Maintenance of Wife - Part II (Hindu Adoption and Maintenance Act,1956)
- LAWfield Associates
- Aug 3, 2020
- 8 min read
Updated: Aug 14, 2020
Maintenance is not a new concept in our social and legal system, and has been a custom since time immemorial. Hindu sages, in most unequivocal and clear terms, have laid down the concept of maintenance. Lord Manu commented, “The aged parents, a virtuous wife and an infant child must be maintained even by doing hundred misdeeds”. Brihaspati said, “A man may give what remains after the food and clothing of family: the giver or more( who leaves his family naked and unfed ) may taste honey at first but afterwards finds it poison” . The maintenance of the aged parents, infant children and wife is considered to be the greatest duty of a person . It is the belief of Hindus that if one can faithfully fulfil this duty, the gates of heaven are wide open for one.
The right of maintenance arises from the concept of an undivided family. The head of such a family is bound to maintain its members , their wives and their children. All members of a joint family, whatever be their status and whatever be their age are entitled to maintenance. Under Hindu laws, a person has personal obligation to maintain his wife, children and aged and infirm parents. Such obligation arises from the very nature of the relationship, and exits whether he possesses property or not. It is a right of such wives, children or parents to get the necessities that are reasonable.
The word “maintenance” has been given a different connotation in different statutes. Section 3(b) of the Hindu Adoption and Maintenance Act,1956 defines maintenance as “including (i) in all cases, provision for food, clothing, residing, education, and medical treatment and (ii)in case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.” The Hindu Marriage Act,1955 provides maintenance in the form of maintenance pendente lite (interim or temporary) along with the expenses of the proceedings as well as permanent maintenance and alimony under section 24 and 25 respectively. Section 125 of The Code of Criminal Procedure, 1973 includes the provision for maintenance noting that such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. The same is provided to Muslim women through Protection of Rights on Divorce Act, 1986. In this Article, we will be dealing in detail with the provisions for maintenance of a wife without getting a divorce. You can read our take on Interim Maintenance For Wife During Pendency Of A Case by clicking on this link.
Maintenance under Hindu Adoptions and Maintenance Act,1956
Section 18 of the Hindu Adoptions and Maintenance Act,1956 (hereinafter referred to as the “Act”) deals with the right to maintenance and separate residence of a wife. Prior to the enactment of this Act, the Hindu Married Woman’s Right to Separate Residence and Maintenance Act,1946 was in force. The right of a wife for maintenance is an incidence of the status of matrimony and a Hindu is under legal obligation to maintain his wife. The Hindu Adoption and Maintenance Act substantially reiterates the right and lays down the general rule that:
“a Hindu wife, whether married before or after the commencement of this Act, is entitled to be maintained by her husband during her lifetime”.
The wives under void marriages can also claim their right of maintenance as stated by the court in the case of C. Obula Konda Reddi v. C. Pedda Venkata Lakshmma[1] . However, the right of maintenance may be forfeited if it is discovered that the wife is unchaste or has ceased to be a Hindu by conversion.
Maintenance to wife living apart
A wife who lives apart with the consent of the husband, or for a justiciable cause, is also entitled to maintenance.
Now, what is a justiciable cause? Section 18(2) of the Hindu Adoptions and Maintenance Act,1956 lays down the grounds which can be considered as a just cause, for which a wife may live separately and still claim maintenance. These are:
Desertion - Desertion means abandoning the wife without reasonable cause and without her consent or against her wish. So, if the husband leaves the wife deliberately, without any just cause, the wife can still claim maintenance for her upkeep from her husband.
Cruelty - cruelty may be said to be conduct of such a character as to cause danger to life, limb or to the bodily or mental health of the wife, or as to give rise to reasonable apprehension of such danger to the wife.
Leprosy – maintenance can be claimed by the wife if the husband is suffering from ‘virulent form of leprosy’.
Having another wife - While in the present days, having two wives for a Hindu male is a punishable offence, earlier it was not. In such scenarios, where a husband had more than one wives, both the wives can claim separate residence and maintenance for themselves. However, such claim may be allowed only when one more wife is alive and living at the same time. In the case of Subbe Gauda Homnamma[2] the Karnataka High Court has held that:
the expression ‘another wife living’ signifies legally married wife. In case of a voidable marriage under Section 12 of the Hindu Marriage Act, it is well settled that the marriage is valid until it is set aside by a court of competent jurisdiction.
Concubine - If the husband keeps concubine in home or lives elsewhere with her habitually, the legally married wife of such person can claim maintenance. Keeping a concubine should denote some permanent and not a casual act of prostitution. A concubine is a woman in the permanent and exclusive keeping of a man though not married to him.
Conversion - if the husband abandons Hinduism and the wife claims dissolution of marriage by a decree of divorce under section 13 of the Hindu Marriage Act,1955, the wife can claim maintenance under this Act.
Other justifying cause - the wife can claim her right of maintenance if the conduct of her husband is otherwise blameworthy, even if not amounting to cruelty or desertion. If the wife can show that she had sufficient reasons for living separately from her husband, due to some act of the husband himself, then the Court may allow her maintenance under this Act.
In Neelam Singh v. Vijaya Narain Singh[3] , the husband was a bank manager but was not keeping his wife with him and also not providing her comforts of life . 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 this Act and while living separately the wife would be entitled to maintenance of Rs.1000 p.m.
In Narinder Pal Kaur v. Manjeet Singh, the respondent married the appellant by suppressing the fact of first marriage. The marriage continued for 14 years bearing 2 children. It was held that although a second marriage , bigamous in nature yet the wife was entitled to maintenance.
The right of widowed Daughter in law
A wife can claim maintenance from her husband during the continuance of the marriage, as well as after the divorce (under Hindu Marriage Act or Special Marriage Act). The right to maintenance is an extremely important right for any woman, specially at this time when a large percentage of them are still unemployed. Naturally, without the help of law, such women would suffer extremely if proper maintenance is not provided to them by their husband. But difficulty arises even more regarding the status of women after the death of their husbands. At many times, the in-laws of the women refuse to maintain them after the death of their husband. But the law is not silent in such situations either.
The Hindu Adoption and Maintenance Act,1956 purports to put the daughter in law as a class by herself by enacting a separate section for her. Under section 19,
the father in law is under a remote obligation to maintain his daughter-in-law in case if she is unable to maintain herself out of her own earnings or other property.
If she doesn’t have a property and is unable to maintain herself from the estate of husband, father, mother or children then also she is entitled to get maintenance from her father in law.
Quantum of Maintenance
The rights of a wife to get maintenance from her husband have been well established. But the determination of the quantum of maintenance may be a bit difficult.
No fixed rule can be laid down as to the amount of maintenance which the claimant is to have.
Each case is to be judged according to the nature of its circumstances as it depends on the totality of all the facts. The fixation of the amount of maintenance shall purely be the discretion of the Court in determining the amount of the maintenance. The Court may take into consideration, the following factors, in order to decide upon the quantum of maintenance to be paid to the wife:
the position and status of the husband and the wife, their standard of living;
the reasonable wants of the claimant wife;
the financial condition, properties owned, and earning of the husband or the person from whom maintenance is claimed;
if the claimant is living separately, whether the claimant is justified in doing so;
if the claimant wife possess any property, then the value of the such property and any income derived from such property, or from the claimant's own earnings or from any other source;
Any other relevant fact and circumstance.
A wife who has agreed to receive maintenance at a particular rate, binding herself not to claim any higher rate, even if circumstances were to change, can make an application for the increase of maintenance if she can prove or justify her claim under section 23.
Change in amount of Maintenance
Where a Court has granted maintenance to the wife and has fixed the amount of maintenance, such amount or rate of maintenance can later be altered or changed by the Court. For any alteration of the amount of maintenance, the wife can make an application before the Court under Section 25 of the Act, praying for the rate or amount to be increased. However, such an application shall always be supported by evidence or aversions showing that there has been any change in the circumstances.
For illustration, the wife can pray for an increased amount of maintenance by contending that the earnings of the husband has increased a lot while she herself is finding it difficult to meet her ends.
In Gurbaksh Kaur Vs. Paramjit Kaur[4], a Single Bench of the Punjab and Haryana High Court has held that reading of Section 25 of the Act would show that enhancement has to be claimed by moving an application before the same Court which granted maintenance and not by way of a fresh suit.
The Bombay High Court in Sanjay S/O Mahadeo Kelo vs Vidya W/O Sanjay Kelo [5]observed that, “the plain reading of the provision makes it implicitly clear that the amount of maintenance whether fixed by a decree of the Court or by an agreement may be altered subsequently if there is a material change in the circumstances justifying such alteration…. the amount of maintenance though fixed by the agreement between the parties can be altered subsequently if there is a material change in the circumstances justifying such alterations and therefore, the application filed by the applicant Under Section 25 of the Act of 1956, is maintainable.”
Conclusion
To sum up, the Hindu Adoption and Maintenance Act 1956 lays down extensive provisions for a Hindu wife to get maintenance from her husband during the subsistence of the marriage. The wife has been given the right to claim maintenance even when living separately from her husband. After the death of the husband, under certain circumstances, the wife can also get maintenance from her father-in-law. In order to file a suit for maintenance under this Act, an application may be filed before the District Court having jurisdiction.
[1] AIR 1976 AP 43 [2] AIR 1984 Karn. 41 [3] AIR (1995) All. 124. [4] 2016(4) PLR 232 [5] 2006 (6) BomCR 398
This article has been authored by Ms. Paridhi Jain, a student of Panjab University SSG Regional Centre, Hoshiarpur, under supervision of Mr. Sayantan Misra, Advocate. Please find the PDF file for this article below. You can download the same from the link provided below. In case of any queries or questions, feel free to drop a message here, or send an email at lawfieldassociates@gmail.com
Hope you have liked the article. Subscribe to our website for getting regular updates on law directly to your mail box.
Lawfield Associates is a nascent firm of lawyers, and is based at Kolkata, India. The firm has a growing litigation practice on family and matrimonial laws, including marriage and divorce proceedings, restitution of conjugal rights, custody of children, maintenance of wife and children, succession and inheritance laws, and more.
Comments