MAINTENANCE UNDER HINDU ADOPTION AND MAINTENANCE  ACT 1956 (INDIA)

 The Hindu Adoptions and Maintenance Act, with effect from December 21, 1956, is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Sub- section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein.So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce,with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstances.

Based on judgment given by hon’ble

Bombay High Court in

Mangala Bhivaji Lad vs Original on 3 May, 2010

Hindu Adoptions & Maintenance Act. 1956.

Section 18 of the Hindu Adoptions & Maintenance Act. 1956 runs as follows :

18. “Maintenance of wife.– (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this 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 wilfully 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 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.”

Definition of Maintenance as given in the Hindu Adoptions and Maintenance Act, 1956.

Under Section 3 of that Act, maintenance includes-

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment ;

(ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage.

I would, therefore,think that when we talk of maintenance and support, the definition of maintenance as given in the Act of 1956 should be adopted. Section 18 of the Act of 1956 also refers to maintenance of wife and gives the circumstances under which a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance

The petitioner, therefore, was under an obligation to make provision to his wife and minor child for food, clothing, residence, education as well as medical attendance and treatment. Supreme Court of IndiaRajesh Burmann vs Mitul Chatterjee (Barman) on 4 November, 2008.

27. In Atul Sashikant Mude v. Niranjana Atul Mude, AIR 1998 Bombay 234, the Court considered the provisions of the Hindu Adoptions and Maintenance Act, 1956 and held that a Court is empowered to pass interim and ad-interim orders of maintenance. It was held that the inclusive definition of the `maintenance’ under the Act would include food, clothing, residence, education, medical attendance and treatment.

In Ajay Saxena v. Smt. Rachna Saxena, AIR 2007 Delhi 39, analysing the provisions of Hindu Adoptions and Maintenance Act, 1956, the Court held that in a suit under Section 18 of the Act, the wife can claim interim maintenance. It was further held that such interim maintenance may also cover expenses incurred towards medical treatment.

Orissa High CourtLaxmi Sahuani vs Maheswar Sahu on 19 April, 1984 Equivalent citations: AIR 1985 Ori 11. It was held that

“We are, therefore, of the view that the right conferred by Sub-section (1) of Section 18 is subject to the provisions of Sub-sections (2) and (3) of the said section. It, therefore, follows that a wife would lose her right of maintenance if she lives separate from her husband without the existence of any of the grounds or reasons mentioned in Sub-section (2). In other words, the wife would be entitled to separate residence and maintenance if her separate living is justified by one or more of the grounds mentioned in Sub-section (2). Further, she would not be entitled to any maintenance if she is unchaste or ceases to be a Hindu by conversion to another religion, though she might have sufficient justification to live separately from her husband having any of the grounds as mentioned in Sub-section (2) of Section 18.

Once if the Court holds that there has been a divorce between husband and wife, whether a Court can grant maintenance under 

 

Section 18 of the Hindu Adoptions and Maintenance Act, 1956;

Therefore, once a wife is divorced, her remedy to seek maintenance is at the time of divorce in a matrimonial petition or subsequent thereto is only under Hindu Marriage Act, 1955 and she cannot have any recourse under Hindu Adoptions and Maintenance Act, 1956, inasmuch as, the precondition for application of Hindu Adoptions and Maintenance Act, 1956, for a wife to seek maintenance is that the marriage must be subsisting. Under these circumstances, I answer the first substantial question of law to the effect that a divorced wife cannot claim any maintenance under Hindu. Adoptions and Maintenance Act, 1956, and her only remedy is under Hindu Marriage Act, 1955.”

Bombay High Court Panditrao Chimaji Kalure vs Gayabai Panditrao Kalure on 27 February, 2001

Equivalent citations: AIR 2001 Bom 445, 2002 (2) MhLj 53

Maintenance under Section 24 of the Hindu Marriage Act 1955

Section 24 provides a relief by way of maintenance and litigation expenses to a spouse who is unable to maintain itself during the pendency of the proceedings;

Hindu Marriage Act, 1955, Sec 24.

Maintenance pendente lite and expenses of proceeding.-

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 the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regards to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable :

[i][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.]

Comments.-

“Under Section 24 of the Act of 1955, an order of maintenance is only pendentelite proceedings. There are no rigid rules or laws of universal applications, which have to be adhered to while disposing of an application filed under section 24 of the Act of 1955. Here each case has to be adjudicated by the judge, Family Court on its merit. Wide and flexible powers has been given to the judge, Family Court to mould a relief as he think fit in the interest of justice.”

2010 (2) UAD 745 

Rahul Samrat Tandon Versus Smt Neeru Tandon A.O. NO 113 of 2010, Smt Neeru Tandon & Anr. Versus Rahul Samrat Tandon, A.O. NO. 237 of 2010, decided on : 20. 07. 2010

 

in Jasbir Kaur Sehgal v. District Judge, Dehradun and Others – 1997 (7) SCC 7 and Praveen Menon v. Ajitha K. Pillai – 2001 (3) KLT 450 and Damodaran v. Meera – 1986 KLT 1020, wife’s right to maintenance includes maintenance to the child as well.

[i] Inserted by Act 49 of 2001, S. 8 (w.e.f.24-9-2001)

Maintenance Under Section 25 of Hindu Marriage Act, 1955.

 Section 25 of the Act, as it now stands, after amendment by Act 68 of 1976 is :

 “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 purpose by either the wife o r

the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross 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 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, very, 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 remarried 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 very, modify or rescind any such order in such manner as the court may deem just].”

It is relevant to reproduce Section 28 as well:

“28 APPEAL FROM DECREES AND ORDERS- (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days (ninety days) from the date of the decree or order.”

NOTE :- The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed. Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Sub- section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce,

with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu ‘Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. The wife’s claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus. Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is conclusive proof as to the conferral, accrual,or taking away of such. legal character from a point of time as declared by the court. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive, onwards. This provision is indicative of the quality of matrimonial jurisdiction. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and

whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18 (1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.

Article is based on judgment given by the hon’ble

Bombay High Court in the case of

Panditrao Chimaji Kalure vs Gayabai Panditrao Kalure on 27 February, 2001

Equivalent citations: AIR 2001 Bom 445, 2002 (2) MhLj 53

Bench: S Radhakrishnan

 

Cr.P.C. Section 125

Section 125.

Order for maintenance of wives, children, and parents.-(1) If any person having sufficient means neglects or refuses to maintain-

(a)his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself , or

(c) his legitimate or illegitimate child (not being a married daughter)who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father and mother, unable to maintain himself or herself,

A Magistrate of the first class may, upon proof of such neglect or refusal , order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate [i][***], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband or such minor female child, if married, is not possessed of sufficient means.

[ii][Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]

Explanation.- For the purpose of this chapter.-

(a) “Minor” means a person who, under the provisions of the Indian Majority Act, of 1875 (9 of 1875), is deemed not to have attained his majority;

(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried;

[iii][(2) Any such allowance for the maintenance or interim 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 interim maintenance and expenses of proceeding , as the case may be.]

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue 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 or the interim 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:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her,  and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) ON proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

NOTE: From the above it is quite clear that under Section 125 Cr.PC a wife has to prove that the husband has sufficient means and he has neglected or refused to maintain her. It is also the object of the law that wife would not be entitled to receive maintenance if without any sufficient reasons she refuses to live with her husband and if they are living separately by mutual consent.

In Savitaben’s case (supra) the Apex Court followed its decision in Yamunabai’s case AIR 1988 S.C. in every respect.

“the position in law stands presently there is no escape from the conclusion that the expression ‘wife’ as per Section 125 of the Code refers to only legally married wife.”

                                        STATE AMENDMENT

UTTAR PRADESH-(a) In section 125, in sub-section (1),for the words “five hundred rupees ‘ the words “five thousand rupees” shall be substiuted;(b) after sub-section (5), the following sub-section shall be inserted, namely:-  “(6) Where in a proceeding under this section it appears to the Magistrate that the person claiming maintenanse is in need of immediate relief for his support and the necessary expenses of the proceeding, the Magistrate may, on his application, order the person against whom the maintenance is claimed, to pay to the person claiming the maintenance , during the pendency of the proceeding such monthly allowance not exceeding five thousand rupees and such expenses of the proceeding as the Magistrate consider reasonable and such order shall be enforceable as an order of maintenance.” [U.P. Act No. 36 2000, w,e,f, 13-8-2001,]

MADHYA PRADESH.- In sub-s. (1) of s.125 of the Principal Act for the words “five hundred rupees” the words “three thousand rupees” shall be substituted. [M.P. Act No. 10 of 1998, w,e,f, 30.5.1998].

Criminal Procedure Code, 1973.

 

Procedure

Section 126 criminal procedure code , 1973 provides.-

(1) Proceedings under section 125 may be taken against any person in any district –

(a) Where he is, or

(b) Where he or his wife resides, or

(c) Where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader , and shall be recorded in the manner prescribed for summon cases:

Provided that  if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed be made is willfully avoiding service, or willfully neglecting  to attend the court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of cost to the opposite party as the magistrate may think just and proper.

(3) The court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.

Alteration in allowance

Section  127 Criminal Procedure Code, 1973, provides

(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit :

Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceed.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

(3) where any order has been made under section 125 in favor of a women whom has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-

(a) the women has, after the date of such divorce, remarried , cancel such order as from the date of her remarriage;

(b)the women has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-

(i) in the case where such sum was paid before such order, from the date on which such order was made.

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after the divorce, cancel the order from the date thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the civil court shall take into account the sum which has been paid too, or recovered by, such person as monthly allowance in pursuance of the said order.

Enforcement of order of maintenance.-

Section 128 Criminal Procedure Code, 1973, provides

A copy of the order of maintenance shall be given without payment to the person in whose favor it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.

Protection of Women from Domestic Violence Act

A  party can either approach the Court of MM under Domestic Violence Act soon after commission of Domestic Violence or under Section 125 Cr. P.C. claiming maintenance. The Jurisdiction for granting maintenance under Section 125 Cr. P.C. and Domestic Violence Act is parallel jurisdiction and if maintenance has been granted under Section 125 Cr. P.C. after taking into account the entire material placed before the Court and recording evidence, it is not necessary that another MM under Domestic Violence Act should again adjudicate the issue of maintenance. The law does not warrant that two parallel courts should adjudicate same issue separately. If adjudication has already been done by a Court of MM under Section 125 Cr. P.C., re-adjudication of the issue of maintenance cannot be done by a Court of MM (metropolitan magistrate)  under Domestic Violence Act. Delhi High Court

Renu Mittal vs Anil Mittal & Ors. on 27 September, 2010

Whether the female relatives of the husband can be made party in the complaint under domestic violence act ? Law discussed and held by the Honorable Delhi High Court in

Varsha Kapoor vs Uoi & Ors. on 3 June, 2010 ” that the expression „a relative‟ in proviso to Section 2(q) includes a female relative as well.”

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