

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ground for exclusion from inheritance was treated from an entirely

different angle in the Hindu religious and legal texts. But Hindu

Inheritance (Removal of Disabilities) Act, 1928 declared that no

person who according to Shastric Hindu law was disqualified from

inheritance such as blindness, deafness, dumbness or without any limb

or organ, lunacy, leprosy and other incurable disease shall not be so

disqualified unless he was from birth, a lunatic or an idiot. But

Section 28 of the Hindu Succession Act has altogether removed

disability by declaring that no person shall be disqualified from

inheritance on the ground of disease defect or deformity.105 So a

person suffering from leprosy even if virulent may not disqualify from

inheritance. But under clause (c) of sub-Section (1) of Section 13 of

Hindu Marriage Act any spouse can seek divorce against the other

spouse if he or she is suffering from virulent and incurable form of

leprosy. It is held by Supreme Court that for the purpose of Hindu

Marriage Act virulent form of leprosy of malignant and infectious

type.106

3.2.2.1.3.7.4 Husband Having Another Wife

Under the Hindu Married Women’s Separate Residence and

Maintenance Act, 1946, a Hindu married woman was entitled to

maintenance, if her husband “marries again”. Interpreting this

expression it was held in some cases that the words were merely

descriptive of the position of the husband as a twice married man at

the date when the wife’s claim for separate maintenance is made under

the Act and do not exclude the case of a husband who had taken a

second wife before the Act came into force.107 In another set of cases it

105 Swarajyalakshmi v. Babu Padmarao, AIR 1974 SC 165. 106 Ibid. 107 Laxmi Ammal v. Narayanaswami, ILR (1950) Mad 321. Kulamani Hora v. Parbati

Devi, AIR 1955 Ori 77.

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was held that the Act has no application to a case where the husband

married again before the Act was passed.108

But the above mentioned conflict seems to be put at rest by the

language of Section 18, sub-Section (1) of the Act, which clearly lay

down that the provisions for maintenance for wife would apply in

cases whether the marriage was solemnized before or after the

commencement of the Act of 1956. Clause (d) of Section 18(2) entitles

the wife to claim separate maintenance and residence where her

husband has another wife living. “Any other wife living” gives a wide

connotation and brings within its scope a wife married before this Act

came into force.This right would not accrue to the wife if the marriage

was a void marriage since under the provisions of the Act, the right to

separate maintenance would accrue only if the second marriage was a

good marriage. It would not be correct to say that the Section would

apply only if the second marriage takes place after this Act came into

force.109

In Ram Prakash v. Savitri Devi,110 the Court followed the

decisions holding that Section 2 of Act of 1946 does not apply to a

case where the husband married before the Act. It was then contended

that the wife was entitled to maintenance under the present provision

which had come into force while the appeal was pending before the

High Court as this provision expressly states that she is entitled to

maintenance if the husband had another wife living. While observing

that a case should be decided in accordance with the law as it exists at

the time of the decision by the Appellate Court, it was held that the

rule was applicable only where the statute changing the law is

intended to be retrospective and to apply to pending litigation or is

retrospective in its effect. It was held that there was nothing in the 108 Supra note 6 at 1324. 109 Madana Valli v. Balu Padmanabham, AIR 1960 Mys 299; Annamalai v. Perumayee,

AIR 1965 Mad 139. 110 AIR 1958 Pun 327 (FB).

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present Act to indicate that it is intended to operate retrospectively or

to deprive the husband of the rights which had been acquired by them

before this enactment. It is submitted that this part of the judgment is

incorrect. Under the present Act the wife is entitled to maintenance if

the husband has another wife living. This condition was satisfied at

the time when the judgment was delivered. The Court was bound to

take note of the subsequent enactment and grant maintenance from the

date of the present Act. There was no question of any right acquired

by the husband prior to the Act being taken away. It is a case where

the present Act confers a right on a wife and not one which takes away

the vested right of the husband. Where a wife had abandoned her

husband prior to this Act, she would be entitled to claim maintenance

after this Act, provided her husband had another wife living.111

Whether the wife living was married before or after the wife claiming

maintenance was married is of little consequence.112 “Any other wife

living” will include any wife other than the wife claiming the right.113

3.2.2.1.3.7.5 Keeps A Concubine

Clause (e) of Section 18(2) runs: “If he keeps concubine in the

same house in which his wife is living or habitually resides with a

concubine elsewhere.” “Keeping a concubine” or “living with

concubine” are extreme forms of “living in adultery”. In either case

the wife is entitled to live separately and claim maintenance from her

husband.114

A concubine is a woman in the permanent and exclusive keeping

of a man though not married to him. If the husband frequently visits

the residence of a concubine it amounts to habitual residence with

111 AIR 1958 AP 582. Saraswatamma v. Bhadramma, AIR 1970 Mys 157. 112 Kiran Bala v. Bankim Chandra, AIR 1967 Cal 603. 113 Narayanamma v. Narsaraju, AIR 1962 AP 371. 114 Rajathi v. Ganesan, 1999 SC 2374.

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her.115 If the husband is having illicit relations with another woman,

the wife and children are entitled to claim maintenance from the

husband.116

If the husband causes the rupture of this relation by developing

amorous connection outside the wedlock he is clearly answerable to

wife under this clause. The wife remains chaste and upholds the

marriage, and then law assures the wife all protection and compels the

fallen spouse to furnish her a separate roof and all the needs for her

maintenance.117

The word ‘habitually’ is an adverb drawn from the noun ‘habit’.

That connotes ordinary course of behaviour, custom accustomedness

and, therefore, this term would mean usual practice. If, therefore, upon

evidence it is shown that a husband has kept a mistress though at a

different place it should be sufficient to answer the latter part of

clause (e) because the words habitually resides with a concubine

elsewhere is indicative of customary behaviour of married man,

though he might not have changed his ordinary place of residence.118

3.2.2.1.3.7.6 Conversion From Hindu

On the beginning of this Section and the name of Act Implies, it

could be easily concluded or inferred that for claiming the benefit

under the Section, the parties need to be Hindu. Clause (f) of sub

Section (2) of Section 18 of the Act enables a wife to claim separate

residence and maintenance if the husband has ceased to be Hindu by

converting to other religion. One person does not cease to be Hindu

merely because one declares that one has no faith in Hindu religion he

will also not cease to be Hindu even if he expresses his faith in other

115 Kesarbai v. Haribhan, AIR 1975 Bom 115; Bhadra Reddy v. Shantammal, AIR 1987

Kant 269. 116 Rajeshwari S. Shende v. Suryakant S. Shinde, 2001 (2) HLR 452 (Kar). 117 Supra note 67 at 328. 118 Ibid.

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religion and start professing one. Thus ceasing to be Hindu is hardly

material except in case of conversion.119

The conversion only takes place when a person undergoes the

formalities prescribed by the faith to which he seeks conversion.

Sincerity of conversion or genuineness of belief in the new faith is

immaterial. It is also not necessary that the respondent, after the

conversion, should practice his new faith.120

3.2.2.1.3.7.7 Any Other Just Clause

The clause of Section 18(2) of the Hindu Adoption and

Maintenance Act, 1956 is residual in nature and empowers the Court

to give a Hindu wife such relief in the cases which do not specifically

fall under any of the above clauses mentioned in Section 18(2)(g) of

the Hindu Adoption and Maintenance Act, 1956 giving it a wide

amplitude.

Under the Act of 1956, this clause was worded as, “for any

justifiable cause”. It is submitted that this clause will mean the same

thing as “reasonable cause” under Section 13(1) Explanation, Hindu

Marriage Act, 1955 and “Reasonable Excuse” under Section 9(1),

Hindu Marriage Act, 1955.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. It is submitted that

all those cases where the Court may refuse husband’s petition for

restitution of conjugal rights will be covered under this clause

entitling a wife to claim separate residence and maintenance from the

husband.121

119 Supra note 5 at 353. 120 Ibid. 121 Kesharbai v. Haribhan, 1974 Mah LJ 924.

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The test as to what constitutes reasonable cause of the wife to

live separately from her husband would vary with circumstances of

each case. It would have to be applied on the changed social

conditions of today and not on the rigid background of the old texts of

Hindu law.122

3.2.2.1.3.7.2 Burden of Proof

Where the wife claims separate residence, the burden lies upon

her to show the special circumstances (i.e. grounds mentioned in

clauses (a) to (g) of Section 18(2) of the Act of the Hindu Adoption

and Maintenance Act, 1956 which entitle her to a separate residence.

So in order to claim separate residence and maintenance from the

husband it is necessary for the wife that she had sufficient grounds as

mentioned in the Act to claim separate residence. This is because the

marital duties of the wife are to reside with the husband under his

protection so long as the husband treats her kindly and does not ill-

treat her and no act is committed by the husband for the wife to live

separately from him.

3.2.2.1.3.7.3 Strong and Weighty Reason to Be Assigned

It is now well-settled that to constitute a just cause to live

separately attracting clause (g), the conduct of the husband must be

grave and weighty and every matrimonial conduct which may cause

annoyance to her or to resisted by her does not amount to a reasonable

or justifying cause and conduct should be such which makes living

together virtually impossible. This is because normally a Hindu wife

unless hard pressed by the circumstances appearing in the house of her

husband would not exercise the right to live separately from her

husband.123

122 Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj 162. 123 Asha v. Baldev Raj Hansda, AIR 1985 Del 76.

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When in suit for maintenance on the ground covered by clause

(g), the husband offers to take her back and maintain her properly;

such an offer if genuine should be respected by the wife. But the bona

fide of such offer has to be proved when in a suit for restitution of

conjugal right filed by the wife, the husband pleads that the wife has

an ugly face and he is not prepared to keep her in his house or she is

not a suitable wife for him. So his offer in the suit for maintenance by

the wife to keep her in his house on the face of such allegation in the

suit for restitution of conjugal right would be treated as a motive only

to avoid the payment of maintenance to the wife. In such a case the

husband must satisfy the conscience of the Court that his offer is bona

fide and when it is not bona fide the wife’s claim for maintenance

under Section 18(2)(g) of the Act is to be allowed.124

3.2.2.1.3.8 Residence to Wife

A wife is entitled to be provided with a residence by her

husband and her parents-in-law if they have some residential house.

Temporary injunction can be granted to the wife restraining her in-

laws from interfering with her possession of the house or causing her

dispossession from their house forcibly during the pendency of the

suit.125

3.2.2.1.3.9 Quantum of Maintenance

The amount of maintenance will have to be fixed by taking a

rational and balanced view of various factors and no arithmetical

formula can be adopted.Thus, the Court has to bear in mind the status

of the parties, reasonable wants of the claimant, the income and

property of the claimant and the number of persons whom the husband

has to maintain.126 Whilst it is important to ensure that the

124 Geeta Ram v. Phooli, AIR 1972 Raj 313. 125 Supra note 6 at 1327. 126 U.Sree v. U. Srinivas, AIR 2013 SC 415.

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maintenance amount is sufficient to enable the wife to live in

somewhat the same degree of comfort, as in the matrimonial home, the

amount of maintenance should not be so exorbitant that the husband is

unable to pay.127 In other words, the amount of maintenance should not

be punitive in nature.128

3.2.2.1.3.10 Determination of Maintenance

There are different acts of socio-economic benefits under which

the wife may be entitled to get maintenance from her husband, her son

or daughter, as the case may be, but it is difficult to accept that she is

entitled to get the maintenance under all the Acts simultaneously and

from all persons. While fixing the amount of maintenance to be given

to the wife the Court has to keep in mind the source of income of

husband and proportionate amount can be given so that he may be able

to meet out his own expenses as well as to discharge his other

liabilities.129

In the matter of grant of maintenance under Hindu Adoptions

and Maintenance Act, 1956 the Court has to take into consideration

this aspect of the matter and while fixing a reasonable sum of interim

maintenance due credit has to be given to amount of maintenance

which the wife is receiving under Section 125, Criminal Procedure

Code and it has to be given set-off. The next question which falls for

consideration is what should have been the amount of interim

maintenance to be awarded to the wife from the husband. Normal rule

is one-third the net-income may be granted as interim maintenance to

the wife.130 It has been further laid down that the remedy available

under Section 125 Code of Criminal Procedure is tentative remedy and

does not foreclose the remedy available under the Act. In case a

127 Supra note 6 at 1327. 128 Rekha Deepak Malhotra v. Deepak Jagmohan Malhotra, 1999 (2) HLR 214 (Bom). 129 Supra note 6 at 1327. 130 Meru Bhai Mandanbhai Odedara v. Raniben Merubhai Odedara, AIR 2000 Guj 277.

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compromise is being entered upon by the wife to receive the

permanent Alimony and give up her right to claim maintenance which

has been entered in to proceedings under Section 125 Code of

Criminal Procedure would not preclude wife from making clam under

Section 18 of the Hindu Adoption and Maintenance Act, 1956.131 A

harmonious reading of Sections 18, 20, and 23 of the Act makes it

clear that the Court is conferred with wide discretion of powers which,

no doubt, have to be exercised judiciously to achieve the object of the

enactment, i.e., in awarding maintenance during the lifetime of the

wife, children and parents. “The life period” includes the period of

litigation. Hence, the power to grant interim maintenance has to be

read into the provisions of Sections 18, 20, and 23 of the Act.

Otherwise, it would defeat the very object of the legislation.132

3.2.2.1.3.11 Bar to Claim Separate Residence and Maintenance

under the Act

Section 18 (3) incorporates the provision, which can be termed

as the bar to the existing provision for the wife to claim maintenance

and separate residence.

3.2.2.1.3.11.1 Ceasing to Be a Hindu

Section 18(3) of the Act clearly lays down that a Hindu wife

shall not be entitled to separate residence and maintenance when she

ceases to be a Hindu by conversion to another religion. As soon as she

ceases to be Hindu, she forfeits her right of separate maintenance.

Cessation from Hinduism would not arise from loss of caste or lapse

of orthodoxy; cessation under this sub-Section would arise only if she

is converted to another religion.133

3.2.2.1.3.11.2 If She Becomes Unchaste 131 Nagendrappa Natikar v. Neelamma, AIR 2013 SC 1541. 132 Santhanam (V) v. Sathya (S), AIR 2003 Mad 94. 133 Supra note 9 at 129.

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If the wife is living in adultery and persists in that course she

would be deemed to be unchaste. If the wife is unchaste or is living

apart from her husband’s family for immoral or improper purposes,

she is not entitled to maintenance.134 Her right to maintenance is

conditional upon her leading a life of chastity.135 She forfeits her right

by unchaste conduct though it is secured by a decree or agreement.

But a mere single act of adultery does not amount to unchastity. An

unchaste wife at the date of suit is disqualified even for bare

maintenance.136

Unchastity on the part of the wife is a sin against the ethics of

matrimonial morality in the society. Moral law is not the positive civil

law but there may be instances where the law and morality meet. So

Section 25 of the Hindu Marriage Act, relating to permanent Alimony

after divorce and s. 18 of the Hindu Adoptions and Maintenance Act in

sub-Section (3) of that Section disentitle a wife from getting

permanent Alimony or maintenance from the husband if she is

unchaste.137

3.2.2.1.3.11.3 Her Own Un Genuine Behavior

Women are not entitled to separate maintenance when the

husband is willing to keep her in his house and she refuses to accept

his offer without sufficient justification. A wife voluntarily deserting

her husband becomes disentitled to claim separate maintenance.138

3.2.2.1.3.12 Suspension of Wife’s Right of Maintenance

A wife living apart from her husband for no improper purpose

may at any time return and claim to be maintained by him. Her right is

134 Bhagwan Kaur v. Bose, 31 Cal 11 (PC). 135 Ilata v. Narayana, 1 Mad 372; Debi Saran v. Daulata, 39 All 934; See also Section

18(3) of the Act. 136 AIR 1917 All 86. 137 Sachindra Nath Biswa v. Banamala Biswas, AIR 1960 Cal 575. 138 Sila Nath v. Haimabuthy, (1875) 24 WR 377.

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not forfeited, but is only suspended so long as she commits a breach of

duty, by living apart from him without any justifiable cause.139

3.2.2.1.3.13 Agreement to Live Separately and Not to Claim

Maintenance

It is open to the wife to enter into an agreement with her

husband not to claim the maintenance. Such agreement is valid and

enforceable provided that it has not been entered into by fraud,

coercion, force, mistake, etc. An agreement not to claim enhancement

of the maintenance is a binding agreement and must be enforced.140

After such agreement, the right of wife to claim maintenance or

enhancement, as the case may be, is extinguished.141

3.2.2.1.3.14 Death of Husband After Decree Passed

When the wife’s suit for maintenance under Section 18 of the

Act has been adjudicated and decreed during the life time of the

husband and certain property has been charged for payment of

maintenance such a decree is enforceable even after the death of her

husband.142

3.2.2.1.3.15 Date of Awarding Maintenance

There is no specific provision in the Act as to what should be

the starting date. Therefore, principle of justice, equity and good

conscience would be attracted in order to ascertain the date. Normally,

the maintenance should be awarded from the date of the application. If

this rule is violated the person defending the claim can succeed in

139 Sher Singh v. Sham Kaur, AIR 1928 Lah 502. 140 Mauleshwar Rao v. Durgamba, AIR 1924 Mad 326. 141 Kallu v. Kashi Bai, 1937 Mad 326. 142 Rundibala Roy v. Putubala, AIR 1985 Cal 46.

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prolonging the trial and escape his liability. So maintenance should be

granted from the date of application.143

The Privy Council in Ekradeshwari v. Hansadwip,144 had

allowed maintenance to a widow from the date when the widow had

made up her mind to stay in her father’s house. Considering this

principle the Supreme Court in Dr. Kulbhushan v. Raj Kumari,145 has

held that no exception can be taken to the fixing of the date of

institution of the suit as the term uses a quo for the maintenance

claimed by the wife. So maintenance was allowed to the wife from the

date of institution of the suit. In another case the Gujarat High Court

awarded maintenance to the wife from the date when the husband was

guilty of desertion.146

3.2.2.1.4 Maintenance to Widowed Daughter in Law

Section 19 of the Act enacts the old rule of Hindu Law subject

to certain modifications made by the Act. This Section states that a

widow of a Hindu, whose marriage had taken place either before or

after the commencement of the Act, shall be entitled to be maintained

by her father-in-law.Under the Shastric Hindu law the moral

obligation of the father-in-law to maintain his widowed daughter-in-

law also existed both under the Mitakshara and Dayabhaga Schools of

Hindu law. This obligation arose out of the affinity between him and

the widowed daughter-in-law irrespective of the Joint Family status

between the father and the deceased husband.147

“Section 19 runs as follows:

143 A. Bhagawathi Ammal v. Sethu, 1988 (1) HLR 131; Kesarbai v. Haribhan, AIR 1975

Bom 115. 144 AIR 1929 PC 128. 145 AIR 1971 SC 234; M.C. Patel v. Maniben, AIR 1985 Guj 187. 146 Kokilabai v. H.N. Patel, 1986 (2) HLR 275 (Guj). 147 A. Yadagan v. Nallammal, ILR (1949) Mad 16 (FB).

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(1) Hindu wife, whether married before or after the

commencement of this Act shall be entitled to be

maintained, after the death of her husband, by her father-

in-law:

Provided and to the extent that she is unable to

maintain herself out of her own earnings or other property

or where she has no property of her own, is unable to

maintenance:

(a) From the estate of her husband or father or mother;

or

(b) From the son or daughter, if any, or his or her

estate.

(2) Any obligation under sub-Section (1) shall not be

enforceable if the father-in-law has not the means to do

so, from any coparcenary property in his possession out

of which the daughter-in-law has not obtained any share

and any such obligation shall cease on the remarriage of

the daughter-in-law”.148

3.2.2.1.4.1 Application of the Section

The moral obligation of a father-in-law to maintain the widowed

daughter-in-law under the old Hindu law has been converted into a

legal obligation under this Section and consequently the right of the

daughter-in-law can be enforced even against the separate property of

the father-in-law on his death.149 The words used in the Section that

she is entitled to be maintained after the death of her husband are not

to be understood as limiting the right of widowed daughter-in-law only

148 Section 19, the Hindu Adoption and Maintenance Act, 1956. 149 Lakshminarasimha v. Sundaramma, AIR 1981 AP 88 (FB); Janaki Raman v.

Meenakshi Ammal, (1986) 2 HLR 94 (Mad).

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to a case where the husband died after the Commencement of the

Act.150

This right of the widow is subject to two conditions viz. (1)

When she is not able to maintain herself out of her own earnings or

other property; (2) Where she has no property of her own and she is

unable to obtain maintenance: (a) from the estate of her husband, her

father or mother, or (b) from her son or daughter, if any, or his or her

estate. Thus the obligation on the part of the father-in-law is very

much limited. The right of the widow is further not enforceable if the

father-in-law has not the means to maintain her from any coparcenary

property in his possession out of which the daughter-in-law has not

obtained any share.151

In case the widow remarries or obtains a share in the

coparcenary properties in a partition are liability of the father-in-law

will cease. Till such time, that obligation subsists. She will not

however be divested of her right to a share in the separate property of

her husband or in his interest in coparcenary property.152

In view of the use of the expression “Coparcenary Property” in

sub-Section (2) it was held in Kaimaialal v. Pushparani,153 that sub-

Section (2) contemplated a widowed Daughter-in-Law governed by

Mitakshara school only, whereas sub-Section (1) dealt with parties

governed by both the Mitakshara and Dayabhaga schools. On the other

hand the Punjab High Court took the view that the expression

“coparcenary property” must be understood not in the narrow sense of

Mitakshara coparcenary property but as ancestral property as

150 Ravi Bai v. Yadunandan Ram, AIR 1968 SC 1118. 151 Raj Kishore Mishra v. Meena Mishra, AIR 1995 All 70. 152 Animuthu v. Gandhimmal, AIR 1977 Mad 372. 153 AIR 1979 Cal 172.

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understood in Punjab customary law or Dayabhaga law where a

daughter-in-law does not get any share.154

Further the expression in sub-Section (2) “out of which the

daughter-in-law has not obtained any share” would indicate that the

expression “coparcenary property” is not intended to be confirmed to

Mitakshara coparcenary property as under the Hindu Women’s Rights

to Property Act of 1937 and under Section 6 of the Hindu Succession

Act, 1956,the Widowed Daughter-in-Law acquired the right of the

interest of her husband in the coparcenary property.

The father-in-law is to pay maintenance only out of the income

from the coparcenary properly in his hands. Thus the liability to

maintain the daughter-in-law is not personal. When a daughter-in-law

claimed maintenance against the father-in-law who had self-acquired

and coparcenary property it was held that the father-in-law and his two

wives are to live on the income from the self-acquired property and

the daughter-in-law was entitled to the entire income from the small

ancestral property and fall under the category of dependants Section

21 of the Hindu Adoption and Maintenance Act, 1956 only after

unsuccessful claim under Section 19.155

3.2.2.1.4.2 Bar to Claim the Right

“A Widowed Daughter-in-Law cannot claim the Right of

maintenance:

(a) If she is able to maintain herself out of her own earnings

or other property; or

(b) If she is able to obtain maintenance from the estate of her

husband; or

154 Angat Singh v. Dhan Kaur, AIR 1964 Punj 398. 155 Jai Kaur v. Pala Singh, AIR 1961 Punj 391.

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(c) If she is able to obtain maintenance from the estate of her

father; or

(d) If she is able to obtain maintenance from the estate of her

mother; or

(e) If she is able to obtain maintenance from her son; or

(f) If she is able to obtain maintenance from her daughter; or

(g) If she is able to obtain maintenance from the estate of her

son; or

(h) If she is able to obtain maintenance from the estate of her

daughter,

(i) if the father-in-law has no coparcenary property in his

possession out of which she has not obtained a share; or

which she has not obtained a share, or

(j) If she has remarried,

(k) If she has ceased to be Hindu by conversion to some other

religion”.156

3.2.2.1.4.3 Liability of Father in Law

The father-in-law cannot escape his liability by adopting

dubious method. If the self-acquired property is less but ancestral

property is more, the ancestral property should not be burdened with

the maintenance of the father-in-law for his other dependants. It

should be left free for the maintenance of the widowed daughter-in-

law as his self-acquired property of the father-in-law will be available

for other members of his family.157

156 Section 19, the Hindu Adoption and Maintenance Act, 1956. 157 Jai Kaur v. Pala Singh, AIR 1961 Punj 391.

– 106 –

When the maintenance deed was executed by the father-in-law

before the commencement of the Hindu Succession Act 1956 and

father-in-law died after the Hindu Succession Act 1956 came into

force then the daughter-in-law need not surrender the property

obtained by the maintenance deed even if she gets a share in the

property under the Hindu Succession Act, 1956.158

The word “obtain” as used in the proviso is also significant. It

does not merely mean that the widow is somehow managing to live

with or is being maintained by her father or mother or that her father

or mother are somehow managing to save their widowed daughter from

starvation. If this was to be placed on the word “obtain” then

apparently basic and main purpose and object of the Act would be

thwarted rather than advanced. There must therefore be legal right in

the widowed daughter-in-law to demand maintenance from her father

or mother or from their estate, as the case may be, and she must in

assertion of that right be able to so obtain maintenance. So it is only

when she came to obtain maintenance in pursuance of lawful right this

operation of the proviso can be said to be attracted.159

3.2.2.1.5 Maintenance of Children and Aged Parents

Incorporating the old law in the modified form, the Hindu

Adoption and Maintenance Act, 1956 has incorporated in it under

Section 20, the liability to maintain the Children and the Aged parents.

In the present work this Section has been incorporated keeping in view

the claim of maintenance to be made by the daughter and mother under

the present Act. As discussed earlier also, begetting children in the

ancient times was considered to be paying off one debts and having

children was one of the most important feature of the Indian Society

which along with it use to bring the liability to maintain it as well.

158 Chinnappa v. Yathammal, AIR 1969 Mad 187. 159 Supra note 155.

– 107 –

Similarly the liability towards our parents also is a paramount duty in

the country like India where parents are considered to be next to

God.160 The father cannot refuse to maintain the child on the plea that

the responsibility to maintain the child has been taken over by some

other person.161

Incorporating the liability to maintain the parents as children as

a personal liability of individual, an insight under Section 20 of the

Act can be read as follows:

“20. maintenance of children and aged parents

(1) Subject to the provisions of this Section a Hindu is

bound, during his or her lifetime, to maintain his or her

legitimate or illegitimate children and his or her aged or

infirm parents.

(2) A legitimate or illegitimate child may claim maintenance

from his or her father or mother so long as the child is a

minor.

(3) The obligation of a person to maintain his or her aged or

infirm parent or daughter who is unmarried extends in so

far as the parent or the unmarried daughter, as the case

may be, is unable to maintain himself or herself out of his

or her own earnings or other property”.162

3.2.2.1.5.1 Application of the Section

Thus on the bare reading, it is contemplated that Section 20 of

the Hindu Adoption and Maintenance Act, 1956 incorporates the dual

liability of Maintaining the begotten and begetter, who are important

160 Ibid. 161 Thulasi Kumar v. Raghavan, AIR 1985 Ker 20. 162 Section 20, the Hindu Adoption and Maintenance Act, 1956.

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liability of one’s life and the liability to provide the maintenance to

them is not based on inheritance but a personal obligation.

3.2.2.1.5.2 Children

Children, the most wonderful creation of the God are unable to

maintain themselves till a particular age or due to various other

reasons even after attaining majority. Since the old times, it was

considered to be a personal obligation of the Hindu to maintain his

Children.Though in today modern era, it has become well established

slogan that there is no difference between a daughter and the son, both

are equal. But our laws since ancient time has taken a soft corner for

the girl child and various provisions have been incorporated to fulfill

the liability towards the fairer sex. In the preceding paragraphs, now

an elaborate discussion will be made about the right of the children to

claim maintenance from the father.163

A legitimate daughter was entitled to maintenance until her

marriage. But an illegitimate daughter was not entitled to maintenance

against her putative father. Regarding aged parents as a matter of

personal and imperative obligation the male Hindu was to maintain his

parents though he did not possess joint family property, under the

Hindu Adoption and Maintenance Act, 1956 the liability has been

extended on the females also and now a female Hindu is also under an

obligation to maintain both legitimate and illegitimate children and

her aged and infirm parents.164

An important case has been decided by the Andhra Pradesh High

Court in D. Krishna Prasad Rao v. Jayasri and others,165 where the

Court held the liability of the parents to maintain their children is an

absolute liability which cannot be circumvented on the ground that the

163 Ibid. 164 Supra note 6 at 1331. 165 AIR 1986 AP 17.

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such duty arises only if the child surrenders to the protection and care

of the parent such conditions cannot be imposed in awarding

maintenance The parent can only defeat the claim on the ground that

there is no default on his other part in maintaining the child or that the

claim for maintenance is unreal in the sense that the action was

brought preventing the parent to maintain that child taking out of his

custody and protection.166

3.2.2.1.5.2.1 Mother’s Liability to pay Maintenance

maintenance can be claimed from both, the father and the

mother, if they are capable to maintain their child, liability can be

fixed on both. The use of word ‘or’ in Section 20 has to be read as

‘and’.167 The mother and father by way of mutual agreement cannot

take away the Statutory Rights available to the minors under the Act

and no agreement which is adverse to the interest of minors can be

enforced in law.168 Even the Judiciary has taken the note of the same

and it is stated that where both mother and father of the minor child

are gainfully employed and are having equal financial-capacity, in

such circumstances responsibility of minor child has to be equally

shared.169 The mere fact that the child’s mother had under an

agreement with her husband being the father of the child had

undertaken the responsibility to maintain the child does not preclude

the child from making maintenance from the father. It may be open to

the father to claim that the child is being properly maintained by the

mother and if he can prove such proper maintenance by the mother, the

minor child may not get maintenance from its father. If the child is not

adequately maintained by the one or the other of the parents, it is open

to the child to seek the deficiency from the parent who does not

provide for its maintenance. The mere fact that the father is not a 166 Ibid. 167 Mohinder Singh v. Ravneet Kaur, AIR 2007 P&H 49. 168 Supra note 6 at 1333. 169 Sree Ramudu (N) v. Kum. N. Lahari, AIR 2005 (NOC) 29 (AP).

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person of sufficient means does not in any way obliterate his liability

under Section 20 of the Act to provide for maintenance of the minor

child. The question relating to his means may be relevant only in

considering the quantum of maintenance but the plea of the father that

the mother of the child has sufficient income from the property would

not be a valid defence in such a suit. Even in such case the duty of the

father to maintain the minor child subsists.170

3.2.2.1.5.2.1 When Child is in Custody of Mother

When the child lives with the mother who has the sufficient

ground to live separately from her husband then the custody of the

child by the mother is not improper and in such a case the father has

the obligation to provide maintenance for the wife as well as for the

child or children in the custody of the wife. Moreover, under Hindu

Minority and Guardianship Act, 1956 Hindu child aged up to 5 years

is entitled to remain with the mother if she lives separately from her

husband. When a claim for maintenance is made for the minor child,

the usual defence of the father is that he is willing to maintain the

child and provide for its educational expenses if the child is given to

his custody. But the child may refuse to live with the father and

prefers to live with the mother. The child does not lose its right to

claim maintenance from the father by refusing to live with the

father.171

Where the father brings a second wife it creates disharmony and

unhappiness for the natural mother of the daughter and makes

impossible for her to live with her husband and naturally she is forced

to live separately from her husband and the child remains to live in the

custody of the natural mother. As a step-mother is no substitution for

the natural mother as long as she is alive and is able to look after her

170 Tulasi Kumar Anil Kumar v. Raghavan Nair, AIR 1985 Ker 20. 171 Krishna Prasada Rao v.V.K. Jayasri, AIR 1986 AP 126.

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child, the insistence of the father that although he would not maintain

his wife, his daughter should surrender to his control and reside with

him is vexatious pre-posteriors and a mere pretence. The second

marriage of the father may bring for the some children who alone

would be the object of the second wife’s affection and nobody can

believe that the daughter from a deserted wife could ever hope be

looked after well in her father’s house. So a child who from her

infancy enjoyed her mother’s protection and care would obviously

expose herself to serious perils if she returns to her father’s house.172

3.2.2.1.5.2.3 Daughters

Under the old Hindu law, the father was supposed to maintain

his minor legitimate daughter only and he was under no obligation to

maintain or recognize his illegitimate daughter. But now this

differentiation has been shed away under the present law. Here it may

be noted that under the Hindu Adoption and Maintenance Act, 1956,

attaining majority is not a bar for the Hindu Major Unmarried

Daughter to claim maintenance.

3.2.2.1.5.2.3.1 Legitimate and Adopted Daughters

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.

Section 20(2), Hindu Adoptions and Maintenance Act lay 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 maintaining

a major unmarried daughter only so far she is “unable to maintain

herself out her own earnings or other property”.173 In Sneh Prabha v.

172 Annamalai Mudaliar v. P. Ammal, AIR 1965 Mad 139. 173 Section 23(2) of the Hindu Adoption and Maintenance Act, 1956.

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Ravinder Kumar,174 the Supreme Court said that Court has power to

award maintenance against the father for major daughters also till they

get married or settled gainful. The question whether she has any

earnings of her own or property out the income of which she could

maintain herself is a question of fact has to be decided in each case on

the material on record. What has to be shown is that she is actually

earning or has property. Section 20(3) does not speak of the capacity

to earn an income but speaks of the existence of a source of income

and the ability to maintain oneself with such income.175 The obligation

to maintain a daughter includes reasonable expenses of her

marriage.176

3.2.2.1.5.2.3.2 Illegitimate Daughter

Under the Old Hindu Law, an illegitimate daughter of Hindu

was not entitled to Claim maintenance from her putative father, but

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 till the time she remains unmarried.177 An

illegitimate daughter can claim maintenance under this Act from the

date of its commencement though she was not entitled under the old

law. As the Section is prospective in its operation she is not entitled

for arrears of maintenance prior to the Act.178

Whether an unmarried daughter is unable to maintain herself out

of her own earnings or property, is a question that has to be decided

on the facts of each case. An obligation to maintain an unmarried

daughter includes an obligation to provide her marriage expenses, in

view of the definition of ‘maintenance’ under Section 3(b)(i) of this

174 1995 SC 2110. 175 Laxmi v. Krishna, 1968 Mys 288; Wal Ram v. Mukhtiar, 1969 Punj 285. 176 Chandra v. Nanak, 1975 Del 175. 177 Section 21(1), Hindu Adoption and Maintenance Act, 1956. 178 Muktabai v. Kamalaksha, AIR 1960 Mys 192.

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Act.179 As maintenance and marriage expenses of the daughter are a

legal obligation of the father, property given to her cannot amount to a

gift.180 In enacting Section 3(b)(ii) which defines maintenance as

including reasonable expenses of incident to the marriage of a

daughter, the legislature did nothing more than to codify the well

settled principles of Hindu law. However an unmarried daughter who

gets a share in the property is not entitled to a provision being made

for marriage expenses.181

There is no presumption that a college going unmarried

daughter is capable of maintaining herself.182 The obligation of a

person to maintain his unmarried daughter under sub-Section (3) does

not include major son.183

By harmonious construction of sub-Section (2) and sub-Section

(3) of Section 20 of the Act, it can be safely held that sub-Section (3)

of Section 20 will apply when the area of sub- Section (2) ends and the

unmarried daughter ceases to be minor and sub- Section (3) shall

thereafter apply if the daughter remains unmarried. Similarly sub-

Section (2) will not apply if the daughter is married although she did

not attain majority because after marriage the liability to maintain her

passes to her husband under Section 18 of the Act. The claim petition

for maintenance filed by the married daughter is not maintainable as

she is not a dependent under Section 21 of the Act.184

179 Sathish Kumar Sood v. Gayatri Devi, 2002 (1) HLR 334 (P&H); Chandra Kishore v.

Nankchand, AIR 1975 Delhi 175; Devchand v. Commr of Expenditure Tax, 78 ITR 531.

180 Bhuvaneshwari v. Special Tahsildar, AIR 1980 AP 139; CGT v. Chandrasekhara Reddy, (1976) 105 ITR 849 (AP); COT v. Bandamudi Subbiah, (1980) 123 ITR 509 (AP); CGTv. Bandi Subbarao (1987) 167 ITR 66 (AP); Prabhakaran Nair v. Preethy, I (2002) DMC 13 (Ker).

181 Karuppanna Gounder v. Chinna Nachammal, AIR 1974 Mad 329. 182 Laxmi v. Krishna Bhatta, AIR 1968 Mys 288. 183 Avnish Pawar (Dr) v. Sunita Pawar (Dr.), 2001 (2) HLR 205 (MP). 184 Munni Devi v. Chhoti, AIR 1983 ALL 444.

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It does not seem to be the intention of the legislature that a

presumption of ability to earn and maintain her should, in the case of

Hindu girl, be raised from the fact that she is able bodied and

sufficiently educated to earn her living. So the expression “unable to

maintain herself out of her own earnings or other property” is more in

the nature of the proviso to the first part of the sub- Section (1) of

Section 20 which imposes in most unequivocal terms an obligation to

father or mother to provide for maintenance regarding their unmarried

daughter. So it is clear the onus to prove the fact that daughter is able

to maintain herself from own earnings or from other property is on the

father or on the mother, as the case may be, and if such burden is

proved to be discharged the father or mother may be discharged, from

his or her liability to maintain the unmarried major daughter.185

3.2.2.1.5.2.3.3 Marriage Expenses of Unmarried Daughter

Under Section 3(b) of the Hindu Adoptions and Maintenance

Act 1956, the reasonable expenses for the marriage of unmarried

daughter are part of the definition of ‘maintenance’ under the Act.

While defining the word ‘maintenance’ in Section 3(b) of the Hindu

Adoptions and Maintenance Act, 1956 the expression “incident” also

takes the character of expenses of marriage. Undoubtedly expenses of

marriage may also include expenses relating to betrothal, nuptial or

other ceremonies to the marriage.186 Therefore, an unmarried daughter

may also claim that her marriage expenses be provided by the father or

the mother. However, it is not the law that when the unmarried minor

daughter from her small age claims maintenance she can claim at that

stage from the Court that the expenses of marriage be provided for

her. It is only when she comes of a marriageable age such a provision

should be made. If at the early age such a prayer is made it shall be

the duty of the Court to order that such a claim shall be considered at

185 Wali Ram v. Mukhtiar Kaur, AIR 1969 P&H 285. 186 Kokilaben v. H.N. Patel, 1986 (2) HLR 275.

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the appropriate stage. At that stage what shall be the reasonable

expenses for marriage need not be gone into by Court. However, to

safeguard the right of unmarried daughter, a charge can be created on

the property of the father for the maintenance of the daughter and for

the amount of marriage expenses.187

3.2.2.1.5.2.3.4 Marriage Expenses May Be Claimed Even After

Marriage of Daughter

It is not necessary that the maintenance amount in the form of

Marriage expenses is to be claimed only before or after the marriage is

fixed. When the appeal was filed by the appellant daughter along with

her brother claiming partition and separate share in the joint property

after enforcement of Hindu Succession Act 1956, in such an appeal the

daughter may claim marriage expenses from the father even if during

the pendency of the suit the daughter had been married and the father

had still the liability to meet the marriage expenses even if the

marriage was performed by taking loans or at the cost of others. This

is because it is the duty of the father to maintain the daughter till her

marriage and also to meet her marriage expenses. Moreover, since the

Amendment of Hindu Succession Act, 1956 by the Amendment Act of

2005 she was also entitled to a share in all joint properties.188

A suit was filed by the wife for her maintenance and for her

daughter. The prayer for the direction to the husband to pay for the

marriage expenses of the daughter has also been made. The husband

married for the second time. The husband though 75 years old was still

earning. The wife and unmarried daughter have little money with

them. As regards expenses of the marriage, the husband pleaded that

the same may be paid after marriage is fixed. The High Court refused

to accept that plea in view of the fact that the husband is 75 years old

187 Ibid. 188 Smt. Roopa J.M. v. Jallur Musturappa, AIR 2006 Kant 196.

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and there is no evidence that marriage is not likely to be solemnized in

near future. So, the High Court directed the husband to deposit �one

lakh as marriage expenses. The maintenance of �1500 Per Month for

the wife and �1000 Per Month for the unmarried daughter were

granted by the High Court.189

3.2.2.1.5.2.4 Right ofa Hindu Child to Claim Maintenance

from Muslim Father

On construing the provisions of sub-Section (1) vis-à-vis sub-

Section (2) of Section 20 of the Act, it has been observed that the

obligation under sub-Section (1) arises by reason of the status of the

person whether the child is legitimate or illegitimate and whether a

Hindu or not. But sub-Section (2) looks at the matter from the point of

view of the child itself and if the child is a Hindu irrespective of

whether father or the mother is a Hindu it is entitled to claim

maintenance against him or her.190 It is further pointed that there are

no words in sub-Section (2) of Section 20 to suggest that a Hindu

legitimate or illegitimate child can claim maintenance under sub-

Section (2) of Section 20 only against a Hindu father or Hindu mother,

that the object of the Hindu Adoptions and Maintenance Act, 1956 is

to amend and codify the law relating to adoptions and maintenance

among the Hindus and considering the various provisions it has made

and the charges, it appears that it could not be the intention of the Act

that a Hindu minor child cannot claim maintenance against a

Mohammedan putative father.191

3.2.2.1.5.3 Aged and Infirm Parents

Section 20 (1) and 20(3) of the Hindu Adoption and

Maintenance Act,1956 incorporates the well-defined principle of our

189 Parikhita Sahu v. Champa, AIR 2010 (NOC) 366 (Del). 190 M.K. Adam v. Gopala Krishnan, AIR 1974 Mad 232. 191 Ibid.

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Old Hindu Law, ‘Matru Devo Bhava, Pitru Devo Bhava’ which was

prevailing in the ancient law as well. But this can be termed as an

extension to the well-defined personal liability as in the previous

times; it was personal liability of the sons to maintain their aged and

infirm parents. But now under the present sections, the liability has

been extended towards the females also to maintain their aged and

infirm parents.

Same as in the case of unmarried daughters as well, the liability

of the children to maintain parents is aged or infirm parents who are

unable to maintain themselves out of own earnings or property, is a

question that has to be decided on the facts of each case. Where the

mother gifts almost all her property to her only daughter and sold the

remaining property to her brother, it was held that she was entitled to

be maintained by her daughter.192 Under the old Hindu law, ‘parent’

did not include a stepparent.193

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.

3.2.2.1.5.3.1 What Amounts to “Aged or Infirm”

The idea of being aged or infirm is closely connected with the

ability of the person to earn his or her own livelihood. For example, a

person who has retired from service or the employment without any

pension and who is, in the facts and circumstances of the case, not

able to get other employment can merely look for the maintenance

from children. So parents are aged vis-a-vis their sons or daughters

192 Munnidevi v. Chhoti, AIR 1983 All 444. 193 Bdi Daya v. Nath, 9 Bom 279; Kedar Nath v. Hemangini, 13 Cal 336.

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and they are unable to make their own living they may well be called

infirm.194

3.2.2.1.5.3.2 Mother’s Right under Section 20(3) of the Act

Mother is one who gives birth to and nurtures the newborn. We

call her mother because of her mothering and creative qualities. All

created beings are inter-dependent and sustain one another with

actions. The whole creation is kept in motion when a harmonious

relationship between one another is maintained. Social order is

preserved through selfless and constant action. But here is a mother

who has knocked the doors of justice for sustenance.195

An aged mother has a right to be maintained by her son no

doubt. But that does not mean that she is entitled to live along with

her son’s family. Though sons are morally obliged to take care of the

aged mother by accommodating her in their house, yet law cannot

enlarge such moral obligation to legal duty to provide her residence in

the house along with his family. Such moral obligation is thus not

legally enforceable.196

3.2.2.1.6 Maintenance of Dependents

The concept of maintenance of dependants can be termed as

akin to the old Hindu Law provision of Karta’s of joint family’s

liability to maintain members of the Joint family. Under the modern

Hindu Law as well, the liability to maintain the certain relations have

been retained under Sections 21 and 22 of the Hindu Adoption and

Maintenance Act, 1956. This Section enumerates list-of dependants

and they are such persons, whom the deceased was legally or morally

bound to maintain personally. The names of the dependants and the

194 Smt. Munni Devi v. Smt. Chhoti, AIR 1983 All 444. 195 Premlata Singh v. State of Orissa and Ors. AIR 2009 (NOC) 3024(Ori). 196 Anandi D. Jadhav (Dead by LRs) v. Nirmala, AIR 2000 SC 1386.

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extent to which they shall be deemed to be dependents are

diagrammatically and enumerative described below:

21. Dependants Defined

“For the purposes of this chapter “dependants” mean the

following relatives of the deceased:

(i) His or her father.

(ii) his or her mother,

(iii) his widow, as long as she does not re-marry.

(iv) his or her son or the son of his predeceased son or the son

of a predeceased son of his predeceased son, as long as he

is a minor, provided and to the extent that he is unable to

obtain maintenance, in the case of a grandson from his

father’s or mother’s estate, and in the case of a great

grand-son, from the estate of his father or mother or

father or father’s mother.

(v) his or her unmarried daughter or the unmarried daughter

of his predeceased son or the unmarried daughter of a

predeceased son of his predeceased son, so long as she

remains unmarried, provided and to the extent that she is

unable to obtain maintenance, in the case of a grand-

daughter from her father’s or mother’s estate and in the

case of a grand-daughter form her father’s or mother’s

estate and in the case of a great-grand-daughter from the

estate of her father or mother or father’s father or father’s

mother.

(vi) his widowed daughter, provided and to the extent that she

is unable to obtain maintenance –

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(a) from the estate of her husband, or

(b) from her son or daughter if any, or his or her

estate, or

(c) from her father-in-law or his father or the estate of

either of them.

(vii) any widow of his son or of a son of his predeceased son,

so long as she does not remarry: provided and to the

extent that she is unable to obtain maintenance from her

husband’s estate, or from her son or daughter, if any, or

his or her estate, or in the case of a grandson’s widow,

also from her father-in-law’s estate.

(viii) his or her minor illegitimate son, as long as he remains a

minor.

(ix) his or her illegitimate daughter, as long as she remains

unmarried”.197

“22. Maintenance of Dependants

(1) Subject to the provisions of sub-Section (2) the heirs of a

deceased Hindu are bound to maintain the dependants of

the deceased out of the estate inherited by them from the

deceased.

(2) Where a dependant has not obtained, by testamentary or

intestate-succession, any share in the estate of a Hindu

dying after the commencement of this Act, the dependant

shall be entitled, subject to the provisions of this Act, to

maintenance from those who take the estate.

197 Section 21, the Hindu Adoption and Maintenance Act, 1956.

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(3) The liability of each of the persons who takes the estate

shall be in proportion to the value of the share or part of

the estate taken by him or her.

(4) 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”.198

3.2.2.1.6.1 Maintenance of Women as Certain Dependants- Scope

Section 21 of the Hindu Adoptions and Maintenance Act gives a

list of persons whom a Hindu is bound to maintain in case he has

inherited some property from a deceased to whom such persons are

related whether by blood or by marriage. Some of the names are of

those persons already enumerated in Sections 18 to 21 but in the

former sections right to be maintained was a right arising from

relationship, while in the Section the right arises from the property

inherited. So this will come under the category of limited liability.

Under this Section the right of dependants is based on the obligation

of heirs to maintain certain relations of the deceased.

Section 21 (vi) and Section 22 (2) of the Hindu Adoption and

Maintenance Act, 1956 deals with the right of maintenance accruing to

the widowed daughter after the death of her father. As per Section 21

clause (vi), if the deceased has left behind him his widowed daughter

then provided and to the extent that she is unable to obtain

maintenance [from her husband’s estate, or from her son or daughter,

if any, or his or her estate; or from her father-in-law or his father or

198 Section 22, the Hindu Adoption and Maintenance Act, 1956.

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the estate of either of them, then such widowed is to be treated as a

“dependant” of the deceased.199

Section 21 enumerates the persons who are to be considered as

“dependants” whether related by blood or by marriage, to a deceased

male or female Hindu. Section 22 states that the heirs of the deceased

male or female are bound to maintain the dependants from that of the

estate inherited by them from the deceased and provides certain

guidelines for the purpose of providing maintenance to the

dependants.200

In Laxminarayana v. Sundaramma,201 it was held that the

provisions are only prospective in their operation. An illegitimate

daughter of a Hindu who had died prior to the Act is not entitled to

claim maintenance from his estate as his dependant as the Act is not

retrospective and the illegitimate daughter had no right to maintenance

under Hindu law.202 The provisions of Section 22 cannot be taken

advantage of by the widows of persons died before the commencement

of this Act.203

Sections 21 and 22 read with Section 4 of the Hindu Adoption

and Maintenance Act, 1956 do not destroy or affect any right of

maintenance out of an estate of a deceased Hindu, vested on his death

before the commencement of the Act under the Hindu law in force at

the time of his death. Where a married woman who left her husband

and lived with her paramour as his permanently kept concubine could

claim the status of an Avaruddhastree and was entitled to maintenance

from his estate on his death, the Supreme Court204 affirming the

decision of the High Court held such right was not destroyed or

199 Balwant Kaur v. Chanan Singh, AIR 2000 SC 1908 200 Supra note 6 at 1336. 201 AIR 1981 AP 88 (FB). 202 Jaiwanti v. Arvind, AIR 1968 Bom 314; Muktabai v. Kamalakka, AIR 1960 Mys 82. 203 Gulabchand v. Sheokaran Lal, AIR 1964 Pat 45. 204 Raja Gopal Rao v. Sitaramamma, AIR 1965 SC 1970.

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affected by Sections 21 and 22 read with Section 4 of the Act. It is a

recognized rule that a statute should, if possible, be interpreter so as

to respect vested rights. The continuing claim of the concubine springs

out of the original right vested in. her on the death of the paramour

and is not founded on any right arising after the commencement of this

Act.205

The dependants enumerated in this Section except the

illegitimate son and the illegitimate daughter are heirs in class I with

the exception of the father who is included in class II of the Schedule

under the Hindu Succession Act. A question may arise whether a

person, say for example, a mother or a widow of a deceased male who

is an heir in class I and is also a dependant within the meaning of the

this Section, can claim succession as an heir and also maintenance as a

dependant. The answer is provided in sub-Section (2) of Section 22

wherein it is stated that where a dependant has not obtained, by

testamentary or intestate succession, any share in the estate of a Hindu

dying after the commencement of this Act, the dependant shall be

entitled subject to the provisions of this Act, to maintenance from

those who take the estate.206

Sub-Section (1) provides that the heirs of a deceased Hindu are

bound to maintain the dependants of the deceased out of the estate

inherited by them. In view of the use of the expressions “heirs” and

“inherited” it is clear that sub-Section (1) applies only in the case of

intestate succession, the heirs being the heirs under the Hindu

Succession Act.207

The liability of the heir or legatee or donee to contribute to the

maintenance of a dependant is limited under sub-clause (4) of Section

22 if such heir, legatee or donee is a dependant, by providing that such

205 Supra note 6 at 1337. 206 Ibid. 207 Ibid.

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person is not liable to contribute towards the maintenance of other

dependants if the value of the share or part of the estates which he

inherited becomes less than what would have been awarded to him or

her by way of maintenance under this Act.208

Under this clause the widowed daughter can claim only

maintenance against her father or his estate. But no such right is

conferred against her mother. There is no justifiable reason why a

widowed daughter, whose father is unable to maintain her, or is dead,

should not be entitled to claim maintenance against her well to do

mother.209

A sister is not one of the dependants mentioned in Section 21.

However she would be entitled to be maintained by her brother who

has inherited his father’s estate under the ordinary Hindu law.210

3.2.2.1.6.2 Liability of Dependants to Maintain Certain Other

Dependants

Sub-Section (4) is a non-obstantate clause stating that

notwithstanding anything contained in sub- Section (2) or sub- Section

(3), no person who is himself a dependant shall be liable to contribute

to the maintenance of other dependants, even if such dependant has

obtained a share or part of the value of which is or would, if the

liability to contribute were enforced, becomes less than what would be

awarded to him or her by way of maintenance under this Act.211

3.2.2.1.6.3 General Rule of Hindu law Not Affected

Sections 21 and 22 of the Hindu Adoption and Maintenance Act,

1956 do not, in any way, affect general rule of Hindu Shastric law that

when a coparcener dies and the coparcener who gets his share by 208 Ibid. 209 Id., at 1339. 210 Rama Bai v. Meera Bai, 1955 MPLJ 500. 211 Supra note 67 at 373.

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survivorship the widow of the deceased coparcener would be entitled

to be maintained out of the coparcenary property of the coparcener

who held the share of the deceased coparcener by survivorship.212

Moral obligation of the father-in-law to maintain the widowed

daughter-in-law also existed under Mitakshara law as well as under the

Dayabhaga law. This moral obligation arose out of affinity between

him and the daughter-in-law irrespective of the joint family status

between the father and the deceased husband.213

It is the duty of the Hindu heirs to provide for the bodily and

mental or spiritual needs of their immediate and nearer ancestors to

relieve them from bodily or mental discomfort to protect their soul

from the consequence of the sin. They should maintain the dependant

of the persons of the property they inherited. Merely because the

property is transferred to them by gift or will, the obligation is not

extinct. When there is property in the hand of the heirs belonging to

the deceased who had a moral duty to provide the maintenance, it

became a legal duty of the heirs to maintain the dependant of the

deceased under Section 22 of the Act including a widowed daughter-

in-law of the deceased. It makes no deference whether the property is

received either by succession or by way of gift or will, the principle

being common in either case.214

All the texts of Hindu Law point out that there is a moral

obligation of the Father-in-Law to maintain the Daughter-in-Law and

the heirs who inherit his property is liable to maintain his dependant

to provide for bodily and mental or spiritual needs of their immediate

and nearer ancestors to relieve them of bodily and mental or spiritual

needs of their immediate and nearer ancestors to relieve from the 212 Gowardhan Shew Charan v. Smt. Gangabai, AIR 1964 MP 168; see also

Ramamoorthy v. Sitharamamma, AIR 1961 AP 131 (FB). 213 Appayu Yadayan v. Nallamal, ILR (1949) Mad 16 (FB); Also see Indannal v.

Babulal, AIR 1977 Raj 160. 214 T.A. Lakshmi Narasamba v. T. Sundaramma, AIR 1981 AP 88 (FB).

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consequences of the sin. So the heirs of the father-in-law have the

legal duty to maintain the widowed daughter-in-law of their father on

getting the property from him. So the moral obligation of a father-in-

law possessed of separate or self-acquired property to maintain the

widowed daughter-in-law ripens into legal obligation in the hands of

persons to whom he has either bequeathed or made a gift of the

property.215

3.2.2.1.6.4 Vested Right is Not Divested

Where a person died before the commencement of the present

Act, the right to claim maintenance vested in the persons under the old

Hindu law is not divested by reason of the present Act. Where a

woman had illicit intimacy with a person and begot children and filed

a suit for arrears and future maintenance for herself and her children it

was held that though she cannot claim maintenance as a dependant of

the deceased under the Act, as a concubine or Avaruddhastree she had

vested right of maintenance under the old Hindu law and that right was

not taken away by this Act.216

3.2.2.1.7 Maintenance to the Concubine

The Hindu Adoptions and Maintenance Act (Act 78 of 1956)

does not provide for the maintenance of concubine. So the right of

concubine to maintenance must be deemed to have been abrogated.A

right of maintenance which a concubine had acquired against the

estate of her deceased paramour prior to the 1956 Act is not nullified

by the Act because Sections 21 and 22 leave the estates of Hindu

whose death occurred before the Act unaffected. So the relevant

215 Ibid. 216 Ramamurthy v. Sitaramamma, AIR 1961 AP 131 (FB) affirmed by the Supreme

Court in Raja Gopal Rao v. Sitaramamma overruling Kameswaramma v. Subramanyam, AIR 1959 AP 269.

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provisions of the Act apply to estates of the Hindu whose death occurs

after the Act came into force.217

3.2.2.1.8 Amount of Maintenance

As from the above discussions, various aspects have been laid

down that under what circumstances and cases, the maintenance can be

sought by the various categories of persons. But actually it is not only

required that maintenance should be awarded, along with it at the same

time it is also required that the amount of maintenance should be fair

enough to stabilize the life of person in need and is able to give a

decent life style. Different sets of considerations are laid down for the

two categories of maintenance holders. In order to award the justice to

both the parties, while awarding the maintenance, criteria has been

laid down to be followed by the courts under Section 23 of the Act,

which could be read as follows:

“23. Amount of Maintenance:

(1) It shall be in the discretion of the Court to determine

whether any, and if so what, maintenance shall be

awarded under the provisions of this Act, and in doing so,

the Court shall have due regard to the considerations set

out in sub-Section (2), or sub-Section (3), as the case may

be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be

awarded to a wife, children or aged or infirm parents

under this Act, regard shall be had to—

(a) The position and status of the parties;

(b) The reasonable wants of the claimant;

217 AnireddiRamamoorthy v. Ammireddi Sithamamma, AIR 1961 AP 131.

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(c) If the claimant is living separately, whether the

claimant is justified in doing so;

(d) The value of the claimant’s property and any

income derived from such property, or from the

claimant’s own earnings or from any other source;

(e) The number of persons entitled to maintenance

under this Act.

(3) In determining the amount of maintenance, if any, to be

awarded to a dependant under this Act, regard shall be

had to:

(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 dependant;

(c) The degree of relationship between the two;

(d) The reasonable wants of the dependant;

(e) The past relations 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 earnings or from any other source;

(g) The number of dependants entitled to maintenance

under this Act”.218

3.2.2.1.8.1 Fixing of Quantum of Maintenance

218 Section 23, The Hindu Adoption and Maintenance Act, 1956.

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Hon’ble Privy Council in Ekradeshwari v. Homeshwar,219

observed the quantum of maintenance depends upon a gathering

together or all the facts of the situation, the amount of free estate, the

past life of the married parties and the families; a survey of the

conditions and necessities and rights of the members, on a reasonable

view of the change of circumstances possibly required in the future,

regard being, of course, to the scale and mode of living and to the age,

habits, wants and class of life of the parties”.220

The Court has to enquire in every case into (1) The reasonable

wants of the claimant; (2) The value of the claimant’s property if any

and the income thereon, and his/ her own earnings or any income from

any other source; and (3) The number of persons entitled to

maintenance under this Act. In awarding maintenance to the wife,

where the family consisted of husband, wife and two minor daughters

the computation was made on the basis of six units, two each to

husband and wife and two to the daughters and the wife was granted

maintenance on that basis.221 Apart from the above considerations, the

Court while dealing with the case of a wife, children aged or infirm

parents, has to consider (i) The position and status of the parties; and

(ii) If the claimant is living separately, whether the claimant is

justified in doing so, whereas in the case of other dependants it has to

consider (i) Net value of the estate of the deceased after providing for

payment of his debts; (ii) Whether any provision is made by the

deceased in his will, if any, in favour of the dependant; (iii) The

degree of relationship between the deceased and the dependant; and

(iv) The past relations between them.222

219 AIR 1929 PC 12, Also See Kulbhushan v. Raj Kumar, AIR 1971 SC 234; Rashmi

Mehra v. Sunil Mehra, AIR 1991 Del 44. 220 Ibid. 221 Kokila Ben v. Harshadbhai, (1986) 2 HLR 275 (Guj). 222 Supra note 6 at 1342.

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After the marriage, a girl adopts matrimonial home and gets

attuned to the living standard of her husband. She is identified with

the family of her husband. She acquires her husband’s family name. If

she has to suffer his miseries, she has right to enjoy his affluency

also.223

3.2.2.1.8.2 Consideration of the Reasonable Amount

The Court has to come to a conclusion what would be the

reasonable amount required by a claimant by taking into consideration

the cost of living and reasonable wants of the claimant. Thus the Court

can provide only for the wants which are necessary and reasonable.224

If the Court finds that the claimant is not in need of any maintenance

it may not award any amount at all.225

It appears that a higher degree of justification is required for a

wife to live separately from-the husband for the Court to award full

amount of maintenance to satisfy the requirements of the wife. Where

a wife lived separately from the husband as he took a second wife, it

was held that it is permissible and proper for the Court to fix the

quantum of maintenance on a less liberal scale.226 It is submitted that

such a conclusion is not warranted as the law gives her a right to live

separately where the husband has any other wife living and no

distinction can be made on the basis of different reasons or ground for

living separately.

3.2.2.1.8.3 Quantum of Maintenance in Case of Dependants

This is an important guideline to the Court for awarding

maintenance before placing burden on the heir, legatee or donee.

When the Court arrives at the amount realizable the claimant by way

223 Meenu Chopra v. Deepak Chopra, 2001 (2) HLR 467 (Del). 224 Kasinath Sahu v. Sumati Devi, AIR 1971 Ori 295. 225 Vidyadhar v. Lalita Devamma, AIR 1974 AP 38. 226 Satyanarayanamurthy v. Jagagamma, AIR 1962 AP 439.

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of income over the property, if any, of the claimant, his or her

(earnings and other income from any other source the Court would be

in a position to know what more amount is required to satisfy the

reasonable wants of the claimant. In a case where the claimant has

sufficient income to maintain himself or herself, the Court is not

bound to award maintenance merely because the claimant has a right

to claim maintenance.227

The distinction between the two sub-sections seems to be based

on the distinction between the personal obligation of a person to

maintain some members and the moral obligation to maintain others

which is now given a statutory recognition under this Act, in sub-

clauses (2) and (3) respectively.228

3.2.2.1.8.4 RelationshipBetween the Dependants

Clause (e) of Section 23(3) of the Hindu Adoption and

Maintenance Act, 1956 is intended to make a distinction between

dependents who are closely related and these who are more remotely

related. Similarly, in the case of clause (e) if the relationship between

the dependant and the deceased is cordial and in a case when the

dependant was helping the deceased during his life he will have to be

given a larger amount than a dependant who was not cordial and never

helped the deceased in any manner.229 A wife who has agreed to

receive maintenance at a particular rate, binding herself not to claim a

higher rate, even if circumstances were to change, can make an

application for the increase of maintenance if she can prove or justify

under Section 23. It has been held by the Madras High Court that the

right under this Section supersedes any contract to the contrary. The

227 Laxmana Rao (D) v. Kantamma (D), AIR 1973 AP 302. 228 Supra note 6 at 1344. 229 Ibid.

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fact that the rate of maintenance was fixed by a compromise decree

makes no difference.230

The Court has to determine first what the widow maintained

while her husband was living.231 In Kulbhushan v. Kumari,232 their

Lordships of the Supreme Court were of the opinion that the quantum

of maintenance depends upon a gathering together of all the facts of

the situation, the amount of free estate, the past life of the married

parties and the families, a survey of the conditions and necessities and

rights of the members on a reasonable view of change of

circumstances possibly required in the future, regard being, of course,

had to the scale and mode of living and to the age, habits, wants and

class of life of the parents. Section 23 (2) makes no departure from

these principles as enunciated in Ekradeshwari v. Homeshwar,233

except perhaps to a limited extent envisaged in sub-clause (d) and (e)

of Section 23(2).

3.2.2.1.9 Claimant Must Be Hindu

For the purpose of claiming maintenance under this Act, a

claimant should be a Hindu, as this states that no person shall be

entitled to claim maintenance under this chapter if he or she has

ceased to be a Hindu by conversion to another religion. Whether there

is conversion from Hinduism or not, is a question of fact.234

“24. Claimant to maintenance should be a Hindu: No person

shall be entitled to claim maintenance under this Chapter if he or she

has ceased to be a Hindu by conversion to another religion”.

230 Shashi Ammal v. Thaiyu Ammal, AIR 1961 Mad 217. 231 Gobardhan v. Gangabai, AIR 1964 MP 68; Ekradeshwari v. Homeshwar, AIR 1929

PC 128. 232 AIR 1971 SC 234. 233 AIR 1929 PC 128. 234 Supra note 6 at 1345.

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The right to claim maintenance is a personal right and does not

survive the death or conversion which is treated as civil death. It is

only from the time of conversion to another religion, the claimant

would be disentitled to claim maintenance.235 Where a convert who

was entitled to claim maintenance236 before conversion did not file a

suit to enforce that claim but filed a suit after conversion it was held

that she was not entitled even for the period prior to conversion as on

the date of filing the suit the claimant ceased to be a Hindu by reason

of conversion.237

The distinction drawn between cases where a person files a suit

after conversion and becomes a convert pending a suit is unsound in so

far as the claim to maintenance prior to conversion is concerned. The

Section only lays down that a person is not entitled to claim

maintenance if she ceases to be a Hindu. It has not the effect of

depriving her of the right to maintenance which she had when she was

a Hindu. The principle of conversion amounting to civil death was not

rightly invoked in this connection.238

3.2.2.1.10 Amount of Maintenance May be Altered on Change of

Circumstances

25. Amount of maintenance May Be Altered On Change of

Circumstances:

“The amount of 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”.

235 Ibid. 236 Section 24 of the Hindu Adoption and Maintenance Act, 1956. 237 Sunderambal v. Subbiah Patel, AIR 1963 Mad 260. 238 Supra note 6 at 1345.

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3.2.2.1.10.1 Scope of Section 25 of the Hindu Adoption &

Maintenance Act, 1956

As per Section 25 of the Hindu Adoption and Maintenance Act,

1956, theamount of 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. The maintenance can under

this Section, altogether be stopped if circumstances justify the same.

In Shashi Ammal v. Thainyu Ammal,239 Madras High Court held

that the right conferred under Section 25 supersedes any contract to

the contrary. The fact that the rate of maintenance was fixed by

compromise decree makes no difference. It is apparent that Section 25

confers ample power on the Court to vary, modify or even discharge

any order fixing the amount of maintenance made by a decree of the

Court even though it only states that the amount of maintenance may

be “altered” subsequently if there is a material change in the

circumstances justifying such action.240

This Section confers a power on the Court to modify a decree

already passed awarding maintenance, or an agreement between the

parties already entered into for payment of maintenance either by

increasing or decreasing the quantum provided there are changed

circumstances justifying the alteration. This is an enabling provision

as there may be a change in the financial position either of the person

liable to pay or of the claimant. The powerto alter the prior decree or

agreement includes a power to annul the same if the circumstances

warrant such exercise of power.241

239 AIR 1964 Mad 217 240 AIR 1964 Mad 217. 241 Dattubhat v. Tarabai, AIR 1985 Bom 106.

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A distinction is made between a lump sum amount fixed as

maintenance for life and a lump sum-payment to the maintenance

holder as a consideration for relinquishment of the right of

maintenance. In the latter case the right to maintenance itself ceases

from the time of receipt of the lump sum whereas in the former case,

that right continues till her life, though there is an agreement not to

claim enhancement even under changed circumstances. Accordingly it

was held that in the former case Section 25 will apply and the Court

has power to alter the decree passed or agreement entered into even

prior to Act and that in the latter case the claimant cannot invoke

Section 25.242

3.2.2.1.10.2 Court May Take Judicial Notice of Subsequent Event

It is the duty of the ‘Court to take notice of the subsequent post

suit events and it may call to mould the decree to shorten the litigation

to alter the amount in the same suit so as to shorten the litigation.

Even a Court of appeal of facts can do so even when they have arisen

subsequently provided that such an action does not cause prejudice to

either party.243

3.2.2.1.10.3 Procedure to Claim Enhancement

In order to have the maintenance altered under this Section the

procedure is by way of suit. If the maintenance had been fixed by

agreement or decree and it contains a provision for varying the amount

by another agreement or by way of application to amend the decree,

then the party may get it altered either by agreement or an application

for amendment as the case may be.244

3.2.2.1.10.4 Inapplicability of Res Judicata

242 Sashi Ammal v. Thaiyu Ammal, AIR 1964 Mad 217. 243 Kiran Bala Saha v. M. Changiah Chetty, AIR 1967 AP 30. 244 Neelakanta Muthuraja v. Chinnammal, 2000 (1) HLR 145 (Mad).

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As the right of claiming enhanced maintenance statutorily

granted to the plaintiff under Section 25 of the Hindu Adoptions and

Maintenance Act, there is no question of res judicata arising in the

suit and the suit will have to be decided on its own merits. The amount

of maintenance, whether fixed by a decree of Court or by agreement,

may be altered, subsequently if there is a material change in the

circumstances justifying such alteration.245

3.2.2.1.11 Debts to be Given Priority

Section 26 of the Hindu Adoption and Maintenance Act, 1956

states that Subject to the provisions contained in Section 27 debts of

every description contracted or payable by the deceased shall have

priority over the claims of his dependants for maintenance under this

Act.246

3.2.2.1.12 Maintenance When To Be a Charge

A dependant’s claim for maintenance under this Act shall not be

a charge on the estate of the eased or any portion thereof, unless one

has been created by the will of deceased, by a decree of Court, by

agreement between the dependant and owner of the estate or portion,

or otherwise.247

The object of these sections is to safeguard the interest of the

creditors of the deceased. It states that the debts of every description

contracted or payable by the deceasedshallhave priority over the

claims of his dependants for maintenance under this Act and that

priority is subject to the provisions contained in Section 27 which says

that a claim for maintenance shall not be a charge on the estate of the

deceased or on any portion thereof unless die charge is created by the

deceased under his will or by a decree of a Courtor byagreement

245 Leelamma (K.M.) v. Govindappa (S.) B.E., I (1996) DMC 82 (Kar). 246 Supra note 6 at 1348. 247 Ibid.

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between the dependant and the deceased owner of the estate or

otherwise. It follows, if the deceased created a charge under a will, or

a Court created a charge under a decree, or where there was an

agreement between the dependant and the deceased under which a

charge was created, the charge created over the property or part

thereof of the deceased takes priority to the debts contracted or

payable by the deceased. On the other hand if there was no charge for

maintenance of a dependant over the estate of the deceased, the debts

will have precedence for their satisfaction against the estate.248

3.2.2.1.13 Effect of Transfer of Property on Right to

Maintenance

Section 28: “Effect of transfer of property on right to

maintenance.

Where a dependant has a right to receive maintenance out of an

estate, and such estate or any part thereof is transferred, the right to

receive maintenance may be enforced against the transferee if the

transferee has notice of the right or if the transfer is gratuitous; but

not against the transferee for consideration and without notice of the

right”.249

This Section states that where a dependant has a right to receive

maintenance out of an estate or part thereof, it can be enforced against

such property in the hands of a transferee if the transferee has notice

of the right of maintenance or if it is gratuitous transfer. But it cannot

be enforced against a transferee for consideration and without notice

of the right. This Section applies to the case of a dependant and not to

the wife, children, aged or infirm parents. This Section is almost

248 Ibid. 249 Section 28 of the Hindu Adoption and Maintenance Act, 1956.

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similar to the amended Section 39 of the Transfer of Property Act of

1882.250

Even in a case where the transfer is for valuable consideration

but the transferee has notice of the right of maintenance, the claim can

be enforced. So, for depriving a claimant from enforcing the claim

against a transferee the transferee must show that the transfer is for

consideration and he has no notice of the right of maintenance.251

3.2.2.1.13.1 Scope of Section 28

Section 27 of the Hindu Adoption and Maintenance Act, 1956

deals with the charge when created on the property by any Court when

awarding maintenance to the dependant for enforcement of the right of

maintenance of the dependant whereas Section 28 deals with what may

be called implied charge in favour of the dependant for his or her right

of maintenance on the estate of the deceased against whom the

dependant of the deceased can claim maintenance against his heir or

heirs under Section 22 of the Act. Section 27 intends to create a

charge where none existed previously under the Hindu law prior to

enforcement of this Act.252

3.2.2.1.13.2 Conditions

The following conditions have to be fulfilled by the dependant

before a dependant can invoke Section 28 of the Act, namely,

(a) The claimant must be a dependant as defined in s. 21 of

the Act.

(b) He or she is entitled to have the right to receive

maintenance out of the property transferred.

250 Supra note 6 at 1348. 251 Kapur Kaur v. Kishan Singh, AIR 1970 Punj 270; Baljinder Singh v. Gurcharan

Singh, 1995 (1) HLR 327 (P&H). 252 Rama Swami Gounder v. Bhagyammal, AIR 1967 Mad 457.

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(c) The transfer is either gratuitous or if the transfer is for

consideration, the transferee had the notice of the right of

the claimant to receive the maintenance out of that

property transferred. Therefore, if any, of the above three

conditions are not attracted to a given case, Section 28

would not apply.253

A wife who is entitled to maintenance and is living in a portion

of the joint family property is not a licensee in that house and she has

a right to enforce her right in that property even against the transferee

under Section 39 of the Transfer of Property Act.254

3.2.2.1.13.3 Charged Property Only Liable For Maintenance of

Wife

The property of the husband has been sold in execution of a

decree passed against the husband and surplus sale proceeds are lying

in Court by way of deposit. The wife cannot claim the said surplus

amount for the payment of the maintenance ordered in her favour. She

can enforce her claim on the charged property and the judgment debtor

husband was alone entitled to the said surplus sale proceeds.255

3.2.2.1.13.4 Dependant When Cannot Enforce Section 28 of the Act

The dependants have been granted decree for maintenance and

have been ordered to recover the same from the transferee from the

transferor against whom the dependant claimed maintenance. The

Family Court granted the decree and also the benefit of Section 28 of

the Act to the dependant. But the High Court in appeal has held that

the dependants have neither established right of maintenance against

the transferee of the property nor did they prove that the transfer was

253 Parul Bala Dassi v. Bangshi Dhar, AIR 1971 Cal 270. 254 Basudev Dey Sarkar v. Chhaya Dey Sarkar, AIR 1991 Cal 399. 255 N. Subhai Rai v. N. Nageswaramma, AIR 2002 AP 237.

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gratuitous or even if for consideration had notice of the right of

maintenance the High Court set aside the order of the Family Court.256

3.2.2.2 Maintenance under the Hindu Marriage Act, 1955

Besides the provisions of maintenance contained in the Hindu

Adoption and Maintenance Act, 1956, the Hindu Marriage Act, 1955

also contains the provisions related to maintenance which are entirely

incidental to the right to claim maintenance out of the matrimonial

proceedings. It is one of the ancillary reliefs, which may be granted by

Court while the matrimonial proceedings are pending in the Court. The

nature of right which will be elaborately discussed in the present

chapter may be categorised as:

• Maintenance Pendente Lite/ Expenses of Proceedings

• Permanent Alimony and maintenance

3.2.2.2.1 Maintenance Pendente Lite and Expenses of

Proceeding

Section 24 of the Act Contemplates the provisions related to

provision of maintenance during the pendency of the proceedings and

thereof making the provision for expenses of the proceedings in order

that the claimant may not have any kind of financial constrain in order

to litigate their due claim. It can be termed as a support system to the

indigent spouse to contest the proceedings and to meet the needs of the

hour.

“24. maintenance Pendente Lite and Expenses of Proceedings.-

Where in any proceeding under this Act it appears to the Court

that either the wife or the husband, as the case may be, has no

independent income sufficient for her or his support and the necessary

expenses of the proceeding, it may, on the application of the wife or 256 Vijayan v. Sobhana, 2007 (54) AIC 764 (Ker).

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the husband, order the respondent to pay the petitioner the expenses of

the proceeding such sum as, having regard to the petitioner’s own

income and the income of the respondent, it may seem to the Court to

be reasonable.

Provided that the application for the payment of the expenses of

the proceeding and such monthly sum during the proceeding, shall, as

far as possible, be disposed of within sixty days from the date of

service of notice on the wife or the husband, as the case may be”.257

3.2.2.2.1.1 Object

The object of Section 24 of the Hindu Marriage Act, 1955

providing for maintenance Pendente Liteto a party in the matrimonial

procedure is obviously to provide financial assistance to the indigent

spouse to maintain herself or himself during the pendency of the

proceedings and also to have sufficient funds to carry on the litigation

so that the spouse does not unduly suffer in the conduct of the case

due to shortage of funds. This object of this provision is to be applied

at the discretion-of the Court, having regard to the facts and

circumstances of the case.258 The husband is bound to defray the wife’s

cost of any proceedings under the act and to provide for her

maintenance and support pending the disposal of such proceedings.259

It is also recognised that when the wife has got the separate means

sufficient for her defence and subsistence, she should not be entitled

to Alimony or the cost of litigation and if the husband has neither

property nor the earning capacity, the Court would not award any

interim Alimony.260 In the case titled Nirmla Tiwari v. Shobharam

Tiwari,261 the object and scope of the Section 24 was beautifully

257 Section 24, The Hindu Marriage Act, 1955. 258 Dudhiben v. Nathabhai, 1998 (2) Civ LJ 443 (Guj). 259 Supra note 3 at 1020. 260 Ibid. 261 1986(1) HLR 324.

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highlighted as: “this provision is a measure of social justice which is

specially enacted to protect the interest of either spouse and it

squarely falls within the constitutional sweep of Articles 14, 15

particularly Article 15(3) and Article 39-A of the Constitution, so that

even one of them either wife or husband may not feel monetarily

handicapped in the event of matrimonial crisis between them and to

live and lead their life normally”.262

In enacting Section 24 of the Act, Legislature has provided a

special provision for awarding interim maintenance and the expenses

of the proceedings for the contesting husband or wife, if he or she has

no independent income to maintain himself or herself.263

3.2.2.2.1.2 Scope of Application Under Section 24

The scope of Section 24 is limited to provide means to a spouse

who does not have independent source of earning to contest the

matrimonial proceeding. The provisions of Section 24 are confined to

allowing maintenance Pendente Lite and litigation expenses by the

indigent spouse against other.264 The scope is limited that the benefit is

to be claimed during the pendency of the proceedings and not after

once the proceedings are disposed of.265 The availability of free legal

aid to the claimant will also not disentitle her to claim the expenses

for the proceedings.266

During the proceedings for divorce, the wife may claim

maintenance Pendente Lite under Section 24 of the Hindu Marriage

Act, 1955 and Permanent Alimony under Section 25 of the Hindu

Marriage Act, 1955 after the decree. She cannot have any recourse for

maintenance under the Hindu Adoptions and Maintenance Act, 1956

262 Ibid. 263 Krishnakant v. Reena, AIR 1999 Bom 127. 264 Bhanwar Lal v. Kamla Devi, AIR 1983 Raj 229 265 Supra note 3 at 1020; Also see K. Lavanya v. G. Venkataran, AIR 2011 Mad 31. 266 Pramesh Babu v. Usha, AIR 2003 Mad 281.

– 143 –

because such Act pre-supposes that the marriage tie between the

parties remains intact.267

Even if the wife files a composite application under Sections 24

and 25 of the Hindu Marriage Act, that is, Interim maintenance and

Permanent Alimony, the Court can treat such application as one under

Section 24 of the Act till the time of passing of the decree and so far

as the claim made in the said application with regard to Section 25 of

the Act, the same can be determined at the time of passing of the

decree.268

The proceedings under Section 24 of the Hindu Marriage Act

1955 is mainly an interlocutory application and not an original

proceeding and granting of meagre or no maintenance and expenses of

proceedings would occasion failure of justice for the superior Court to

interfere.269 Averments made in an application which are though

supported by affidavit would not assume the shape of evidence in

absence of any specific order in that regard and any benefit which has

been claimed on the basis of such averments in the petition cannot be

held to be proper.270

3.2.2.2.1.3 Husband and Wife are Used in Descriptive Sense

Under Sections 24 and 25 of the Act, the word husband and wife

are used in descriptive sense, despite of their actual legal status. It is

pertinent to mention here that, even in the case of decree of nullity

under Section 11 or 12 of the act, the parties will stand to be husband

and wife and will be entitled to claim relief under the Sections.271

267 Pandit Rao v. Gayabai, AIR 2001 Bom 445; Chand Dhawan v. Jawaharlal Dhawan,

AIR 1993 SC 1375. 268 Amit Kumar Sharma v. VIth Additional District & Sessions Judge, AIR 1999 All 4. 269 Smt. Santosh v. District Judge, Meerut, AIR 2005 All 240. 270 Sujata Rajput v. Rajesh Baru, AIR 2014 J&K 39. 271 Arya Kumar Bal v. Ila Bal, AIR 1968 Cal 276.

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But there may arise a case, where in the proceedings, the one

party denies the factum of marriage i.e. their status of being husband

wife, is the Court entitled to give relief under Section 24 of the act in

an application made by either of the parties? In the case titled Ravi

Kumar v. Nirmala Devi,272 is a case where the husband filed a petition

for the restitution of conjugal rights, but the same was contested by

the wife on the ground that she was not married and moreover she

denied the factum of marriage. But later she filed an application under

Section 24 of the Act, claiming the maintenance and the expenses for

the proceedings. In the case, D.S. Twatia, J. has very rightly and

beautifully opined that since the respondent denied the factum of

marriage, and status of husband and wife, she can only claim expenses

for proceedings and not maintenance, for she could not blow hot and

cold in the same breath. It was stated by the learned judge that ‘where

the order for the grant of maintenance is dependent upon an

application being moved by the spouse, and then the onus rest with the

spouse who is claiming maintenance to prove the status along with the

essential components of Section 24.273

3.2.2.2.1.4 Consideration of Social Security Benefit By Foreign

State

In a proceeding for maintenance Pendente Lite, before the

Indian Court, if the wife and child live in a foreign country and the

fact that they are provided with social security benefit, while living in

USA cannot be considered and the husband is not relieved of the

responsibility to pay Alimony Pendente Lite by the Indian Court in a

divorce proceeding pending in the Indian Court.274

272 1978 HLR 796. 273 Ibid. 274 Vijayalakshmi v. Manjit Singh Bhalla, (1989) 1 Current Civil Cases 69 (Del).

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3.2.2.2.1.5 Both Husband and Wife Are Doctors

When both the husband and the Wife are doctors, the prayer of

the wife for maintenance Pendente Lite was dismissed by the Family

Court as the wife had sufficient income and was attending a famous

clinic in Madras. The High Court did not interfere with that refusal.

But for the school going minor child, the High Court awarded �2,500

Per Month for maintenance Pendente Lite for such child.275

3.2.2.2.1.6 Alimony Pendente Lite in a Petition under Or. 9, r. 13,

CPC

Even duringthe pendency of the application for setting aside the

ex parte decree passed against the wife she can apply for maintenance

Pendente Lite.276

3.2.2.2.1.7 Fresh Application for Maintenance Pendente Lite To

Be Filed After Remand

The Trial Court dismissed the husband’s petition for divorce

without disposing of the pending application of the wife for

maintenance Pendente Lite and the High Court in appeal set aside the

decree for dismissal of petition by the trial Court and directed the trial

Court for fresh hearing of the divorce petition. The question arose if

the petition under Section 24 of the Hindu Marriage Act, 1955 would

get revived or if the wife would have to file fresh application. It is

held by the Andhra Pradesh High Court that on the suit having been

revived, the petition under Section 24 of the Act automatically stood

revived and the trial Court has to dispose of such application prior to

hearing the divorce petition on merits after remand and the wife was

275 Dr. E. Shanti v. Dr. H.K. Vasudev, 2006 (1) Civ. L.J 814 (Kant). 276 Rashidev Anand v. Devinder Kaur, AIR 1985 Del 40.

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not required to file a fresh petition for maintenance Pendente Lite and

Litigation Expenses.277

3.2.2.2.1.8 Some Essential Consideration for Fixing the Amount

of Maintenance Pendente Lite

3.2.2.2.1.8.1 Sufficient Funds of Both the Spouse for

Maintenance

The word ‘sufficient’ is of some significance and it connotes

that the interne of the applicant must be such as to be sufficient for a

normal person’s sustenance as well as to meet the expenses of the

proceeding. So, it does not mean some income of the petitioner

howsoever meagre, to disentitle the petitioner from getting relief

under Section 24 of the Act. At the same time, the Court should bear

in mind another principle, namely, that the order should not Wreck out

as a penalty crippling the party from prosecuting the proceeding.278

However, when the wife did not have any independent income

and the wife stated before the Court that the husband was a professor

of a Government College and was drawing �25,000 Per Month, the

husband disputed the amount before the Family Court, The High Court

without going into such dispute has held that the husband has

sufficient fund to maintain his wife and daughter and directed the

husband to pay �5,000 without going into such controversy when the

husband is proved to have sufficient fund being a professor of a

Government College.279

3.2.2.2.1.8.2 Status of the Husband

It is settled principle that the wife and child would be entitled

to same status which they would have got in the event they would have

277 N. Veeralakshmi v. Hanumantha Rao, AIR 1978 AP 6. 278 Hema v. S. Lakshmana Bhat, AIR 1986 Ker 130. 279 Smt. Jaspal Kaur v. Manjit Singh Saliya, AIR 2006 (NOC) 1075 (MP).

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been living with the husband and the father.The benefit available to

them will be a relevant consideration while determining the amount of

maintenance.280

Certain High Courts have held that the husband is not bound to

maintain the wife to the same extent and to bring her status at the

same level, which she was enjoying staying at her husband’s house. If

she herself is living handsomely and which is sufficient to live a good

life, she would not be entitled to get any maintenance.281 The wife did

not have sufficient independent income to maintain herself. But she

was having customary ornaments received during marriage. Court

cannot refuse to award maintenance Pendente Lite simply because the

wife pulls on for some time by selling the ornaments. The earning

capacity of the wife is problematic and no husband can compel the

wife to maintain herself by selling the ornaments and the husband

cannot be relieved of maintaining his wife by compelling her to earn

her livelihood.282

3.2.2.2.1.8.3 Misconduct of the Wife

While considering the application for the maintenance Pendente

Lite, the only consideration before the Court is inability of the spouse

to maintain her for the want of financial means at the level of the

husband. Other consideration such as alleged misconduct of wife is

not a relevant consideration.283

3.2.2.2.1.9 Maintenance of the Minor Child

In a petition under Section 24 of the Act making provision for

the maintenance Pendente Lite for the wife, the wife could include the

maintenance and education of the children, for which no separate

280 Gurvinder Singh v. Harjit Kaur, 1999(1) Civ. L.J 228 (P&H). 281 Manish Kumar v. Mrs. Pratibha, AIR 2012 (NOC) 265 (Del). 282 Radhikabai v. Sahuram Awatrai, AIR 1970 MP 14. 283 Bijul Parag Dave v. Parag Dave, AIR 1999 Bom 237.

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application under Section 26 of the Act is required to be made and

looking to the provisions and object of the act, the same cannot be

restricted to the husband and the wife alone.284

So, even if Section 24 of the Act is applicable only in case of

wife to receive maintenance Pendente Lite and expenses of the

proceeding under the Act, the Court is not precluded in fixing the

quantum of maintenance by taking into account all the circumstances

of the case including the maintenance of the minor child or children to

arrive at a proper solution having particular regard to the facts of the

case.285

The Orissa High Court in an earlier decision in Smt. Bulbul

Semantray v. Dhirendra Kumar Samantray,286 also held that simply

because in the application filed under Section 24, Section 26 was not

added, in support of the prayer for interim maintenance for the minor

child, that should not have the sole reason or criteria for the Court

below to refuse the interim maintenance to the minor child.

However, during the pendency of the divorce proceedings, the

wife cannot claim under Section 24 of the Act maintenance of the

minor child alone. So, such a claim under Section 24 only for

maintenance of the minor child is not maintainable as it is a provision

for maintenance pendent Lite of the wife.287 This is because Section 24

could not be read in isolation. If there are minor children living with

the wife, the husband has the obligation to maintain such children also

and the Court in a petition under Section 24 of the Act can award

maintenance Pendente Lite to wife as well as to minor children.288 A

284 Amit Kumar Sharma v. VIth Additional District and Sessions Judge, AIR 1999 All 4,

Sunita Tasera v. Lalit Kumar Jagarwal, AIR 2012 Raj 82. 285 Eknath v. Nirmala, 1996 (1) Cri LJ 878, also see, Vijay Kumar Sinha v. Smt.

Anamika, AIR 2012 (NOC) 368 (Pat) , AIR 2014 (NOC) 266 (Guj). 286 AIR 2003 Ori 154. 287 Akella Rama Murty v. Akella Sitalakshmi, 2006 (2) Civ LJ 894. 288 Krishnakant v. Duresh Nandini, 2005 (3) Civ LJ 541 (MP).

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minor child cannot be refused to the relief of interim maintenance on

the ground that he was not a party to the divorce petition.289

3.2.2.2.1.10 Court has Power to Modify its Order

The order of maintenance passed under Section 25 of the Hindu

Adoption and Maintenance Act, 1955 may be varied, modified or

rescinded in specified situations, whereas no such provision exists in

Section 24 of the Act. Section 24 operates only during the matrimonial

proceedings whereas Section 25 can be invoked on the conclusion of

the substantive proceedings. So, the setting of Section 24 and Section

25 of the Act clearly brings out these two provisions operate in

different areas. It is for this reason; Section 24 precedes Section 25 of

the Act. The Act itself treats these periods differently. Any

proceedings under the Act appearing in Section 24 of the Act will

cover the proceedings under Section 25 of the Act and a spouse can be

granted interim maintenance for vigorously pursuing his or her

petition under Section 25 of the Act also.290

The quantum of interim maintenance cannot be such which if

determined once can under no circumstance be altered. The change in

the circumstances relevant to the matter may call for revision of the

order. So, there is no express or implied bar in the provision for

exercise of the jurisdiction in a deserving case where change of

circumstances would need modification or enhancement of the order of

interim maintenance.291

When there is no express provision in Hindu Marriage Act, 1955

to vary maintenance granted under Section 24 of the Act, the provision

of the General Clauses Act would come into play and as per Section 21

of the General Clauses Act the power to issue includes power to add, 289 AIR 2014 (NOC) 593 (P&H). 290 Yogeswar Prosad v. Jyoti, AIR 1981 Del 99. 291 Supra note 3 at 1032; Also see Lakshmi Priya Rout v. Kama Prosad Rout, AIR 1992

Ori 88.

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amend, vary or rescind orders. Therefore, subsequent application for

enhancement is not barred by the principles of res judicata. The

Family Court is within its jurisdiction to revise the order of interim

maintenance subsequently because of change of circumstances.292

Laying down the above principle Madras High Court has

observed that even if the earlier application filed for enhancement was

not processed, the subsequent application filed seeking the

enhancement is not barred by res judicata. Originally the interim

maintenance was awarded for �2,500 Per Month. As the husband is

now employed as Treasury Manager earning �60,000 Per Month as

salary, as alleged by the wife, but no salary certificate was produced

by the husband to prove the contrary. Therefore, the Interim

maintenance is enhanced to �8,000 Per Month from �2,500 Per

Month.293

The husband is a software Engineer and is expected to earn

more than �10,000 Per Month as per prevailing circumstances. The

minor child is studying in Kindergarten School and for attending to

the school, the wife had to pay �500 Per Month. So the trial Court

awarding �3,000 to the wife and �1,000 for the child Per Month did

not commit any illegality. So, the High Court refused to interfere with

the order.294

It was held by the Court that all the able bodied persons are

expected to maintain their wives when the wife is herself not in the

position to do so. So in a particular case where the husband and his

family has got the various properties in order to maintain themselves

and his wife efficiently, altering an order under Section 24 of Hindu

292 Supra note 67 at 591. 293 J. Anitha v. J. Prakash, AIR 2010 (NOC) 340. 294 K. Arun v. Bhubaneswari, AIR 2009 (NOC) 502 (Mad).

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Marriage Act, 1955 and enhancing the amount from �1500 Per Month

to �3000 Per Month is held to be valid one.295

3.2.2.2.1.11 Maintenance Pendente Lite after Execution of

Agreement for Lump Sum Amount

In case where the wife makes an application for the Alimony

Pendente Lite and litigation expenses after the execution of an

agreement for the payment of Lump sum amount as payment towards

permanent Alimony as per the mutual agreement executed between the

parties, which is duly signed by the witnesses as well, in such a case

the order of Court refusing the further maintenance and legal expenses

is proper.296

3.2.2.2.1.12 Consequences of Disobedience of the Order of

Maintenance Pendente Lite

Rayden on Divorce297 has observed that if a husband who has

been ordered to pay maintenance pending suit or costs to his wife

neglects to do so, she may apply for husband’s divorce suit dismissed

or to have it stayed. Vice Versa, if the husband fails to pay the amount

of interim maintenance during an appeal, which was filed by the wife

against the refusal to grant the divorce, the defence of husband is

liable to be struck off and wife will be entitled to get divorce or any

amount as compensated if any.298

3.2.2.2.1.13 Contempt Proceedings if Can be Initiated Against the

Defaulter

Refusal to pay interim maintenance according to the Court’s

order is to be contempt.299 However, the Delhi High Court has

295 Renu Devi v. Krishan, AIR 2012 (NOC) 145 (P&H). 296 K.Duraisamy v. Malarkodi, AIR 2012 (NOC) 226 (Mad), Also see AIR 2014 (NOC)

7 (Raj). 297 Rayden, Laws and Practise inDivorce and Family Matters, 815 (1979). 298 Rani alias Raj Kaur v. Balwinder Singh alias Gora, AIR 2014 P&H 34. 299 Narinder Kaur v. Pritam Singh, I (1985) DMC 181.

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observed that this view of law amounts to stretching the things too far,

that the defaulter should not be subjected to such harsh treatment and

that the husband cannot be convicted for contempt of Court in case if

he fails to make the payment of interim maintenance and litigation

expenses ordered by the Court under Section 24 of the Act.300

3.2.2.2.1.14 Caution to be Exercised Before Dismissing the Case or

Striking off Defence for Disobedience of the Order of

Maintenance Pendente Lite

No doubt that contumacious conduct or deliberate act not to

comply with the order of maintenance Pendente Lite and Litigation

Expenses can be dealt with sternly by dismissing the application when

the defaulter is the petitioner or striking out the defence of the

respondent who is such a defaulter, as the case may be. But for

exercising such power, the Court is to give clear finding based on

reasoning and material to that effect. Since the Court has the power to

stay the proceedings by invoking inherent power or dismiss the same,

the power should be exercised by dozes. It should first stay the

proceedings and give opportunity to the defaulter to pay. If even after

such opportunity is given, the defaulter continues it, the Court may

dismiss the application of the defaulting party as a petitioner in the

matrimonial proceedings, if it comes to the conclusion that non-

payment was deliberate and contumacious.301

3.2.2.2.1.15 Rule of One-Third of Income of The Husband

Any decision in relation to the fixation of Amount must

necessarily depend upon the facts and circumstances of each case and

there commit expected to be some fix regulated. In India, in case of

ordinary or small incomes, a rough working rule adopted by some

courts under some analogous legislation is to access the amount at

300 V. Anand v. Dr. Major Arun Anand, AIR 1987 Del 120. 301 Binayak Chandra Padhy v. Kamala Padhy, AIR 1987 Ori 167.

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one-third of the aggregate income of the husband or the wife, less the

wife’s income.302 However, the rule as to one-third of the income of

the husband is a rule of thumb and not applicable in all the cases. The

other liabilities of the husband have to be taken into consideration.

When the husband is relatively of low income group and merely has a

house to live in, the quantum of maintenance can be comparatively

less.303

The Court is to see the reasonable means of the wife and

unmarried daughter living with her. It is always fair test which the

Court has to apply the provisions of Section 25, Hindu Marriage Act,

1955 and those of Section 23 of the Hindu Adoptions and Maintenance

Act, 1956. Considering the above, the Delhi High Court awarded

permanent Alimony to the wife and daughter to �10,000 Per Month

and �10 lakhs for marriage of the daughter. In that case, the husband

went abroad leaving the wife and minor daughters in charge of the

wife. Therefore, he sought divorce under the provisions of the Hindu

Marriage Act, 1955 and got the divorce. Considering all the relevant

circumstances like the status of the parties, their financial conditions,

their means, their way of life, their future necessities, the claim of

maintenance of the wife for herself and the daughters at the rate of

�10,000 Per Month was quite justified, �10 lakhs for marriage of the

daughters was also proper.304

3.2.2.2.1.16 Section 24 of the Hindu Marriage Act, 1955 and Sec

125 CrPC

Section 24 applies to the Hindus only, whereas Section 125,

Criminal Procedure Code, 1973 is applicable to the parties regardless

of their religion. Under Section 24, of the Hindu Marriage Act, 1955

any of the spouses can avail of the right of maintenance whereas 302 Supra note 3 at 1021. 303 Dayarama v. Veenu, 1985 (1) HLR 3088 (Bom). 304 Veena Kalia v. Jatinder Nath Kalia, AIR 1996 Del 54.

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Section 125, the Criminal Procedure Code, 1973 only wife is entitled

against the husband and not the husband. Various distinctive features

are available between an application for an order under Section 125,

Criminal Procedure Code and one under Section 24 of the Hindu

Marriage Act. Section 24 is for the period during which the

matrimonial proceedings are pending in the Court. Whereas the

maintenance allowance under Section 125, Criminal Procedure Code is

not for a limited periods but is for a period during which the wife is

neglected by the husband.305 Himachal Pradesh High Court has opined

that award of maintenance Pendente Lite under Section 24 of Hindu

Marriage Act, 1955 will not be proper, if there is already an order

under Section 125 the Criminal Procedure Code, 1973. If the wife is

given maintenance under Section 24 of the Hindu Marriage Act, 1955,

order under Section 125 the Criminal Procedure Code, 1973 may be

kept in abeyance to survive it on ceasing of operation of the former

order.306 Whereas Rajasthan High Court has held that these two

provisions are different having different scope.307 Interim maintenance

will cease to have effect after the main proceedings are disposed of

except for recovery of any arrears of maintenance if remained unpaid,

whereas order passed under Section 125 CrPC will continue to remain

in force even after disposal of the case unless it is set aside by

corresponding revision.308

3.2.2.2.1.17 Limitation For Filing An Application for Claiming

Alimony Pendente Lite

Even if an application under this Section has been presented

after one year of filing an appeal, cannot be disallowed merely on this

ground as not time for presenting an application has been laid down by

305 Puspa Devi v. Anup Singh, 1985 (1) HLR 494 (All). 306 Kamlesh Kumari v. Aman Kishore, AIR 2012 HP 33. 307 Sunita Tasera v. Lalit Kumar Jagarwal, AIR 2012 Raj 82. 308 Kondaparthi Leelavathi & Anr. v. State of A.P. & Anr, AIR 2012 (NOC) 139 (A.P).

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the law during which the application has to be made. Hence same can

be presented anytime during the pendency of the proceedings. The

same can also not be rejected not the grounds that It was not moved

during the trial proceedings. 309

3.2.2.2.1.18 Application Confined to Spouse

The claim for maintenance under this Section can only be

confined to the spouses and at the best to the children and no other

person can claim maintenance under this Section.310

3.2.2.2.2 Concept of Permanent Alimony Permanent Alimony is

the expression

Under the English Law in the context of provision ordered to be

made by the Court to a wife on her petition for judicial separation

being granted. Behind the relevant statutory enactment in England,

there is a historical development of law.

“Section 25: Permanent Alimony and maintenance:

(1) Any Court exercising jurisdiction under this Act may, at

the time of passing any decree or at any time subsequent

thereto, on application made to it for the purpose by

either the wife or the husband, as the case may be, order

that the respondent shall pay to the applicant for her or

his maintenance and support such gross sum or such

monthly or periodical sum for a term not exceeding the

life of the applicant as, having regard to the respondent’s

own income and other property, if any, the income and

other property of the applicant the conduct of the parties

and other circumstances of the case], it may seem to the

309 Supra note 3 at 1021 ; Also see, Sunita Tasera v. Lalit Kumar Jagarwal, AIR 2012

Raj 82. 310 Id., at 1031.

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Court to be just, and any such payment may be secured, if

necessary, by a charge on the immovable property of the

respondent.

(2) If the Court is satisfied that there is a change in the

circumstances of either party at any time after it has made

an order under sub-Section (1), it may at the instance of

either party, vary, modify or rescind any such order in

such manner as the Court may deem just.

(3) If the Court is satisfied that the party in whose favour an

order has been made under this Section has re-married or,

if such party is the wife, that she has not remained chaste,

or, if such party is the husband, that he has had sexual

intercourse with any woman outside wedlock, it may at

the instance of the other party vary, modify or rescind

any such order in such manner as the Court may deem

just.311“

3.2.2.2.2.1 Scheme of Section 25

Section 25, of the Hindu Marriage Act, 1955 as it now stands is

quite exhaustive and it conveniently be called a Code by itself. It is

divided into three Sub-Sections. The Section refers to the payments to

be made under it by the one spouse to the other and the words

“Permanent Alimony” is not used, though these are used under

marginal notes. The term Permanent Alimony is the expression used

under the English Law in the context of provision order to be made by

the Court for the wife on her petition of judicial separation being

granted.312

311 Section 25, The Hindu Marriage Act, 1955. 312 Supra note 3 at 1034

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3.2.2.2.2.2 Scope of Permanent Alimony under the Hindu

Marriage Act, 1955

The right of Permanent Alimony and maintenance under Section

25 of the Hindu Marriage Act, 1955 is a special and independent right

given to the indigent spouse and is conditional. It pre-supposes the

existence of a decree under the Act affecting the matrimonial relations

between the parties. So, if there is no decree under any of the

provisions of the Hindu Marriage Act, then the question of granting

permanent Alimony and maintenance does not arise.313

“The Section, although recognises the right of the wife and the

husband to be in Equali Jura in the matter of maintenance, when the

decree is passed granting relief in any matrimonial cause, is primarily

intended to secure the maintenance and support for the wife in whose

favour the decree is made, granting any of the reliefs under the Act. In

majority of the cases that comes before the Court the decree is for the

judicial separation or the divorce on the ground of delinquency of the

other spouse who is charged with having committed adultery or cruelty

or with desertion. The obligation of the husband to provide for his

wife maintenance and support doesn’t come to an end simply on

passing of decree for any of the reliefs which the Court is entitled to

pass . . .”.314

3.2.2.2.2.3 Whether it’s Compensation or Permanent Alimony

While making an application under Section 12 of the Hindu

Marriage Act, 1955, if the word compensation is mentioned, it will

amount to claim of the Alimony by the wife.315

3.2.2.2.2.4 Application underSection 25 If Filed After the Decree

Must Be Filed Within -Reasonable Time 313 Sardabi v. Shabti Lal, 1989 (1) HLR 110 (MP). 314 Supra note 3 at 1032. 315 Moumita Roychoudhury v. Abhijit Chatterjee, AIR 2014 Ori 5.

– 158 –

It is true that an application for permanent Alimony and

maintenance need not be filed simultaneously with passing of the

decree and it can be filed after the passing of the decree. However,

such application has to be filed within a reasonable time after the

decree. Unless the delay is such as to amount to abandonment of the

right to claim permanent Alimony and maintenance, such application

should be granted.316 Further in case of absence of any pleadings or

application by the wife for grant of permanent Alimony, any grant of

the same will not be held to be proper.317

3.2.2.2.2.5 Object of Section 25 of the Act

Prior to passing of the Hindu Marriage Act, 1955, the Hindu law

did not provide for dissolution of the Hindu Marriage which was

treated as a sacrament and indissoluble union. The Hindu law has been

statutorily modified by the Hindu Marriage Act, 1955 by introducing

the concept of divorce on the various grounds stated in the Act. The

concept of divorce has been statutorily introduced by the said Act and

the concept of permanent Alimony seems to be that if the marriage

solemnized under the Hindu Marriage Act, 1955 which was at one time

regarded as indissoluble is allowed to be dissolved in the larger

interest of the society, the same consideration of public interest and

the social welfare also require that the divorced wife should not be

thrown in the street, but should be provided with permanent Alimony

and the maintenance in order that she may not be compelled to adopt a

disrespectable life.318

It will have to be accepted as a hard reality that the position,

status and life of divorced Hindu wife particularly in rural areas so far

is very miserable and pitiable. She is economically and socially poor

316 Erwin Klein v. Kathleen Klien, AIR 1954 Cal 406; Santhammal v. S. Thangaraj, AIR

1975 Kant 23. 317 Supra note 3 at 1038; Also see AIR 2014 (NOC) 450 (Chh). 318 Dharamshi Premji v. Bai Shankar Kanji, AIR 1968 Guj 150.

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and has great disadvantage inasmuch as the society look down upon

her. Most of the community where the divorce is not customary, a

divorced wife is a cursed human being abhorred in society. It is well

known that their parents cannot do much in the matter of maintenance

of divorced daughter. The parents also face problems of life of such

daughters in all matters and ultimately divorced daughter is left alone,

a burden on herself. She may not have any shelter to live in and bread

to eat, particularly when the divorced women is illiterate. That adds

salt to injury because she is unable to earn anything. The remarriage

for such woman is very difficult, a far-fetched proposition in most of

the communities. In such circumstances, permanent Alimony and

maintenance to her would be a substantial relief to her. That is the

object of Section 25 of the Hindu Marriage Act, 1955.319

The legislature modified the principle of old Hindu law when

the wife used to be entitled to maintenance by husband throughout her

life whether she possessed property or not. But since divorce and

judicial separation were granted in certain cases, it was equally

necessary to incorporate in the Act itself the right of maintenance of

the deserving spouse. This provision equips the needy woman with the

right of maintenance when her matrimonial right under the Act is

exercised by her or against her.

3.2.2.2.2.6 Maintenance Cannot be Denied on the Plea That The

Wife Left Her House on Her Own Accord

A decree for divorce has been passed and the same has attained

finality as the husband did not assail the decree. However, when the

wife prayed for permanent Alimony and maintenance the husband

pleaded that as the wife left his house on her own accord, she is not

entitled to Alimony under Section 25 of the Act. It is held that after

the decree for divorce had been passed the husband cannot refuse to

319 Shanti Devi v. Raghav Prakash, 1985 (2) HLR 301 (Raj).

– 160 –

pay the permanent Alimony on the plea that the wife had left her

house on her own accord. Husband being an Engineer the divorced

wife has to be maintained befitting the status of the appellant husband.

So, the award of permanent Alimony at the rate of �1500 Per Month

by the trial Court has been upheld by the High Court.320

3.2.2.2.2.7 Meaning of Term Any Decree

“Any Decree” for the purpose of Section 25 of the Hindu

Marriage Act, 1955 means any decree under the Act. It seems that it

would be decree which granted relief under the Act. It means not only

a decree for Restitution of Conjugal Rights or Divorce, but it also

includes a decree for nullity of void marriage. In void marriage

normally a woman is duped in contracting marriage and made to go

through a mode of marriage and to lose her maidenhood under belief

brought out by false pretext that she was going to be lawfully married

wife, when really he had a wife living and when that marriage is

subsisting. Therefore, the intention of the legislature is that it could be

entitled such a woman to claim maintenance under Section 25, of the

Hindu Marriage Act,1955when the marriage is declared void.321

Even a decree by which the marriage ties is snapped by divorce

should not deprive the wife the Alimony and should not suffer further

tribulation of starvation without grant of permanent Alimony.322

It is observed that the wife even found guilty of being unchaste

or living in adultery should not be left without allowance under

Section 25 of the Act to pursue the same course of life. It is pointed

out that she should be saved from her imminent and terrible temptation

which might otherwise assail her, that the wife should know and be

made to feel that her livelihood depends upon her leading a chaste life 320 Upendra Chandra Patnaik v. Soubhagini Mohanty, AIR 2009 (NOC) 1019 (Ori). 321 Dayal Singh v. Bhajan Kaur, AIR 1973 P & H 44. 322 Kuldip Chand v. Geeta, AIR 1977 Del 124; N. Varalakshmi v. N.V.H. Rao, AIR 1978

AP 6.

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in future, that there is nothing in Sub-Section (1) of Section 25 of the

Act to suggest that a Hindu wife against whom the decree has been

made on the ground of unchastity, cannot be awarded maintenance. It

is pointed out that Section 25 of the Hindu Marriage Act is not a

punitive measure but to reform people against whom decree for

judicial separation or divorce has been passed on any of the grounds

mentioned in Section 10 or Section 13 of the Act and that the Court

has the jurisdiction to award maintenance in case of judicial

separation or divorce on the ground that the wife had voluntary sexual

intercourse with a person other than her husband or was guilty of

adultery.323

The circumstances under which a decree on the ground of

unchastity is passed may differ from case to case, in one case; a single

fall from virtue may brand a person unchaste, while in other case,

persistent unchaste conduct may remain unnoticed for a long time.

Similarly, a person may be victim of a helpless or an uncontrollable

situation in one case and while another case may reveal defiant

conduct. There may be case when the other spouse directly or

indirectly is a contributory party to the unchaste conduct of the wife.

No two situations are comparable, much less complex and human

behaviour inscrutable and complicated. What is more, in country like

ours, inhabited by social groups with diverse social norms, customs

and practices, ethical norms, moral concepts and cultural patterns, no

uniform standard of personal and social conduct including that of

matrimonial fidelity can be laid down. Much less can such conduct be

judged by a single norm. So, the Madhya Pradesh High Court has

concluded that even when a decree for divorce is passed in favour of

the husband on the ground that the wife has given birth to child by

323 Supra note 67 at 626.

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way of adultery, wife can be awarded Permanent Alimony and

maintenance under Section 25 of the Act.324

3.2.2.2.2.8 Wife and Husband

The words “wife and husband” in Section 25 Literally would

refer to both the parties of a subsisting marriage. A woman who has

obtained the decree for dissolution of marriage from the husband

cannot be strictly to be treated as a wife. Similarly, when a husband

has obtained the decree for divorce cannot be strictly called a husband

any more. A Hindu male or female who have entered into a voidable

marriage and the same has been declared a nullity under Section 12 of

the Act cannot also be described as husband and wife when such a

decree is passed. Therefore, it logically follows the expression “wife

and husband” in Section 25(1) of the Act cannot be strictly described

as husband and wife after such decree. The expression “wife and

husband” have not been chosen to signify an existing relationship at

the point of time when the application under Section 25 of the Act has

been made. These words have been used as convenient terms referring

to the parties who have gone through a ceremony of marriage whether

or not such marriage is valid or subsisting, just as the word “marriage”

has been used in the Act to include a purported marriage which is void

ab initio.325

The applying the principles laid down in Sections 21, 22 and 25

of the Hindu Adoptions and Maintenance Act, 1956, the wife in her

new status as widow can seek the enhancement of her maintenance

against the heirs of her husband enforceable against the estate left by

the husband in the hands of his heirs.326

3.2.2.2.2.9 Assessment of the Quantum

324 Hargovind Soni v. Ramdulari, AIR 1986 MP 57. 325 Hemraj v. Leela, AIR 1989 Bom 146. 326 Ginder Kaur v. Channo, 1985 (2) HLR 52 (P & H).

– 163 –

This Section particularly lays downs various factors which are

to be considered by the Court while granting the Permanent

maintenance to the claimant, leaving the matter to the discretion of the

Court while stressing that the means of the party and the conduct of

the partiesshould be given a relevant consideration. It is well said that

there can be no fix set of rules for the varying cases. There cannot be

any rigid yardstick for the purpose.In the matter of, income and

resources of a spouse to be taken in consideration, while assessing the

permanent Alimony, “Halsbury”327 states as follows:

“Generally, all forms of income received by the spouse

including voluntary allowances, and allowances or benefits received as

an incident of unemployment are taken into account by the Court in

determining whether any and, if so, what amount of periodic payments

should be ordered. In assessing the financial position of the spouses,

the Court is not bound to have, regard only to his or her actual income

and property but will take into account the spouse’s earning capacity .

. . When a spouse has unnecessary and unproductive assets, the Court

may attribute to him or her a notional income in respect of those

assets, although when the spouse receives income from the assets on

which he or she has no control (for example, under the discretionary

trust), the Court should not evaluate such income otherwise than on

the actual receipt”.328

While taking into consideration the four aspects as laid down in

Section 25 of the Act, it is observed that the object of providing

maintenance is that none of the parties should suffer to get adequate

justice from the Court on account of his or her financial difficulties

and should not be deprived of maintaining himself or herself after the

decree. While awarding the maintenance, the Court is required to keep

in view as to whether the spouse claiming was himself or herself

327 Halsbury, Laws of England, Vol. 13, 502-503 (1994). 328 Ibid.

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earning so to at the other spouse should not be saddled with the

monetary burden.329

3.2.2.2.2.9.1 Income of the Claimant

Therefore, one of the factors which the Court has to take into

consideration is the income and property of the claimant, if any. It has

been has observed that the income of the claimant and the existence of

other properties in his or her hand would be a relevant circumstance in

determining the quantum of permanent Alimony under Section 25 of

the Act. It is pointed out that normally when the petitioner wife is

earning or employed and has sufficient income to maintain herself, she

cannot claim permanent Alimony against her husband under Section 25

of the Act.330

3.2.2.2.2.9.2 Conduct of the Party

Though conduct of the party is not relevant for considering of

the quantum under Section 24 of the Hindu Marriage Act, 1955, but

for considering the permanent Alimony, the conduct of the party is a

relevant consideration. The term ‘Conduct’ has been used in a wide

sense and includes (i) Conduct of the parties towards each other; (ii)

Conduct of the parties towards marriage, such as, which party was

responsible for the breakdown of the marriage: and (iii) Conduct of

the parties towards the Court.331 If the conduct of the applicant is

found to be not proper, the Court may either refuse to grant permanent

Alimony or grant a lesser amount, than what it would have otherwise

granted. Similarly if the conduct of the respondent is found to be

improper, the Court may make him or she to pay more than the Court

would normally award.332 Whereas Allahabad High Court has held that

329 Ramlal v. Surinder Kaur, 1995 (1) Cri LJ 204 (P&H). 330 S. Rashmi v. Pradeep Kumar, II (1994) DMC 25 (Bom). 331 Paras Diwan & Peeyushi Diwan, Modern Hindu Law, 211 (2012). 332 Varalakshmi v. M.V. Harymantha Rao, AIR 1978 AP 6; Yageswar Prosad v. Jyoti

Rani, AIR 1981 Del 99.

– 165 –

decree of divorce on grounds of cruelty or desertion on part of wife

would not be a relevant criteria to refuse a wife to grant Alimony u/s

25 of the Act and it is wide enough to empower the Court to grant

Alimony to an erring wife.333

Even though if the wife became unchaste after she had obtained

permanent Alimony under Section 25(1) of the Act, then in view of

Section 25(3) of the Act, the Court on being moved may either vary,

modify or rescind such order of maintenance passed under Section

25(1) of the Act. But Section 25(1) of the Act contemplates that the

wife remains chaste at the time when she is applying for permanent

Alimony. But she was found guilty of the act under Section 10(1)(f) of

the Act and the husband obtained the judicial separation on the ground

that he had illicit intercourse with a person other than her husband.

Then it is clear that on the date of passing of the decree of the judicial

separation and at the time of praying for permanent Alimony the wife

was not chaste. There is no question of the wife not remaining chaste

when she was already unchaste. So, the wife in such a case cannot get

permanent Alimony under Section 25(1) of the Act.334 But in such case

also the husband has to prove that the wife is living a life of

unchastity/ adultery and the failure on the part of the husband to prove

so will prove futile over his stand not to provide maintenance under

the Section.335 Similarly, in a case, where the divorce was granted by

the Court on ground of cruelty by wife, the wife would be entitled

towards her maintenance claim; if it is proved that she has no separate

or independent income to maintain herself.336

Only when the conduct of the wife was so grossly wilful or bad

as not to induce the Court to grant any permanent Alimony, yet the

333 Sunil Kumar Sharma v. Smt. Meera Sharma, AIR 2011 All 29. 334 Dr. Raja Gopalan v. Rajamma, AIR 1967 Ker 181; Amar Kanta Sen v. Sobhana Sen,

AIR 1960 Cal 438. 335 Nirmal Chandra Dash v. Smt. Janaki Dash alias Panda & Ors, AIR 2013 Ori 75. 336 Smt. Sangeeta Shukla v. Ganesh Shukla,AIR 2014, Chh 81.

– 166 –

Court without considering the matters in depth and without taking into

consideration as to how the wife was maintaining herself for all the

years, the Court should not have hastily refused to grant the wife

permanent Alimony. So, the High Court set aside the order of the trial

Court and directed the trial Court to consider all the aspects of the

case and in the light of the observation made by the High Court to pass

the order under Section 25 of the Act on merits.337

The Court may mention that under Section 25(3) of the Act

unchastity of the wife may disentitle her to get the permanent

maintenance from her husband. But a wife who has been divorced on

account of the wife having withdrawn from the society of the husband

without any just cause cannot be regarded as a disqualification to

claim Permanent Alimony. But her earlier conduct in not obeying the

decree of restitution of conjugal rights cannot be ignored altogether in

arriving at the quantum of the Permanent Alimony to be granted in her

favour.338

3.2.2.2.2.9.3 Respondent’s Own Income and Other Properties

The Court has also to take into consideration the respondent’s

own income and other property of the respondent, if any, while

estimating the amount of permanent maintenance. The Court would not

focus its attention only on the income of the respondent only on the

previous year preceding the making of the order but would normally

have regard to the earning of the previous years and probable earnings

in the future. A mode is often adopted to take into account average of

earnings during the previous years. It is generally not the gross

income of the husband but carry home salary or disposable income

which should be considered for assessing the quantum of maintenance.

The disposable income would be arrived at after deducting the

expenses of earning it. There are other deductions also which the 337 Seshadri v. Jayalakshmi, AIR 1963 Mad 283. 338 Nathulal v. Smt. Maria Devi, AIR 1971 Raj 208.

– 167 –

Court has to take into account, such as, income tax, super tax and

other allied taxes.339

While granting maintenance, it is the duty of the lower Court to

see as to what was the social and financial status of the husband, his

wife and children.340 When the husband is deliberately withholding the

financial condition so that no proper maintenance can be given to the

wife and children, the Court has to make proper estimate from all the

facts and circumstances of the case.341 In case of a housewife, who has

got no income from any other sources even though no claim has been

made by the wife for maintenance for her livelihood nor for expenses

for prosecuting appeal from the husband, the Court may enhance the

amount of permanent Alimony in such a case.342

No arithmetical rule can be adopted in the matter of fixing the

amount of maintenance and relevant facts, depending on the facts of

the case, have to be considered, namely, the income and property of

the husband, and income and property of the wife etc. In the exercise

of its discretion, the Court has to select or emphasise such of the facts

as is appropriate to the facts of the each particular case, in addition to

the prime factors which touch the conduct of the parties. It is out of

great category of circumstances, many of them small by itself that a

reasonable deduction can be made in arriving at the quantum.343

3.2.2.2.2.10 Lump Sum Maintenance Under Section 25 of The Act-

Maintainable

If the order is made for Permanent Alimony in a lump sum, it

cannot be rescinded. In case of monthly or periodical payments, the

339 Shanti Devi v. Raghav Parkash, 1985 (2) HLR 301 (Raj). 340 Smt Indu Kushwah v. Manoj Singh Kushwah, Aman Panchal v. Smt. Rashmi, AIR

2014 MP 71, AIR 2014 Uttr 27, Also see AIR 2014 (NOC) 372 (Bom). 341 Moumita Roychoudhury v. Abhijit Chatterjee, AIR 2014 Ori 5, Vidula v. Bhal

Chandra, 1991 (2) Civ LJ 819. 342 Smt. Niru Samrah v. Jatin Chander Samrah, AIR 2014 Gau 79. 343 Smt. Pravati Mishra v. Jagadanath Mishra,1994 (3) Civ LJ 559.

– 168 –

Court can rescind the order as it relates to future payment only, but if

the order of payment in lump sum, it cannot be rescinded which would

amount annulment of a past liability and not only with the future one.

The past liability is all integral part of the future liability under such

an order. In such a case, it can be modified.344

In Reynold Rajamani v. Union of India,345 has observed:

The law which grants decree of divorce must

secure much measure of economic independence. It

should be so whatever be the ground of divorce

whether it is by mutual consent, irretrievable break

down of marriage or even the fault of the woman

herself.

3.2.2.2.2.11 Refund of the amount of Maintenance

Section 25(2) of the Hindu Marriage Act, 1955 has no provision

for refund of the amount of maintenance paid to the wife even if the

maintenance was being paid by the husband even after the remarriage

of the wife and the husband without knowing of such remarriage was

unable to file the application for rescinding the order of payment. In

such circumstances, the divorced wife even after remarriage was

continuing to receive from her first husband the permanent Alimony

which she was not entitled to get as soon she had been remarried, Act

is silent about it.346

“But Section 38 of the English Matrimonial Courts Act, 1973

provide for orders of repayment in such circumstances. Relevant

portion of Section 38 of the English Matrimonial Courts Act, 1973

reads as follows:

344 Nanigopal Chakravarty v. Renubalan Chakravarty, AIR 1965 Ori 154. 345 AIR 1982 SC 1261. 346 Supra note 67 at 650.

– 169 –

“38. Orders for repayment in certain cases of the sums paid

after cessation of order due to remarriage. (1) Where—

(a) A periodical payments or secured periodical payments

order in favour of a party to the marriage (hereafter in

this Section as payment order) has ceased to have effect

by reason of remarriage of that party;

(b) the person liable to make payment under the order or his

or her personal representative made the payments in

accordance with it in respect of a period after the date of

remarriage in the mistaken belief that the order was still

subsisting, the person so liable or his or her personal

representative shall not be entitled to bring proceedings

in respect of the cause of action arising out of the

circumstances mentioned in paragraphs (a) and (6) above

against the persons entitled to payments under the order

or her or his personal representative, but instead may

make an application against that person or her or his

personal representatives under this Section”.347

3.2.2.2.2.12 Maintenance under Section 25 of the Act and Section

125 CrPC

It has been laid down that the wife is not entitled for double

bonanza under Section 25 of the Act and Sec 125 of the Code of

Criminal Procedure 1973 and once it is settled to pay permanent

Alimony under Section 25 of Act, he cannot be double burdened under

Section 125 Code of Criminal Procedure.348

347 Section 38 of the English Matrimonial Courts Act, 1973. 348 Shambhu Nath Pathak v. Kanti Devi, AIR 2014 Pat 147.

– 170 –

3.2.2.2.2.13 Effect of Remarriage on Permanent Alimony

After the amendment of Section 25(3) by virtue of Section 17 of

Marriage Laws Amendment Act, 1976, Liability of husband to pay

maintenance to wife does not cease by the remarriage of the wife.349

3.2.2.2.2.14 The Court may Also Incorporate Expenses For

Children

While fixing the amount of Permanent Alimony, the Court may

also take in to consideration various factors regarding betterment of

children such as their educational expenses350 and marriage expenses

of children.351

3.2.2.2.2.15 Maintenance and the Right to Residence

Section 25 of Hindu Marriage Act, 1955 is a welfare legislation

and It is been widely accepted that right of maintenance under the

Matrimonial Law also includes Right of Residence. Wife cannot be

denied the Right of Residence in the matrimonial home.352The right of

the wife to enforce her Right of Residence in the matrimonial law has

been recognized under the Shastric law as well. In case of divorced

wife the question arises Is that whether a divorced wife of tenant

would have a right to claim right of residence and contest the eviction

proceeding conducted by the landlord against her husband? The

answer to this question will be made on the basis of terms of divorce.

Such wife can defend the eviction proceedings if the provision for her

residence is made in the rented matrimonial home and not otherwise.353

In case the decree of divorce doesn’t make any provision to residence

349 Narendra Kumar v. Sujata Devi,AIR 2011 Pat 135. 350 Dr. Mrs Malathi Ravi v. Dr. B.V. Ravi AIR 2014 SC 2981, AIR 2014 (NOC) 561

(Ori). 351 AIR 2014 (NOC) 561 (Ori). 352 Komalam Amma v. Kumara Pillai Raghavan Pillai, AIR 2009 SC 636. 353 B.P.Achala Anand v. S. Appi Reddy, AIR 2005 SC 986.

– 171 –

no privity of contract could be imputed between the landlord and the

wife, so as to give her right to defend the proceedings.354

3.2.2.2.2.16 No Order Can be Make if the Petition is Dismissed

The various High Courts355 have opined that if the petition is

dismissed no application or petition for the Permanent Alimony and

maintenance can be made under Section 25. Whereas certain decisions

are dissenting356 from this point of view as according to the courts, the

word used in the Section is ‘at the time of passing the Decree’ which

does not mean only when the petition is allowed and the Court has the

power to grant the maintenance even if the petition is dismissed,

because it is ‘decree’ in the either case and there is no point giving the

word ‘decree’ a restricted meaning.

Clearing the air over the same, honourable Apex Court in Chand

Dhawan v. Jwahar Lal,357 has laid down that if the main petition is

dismissed the Court has no power or jurisdiction to award the

permanent maintenance.

3.2.2.2.2.17 Order Can Be Make in Favour of Unsuccessful Spouse

The language of this Section is wide enough to empower the

Court to make an order of allotment of Permanent Alimony or for the

Permanent maintenance in the favour of the respondent against whom

the decree has been passed and there is nothing to prevent the Court

from making any such order if in the exercise of the discretion vested

in the Court deems it just to do so having regard to all the relevant

354 Rama Chakrobha v.Rani Bannerjee, AIR 2005 SC 3557. 355 Bombay HC in Shantaram v. Malti Devi, AIR 1964 Bom 83, Orissa High Court in

Akasam v. Paribati, AIR 1967 Ori 163, Rajasthan HC in Pursotam v. Devki, AIR 1973 Raj 3, P&H HC in Gurcharan v. Ramchandra, AIR 1979 P&H 206, M.P HC in Badri Prasad v. Urmila, AIR 2001 MP 106.

356 Jaggannnath v.Lalitha, AIR 1989 AP 8. 357 (1993) 3SCC 406.

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facts and circumstances of the case including the conduct of the

parties.358

The discretion vested under this Section is judicial and would

be exercised only where the Court is satisfied that such order is

required to be made in the interest of justice. The same consideration

would apply where the Court passes the decree for any other relief

under the Act and the respondent, though shown to have been guilty of

the matrimonial offence or to have been wrong, can ask for the

Permanent Alimony or maintenance even when the dissolution of

marriage by divorce or annulment of marriage is decreed against the

respondent.359

3.2.2.2.2.18 Procedure While Granting Permanent Alimony

Court while fixing Permanent Alimony is required to frame

issues and fix them accordingly. It is also required to take into account

necessary pleadings and evidence regarding income of the spouse

adduced by the parties and in case the procedure is not followed, the

order in such a case cannot be held to proper one.360

3.2.2.2.3 Maintenance and Custody of the Child Under the

Hindu Marriage Act, 1955

Section 26 of the Hindu Marriage Act, 1955, which deals with

the provision of maintenance and the Custody of Minor Children, has

been incorporated in the present study, considering the plight of

unfortunate Children especially the daughters, who have to suffer

because of the separation between the parents.

“Section 26 of the Hindu Marriage Act 1955 states as follows:

358 Supra note 3 at 1042. 359 Id., at 1043. 360 AIR 2013 ( NOC) 72 (Chh).

– 173 –

26. Custody of children. In any proceeding under this Act, the

Court may, from time to time, pass such interim orders and make such

provisions in the decree as it may deem just and proper with respect to

the custody, maintenance and education of minor children,

consistently with their wishes, wherever possible, and may, after the

decree, upon application by petition for the purpose, make from time

to time, all such orders and provisions with respect to the custody,

maintenance and education of such children as might have been made

by such decree or interim orders in case the proceeding for obtaining

such decree were still pending, and the Court also from time to time

revoke, suspend or vary any such orders and provisions previously

made:

Provided that the application with respect to the maintenance

and education of the minor children, pending the proceeding for

obtaining such decree, shall, as far as possible, be disposed of within

sixty days from the date of service of notice on the respondent”.361

3.2.2.2.3.1 Legislative Change

Proviso to Section 26 has been inserted whose whole purpose is

to see that the application for maintenance and education of the

children is disposed expeditiously and as far as possible within sixty

days of the date of the service of such application to the respondent.

3.2.2.2.3.2 Scope

Section 26 enables the Court to pass such interim orders from

time to time and make such provisions in the decree as it may deem

just and proper with respect of custody, maintenance and education of

the minor children.

361 Act 26, The Hindu Marriage Act, 1955.

– 174 –

3.2.2.2.3.3 Extent of Power of the Courts Under Section 26 of the

Act

Section 26 enables the Court not only to make order for the

custody and maintenance and education of the minor children but also

to revoke, suspend or vary any of the orders passed by it and

provisions for custody and maintenance made earlier. The primary and

paramount consideration for the Court for making such orders would

be the welfare of the child.362 Therefore, for considering the custody it

enjoins upon the Court to consider the wishes of the children

whenever that cause is possible, when the child has attained the age of

understanding. The Court should also bear in mind Section 6 of the

Hindu Minority and Guardianship Act, 1956 in which the custody of

the children below five years is concerned and when the custody of the

child is prayed for by the mother in a suit for judicial separation, the

Court should accede to such prayer unless it considers that such

custody of minor child below five years of age would not fulfil the

interest of the minor child.363

3.2.2.2.3.4 Interim Maintenance of Minor Child In a Petition

Under Section 24 of the Act

So far as the interim maintenance of the child is concerned

specific provision has been made in Section 26 of the Act. But it is

common knowledge that the wife praying for interim maintenance for

herself under Section 24 of the Act also prays for interim maintenance

for the minor child living with her.364

362 Radhabai v. S.K. Mudaliar, AIR 1971 Mys 69. 363 Ibid. 364 Sec 24, The Hindu Marriage Act, 1955

– 175 –

3.2.2.2.3.5 Application for Minor Child Alone

When in a petition under Section 24 of the Act, the wife does

not apply for maintenance for herself but only for the minor child, it is

held that such an application under Section 24 of the Act is not

maintainable and it is made clear that interim maintenance for the

child alone has to be prayed for under Section 26 of the Act. Such a

claim to the child can be maintained in a petition under Section 24 of

the Act only if the wife prays for maintenance for herself as well as

for her minor child.365

3.2.2.2.3.6 Orders under Section 26 of The Hindu Marriage Act to

be Passed For Minority Only

Section 26 of the Hindu Marriage Act, 1955 clearly provides

that the Court may after the decree upon the application by the

petitioner for the purpose, make from time to time all such orders and

provisions with respect to the custody, maintenance and education of

such children as might have been made by such decree and the Court

was also from time to time revoke, suspend, or vary any such order,

previously made. It cannot be disputed that such order relating to the

custody, maintenance etc. for the child is limited only during minority.

So, if the child attains majority, Section 26 has given power to the

Court from time to time revoke, suspend or vary such order. It is held

by the Bombay High Court that according to the provisions of Section

26 of the Act maintenance order for the child can only be passed

during minority of the children and when they attain majority,

naturally provision of Section 26 shall not apply and the Court can

365 Akella Rama Murthi v. Akella Sithalakshmi, 2006 (2) Civ LJ 894.

– 176 –

revoke such order for which specific provision is there in Section 26

of the Act.366

3.3 Concept of Maintenance under Muslim Law

Under Muslim Law, the concept of the maintenance can be

found as quite different from the other prevalent systems of

maintenance in other communities. As unlike other systems, the

liability in case of Muslim law arises only if the claimant is person of

No Means. The Muslim male is under an absolute obligation to

maintain his wife and he cannot escape the liability to maintain her

even though she is rich and person having full means for her

subsistence. But in other cases the obligation is not absolute and arises

only if the claimant has no means or property for subsistence. The

Muslim male is though under personal obligation to maintain his

children and parents as in the case of Hindu Law, but unlike the case

of wife and similarly as Hindu Law, the obligation is not absolute and

depends on the financial condition of claimant, i.e. children and

parents. If the children are having their own source of income or

property, they won’t be entitled for any maintenance. Similarly, the

liability to maintain one’s parents arises only if the person is of easy

circumstances and parents are destitute. In case of liability to maintain

the other relations, the liability is limited to the extent of share of

inheritance and that too with in degree of prohibited relationship.367

The Muslim jurists have not kept legal and moral obligations distinct.

The moral and legal duties are almost inextricably mixed. The right to

maintenance is not merely a moral but also a legal obligation.368 No

366 Alka Bhaskar Bakre v. Bhaskar Sachidananda Bakre, AIR 1991 Bom 164. 367 B.R.Verma, Islamic Law Personal- Being Commentaries on Mohammedan Law at

147 (1986). 368 Neil B.E.Baillie, Digest of Mohammedan Law, Vol. I, 441 ( 1875).

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person who is poor is bound to provide maintenance nor is a person

who is not necessitous entitled to receive maintenance.369

The obligation to maintain and bear the expenses under the

Muslim law are reasonably restricted, as the principle lying

underneath is that no one should himself suffer the monetary loss in

order to maintain the other people. Altogether the Islam also states

that other than wife, only those people are entitled to be maintained,

who are dependent on others either because of tender age/ old age or

they have actually left with no means of subsistence. The entitlement

to claim the maintenance from some other person only arises in the

extreme case where the person is left with no other alternative, other

than begging.370

3.3.1 Definition of Maintenance under Muslim Law

Maintenance is called in Arabic as Nafaqah371 in Muslim Law,

which, in the language of the law, signifies all those things which are

necessary to the support of life, such as food, clothes and lodging,

although many confine it solely to food. It has been further laid down

that it is payable in three causes of maintenance established by law.

(1) Marriage: (2) Relationship (3) Property (i.e. in case of a slave).372

According to Hedaya ,373 maintenance is and includes, “All those

things which are necessary to the support of life, such as food, clothes

and lodging; many confines it solely to food”.

According to Durr-Ul-Mukhtar,374 “Nafaqa Literally means that

which a man spends over his children; in law it means feeding,

clothing and lodging; in common use it signifies food”.

369 Paras Diwan & Piyushi Diwan, Muslim Law in Modern India, 280 (2008). 370 Mufti Samiya Tabasum, Status of Muslim Women in India, 208 (2013). 371 Thomas Patrick Hughes, Dictionary of Islam (1895) available at http://answering-

islam.org/Books/Hughes/, (accessed on 12 December 2014). 372 Ibid. 373 Hamilton, The Hedaya or Guide, 140 (1957).

– 178 –

According to Baillie,375 “maintenance signifies all those things

which are necessary for the support of life and includes suitable food,

raiment and lodging”.

According to Fatwa-I-Alamgiri,376 “maintenance comprehends

food, raiment and lodging, though in common parlance it is limited to

first”.

According to Tahir Mahmood,377 “maintenance of wife (called

Nan-Nafaqa in Hindustani) includes:

(a) Food;

(b) Clothing; and

(c) And a separate place to live (in the husband’s house)”378

According to Dr. Paras Diwan,379 ‘maintenance’ includes food

and lodging and, in the case of’ the wife, the use of a separate

apartment to which no one except the husband may have access

without her consent, and if the husband is rich, the cost of maintaining

one female servant of the choice of the wife.

As clear from the above definitions given by various eminent

jurists in the Muslim Law, it is clear that the word ‘maintenance’ not

only includes food, clothing, lodging and but also cost of education.

Further the word ‘maintenance’ does not exclude other necessary

expenses for mental and physical well-being of a minor according to

the status in society of the family. As ideas of social needs and social

justice alter, no such hard and fast rule can be laid down for all time,

as to what should be the standard of education to form part of

374 Muhammad Ala-ud-din Haskafi,The Durr- Ul-Mukhtur, 316 (1992). 375 Supra note 368 at 441. 376 Fatawa-I-Alamgiri, Vol. I, 732. 377 Tahir Mahmood, The Muslim Law in India, 79 (1980). 378 Ibid. 379 Supra note 369 at 281.

– 179 –

maintenance. In the present state of our society, which is rapidly

advancing in all directions, education up to the higher secondary stage

cannot be said to be extravagant, so as to be excluded from

maintenance.380

3.3.2 Muslim Law of Maintenance

The Muslim law of maintenance may be discussed under the

following heads:

• The wife or the husband

• The children

• The parents and grandparents

• Certain other relations

3.3.2.1 Wife

Similarly as Hindu law, a Muslim Male is under an absolute

obligation to maintain his wife, irrespective of the fact whether she

has got her own enough means of subsistence or not. Whether she is

rich or poor is not going to deter or affect the husband liabilities

towards the wife to maintain her. Wife’s maintenance has the priority

over the husband’s obligation to maintain children or any other

relation.381 In the words of Schacht,382 “the maintenance of the wife

comprises food, clothing and lodging, i.e. a separate house or at least

a separate room which can be locked, for the well-to-do also a servant;

she is not obliged to bear any part of the expenses of the matrimonial

establishment”. A husband is bound to maintain his wife in any case,

380 Ahmadellah v. Mafizuddin Ahmad, AIR 1973 Gau 56. 381 Supra note 377 at 80. 382 Schacht, Introduction to Islamic Law, 167 (1965).

– 180 –

whether she is Muslim or non-Muslim, poor or rich, young or old if

not too young to be unfit for marital intercourse.383

The Muslim wife is entitled to claim maintenance arises in the

following two cases:

(i) On account of status arising out of valid marriage;

(ii) On account of agreement prior to marriage entered by the

parties to the marriage, or between the parents of the

respective parties.

The Muslim Female’s right to claim maintenance can be broadly

covered and discussed under the following two heads:

(i) Right to maintenance during the subsistence of Marriage;

and

(ii) Right of maintenance after the dissolution of Marriage.

3.3.2.1.1 Right to Maintenance During The Subsistence of

Marriage

According to the ordinary right and events, the right of wife to

claim maintenance comes first than any other relation.384 As stated

earlier also, the wife’s right to claim the maintenance and the

husband’s obligation towards providing her maintenance, is absolute

in nature, irrespective of the fact that the wife is female with the

means and have got enough property for her subsistence and even

though the husband is necessitous and having no means to maintain

himself.385

In addition to the legal obligation to maintain, there may be

stipulation in the marriage contract which may render the husband

383 Aquil Ahmad, Mohammedan Law, 232 (2004). 384 Fyzee, Outlines of Mohammedan Law, 202 (1974). 385 Supra note 373.

– 181 –

liable to make the special allowance to the wife, such as Kharcha-I-

Pandan, Guzara, Mewakhori etc.

3.3.2.1.1.1 Conditions to Claim Maintenance During the

Subsistence of Marriage

(i) Marriage must be valid;

(ii) Wife has attained puberty;

(iii) She should be faithful and obedient.

(a) Marriage Must Be Valid

Maintenance is obligatory in all lawful (Sahih) Marriages.386 In

order of wife to claim maintenance, the marriage between the parties

must be valid (Sahih) one and not Batil (Void) or Fasid (Irregular)

marriage. But in case the marriage is irregular on the want of

witnesses, the maintenance can be claimed by the wife and she will be

entitled for maintenance in such a case.387

Even Hon’ble Supreme Court388 has held that under the Muslim

law a distinction has been made between Void Marriage (Batil) and

Irregular Marriage (Fasid). Since a marriage which is temporarily

prohibited may be rendered lawful once the prohibition is removed,

such a marriage is irregular i.e. Fasid and not Void (Batil). The bar of

unlawful conjunction (Jama Bain-al-Mahraman) renders the marriage

irregular and not void. It is pointed out that under Hanafi law as far as

Muslims in India are concerned an irregular marriage continues to

subsist till terminated in accordance with law and the wife and

children of such marriage are entitled to maintenance under Section

125, of the Code of Criminal Procedure, 1973. Muslim husband’s

386 Supra note 377 at 80. 387 Supra note 368 at 414. 388 Chand Patel v. Bismillah Begum, AIR 2008 SC 1915.

– 182 –

marriage with sister of existing wife is an Irregular marriage unless

terminated in accordance with law it continues to subsist.389

(b) Wife Must Have Attained Puberty

The wife will not be entitled to maintenance if she has not

attained puberty. The husband’s duty to maintain commences only

from the date when the wife attains puberty and not before that.390

Under the Shafei law, the wife is entitled to maintenance immediately

on marriage, even though she has not attained puberty. Where a wife is

too young for sexual intercourse and lives with her parents, she has no

right to claim maintenance.391

The principle however is to look only to the state of the wife. If

the wife is adult and the husband is a child or if the husband is sick or

impotent, she would be entitled to receive maintenance.392 If the

husband is impotent and unable to discharge his marital obligations,

how could he fulfil the main object of marriage, more particularly,

under the Mohammedan law where marriage is a sacrosanct contract

and not a purely religious ceremony as in the case of Hindu law. This

would certainly be a very just and reasonable ground on the part of the

wife for refusing to live with her husband, as also in case under the

Hindu law or other laws.393 So also if she goes on pilgrimage with the

husband she would be entitled to maintenance. She should be entitled

to maintenance if she goes on an obligatory pilgrimage with a relation

in prohibited degrees. But maintenance for the period of the journey or

expenses of journey would not be payable in any case.394

389 Ibid. 390 Supra note 384 at 212. 391 Supra note 373 at 141. 392 Supra note 368 at 443. 393 Supra note 369 at 287. 394 Supra note 373 at 141

– 183 –

(c) She Must Remain Faithfull to the Husband

The husband’s obligation to maintain his wife exists only so

long as she remains faithful to him and obeys his reasonable

commands. Although a Muslim wife’s right to be maintained by her

husband is an absolute right yet, she must be faithful and obedient to

him in respect of all the matrimonial affairs. In other words, the right

to be maintained by husband is subject to wife’s corresponding

obligation to be faithful and obedient to her husband. If she leaves her

husband’s place without his permission, she will lose her right of

maintenance.395 “If, when called upon to remove to his house, she

refuses to do so of right, that is, to obtain payment of her dower, she

is entitled to maintenance ; but if she refuses to do so without right, as

when her dower is paid, or deferred, or has been given to her husband,

she has no claim to maintenance”.396

“If a woman be a nashizah or rebellious, she has no right to

maintenance until she returns to her husband’s house. By this

expression is to be understood a woman who goes out from her

husband’s house (manzil) and denies herself to him, in contradiction

to one who merely refuses to abide in her husband’s apartment (beit),

which is not necessary for the purpose of restraint. If, however, the

house her own property, and she forbids him from entering it, she is

not entitled to maintenance unless she had asked him to remove her to

his own house, or to hire a house for her. But when the woman ceases

to be a nashizah or rebellious, she will be again entitled to claim

maintenance”.397 “But the right of the wife to maintenance is subject to

the condition that she is not ‘refractory’ or does not refuse to live with

her husband without lawful cause”.398

395 Dr. Rakesh Kumar Singh, Tetbook on Muslim Law, 159 (2011). 396 Supra note 368 at 442. 397 Ibid. 398 Alhaji A.D. Ajijola, Introduction to Islamic Law, 193 (2007).

– 184 –

(d) Exceptions

“A wife, who refuses herself to her husband, will not be entitled

to claim maintenance unless in the following circumstances:

(a) Where the husband has failed to pay the ‘prompt’ Maher

on her demand; or

(b) Where she has withdrawn from the society of the husband

since he treated her with cruelty.

A wife, who is ‘disobedient’ (nashiza), i.e. who does not abide

by the reasonable instructions of her husband, is not entitled to

maintenance”.399

According to Tayabji: “She is entitled to maintenance from her

husband only when she places, or offers to place, herself in his

powers, so as to allow him free accesses to herself at all lawful times

and obey all his lawful commands”.400

A Muslim wife, who lives separately due to her husband’s

second marriage, is entitled to claim maintenance allowance under the

provisions of Criminal Procedure Code, 1973, but at the same time a

Muslim husband has legal right to contract a second marriage. So in

such a case, if a wife lives separately only on the ground of husband’s

second marriage, the husband too is entitled to file a suit for

restitution of conjugal rights under his personal law. Apparently, there

appears to be a conflict between the Muslim Personal Law and the

provisions of the Criminal Procedure Code, 1973 on the point of

wile’s maintenance whose husband has contracted a second

marriage.401

399 Supra note 377 at 80. 400 Tayabji, Muslim Law, 263 (1968). 401 R.K. Sinha, Muslim Law, 136 (2006).

– 185 –

(e) Revival of Suspended Maintenance

If the conditions laid down remain unsatisfied, the right to

receive maintenance shall remain suspended. But if the cause ceases

(e. g., the wife ceases to be refractory or disobedient) the right would

revive402 and in the case of a Talaq, if the wife is entitled to

maintenance till the expiry of the Iddat. The right would revise for

that period if the causes of suspension are removed.403

3.3.2.1.1.2 The Wife May Sue For Maintenance

If the husband neglects or refuses to maintain his wife without

any lawful cause, the wife may sue him for maintenance, but she is not

entitled to a decree for past maintenance, unless the claim it based on

a specific agreement. She may apply for an order of maintenance

under the provisions of the Code of Criminal Procedure, 1908, Sec.

488, in which case the Court may order the husband to make a monthly

allowance the whole for her maintenance not exceeding �500.404

However, she is not entitled to past maintenance unless; the claim is

based on an agreement by which the husband also agreed to pay the

past maintenance. However, under Shia and Shafei school of

Mohammedan law the wife is entitled to past maintenance also though

there may be no agreement in respect thereof.405

3.3.2.1.1.3 Concept of Maintenance in Mohammedan Law

Maintenance under Islam is providing lodging, clothing etc.

However, emphasis only is on food. But, it does not include any

provision for recreation and engagement. He may, however, provide

such amounts out of his free will and pleasure which if this is

402 Supra note 368 at 442. 403 Id., at 457. 404 Mulla, Muhammadan Law, 351 (2014), but the ceiling of awarding maximum amount

up to 500 Per Month has been abolished by the Criminal Law (Amendment) Act, 2001.

405 Ibid.

– 186 –

provided the wife shall enjoy it. But it is not mandatory for the

Muslim husband to provide for amenities over and above food,

clothing and lodging.406

3.3.2.1.1.4 Maintenance Right Inherent in Marriage Contract

Maintenance right of the Muslim wife is inherent in marriage

contract as Muslim marriage is a civil contract. Under the Muslim law

the right of maintenance of the wife does not cease with the husband’s

imprisonment. In such a case the wife may raise her maintenance on

credit and still have recovered it against her husband. She may even

have recourse to sell her husband’s immovable property in order to

raise her maintenance or to pay off the credit raised on behalf of her

maintenance.407

The right of maintenance of a Muslim wife is inherent and

implied in every contract of marriage. It brings an independent right

and it does not depend on any separate agreement of maintenance. A

Muslim wife may release her husband from the obligation from paying

her maintenance, but such a release would be void as there was no

decree for maintenance against him from the civil Court and

consequently no cause of action for the wife to release the husband of

the obligation to maintain her. In such a case such an agreement is

void being opposed to public policy under Section 23 of the Indian

Contract Act.408 This seems to be somewhat similar to concept of

“Agency of Necessity” which used to prevailed in England under the

Old Law.

3.3.2.1.1.5 Maintenance by Agreement

The husband and wife or their guardians during their minority

may enter into an agreement wherein the wife may claim maintenance

406 Supra note 67 at 399. 407 Ibid. 408 Id., at 400.

– 187 –

from her husband on the happening of a particular or a specified event,

such as, second marriage of husband, ill treatment of the husband and

incompatibility between the husband and wife etc.409

(a) Void Agreement

It is open to the wife to secure an agreement from the husband

to give her separate maintenance in proper case (e.g., in the event of

ill-treatment, or disagreement410 or in the event he not being able to

get on with another wife,411 or on the condition that he would maintain

her in the house of her parents).412 An agreement that he husband

would give separate maintenance to the wife in case of disagreement is

valid.413

(b) Invalid Agreements

It has been held that an agreement for future separation between

the husband and the wife is bad and thus an agreement providing that

the husband would give some maintenance to the wife in the event of

future separation on the desire of the wife or on mere disagreement is

opposed to public policy and would be void under Sec. 23 of the

Contract Act.414

(c) Agreement Against Maintenance

409 Supra note 369 at 294. 410 Ali Akbarv. Fatima, AIR 1929 Lah 660; Khurshed Begam v. Abdul Rashid, AIR 1927

Nag. 139; Muinuddin v. Jamal Fatima, AIR 1921 All 152: Mst. Hamidan v. Mohd Umar, AIR 1932 Lah; Buffatin v. Abdul Salim, AIR 1950 Cal 304; Banney Sahib v. Abbidi Begum, AIR 1922 Oudh 251.

411 Masur v. Azizul, AIR 1928 Oudh 303. 412 Mst. Sakina Faruq v. Shamshad Khan, AIR1936 Pesh 195; also see Shahid Khan v.

Mst. Bilatunuissa, 52 IC 322. 413 Abbas Ali v. Nezamunnessa, 43 CWN 1059. 414 Bai Fatima v. Ali Mohd., ILR 37 Bom 280; Mehr Ali v. Saker Khatun, 7 Bom LR

602; MahmudAli v. Mst. Ghulam Fatima, AIR 1935 Lah 902.

– 188 –

An agreement in the marriage contract, that the wife would not

be entitled to maintenance is void.415 But an agreement would be valid

if a condition to that effect is made in making Khula Mubaratt416

(d) Kharch-i-Pandan or Other Personal Allowance

It is customary in Muslim families of rank, especially in upper

India, to fix a personal allowance for females. This is called Kharch-i-

Pandan,417 or allowance for mewakhori. This resembles the Pin-Money

of tire English law in many respects but is not entirely similar. The

Pin-Money of the English wife has to be spent during coverture by the

advice and at the instance of the husband. No obligation of that nature

is attached to the allowance called Kharch-i-Pandan. An agreement to

pay Kharch-i-Pandan is not opposed to public policy and is payable

even if the wife unjustifiably refuses to return to the husband.418

(e) Agreement With Third Person

Agreements made even with third persons would be enforceable

whether they are made before or after marriage. An agreement with the

mother-in-law providing for an allowance for Mewa-Khori may be

enforced.419 So also a provision for maintenance may be enforced

against the person who guaranteed its payment.420

(f) Terms of Agreements for Maintenance to Be Enforced

Terms of agreements for maintenance are to be given effect to

irrespective of the provisions of the Personal Law. The terms of the

agreement would be binding even if they are in derogation of the

conditions prescribed under the Mohammedan law. Thus, the wife is

415 Jamal J. Nasir, The Status of Women Under Islamic Law & Modern Islamic

Legislations, 108(2009). 416 Supra note 368 at 207. 417 Khawaja Mohd. v. Husaini Begum, ILR 32 All 410 (PC). 418 Ali Akbar v. Fatima Begum, AIR 1929 Lah. 660 . 419 Likhandar Ara v. Hasan Ara, AIR 1936 Oudh 196. 420 Mst. Fatima Bibi v. Lall Din, AIR 1937 Lah 345.

– 189 –

not entitled to maintenance if she makes an unjustifiable refusal to

live with the husband but if maintenance is payable under the terms of

an agreement, she would be entitled to it even though she should

refuse to live with the husband.421

In the absence of an express stipulation, the right to

maintenance would terminate on death or on the expiry of the Iddat of

divorce. If, however, there is an agreement that the wife would be

entitled to maintenance during her life, her right cannot be defeated

during her lifetime by divorce422 and the plaintiff husband cannot

recover possession of the property from his wife during her lifetime

which was settled upon the wife for maintenance.423

(g) Interpretation of Agreement of Maintenance

Under Mohammedan law, marriage is purely a civil contract and

nothing more. Therefore the terms of the Kabinnama must be looked at

and construed in the same way as the provisions in any kind of

contract.424 Gifts or contracts expressed to be for maintenance and

indefinite as regards duration may be shown by the acts of the parties

or other circumstances to be intended to operate in perpetuity but

prima facie they are limited to the life either of the grantor or

grantee.425 The purpose of a grant of maintenance is prima facie an

indication that the grant was intended to be only for the life of the

grantee.426

3.3.2.1.1.6 When Statutory Rights Terminate

The statutory rights of maintenance continue only during the

continuance of the marriage. Whether the marriage is subsisting has to

421 Supra note 417. 422 Muinuddin v. Jamal Fatima, AIR. 1921 All 152. 423 Mydeen Bevi Ammal v. T.N. Mydeen Rowther, AIR 1951 Mad 992. 424 Ahmad Kasim v. Khatun Bibi, AIR. 1933 Cal 27. 425 Kaaim Nansey v. Hemrichs, ILR 24 Bom. 563 (PC). 426 Mohd. Siddiqi v: Risaldar Khun, AIR 1926 Oudh 360.

– 190 –

be determined according to the Personal law. The Magistrate must

enquire into the facts of marriage and its dissolution.427

As soon as the marriage terminates, maintenance must be

disallowed. It is open to the husband to evade payment under the

Section by pronouncing Talaq. A Muslim husband is entitled to

divorce his wife at will and it is not necessary for the husband to

produce a decree of a Civil Court declaring the validity of such

divorce.428 The Magistrate must draw conclusion from the oral and

other evidence produced before him.429 If the statement by the husband

in his written statement that he had already divorced his wife and the

Court finds this plea to be not proved there are authority for the

proposition that such a statement in the written statement or an

endorsement or summons or notice itself operates as an expression of

divorce by the husband and operates as from that moment.430

The order will terminate after Iddat in such a case.431 Such order

becomes ineffective and he must refuse to execute any orders which he

has already passed.432 He becomes functus officio.433

3.3.2.1.1.7 Maintenance of Wife under Personal Law

A Muslim wife, whose husband neglects to maintain her without

any lawful cause, is entitled to file a suit for her maintenance in a

civil Court under her personal lawn She is also entitled to enforce her

right under Code of Criminal Procedure, 1973, When; a wile enforces

her right m a civil Court, the Court applies the rules of Muslim

Personal law in considering her claim, If her claim is justified under

Muslim law, a decree in her favour is passed directing the husband to 427 Abdur Rohoman v. Sakhina, ILR 5 Cal 558. 428 In Re Punjab Lal Chunni lal, AIR 1928 Bom 227. 429 Abdur Rohoman v. Sakhina, ILR 5 Cal 558. 430 Wahab Ali v. Qamro Bibi, AIR 1951 Hyd 117. 431 Shaha Alam v. Ulfat Bibi, ILR 19 All 50. 432 Abdur Rohoman v. Sakhina, ILR. 5 Cal 588. 433 In re Abdul Ali Ismail, ILR 7 Bom 180.

– 191 –

pay the maintenance allowance to the wife, The amount of

maintenance of the wife may be any reasonable sum of money to be

decided by the Court taking into account requirements of the wile and

the socio-economic conditions of the husband.434

3.3.2.1.2 Maintenance to Muslim Women after the Dissolution

of Marriage

Marriage under the Muslim Law is dissolved by either on the

Death of the Husband or by the Divorce between the parties. The

treatment and allocation for maintenance in both the cases may be

described under the following heads:

3.3.2.1.2.1 Dissolution by Apostasy

If the marriage is dissolved on the ground of apostasy of the

husband the wife would be entitled to maintenance during Iddat but

she has no right if she herself had apostatized even if she returns to

faith during Iddat. The wife would also not be entitled to maintenance

if she apostatizes during Iddat if the Talaq was revocable but she

would be entitled to it if the Talaq was irrevocable and she returns to

faith.435

3.3.2.1.2.2 Maintenance in Case of Dissolution by Death

There is controversy on the point that a whether widow is

entitled to claim maintenance under the Mohammedan Law or

not.According to Mohammedan law the right of wife to claim

maintenance from her husband ceases when her husband dies. She is

not also liable for the maintenance even for the period of Iddat. In

such a case the widow is not entitled to maintenance from out of her

husband’s property or by the relatives of her husband. 436

434 Supra note 370 at 214. 435 Supra note 368 at 455-56. 436 Supra note 370 at 217.

– 192 –

But the Muslim law does not make any such specific provision

in their Personal Law. However, both under Sunni law and Shia law

the widow is one of the heirs of the deceased husband.Under Sunni

law of inheritance four wives get ¼ th share in the property of the

husband if the husband did not have any property to be inherited by

the heirs, according to both the Sunni and Shia law widow will not

have any right to fall back upon the property of the relatives. She

cannot fall back upon her husband’s property when he has not left any

property. If he left any property the widow would have got a share,

otherwise she has to maintain herself in whatever means she can.437

When the Holy Quran is extremely sympathetic towards women

and orphans, it cannot be presumed that the divorced wife was

intended to be left in the lurch after the period of Iddat. We may at

this juncture usefully refer to Verse 2: 240 of the Holy Quran dealing

with widows:

“Those of you

Who die and leave widows

Should bequeath

For their widows

A year’s maintenance

Without expulsion;

But if they leave

(The residence).

There is no blame on you

For what they do

437 Supra note 67 at 403.

– 193 –

With themselves.

Provided it is reasonable.

And Allah is Exalted in Power,

Wise”.438

This verse expressly lays down that the widow is entitled to a

year’s maintenance from out of the estate of her deceased husband.

And yet, the Ancient doctors of law have totally denied the Right of

maintenance to the widow even during the period of Iddat and even if

she is enceinte”.439

Under the Hanafi Law, the widow has no Right to maintenance

even if she was pregnant at the time of death of her husband, whereas

under the Shia Law, a widow is not entitled to claim maintenance,

though she was pregnant at the time of death of her husband. There are

Shiite authorities who have recognized widow’s right if on the death

of her husband, she was pregnant until the child is delivered, out of

share in estate of her husband, which the child born to her is entitled

to inherit.440

In Aga Mohamed v. Koolsom Beebee,441 their Lordships of the

Judicial Committee of the Privy Council have held on these authorities

that a Muslim widow is not entitled to maintenance out of her

husband’s estate in addition to what she is entitled to by inheritance or

under his will. Their Lordships, to quote their own words,”Do not care

to speculate the mode in which the text quoted from the Quran which

is to be found in Sura II, Vv. 241-242 (must be 240-241) is to be

reconciled with the law as laid down in the Hedaya and by the author

of the passage quoted from Baillie’s Imameea. But it would be wrong 438 S.A. Kader, Muslim Law of Marriage and Succession in India, 46 (1998). 439 Ibid. 440 Supra note 294 at 236. 441 24 IA 196.

– 194 –

for the Court on a point of this kind to attempt to put their own

construction on the Quran in opposition to the express ruling of

commentators of such great antiquity and high authority”.442

3.3.2.1.2.3 Maintenance to Wife in Case of Dissolution by Divorce

Under the Muslim Law, the divorced wife is entitled to

maintenance till the period of Iddat. The law with regard to

maintenance of Muslim Divorced Woman can be well derived from

verses 2:241 of Holy Quran:

“Lets the women live (in Iddah) in the same style as ye live

according to your means: annoy them not, so as to restrict them. And

if they carry (life in their wombs), then spend (your substance) in

them until they deliver their burden: and if they suckle your

(offspring), give them their recompense: and take mutual counsel

together, according to what is just and reasonable. And if ye find

yourselves in difficulties, let another woman suckle (the child) in the

(father’s) behalf”.443

Thus as per the above said Aayats, it can be can be clearly

formed out that the Muslim law has never made an attempt to take

away the right of Muslim Widow though it seems to be restricted away

till the Iddat only and in case the wife is pregnant it extends till the

time of delivery. The interpretation of verses of Holy Quran clearly

shows the extreme sympathy attitude towards women and orphans; it

cannot be presumed that the divorced wife was intended to be left in

the lurch after the period of Iddat.444

Thus it is clear that in the above stated verses of Quran, it is

clearly mentioned that the divorce lady will be entitled to maintenance

till the termination of pregnancy, the period of Iddat period in case of

442 Ibid. 443 Holy Quran 65:6. 444 Supra note 438 at 45.

– 195 –

pregnant woman is extended till the end of pregnancy. The

maintenance to be thus provided by a divorcing husband to divorced

woman is to be according to the means and economic standard and

also according to the divorced woman’s requirements and standard of

life enjoyed during marriage. However, a woman who is separated

from her husband by Khula is not entitled to any maintenance for the

Iddat period or to the Mata-e-Talaq (parting gift from divorcing

husband).445 But according to Imameea, Which is a work on Shia Law,

it has been laid down that a widow has no right to maintenance even

though she is pregnant, which is nothing but mere a reflection of ideas

of the male dominated society, according to whom a woman is nothing

more than a device to procreate or satisfy the physical needs.446

3.3.2.1.2.4 Principles Governing Maintenance to Wife

According to Dr. Tahir Mahmood,447 in case of Talaq by

Husband or Talaq-e-Tafwiz by the wife, the wife’s right to claim

maintenance under the Muslim Law is governed by the following

rules:

• Under Hanafi Law: in every case ‘ maintenance of Iddat’

is due

• Under the Shafie Law and Ithna Ashari Law: if Talaq is

revocable, the maintenance for Iddat is due.

• If the Talaq is irrevocable and the wife is pregnant when

the Talaq is pronounced, in such case she will be entitled

for maintenance during the Iddat period.

445 Supra note 438. 446 Ibid. 447 Supra note 377 at 80.

– 196 –

• But in case of irrevocable Talaq, if the wife is not

pregnant when the Talaq was pronounced, the wife will

not be entitled for any maintenance”.448

In the context of this study, it would be important to mention

here the case of Mahamed Hafzur Rahman v. Naar Begam,449 the High

Court of Bangladesh relying on the Quranic injunctions has held that

the liability of a Muslim husband to maintain his divorced wife does

not cease at the end of Iddatand he was bound to maintain her for an

indefinite period, that is to say, till she loses her status of a divorcee

by remarrying another.

In the words of Battacharjee, J.,450 “There is no doubt in my

mind that these two sub-sections apply only to a wife and not to a

divorced wife. The legal fiction imported in Explanation (b) in Section

125 cannot be extended to these sub-sections. For, a divorced woman

is not a wife and there is no question of her committing adultery.

There is also no question of her refusing to live with her former

husband or she and her former husband living separately by mutual

consent. With due deference, I am unable to accept the view of the

Bench of the Kerala High Court in Kunhi Moyn v. Pathumma, (1976

MLJ (Cr) 405) that the new definition of ‘wife’ in Section 125 of the

code of Criminal Procedure and the legal fiction implied therein

applied to the entire Section. But, it is idle to argue that there is any

infringement of Article 14 of the Constitution. Equality before the law

and the equal protection of the laws mean that among equals the law

should be equal and should be equally administered and that the like

should be treated alike. They do not mean that things which are

different should be treated as though they are the same and that every

law must have universal application for all persons who are not, by 448 Ibid. 449 Bangladesh Legal Decisions, 1995 Vol. XVT 34 reported in The Indian Express,

Dated: 21 January 1996. 450 A.M. Bhatterjee, Muslim Law and the Constitution, 21 (1985).

– 197 –

nature or circumstances, in the same position. A wife does not stand in

the same position as a divorced wife. In the case of the former the

matrimonial tie exists; in the case of the latter it is extinct and that

makes the vital difference. They are not equals and the doctrine of

equality before the law or the equal protection of the laws cannot be

invoked as between them”.451

3.3.2.1.3 Past Maintenance

A wile is not entitled to claim arrears of maintenance.452

However, according to all schools of Muslim law, the wile can claim

arrears of past maintenance if any maintenance allowance was

promised by husband under any separate agreement. Such agreements

are made to receive a regular pocket-allowance called Kharch-e-

Pandan or, Mewakhori. She is entitled to get arrears of maintenance

also in a case where maintenance was ordered by the Court but

remained unpaid. But under the Shafei Laws, she can still claim past

maintenance. In the case of Cherummel Abdulla v. Pooralora

Katheesa,453 which was related to parties who were Shafei

Mussalmans, Balakrishan Menon J. applied the liberal rule of the

Shafei Rule of Law and dismissed the second appeal of husband

seeking to resist his wife’s claim to claim the past maintenance.454

Generally, a wile is not entitled to claim arrears of maintenance.

But under Shia and Shafei laws, a wife is entitled to get the arrears of

her maintenance allowance. However, according to all schools of

Muslim law, the wile can claim arrears of past maintenance if any

maintenance allowance was promised by husband under any separate

agreement. Such agreements are made to receive a regular pocket-

allowance called Kharch-e-Pandan or, Mewakhori. She is entitled to 451 Ibid. 452 Supra note 384 at 213; Cherumel Abdulla v. Poovalora Katheesa, AIR (1984) Ker

94. 453 Ibid. 454 Ibid.

– 198 –

get arrears of maintenance also in a case where maintenance was

ordered by the Court but remained unpaid.455

In Hedaya Hamilton456 as the rule of Hanafi Law on the subject:

“If a length of time should elapse during which the wife has not

received any maintenance from her husband, she is not entitled to

demand any for that time except when the Kazee had before

determined or degree it to her”.

In the Tyabji,457 it is stated as follows:

(1) Under Shia and Shafei Law the wife is entitled to

maintenance notwithstanding that she has allowed it to

get into arrears without having had the amount fixed by

the Court, or by agreement with the husband.

(2) Under Hanafi law arrears of maintenance are not

recoverable unless fixed by the Court or by agreement

between the husband and wife, nor even after they have

been so fixed, in case of divorce or death of either party,

provided that arrears may be recovered if the Court has

decreed maintenance but not fixed its amount”.

3.3.2.1.4 Duration of Maintenance

The wife’s right to maintenance ceases on the death of her

husband, for her right of inheritance supervenes.

3.3.2.1.5 Husband to Provide Maintenance Till Divorce is

Proved

Since Muslim law validates the husband’s unilateral and

arbitrary right of divorce, there is a misconception that he needs not to

455 Supra note 384 at 213. 456 Supra note 373 at 142. 457 Supra note 400 at 271.

– 199 –

prove the fact of divorce during Court proceedings. But various Courts

have opined differently over the issue in the different manner and have

stated that until the divorce is proved the husband is liable to maintain

the wife. Some recent judgments have also held that prior to divorce

the husband must establish that there were pre-divorce arbitration or

conciliation efforts. Further some courts have also relied upon well-

established principles of lslamic law that a divorce pronounced during

pregnancy is not valid.458

In the case of,Mohd. Yunus v. Smt. Shabiran,459 the husband

filed an appeal against the order of maintenance on the ground that he

had divorced the wife. The High Court dismissed the appeal on the

ground that the husband was under a misconception that a Muslim

husband can obtain Talaq-ul-BIddat by merely pronouncing Talaq

three times. The Court held that this does not constitute a valid Talaq.

Since no evidence has been led to prove the plea of divorce, the Court

upheld the order of maintenance.

Further in Usman Khan Bahamani v. Fatbimunnnisa,460 the wife

was awarded maintenance under Section, 125 the Code of Criminal

Procedure, 1973. The husband appealed against the order on the plea

that he had divorced his wife and hence he was not liable to maintain

her. The High Court revoked the earlier order and held that the

husband’s liability to pay maintenance is limited to Iddat period and

after that period matter becomes referable to Wakf board. The Court

further held that the words ‘Provision’ and ‘maintenance’ in Section

3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act,

1986 convey the same meaning. The Court held that after the

commencement of Act, Section 125 the Code of Criminal Procedure,

1973has relevance only upon the parties exercising their option to be

458 Supra note 370 at 231. 459 I (1998) DMC 678. 460 (1990) Cri LJ 1364.

– 200 –

governed by that Section under Muslim Women (Protection of Rights

on Divorce) Act, 1986. Justice Bhaskar Rao in his minority view held

that the wife is entitled to maintenance and a fair and reasonable

provision for the future beyond the Iddat period because words

provision and maintenance convey different meaning.

3.3.2.1.6 Right of Residence

She does not lose the right to lodging whatever be the cause of

separation because residence with her is in consequence of the right

which he has over her while the maintenance is in consequence of the

right which she has against him.461 Under Shafei law also a wife even

though divorced irrevocably or a widow is entitled to a suitable

residence during Iddat.462

But under the Shia Law, a widow has no right of residence

during the Iddat except when she is pregnant. A wife divorced

revocably is entitled to the place of residence during Iddat. But in case

of irrevocable divorce, she is not entitled to the right of residence.

However, in case of pregnancy, she is entitled for the same till the

time of delivery, the right being due not on the account for her but for

the foetus she is carrying in her womb.463

3.3.2.1.7 Arbitration and the Divorce Proceedings

The excessive use (and abuse) of the husband’s power to

pronounce oral and unilateral Talaq, is one of the banes of the Muslim

community. Though such practices were recognized, the Prophet

himself considered the pronouncement of Talaq to be the most

detestable before the Almighty God of all permitted things. He

restrained this practice by forbidding its use by men without the

intervention of Arbitrators or a Judge. But in the absence of any move

461 Supra note 368 at 455. 462 Minhaj-Ul-Muslim, 372. 463 Neil B.E. Baillie, Digest of Mohammedan Law, Vol. II, 98 (1875).

– 201 –

from the Islamic scholars to invalidate this or to declare that

arbitration prior to divorce is mandatory, the courts have moved in to

regulate this undesirable and blatantly unjust practice.464

3.3.2.1.8 The Amount of Maintenance Should be Fair and

Reasonable

The most significant issue which has emerged out of the

enactment revolves around the stipulation of ‘a fair and reasonable

provision’. Drawing on the Islamic concept of Mataaoon bill

ma’aroofe (fair and reasonable provision), several High Courts opened

a new portal for the protection of divorced Muslim women. The

remedy, which the courts so carefully crafted out of the controversial

legislation, in fact, seems to provide a better safeguard, than the

earlier anti vagrancy provision under Section 125 of Code of Criminal

Procedure.465

“Hanafi law: maintenance amount should be such that wife may

maintain equal status with that other husband.

Shafee law: maintenance amount should be fixed considering

the position of the husband alone.

Shia Law: While fixing the maintenance amount the

requirement of food, clothing, residence etc. of the wife should be

taken into account. Such maintenance should be paid monthly unless

otherwise agreed upon”.466

The Muslims authorities give many details about maintenance to

which wife is entitle against the husband, such as whether she is

entitled to one servant or more, or what type of food, clothing and

residence she is entitled to. They also lay down, surprisingly enough,

464 Supra note 370 at 232. 465 Id., at 233. 466 Supra note 67 at 403.

– 202 –

that she is not entitled to perfumes or to medical attendance at the cost

of her husband. Tayabji rightly says that these details are of little use

under the changed social condition.467

3.3.2.1.9 Maintenance of Divorced Muslim Women Under the

Muslim Women (Protection of Rights on Divorce) Act,

1986

3.3.2.1.9.1 Statement of Objects and Reasons of the Bill

“The Supreme Court in Mohammed Ahmed Khan v Shah Bano

Begum,468 has held that although the Muslim Law limits the husband’s

liability to provide for maintenance of the divorced wife to the period

of Iddat, it does not contemplate or counter over the situation

envisaged by Section 125 of the Code of Criminal Procedure, 1973.

The Court held that it would be incorrect and unjust to extend the

above principle of Muslim Law to cases in which the divorced wife is

unable to maintain herself. The Court therefore came to the conclusion

that if the divorced wife is able to maintain herself, the husband’s

liability ceases with the expiration of the period of Iddat, but if she is

unable to maintain herself after the period of Iddat, she is entitled to

have recourse to Section 125 of the Code of Criminal Procedure. This

decision has led to some controversy as to the obligation of the

Muslim husband to pay maintenance to the divorced wife. The

opportunity has, therefore, been taken to specify the rights which a

Muslim divorced wife is entitled at the time of divorce and to protect

her interests. The Bill accordingly provides for the following amongst

other things, namely:

467 Supra note 400 at 268. 468 AIR 1985 SC 945.

– 203 –

(a) A Muslim divorced wife shall be entitled to a reasonable

and fair provisions and maintenance within the period of

Iddat by former husband and in case she maintains the

children born to her before or after divorce, such

reasonable provisions and maintenance would be

extended for a period of two years from the dates of birth

of the children. She will also be entitled to Mahr or

dower and all the property given to her by her relatives,

friends, husband and husband’s relatives. If the above

benefits are not given to her at the time of divorce, she is

entitled to apply to the Magistrate for an order directing

her former husband to provide for such maintenance, the

payment of Mahr or dower or the delivery of properties;

(b) Where the Muslim divorced woman is unable to maintain

herself after the period of Iddat, the Magistrate is

empowered to make an order for payment of maintenance

by her relatives who would be entitled to inherit her

property on her death according to the Muslim Law in the

proportions in which they would inherit her property. If

any one of such relatives is unable to pay his or her share

on the ground of his or her not having the means to pay,

the Magistrate would direct other relatives who have

sufficient means to pay the shares of their relatives also.

But when a divorced woman has no relatives or such

relatives or any one of them has not enough means to pay

the maintenance or the other relatives who have been

asked to pay the shares of the defaulting relatives also do

not have the means to pay the shares of the defaulting

relatives, the Magistrate would order the State Wakf

– 204 –

Board to pay the maintenance ordered by him or the

shares of the relatives who are unable to pay”.469

3.3.2.1.9.2 Act a Declaratory Act

The Muslim Women (Protection of Rights on Divorce) Act,

1986 is a declaratory Act and it will be applicable even to a divorced

woman who was divorced was prior to the commencement of the Act

for the purpose of obtaining relief under the Act.470

Under the provisions of the Muslim Women (Protection of

Rights oil Divorce) Act, 1986, a divorced Muslim wife is entitled to a

reasonable and fair provision and maintenance during the period of

Iddat.She is not entitled to claim maintenance under the provisions of

the Code of Criminal Procedure, 1973 unless both the parties exercise

their option to be governed by the Code of Criminal Procedure, 1973

and an application already pending under the Code of Criminal

Procedure, 1973 at the time of the commencement of the Muslim

Women (Protection of Rights on Divorce) Act, 1986.471

3.3.2.1.9.3 Is Order Under the Muslim Women (Protection of

Rights on Divorce) Act 1986, Amendable?

Abdul Rashid v. Sultana Begum,472 upon divorce, the husband

paid the wife �6,000/- as Mehr and �1,000/- as payment for Iddat

period and a sum towards the maintenance of three minor children.

The wife claimed for fair and reasonable provision and maintenance

under theMuslim Women (Protection of Rights on Divorce) Act, 1986

as the above sum was exhausted within two years. The Magistrate

469 Statement of Object and Reasons, the Muslim Women (Protection of Rights on

Divorce) Act, 1986. 470 Hyder Khan v. Meherunnisa, 1993 Cri LJ 236. 471 Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986; also

see Usman Khan v. Fathimunnissa, (1990) Cri LJ 1364 (AP). 472 (1992) Cri LJ 76.

– 205 –

awarded �15,000/- to be paid in three instalments for future

maintenance. In appeal, the High Court revoked the order and

commented that,it is not open to the wife to claim ‘fair and reasonable

provision’ for the future, in addition to what she has already received

at the time of her divorce. The liability of the husband is limited for

the period of Iddat and thereafter if she is unable to maintain herself

she must approach her relatives or the Wakf board.473

3.3.2.1.9.4 Meaning of Divorced Women under the Act

A divorced woman has been defined in Section 2(a) of the Act.

“Divorced woman” means a Muslim woman who is married according

to Muslim Law and has been divorced by, or has obtained divorce

from her husband in accordance with Muslim Law. It is not possible to

hold that a Muslim husband to provide for reasonable and fair

provisions and maintenance for his divorced wife originated only from

the Act, it is the duty ordained by Holy Quran. Holy Quran enjoins the

husband to provide reasonable and fair provisions and maintenance to

his divorced wife.474

Provisions of the Muslim Women (Protection of Rights on

Divorce) Act 1986 have an overriding effect on all the provisions of

the earlier enactments including the Family Courts Act 1984. So, the

jurisdiction of the Magistrate under Section 3 of the Act cannot be

affected by the provisions of the Family Courts Act 1984.475

The Act operates only when a Muslim divorced woman applies

for maintenance against the former husband and can have no

473 Ibid. 474 Hayder Khan v. Meherunnissa, 1993 Cri LJ 236 (Ker); Harunnissa Khanam v.

Mohammed Muklesur Rahaman, (1998) 3 Gau LR 7 (Gau); Kansar A.H. Laskar v. Muslema Bibi, 2000(2) HLR 124.

475 E. AvaranKoya v. K. Martyam 1993 Cri LJ 1118 (Ker).

– 206 –

application when the application for maintenance has been made by a

child or by any other person, such as, parents, specified in Section

125, Code of Criminal Procedure.476

When the husband has failed to prove divorce by leading

sufficient evidence, plea taken in the written statement of the petition

under Section 125, Code of Criminal Procedure filed by the petitioner

No. 1 wife and the petitioner No. 2, the daughter of divorcee having

been pronounced earlier cannot by itself be treated as effectuating

Talaq from the date of delivery of a copy of the written statement and

the Family Court was not justified in limiting the maintenance from

the date of application till the date of filing of the show cause by the

husband of giving Talaq to the wife when the Talaq has not been

proved. So, the High Court directed the maintenance to be continued

till modified or cancelled.477

3.3.2.1.9.5 When Muslim Divorced Woman Not Entitled To Get

Maintenance under Section 125, the Code of Criminal

Procedure

The rights of the Muslim divorced wife do not stand

extinguished by the enactment of 1986 Act. The Parliament was aware

that the Muslim divorced wives have such rights under Section 125,

Code of Criminal Procedure read with Explanation (6). Parliament also

knew that such right under Section 125 of the Code can be

extinguished under Section 127(3)(6) also. Significantly there is not a

whisper in the Act of 1986 which extinguishes such rights of the

Muslim divorced wives which they had under Section 125, the Code of

Criminal Procedure, 1973 prior to the enactment of 1986 Act. If the

476 Allabuksh Karim Shaikh v. Smt. Noorjehan, 1994 Cri LJ 2826. 477 Musrat Jahan v State of Bihar, AIR 2008 Pat 69.

– 207 –

extinguishment of such a right were intended, it would be only

reasonable to expect the Parliament to use specific language and the

extinguishment of existing rights cannot be lightly assumed. The Non-

Obstante clause cannot be lightly assumed to bring in the effect of

supersession. In the scheme of 1986 Act, in the scheme of Section 125

and Section 127(3)(b) of the Code and in view of the Legislative

history such supersession cannot be inferred. It should not be allowed

to demolish or extinguish the existing right unless the legislative

intention is clear, manifest and unambiguous478

3.3.2.1.9.6 Divorced Wife of Muslim’s Right Under Section 3 Of

The 1986 Act

Divorced Muslim woman cannot claim maintenance under

Section 125, Code of Criminal Procedure. Her remedy is under Section

3 of the Muslim Women (Protection of Rights on Divorce) Act 1986

which is a complete Code relating to the maintenance and other

amounts as provided in the Act for the divorced Muslim Woman.479

3.3.2.1.9.7 Act Aims at Providing Fair Provision

What shall be the fair provision is to be decided by the

Magistrate on facts of each case. It is also observed that the Right of

maintenance prior to the commencement of the Act found in the

personal law was enforceable inter alia under Section 125, Code of

Criminal Procedure and the obligation of a Muslim husband to

maintain his wife, including a divorced wife, which was pre-existing

has been re-affirmed and reiterated by a statutory enactment. It is,

therefore, made clear that it is no vain urging that the right has been

created De Novo and the Act is not retrospective and the Muslim

woman divorced prior to the Act and has been provided with

maintenance during Iddat period and amount of Mahr etc., should not

478 Supra note 67 at 223. 479 Shahid Jamal Ansari v. State of UP, AIR 2009 (NOC) 1010 (All).

– 208 –

be entitled to get an order of a reasonable and fair provision for her

future maintenance.480

3.3.2.1.9.7.1 Reasonable And Fair Provision How To Be Worked

Out

The Supreme Court has held that the “reasonable and fair

provision” within the meaning of Section 3(l)(a) of the 1986 Act has

to be worked out on the reference of the needs of the divorced woman,

the means of the husband and the standard of life maintained by them

during the subsistence of the marriage. It is also pointed out that there

is also no reason why such provision cannot be in the form of regular

payment of maintenance month by month.481

3.3.2.1.9.7.2 Fair And Reasonable Amount Even Beyond Iddat

Period

The Magistrate under Section 3(3) of the Act has the judicial

power to order for payment of fair and reasonable amount to be paid to

the wife by the husband even beyond the Iddat period.482

K. Kunhammed Haj v. K. Amina,483 is a significant Judgment

which liberally construed a Muslim wife’s Right to maintenance under

the Act. The Court held that she was entitled to a fair and reasonable

provision for her livelihood after the period of Iddat apart from

maintenance during the period of Iddat. According to the Court, the

Shah Bano484 ruling, this imposed liability on a Muslim husband to

maintain a divorced wife during her lifetime or until she remarries,

has only been substituted by the Act. While conceding a wife’s claim

for fair and reasonable provision beyond Iddat, the Court relied on the

following observations made by it in an earlier case titled Aliyur v. 480 Supra note 67 at 224. 481 Danial Latiffi v. Union of India (2001)7 SCC 740. 482 Karim Abdul Rehman Shaik v. Shehnaj Karim Shaik, 2000 Cri LJ 3560 (Bom). 483 (1995) Cri LJ 3371 (Ker). 484 AIR 1985 SC 945.

– 209 –

Pathu,485 “Under Section 3, former husband is liable for the payment

of maintenance for the Iddat period and to make reasonable and fair

provision for the post-Iddat period. Quantification has to be made

under sub-Section 3(b) having regard to the needs of the divorced

woman, standard of living enjoyed by her during her marriage and the

means of her former husband . . . If in spite of reasonable and fair

provision made for the post-Iddatperiod she faces destitution, Section

4 comes to her rescue. We do not agree that the scheme of Section 4

casting on relatives of the divorced woman liability for maintenance

should lead to a narrow and technical interpretation of Section 3”.486

After these progressive judgments it is disappointing to note

that the Andhra Pradesh High Court, in P. Id Khan v. Ashia

Khatoon,487 held that divorced Muslim woman cannot avail of the

provision of the Code of Criminal Procedure, 1973 after the coming of

the Muslim Women (Protection of Rights on Divorce) Act, 1986,

unless she and her husband exercise the option as governed by it.

In Ali v. Sufaira,488 the learned Single Judge of the High Court

of Kerala has taken the view that under Section 3(1)(a) of the Act, a

divorced woman is not only entitled to maintenance for the period of

Iddat from her former husband but also to a reasonable and fair

provision for the future. A distinction is made between a reasonable

and fair provision and maintenance. While maintenance is payable to

the divorced wife by her former husband for the period of Iddat, a

reasonable and fair provision has to be made for her future.

In Arab Ahemadhia Abdullah v. Arab Bail Mohmuna

Saiyadhai,489 the High Court of Gujarat has held that by the use of the

485 (1988) 2 Ker LT 446. 486 Ibid. 487 (2000) Cri LJ 2124 (AP). 488 (1988) 3 Crimes 147. 489 AIR 1988 Guj 141.

– 210 –

phrase “reasonable and fair provision to be made and to be paid to

her” the Parliament intended to see that the divorced woman gets

sufficient means of livelihood after the divorce woman gets sufficient

means of livelihood after the divorce and that she does not become

destitute or is not thrown on the streets without a roof over her head

and without any means of sustaining herself. The word “within” in

Section 3(1)(a) should not, according to the learned Judge, be read as

“for” or “during” but would mean “on or before”, “not beyond”, “not

later than”.

3.3.2.1.9.8 Re-Marriage of Divorced Muslim Wife Pending

Hearing of the Petition Under Section 3 of the Muslim

Women( Protection of Rights on Divorce) Act, 1986

Payment under Section 3 of the Muslim Women (Protection of

Rights on Divorce) Act, 1986Act is to be effected during the period of

Iddat. During the period of Iddat no lawful remarriage of a Muslim

divorced woman can place as the under the personal law of Muslim,

she is bound to observe Iddat and no faithful Muslim is likely not to

observe Iddat and the contract remarriage. The fair and reasonable

provision has to be paid under Section 3(1) of the Act during the

period of Iddat, when remarriage is impossibility. If that be so, the

date of actual remarriage is not an input while undertaking the

computation of fair and reasonable provision under Section 3 of Act

ordinarily. If only the payment is not made, need the wife go to the

Magistrate with the claim in which event Section 3(6) of the 1986 Act

declares that the case is to be disposed of within a period of one

month. In that event also, it is unlikely even the Magistrate would

have the date of remarriage as an available input. All these are clear

indications to suggest that the actual date of remarriage is not a

relevant input that would normally be available when the

– 211 –

quantification of the amount payable under the Section 3 of the Act is

contemplated by the husband or the Court.490

3.3.2.1.9.9 Jurisdiction of the Magistrate

In Iqbal Bano v. State of UP,491 it has been held the contention

of the Mahr having been paid and Iddat period being over have no

relevance to the jurisdiction of the Magistrate under Section 3(2) of

the Act, which the Magistrate has to exercise when the amounts in

terms of the Section 3(1) of the Act have not been paid or property not

delivered have no relevance to exercise of such jurisdiction. It is,

however, made clear by the Supreme Court that the liability to pay the

maintenance by the husband is up to the Iddat period, but the Muslim

ex-husband is liable to make fair and reasonable provision for the

divorced wife which obviously includes maintenance. It is pointed out

that such a reasonable and fair provision beyond the period of Iddat

has to be made during the Iddat period in terms of the Section 3(1)(a)

of the Act.492

However, this Section is not likely to serve any purpose and

appears to be meaningless because, it being in no way beneficial to the

husband to prefer Section 125 of the Code of Criminal Procedure,

1973 to Section 3 of the Muslim Women (Protection of Rights on

Divorce) Act, 1986, no husband is likely opt for it. A reference may be

made of a harsh judgment in Nazimunnissa Begum v. Abdul Majeeth,493

in which, the wife’s petition under Section. 125 of the Code of

Criminal Procedure, 1973 was reserved for orders when the Muslim

Women (Protection of Rights on Divorce) Act, 1986 came in to force,

and the Magistrate pronounced the order without there being any

490 C.K. Aboobacker v. Rahiyanath, AIR 2008 NOG 2860 (Ker). 491 Available at http://indiankanoon.org/doc/390198/, (accessed on 09 June 2015). 492 Skh. Hafiz Skh. Habib v. State of Maharashtra, AIR 2009 (NOC) 1011 (Bom). 493 (1995) Cri LJ 3156 (Mad); see also Md. Jahir v. Nazrath Fathima, (1995) Cri LJ

3822 (Kant); Begum Bibi v. Abdul Rajak Khan, (1995) Cri LJ 604 (Ori); Shaik Dada Saheb v. Shaik Master Bee, (1995) Cri LJ 696 (AP).

– 212 –

consent from the parties to be governed by the provisions of the Code

of Criminal Procedure, 1973. The husband did not object to the

passing of such order and in fact also paid some amount by way of

maintenance in first execution. Later on, he challenged the order on

the ground that it was passed under Section 125 of the Code of

Criminal Procedure, 1973 without his consent. For the wife it was

argued that since the husband did not object to it at the time of the

order nor at the time of first execution ‘therefore now he cannot seek

umbrage under the new Act to avoid the payment of maintenance’. The

Court, however, did not accept this argument and dismissed the wife’s

petition. As to recovery of articles a divorced Muslim wife can file a

suit for recovery either by way of a regular civil suit or under the

provisions of Section 3 of the Muslim Women (Protection of Rights on

Divorce) Act, 1986, Section 3 of the Muslim Women (Protection of

Rights on Divorce) Act, 1986 neither expressly nor impliedly ousts the

jurisdiction of the Civil Court. In fact, remedy under this Section is in

addition to other remedies available to the Muslim divorced woman

for recovery of her dabej articles or Mahr. It is for such woman to

eject the remedy winch she wants to undertake.494

In Humeera Khatoon v. Md. Yaqoob,495 it was reiterated that

maintenance or a divorced Muslim woman and her entitlement to

amount of maintenance awarded under Section 125 of the Code of

Criminal Procedure, 1973 cannot be restricted only for the Iddat

period. It extends for entire life till her remarriage.

Shabbana Bano v. Imarn Khan,496 is a recent judgement of the

Supreme Court,497 which has clarified that a petition by divorced

494 Amirshah v. Salimabi, AIR 2006 Bom 302 (Nagpur Bench). 495 AIR 2010 (NOC) 707 (All); also see Shaukat Ibraham Qureshi v. Faridabanu

Qureshi, AIR 2010 (NOC) 713 (Guj); Abdulla Miya Tan Kawala v. Hoorunisha, AIR 2010 (NOC) 807 (Guj).

496 AIR 2010 SC 305. 497 AIR 2009 (NOC) 1018 (MP).

– 213 –

Muslim woman under Section 125 of the Code of Criminal Procedure,

1973 against her husband is maintainable even after the Iddat period

as long as she does not remarry. The husband’s preliminary objection

that he had already divorced her and thereafter under the Muslim

women (Protection of Rights on Divorce) Act, 1986, she was not

entitled to any maintenance after divorce and after expire of Iddat

period was over ruled. In this case, the family Court awarded

maintenance allowance under Section 125 of the Code of Criminal

Procedure, 1973, to the wife from the date of the institution of the suit

to the date of the divorce and thereafter from the date of divorce till

expiry of the Iddat period. The wife’s revision against this was

dismissed by the High Court; hence she came to the Apex Court. This

Court analysed the statutory provisions and the case law, including

Danial Latifi v. Union of India,498 and held that “Cumulative reading

of the relevant portions of judgments of this Court . . . would make it

crystal clear that even a divorced Muslim woman would be entitled to

claim maintenance from her divorced husband as long as she does not

remarry. This being a beneficial piece of legislation, the benefit

thereof must accrue to the divorced Muslim-woman. ‘The wife’s

appeal was, accordingly, allowed”.

3.3.2.1.9.10 Whether the Earlier Passed Order Be Modified or

Revised After the Commencement of Act?

As regards revision or modification in the already passed orders

of maintenance, the opinion of the courts is divided. According to

Kerala High Court, after the commencement of Muslim Women Act,

1986, there cannot be any modification in maintenance order. In Abdul

Ghafoor v. A.U. Pathumma Beevi,499 the Court held that after coming

into force of the Muslim Women Act, 1986, a Muslim divorcee, who

had obtained a maintenance order under the Code of Criminal

498 (2001) 7 SCC 740. 499 (1989) Cri LJ 1224 (Ker).

– 214 –

Procedure, 1973 could not invoke Section 127 of the Code of Criminal

Procedure, 1973. so as to seek enhancement of the amount of

maintenance. But, according to Allahabad High Court such orders may

be revised or otherwise modified subsequently. In Shafaat Ahmad v.

Fahmida Sarddar,500 the Allahabad High Court held that the Muslim

Women Act, 1986 does not exclude the application of the Criminal

Procedure Code. Therefore, the Code of Criminal Procedure, 1973 has

to be given effect and any order passed by Magistrate (even) under

Section 3 of the Muslim Women (protection of Rights on Divorce)

Act, 1986becomes revisable in view of the provisions of the Code of

Criminal Procedure, 1973 This means to suggest that according to

Allahabad High Court the provisions of Sections 125 to 128 of the

Criminal Procedure Code, 1973 were still alive in so far as the

maintenance of divorced Muslim woman is concerned. On reading

Section 3 and Section 4 of The Muslim Women (protection of Rights

on Divorce) Act, 1986 together, it is abundantly clear that Parliament

wanted to protect fully the divorced woman so that she does not

become destitute or is not thrown on the streets without roof over her

head and without any means for sustaining herself.501

3.3.2.1.9.11 Order Passed Prior to Coming in to Force of the Act

In Bashir Khan v. Jamila Bee ,502 the Court held that recovery

proceedings in maintenance order already passed under Section 125 of

the Code of Criminal Procedure, 1973, cannot be quashed on the

coming of the Act. In this case the woman was not divorced but

remained the wife till the passing of the final order in her favour.

According to the Court, there was no question of a pending proceeding

which should be governed by the Muslim Women (Protection of Rights

on Divorce) Act, 1986.There is no provision in the Muslim Women

500 AIR (1990) All 182. 501 Ibid 502 (1994) Cri LJ 361 (MP).

– 215 –

(Protection of Rights on Divorce) Act, 1986 to the effect that Section

125-128 of the Code of Criminal Procedure shall stand repealed in so

far as maintenance of the Muslim women is concerned. There is no

provision in the Muslim Women (Protection of Rights on Divorce’)

Act, 1986 with respect to enforcement of order of maintenance, which

has already become final under Code of Criminal Procedure which

shows that final order holds good even after the Muslim Women

(Protection of Rights on Divorce) Act, 1986 came into force.503

3.3.2.1.9.12 Maintenance of the Child

Under Section 3(1)(6) of the 1986 Act, the former husband is

liable to pay the maintenance for the children born prior to divorce or

after divorce and is being maintained by the divorced wife for a period

of two years from the respective dates of birth of such children.

But if they are unable to maintain themselves even after the

expiry of two years of their respective dates of birth, they can get the

maintenance under Section 125, Code of Criminal Procedure till the

son attains majority and the daughter is married. This is because the

Muslim Women (Protection of Rights on Divorce) Act, 1986 has not

repealed the child’s prayer for maintenance under Section 125, Code

of Criminal Procedure.504

3.3.2.1.9.13 Maintenance of Muslim Minor Daughter

Minor Muslim daughter is entitled to maintenance till she

attains majority under Section 125, Code of Criminal Procedure,505 and

therefore, the Contrary decision of Smt. Moorunissa v. Maqsood

503 Ibid. 504 Mohammed Abdul Hai v. Saleha Khatoon, 2007 Cri LJ 1394 (Bom), M.A. Hameed v.

Arif Jan, 1990 Cri LJ 96 (AP); Abdul Majid v. Hanrunnisa, 1990 Cri LJ 2799 (MP). 505 G.M. Jeelani v. Shanswar Kulsum, 1994 Cri LJ 271.

– 216 –

Ahmad,506 that the minor daughter is entitled to maintenance for two

years from the date of birth is no longer good law.

3.3.2.1.9.14 Notice to Ex-Husband Before the Magistrate Passes the

Order Granting Reasonable And Fair Provision and

Maintenance

Before the Magistrate hears the petition under Section 3(3) of

the 1986 Act, and passes the order, it is necessary for the Magistrate

to issue notice to the ex-husband though it is not specifically provided

in sub-Section (3) of Section 3 of the Act. This is because as any order

passed by the Magistrate under Section 3(3) of the Act entails civil

consequences, notice to the divorced husband and giving opportunity

of hearing to him is mandatory. It is not the law that since the notice

is to be given to the ex-husband before executing the order passed by

the Magistrate under Section 3(4) of The Muslim Women (protection

of Rights on Divorce) Act, 1986 Act, no notice is required to be given

to the ex-husband before commencing the enquiry on the petition filed

by the divorced husband under Section 3(3) of the Act. This is because

Section 3(4) of The Muslim Women (protection of Rights on Divorce)

Act, 1986 operates at a stage subsequent to the order passed by the

Magistrate under Section 3(3) of the Act. When a notice is issued, the

ex-husband cannot challenge the order passed by the Magistrate under

Section 3(3) of The Muslim Women (protection of Rights on Divorce)

Act, 1986, rather he can only show cause as to why he could not

comply with the order passed by the Magistrate under Section 3(3) of

Act.507

3.3.2.1.9.15 Return of Articles Given at the Time of Marriage

The wife is entitled to return of the gift articles except the

perishable articles which may not be in existence or may have lost its

value. In particular case, where the father gave the gifts to the

506 1994 Cri LJ 3129. 507 Shafaat Ahmad v. Fahmida Sardar, 1990 Cri LJ 1887 (All).

– 217 –

daughter at the time of the marriage for which a list was prepared.

There is no evidence that the father did not have money and was

unable to afford the gifts mentioned in the list. The said list of gifts

was signed by the father of the wife and brother of the husband. The

evidence of the witness who prepared the list to the effect that he saw

the articles and then prepared the list.508

3.3.2.1.9.16 Duty of The Magistrate to Determine The Maintenance

Amount

When before the Magistrate the divorced wife claimed

maintenance against the ex-husband, the Magistrate has to follow the

guidelines on:

1) Needs of divorced woman;

2) standard of life enjoyed by the wife during the marriage:

and

3) Means of the husband.

But the possibility of remarriage of the wife has no-effect either

adding or subtracting the scope of enquiry. Remarriage has limited

impact on the claim and in the matter of fixation of fair and reasonable

provision.

3.3.2.1.9.17 Family Court Cannot Convert The Petition For

Maintenance Under Section 125, Code of Criminal

Procedure To One Under Section 3 or Section 4 of The

Muslim Women (Protection of Rights on Divorce) Act,

1986

When the divorced wife filed a petition for maintenance before

the Family Court, but when the Family Court was satisfied that the

divorced wife was to file such application under Section 3 and 4 of the

508 Shaik Faruk v. Nnfisabee Mirza, 2010 Cri LJ (NOC) 278 (Bom).

– 218 –

Muslim Women (Protection of Rights on Divorce) Act 1986, the

Family Court cannot convert such application under Section 125, the

Code of Criminal Procedure, 1973 to one under Section 3 and 4 of the

Act. So, the Family Court has given liberty to the divorced wife to

apply before the Magistrate under Section 3 and Section 4 of the 1986

Act.509

3.3.2.9.1.18 Section 125, the Code of Criminal Procedure 1973 vis-

a-vis Section 3 of the Muslim Women( Protection of

Rights on Divorce) Act, 1986

The Muslim wife has the larger right under her personal law and

that evidently explains why in spite of equality provisions in Article

14 of the Constitution, the payment made under Section 127(3) (6) of

the Code of Criminal Procedure 1973exempts a Muslim husband from

the obligation to pay maintenance under Section 125, Code of

Criminal Procedure. Other wives must be unable to maintain

themselves to claim relief under Section 125, the Code of Criminal

Procedure 1973.But significantly a Muslim ex-wife need not be unable

to maintain herself if she is to claim fair and reasonable provision

under Section 3 of the Muslim Women( Protection of Rights on

Divorce) Act, 1986. Even a millionaire divorced wife can claim

amounts from the billionaire ex-husband while other wives may get

monthly dues from their husband, the Muslim divorced wife can get

capitalized payments of amounts under Section 3 of the 1986 Act.

While re-marriage puts an end to the claims of the other divorced

wives, a Muslim divorced wife, even after re-marriage can keep the

capitalized amounts paid already as reasonable provision and

maintenance with herself with no liability to return the same to her

former husband. This viewed from these angles the payment

contemplated under Section 3 of the 1986 Act is certainly a larger

509 Smt. Sabana Bano v. Imran Khan, AIR 2009 (NOC) 1018 (MP); Amutha v. K.

Thirumoorthy, AIR 2010 (NOC) 336 (Mad).

– 219 –

benefit to the Muslim divorced wife compared to other divorced wives

of other communities. That a larger or higher liability is imposed on a

Muslim husband will certainly pass the test of the equality provisions

in the Constitution as he has in his armory a very special right under

the Personal Law to liquidate marriage without the intervention of the

Court by unilateral pronouncement of Talaq. Muslim divorced wife

who has already obtained from the ex-husband amounts under Section

3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986,

if she remained unmarried she became under Section 4 of the Muslim

Women (Protection of Rights on Divorce) Act, 1986 to stake claims

for maintenance against his specified relatives as also from the Wakf

Board. Thus, her vulnerability to the misfortune of arbitrary and

unilateral divorce has persuaded the legislature to confer on her

superior rights by a piece of statutory personal law i.e. Muslim

Women (Protection of Rights on Divorce) Act 1986.510

3.3.2.1.9.19 Sentence of Imprisonment Not to Wipe Out the

Liability of Divorced Husband Under s. 3(3) of the

1986 Act

The liability of the Muslim husband to pay the maintenance

amount under Section 3(3) of the Act will not wipe out the liability of

the husband for payment of the amounts due under Section 3(3) of the

1986 Act, even if he has undergone the full imprisonment of one year

as provided in Section 3(4) of the Act. If within a period of six years

from the date when the amount became due, it is found that the

husband is in possession of some properties; action can be taken under

Section 421, Code of Criminal Procedure for recovery of the amount

due.511

510 C.K. Aboobacker v. Rahiyananth, AIR 2008 (NOC) 2860 (Ker). 511 Rajinkutty v. State of Kerala, AIR 2008 (NOC) 1863 (Ker).

– 220 –

3.3.2.1.9.20 Magistrate Not Passing the Order under Section 3(3)

of the Act Within One Month of the Application

Where the Magistrate did not pass the order under Section 3(3)

of the Act nor did he give any explanation for not making within a

year of the date of the filing of the application. The petitioner wife

cannot suffer by dismissing her application only on that ground. The

order passed beyond the period of one month and without assigning

any reason for delay is quite valid, because the period of one month is

directory and not mandatory.512

3.3.2.1.9.21 Maintenance for the Children to Wife Even If Custody

of The Children is Sought For by the Husband

Making an application by the father for custody of the children

from the divorced wife is not enough until and unless the father is

given the custody of the children. So the divorced wife can claim

maintenance for the children in her custody.513

3.3.2.1.9.22 Maintenance by The Wakf Board

Section 4 imposes an obligation only on the relatives of the

divorced woman or of the Wakf Board, as the case may be, to pay

maintenance to the divorced woman after the period of Iddat. This is

because under Section 3(1)(a), the divorced husband has the obligation

to provide for maintenance only up to the Iddat period over and above

the payment of Mahr or dower and fair and reasonable provision for

her future maintenance. If, such payment do not satisfy the need of the

divorced wife, who is still unmarried and unable to maintain herself in

spite of the payment made by the husband under s. 3(1) of the Act,

then Section 4 come in to force.

512 Muslim v. State of UP, 1996 Cri LJ 98 (All). 513 (1992) DMC 83 (Raj).

– 221 –

“4. Order for Payment of Maintenance:

(1) Notwithstanding anything contained in the foregoing

provisions of this Act or in any other law for the time

being in force, where a Magistrate is satisfied that a

divorced woman has not re-married and is not able to

maintain herself after the Iddat period, he may make an

order directing such of her relatives as would be entitled

to inherit her property on her death according to Muslim

law to pay such reasonable and fair maintenance to her as

he may determine fit and proper, having regard to the

needs of the divorced woman, the standard of life enjoyed

by her during her marriage and the means of such

relatives and such maintenance shall be payable by such

relatives in the proportions in which they would inherit

her property and at such periods as he may specify in his

order:

Provided that where such divorced woman has

children, the Magistrate shall order only such children to

pay maintenance to her, and in the event of any such

children being unable to pay such maintenance, the

Magistrate shall order the parents of such divorced

woman to pay maintenance to her:

Provided further that if any of the parents is unable

to pay his or her share of the maintenance ordered by the

Magistrate on the ground of his or her not having the

means to pay the same, the Magistrate may, on proof of

such inability being furnished to him, order that the share

of such relatives in the maintenance ordered by him be

paid by such of the other relatives as may appear to the

– 222 –

Magistrate to have the means of paying the same in such

proportions as the Magistrate may think fit to order.

(2) Where a divorced woman is unable to maintain herself

and she has no relatives as mentioned in sub-Section (1)

or such relatives or any one of them have not enough

means to pay the maintenance ordered by the Magistrate

or the other relatives have not the means to pay the shares

of those relatives whose shares have been ordered by the

Magistrate to be paid by such other relatives under the

second proviso to sub-Section (1), the Magistrate may, by

order, direct the State Wakf Board established under

Section 9 of the Wakf Act, 1954, or under any other law

for the time being in force in a State, functioning in the

area in which the woman resides, to pay such

maintenance as determined by him under sub-Section (1)

or, as the case may be, to pay the shares of such of the

relatives who are unable to pay, at such periods as he may

specify in his order”.514

3.3.2.1.9.22.1 One Proceeding Under Section 4 is Sufficient

It is held by the Supreme Court that the divorced Muslim

woman is entitled to plead and prove relevant facts in one proceeding

as to inability other relatives mentioned in sub-Section (1) of Section

4 of the Act to maintain her by directing her claim against the State

Wakf Board in the first instance. So, she is not required to proceed

against her relatives mentioned in the sub-Section (1) first in the order

mentioned in sub-Section (1) of Section 4 and then finally to initiate

the proceedings against the Wakf Board.515

514 Section 4, The Muslim Women (Protection of Rights on Divorce) Act, 1986. 515 Secretary, T.N. Wakf Board v. Syed Fatima Nachi, AIR 1996 SC 2423.

– 223 –

It is held by the Allahabad High Court that the Wakf Board

established under the Wakf Act is not a religious denomination, as

such, it could be directed to pay the maintenance to the Muslim

divorced woman under Section 4(2) of the Act.516

Resources available to the Wakf Board are not unlimited but

limited and as language of sub-Section (2) of Section 4 of the Act

makes it clear that such limited resources available with the Wakf

otherwise meant for divorced Muslim women who are unable to

maintain themselves or who have no relatives as no relatives as

mentioned in the said sub-Section (2) having enough means to pay the

maintenance to the divorced woman.517

3.3.2.1.9.22.2 Revision Against Any Order Passed Under

Section 4 of the Act

When the order was passed by the Magistrate under Section 4 of

the Act, any person aggrieved by such an order can file revision, as

provided in the Code of Criminal Procedure for considering and

analyzing the legal and other relevant matters. As the Muslim Women

(Protection of Rights on Divorce) Act, 1986 is not a Code by itself,

the revision against the order of the Magistrate under Section 4 of the

Act under Section 397, CrPC is quite maintainable.518

3.3.2.1.9.23 Option to be Governed by Section 125 of The Criminal

Procedure Code, 1973

If the option is exercised by the parties on the date of first

hearing of the application under Section 3 of the Muslim Women

(Protection of Rights on Divorce) Act, 1986 by an affidavit or by any

other declaration in writing in such form as may be prescribed, the

516 Syed Fazal Pookaya Thangal v. Union of India, AIR 1993 Ker 408: 1993(2) Civ LJ

531. 517 Tripura Board of Wakf v. Tahera Khatoon, AIR 2001 Gau 103. 518 Suman Ismail v. Rafiq Ahmed, 2002(4) Civ LJ 528 (All).

– 224 –

proceedings would be governed by Section 125 of The Criminal

Procedure Code, 1973. It is, therefore, held that unless an application

under Section 3(2) of the 1986 Act is filed and both the parties at the

appropriate stage exercise their option, Section 125 of The Criminal

Procedure Code, 1973cannot be invoked.519

3.3.2.1.9.23.1 Option Required to Be Exercised

This Act does not totally bar the application of Sections 125 to

128 of the Criminal Procedure Code, 1973. The Muslim Women Act,

1986 has now made the operation of Sections 125-128 of the Criminal

Procedure Code optional in respect of the Muslim women. The option

is required to be exercised by both the parties to opt out of 1986 Act,

failing which the petitioner wife cannot approach the Magistrate under

Section 125 of The Criminal Procedure Code, 1973. So, it is held that

the Muslim divorced woman can claim maintenance under Section 125

of The Criminal Procedure Code, 1973 after the enforcement of the

1986 Act only if she and her former husband agree or if the divorced

woman does, not come within the purview of the divorced woman

under the Act.520

3.3.2.1.9.23.2 Section 5 Not Violative of Article 15 of the

Constitution

It is only when the divorced Muslim woman filed an application

under Section 3(2) of the 1986 Act; the question of parties opting

under Section 5 of the Act to be governed by Section 125 of The

Criminal Procedure Code, 1973 would only arise. It is, therefore, held

519 Rijwana Begum v. Mlu. Motiullah, 1989 Cri LJ (NOC) 155 (Ori). 520 S.K. Abdul Khader v. Mrs. Lubiana Farzana, AIR 2009 (NOC) 219 (Mad).

– 225 –

that Section 5 of the 1986 Act is not violative of Article 15 of the

Constitution.521

3.3.2.1.9.23.3 Sections 5 and 7 do not Extinguish Section 125,

Code of Criminal Procedure

There is an underlining assumption that rights given to a

divorced wife are superior to those given by Section 125 of The

Criminal Procedure Code, 1973. Section 5 of the Muslim Women(

Protection of Rights on Divorce) Act, 1986 declares that when a

divorced wife chooses to file an application under Section 3 of the

1986 Act, to claim a larger relief and her former husband succeeds in

persuading his divorced wife, to the joint petition filed by the

divorced wife and her ex-husband to treat the same as under Section

125 of the Criminal Procedure Code, 1973 it is proper. The scheme of

Section 5 and 7 of the 1986 Act can only suggest that in view of the

larger rights which the Muslim divorced wives have under the 1986

Act, they would normally prefer to stake the claim under Section of 3

Act unless the opposite party being the divorced husband prevail upon

them to choose the lesser remedy under Section 125 of The Criminal

Procedure Code, 1973. Section 7 of Act declares that all pending

proceedings under Sections 125 and 127, Code of Criminal Procedure

must be reckoned as an application under Section 3 of the 1986 Act,

unless the claimant wife is prevailed upon by her divorced husband

not to enforce her larger and superior rights under Section 3 of the Act

and to be satisfied with the lesser claim under Section 125, Code of

Criminal Procedure. The option given under Section 5 of the 1986 Act

would become illusory if it were held that the parties can revert back

to Section 125, Code of Criminal Procedure only if the divorced wife

agrees to the persuasion of her husband to pursue such a cause after

filing an application under Section 3 and cannot on her own choice to

521 Bishnu Charan Mahanty v. Union of India, AIR 1993 Ori 176; Abdul Rashid v.

Farida, 1994 Cri LJ 2336.

– 226 –

claim under Section 125, Code of Criminal Procedure. In these

circumstances Sections 5 and 7 of the Act cannot also lead to the

conclusion that the rights under Section 125, Code of Criminal

Procedure stand extinguished by the enforcement of the 1986 Act.522

The Supreme Court has again re-iterated following in Danial

Latiffi,523 that the Muslim divorced woman’s petition under Section

125, Code of Criminal Procedure before the Family is maintainable

and the order of the Family Court is not restricted up to Iddat period

and she can get maintenance till she remarries.524

Relying on the Supreme Court decision, the Allahabad High

Court has held that the divorced wife is entitled to maintenance under

Section 125, Code of Criminal Procedure which cannot be restricted

only up to the Iddat period. It extends to the entire life of the divorced

lady till she does not re-marry.525

3.3.2.1.9.24 Recovery Proceedings under Section 125(3) and

Section 128, of The Criminal Procedure Code, 1973

The recovery proceedings for the maintenance granted under

Section 125, Code of Criminal Procedure would not lapse even if the

Muslim woman who was subsequent to the initiation of the recovery

proceedings has not exercised her option along with the divorced

husband under Section 5 of the 1986 Act.526

3.3.2.1.9.25 Transitional Provision

Section 7 of this Act lays down that every application by the

divorced woman under Sections 125 or 127 of the Code of Criminal

522 C.K. Aboobacker v. Rahiyananth, AIR 2008 (NOC) 2860 (Ker). 523 Danial Latifi v. UOI, (2001) 7 SCC 740. 524 Shabana Bano v. Imran Khan, 2010 Cri LJ 525 (SC). 525 Mrs. Humera Khatoon v. Mohammed Yaquoob, 2010 Cri LJ (NOC) 725 (All) 526 Bashir Khan v. Janula Bee, 1994 Cri LJ 361 (MP).

– 227 –

Procedure, 1973, pending before a Magistrate on the commencement

of this Act, shall be disposed of by such Magistrate in accordance with

the provisions of this Act, provided the parties have not opted, under

Section 5 of this Act, that they want their case to be decided under the

Criminal Procedure Code.527 However, in Usman KhanBabmani v.

Fatimunnissa Begum,528 the Andhra Pradesh High Court has held that

operation of provisions of Sections 125 or 127 of The Criminal

Procedure Code, 1973. are excluded on the commencement of the

Muslim Women (Protection of Rights on Divorce) Act, 1986, The

Court observed that the applications (filed under Section 125 or 127 of

The Criminal Procedure Code, 1973 pending before the Magistrate

shall be disposed of in accordance with the provisions of this Act of

1986. Explaining the meaning of ‘pending applications’, in the case

titled Hafiza BiSuleman Darwajkar v. Suleman Moh. Darwajkar,529 the

Bombay High Court has held that pending applications include also

such “revisional applications” which were pending before the

Magistrate on the commencement of the Act (i.e. on 15-9-1986).

Applications for revision are deemed to be continuance of proceedings

and such applications would also be disposed of under the Muslim

Women(Protection of Rights on Divorce) Act, 1986.

The continued applicability of the Code of Criminal Procedure,

1973 provisions to the children of divorced couples was affirmed by

the Supreme Court in Noor Saha v. Qasim,530 and the continued

applicability of the Code of Criminal Procedure, 1973 provisions on

maintenance to Muslim wives whose marriage remains intact in law

has been affirmed by the Supreme Court. Shamirn Ara v. State of

UP,531 and Iqbal Bano v. State of UP.532 Rejecting all those old

527 Section 7 of The Muslim Women( Protection of Rights on Divorce) Act, 1986. 528 AIR 1990 All 182. 529 AIR 1996 Bom 79. 530 AIR 1997 SC 3280. 531 (2002) 7 SCC 518.

– 228 –

decisions in which the plea taken by Muslim husbands in maintenance

proceedings initiated by the wife that she had been divorced in the

past as accepted, the Supreme Court ruled In both these cases that the

husband in any such case must prove that he had actually exercised his

right to give a Talaq in strict compliance with the Islamic rules and

procedure, including an attempt at reconciliation as prescribed by the

Holy Qur’an.533

3.3.2.2 Separate Maintenance of Muslim Children

3.3.2.2.1 Maintenance of Muslim Children Under the Personal

Law of Muslims

Maintenance of children like the Muslim wife includes food,

raiment and lodging. But the definition of maintenance under the

Muslim personal law is not exhaustive. The word “includes” means

other necessary expenditure for physical and mental well-being of a

minor child according to status in the society. Therefore, education

expenses of the child were included in the definition of maintenance

under the Muslim personal law.534 The children have got priority in to

maintenance over the parents.535 Before weaning there is a duty to

maintain even if they have got property. The mother cannot be

compelled to suckle a child and the father must provide a nurse unless

the father has got no property. If the child has got property, the

expenses of suckling may be taken out of his property.536 After

weaning, the father is under a duty to maintain but if the child has got

property maintenance may be taken out of his property.537

532 JT (2007) 8 SC 648. 533 Ibid. 534 Ahmadellah v. Mafizuddin Ahmed, AIR 1973 Gau 56. 535 Supra note 368 at 456. 536 Id., at 459. 537 Id., at 461.

– 229 –

3.3.2.2.2 Maintenance of Children and Grandchildren

A father is bound to maintain his sons until they have attained

the age of puberty. He is also bound to maintain his daughters until

they are married. But he is not bound to maintain his adult sons unless

they are disabled by infirmity or disease. The fact that the children are

in custody of their mother during their infancy does not relieve the

father from the obligation of maintaining them.538 But the father is not

bound to maintain a child who is capable of being maintained out of

his or her own property.539 If the father is poor, and incapable of

earning by his own labour, the mother, if she is in easy circumstances,

is bound to maintain her children as the father would be.540 If the

father is poor and infirm, and the mother is also poor, the obligation to

maintain the children lies on the grandfather, provided he is in easy

circumstances.541

The effect of the Indian Majority Act, 1875 so far as the

Mohammedans are concerned is to extend the minority of child until

he completes the age of eighteen years, except in matters of marriage,

dower and divorce. However, according the Mohammedan law the

child attains majority when it attains puberty that is when he or she

attains fifteen years of age does not think such observation to be

correct.542 It is observed that the effect of Indian Majority Act is to

extend the period of incapacity to Act in matters other than above

three, namely, contracts, wills, gifts, Wakf etc. that it is not to enlarge

the duration of the right to maintenance after they have attained the

age of fifteen years nor is there any obligation for the parent to

maintain the child beyond that period except in case of a son who is

538 M. Tharaganar v. S. Ammal, AIR 1941 Mad 582; Mohammad Shamsuddin v. Noor

Jehan Begum, AIR 1955 Hyd 144. 539 Supra note 404 at 454. 540 Ibid. 541 Ibid. 542 Supra note 404 at 456.

– 230 –

disabled by infirmity or otherwise. However a child under the

Mohamadan law can pray for past maintenance.543

3.3.2.2.3 Obligation of Father to Maintain His Children

The obligation may be described as a personal obligation and

may be correctly so described. But that does not mean that the context

of that obligation falls within the Literal meaning of the expression

“personal”; saying that an obligation is personal does not mean that

the only sanction which the law imposes for the performance of the

obligation is to proceed against the obligee’s person whenever he fails

to discharge that obligation. In the context of the relationship between

a father and his minor children, all that the idea of personal obligation

imports is that he is under a duty to maintain them even on the mere

aspect of his being their parent

3.3.2.2.4 Right of Child to Be Maintained By Father Despite the

Fact That the Child Is In The Custody of The Mother

The position of a child who has not attained the age of

discretion or who is not of its own free will or volition living away

from the father is peculiar. If such a child is kept in custody by the

mother and is prevented from returning to the father, it cannot be said

that the child is at fault and that its conduct has disentitled it to

maintenance. Even if a child prefers to live with the mother due to

natural affection or attachment for her, that would not affect the

liability of the father to maintain the child. In such circumstances,

where the father objects to the custody of the child and asserts his own

legal right, the proper course for the father would be to apply for its

custody, but so long as the custody of the child remains with the

mother, he cannot refuse to pay maintenance for the child irrespective

543 Ibid.

– 231 –

of the fact whether or not the mother has a right to be maintained by

him.544

In the case of Dinsab Kasimsab v. Mahammad Huseen

Dinsab,545 and Kochukrishan Asan v. Rajan,546 support the contention

that if the father thinks that the child should live with him, his remedy

is to take proper proceedings in a Civil Court to obtain its custody,

and so long as the custody remains with the mother the child will be

entitled to maintenance. The question whether the mother or the father

was entitled to the custody of the children cannot be decided in a

summary manner in proceedings under Section 125 (Section 488, old)

of the Code of Criminal Procedure, 1973 and it is for the Civil Courts

to adjudicate upon the father’s claim to custody. The Criminal Courts

would thus be not justified in refusing maintenance to a child merely

because the mother refuses to part with its custody.547

3.3.2.2.5 Mother’s Duty to Maintain

Mother’sduty to maintain arises when the father is

necessetetious and mother is not poor.But where there is a mother and

a paternal grandfather or any other agnatic collateral, there is conflict

of opinion among the authorities whether the duty rest upon only

mother or both? Some hold that mother alone has right to maintain

while other states that liability has to be shared in proportion of

inheritance. Thus if there is grandfather or full brother or full paternal

uncle, maintenance will be provided to the extent of one-third and

two-third respectively by mother or grandfather or other agnatic

collateral.548

544 Abnash Chander Kanshi Ram v. Soshila Devi, AIR 1962 P&H 274. 545 AIR 1935 Bom 390. 546 AIR 1954 TC 225. 547 Supra note 544. 548 Supra note 369 at 305.

– 232 –

3.3.2.2.6 Maintenance of Grand-Children

A grandparent who is not poor is bound to maintain his grand-

child who has no father and mother or if the father is necessitous. The

liability is subject to the child having no property. If the child has any

property, the grandparent will be entitled to reimbursement. But if the

child has no property and the father is necessitous he would not be

entitled to reimbursement.549

3.3.2.2.7 Daughter

Under the Muslim personal law as stated by maintenance of

daughter extend until they are married.550 But, unlike Hindu Law, a

daughter when married passes into her husband’s family and there is

no obligation on the members of her paternal family to maintain her,

even if she is divorced.551

3.3.2.2.8 Maintenance of Daughter When She Stays Away From

Father

Where the father is entitled to the custody of the daughter and

offers to keep her in the house and maintain her. Such daughter has no

right to separate maintenance unless the circumstances are such which

justify the daughter in staying away from her father’s house. This is

when the father has divorced the mother of the daughter and had

married again. The father did not offer to keep her in the house and

later on become lunatic. Under these circumstances the daughter was

entitled to separate maintenance from the father even living separately

from him.552

549 Supra note 368 at 461. 550 Supra note 404 at 456. 551 Id., at 455. 552 Baya Bai v. Esmani Ahmed, AIR 1941 Bom 369.

– 233 –

3.3.2.2.9 Child Living With Divorced Wife

The father divorced the mother of the child and obtained an

order of guardianship and custody of the child from the civil Court

under Guardians and Wards Act but did not execute the said order and

the child is still living with the mother. The father cannot refuse to

maintain the child living with her divorced wife.553

The duty to maintain devolves on the mother if the father is

necessitous s and she herself is not poor. But where there is a mother

and a paternal grandfather or any agnatic collateral, there is a conflict

of opinion among the authorities whether the duty rests only on the

mother or on both. Some (including the Durr-ul-mukhtar) hold that the

mother alone has to maintain while others (including the Fatawai

Alamgiri) hold that the liability has to be shared proportionately

according to the share of inheritance. Thus, if there is grandfather or

full brother or full paternal uncle, maintenance will be provided to the

extent of one-third and two-thirds, respectively by the mother and the

grandfather or other agnatic collateral. The balance of authority is in

favour of the latter view.554

However, so far as the Muslim unmarried daughter is concerned,

she, according to personal law of Muslim, is liable to be maintained by

the father until married. However, so far as the adult sons are

concerned, the Muslim father under Muslim personal law is not liable

to maintain them unless they are disabled by infirmity or disease. But

the age of majority for the Muslim son is the date when he attains

puberty i.e. 15 years of age. That limitation does not apply when the

Muslim son not attaining 18 years of age and unable to maintain

himself applies for maintenance under Section 125 the Code of

Criminal Procedure, 1973. So the provisions of code can be attracted

553 Mohammad Shamsuddin v. Noor Jehan Begum, AIR 1955 Hyd 144: ILR (1955) Hyd

418. 554 Supra note 400 at 278.

– 234 –

to a Muslim minor son till he attains majority under the Indian

Majority Act, 1875.555

3.3.2.2.10 Illegitimate Children of the Muslims

Under the Muslim personal law an illegitimate child born out of

wedlock of Muslim male and Hindu female is not entitled to any

maintenance from the putative father and after his death from the

estate of the putative father.556

But the Muslim putative father is liable to maintain his

illegitimate child till it attains 18 years of age under Section 125 the

Code of Criminal Procedure, 1973. This is the clear statutory

provision under Section 125, the Code of Criminal Procedure, 1973.

The Muslim father can only avoid such maintenance on the proof that

he had no access to the mother. When the mother of the daughter had

no access with her ex-husband after divorce and the evidence did not

show that the daughter was born during the wedlock, the mother

cannot claim maintenance from her ex-husband as the ex-husband after

divorce had no access with the divorced wife.557

3.3.2.2.11 Maintenance of the Child of Divorced Muslim Wife

A Muslim minor child even after the father divorced the mother

can claim maintenance from its father by filing a petition under

Section 125, the Code of Criminal Procedure, 1973. The fact that

instead of mother the application under Section 125, the Code of

Criminal Procedure, 1973has been filed by the child, through its

maternal grandmother who is not a guardian of the minor under the

Muslim personal law is no ground to dismiss such an application for

maintenance filed by the maternal grandmother. Moreover, the fact

that the father has filed an application for custody of the child is no

ground to refuse the maintenance so long as the father does not get the

555 Supra note 67 at 468. 556 Pavitra v. Katheesumma, AIR 1959 Ker 319. 557 Mohd. NoorAlam v. State of Bihar, 2002 Cri LJ (NOC) 89 (Pat).

– 235 –

order of custody from civil Court under the Guardians and Wards

Act.558

3.3.2.2.12 Effect of Muslim Women (Protection of Rights on

Divorce) Act, 1986

It is now well settled that the right of Muslim minor children for

maintenance from their father when they are living with their mother

when the father had sufficient means till they attained majority and in

case of daughter till they got married is not affected by Section

3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act,

1986.559

Therefore, the right of the Muslim children under Section 125,

the Code of Criminal Procedure, 1973is not affected by any of the

provisions of the Muslim Women (Protection of Rights on Divorce)

Act 1986 including the provision of Section 3(6) of the Muslim

Women (Protection of Rights on Divorce) Act, 1986. Their rights are

covered by Section 125 of Code and that right has not been taken away

by the provision of Section 3(1)(b) of the Muslim Women (Protection

of Rights on Divorce) Act, 1986.560

It is clear that the provisions of the 1986 Act are not applicable

to deny the right of a minor daughter to claim maintenance from her

father till she attains majority.561

3.3.2.3 Maintenance of Parents

Children in easy circumstances are bound to maintain their poor

parents, although the latter may be able to earn something for

themselves.562

558 Yousuff Rawther v. Ashraf, 1997 Cri LJ 4313 (Mad); Noor Jehan v. State of

Maharashtra, 1995, Cri LJ 2154 (Bom). 559 Noor Saba Khatoon v. Md. Quasim, AIR 1997 SC 3280; 1997 Cri LJ 3972; (1997) 6

SCC 233; see also Abdul Latif Mondal v. Anwara Khatoon, 2002 Cri LJ 2282 (Cal); Abdul Latif Mondal v. Anwara Khatoon, 2002 Cri LJ 1751.

560 Mohammad Abdul Hai v. Sabha Khatoon, 2007 Cri LJ 1394. 561 G.M. Geelani v. Shanwar Kulson, 1994 Cri LJ 271 (AP).

– 236 –

3.3.2.3.1 Maintenance of Muslim Mother

The mother has the next position in of maintenance after the

children.563 The liability to maintain her rests only on the children and

is not shared by anyone else.564 At between parents the mother is

entitled to preference over the father. Children in easy circumstances

are bound to maintain their poor parents, although the latter may be

able to earn something for themselves. A son though in strained

circumstances is bound to maintain his mother, if the mother is poor

though not infirm.565

A son though in straitened circumstances is bound to maintain

his mother, if the mother is poor, though she may not be infirm.566 A

son, who, though poor, is earning something, is bound to support his

poor father who earns nothing.567

3.3.2.3.2 Unable To Maintain Himself or Herself

The parents have the statutory right to be maintained by the son

or daughter having sufficient means. Even if the parents did not

maintain the child nor did they bring them up the adult son or daughter

cannot avoid their obligation to maintain the parents who apply under

Section 125, the Code of Criminal Procedure, 1973 being unable to

maintain him or herself.568

If the son is poor but is earning something, he may be

compelled to maintain if he has any surplus. If he has got wife and

children all that he can be compelled to do is to bring his father to live

into his family but he is not obliged to give separate maintenance.569

562 Supra note 404 at 457. 563 Supra note 368 at 466. 564 Id., at 465. 565 Supra note 404 at 457. 566 Ibid. 567 Ibid. 568 Pandurang v. Baburao, 1980 Cri LJ 256. 569 Ibid.

– 237 –

Under the Shia law , the right of the two parents are equal. So

also the right of the parents and children are equal. maintenance must

in each case be divided equally. But the parents are preferred to

grandparents.570

3.3.2.3.3 Proportions of Liability

There is a difference of opinion as to the extent of the liability

of different children to maintain the parents. Few have opined states

that the liability is in proportion to the shares of inheritance.571

Another opinion is that if there is considerable difference in the

means, maintenance is to be provided in proportion to the means,572

but the better opinion seems to be that duty to support is equal. The

right is equally incumbent upon a son and a daughter according to

Zahi Rawayat and this is approved.573

3.3.2.3.4 Children

Children have been given wider meaning to include not only son

or daughter, but also grandson or granddaughter, but it does not

include a minor. Therefore, under this Act the maintenance may be

claimed not only against son or daughter but also against grandson or

granddaughter. But the grand-children of a person would not billable

to maintain if there is a husband, children or parents who would be

under a duty to maintain, even though they may be entitled to inherit.

Thus, if a man has a daughter or father and a son’s son, the daughter

or the father must maintain. The son’s son would not be bound to

maintain even though he is entitled to inherit.574

570 Supra note 463 at 102. 571 Supra note 373 at 147. 572 Supra note 400 at 279. 573 Supra note 368 at 466. 574 Id., at 467.

– 238 –

A person is bound to maintain his paternal and maternal

grandfathers and grandmothers if they are poor but not otherwise, to

the same extent as he is bound to maintain his poor father.575

It is to be noted that even though under Muslim personal law the

grandparents have the right to claim maintenance, but under Section

125, Code of Criminal Procedure the grandson has no obligation to

maintain his grandparents paternal or maternal.

But where there are both grand-parents and grand-children, the

liability would be of both proportionately to the extent of their shares

in inheritance. Thus, if there is a father’s father and a son’s son they

must provide maintenance in proportion of one-sixth and five-sixths.576

3.3.2.3.5 Liability of Grand Children

The grand-children of a person would not be liable to maintain

if there is a husband, children or parents who would be under a duty to

maintain, even though they may be entitled to inherit. Thus, if a man

has a daughter or father and a son’s son, the daughter or the father

must maintain. The son’s son would not be bound to maintain even

though he is entitled to inherit.577 As in the case of sons, the liability

of all grand-children would be equal.

But where there are both grand-parents and grand-children, the

liability would be of both proportionately to the extent of their shares

in inheritance. Thus, if there is a father’s father and a son’s son they

must provide maintenance in proportion of one-sixth and five-sixths.578

3.4 Provisions Related to Maintenance under the Special

Marriage Act, 1954

The Special Marriage Act, 1954 was enacted to provide a

special form of marriage for the people of India and all Indians 575 Supra note 404 at 457. 576 Supra note 368 at 468. 577 Id., at 467. 578 Id., at 468.

– 239 –

residing in foreign countries, irrespective of the religion or faith

followed by either party, to perform the intended the marriage.

According to the Act, the bride and the groom shall observe any

ceremonies for the solemnization of their marriage, provided they

complete certain formalities that are prescribed for the marriage, by

the Act.579 It gives opportunity to prospective matches to select their

partners outside their own caste, sub-caste, community and religion

too, if they so choose. Boys and girls who want to get married outside

their religion and caste can resort to civil marriage which requires no

rites or customary ceremonies.580

3.4.1 Wife’s Right to Claim Maintenance under the Act

Under the Special Marriage Act, 1954, unlike the Hindu

Marriage Act, 1955, only the Wife has been granted the right to Claim

maintenance from her husband. The Act provides the following two

remedies to the wife, in case of Matrimonial Proceedings initiated

against or by the husband:

(i) Alimony Pendente Lite

(ii) Permanent Alimony or maintenance

3.4.1.1 Alimony Pendente Lite

As soon as a matrimonial proceeding is initiated, the wife may

apply for Alimony Pendente Lite in Section 36 of theSpecial Marriage

Act, 1954 Act, which reads as follows:

“36. Alimony Pendente Lite:

Where in any proceeding under Chapter V or Chapter VI it

appears to the District Court that the wife has no independent income

sufficient for her support and the necessary expenses of the

579 The Special Marriage Act, Available at http://www.webcitation.org/5symq8ed8,

(accessed on 18 March 2015). 580 Nomita Aggarwal, Women and Law in India, 91 (2002).

– 240 –

proceeding, it may, on the application of the wife, order the husband

to pay to her the expenses of the proceeding, and weekly or monthly

during the proceeding such sum as having regard to the husband’s

income, it may seem to the Court to be reasonable:

Provided that the application for the payment of the expenses of

the proceeding and such weekly or monthly sum during the proceeding

under Chapter V or Chapter VI, shall, as far as possible, be disposed

of within sixty days from the date of service of notice on the

husband” .581

3.4.1.1.1 Alimony Pendente Lite To the Wife Alone

It has already been indicated that under Section 36 of the

Special Marriage Act, it is the husband who has the liability to pay the

Alimony Pendente Lite and Expenses of the Proceedings. Unlike

Section 24 of the Hindu Marriage Act, 1955 the wife has no such

liability, even if she is solvent enough to maintain her husband.

Allahabad High Court has, however, held that the husband cannot

escape the liability to pay the maintenance if he has been or has

become a Sadhu (Ascetic).582

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 wife has no independent means, she is entitled to

Interim maintenance and expenses of the proceedings unless good

cause is shown for depriving her of the same. The fact that the wife is

maintained by her parents is no ground to deprive her of the

maintenance and expense of the litigation.583

The property of the wife under litigation cannot be considered

for judging if she has independent income to support her. In that case,

581 Sec 36, the Special Marriage Act, 1954. 582 Hardev Singh v. State of UP, II (1995) DMC 624 (All). 583 Bulti Debi v. Chhote Lal, II (1986) DMC 248 (MP).

– 241 –

the property she got by will was under litigation with her brothers.

Even if the wife concealed about such income in a petition under

Alimony Pendente Lite of the wife, it is not fatal.584

The words that she has no independent income sufficient to

support in Section 36 of theSpecial Marriage Act, 1954, suggest that

the income of the wife must be as such which is not sufficient for her

support. Even if the wife’s parents are affluent but the wife had no

independent income of her sufficient to support her, she is entitled to

maintenance Pendente Lite.585

The fact that the wife sits in her father’s shop and earns a lot is

not her income, but her father’s income and that fact is no ground for

refusing the Alimony Pendente Lite to her.586

3.4.1.1.2 Commencement and Duration of Alimony Pendente

Lite

The words “during the proceedings” occurring in Section 36 of

the Special Marriage Act and Section 24 of the Hindu Marriage Act

and the words “pending the suit’ in Divorce Act seem to suggest that it

is competent for the Court ordering Alimony Pendente Lite to make its

operation from the date of submission of the original proceeding and

not necessarily the date of making the application for Alimony

Pendente Lite.587

Rayden on Divorce588 has laid down that an order of

maintenance Pendente Lite may be ordered to commence from the date

of commencement of the proceeding or from a later date.589

584 Prem Nath v. Premlata, AIR 1988 Del 50. 585 C.B. Joshi v. Ganga Debi, AIR 1980 All 130. 586 Gayatri Devi v. Laxmi Kant, II (1986) DMC 214. 587 Radha Kumari v. K.M.K. Nair, AIR 1983 SC 139; Amrit Nehru v. Usha Nehru, 1982

Sri LJ 230; Kamala Rani v. Ram Kumar, (1971) 73 PLR 912 (P&H). 588 Supra note 297 at 701. 589 Ibid.

– 242 –

3.4.1.1.3 Alimony Pendente Lite in a Proceeding for Setting

Aside Ex Parte Decree for Divorce

When the husband obtains an Ex Parte Decree for divorce and

the wife has filed an application under Order 9, Rule 13, Code of Civil

Procedure for setting aside such ex parte decree, the wife can apply

for Alimony Pendente Lite in such a proceeding.590

3.4.1.1.4 Alimony Pendente Lite When Relationship Denied

Even if the husband in a matrimonial proceeding by the wife

denies the relationship of the husband and wife with the petitioner, the

Court may allow Alimony Pendente Lite pending the hearing of the

suit.591

But when in a matrimonial proceeding filed by the husband, the

respondent wife challenges the factum of marriage she cannot claim

Alimony pendent Lite.592

However, the wife filed a petition for judicial separation against

the respondent and the husband took the plea that the marriage had

been dissolved long ago and the petitioner is longer his wife. Such a

fact can only be established by evidence during trial and only because

such a plea has not been denied by the wife she cannot be denied

Alimony Pendente Lite.593

But the Punjab and Haryana High Court is Sarabjit Singh v.

Charanjit Kaur,594 and the Madhya Pradesh High Court in Laxmi Bai v.

Ayodhya Prosad,595 whave held otherwise that even if it be prima facie

590 Amrit Nehru v. Usha Nehru, 1982 Cri LJ 230 (J&K). 591 Daulat Ram v. Kaliya, 1982 MP LJ 16 (NOC). 592 Vinod Kumar v. Usha, AIR 1993 Bom 160. 593 Gopal v. Dhapubai, II (1986) DMC 313 (MP). 594 AIR 1997 P&H 66. 595 II (1990) DMC 594 (MP).

– 243 –

bigamy, till the validity of the marriage is decided, the wife shall get

Alimony Pendente Lite.

There is every justification in taking the above view. Section 36

of the Special Marriage Act provides that in any proceedings under

Chapters IV and V of the Act, the wife may apply for Alimony

Pendente Lite and cost of the proceedings. Part IV of the Act begins

with a suit for restitution of conjugal rights. Therefore, it cannot be

assumed that only because the husband has filed an application for

restitution of conjugal rights to secure the consortium of the other

spouse, the petitioner husband has no liability to maintain the wife,

even if he filed the suit to secure the company of the wife. Moreover,

in a suit for restitution of conjugal rights by the husband against the

wife, the wife may have a ground for withdrawal from the society of

the husband. Therefore, at the interim stage when the wife prays for

Alimony Pendente Lite under Section 36 of the Special Marriage Act,

she cannot be deprived of, Alimony Pendente Lite in a proceeding for

restitution of conjugal rights.596

3.4.1.1.5 Conduct of the Petitioner When Relevant

When the Alimony Pendente Lite is prayed for, the Court cannot

reject the application of pre-judging the issue and holding that she

being guilty of matrimonial offence is not entitled to maintenance.

Such a question of her committing any matrimonial offence is an

extraneous consideration for Alimony Pendente Lite.597

This is because the enquiry contemplated in a proceeding for

Alimony Pendente Lite is summary in nature and the Court cannot go

into the merits of the case and has to decide the question on prima

facie materials.598

596 Supra note 67 at 673. 597 Ganga v. Pondlik, AIR 1979 Bom 264. 598 Sarirekha Dei v. Murlidhar Subudhi, (1973) 2 Cut WR 1304 (Ori).

– 244 –

3.4.1.1.6 Litigation Expenses

Like Section 24 of the Hindu Marriage Act, 1955, Section 36 of

the Special Marriage Act, 1954 has also provided for the wife claiming

litigation expenses along with Alimony Pendente Lite. Pending the

matrimonial proceedings, the wife will be entitled to funds to enable

her either to prosecute the case or to defend the case if filed by the

husband. For such purpose, she is entitled to a reasonable amount

unless in a divorce petition against the wife, the Court is satisfied that

she is supported by the adulterous co-respondent and is not in need of

payment.599

When the wife refuses to receive free legal aid under the

provisions of the Legal Services Authorities Act, 1987, she is not

entitled to get the litigation expenses.600

3.4.1.1.7 Procedure to be Followed

The petitioner wife may include the claim for Alimony Pendente

Lite in the original matrimonial proceedings itself when she is the

petitioner. Such petition must contain a statement of the income of the

husband within the knowledge or belief of the petitioner. But when the

prayer for Alimony Pendente Lite is not included in the original

petition, she may file a subsequent application. The wife or respondent

may file such a petition even before riling the written statement.601

An order of Alimony Pendente Lite should be supported by

reasons and the applicant wife has to establish that she has no

independent income of her own in order to get Alimony Pendente Lite

under Section 36 of the Special Marriage Act, 1954. Even if the wife

has some income, she has to establish that such meagre income is not

599 Mahalingam Pillai v. Amsavelli, (1956) 2 MLJ 289. 600 Ashok Kumar v. Bhavanaben, I (2001) DMC 87 (Guj). 601 Lalita Ghosh v. Sobha Devi, AIR 1987 Raj 159.

– 245 –

sufficient for her to support her and to pay for expenses of the

proceedings.602

It is held that when the wife satisfies that she has no

independent income of her own to support her and to pay the litigation

expenses, then she is entitled to get the above unless good reason is

shown for depriving her. The fact that the wife is being maintained by

her parents is no ground to deprive the wife the relief under Section 36

of the Special Marriage Act.603

In another decision, the Bombay High Court has also held that

without deciding the wife’s application for Alimony Pendente Lite, the

Court cannot be permitted to pass an ex parte decree against the wife

on the ground that the wife had failed to file the written statement.

When it will be difficult for the wife to file the written statement

against the husband’s petition without any order of litigation

expenses, it-would be impractical to insist on the wife to file written

statement and on failure to do so decree the suit ex parte.604

3.4.1.1.8 Maintenance Pendente Lite During Pendency of the

Proceedings for Permanent Alimony

The application for permanent Alimony can be made after the

marriage being dissolved under the Special Marriage Act. It is

arguable whether during the pendency of the proceedings for

permanent Alimony before the marriage has been dissolved, the wife

can apply for interim Alimony. However it was held by different High

Courts that the application for maintenance Pendente Lite is not

tenable after the termination of the main proceedings.605

602 Samru Singh v. Dhanamani Singh, II (1986) DMC 151 (Ori). 603 Balti Devi v. Chhotelal, II (1986) DMC 248. 604 Meena Deshpande v. Prakash, AIR 1983 Bom 409. 605 Chitralekha v. Ranjit Rai, AIR 1977 Del 176; Nirmala Devi v. Ram Das, AIR 1973

Punj 48.

– 246 –

3.4.1.1.9 Determination of the Quantum of Alimony Pendente

Lite

In order to decide to what should be the quantum of Alimony

Pendente Lite, it is necessary to look into the provisions of Section 36

of the Act. It is only when the wife has no independent income

sufficient for her support and the necessary expenses of the

proceeding, the District Court may, on the application of the wife,

order the husband to pay her the expenses of the proceedings and such

sum, weekly or monthly during the proceedings, as having been regard

to the husband’s income, it may seem to the Court to be reasonable.

Therefore, under Section 36 of the Act the Alimony Pendente Lite is

payable weekly or monthly together with the necessary expenses for

the proceedings only on being satisfied that (a) the wife has no

independent income sufficient for her support and necessary expenses

of the proceedings and (b) order for such payment has to be made

against the husband to pay the wife’s expenses of the proceedings and

weekly or monthly during the proceedings, such sum as having been

regard to the husband’s income, it may seem to the Court to be

reasonably. Even if she has immovable properties, but such property

yielding no income cannot be considered.606

As regards the quantum, the preponderance of the judicial

decisions is that in respect of the Alimony Pendente Lite either under

the Hindu Marriage Act or under the Special Marriage Act, there is no

hard-bound formula as to the quantum; the Court is to award as

Alimony Pendente Lite.607

3.4.1.2 Permanent Alimony

606 Geeta Chatterjee v. Prabhat Kumar, AIR 1988 Cal 83. 607 Vinay Kumar v. Purnima Debi, AIR 1973 Raj 32; Hema v. Lakshmana Bhat, AIR

1986 Ker 130.

– 247 –

Provision for permanent Alimony is given in Section 37 of the

Special Marriage Act, 1954 which runs as follows:

“37. Permanent Alimony and Maintenance

(1) Any Court exercising jurisdiction under Chapter V or

Chapter VI may, at the time of passing any decree or at

any time subsequent to the decree, on application made to

it for the purpose, order that the husband shall secure to

the wife for her maintenance and support, if necessary, by

a charge on the husband’s property, such gross sum or

such monthly or periodical payment of money for a term

not exceeding her life, as, having regard to her own

property, if any, her husband’s property and ability, the

conduct of the parties and other circumstances of the

case, it may seem to the Court to be just.

(2) If the District Court is satisfied that there is a change in

the circumstances of either party at any time after it has

made an order under sub-Section (1), it may, at the

instance of either party, vary, modify or rescind any such

order in such manner as it may seem to the Court to be

just.

(3) If the District Court is satisfied that the wife in whose

favour an order has been made under this Section has

remarried or is not leading a chaste life, it may, at the

instance of the husband vary, modify or rescind any such

order and in such manner as the Court may deem just.608

3.4.1.2.1 Relevant Considerations for Granting Permanent

Alimony under Section 37 of the Special Marriage Act,

1954

608 Section 37, the Special Marriage Act, 1954.

– 248 –

While granting permanent Alimony under Section 37 of the

Special Marriage Act, 1954, the Court has to keep in view, the

following considerations, namely:

(i) Husband’s own income;

(ii) Income of the husband from other property;

(iii) Own property of the applicant, if any; and

(iv) Ability and conduct of the party.

3.4.1.2.2 The Object

The object of providing permanent Alimony and maintenance is

that none of the parties should suffer to get justice from the Court and

the divorced wife on account of her financial deficiencies had not been

deprived of maintaining herself after the decree of divorce. While

awarding permanent Alimony and maintenance, the Court is required

to keep in view as to whether the wife claiming the maintenance was

herself earning so that the husband should not be saddled with the

monetary burden.609

3.4.1.2.3 Formal Application Not Necessary

On the dissolution of marriage, the wife is entitled to permanent

Alimony under Section 37 of the Special Marriage Act, 1954 and it

can be granted to her in the absence of any formal application

therefore and by making verbal prayer being made before the District

Court.610

3.4.1.2.4 Permanent Alimony after Decree of Nullity of

Marriage

609 Ramlal v. Surender Kaur, 1995(1) Civ LJ 204 (P&H). 610 Jaya Krishna v. Surekha, AIR 1996 AP 19.

– 249 –

Regard being had to the language used in Section 37 of the

Special Marriage Act, 1954 as to the passing of the decree either under

Chapter V or under Chapter VI of the Act, the Court grants Permanent

Alimony. So, the Permanent Alimony can be granted in favour of the

wife even when the decree for nullity of marriage is granted on any

ground even though strictly speaking the wife whose marriage is

annulled and void cannot be strictly speaking the wife.611

3.4.1.2.5 No Permanent Alimony after the Suit Dismissed

Similarly as Hindu Law, the Hon’ble Supreme Court has held

that when the prayer for divorce is dismissed, the marital status after

dismissal of the suit remains unaffected and the Court cannot make

any order for Permanent Alimony.612

It is only when a decree is passed either for Restitution of

Conjugal Rights, or Judicial Separation, or Divorce or for Annulment

of Marriage, the Permanent Alimony can be granted. Therefore in case

of decree for divorce when the matrimonial tie is no longer in

existence, the Permanent Alimony can be ordered.613

If such petition fails and the marriage tie remains subsisting, the

question of grant of Permanent Alimony does not arise. The Supreme

Court has also made it clear that the claim of Permanent Alimony

under any matrimonial statute is not to be entertained when the

matrimonial status of the parties has not been dissolved by a decree

for divorce.614

3.4.1.2.6 Application May be Filed Even Subsequent To the

Decree for Divorce Passed

611 Kishan v. Shukhar Bai, 1988(1) CCC 529 (Kant); Subramanim v. Sreelata, 1(1986)

DMC 32 (Ker); Gopal Krishna Nair v. Thambuthi Namdi, AIR 1989 Ker 331. 612 Aruna Basu Mallick v. Darotheen Mitra, AIR 1983 SC 916. 613 Govind Rao v. Anandi Bai, AIR 1976 Bom 433. 614 Chand Dhawan v. Jawaharlal Dhawan, (1993) 3 SCC 406.

– 250 –

It is not necessary that the petition should be simultaneously

filed but it must at least be filed within a reasonable time after the

decree. Unless the delay in filing the application is such as to amount

to abandonment of the right to claim Permanent Alimony, such

application should be granted.615

3.4.1.2.7 Is Section 37 of the Special Marriage Act, 1954 is Ultra

Vires

It is the wife who is entitled to claim both Alimony Pendente

Lite and Permanent Alimony against the husband and there is no

corresponding right of the husband under the Special Marriage

Act,1954 to apply for either Alimony Pendente Lite or Permanent

Alimony, the question arose as to whether such a provision is ultra

vires the Constitution. Calcutta High Court has negatived such a plea.

It is held that this provision is not ultra vires of the Constitution on

the ground of discrimination pertaining to sex and assuming it makes

the discrimination, it is valid in view of the special provision of

women and children referred to in clause (3) of Article 15 of the

Indian Constitution.616

3.4.1.2.8 Agreement to Give Up Permanent Alimony

An agreement by which the wife gives up her claim of

Permanent Alimony and the husband gives up his claim of custody of

the child, which was entered into during the pendency of the

matrimonial proceeding has been upheld on the ground that it is not

opposed to the public policy. But according to the Kerala, High Court

such an agreement is void being against the public policy.617

615 Erween Klein v. Cathleen Klein, AIR 1954 Cal 406; 58 CWN 169; Santhamal v. S.

Thajigraj, AIR 1975 Kant 23: (1974)2 Kant LJ 422. 616 Purna Chandra Banerjee v. Swapna Banerjee, AIR 1981 Cal 123. 617 Sadasivan Pillai v. Vijayalakshmi, (1986) 3 Crimes 508 (Ker).

– 251 –

The test as to whether an agreement is against the public policy,

the Supreme Court has observed, “What makes an agreement,

otherwise legal or valid is that its performance is impossible except by

disobedience by law, and clearly no question of illegality can arise

unless the performance, of the unlawful act was necessarily the effect

of the agreement”.618

3.4.1.2.9 Conduct of the Party Receiving Permanent Alimony

In a matrimonial proceeding none is entitled to the benefit of

his own wrong and this is technically called the doctrine of sincerity

and recognized in Section 23 of the Hindu Marriage Act, 1955, Section

31 of the Special Marriage Act, 1954 and Section 14 of the Divorce

Act, 1869. But it is held that even if the wife is not complying with

the decree of Restitution of Conjugal rights and a decree for divorce

has been passed owing to her failure to comply with that decree, the

wife is also entitled to Permanent Alimony.619

However, the words “Conduct of the Parties” in Section 37 of

the Special Marriage Act, 1954 or also under Section 25 of the Hindu

Marriage Act, 1955 or Section 37 of the Divorce Act, 1869, is

obviously of relevant consideration for granting Permanent

Alimony.620

3.4.1.2.10 Payment of Permanent Alimony

Under Section 37 of the Special Marriage Act, 1954 provides

the District Court can award any gross sum or such monthly or

periodical payment of money for a term not exceeding her life.

Not only the income of the respondent husband but also the

extent of assets acquired by him is required to be taken into

618 Lacho Mal v. Radhey Shyam, AIR 1971 SC 2213. 619 Dharamshi Premji v. Bai Shankar Premji, AIR 1968 Guj 150. 620 Tarlochan Singh v. Mahinder Kaur, ILR (1961)1 Punj 74.

– 252 –

consideration for determination of monthly or periodical payment. If

the wife is also possessed of property, the estimated income of the

same has to be considered. If the same is sufficient, the District Court

need not pass any order of Permanent Alimony. But if such estimation

of income from the wife’s property is not sufficient for her

maintenance and support, the quantum has to be fixed, considering the

estimated income of the wife’s property and the estimated income of

the husband’s property to ascertain the amount which shall be

sufficient for divorced wife to satisfy her need of support till her

death, if she does not remarry.621

3.4.1.2.11 Execution of Permanent Alimony Order after the

Death of the Husband

The Supreme Court in Aruna Basu Mallick v. Dorotheen

Mitra,622 has also held that the decree for Alimony passed under

Section 37 of the Special Marriage Act, 1954 does not extinguish with

the death of the husband judgment-debtor and the assets left behind

him and in the hand of his legal heirs are liable to be proceeded for the

satisfaction of the decree for maintenance.623

Section 37 makes it clear that the permanent Alimony is for the

wife’s support and maintenance. The wife is entitled to one-third of

the income of the husband for her maintenance inclusive of food,

clothing, residence, education, and medical expenses which are bare

necessities of life.624

3.4.1.2.12 Modification, Variation and Rescinding of Order of

Maintenance

621 Supra note 67 at 695. 622 AIR 1983 SC 916. 623 Ibid. 624 Sou Sushma alias Sulochana v. Kanumalla, I (1998) DMC 564.

– 253 –

Sub-Section (2) of Section 37 of the Special Marriage Act, 1954

which is akin to sub-Section (2) of Section 25 of the Hindu Marriage

Act, 1955 provides that if the District Court is satisfied that there is a

change in the circumstances of either party at any time after it has

made the order under sub-Section (1), it may, at the instance of either

party, vary, modify or rescind any such order in such manner as the

Court may deem just.625

Under sub-Section (3) of Section 37 of the Special Marriage

Act, 1954 provides that if the District Court is satisfied that the wife

in whose favour an order has been made has remarried or is not

leading a chaste wife, it may at the instance of the husband vary,

modify or rescind in such order and in such manner of the Court may

deem justify. Similar is the provision in Section 25(3) of the Hindu

Marriage Act, 1955 with this exception that in that Act the Court can

take action if the wife leads an unchaste wife after the decree for

divorce.

However, in Amar Sen v. Sobhana Sen,626 even if the Permanent

Alimony has been denied to the wife against whom decree for divorce

on the ground of adultery has been passed, yet the wife was held to be

entitled to a starving allowance which was to be withdrawn when she

would have an independent income.

The Hon’ble Supreme Court in Reynolds Raja Mani v. Union of

India,627 has laid down that, “The law which grants decree of divorce

must secure for her some measure of economic independence. It

should be so whatever be the ground for divorce whether it is mutual

625 Section 37(2) of the Special Marriage Act, 1954. 626 AIR 1960 Cal 438. 627 AIR 1982 SC 1261.

– 254 –

consent, irretrievable break down of marriage or even the fault of the

woman herself”.628

Even when the Permanent Alimony order has been passed by the

Court on the basis of the consent, it would not stand in the way of the

wife praying of enhancement of such maintenance under sub-Section

(2) of Section 37 of the Special Marriage Act, 1954 on showing

change in the circumstances since the date the order on consent was

passed. No question of estoppel or Res Judicata is attracted in filing a

petition for enhancement of the permanent Alimony on change of

circumstances, the reason being that the order of permanent Alimony

is not final and even if the order was passed on consent, the Court can

enhance it because of the change on the circumstances if so

required.629

3.4.2 Maintenance and Custody of Children

“38. Custody of children:

In any proceeding under Chapter V or Chapter VI the district

Court may, from time to time, pass such interim orders and make such

provisions in the decree as it may seem to it to be just and proper with

respect to the custody, maintenance and education of minor children,

consistently with their wishes wherever possible, and may, after the

decree, upon application by petition for the purpose, make, revoke,

suspend or vary, from time to time, all such orders and provisions with

respect to the custody, maintenance and education of such children as

might have been made by such decree or interim orders in case the

proceeding for obtaining such decree were still pending.

Provided that the application with respect to the maintenance

and education of the minor children, during the proceeding, under

628 Ibid. 629 Ram Shankar Rastogi v. Vinay Rastogi, AIR 1991 All 255.

– 255 –

Chapter V or Chapter VI, shall, as far as possible, be disposed of

within sixty days from the date of service of notice on the

respondent”.630

3.4.2.1 Scope of Maintenance to Children under the Special

Marriage Act, 1954

This provision relating to the custody of the children and

maintenance is Pari Materia with Section 26 of the Hindu Marriage

Act, 1955 and Sections 41-44 of the Indian Divorce Act, 1869.

Disruption of the marital relations between the spouses is fraught with

grave consequences for the welfare of the minor children and

accordingly provisions have been made for safe-guarding their interest

and welfare. However, Section 38 contemplates minor children only.

The minority of the children will be determined with respect to the

Indian Majority Act, 1875 and it is in relation to the children only who

are minors that the provisions of s. 38 of the Act would apply.

Under Section 38 of the Special Marriage Act, power has given

to the Court, namely:

(i) to pass interim orders from time to time during the

pendency of the proceedings before it;

(ii) To make provisions in the decree passed.

The Supreme Court has observed that in making an order in

respect of the custody of the child, the welfare of the child is the

paramount consideration, not the rights of the parties.631

The Court is also to see the conscious wishes of the minors,

keeping in view that the happiness of the child depends upon his

630 Section 38 of The Special Marriage Act, 1954. 631 Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090; Veena Kapoor v. N.K.

Kapoor, AIR 1982 SC 792.

– 256 –

playmates, love and affection which a child needs for his proper

growth.632

3.5 Maintenance under the Indian Divorce Act, 1869 (Applicable

to Christians)

The basis of Christian Matrimonial Laws i.e. the law related to

divorce in the Indian Divorce Act, 1869 and that governing the

marriage provisions in the Christian Marriage Act, 1872 were based

upon the laws prevalent in British Empire Structure of Governance

specially the Matrimonial Causes Act, 1857.633

3.5.1 Who are Christians?

The per definition of term ‘Christian’ has been provided in

Section 3 of the Indian Christian Marriage Act, 1872 ,’Christian’

means persons professing the Christian Religion and the expression

‘Indian Christian’ means the Christians descendants of natives of

India, converted in to Christianity, as well as such converts.634

3.5.2 Provisions Related to Maintenance

The matrimonial provisions under the Christians are governed

under the Indian Divorce Act, 1869, which aims are the providing

relief exclusively to the Christian women. Section 36-38 of the Act

incorporates the provisions related to Alimony as follows:

3.5.2.1 Alimony Pendente Lite

Section 36 of the Divorce Act 1869 provides for Alimony

Pendente Lite. In the case titled Ivan Erasmus v. Mrs. Zena

632 Hari Chand Ratan Chand v. Bala, (1974) 15 Guj.L.R 499. 633 “Cultural Diversity and Gender Equality: The Case of Christian Community in

India”, Available at http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/ 18865/9/09_chapter%204%20i_4%20iii.pdf, (accessed on 23 June 2015).

634 Section 3 of the Indian Christian Marriage Act, 1872.

– 257 –

Erasmus,635 Deoki Nandan J. of Allahabad High Court has beautifully

laid down the object of the Section 36 of the Indian Divorce Act, 1869

that, “it does not decide the rights of the parties but is only meant to

enable the indigent wife to maintain herself till the final disposition of

the for the matrimonial relief. The object is to enable the wife to live

and defend the proceedings. The order is of summary nature and meant

to advance the cause of justice as an order passed in the aid of final

order. It is not to settle the old score between the parties but to

advance the cause of justice . . .”.

“Section 36: Alimony Pendente Lite:

In any suit under this Act, whether it is instituted by a husband

or a wife, and whether or not she has obtained an order of protection

the wife may present a petition for expenses of the proceedings and

Alimony pending the suit. Such petition shall be served on the

husband; and the Court, on being satisfied of the truth of the

statements therein contained, may make such order on the husband for

payment to the wife of the expenses of the proceedings and Alimony

pending the suit as it may deem just:

Provided, further that the petition for the expenses of the

proceedings and Alimony pending the suit, shall, as far as possible, be

disposed of within sixty days of service of such petition on the

husband”.636

3.5.2.1.1 Only Wife Entitled To Claim Benefit

It is to be noted that unlike Section 24 of the Hindu Marriage

Act, 1955 which enables not only wife but also husband to apply for

Alimony Pendente Lite, but like the provision of Special Marriage

635 AIR 1982 All 195. 636 Section 36, the Indian Divorce Act, 1869.

– 258 –

Act, 1954, it is only the wife who can pray for expenses of the

proceedings and Alimony Pendente Lite.

3.5.2.1.2 When Does the Right Accrue

Under Section 36 of the Divorce Act, 1869 the cause of action

for the wife arises as soon as matrimonial proceeding is initiated

either by the husband or by the wife. When such an application is filed

by the wife under Section 36 of the Divorce Act, 1869, the order of

expenses of the proceedings and Alimony pending the suit has to be

passed by the Court on giving proper notice to the husband and under

the proviso to Section 36 of the same has to be disposed of within

sixty days of the date of service of notice on the husband. The Court

cannot defer the matter till the final decree of the suit filed by the

husband for nullity of marriage.637

The expression “sufficient” is significant; it is not “some.” It

connotes that the income of the applicant must be such as to be

sufficient for a normal person for her maintenance as well as to meet

the necessary expenses of the proceedings.638

3.5.2.1.3 Procedure for Awarding Alimony Pendente Lite

Court has been given power to consider the truth of the

statements contained in the petition of the wife for costs of the

proceedings and the Alimony pending the suit and make the payment

of the wife towards the same. When, however, the husband in the

written objections raises the plea that the wife had sufficient income

of her own to support her, the Court may consider the same and if not

satisfied then make the order for payment against the husband. Though

Section 36 of the Divorce Act, 1869 does not indicate what a Court

would consider in order to pass an order but the District Court has to

637 Sushila v. Viresh, AIR 1996 Bom 94. 638 Krishnapriya Mahapatra v. Birakissore Mahapatra, AIR 1987 Ori 65.

– 259 –

be satisfied of the statement made by the petitioner wife and then to

pass the order as it deems just. So, wide discretion is given to the

Court in this respect.639

3.5.2.1.4 Order of Maintenance Pendente Lite on Termination

of the Main Proceedings

When husband’s main petition is dismissed on any ground

whatsoever under the Divorce Act, 1869, the wife, in such a case,

cannot pursue the said application for Alimony Pendente Lite.

However, when the husband sued the wife for divorce and the trial

Court granted maintenance Pendente Lite, the wife subsequently

applied for enhancement of the said Alimony Pendente Lite on the

ground that the husband’s salary has been increased but that was not

allowed. The wife filed a revision petition against the order, but in the

meantime, the original suit for divorce stood disposed of. It was

consequently held by the Calcutta High Court that the wife cannot

thereafter pursue the application for enhancement nor can she pursue

the revisional application.640

3.5.2.1.5 Fresh Application After Withdrawal of the Earlier

Application for Alimony Pendente Lite and Expenses

of the Proceedings

It is held if during the pendency of the matrimonial

proceedings, a spouse filed an application for Alimony and then

withdraws the same, this does not disentitle her from filing a fresh

application for Alimony Pendente Lite.641

3.5.2.1.6 Postponement of the Disposal of the Petition for

Alimony Pendente Lite Till the Disposal of the Main

Issue Not Proper 639 As per Second paragraph of Section 36 of the Divorce Act, 1869. 640 Malaya Das v. Basudeb Das, 1997 (2) CHN 28 (Cal). 641 Devinder Kaur v. Gur Charan Singh, II (1983) DMC 63 (P&H).

– 260 –

The Court cannot postpone adjudication of application for

maintenance Pendente Lite and the litigation expenses till the decision

of the main issue where the main issue is the legality of the marriage.

If the trial Court does so, the Appellate Court can award such costs as

it deem fit and the Alimony pendent Lite from the date when it ought

to have been ordered by the trial Court.642

3.5.2.1.7 Consideration of Income of the Husband

Though Section 36 of the Divorce Act as it now stands does not

lay down as to how the Alimony Pendente Lite and costs of the

litigation would be determined, yet the proviso to Section 36 as it

stands prior to Amendment Act, 2001 came in to force and now has

been deleted by the Indian Divorce (Amendment) Act, 2001 fixed the

limit i.e. that such Alimony shall not exceed one-fifth of the income of

the husband preceding three years of the date of the order.

However, even after the deletion of the above proviso, there is

no doubt that the District Court has to consider the income of the

husband to ascertain what should be the Alimony Pendente Lite and

costs of the proceedings to be awarded to the wife, though there is no

doubt that such Alimony Pendente Lite and costs of the proceedings

shall have to be awarded regard being had to the income of the

husband. If the wife is also an earning member, her income has to be

considered to fix the amount to be .paid by the husband as held in

Surendra Elvin Ali v. Maureen Ali.643

3.5.2.1.8 Payment If From the Date of Application or From the

Date of Order

In a case of Alimony Pendente Lite under the Divorce Act, it is

held that although the District Court has the jurisdiction to order

642 Arthi Singh v. Kanwar Pal Singh, AIR 1977 Del 76; Nirmala v. Gangadhar, I (1985)

DMC 172. 643 I (1996) DMC 469 (MP).

– 261 –

payment of Alimony Pendente Lite from the date of making the

application for the same, yet the Court before fixing the date from

which it is payable should take a reasonable and practical view of

things rather than acting mechanically.644

3.5.2.1.9 Change of Circumstances

It is Permissible for the Court to vary the rate of maintenance

originally ordered due to change in circumstances.645 In appropriate

case, the Alimony Pendente Lite may be enhanced.646

3.5.2.1.10 Litigation Expenses

Prior to 2001, when the Amendment Act came in to force, the

wife could only claim Alimony Pendente Lite. But since the date the

Amendment Act 49 of 2001 comes into force the wife can also apply

for expenses of the proceedings. Over and above the Alimony pending

the suit, the wife is entitled to the litigation expenses to be determined

by the Court on considering all the aspects of the case. As to the funds

to enable the wife to defend herself, she is entitled to reasonable

amount irrespective of the merits of the case unless the Court is

satisfied that the wife is supported by the adulterer co-respondent

when the suit for divorce is on the ground of adultery and has

therefore no need for such litigation expenses.647

3.5.2.2 Permanent Alimony under Section 37 of the Divorce

Act, 1869

The power to order permanent Alimony under the Divorce Act,

1869 is contained in Section 37 of the Act as substituted by Act 5 of

2001 which reads as follows:

644 Ivan Eramus v. Zena Eramus, AIR 1982 All 194; 1982 All WC 163. 645 Devki v. Purshottam, AIR 1973 Raj 2. 646 Rina Sen v. Alok Kumar Sen, II (1994) DMC 525 (Cal). 647 Mahalingam Pillai v. Amsavalli, (1956) 2 MLJ 284.

– 262 –

“37. Power to Order Permanent Alimony:

Where a decree of dissolution of the marriage or a decree of

judicial separation is obtained by the wife, the District Court may

order that the husband shall, to the satisfaction of the Court, secure to

the wife such gross sum of money, or such annual sum of money for

any term not exceeding her own life, as, having regard to her fortune

(if any), to the ability of the husband, and to the conduct of the

parties, it thinks reasonable; and for that purpose may cause a proper

instrument to be executed by all necessary parties.

Power to order monthly or weekly payments:In every such case

the Court may make an order on the husband for payment to the wife

of such monthly or weekly sums for her maintenance and support as

the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes

unable to make such payments, it shall be lawful for the Court to

discharge or modify the order, or temporarily to suspend the same as

to the whole or any part of the money so ordered to be paid, and again

to revive the same order wholly or in part, as to the Court seems

fit”.648

“38. Court may direct payment of Alimony to wife or to her

trustee.

In all cases in which the Court makes any decree or order for

Alimony, it may direct the same to be paid either to the wife herself,

or to any trustee on her behalf to be approved by the Court, and may

impose any terms or restrictions which to the Court seem expedient,

and may from time to time appoint trustee, if it appears to the Court

expedient so to do.649

648 Section 37, the Indian Divorce Act, 1869. 649 Section 38, the Indian Divorce Act, 1869.

– 263 –

3.5.2.2.1 Salient Features of Payment of Permanent Alimony to

the Wife under Divorce Act, 1869

On analysis of Section 37 of the Act, it is clear that a decree for

Dissolution of Marriage, Nullity of Marriage or Judicial Separation is

obtained by the wife the District Court may order that the husband

shall, to the satisfaction of the Court, the sum secure to the wife, such

gross sum of money or such annual sum of money for any term not

exceeding her own life. In order to fix the amount of Permanent

Alimony either in gross or in annual sum for a term not exceeding her

own life the District Court shall have regard to the (1) Fortune (if any)

of the wife, (2) Ability of the husband; and (3) To the conduct of the

parties. Such Alimony shall be a reasonable amount.650

Unlike the provisions of the Permanent Alimony under Section

25 of the Hindu Marriage Act, 1955 or under Section 37 of the Special

Marriage Act, 1954 under, Section 38, the District Court may direct

such Permanent Alimony to be paid either to the wife herself or to any

trustee on her behalf to be approved by the Court and may impose any

terms and restrictions which the Court may seem expedient and from

time to time appoint a new trustee if it appears to the Court to

expedient so to do?651

It is held by the Delhi High Court in a case of Permanent

Alimony by the wife under Section 37 of the Divorce Act, 1869 that

the District Court can take adequate step for payment of permanent

Alimony for one term relief under Section 151, Code of Civil

Procedure from the property and restraining the husband from

alienating the said property.652

650 Supra note 67 at 724. 651 Ibid. 652 Hilda v. Basant Lal, AIR 1994 (NOC) 346 (Del).

– 264 –

3.5.2.2.2 Execution ofthe Permanent Alimony afterthe Death

ofthe Husband

It is held by the Supreme Court that the decree of Permanent

Alimony against the husband does not stand extinguished on the death

of the husband and assets kept behind the husband can be proceeded

against for execution.653

3.5.2.2.3 Maintenance of Children

Section 42 is a specific provision regarding the Custody,

maintenance and Education of the minor children after a decree for

Judicial Separation has been made. In such a case, the jurisdiction of

the Court has to be invoked upon any application for this purpose, or

for placing such children under the protection of the said Court as

might have been made by such decree.654

In Hilt v. Hilt,655 the High Court made distinction between the

English law on the point and law embodied in the Divorce Act and it is

clearly stated that under the Divorce Act no maintenance could be

ordered in favour of the children who are not minors. While

considering Section 26 of the Hindu Marriage Act, it has been stated

in the proceedings under the Hindu Marriage Act; the Court may make

such interim order and making such provision in the decree in respect

of custody, maintenance and education of the minor children, without

any separate application. It is, however, pointed out that after a decree

similar relief can be granted in respect of the children but an

application is to be filed for that purpose. Similar view can be taken

while considering the provisions under the Divorce Act.656

653 Aruna Basu Mallick v. Dorotheen Mitra, AIR 1983 SC 916. 654 Section 42 of the Indian Divorce Act, 1869. 655 AIR 1943 All 8. 656 C. Meena v. Suresh Kumar, 1993 (2) Civ LJ 588 (AP).

– 265 –

Section 44 is a specific provision of the custody, maintenance

and education of minor children while the decree for dissolution or

nullity of marriage has been passed by the District Court. So, upon an

application by petition for such purpose in such a suit for dissolution

of marriage or nullity of marriage, the District Court shall make all

such orders and provisions with respect to the custody, maintenance

and education of the minor children or for placing such children under

the protection of the said Court as might have been made by such

decree absolute, when the decree under the Divorce Act is required to

be confirmed subsequently after the passing of the decree. Therefore,

all these provisions are for custody, maintenance and education of the

minor children of the marriage. It is to be noted as soon as any child

attains the age of majority any order passed in favour of such child

shall automatically terminate.657

3.6 Maintenance under the Parsi Marriage and Divorce Act,

1986

Parsis in India are decedents from Persia in order to avoid their

prosecution in their native land. They largely hailed from the Persian

province “Persee or Pars” from where the word Par.si is derived.658

The word Parsi has both a religious connotation and a racial

significance. The Indian Parsis belongs to Zoroastrian Faith ad in that

sense in India, the word Parsi and Zoroastrian can be termed as

synonyms.659 The Indian Parsi Community started its efforts to have

laws suitable to their social needs since year 1835 which could not be

fructified. Most of the Parsi law, prior to the codification was based

657 Section 44 of the Indian Divorce Act, 1869 658 “Parsi Communities :Early History”, available at

http://www.iranicaonline.org/articles/parsi-communities-i-early-history, (accessed on 18 March 2015).

659 Paras Diwan, Family Law, 7( 1994).

– 266 –

on the Hindu Customary law and the English Statutes.660 Later on the

Parsi Marriage and Divorce Act, 1865 was formulated on the basis of

the Matrimonial Causes Act, 1857, and later the new the Parsi

Marriage and Divorce Act were passed in 1936.661

The Parsis in India are governed by the Parsi Marriage and

Divorce Act, 1936, which can be stated as vast Legislatures governing

the matrimonial aspect of Parsis. It provides the Ancillary relief of

maintenance on the dissolution of Marriage in form of (i) Alimony

Pendente Lite (ii) Permanent Alimony, same as provided in the Hindu

Marriage Act, 1955.

3.6.1 Alimony Pendente Lite

Section 39 of the Parsi Marriage and Divorce Act as substituted

by the Parsi Marriage and Divorce (Amendment) Act 1986 states as

follows:

“Section 39: Alimony Pendente Lite:

Where in any suit under this Act, it appears to the Court that

either the wife or the husband, as the case may be, has no independent

income sufficient for her or his support and the necessary expenses of

the suit, it may, on the application of the wife or the husband, order

the defendant to pay to the plaintiff the expenses of the suit, and such

weekly or monthly sum, during the suit, as, having regard to the

plaintiffs own income and the income of the defendant, it may seem to

the Court to be reasonable”.662

3.6.1.1 Scope of Section 39

660 Ibid. 661 Ibid. 662 Section 39, the Parsi Marriage and Divorce Act, 1936.

– 267 –

Section 39 like Section 24 of the Hindu Marriage Act enables

either the wife or the husband having no independent income

sufficient for her or his support and necessary expenses of the suit to

apply for Alimony Pendente Lite and expenses of the proceeding.

3.6.1.2 Alimony Pendente Lite in Favour of the Wife

In the case, where the wife was forced to work as a domestic

maid servant and help to sustain herself when the matrimonial suit is

filed against her, she can claim Alimony Pendente Lite and expenses

of the proceeding from the husband, although she is working here and

there as maid servant.663

When the income of the wife is more than that of her husband,

the wife is not entitled to claim Alimony Pendente Lite and expenses

of the proceeding from the husband.664

The words “wife having no independent income” suggests that

income of the wife must be her independent income which is sufficient

for her support and for spending the litigation expenses, if not, she

would get Alimony Pendente Lite and Litigation Expenses from the

husband. The fact that the parent of the wife is solvent shall have no

relevance in this regard. Even if the brother of the wife has income it

is no ground to refuse the wife Alimony Pendente Lite.665

Under Section 39 of the Parsi Marriage and Divorce Act, 1936

an order of Alimony Pendente Lite and Litigation Expenses is to be

supported by reasons and the applicant has to establish that the

applicant has no independent income for her support and for Litigation

Expenses, if the applicant has income the nature and quantum of it, the

income of the respondent and quantum thereof and the nature of the

663 Shyamlal v. Angoorbai, II (1995) DMC 183 (MP). 664 Maya Srivastava v. Manaj Kumar, II (1997) DMC 186. 665 L.R. Rajendra v. Gaja Lakshmi, AIR 1985 Mad 105.

– 268 –

needs of the applicant for Alimony Pendente Lite and litigation

expenses has to be specifically indicated.666

Even if the wife has filed a suit for declaration of nullity of

marriage she can pending the suit is entitled to claim Alimony

Pendente Lite. Under Section 39 of the Parsi Marriage and Divorce

Act, 1936, Alimony Pendente Lite can be claimed in any suit filed

under any of those Acts. Section 39 specifically provides that Alimony

Pendente Lite and cost of proceeding can be claimed by either

spouse.667|

In any suit for Restitution of Conjugal Rights by the husband

under Section 36 of the Parsi Marriage and Divorce Act 1936

maintenance Pendente Lite can be claimed. This is because the

Alimony Pendente Lite under Section 39 can be claimed by either

spouse in any suit under the Act.

3.6.1.3 Commencement and Duration of Alimony Pendente

Lite

Under Section 39 of The Parsi Marriage and Divorce Act, 1936

the Alimony Pendente Lite and Cost of Proceeding shall be available

to the applicant “during the suit”. Similar expressions have been used

in other matrimonial statutes. In Section 24 of the Hindu Marriage

Act, 1955 and Section 36 of the Special Marriage Act, 1954 the

expression used in “Pending the Suit”. All these expressions convey

the same meaning that Alimony Pendente Lite shall commence from

the date of filing the matrimonial suit and not necessarily from the

date when the application for Alimony Pendente Lite is filed.668 But in

mandamus appeal the order has been modified to the extent that the

666 Samru Singh v. Dhanamani Singh, II (1986) DMC 151 (Bom). 667 Mohan Lal v. Parveen, II (1995) DMC 548 (P&H); Raja Kumari v. Rupabai, II

(1985) DMC 251 (MP). 668 Radha Kumari v. K.M. Nair, AIR 1983 Ker 139; Samir Kumar Banerjee v. Sujata

Banerjee, 70 CWN 633.

– 269 –

order of Alimony Pendente Lite should not be made from the date of

the order but from the date such a petition is filed.669

In Sharad Kumar Gotte v. Mangla Gotte ,670 Madhya Pradesh

High Court has also ordered the Alimony Pendente Lite to be payable

from the date of order of the trial Court as it was found that it would

cause great hardship to the opposite party spouse if Alimony Pendente

Lite from the date of application is ordered to be paid to the appellant.

3.6.1.4 No Postponement ofthe Alimony Matter tillthe

Disposal of the Main Suit

The Court cannot postpone the adjudication of the application

for Alimony Pendente Lite and expenses of the proceeding till the

decision of main issue when legality of the marriage is challenged in

the main suit. Such petitions have to be disposed of before disposal of

the main suit.671

3.6.1.5 Alimony Pendente Lite During the Pendency of the

Permanent Alimony

It has been held that during the pendency of the application for

Permanent Alimony, the District Court can grant Alimony Pendente

Lite from the date of last payment in pursuance of the earlier order of

Alimony Pendente Lite till the date the Permanent Alimony is ordered

to be paid.672

3.6.1.6 Withdrawal of Suit Pending the Application for

Alimony Pendente Lite

When the petitioner withdraws the matrimonial suit during the

pendency of the application for Alimony Pendente Lite, it cannot be

669 Indira Gangele v. Shailendra, II (1994) DMC 417 (MP). 670 I (1987) DMC 549 (MP). 671 Bhawarlal v. Kamla, AIR 1983 Raj 229. 672 Chunilal v. Kamlesh Rani, AIR 1989 NOC 154.

– 270 –

granted from the date of unconditional withdrawal of the suit. But the

right of Alimony Pendente Lite being a Statutory Right has to be

adjudicated and such order passed would be effective till the date of

the withdrawal of the suit.673

3.6.1.7 Procedure to be Adopted

The petitioner in filing a suit for divorce may include a claim

for Alimony Pendente Lite in the said proceeding itself. She may also

apply for Alimony Pendente Lite in a separate petition. The

respondent may also file an application for Alimony Pendente Lite and

Expenses of the Proceeding even before filing a written statement

when the respondent intends to file such a petition pending main suit.

The Court cannot refuse to consider it unless the wife files a written

statement. If the Court rejects her prayer for time to file written

statement after disposal of the Alimony Pendente Lite the Court

cannot reject such petition and set the date of hearing of the suit ex

parte. Unless the litigation expenses are paid it is not possible for

indigent wife to file-the written statement.674

3.6.1.8 Alimony Pendente Lite To Be Disposed Of On

Affidavits

The petition for Alimony Pendente Lite is generally disposed of

on affidavit and counter affidavit. No oral evidence is required to be

led.675 Even in such a case it is not permissible for the Court to

undertake an elaborate and exhaustive investigation as the matter is to

be disposed of summarily because the Amendment Act of 2001 has

enjoined upon the Court to dispose of it within sixty days of the

service of notice on the opposite party.676

673 Pratapbhai Trivedi v. Priya Vadu, 1993 (1) Civ LJ 570 (Guj). 674 Latika Ghosh v. Nirmal Kumar Ghosh, AIR 1968 Cal 68. 675 Dharani Chand v. Sobha Devi, AIR 1987 Raj 159. 676 Chandramani v. Hena, AIR 1985 NOC 110 (Ori).

– 271 –

3.6.1.9 Determination of Alimony Pendente Lite

Under Section 39 of the Parsi Marriage and Divorce Act, 1936

any wife or husband, as the case may be, having no independent

income sufficient for her or his support and necessary expenses of the

suit may claim Alimony Pendente Lite and expenses of the proceeding.

In such a case the District Court has to determine the Alimony

Pendente Lite and expenses of the suit in her or his favour during the

suit. To determine the quantum the District Court shall have regard to

plaintiffs own income, and (2) the income of the defendant and has to

arrive at a reasonable amount as it may deem to the Court. Alimony

Pendente Lite is to be paid either as weekly or monthly sum. When the

appellant wife has no independent income the husband is liable to

provide Alimony Pendente Lite and expenses of the suit. If the

petitioner wife is entitled to have same status as her husband she must

have necessary medical facility, food, clothing etc. by way of Alimony

Pendente Lite. The Court shall also consider the inflation and higher

cost of living.677

So far as the litigation expenses are concerned-the Court cannot

grant more than that has been claimed by the wife.678

In considering the income of the spouse the net income of the

spouse is required to be taken into consideration. Net income means

total income derived less the cost of collection and other compulsory

payment. But it does not mean the income after deducting all sorts of

expenses incurred by the spouse.

3.6.1.10 Variation of the Order of Alimony Pendente Lite

There is no express provision in Section 39 of the Parsi

Marriage and Divorce Act, 1936 for variation, namely enhancement or

677 S. Jayanthi v. Jayaraman, I (1998) DMC 699 (Mad). 678 Mansaram Sharma v. Saraswati, AIR 1977 Ori 55.

– 272 –

reduction of the amount of maintenance. It is held by Madhya Pradesh

High Court that there is always implied power of the Court granting

Interim maintenance to reduce the same in deserving case because of

subsequent event. When the husband was suspended from service

because of pendency of any disciplinary inquiry and had been getting

only subsistence allowance instead of full salary pending such inquiry

the amount of Alimony payable to the wife at the rate of �325 Per

Month has been reduced to �225 Per Month.679

3.6.1.11 If the Order of Alimony Pendente Lite Under Section

39 of Parsi Marriage and Divorce Act, 1936

Appealable or Not

Under Section 47 of the Parsi Marriage and Divorce Act, 1936

an appeal lies to High Court from the decision of any Court

established under this Act on limited grounds. No provision for appeal

is provided from the order of Alimony Pendente Lite passed under

Section 39 of the Act. Under the Hindu Marriage Act, 1955, also no

decision under Section 24 of the Act is appealable. Similar is the case

when an order of Alimony Pendente Lite is passed under Section 36 of

the Special Marriage Act, 1954. And only revision is maintainable

against any interim order passed under Section 39 of the Parsi

Marriage and Divorce Act, 1936.

3.6.1.12 Revisional Jurisdiction Limited

Granting of Interim Alimony is very much within the

jurisdiction of the trial Court in matrimonial proceeding. So such an

order cannot be lightly interfered with in revision.680

3.6.2 Permanent Alimony under Parsi Marriage and Divorce Act,

1936

679 Neelam v. Kailash Rajpal, II (1994) DMC 188 (MP). 680 Naresh Kumar v. Santosh Kumari, II (1994) DMC 609 (P & H).

– 273 –

Provisions of permanent Alimony under Parsi Marriage and

Divorce Act, 1936 are contained in s. 40 of the Act which states as

follows:

“Section 40: Permanent Alimony and maintenance.

(1) Any Court exercising jurisdiction under this Act may, at

the time of passing any decree or at any time subsequent

thereto, on an application made to it for the purpose by

either the wife or the husband, order that the defendant

shall pay to the plaintiff for her or his maintenance and

support, such gross sum or such monthly or periodical

sum, for a term not exceeding the life of the plaintiff as

having regard to the defendant’s own income and other

property, if any, the income and other property of the

plaintiff, the conduct of the parties and other

circumstances of the case, it may seem to the Court to be

just, and any such payment may be secured, if necessary,

by a charge on the movable or immovable property of the

defendant.

(2) The Court if it is satisfied that there is change in the

circumstances of either party at any time after it has made

an order under sub-Section (1), it may, at the instance of

either party, vary, modify or rescind any such order in

such manner as the Court may deem just.

(3) The Court if it is satisfied that the party in whose favour

an order has been made under this Section has 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, it may,

at the instance of the other party, vary, modify, rescind

– 274 –

any such order in such manner as the Court may deem

just”.681

3.6.2.1 Payment of Alimony to the Trustees

Section 41, however, providing for payment of Permanent

Alimony to the wife or to her trustee or guardian approved by the

Court does not find place in Hindu Marriage Act, 1955. The Permanent

Alimony has to be given under the Hindu Marriage Act, 1955 to the

wife till her death or till her remarriage, whichever is earlier. Section

40 of the Parsi Marriage and Divorce Act, 1936 closely resembles

Section 38 of the Divorce Act, 1869 in which similar provision for

payment Permanent Alimony and maintenance either to wife herself or

trustee on her behalf to be approved by the Court.682

3.6.2.2 The Plaintiff and Defendant

Both in Section 39 for Alimony Pendente Lite and Section 40 of

the Act regarding permanent Alimony, the expression used are

“plaintiff and defendant.” But this is not equivalent to “plaintiff and

defendant” of the original matrimonial suit. It means the applicant for

Alimony Pendente Lite and permanent Alimony and respondent against

whom the prayer for Alimony Pendente Lite and Permanent Alimony is

made.683

3.6.2.3 Consideration ofthe Court While Granting Permanent

Alimony and Maintenance

As in Section 25 of the Hindu Marriage Act, Section 40 of the

Parsi Marriage and Divorce Act provides that while granting for

Permanent Alimony either to the wife or to the husband the Court

should keep in mind the following considerations namely,

681 Section 40, the Parsi Marriage and Divorce Act, 1936. 682 Section 40, the Parsi Marriage and Divorce Act, 1936. 683 Section 41, the Parsi Marriage and Divorce Act, 1936.

– 275 –

(1) The defendant’s own income and other property, if any;

(2) The income or other property of the plaintiff;

(3) Conduct of the parties and other circumstances of the

case.

3.6.2.4 Monthly or Periodical Payment

There is no fixed rule in respect of the Permanent Alimony to be

awarded to the wife or to the husband as the case may be. The husband

is under no obligation to provide the wife with permanent Alimony to

equip herself for a calling or expenses for other purposes, but the

amount shall be according to the status of the parties and the income

and property, if any, of the husband.684

3.6.2.5 Application When to Be Made

An application for Permanent Alimony can be made not only at

the time of passing the decree by the Court but also at any time

subsequent thereto. In the language of Section 40 of the Parsi

Marriage and Divorce Act 1936 the decisions rendered under Section

25 of the Hindu Marriage Act in this matter is very much applicable.685

3.6.2.6 Permanent Alimony When to be passed

Under Section 40 of the Parsi Marriage and Divorce Act, 1936

the Permanent Alimony may be prayed for at the time of passing any

decree or at any time subsequent thereto. The expression passing of

decree contemplates any decree passed in the matrimonial suit filed

under the Act.

3.6.2.7 Agreement Not to Claim Permanent Alimony

684 Subramanayam v. M.G. Saraswati, AIR 1964 Mys 38. 685 Rama Devi v. Ashok Kumar Mohanlal Vyas, I (1994) DMC 286 (MP).

– 276 –

Decisions of different High Courts are not consistent if the wife

by virtue of an agreement has abandoned her right to claim permanent

Alimony she can claim permanent Alimony and whether agreement is

valid or not and whether such an agreement offends against public

policy. According to Punjab High Court if a wife by an agreement

gives up her right to claim Alimony and the husband gives up his

claim to the custody of the child by an agreement pending the suit for

divorce such an agreement is valid and binding on the wife and she

cannot claim permanent Alimony after the decree for divorce is

passed.686

3.6.2.8 Conduct of the Parties

The Matrimonial Court under the Hindu Marriage Act, 1955

under Special Marriage Act, 1954 under the Indian Divorce Act, 1869

or under Parsi Marriage and Divorce Act, 1936 has to consider the

conduct of the parties while awarding Permanent Alimony. Under the

English law also it is not only the income or property of the parties

that has to be taken into consideration but also the conduct of the

parties both before and after marriage and that in exercising the

discretion the Court should consider before it all the relevant evidence

of the conduct of the parties both before and after the marriage.687

As in the above Indian Matrimonial statutes the Court has to

consider the conduct of parties as such conduct of parties which is a

relevant consideration while considering the award of permanent

Alimony to any spouse to the marriage claiming permanent

Alimony.688

3.6.2.9 Permanent Alimony Order Creating Charge on the

Defendant’s Property

686 Manjit Singh v. Sabita Kiran, AIR 1983 P & H 281. 687 Rastall v. Rastall, ILR (1930) Pun 189. 688 Tarlochan Singh v. Mohinder Kaur, ILR (1963) 1 Punj 74.

– 277 –

Rayden on Divorce689 states as follows:

“In considering an application for variation of an order of

Alimony the Court must have regard to all the circumstances since the

original order was made. An order varying the provisions of the

original order, or reviving any suspended provision thereof, must not

be made so as to affect any property which at the time of the

application to vary is not the property the income from which under

the original order is applicable either wholly or in part for

maintenance of the former wife on whose application the original

order was made”.690

3.6.3 Variation, Rescinding or Cancellation of the Order of

Maintenance

Sub-Section (3) of Section 40 of the Act reads as follows:

“The Court if it is satisfied that the party in whose favour an

order has been made under this Section has 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

wedlock, it may, at the instance of the other party, vary, modify or

rescind any such order in such manner as the Court may deem just.”

Sub- Section (3) of the Parsi Marriage and Divorce Act, 1936 is

Pari Materia with sub-Section (3) of Section 25 of the Hindu Marriage

Act, 1955.Under sub-Section (3) of Section 40 as in sub-Section (3) of

Section 25 a party in whose favour the order of permanent Alimony is

passed cannot claim any permanent Alimony from the other party if

subsequently he or she remarried or has become guilty of sexual

immorality. The Court has no discretion in the matter and upon such

689 Supra note 297 at 823. 690 Ibid.

– 278 –

remarriage the party receiving Alimony so long shall cease to claim

any permanent Alimony from the former husband or former wife.691

However, Indian law does not provide for automatic discharge.

An application is required to be filed under sub-Section (3) of Section

40 of the Parsi Marriage and Divorce Act, 1936 alleging the person

getting Permanent Alimony has remarried and divorced wife is setting

Permanent Alimony from the former husband, on her remarriage the

former husband may apply for rescinding such order from the date of

such remarriage. However, when the husband has got the Permanent

Alimony from the divorced wife on the remarriage of the divorced

husband, the divorced wife may apply for rescission of such order of

permanent Alimony.

3.6.4 Appeal

Under Section 47 of the Parsi Marriage and Divorce Act, 1936

appeal has been provided against any decision of any Court

established under the Act whether a Chief Matrimonial Court or

District Matrimonial Court. But such appeal under Section 47 is very

restricted. It is only on the ground that the decision is contrary to

some law or usage having the force of law or of a substantial error or

defect in the procedure or investigation of the case which may have

produced error or defect in the decision of the case upon merits and on

no other ground.692

3.6.5 Execution

As the provision of the Code of Civil Procedure shall, so far as

‘‘may be applicable; apply to suit instituted under this Act including

the provision in execution and orders subsequent to the decree in view

of Section 45 of the Parsi Marriage and Divorce Act, 1936, then the

691 Minarani v. Dasarath, AIR 1963 Cal 428. 692 Section 47, the Parsi Marriage and Divorce Act, 1936.

– 279 –

execution of the order of Permanent Alimony or for that matter any

Alimony Pendente Lite shall be filed under Order. 21of Civil

Procedure Code before the Matrimonial Court passing the order. It is

held by Supreme Court that a decree for Permanent Alimony against

the husband does not stand extinguished on the death of the husband

and the assets left behind by the husband can be proceeded against in

execution.693

3.7 Maintenance under the Maintenance and Welfare of Parents

and Senior Citizens Act, 2007

Our culture stated status of parents as that of God through

sayings like “Matrudeo Bhava”, “Pitrudeo Bhava” etc. The famous

“Shravankumar’s” story which was stated in “Ramayana” establishes

this fact. Our culture considers them as first teachers. The foundation

of our life is built up by them. So children should take care of them,

respect them. It should be the moral duty of children to maintain their

parents. Our traditional values and norms lay stress on showing

respect and providing care for the aged. In joint family system all

members are cared by the family itself. But nowadays the concept of

Joint Family system is withering away. Because of industrialization,

money mind, increase in market prices, children have started

neglecting their parents. Children have no time to look after their

parents because of their busy schedule. As a consequence of this

situation the elders get neglected not only emotionally but physically

as well as economically. Human beings need some kind of support in

this age. Because of this it is necessary to put some legal and moral

obligation on children. And it can be done by enacting some laws and

prescribing some punishment. Threat of punishment is very essential

to deal with such a situation. Family life is very necessary for senior

citizens and for parents to lead a life of security, care and dignity. The

population of the older persons in India is continuously increasing. 693 Aruna Basu Mallick v. Dorottin Mitra, AIR 1983 SC 916.

– 280 –

“The Registrar General of India forecasts the share of older persons

(age 60 years and above) in the total population to rise from 6.9% in

2001 to 12.4% in 2026. The maintenance of parents was included in

Section 125 of the Code of Criminal Procedure, 1973, but the

procedure is time consuming and expensive. So there is need of a

simple, Inexpensive and speedy procedure to claim maintenance by the

suffering parents”.694

Most Personal Laws including the Hindu Adoptions and

Maintenance Act, 1956 recognize duty of the children to maintain

their aged parents and the right of the parents to maintenance. Section

125 of the Criminal Procedure Code, 1973 specifically provides for

maintenance from children if parents are unable to maintain

themselves but cases are rarely filed by parents due to love and

affection, fear of stigma and time and money required for the legal

proceedings.695

Considering this type of misery and fulfillment of International

and the Constitutional obligation, legislature has enacted the

maintenance under the maintenance and Welfare of Parents and Senior

Citizens Act, 2007, which take care of not only Parents but the

Childless Senior Citizens as well.

3.7.1 Object

The maintenance and Welfare of Parents and Senior Citizens

Act, 2007 indicates that the mentioned Act is to provide for the more

effective provisions for the maintenance .Prior to this the elderly

females could claim maintenance under Section 125 the Code of

Criminal Procedure, 1973 from their son or daughter. In this act for

694 Shweta Durge, “The Maintenance and Welfare of Parents and Senior Citizens Act,

2007: An Overview”, available at www.jurisonline.in, (accessed on 15 March 2013). 695 “Maintenance and Welfare of Parents and Senior Citizens Act, 2007”,

http://helpageindiaprogramme.org/other/brochures/senior_citizen_act_summary_folder.pdf, (accessed on 26 February 2015).

– 281 –

the very first time a Senior Citizen, who does not have a son or

daughter to maintain has been made entitled for maintenance under the

Act from their relatives defined in Section 2(g)696 of Act. The

provisions contained under the act can be stated and related as an the

bane of old age which many older persons specially the widowed

women are left to spend their twilight years all alone, which has

emerged as one of the greatest social challenge, which need to be dealt

with the sympathetically attitude.

This enactment can be taken as a vital step in the furtherance of

Part IV of Indian Constitution, i.e. The Directive Principles of State

Policy, under the provisions of Article 41697 of Indian Constitution

read with Entry 23 of the Concurrent List (Schedule VII)698 of the

Constitution of India, which incorporates the betterment of the elderly

and the old age people.

3.7.2 Benefits of the Legislation: An Overview

The name of the Act is descriptive and conveys that the Parents

and Senior citizens are required to be maintained by their children. It

ensures that maintenance of old persons by their family will be a

matter of right for the parents. It should be the duty of the Children to

maintain their Parents. The Act is applicable to all persons

irrespective of their religion. Earlier, provision for maintenance

provided under Section 20 of the Hindu Adaptations and Maintenance

Act, 1956 in which the aged parents can file the proceedings for their

maintenance which is religion restricted act.

696 Section 2(g) of The maintenance and Welfare f Parents and Senior Citizen Act, 2007

states that, “‘relative’” means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death”.

697 Article 41 of Indian Constitution Lay down as, “Right to work, to education and to public assistance in certain cases The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want”

698 Entry 23 of Seventh Schedule of Indian Constitution aims at, “Social security and social insurance; employment and unemployment”.

– 282 –

3.7.3 Definition of Maintenance under the Act

Section 2(b) of the Act incorporates the Definition of

maintenance as699 ‘maintenance’ includes provision for food, clothing,

residence and medical attendance and treatment”

On the interpretation of the definition of term maintenance

under the Act, it clearly reflects that the parents and senior citizens

are not only entitled to the Food, Clothing, Medical Attendance and

the Treatment alone, but also to the Right to Residence, when they do

not have residence of their own to take a shelter. This definition seems

to be very close knit to the definition provided under Section 3(b)(I)

of the Hindu Adoption and Maintenance Act, 1956, the only difference

between that is the latter incorporates the provision for the educational

expenses too.

3.7.4 Who All are Benefited under the Act

This act not only incorporates the traditional duty of the kids to

take care of their parents, but also make the provisions for the well-

being and care of the senior citizens as well.

3.7.4.1 Parents

As implied from the name, the major beneficiaries of the Act

are Parents. The liability to maintain ones parents have been

recognized since the time immemorial by the Shastras as well not only

under the Hindu Law but Muslim law also incorporates the liability to

maintain the parents. The act gives an inclusive definition of term

parents which may be considered different from some personal laws or

the Code of Criminal Procedure.

Section 2(d)700 of the Act defines ‘Parents’ as:

699 Section 2(b) of the Maintenance and Welfare of Parents and Senior Citizens Act,

2007.

– 283 –

‘Parent’ means father or mother whether biological, adoptive or

step father or step mother, as the case may be, whether or not the

father or the mother is a senior citizen.

The age of parent is not described. Hence a parent can claim

maintenance without any bar of age and unlike the Code of Criminal

Procedure and other personal Laws include the provisions for the

claim of maintenance by the step parents as well. In the case of, Kirit

Kant v. State of Gujrat,701 which was a case, where a step mother

sought maintenance from her step son despite having sons and

daughters of her own, Hon’ble Apex Court while giving a liberal

interpretation to Section 125, Code of Criminal Procedure has laid

down that to achieve the intention of legislatures it would be

benevolent that a childless step mother may claim maintenance from

her step children but not otherwise. However this Act is silent on the

point where the step father or step mother is not a senior citizen being

under 60 years of age and has neither any natural child nor any

adopted children as well.702

3.7.4.2 Senior Citizens

Another implication from the name suggests the benefit of the

Act is extended to the senior citizens. The benefit has been restricted

to the citizens of India, irrespective of the fact if they don’t have

children of their own.

Section 2(h)703 extends the protection cover of the Act towards

the senior citizens, which are defined under the Act as:

“Senior Citizen” means any person being a citizen of India, who

has attained the age of sixty years or above.

700 Section 2(d) of the Maintenance and Welfare of Parents and Senior Citizens Act,

2007. 701 (1996) 4 SCC 479. 702 Ibid. 703 Section 2(h) of the Maintenance and Welfare of Parents and Senior Citizens Act,

2007.

– 284 –

This also includes childless senior citizen. He can claim

maintenance from relative who is legal heir of that senior citizen and

who is in possession of or would inherit his property after his death.

And hence a senior citizen who is childless can file an application for

maintenance under this act. This act has an overriding effect on

provisions of any other act. This is a special act and hence it will

prevail over other acts.

3.7.5 Against Whom the Order of Maintenance Can isPassed

Though as the title suggests, the obligation to maintain the

Parents and the Senior Citizen would rest upon the Children, but this

Act, moving one step ahead has extended its protection covers towards

the Childless People, who are left destitute and at the dearth of mercy

of other people having no child of their own.

3.7.5.1 Children

The main obligation to maintain the Parents would rest upon the

Children, which is also an extension of the old recognized principle of

liability of maintain ones parents since the old ages.

The Act Provide the definition of Children under Section 2(a)704

as:

‘Children’ includes son, daughter, grandson and grand-daughter

but does not include a minor.

From the definition itself, it is clear that a like other laws, this

Act also excludes the liability of the minor on the notion that the

minor children who are not able to take care of themselves would not

be able to take care of the parents as well. Though the Act has given

the extended benefit to the childless couples to claim the maintenance

from their relatives, but the Act is silent regarding the claim of

704 Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act,

2007.

– 285 –

maintenance of the parents, who have got the children but are unable

to maintain their parents being minor or any other incapacity.

3.7.5.2 Relative

As stated above also, the childless person has been given the

benefit under the Act by claiming maintenance from the relative under

Section 2(g) of the Act705 as follows:

‘Relative’ means any legal heir of the Childless Senior Citizen

who is not a minor and is in possession of or would inherit his

property after his death.

Thus from the definition it is clear that only those relative who

are in the possession of the property of the claimant or who are likely

to going to inherit the property of the claimant, but it is silent upon

the cases, where the claimant is having no property of his own and the

question of inheriting the property does not arise.

3.7.6 Provisions Claiming the Maintenance

“4. maintenance of parents and senior Citizens:

(1) A senior citizen including parent who is unable to

maintain himself from his own earning or out of the

property owned by him, shall be entitled to make an

application under Section 5 in case of—

(i) Parent or grand-parent, against one or more of his

children not being a minor;

(ii) A childless senior citizen, against such of his

relative referred to in clause (g) of Section 2.

705 Section 2(g) of the Maintenance and Welfare of Parents and Senior Citizens Act,

2007.

– 286 –

(2) The obligation of the children or relative, as the case may

be, to maintain a senior citizen extends to the needs of

such citizen so that senior citizen may lead a normal life.

(3) The obligation of the children to maintain his or her

parent extends to the needs of such parent either father or

mother or both, as the case may be, so that such parent

may lead a normal life.

(4) Any person being a relative of a senior citizen and having

sufficient means shall maintain such senior citizen

provided he is in possession of the property of such

senior citizen or he would inherit the property of such

senior citizen:

Provided that where more than one relatives are entitled to

inherit the property of a senior citizen, the maintenance shall be

payable by such relative in the proportion in which they would inherit

his property”.706

3.7.7 Parents or Senior Citizen Unable to Maintain from their

Own Earnings

Though the act aims at providing the assistance to the parents

and the childless senior citizens, this Section does not put an

exhaustive remedy and the liability to maintain them is limited to the

extent they are unable to maintain themselves out of the their own

earnings or out of the property acquired or hold by them.

Under the present act the right to claim the maintenance would

not be restricted towards own Children only but also towards the

grandchildren and step children as well. Not only this, the childless

senior citizens can also claim maintenance from their legal heirs.

706 Section 4 of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007.

– 287 –

3.7.8 Obligation Extend Them to Make Them Lead a Normal Life

Section 4(2) & 4(3) of The maintenance & Welfare of Parents &

Senior Citizen Act, 2007, extends the liability of the Children or the

Relatives to maintain their Parents or the Childless Senior Citizens to

the extent which may let them to lead a ‘Normal Life’. But the term

‘Normal Life’ seems to be quite vague in the present Section, since

what dos word normal life means cannot be certainly interpreted and it

leaves discretion on the Court to fix the amount. But what does

actually word ‘Normal Life’ means, may vary from the case to case

and cannot be put in to straight jacket formula.

3.7.9 Application to Be Made By the Parents/Senior Citizens to

Claim Maintenance under the Act

“5. Application for maintenance: (1) an application for

maintenance under Section 4, may be made—

(a) By a senior citizen or a parent, as the case may be;

or

(b) If he is incapable, by any other person or

organization authorized by him; or

(c) The Tribunal may take cognizance suo motu.

Explanation: For the purposes of this Section “organization”

means any voluntary association registered under the Societies

Registration Act, 1860, (21 of 1860) or any other law for the time

being in force.

(2) The Tribunal may, during the pendency of the proceeding

regarding monthly allowance for the maintenance under

this Section, order such children or relative to make a

monthly allowance for the interim maintenance of such

senior citizen including parent and to pay the same to

– 288 –

such senior citizen including parent as the Tribunal may

from time to time direct.

(3) On receipt of an application for maintenance under sub-

Section (1) after giving notice of the application to the

children or relative and after giving the parties an

opportunity of being heard, hold an inquiry for

determining the amount of maintenance.

(4) An application filed under sub-Section (2) for the

monthly allowance for the maintenance and expenses for

proceeding shall be disposed of within ninety days from

the date of the service of notice of the application to such

person:

Provided that, the tribunal may extend the period,

once for a maximum period of thirty days in exceptional

circumstances for reasons to be recorded in writing.

(5) An application for maintenance under sub-Section (1)

may be filed against one or more persons:

Provided that such children or relative may

implead the other person liable to maintain parent in the

application for maintenance.

(6) Where a maintenance order was made against more than

one person, the death of one of them does not affect the

liability of others to continue paying maintenance.

(7) Any such allowance for the maintenance and expenses for

proceeding shall be payable from the date of the order,

or, if so ordered, from the date of the application for

maintenance or expenses of proceeding, as the case may

be.

– 289 –

(8) If, children or relative so ordered fail, without sufficient

cause to comply with the order, any such Tribunal may,

for every breach of the order, issued a warrant for levying

the amount due in the manner provided for levying fines,

and may sentence such person for the whole, or any part

of each month’s allowance for the maintenance and

expenses of proceeding, as the case may be, remaining

unpaid after the execution of the warrant, to

imprisonment for a term which may extend to one month

or until payment if sooner made whichever is earlier:

Provided that no warrant shall be issued for the

recovery of any amount due under this Section unless

application is made to the Tribunal to levy such amount

within a period of three months from the date on which it

became due”.707

“6. Jurisdiction and Procedure:

(1) The proceedings under Section 5 may be taken against

any children or relative in any district—

(a) Where he resides or last resided; or

(b) where children or relative resides.

(2) On receipt of the application under Section 5, the

Tribunal shall issue a process for procuring the presence

of children or relative against whom the application is

filed.

(3) For securing the attendance of children or relative the

Tribunal shall have the power of a Judicial Magistrate of

707 Section 5 of the Maintenance & Welfare of Parents and Senior Citizens Act 2007.

– 290 –

first class as provided under the Code of Criminal

Procedure, 1973. (2 of 1974)

(4) All evidence to such proceedings shall be taken in the

presence of the children or relative against whom an

order for payment of maintenance is proposed to be made,

and shall be recorded in the manner prescribed for

summons cases:

Provided that if the Tribunal is satisfied that the

children or relative against whom an order for payment of

maintenance is proposed to be made is willfully avoiding

service, or willfully neglecting to attend the Tribunal, the

Tribunal may proceed to hear and determine the case ex

parte.

(5) Where the children or relative is residing out of India, the

summons shall be served by the Tribunal through such

authority, as the Central Government may by notification

in the official Gazette, specify in this behalf.

(6) The Tribunal before hearing an application under Section

5 may, refer the same to a Conciliation Officer and such

Conciliation Officer shall submit his findings within one

month and if amicable settlement has been arrived at, the

Tribunal shall pass an order to that effect.

Explanation: For the purposes of this sub-Section “Conciliation

Officer” means any person or representative of an organization

referred to in Explanation to sub-Section (1) of’ Section 5 or the

maintenance Officers designated by the State Government under

– 291 –

subsection (1) of Section 18 or any other person nominated by the

Tribunal for this purpose”. 708

“7. Constitution of maintenance Tribunal:

(1) The State Government shall within a period of six months

from the Date of the. commencement of this Act, by

notification in the Official Gazette, constitute for each

Subdivision one or more Tribunals as may be specified in

the notification for the purpose of adjudicating and

deciding upon the order for maintenance under Section 5

(2) The Tribunal shall be presided over by an officer not

below the rank of Sub-Divisional Officer of a State.

(3) Where two or more Tribunals are constituted for any area,

the State Government may, by general or special order,

regulate the distribution of business among them.709

3.7.9.1 Application for Maintenance under the Act

The provisions contained in Section 5 of The maintenance &

Welfare of Parents & Senior Citizen Act, 2007 has to be read together

with that of Section 4, Section 6 and 7 of the Act to know the true

spirit, which lays down that that, under the Act, in order to claim the

maintenance, an application has to be filed by the parents/ senior

citizens, either by themselves or by any other person or organization

authorized by them on their behalf. The organization must be a

voluntary organization, which should be registered under Societies

Registration Act, 1860.710

3.7.9.2 Suo Moto Cognizance

708 Section 6 of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007. 709 Section 7, of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007. 710 Sections 5-7, of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007.

– 292 –

The provisions of the Act empower the tribunal to take Suo

Moto cognizance under the act and make provisions for their

maintenance, if they have sufficient information and reason to believe

that the parents or the childless senior citizens are being neglected or

do not have the sufficient means to maintain them.

3.7.9.3 Provisions as to Interim Maintenance

As per Section 5(2) of the Act, the Tribunal while entertaining

an application under the Act, may order and make the provision for the

monthly allowance to be paid.711

Further Section 5(4) of the Act, states that, the application for

the Interim maintenance has to be disposed of by the tribunal within

90 days of the receiving of the application. But along with it the

proviso to the sub-Section advocates to give an extension of 30

another days, making it round off t 120 days turnaround time, in which

the application for the interim maintenance is required to be disposed

of.712

3.7.9.4 Notice to Be Served

Section 5(3) states that, while disposing an application and

determining the amount of maintenance under the Act, the tribunal is

required to serve the notice to the children or the relative as the case

may be in order to provide them the opportunity of being heard.

Section 6(2) lays down that On receipt of the application under

Section 5, the Tribunal shall issue a process for procuring the presence

of children or relative against whom the application is filed. It is laid

down under Section 6(3) for securing the attendance of children or

relative the Tribunal shall have the power of a Judicial Magistrate of

first class as provided under the Code of Criminal Procedure,

711 Section 5(2) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007. 712 Section 5(4) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007.

– 293 –

1973.Where the children or relative is residing out of India, the

summons shall be served by the Tribunal through such authority, as

the Central Government may by notification in the official Gazette,

specify in this behalf.713

3.7.9.5 Application May be Filed against One or More Persons

Section 5(5) of the Maintenance & Welfare of Parents & Senior

Citizen Act, 2007 states that the Senior Citizen as well as the Parents

may file an application against one or more persons and need not

implead all those who are liable to maintain him or her. However,

proviso to this sub Section further gives liberty to the Children or to

implead any such other child or relative as opposite party, when they

are also liable to maintain the parents or the senior citizens so that all

of them may share the liability.714 Section 5(6) lies down thatwhere a

maintenance order was made against more than one person, the death

of one of them does not affect the liability of others to continue

paying maintenance715

3.7.9.6 Date of Allowance

Section 5(7) of the Maintenance & Welfare of Parents & Senior

Citizen Act, 2007, states that, any allowance for the maintenance and

the expenses of the proceedings thereof shall be payable from the Date

of Order or the Date of Application for the grant of maintenance or the

expenses of the proceedings if any.716

3.7.9.7 Non Compliance of the Order

The Act without the remedy for the non-compliance of the order

is always like a toothless tiger; Section 5(8) of the Maintenance &

Welfare of Parents & Senior Citizen Act, 2007 provides that in case of 713 Section 6(5) of the Maintenance & Welfare of Parents and Senior Citizens Act, 2007. 714 Section 5(5) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007. 715 Section 5(6) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007. 716 Section 5(7) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007.

– 294 –

non-compliance of the order without the sufficient cause, the tribunal

may:

(i) Issue a warrant for levying the amount due in the manner

provided for levying fines;

(ii) May sentence such person for the whole, or any part of

each month’s allowance for the maintenance and expenses

of proceeding, as the case may be, remaining unpaid after

the execution of the warrant, to imprisonment for a term

which may extend to one month or until payment if

sooner made whichever is earlier:717

3.7.9.8 Limitation Period for the Execution

The Magistrate’s power under this Section cannot be extended

and only remedy to get the order enforced will be at the expiry of

Three months and not prior.

3.7.9.9 Jurisdiction

“As per Section 6(1) of the Act, the proceedings on an

application received under Section 5 may be taken against any

children or relative in any district:

(a) where the person making an application resides or last

resided; or

(b) Where the children or relative resides or last resided”.718

The provision contained under this Section is more liberal than

that contained in the Section 125 of the Code of Criminal Procedure,

1973, according to which in order to claim the maintenance from their

717 Section 5(8) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007. 718 Section 6(1) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007.

– 295 –

Children, the Parents have to file an application where the Child

resides.

3.7.9.10 Procedure for Taking the Evidence

Sub-Section (4) of Section 6 states that for the disposal of

application, the evidence shall be taken in the presence of the Children

or the relatives as the case may be and same may be disposed of as in

the summon cases.719

3.7.9.11 Tribunal May Proceed Ex- Parte

Proviso to Section 6(4) lay down and empower the tribunal to

hear and determine the case Ex-Parte when it is satisfied that the

Children or the Relatives, against whom the order of maintenance is

proposed to be passed are willfully avoiding the summons or willfully

neglecting or avoiding the summons. But this provision does not

empower the Tribunal to set aside the Ex-Parte order on showing the

sufficient cause since the Tribunal has to complete the proceedings

expeditiously.720

3.7.9.13 Conciliation Officer

The tribunal before hearing the application for the maintenance

may refer the application to the Conciliation Officer who has to

submit his report within one month for the amicable settlement of the

dispute and in case there seems to be some way out of amicable

settlement as laid down by the conciliation officer between the parties,

the Tribunal proceeds to pass the order on those terms.721

3.7.9.14 Maintenance Tribunal

719 Section 6(4) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007. 720 Section 6 (4) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007. 721 Section 6 (6) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007.

– 296 –

Section 7(1) of the Act make an obligations upon the state to

constitute the maintenance Tribunal for the adjudication of the

application filed by the Parents under the Act within the period of six

months from the date of commencement of this Act, which shall not be

presided by the Presiding Officer below the rank of Sub-Divisional

Officer as per sub-Section (2) of Section 7 of the Act.722

3.7.10 Procedure of Enquiry underthe Act

The sub Section (1) of Section 8 of the Maintenance & Welfare

of Parents & Senior Citizen Act, 2007, down that in order of holding

the enquiry under Section 5 of the Act, the Tribunal may subject to

such rules that may be prescribed by the State Government in this

behalf followed by the summary procedure as it deems fit.The

Tribunal shall have all the powers of a Civil Court for the purpose of

taking evidence on oath and of enforcing the attendance of witnesses

and of compelling the discovery and production of documents and

material objects and for such other purposes as may be prescribed; and

the Tribunal shall be deemed to be a Civil Court for all the purposes

of Section 195 and Chapter XXVI of the Code of Criminal Procedure,

1973. (2 of 1974)723 and shall have the power:

(a) Taking evidence on oath and enforcing the attendance of

witnesses;

(b) Of compelling the discovery and production of documents

and material object;

(c) For such other purposes as may be prescribed by the state

government for framing of the rules to that effect.

3.7.11 Assistance of Experts

722 Section 7(1) of the Maintenance & Welfare of Parents & Senior Citizen Act, 2007. 723 Section 8(2) of the Maintenance and Welfare of Parents and Senior Citizens Act,

2007.

– 297 –

As per Section 8(3) of the Act, states that the Tribunal for the

purpose of adjudicating and deciding upon any claim for maintenance,

may take the assistance to assist the tribunal in holding and

conducting the enquiry, from one or more persons possessing the

special knowledge of any matter related to enquiry.724

3.7.12 Award of Maintenance and the Amount

As per Section 9(2) of the Act, The maximum maintenance

allowance which may be ordered by such Tribunal shall be such as

may be prescribed by the State Government which shall not exceed

�10000.

The Section is discretionary in the nature by giving the power to

the tribunal to fix the amount and mode of payments, by using the

words ‘make a monthly allowance at such monthly rate for the

maintenance of such senior citizen, as the Tribunal may deem fit’. But

unfortunately, this discretion is not of the widest amplitude as the

amount has been restricted to �10000 Per Month which may not be

sufficient in all the cases as the commodities pricing are increasing

day by day. Like other laws governing the maintenance the tribunal

should consider other factors such as status of the parties,

requirements and other problems being faced by them in their lives

and to fulfill their needs. The provision of this Section also seems to

be in contradiction with the provision laid down in Section 4(2) of the

present act, which aims to provide the maintenance to the extent which

may let them to lead a normal life.

Moreover, it is to be observed and noticed that the amount

mentioned in the present Section is of the maximum limit which could

be awarded as maintenance and not the amount which make an

applicant to qualify for making the application for the maintenance.in

the case where the application for maintenance was rejected on the 724 Section 8(3) of the maintenance & Welfare of Parents and Senior Citizens Act, 2007.

– 298 –

ground that the applicant receives �5000 Per Month as pension

amount, hence he is not entitled to receive any maintenance under the

Act, was held to be improper and it was held that the amount

mentioned in the Section is not a qualifying amount.725

The power conferred under this Section on the Tribunal is

restricted to passing of award of maintenance and an order passed

under this Section directing handing over the possession of the

property cannot be held proper.726

3.7.13 Alteration in the Award of Maintenance

Section 10 of the Maintenance & Welfare of Parents & Senior

Citizen Act, 2007 states that the order of maintenance passed by the

tribunal may be altered cancelled or varied on proof of

misrepresentation or mistake of fact or a change in the circumstances

of any person.

3.7.14 Enforcement of Order of Maintenance

Mere getting the award of maintenance is not sufficient, unless

it is enforced in due course to get the relief. Sub Section (1) of Section

11 provides for the supply of copy of the order passed under Section 9

of the Act free of cost to the senior citizens or parents as the case may

be free of cost in whose favor the order has been passed. The Section

further provides that such order may be enforced by any Tribunal in

any place where the person against whom it is made, such Tribunal on

being satisfied as to the identity of the parties and the non-payment of

the allowance, or as the case may be, of the expenses of the

proceedings if ordered by the tribunal while passing the order of

interim maintenance.727

725 AIR 2014 NOC 398 (Guj). 726 AIR 2014 NOC 292 (Del). 727 Section 11(1) of the Maintenance and Welfare of Parents and Senior Citizens Act,

2007.

– 299 –

3.7.15 Order to Be Treated at Par with That Passed Under

Chapter IX the Code of Criminal Procedure, 1973

A maintenance order made under this Act shall have the same

force and effect as an order passed under Chapter IX of the Code of

Criminal Procedure, 1973 and shall be executed in the manner

prescribed for the execution of such order by that Code.728

3.7.16 Forum for the Recovery of Maintenance Allowance

against the Children

The recovery proceedings shall be initiated where the children

or relative against whom the order is passed reside and not at any

other place.729

3.7.17 Claim of Maintenance under the Act and the Other

Laws

Section 12 of The maintenance & Welfare of Parents & Senior

Citizen Act, 2007, specifically lays down that, Notwithstanding

anything contained in Chapter IX of the Code of Criminal Procedure,

1973 (2 of 1974) where a Senior Citizen or a Parent is entitled for

maintenance under the said Chapter and also entitled for maintenance

under this Act may, without prejudice to the provisions of Chapter IX

of the said Code, claim such maintenance under either of those Acts

but not under both and there is clear prohibition to claim benefit of the

both provisions, but honorable Punjab & Haryana High Court in the

case titled Paramjit Kaur Saroya v. Union of India,730 casting such

prohibition in a beneficiary legislation seems to be discriminatory and

needs to be re looked in order to give the benefit of the same.

3.7.18 Time for Depositing of Award of Maintenance

728 Section 11(2) of, the Maintenance and Welfare of Parents and Senior Citizens Act,

2007. 729 Section 6 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 730 AIR 2014 P&H 121.

– 300 –

A specific provision has been made under Section 13 of The

maintenance & Welfare of Parents & Senior Citizen Act, 2007 to

deposit the amount awarded by the tribunal in such manner as the

tribunal may direct with in thirty days. This seems to be new provision

which is not present in the Code of Criminal Procedure.

3.7.19 Payment/Award of Interest

Under Section 14 of the act it is provided that when a Tribunal

makes an order for maintenance, it may also levy in addition to the

amount of maintenance, simple interest at such rate and from such date

not earlier than the date of making the application as may be

determined by the Tribunal which shall not be less than five per cent,

and not more than eighteen per cent. The payment of interest on the

amount awarded is discretionary in nature and in case the award of

maintenance is passed promptly there will be no need to award

interest. Similarly if the tribunal has also awarded the expenses of

proceedings, it may not be inclined to order the payment of interest.731

But further the proviso that where any application for

maintenance under Chapter IX of the Code of Criminal Procedure,

1973 is pending before a Court at the commencement of this Act, but

the parent want to withdraw that application in order to file an

application for maintenance under the Section 5 of the Act, then the

Court shall allow the withdrawal of such application on the request of

the parent and such parent shall be entitled to file an application for

maintenance before the Tribunal.732

3.7.20 Appeals against the Order of Tribunal

“16. Appeals:

731 Supra note 67 at 287. 732 Section 14 of the Maintenance & Welfare of Parents and Senior Citizens Act, 2007.

– 301 –

(1) Any senior citizen or a parent, as the case may be,

aggrieved by an order of a Tribunal may, within sixty

days from the date of the order, prefer an appeal to the

Appellate Tribunal:

Provided that on appeal, the children or relative

who is required to pay any amount in terms of such

maintenance order shall continue to pay to such parent

the amount so ordered, in the manner directed by the

Appellate Tribunal:

Provided, further that the Appellate Tribunal may,

entertain the appeal after the expiry of the said period of

sixty days, if it is satisfied that the appellant was

prevented by sufficient cause from preferring the appeal

in time.

(2) On receipt of an appeal, the Appellate Tribunal shall,

cause a notice to be served upon the respondent.

(3) The Appellate Tribunal may call for the record of

proceedings from the Tribunal against whose order the

appeal is preferred.

(4) The Appellate Tribunal may, after examining the appeal

and the records called for either allow or reject the

appeal.

(5) The Appellate Tribunal shall, adjudicate and decide upon

the appeal filed against the order of the Tribunal and the

order of the Appellate Tribunal shall be final:

Provided, that no appeal shall be rejected unless an

opportunity has been given to both the parties of being

– 302 –

heard in person or through a duly authorized

representative.

(6) The Appellate Tribunal shall make an endeavor to

pronounce its order in writing within one month of the

receipt of an appeal.

(7) A copy of every order made under sub-Section (5) shall

be sent to both the parties free of cost”.733

3.7.20.1 Who May File an Appeal

Under Section 16 of The maintenance & Welfare of Parents &

Senior Citizen Act, 2007, any senior citizen or the parent, aggrieved

by the order of tribunal, may file an appeal to the Appellate

Tribunal734 Appeal may be filed only by the applicant under the

following cases:

(a) If they are aggrieved or not satisfied by the amount of

maintenance;

(b) On the rejection of the application of maintenance.

From the reading of this sub Section it is apparently clear that,

it does not provide any right of appeal to the children or the relative in

case they feel aggrieved by the order of the Tribunal. Such children or

the relative will have the remedy to move to High Court under Article

227 of the Indian Constitution, challenging the legality of the order,

but the high Court in such a case cannot exercise the powers of

appellate Court and powers will be remained confined to that of the

revisional Court.735 But Hon’ble P&H high Court has recently

contended that Section 16(1) is valid and must be read to provide the

733 Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 734 Section 15 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 735 Supra note 67 at 288.

– 303 –

right of appeal to the both parties and not the parents / senior citizens

only.736

3.7.21 Legal Assistance under the Act

Section 17 of the Maintenance & Welfare of Parents & Senior

Citizen Act, 2007prohibits the representation of senior citizens or the

parents by the advocate in any manner by whatsoever. Recently

Hon’ble P&H High Court in the case titled Paramjit Kaur Saroya v.

Union of India,737 has held that at the time of the enactment of the Act,

Section 30 of the Indian Advocates Act, 1961 which confers the right

on the Legal practitioner was not in force. However subsequently, the

position changed and the act came into force on 15 June 2011. Thus

the anomaly created would require the central government to look in

to the matter, since Section 17 still being on the statue book and

would not come in to way by any means in the way of legal

representation.

Thus on the analysis of the various personal laws and the

provisions of maintenance incorporated there in, it is apparently clear

that though every religion has attempted to take care of the various

needs by providing maintenance, but still there are great variations at

the religious fronts and even in the secular statutes, which needs to be

rectified in order to provide equal relief to all women despite of the

religion to which they belong.

736 Paramjit Kaur Saroya v. Union of India, AIR 2014 P&H 121. 737 Ibid.