October 2, 2022

Maintenance Laws in India

Hindu adoption and maintenance act, 1956

Hindu adoption and maintenance act, 1956 was the part of Hindu code bill which faced extreme protest and therefore Hindu code bill was passed in parts. The Hindu Adoption and maintenance Act, 1956 presented the law of adoption and maintenance for Hindus.

This Act overrode all other law, text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this act in the matter of adoption and maintenance as far those were inconsistent with the provision of this act.

The first part of the act provides for the adoption and second part from section 18 to section 28 provides the laws for Maintenance.

The Maintenance part of Hindu adoption and maintenance act, 1956 may be briefly explained here-

Maintenance of Wife (section 18)

A Hindu wife shall be entitled to be maintained by her husband during her life time.

A Hindu wife shall also be entitled to claim the maintenance from her husband while living separately from her husband, in following cases-

  • if husband is guilty of desertion, (desertion)
  • if he has treated her with cruelty (cruelty)
  • if he has any other wife living; (bigamy)
  • if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (concubinage)
  • if he has ceased to be a Hindu by conversion to another religion; (conversion)
  • if there is any other cause justifying her living separately. (any other cause)

The definitions of desertion, cruelty, bigamy, conversion in this act, are same as it is provided in Section 13 (divorce section) of Hindu Marriage Act, 1955.

Restriction of maintenance from husband

Sub-section (3) further adds a restriction that 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.

Maintenance of widowed daughter-in-law (Section 19)

A Hindu also entitled to be maintained by father-in-law after the death of her husband.

Restriction of maintenance from father in law

A wife only entitled to be maintained by her father in law only in following cases,

  • if she is unable to maintain herself out of her own earning, or other property, or
  • where she has no property of her own, she is unable to obtain maintenance―

(a) from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate.

  • Providing of maintenance shall be ceased on the remarriage of Hindu wife.

Any obligation on father in law 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.

Maintenance of children and aged parents (Section 20)

This section binds a Hindu, during his or her life-time, to maintain his or her,

  • Legitimate or illegitimate children, and
  • His or her aged or infirm parents.

Restriction from maintenance

  • Children are entitled to be maintained from their parents during their minority.
  • A person only liable to maintain their infirm parents or unmarried daughter in so far they are unable to maintain themselves out of his or her own earnings or other property.

“Parent” also includes a childless step-mother.

Maintenance of dependents (Section 22)

Before providing the laws on maintenance of dependants, the act defined the meaning of dependents in section 22.

As per section 21, ‘dependent’ mean the following relatives of the deceased-

  • his or her father;
  • his or her mother;
  • his widow, so long as she does not re-marry;
  • his or her son or the son of his predeceased son or the son of a predeceased son of his pre-deceased son, so long as he is a minor 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-grandson, from the estate of his father or mother or father’s father or father’s mother;
  • 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: 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 great-grand-daughter from the estate of her father or mother or father’s father or father’s mother;
  • his widowed daughter: provided and to the extent that she is unable to obtain maintenance―
    • from the estate of her husband; or
    • from her son or daughter if any, or his or her estate; or
    • from her father-in-law or his father or the estate of either of them;
  • any widow of his son or of a son of his predeceased son, so long as she does not re-marry: 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;
  • his or her minor illegitimate son, so long as he remains a minor;
  • his or her illegitimate daughter, so long as she remains unmarried.

How these dependents will be maintained? (Section 22)

  • Where a dependant has not obtained, by testamentary or intestate succession, any share in the estate of a deceased Hindu, the dependant shall be entitled, to maintenance from those heirs of a deceased Hindu who inherited from the estate of deceased.
  • 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.

Restriction from maintenance

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.

Amount of Maintenance (Section 23)

It shall be in discretion of the court to determine the amount of maintenance and in doing so the court shall have due regard to below-mentioned consideration in so far as they are applicable.

Determination of maintenance to a wife, children or aged or infirm parents

To awarding the maintenance to a wife, children or aged parents, regard shall be considered of the followings-

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(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.

Determination of maintenance to the dependents

In determining the amount of maintenance, 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.

Another rules of Maintenance

  • 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. (Section 24)
  • 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. (Section 25)
  • Debts of every description contracted or payable by the deceased shall have priority over the claims of his dependants for maintenance. (Section 26)
  • A dependant’s claim for maintenance shall not be a charge on the estate of the deceased or any portion thereof, unless such charge has been created by the will of the deceased, by a decree of court, by agreement between the dependant and the owner of the estate or portion, or otherwise. (Section 27)
  • 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. (Section 28)