MAINTENANCE UNDER HINDU LAW

INTRODUCTION
The right of maintenance under Hindu law is very old and it was one of the basic

necessities of the joint family system. According to my understanding the

maintenance of the women in the joint family system was an important system and

this was followed as a tradition which governed the families. It was the obligation

of the head of the family (karta) to look after the women of the family i.e. their

wives and their daughters until they were married. Latter when the women grew

older it was the duty of their children to mother and other old women of the family.

The unchastity on part of the women disentitled them to maintenance. Their

remarriage ended the claim and the amount of maintenance depended upon various

factors like the status of the family, necessary requirements, wants, age,

etc. Section 24 provides of Hindu Marriage Act, (HMA) 1955 provides for

maintenance.

Under this Act also, only a wife has a right to claim maintenance. The Hindu

husband has a legal obligation to maintain his wife during his lifetime. However, if

a wife ceases to be Hindu or lives separately under no legal grounds she loses the

right to claim maintenance too. Also, a Hindu wife under this act shall not be

entitled to separate residence and maintenance from her husband if she is unchaste

or converts to another religion. Wife can claim separate residence only if husband
remarries and the other wife stays in the same house.

Under this act (Section 19), a (Hindu) wife after the death of her husband is

entitled to be maintained by her Father in-law, provided she has no means of her

own earnings. However, the right cannot be enforced if her Father in-law does not

have means to do so and if the wife remarries.

The liabilities of a Hindu to maintain others are personal

liability and liability dependant on possession of property where the former arises

from mere relationship between the parties and the latter arises due to possession

of property.

Maintenance of Wife under Section 18, the Hindu

Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by her

husband for lifetime i.e. she will be given maintenance until she dies or her

husband dies. Under section 18 of this Act a Hindu wife is entitled to live

separately from her husband without canceling her right to claim maintenance. The

grounds under which she can live separately are:-

(1) Husband is guilty of desertion

(2) The Husband has treated her with cruelty

(3) The husband is suffering from a virulent form of leprosy

(4)The husband has any other wife living.

(6) The Husband has ceased to be a hindu by conversion to another religion and

(7) if there is any other cause justifying living separately

But there are two bars which will prevent a wife from claiming maintenance from

her husband i.e. (i) if she is unchaste or (ii) if she ceases to be a Hindu by

conversion to another religion.

The wife is entitled to live separately without forfeiting her right to maintenance, if

her husband is guilty of desertion, if he subjects the women to cruelty, if he is

suffering from a leprosy, if he has any other wife living, keeps a concubine in the

house where his wife resides, if he has ceased to be a Hindu, or if there is any other

cause justifying her to live separately under Section 18(2) of the

HAMA. According to me the exception given in this section according to which a

wife cannot claim maintenance if she is converted from some other religion into a

Hindu is not right. Now as the wife is related to a Hindu family and if she has

married according to the Hindu religion and she is governed by Hindu law than she

should not be separated from the rights which other women get as a Hindu lady.

Maintenance of wife under the Section 125 of CrPC:

Under CrPC, only wife (a woman who has been divorced by or has obtained

divorce from her husband & hasn’t remarried) can claim for maintenance. A wife
who refuses to stay with her husband due to legal grounds such as (bigamy,

cruelty & adultery) has the right to special allowance under this act. But a wife

does not possess right to claim maintenance if she’s living in adultery or she’s

living separately by mutual consent. The various sections of CrPC are criminal in

nature and are used for the criminal charges. The Section 125 of the CrPC states

the provisions as follows:

“125 Order for maintenance of wives, children and parents.

(1) If any person leaving 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 or mother, unable to maintain himself or herself" [9]

In this section what I find is different according to my knowledge is that the

magistrate has the power to give the maintenance from the date of the order and if

gives the allowance from the date of filling the application than in that case he has

to give reasons as to why he/she is giving the maintenance from the date of the

application.
Award of maintenance to wife under Section 23(2):

Section 23 of the HAMA, 1956 clarifies or defines the people who get

maintenance and how much of maintenance i.e. the amount they can get keeping

in mind the various things. The court in the case of awarding maintenance has the

authority to give the maintenance after analyzing various factors. The factors

which are considered by the court according to section 23(2) and section 23(3) are:

“(2)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 claimants.

(e)the number of persons entitled to maintenance, if any, to be awarded to a

dependant under this Act, regard shall be had to -

(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 provisions, if any, made under a will of the deceased in respect of the

dependant.

(c)the degree of relationship between the two.

(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."

The court awards maintenance to the wife considering various factors into

consideration like status and position of the parties, wife’s wants, the value of

wife’s property and income if any, derived from that property and the number of

persons entitled to maintenance.

CASE LAWS-

The issue was first discussed in Narayanaswami v. Padmanabhan where the

Madras High Court did not take a liberal approach and held that, under Section 25

of the Hindu Marriage Act 1955, only a wife, who is legally wedded or whose

marriage is not void or null, can claim maintenance from her husband. Meaning

thereby, that a woman, whose marriage is in contravention with Section 5(i) of the

Hindu Marriage Act 1955, is not entitled to claim maintenance under Section 25 of

the act.

Whereas, in the case of Laxmi Bai v. Ayodhya Prasad the Madhya Pradesh

High Court presented the view that the expressions ‘wife’ and ‘husband’ should
not be construed as only legally wedded wife and husband, rather they should be

taken to mean ‘a person claiming to be a wife or a husband’. Thus, it held that the

matrimonial courts have the power to regulate the relationship between the parties,

and these powers should also be exercised by the courts in cases of invalid or

bigamous marriages.

A similar view was put forth by other high courts in other cases like Govindrao

Ranoji v. Ayodhya Prasad, Rajeshbhai v. Shantabai and

Mallika v. P. Kundanlal.[x] However, in the case

of Bhausaheh v. Leelahai] the Bombay High Court ruled that Section 25,
though it implies the welfare of a married woman should not have any unnecessary

inclination such that a woman, whose marriage is void, can be entitled to claim

maintenance. The court also opined that it will lead to a bizarre situation if a

uniform meaning of the expression ‘wife’ is not ascertained for the purpose of

providing maintenance under Section 125 of Criminal Procedure Code, 1973.

After reading and going through various sources of the personal laws, I feel that

the Hindu law is much more clearly defined and gives much more rights to women

in comparison to the Muslim law. Providing maintenance means that the other

person who is getting the maintenance should be able to live the life as he or she

lived before marriage in case of divorce and in case where the two partners are not

living together and they seek maintenance than the spouse getting maintenance

should be able to live a life as when they lived together. Maintenance is the

amount which a husband is under an obligation to make to a wife either during the

subsistence of the marriage or upon separation or divorce, under certain

circumstances.