Chapter HI

Provisions of maintenance among the Hindus

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CHAPTER-PI

Provisions of maintenance under Hindu Law

The law of maintenance among the Hindus are principally divided into two main acts, such as

(a) The Hindu Adoptions and Maintenance Act, 1956 [78 of 1956]

In brief, called as H. A. M. A, 1956. [Chapter III (a)]

and

(b) Hindu Marriage Act, 1955

in brief, called as, { H. M. Act, 1955) [Chapter HI (b)]

As there are great links between (a) & (b) they are taken up by the common name of Hindu Law in part-
ill of this thesis.

Preliminary aspects:-
Among the Hindus there was a joint family system which is now almost evading and law of maintenance
has a special significance in Hindu Law. A Joint family confers a status on its members which can be
acquired1 only by birth in the family or by marriage to a male member - Ram Kumar V. Coimnr, Income
Tax.

Hindu Law gives importance to the fact that a Hindu has a personal duty to maintain certain near relations
such as wife, children, aged parents. One who takes other’s property has also a duty rather an obligation
to maintain the latter’s dependants. Obligations of the joint family to maintain its members can not be
ruled out also.

In Hindu Law, the term ‘maintenance’ is rather wide. Sec 3(b) of Hindu Adoptions and Maintenance
Act,1956, says that:-
Maintenance includes
(i) in all cases, provisions for food, clothing, residence, education and medical attendance and
treatment
(ii) in the case of an unmarried daughter, also the reasonable expenses and incident to her
marriage.

I - Ram Kumar V. Commr Income Tax, 1953 All 150.

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Maintenance provisions have been stipulated under section 24 and section 25 of the Hindu
Marriage Act, 1955 (briefly described as H. M. Act, 1955). These two sections describe

(a) Permanent alimony and maintenance (sec.25) and (b) Maintenance pendente lite and
expenses of proceedings. There are some differences between these two major Acts,
relating to maintenance (sec.24) among the Hindus,

Maintenance, if it is obligatory ?
The answer to this question can be settled by considering old Hindu Law along with that of the modem
Hindu law of two Acts only.Hindu sages preached that maintenance of certain persons, relations is but a
personal obligation. Manu, the great sage opined “die aged parents, a virtuous wife, and an infant child
must be maintained even by doing a hundred misdeeds”1. Even during the British Period in India, it was
an established rule to maintain wife, children and parents. So, at present a Hindu has a personal obligation
to maintain his wife, children and parents.

Brihaspali 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”11.
According to Mitakshara, “where there may be no property but what has been self-acquired, the only
persons whose maintenance out of such property is imperative, are aged parents, wife and minor
children”. In Hindu law, the term maintenance has been defined indirectly and has been used in a wide
sense. Hindu Adoptions and Maintenance Act, 1956 defines maintenance111 as “provisions for food,
clothing, residence, education and medical attendance and treatment”.

The position of wife, so far as maintenance is concerned is unique and of utmost importance.The wife’s
main task is to manage her husband’s house hold and house-property to the utmost. In modem Hindu
Society most of the wives are economically dependant upon their husbands for necessities in life. Most
systems of law recognize the direct obligation of husbands to maintain his wife so long as marriage
continues and the wife is but faithful and abiding of family tie. In modem systems of law, sometimes
obligation to maintain wife exists even after dissolution of marriage.

The obligation of the husband to maintain his wife comes from the very status of marriage i.e., out of jural
relationship of husband and wife created by the performance of marriage. Marriage whether considered as
I - Cited in Mitakshara, II175.
II - Brihaspati, XV.
El - Reference from Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956.
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a sacrament or a contract gives rise to a status. It confers a status of husband and wife on the parties to the
marriage and consequent status of legitimacy on the children of marriage. Under the ancient Hindu Law, a
wife who did not reside with her husband was not entitled to maintenance whatever be the cause. But law
developed gradually and it was established that a wife who lives separate from her husband for some
justified cause can be entitled to maintenance. The right of wife to maintenance arises under three
conditions.
(1) When wife resides with her husband.

(2) When she lives separate from her husband but not under a decree of the Court and also

(3) When the wife lives under a decree of Court (Judicial Separation) or when the marriage is
dissolved.

The Section 18(1) of Hindu Adoptions and Maintenance Act may now be considered. In all patriarehial
societies, an imperative duly of the wife is to continue to live with her husband in order to perform all
conjugal duties and the husband has also the duty to maintain his wife and his duty begins with the
marriage of the spouse. A wife who resides with her husband must be maintained by her husband. The
mere fact that the financial condition of the husband is bad is not at all a valid ground to refuse
maintenance of the wife. The obligation of the husband to maintain her wife is a personal obligation.

Even if, the wife is immature so that she lives with her parents, the husband’s obligation, in such case also
subsists so that the husband is bound to pay the maintenance of the wife. Except the husband, there is no
personal obligation to maintain the wife and no other member of the family has any personal obligation to
maintain the said wife. Only husband of the wife has personal obligation.

The husband’s obligation to maihtain his wife ceases only when the wife leaves him (the husband)
without any good cause or without the consent of the husband.

Before 1956, it was an accepted law, that an unchaste wife who continues to live with her husband was
entitled to mere starving maintenance. Also, an unchaste wife, who withdrew the company of her husband
but was repeated subsequently of her conduct, performed her rites of atonement, and returned to live with
her husband was entitled1 to maintenance.-
Rama Nath V. Rajonimoni,
(1890) 17 Cal 678.

I - Rama Nath V. Rajonimoni, (1890) 17 Cal 678.

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Sub Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956, stipulates that a Hindu Wife,
whether married before or after the commencement of the Act, shall be entitled to be maintained by her
husband during her lifetime.

Sub Section (3) of Sector 18 of the above Act of 1956 lays down further that 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”.'

This provision when seen in the light of sub-section (2) of Section 18 reveals separate residence and
maintenance for the wife in certain cases. The same can not be applicable in the case when the wife lives
with the husband i.e., as laid down in sub-section (1) of the Act Section 24 of the Act of 1956, brings a
general disqualification that a non-Hindu by conversion can not claim maintenance. It may be noted that a
wife who is no longer Hindu can pot claim maintenance under the modem Hindu law and she could not
claim it also under the old Hindu law. An unchaste wife who lives with her husband can claim
maintenance against her husband under the modem law. The conversion of her husband did not bring out
forfeiture of her right of maintenance under the old law which is similar to the modem law. It may be
gathered 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 set up or in other words, established, the wife is then, entitled to
maintenance as a matter of course.

Section 18(1) of the Hindu Adoption and Maintenance Act, 1956 deals with maintenance of a wife.lt is
therefore amply clear that the person claiming maintenance must have the status of a wife. In other words,
it is clear that she (the wife) must be legally married to the person (husband) against whom the claim of
maintenance is made.

Provisions of Section 18(2) of the Hindu Adoptions and Maintenance Act may now, be considered in
details. A wife who lives apart with the consent of her husband is entitled to maintenance. The wife is
also entitled to maintenance if she lives separately from her husband for a justified and reasonable cause.

Section 18(2) of the Act settles down the grounds on which the wife may live separate and yet
may claim maintenance, such as

Desertion - “Desertion” as a ground to live separate is defined in Section 18(2) as “abandoning her
without reasonable cause and without her consent or against her will or of willfully neglecting her”.
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In explanation to Sub-Section (1) of Section 13 of Hindu Marriage Act, 1955, desertion has been defined
as “The expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish of such party, and includes the
wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly”

Desertion may mean permanent abandonment of the one spouse by the other spouse without any just or
reasonable cause and without consent of the other. Desertion becomes in effect, a total rejection of the
obligations of the marriage. Desertion is not merely an act and includes conduct.

“Desertion” implies two conditions, namely (1) factum of separation and (2) intention to bring
cohabitation permanently to an end1.- Sunil Kumar V Satirani, AIR 1969 Cal 573 73 CWN 721.

To constitute desertion, previous cohabitation by parties is absolutely essential. Without previous

cohabitation, there can not be any, desertion11 -
* IV
Savitri Pandey V. Prem Chand Pandey, 2002 SC 591. For
the act of desertion to exist, there must bs both the faction or physical separation and the animus
deserendi or the intention to desert - Halsburv’s Laws of England. 3rd Edition Volume 12, Page 241.

The distinction between “desertion” as a ground to live separately and as a ground for judicial separation
or divorce under sections 10 and 13 of Hindu Marriage Act, 1955 is that under the latter, desertion must,
be at least for two year’s duration, Sec. 13(1) (ib), while under the former it may be under any duration.

On the ground of wilful neglect™ by the husband, wife can live separately and claim maintenance - Meera
V. Sukumar, 1994 Madras 168.

A full Bench of the Kerala High Court has given the verdict that if the husband has deserted the wife she
need not™ give proof of animus - Raghawan V. Sathyabhama, 1985 Kerala 193 (F.B.) next, the question
of cruelty may be considered. Cruelty, the legal concept of it, as mentioned in Section 13(1) (ia) of
H.M. Act, 1955 has varied considerably with the passage of time and change of social circumstances.
The modem law does not care for intention but tries to provide adequate protection to the innocent party.
Variation of temperament causes incompatibility and the same may bring cruelty.
I - Sunil Kumar V. Satirani, AIR 1969 Cal 573; 73 CWN 721.
II - Savitri Pandey V. Prem Chand Pandey, 2002 SC 591.
m - Meera V. Sukumar, 1994 Madras 168.
IV - Raghawan V. Sathyabhama, 1985 Kerala 193 (F.B.).
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To chide rudely or even nagging has been held to be a cause of cruelty. Case laws around the legal
concept of cruelty are abundant in India as well as abroad. Basic human nature is basically the same in
India and abroad but it may be carefully considered that in India there are joint families wherein many
couples live and such living in joint families has its own problems which may not arise in fragmented
societies.

Section 18(2) (b) of Hindu Adoption and Maintenance Act, 1956 says that a Hindu wife shall be entitled
to live separately from her husband without forfeiting her claim to maintenance if he (die husband) 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. There may be various manners of causation of cruelty. It may be clear,
overt or supressed even. If the husband by his conducts makes if clear that the wife is unwanted in his
house and her presence was a thing of displeasure to him, it was held that the same did give rise to
cruelty. In such circumstances, wife’s separate living was held to be justified1 - Maharaja V. Mutturkani,
1986 Madras 346. It may be seen that the burden of proof that the husband performed the act of cruelty
upon the wife, rests upon the wife.

The legal concept of cruelty can not be clearly defined with any degree of precision. It would not be safe
to attempt any comprehensive definition which would cover all the various kinds of ‘cruelty’. As
observed by Lord Denning “The categories of cruelty are not closed”11. (Sheldon V. Sheldon (1966) 2
A11ER257). Cruelty may be brutal or subtle. The same may be physical or mental. It may be, by words,
silence or by gestures. Cruelty refers to “conduct of such a character as character as to have caused
danger of life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such
danger”111. (Russel V. Russel, 1897 A. C. 395).It can be universally accepted that two distinct elements are
present in the legal notion of cruelty. First, the ill treatment complained of, and secondly, the
consequential danger or apprehension of such danger. The apprehension naturally is that further
cohabitation will be of harm or injury to the aggrieved party.

Whether an act or a variety of acts can come within the ambit of cruelty in a legal sense is a question
which can be answered only with reference to facts and circumstances of each particular case. The
culture of the spouses, their age, taste, temperament, their standard of living and other relevant
surrounding circumstances will have to be taken into consideration.
I - Maharaja V. Mutturkani, 1986 Mad. 346.
fi - Sheldon V. Sheldon (1966) 2 AH ER 257.
m - Russel V. Russel, 1897 AC, 395.
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Sometimes, it is and was held that actual physical harm (or a reasonable apprehension thereof) was the
principle ingredient of cruelty. However, it is now well established that this expression is comprehensive
enough to include the cases of mental cruelty also. Indeed, in some cases, mental cruelty may be more
serious, and may inflict more grievous injury, than physical cruelty.

As observed by the Supreme Court, mental cruelty can be defined as “that conduct which inflicts upon die
other party such mental pain and suffering as would make it impossible for that party to live with the
other1: (Bhagat V. Bhagat, AIR 1994 SC 710).

In the above case, it was further held that if the wife calls her husband (An Advocate) a lunatic, and
further alleges that a streak of insanity ran through the entire family, such conduct would amount to
mental cruelty. In one case, the wife burnt the thesis of her husband who was a lecturer and this condition
was held to be a form of cruelty11 (gross) on the part of the wife (Shanti Devi V. Raghav Prakash, AIR
1986 Raj 13).

In a case of physical cruelty, it is not necessary to prove real danger to life. Apprehension of danger to life
is held to be enough. Even, one or two acts of physical violence are sufficient to bring home the charge of
cruelty111 but
IV not an isolated instance - Vimlesh V. Sri Prakash, ADR 1992 All, 200.

Mental cruelty is also important to be discussed and to be noticed of. Mental cruelty must be such nature
that the husband and wife cannot reasonably be expected to live together. It is not necessary that mental
cruelty must be of such nature so as to cause injury to the health of the petitioner. What is mental cruelty
in a particular case may not be termed and held to be a cruelty in another™ case. Facts and circumstances
of each particular case has to be examined - Bhagat V. Bhagat, AIR 1994 S.C. 710. Mental cruelty is, of
course, a very important aspect of legal cruelty. Mental cruelty is a state of mind and feelingv Praveen V.
Indeijeet -2002 S.C. 2582. Wilful, unjustified interference by one spouse to the domain of life of another
is one of the species of cruelty. Rough or dominating conduct or disgusting claim of inchastity or adultery
may live rise to cruelty. Unmindness to take care of urgent family business or persistent excessive
nagging may amount to cruelty - AIR 1968 Mysore 115.

Demial of providing medical treatment to the wife on the very first day when she came in the matrimonial
I - Bhagat V. Bhagat, AIR 1994 SC 710.
II -Shanti Devi V. Raghav Prakash, AIR 1986 Raj 13
m- Vimilesh V. Sri Prakash, AIR 1992 All 200.
IV - Bhagat V. Bhagat, AIR 1994 SC 710.
V- Praveen V. Inderjeet -2002 S.C. 2582.
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house and driving her out of the matrimonial house on the very first day of marriage are invariably acts of
cruelty.

However, out burst of temper without ill will or non-payment of interim maintenance, or desertion her
she does not amount to cruelty1— Alok V. Mrinal, AIR 1973 Cal 393.Cruelty also includes unintentional
cruelty, for example when there are repeated demands for dowry by the husband11 *orIV
hisVrelatives - Shova
Rani V. Madhukar Reddi - AIR 1988 S. C. 121.

The Supreme Corat of India opined that the concept of cruelty is fast changing and a set of fects which
amounted to cruelty in one case may not be regarded as cruelty in another case. The concept of cruelty is
to be viewed against the background of the way of life of the parties, their culture, sense of life values,
economic and social condition etc. So more precedent or precedents can not be always relied upon.
(Shobha12 Rani V. M. Reddi, AIR 1988 SC 121) where a husband publicly called his wife a prostitute
and tried to wipe out her verimilion mark (on the forehead) by dashing her against a wall, it was held that
such acts of the husband amounted to cruelty™ - Saptami Sarkar V. Jagdish, 73 CWN 502. Leprosy
Under Sec 2 ( C ) of Sec 18 read with Section 18 (1) of the Hindu Adoption and Maintenance Act, 1956,
it can be gathered that a Hindu wife shall be entitled to claim maintenance from her husband by living
separately from her husband if the husband is suffering from a virulent type of leprosy. The Marriage
Laws (Amendment) Act, 1976 has made leprosy for judicial separation and divorce both. The duration of
leprosy has not been specified, but it must be existing at the time when the claim for separate residence
and maintenance are claimed ;it may have been existent before the marriage or it may come into
existence shortly before the claim is made.

With the advancement of medical science, leprosy is now mostly curable in its primary stage. It appears
that some period may pass on till virulent leprosy becomes incurable. Malignant or venomous leprosy is
called virulent leprosy. A mild type of leprosy which is capable of treatment is not a ground for judicial
separation or divorce. But lepromatous leprosy which is malignantv and also contagious and in which
prognosis is usually grave is virulent leprosy — Annapurna V. Nabakishore, Cri 1965 72. Sometimes, the
spread can be checked by a long period of treatment but it relapses and the same is frequentVI - Sri
Varaya V.C.C.P. Rao, (1974) ISC J 79.Leprosy is also virulent from which ulcerous and unsightly
I - Alok V. Mrinal, AIR 1973 Cal 393. ~
n - Shova Rani V. Madhukar Reddi - AIR 1988 S. C. 121.
m - Shova Rani V. Madhukar Reddi- AIR 1988 S. C. 121.
IV - Saptami Sarkar V. Jagdish, 73 CWN 502.
V - Annapurna V. Nabakishore, Cri 1965 72.
VI - Sri Varaya V.C.CP. Rao; (1974) ISC J 79.
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symptoms appear or when social meeting becomes rather impossible. So, only a virulent form of leprosy
of husband provides the wife a ground for separation and to claim maintenance Lepromatous leprosy is
virulent and incurable - AIR 1974 S.C. 165. Existence of any other wife - Under Section 18(2) (d) of
H.A.M A, 1956, a Hindu wife shall be entitled to live separately from her husband without forfeiting her
claim to maintenance if he has any other wife living. In this connection, Section 17 of the Hindu Marriage
Act, 1955 may be considered which states as

“Any marriage between two Hindus solemnized after the commencement of the Act (Hindu Marriage Act
1955) is void if at the date of such marriage either party had a husband or wife living; and the provisions
of Sections 494 and 495 of the Indian Penal Code shall apply accordingly”.

Solemnization of marriage - Section 17 of the Hindu Marriage Act makes the marriage between two
Hindus void if two conditions are satisfied namely, the marriage is solemnized after the commencement
of the 1955 Act and secondly, at the date of such marriage either party had a spouse1 living - B.S.
Lokhande V. State, A.I.R. 1965 SC. 1564.

Bigamy - Marriage must be properly solemnised with due performance of economics to attract the
provisions of Section 17 of the Act (Hindu Marriage Act, 1955) as well as section 494 of the Indian Penal
Code. Second marriage though void under Section 17(Hindu Marriage Act, 1955) would attract
punishment under Section 494 LP.C. - AIR 1979 SC 713.

Proof of Second Marriage - Invocation11 before sacred fire and Saptapadi must be proved - B.S.
Lokhande V. State, AIR 1965 SC 1564. Admission of accused person as to his second marriage is no
evidence against him - AIR 1966 SC 614.

Keeping of a concubine and Habitually residing with a concubine elsewhere Concubine generally means a
secondary wife. A Concubine is a woman living in a socially recognized state of concubinage mistress -
Webster's Seventh New Collegiate Dictionary Under Section 18(2) (e) of 1956 Act, a Hindu wife shall be
entitled to five separately from her husband without forfeiting her claim of maintenance if the husband
keeps the concubine in the same house in which his wife is living or habitually resides with a concubine
elsewhere.

Conversion to another religion and thereby ceasing to be a Hindu

Under Section 18 (2) (f), a Hindu wife shall be entitled to live separately from her husband without
I -B.S. Lokhande V. State, AIR 1965 SC 1564.
II - B.S. Lokhande V. State, AIR 1965 SC 1564.
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forfeiting her claim of maintenance if the husband has ceased to be a Hindu by Conversion to another
religion.

“Conversion” means change of religion. The import of conversion is to be discussed now, in short, A
person does not cease to be a Hindu simply because he declares that he has no faith in his Hindu religion.
Again, he will not cease to be a Hindu if he does not practise his Hindu religion or does not have faith in
it or renounces his religion or takes beef and even if he insults Hindu gods and goddesses.

A person who at the time of his marriage was a Hindu by religion then converts to Sikhism, Jainism or
Buddhism will not cease to be a Hindu, since a person who is Sikh, Jain or Buddhist by religion is a
Hindu.

Conversion to non-Hindu faith

Such as Christianity, Islam or Zoroastrianism together with undergoing the prescribed formalities
properly may bring conversion. It is not necessary that die convert after his conversion should invariably
practise the new faith.

Other Justified causes -

Under Section 18 (2) (g) of H.A.M.A., 1956, a Hindu wife shall be entitled to live separately from her
husband without forfeiting her claim to maintenance, if there is any other cause justifying her living
separately, apart from clauses (a) to (f) of Sub-Section (2) of Section 18 of Hindu Adoption and
Maintenance Act, 1956.

In consideration of decided cases, if there is a grave and weighty reason and or if there is a ‘grave and
convincing reason’ for the separate residence of the wife, the clause 18(2)(g) will be attracted. So, a
conduct which is just not cruelty but slightly falls short of it can and could entitle the wife to live
separately but can also claim maintenance. This right of a Hindu wife is however, not absolute. It is
limited by Section 18 (3) of Chapter HI of die Hindu Adoptions and Maintenance Act, 1956. Under the
section, a Hindu wife shall not be entided to separate residence and maintenance from her husband if she
is unchaste or ceases to be a Hindu by conversion to another religion.

In appropriate cases, the Court would take the wife’s conduct into consideration in course of granting
maintenance to such wife. It is pertinent to note that under the previous uncodified Hindu Law also, an
unchaste wife did not totally forfeit her right to claim maintenance.
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Section 19 of the Hindu Adoption and Maintenance Act, 1956 is important. It deals with Maintenanre nf
widowed daughter-in-law.

Section 19 provides that a 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. Further, she can
exercise this right only if she is unable to maintain herself out of her own earnings or other property or in
cases where she has no property of her own and 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. It has to be noted further that in terms of
Sub-Section 19(2) of the act, the right of a Hindu wife to claim maintenance from her father-in-
law can not be enforced if the father -in-law does not have the means to do so from any
coparcenary property in his possession out of which the daughter-in-law has not obtained any
sharc.Further, his obligation ceases, in all cases, when the daughter-in-law re-marriages.

Section 19 may be read with Section 23, which stipulates that it shall be in the discretion of the
Court to decide whether any, and if so, what maintenance shall be awarded under the provisions
of the Act (Act of 1956).

Section 19 has also to be considered with Section 22 of the H.A.M.A. Act,1956 which relates to
the rights of the dependants of a deceased person to claim maintenance from heirs who have
inherited the estate.

It appears that under Section 19 of the Act, the father - in - law’s obligation to maintain his
daughter - in - law is not a primary obligation and not even a secondary one. The same is rather a
remote obligation. The father-in-law has an obligation to maintain daughter-in-law only from a
coparcenary property in his possession. Further the father-in-law has such obligation, if he has
means to do so. So, if the coparcenary property is too small, he may not have any obligation to
maintain her daughter-in-law.

Now, what these sub-sections of section 23 of H.A.M.A., 1956 provide, the same may be
considered now.
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Sub - Section (2) - In determining the amount of maintenance, if any, to be awarded to a wife, children
or aged and infirm parents under the Act, regard shall be had to -

(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 claimants 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
Sub - Section (3) of the Section 23 of Act of 1956 provides as -
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 payments 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 die 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 (1956 Act).

Section 19 has to be read with Section 22 of the Act which relates to Maintenance of
dependants.

Section 22 of Act of 1956 provides - (1) Subject to the provisions of Sub-Section (2), the
heirs of a deceased Hindu are bound to maintain the dependents 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 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.
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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 parson 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 wee
enforced, become less than what would be awarded to him or her by way of maintenance under
this Act This section (22) in short, describes the rights of the dependants of a deceased Person to
claim maintenance from heirs who have inherited the estate.

Maintenance of children and aged parents tSec.201 - Hindu Adoptions and Maintenance Act. 1956
Section 20 imposes a duty on. a Hindu during his (or her) life-time to maintain his (or her) legitimate as
well as illegitimate children and his (or her) aged and infirm parents.Moreover, a legitimate child can
claim maintenance from his or her father or mother, as long as the child is a minor, so also a illegitimate
child.

It has been clearly provided that die obligation of a person to maintain his (or her) aged or infirm parent
or a daughter who is not married, extends only so far as such parent or unmarried daughter (as may be the
case) is unable to maintain himself (or herself) out of his (or her) own earnings or property.Explanation
clause under section 20(3) says that “parent” includes a child less step-mother.

It is also to be noted that the obligation of a Hindu to maintain his wife, minor sons, unmanied daughters
and aged parents (whether he himself possesses any property or not) is personal and of legal in character
and such obligation arises from the very existence of the relationship between the parties.

Section 20 clearly indicates and confirms the existing law in the matter but also goes further to stipulate
that not only a male Hindu - (as was so the position under the previous law) but also a female Hindu, - is
now under a legal obligation to maintain children and aged parents.

In most of the early systems of law, the obligation to maintain children was imposed on the father alone
and only in respect of legitimate children. Under the old Hindu law, the father was bound to maintain both
his legitimate and illegimate children.

Liability to maintain adopted sons -

A Hindu is under a duty to maintain his natural as well as adopted sons. A son though disobedient to his
father or does not stay with his father can also get maintenance from his father. The obligation of parent
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to maintain son only ceases when the son attains majority, even though the son is unable to maintain
himself due to disorder or temporary illness of him.

Hindu law has all along imposed an obligation upon the father to maintain his illegitimate son. Under the
modem Hindu Law, the dasiputra is entitled to maintenance only dining his minority.

The Hindu Adoptions and Maintejnance Act, 1956 extinguises all distinctions between illegitimate sons
and natural sons. All illegitimate sons are eligible to obtain maintenance during their minority and can not
claim maintenance after attaining majority.

Legitimate and adopted daughters

Section 20(2) of Hindu Adoption and Maintenance Act prescribes that a Hindu has an obligation to
maintain his children, so long as the children are minors. In Sneh Prabha V.Ravinder Kumar, AIR 1995
SC 2110, the Supreme Court of India opined that Court has power to grant maintenance1 for major
daughters against their father till they get married or settled gainfully. Section 20(3) does not state about
the capacity to earn but speaks regarding the existence of a source of income and the ability to maintain
oneself, say a daughter with such income.The adopted daughter has the same right to demand
maintenance as natural bom legitimate daughter.

Maintenance of aged or infirm parents

It may be noted that obligation to maintain aged or infirm parents is but a personal obligation arising out
of the very fact of parent child relationship. Under the old Hindu Law, however this obligation was
imposed on the sons alone. Daughters had no such obligation to provide maintenance. Section 20 of the
Hindu Adoptions and Maintenance Act,1956 makes maintenance an obligation of both sons and
daughters. Explanation to Section 20 of the Hindu Adoption and Maintenance Act, 1956, now includes a
childless step mother in the expression “parent”. It may be seen that childless step-father has been
excluded from the ambit and scope of the expression “parent”.

The obligation to maintain aged parents exists during one’s life time. The obligation is personal so it
remains independently of the possession personally of any property, personal or ancestral.Under the
modem Hindu Law this obligation is not however, absolute. A person is required to maintain his aged or
infirm parent when the latter is unable to maintain himself or herself out of his or her own earning or
property. If the parents are not able to maintain themselves they are to be treated as aged or infirm. It is to
I - Sneh Prabha V.Ravinder Kumar, AIR 1995 SC 2110, AIR 1995 SC 2110.
 97

be noted further that the wife, the children and the aged or infirm parents shall forfeit their claim of
maintenance, if they cease to be Hindus.

The obligation of a Hindu to maintain his wife, minor sons, unmarried daughters and aged parents is not
only personal but also legal in character and arises from the fact of very relationship i.e., relation by itself.
It may be noted that a claim for maintenance under Section 20 of the Hindu Adoptions and Maintenance
Act, 1956 can validly be made by an illegitimate son.

Section 21 lays down a list of relatives of the deceased who will be included within the terms dependants.
The list is rather long and here only a few are cited for the purpose of ready references dependants are
(i) his or her father,

(ii) his or her mother,

(iii) his widow, so long as she does not re-marry;

(iv) his or her son or the son ofhis predeceased son etc;

(v) his or her unmarried daughter, or die unmarried daughter of his predeceased son etc;

(vi) his widowed daughter if she is unable to obtain maintenance from any possible sources;

(vii) any widow of his son or of a son of his predeceased son, so long as she does not re-marry;

(viii) his or her minor illegitimate son till he remains a minor;

(ix) his or her illegitimate daughter, so long as she remains unmarried.

Provisions of Section 22 i.e., Maintenance of dependants and Section 23 i.e., amount of maintenance 9 of
H.A.M.A., 1956 have been discussed earlier in this desideratim and need not be repeated again. It is
always the discretion of the Court to pass judgment as to whether any, and if so what, maintenance may
be awarded. However, the discretion by the Court has to be sound and reasonably exercised with due
caution.

The Court should be guided by the relevant provisions of the Act and should have regard to its object. The
fixation of the quantum of maintenance need not be a matter of mathematical certainty. The fixation of
amount of maintenance should be an exercise of sound judicial discretion and should not be capricious1 -
Kiran V. Bankim, AIR 1967 Cal 603.

I - Kiran V. Bankim - AIR 1967 Cal 603

 98

Claimant living separately may even get maintenance.

rIn Kiran Bala V. Bankim - AIR 1967 Cal 603, the Court opined that wife was living separately from her
husband because the latter had another wife.Therefore, this fact can not go against her.

In the above circumstances wife was entitled to live separately without forfeiting her claim of
maintenance.

The number of claimants eligible to be maintained - In fixing the amount of maintenance, the Court is
required to take into consideration, the number of persons whom the non-claimant has to maintain.

Arrears of maintenance
It was sometimes ago that arrears of maintenance were not permitted to the claimant. But it came to be
established by later decisions that arrears of maintenance were as much recoverable as future
maintenance. It came to be established later that in a suit for arrears of maintenance, it was not at all
necessary for the claimant to prove demand and refusal of maintenance. It is also not necessary for the
claimant to prove that he contracted debts for maintenance. Right of maintenance is a recurring right and
the fact of non-payment of maintenance constitutes proof wrongful with holding of maintenance.

The arrears of maintenance which accrued during the lifetime of the husband may be even recovered by
the widow from the persons who succeed to the property of her husband. This is so, because the claim of
maintenance though a personal obligation is not a mere personal cause of action and it is enforceable
against the property itself.

The Hindu Adoption and Maintenance Act, 1956 does not have any specific provision for recovery of
airears of maintenance. But still there is no doubt now, that arrears of maintenance can be recovered in
present time.

In a series of cases it has been decided that though rights of maintenance is but a legal right, the Court has
sample discretion to grant the claimant at a lesser rate of maintenance in respect of past maintenance as
compared to future maintenance.
*i -

The fixation of the quantum of maintenance can not be a matter of mathematical certainly. The
determination of quantum of maintenance should be an exercise of sound judicial discretion, AIR 1967
Cal 603. The position and status of the parties.

I - Kiran V. Bankim, AIR 1967 Cal 603.

 99

The words ‘position and status of the parties’ are used in a wide perspective. These will include financial
position of the parties. In a particular case, where the claimant was a widow, the court was of the opinion
that it has to determine first what the widow would need for her maintenance in such reasonable comforts
as she would have been maintained when her husband was alive.

The reasonable want of claimant.

!In Kiran V. Bankim, AIR 1967 Cal 603, the Court considered this question carefully and examined the
reasonable wants of the wife towards food, clothing, residence and medical care, and came to the
conclusion that Rs.75/- per month will be a sufficient amount for satisfaction of her wants (the wife had
claimed Rs.200/- per month).

When a minor child lives with the mother, the necessities of the child become the reasonable wants of the
claimant. It is needless to describe that there can not be any fixed criteria for determination of the
reasonable wants of the claimant. In appropriate cases the court would be quite justified in awarding even
one half of the husband’s income for the maintenance of the wife and two children.

The Claimant living separately

A wife who lives apart from her husband without just and reasonable cause may get less or no amount of
maintenance. But, if a wife lives separately from her husband due to some reasonable cause, she will be
entitled to full maintenance.

In Kiran Bala V. Bankim1, AIR 1967 Cal 603, the Court opined that wife was living separately from her
husband as the husband had another wife. Therefore, this fact can not go against her (the wife).Under
such circumstances, she is entitled to live separately from her husband without forfeiting her claim of
maintenance. In appropriate cases even wife and daughter may live separately for reasonable cause.lt is to
be noted also that a Hindu wife does not forfeit ho- right of maintenance merely on account of her
residing with her brother. A Hindu wife (widow) is not bound to reside with the relatives of her deceased
husband and the relatives of her husband have no right to compel her to live with them.

Section 23 of the Hindu Adoption and Maintenance Act, 1956 may be read together with Section 25 of
the Act which provides that the amount of maintenance, whether settled by a decree of a Court or by
agreement (Whether before or after the commencement of the Act), may be altered afterwards, if there is
a material change in the circumstances justifying such alteration. It is to be noted further that sub-section
I - Kiran V. Bankim, AIR 1967 Cal 603.
n - Kiran Bala V. Bankim1, AIR 1967 Cal 603.
 100

25(2) of tiie Hindu Marriage Act, 1955 is similar in as much as in sub-section 25(2) of the said Act, it has
been stipulated that if the court is satisfied that there is change in the circumstances of either party at any
time after the court has made an order under sub-section 25(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.

In the case of enhancement of maintenance sometimes separate proceedings are required to be filed.
Where there does not exist any provision in a decree for variation of maintenance by an application the
amount can be altered1 only
II by way of suit -Menokabala V. Panchanan, AIR 1966 Cal. 228.

Claimant to maintenance should be a Hindu.

In section 24 of Hindu Adoptions and Maintenance Act, 1956, it has been provided that “no person shall
be entitled to claim maintenance under chapter HI of the Act, if he or she has ceased to be a Hindu by
conversion to another religion”.

The provision of Section 25 of the Hindu Adoption and Maintenance Act, 1956 has been stated just
earlier -which states that maintenance may be altered on change of circumstances which may be based on
various considerations as per demand of the changed situations. Section 26 of the act deals with debts.

Debts to have priority f S.26i

Subject to the provisions contained in Section 27 of the Act, debts of every description contracted or
payable by the deceased shall have priority over the claims of his dependants for maintenance under this
Act. Even before the Act, it was a settled principal of Hindu law that all binding debts and liabilities of
the deceased will have precedence over the claim of maintenance of the widow or other claimants. But,
only the valid debts shall have priority over the claim of maintenance.

Interim maintenance
The Court has power of passing interim order of maintenance. This power to grant interim maintenance is
ancillary or incidental to the principal power i.e., power to grant maintenance. Orders to pay marriage
expenses of the daughter can be passed, while a suit for maintenance is pending in the Court.

In “Manohar Lai V. Rao Raja Seth Hiralal, AIR 1962 S. C. 527, the Supreme Court opined that interim
orders could be passed by the Court under Courts in herent power under section 151, Civil Procedure
Code (CJ.C.) 1976, whenever court felt such orders to be required to meet the ends of justice or to
I -Menokabala V. Panchanan, AIR 1966 CaL 228.
II - Manohal Lai V. Rao Raja Seth Hiralal, ADR. 1962 S. C. 527.
 101

prevent abuse of the process of the Court.

Some of the Courts took the view that Courts have powers to pass interim orders of maintenance under
sections1 II18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 read with Section 151 of
C.P.Code - Sivan Kutti V. Kamalkumari, AIR 1989 Ker 124.
i

Maintenance as a charge on property

Section 27 of the Act runs as follows

A dependant’s claim of maintenance under the Act shall not be a charge on the estate of the deceased or
any portion thereof, unless one has been created by the will of the deceased, by a decree of the court, by
agreement between the dependant and the owner of the estate or portion, or otherwise. This section
reiterates the well-established rule of uncodified Hindu Law and may be conveniently read with Section
28, which deals with the effect of transfer of property on die right of maintenance (Ref Hindu Adoptions
and Maintenance Act, 1956).

In nRam Bai V. Jadunandan, AIR 1960 SC 1118, a widow was in possession of a specific property for the
purpose of her maintenance. A purchaser bought it with notice of her claim. It was held that he not
entitled without first securing proper maintenance for her.

Effect of transfer of property on the right of maintenance.

Section 28 of the Hindu Adoptions and Maintenance Act, 1956 provides that

When a dependant has 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-
(i) if the transferee has notice of such right; or

(ii) if the transfer is gratuitous; but not against a transferee for consideration and without notice of the
right.
It may be important to mention the provision of Section 39 of transfer of property Act, 1882, in this
matter. Section 39 of the said Act runs as follows

“Where a third person has a right to receive maintenance, or a provision for advancement or marriage,
from the profits of immovable property, and such property is transferred the right may be enforced against
the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for
I - Sivan Kutti V. Kamalkumari, AIR 1989 Ker 124.
II - Ram Bai V. Jadunandan, AIR 1960 SC 1118.
 102

consideration and without notice of the right, nor against such property in his hands”.

Section 39 of the Transfer of property Act, 1882, has a wider provision is as much as, it provides about
the claim of any person, while section 28 of the Hindu Adoptions and Maintenance Act, 1956 speaks
about the claim of dependants. It transpires therefore that Section 39 of the Transfer of Property Act,
1882 is still available to any person, who desires to take advantage of the said provision. Wife’s right to
maintenance under Hindu Law creates as charge on the property' under Section 39 of T. P. Act, 1882.

In terms of Section 2 of the Hindu Adoptions and Maintenance Act, 1956 (Act.No.78 of 1956), the Act
applies -

(a) to any person who is a Hindu by religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
(b) to any person who is a Buddhist, Jain or Sikh by a religion, and
(c ) to any person, who is not a Muslim, Christian, Parsian Jew by Religion, unless it is proved that
any such person would not have been governed by the Hindu law or by any custom or usage as
part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Section 4 of the Act may also be considered in this context which is reproduces below

Section.4 Over riding effect of the Act

Save as otherwise expressly provided in this Act,-

(a) any 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 shall cease to have effect with respect to any
matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to
Hindus in so far as it is inconsistent w'ith any of the provisions contained in this Act.

The Act extends to the whole of India, excepts the state of Jammu and Kashmir.The Hindu Adoptions and
Maintenance Act, 1956 is not retrospective. There is no provision in the Hindu Adoptions and
Maintenance Act, 1956 for maintenance pendente lite. So, the provisions under section 24 of Hindu
Marriage Act is not inconsistent with that of Hindu Adoptions and Maintenance Act, so as to attract the
bar of section 4(b) of that Act (1992) 2 Bom CR 648 (662 ).
 103

The Hindu Adoptions and Maintenance Act 1956 was taken at the very outset , as the very word
“Maintenance” has been inserted in the said ACT, itself The Provisions of Maintenance laws in respect
of die said Act, has been described above in details in this Chapter now out of Chapter HI - Hindu
Marriage Act, 1955 will be discussed hereafter.The provisions as regard to maintenance as stipulated in
the Hindu Marriage Act, 1955 will now be considered.Regarding maintenance and permanent alimony,
sections 24 and 25 of the Hindu Marriage Act, 1955 are relevant. The above two sections are reproduced
below at first and then the discussions over the same would follow

The Hindu Marriage Act, 1955. Section 24- Maintenance oendentelite 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 regard
to the petitioner’s own income and the income of the respondent, it may seem to the court to be
reasonable.

Section 25 - Permanent alimony and maintenance Hi M, Act 19551

(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 die 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 die immovable property of the respondent.

(2) If the court is satisfied that there is change in the circumstances of either party at any time after it
has made an order under sub-section(I), 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
remarried or, if such party is the wife, that she had 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 •
 104

of the other party vary, modify or rescind any such order in such manner as the court may deem
just.

Alimony and Maintenance

Alimony is the living maintenance; an allowance made to a woman for her support by a man pending or
after her legal separation or divorce from him These two terms are almost synonymous. In fact,
maintenance is of wider dimension and is not necessarily related to matrimonial relationship. Alimony
means sustenance, nourishment and the same can be granted in matrimonial proceedings only. It is
allowed to the wife during the proceeding as also on the finality of the proceeding, (result the of) called
permanent alimony. On the other hand, permanent alimony may be called maintenance.

Alimony and maintenance are the two terms of English matrimonial law. Under English law maintenance
and alimony can be claimed by the wife alone and not by husband. Undo: the Hindu Marriage Act, 1955,
alimony and maintenance can be claimed by either party. It may been seen that analogous provision as to
alimony has been there in Special Marriage Act, 1954, with the important difference that under the special
marriage Act, it is only the wife who can claim alimony pendentelite (i.e., alimony during the pendency
of the court proceedings).

Section 24 of the Hindu Marriage Act deals with maintenance penentelite and expenses of proceedings.
Section 25 of the Act deals with permanent alimony and maintenance.

The Courpus Juris defines alimony as “the allowance required by law to be made to a wife, out of her
husband’s estate for her support either during the matrimonial suit or on its termination, where the fact of
marriage is established and she proves herself entitled to a separate maintenance”.

Like maintenance, alimony connotes the existence of a duty on the part of a person to provide for the need
of another person or persons who is or are in one way or the other related to, or dependents upon him.

The principles about granting of maintenance and alimony is that the husband has to maintain his wife,
not merely during the period of marital wedlock i.e. during the period she remains his wife but also after
divorce, so long as she does not remarry. Even to day, in England and in other common law countries, a
decree of divorce or judicial separation is actually accompanied by an order of maintenance for the wife
and children. The normal practice is to allow, a third of die husband’s income to the wife, after taking her
own income, if any, into consideration.
 105

In the modem world of seeking equality between a man and woman where women in large numbers are
employed in gainful employment or have their own income, and where principle of equality is being
realized gradually more effectively, a view is gaining ground that where the husband has no sufficient
income of his own to be maintained, die wife should also pay maintenance to the husband, on dissolution
of marriage. In many countries this view has been adopted by making laws. It will be evident that an
order for permanent alimony or maintenance under section 25 of Hindu Marriage Act, 1955 can be made
not only in favour of the wife, but also in favour of the husband. In making such provision, Section 25 of
the Act has made a bold departure for analogous matrinomial legislation. Even in a progressive legistation
of Special Marriage Act, 1954, it is onty the wife is entitled to alimony or maintenance but not the
husband.

Right to claim maintenance under section 24 and 25 of the Hindu Marriage Act, 1955 is an independent
right available to the parties in course of any matrinomial relief. Under Hindu Marriage Act, 1955 is not
controlled by Hindu Adoptions and Maintenance Act, 1956. Or, in other words, the jurisdiction of the
court can not be ousted on the plea that the applicant for maintenance under sections 24 and 25 of the
Hindu Marriage Act, is already getting maintenance. Under the Hindu Adoptions and Maintenance Act,
1956, although in fixing the quantum of maintenance, the same may be taken into consideration.

A daughter even if married has an obligation of maintaining her father (unable to maintain himself) being
indigent. The object of granting maintenance is to prevent vagrancy. The obligation relating to granting of
maintenance are not penal in nature, but intended for social duty. It serves a fruitful social purpose. A
well - to - do married daughter can not be therefore excluded from this obligation.

Before ordering maintenance in favour of parents ( a father or a mother) against married daughter, the
court must be satisfied that the daughter has sufficient means of her own independent of the means of
income of her husband, and that the father or the mother, as the case may be, is unable to maintain
himself cr herself.

If a well-to-do daughter is excluded the same will be against all canons of justice, equity and good
conscience. It will also be against the well established principles of gender1 justice -Dr. Mrs. Vijaya
Manohar Arbat V. Kashirao Rajaram Sawai, AIR 1987 SC 1100,1986 Cr.LJ 1399, (1987) ISCJ 524.

The power of the court to order alimony pendentelite in a pending proceeding for obtaining matrinomial
I- Dr. Mrs. Vijaya Manohar Arbat V. Kashirao Rajaram Sawai, AIR 1987 SC 1100
 106

relief has been provided in Section 24, Hindu Marriage Act, 1955, so also in Section 36, Indian Divorce
Act; Sec 36 of Special Marriage Act; Sec 39 of the Parsi Marriage and Divorce Act, 1936. But Section 24
of the Hindu Marriage Act, 1955 has a peculiar and special significance. In the same the relief has been
allowed to spouse of either sex, male or female. In other words, a husband can also claim alimony
pendenteKte in appropriate cases. This discretion of allowing maintenance pendentelite and cost of
litigation is to be based on sound legal principles. If the applicant has no independent means of income,
he or she is entitled to interim maintenance and expenses unless good cause is given from depriving her or
him of it.The matters that may properly be considered in this connection are (a) whether the applicant is
being supported by an adulterer; (b) whether the respondent has sufficient means or not has to established
that he or she has no independent income sufficient for his or her maintenance and support and also that
he or she has no income to meet the expenses of proceedings. Travelling expenses of the wife will be
included :n the expenses of the litigation. Whenever an application under Sec 24 of the Act is perfect, it is
the bounden duty of the court to decide the application, as early as possible and in every case before the
trial of the petition.

An ex parte decree of nullity passed without deciding respendent’s application for interim maintenance
under section 24 is bad and can not stand1 - Meena V. Prakash, AIR 1983 Bom.403.

Income, what it means

It can be gathered that Section, 24 of the Act users the word “income and other property”. The distinction
between the two expressions came up for decision before the pre-existing order of maintenance by a
criminal court does not oust the jurisdiction of a matrimonial court to grant maintenance pendentelite
even if, the wife’s parents are affluent, the wife who has no independent income of her sufficient for her,
support, is entitled11 to obtain maintenance pendentelite under section 24 of Hindu Marriage Act, 1955 —
C. B. Joshi V. Ganga Devi, AIR 1980 All 130. Maintenance pendentelite may often be called as interim
maintenance or temporary maintenance. The application for interim maintenance can be granted by the
trial111 court
IV as well as by the appellate court - Shyamali V. Ashim, 1988 Cal 123.

Income, its broad meaning :

It can be gathered that Section 24 of the Act uses the word “income” but Section 25 uses the Words
“income and other property”. The distinction™ between the two expressions came up for decision before
the Calcutta High Court in a case named Gita Chatteijee V. Prabhai Kumar, AIR 1988 Cal.83.
I-MeenaV.Prakash, AIR 1983 Bom.403.
II-C. B. Joshi V. Ganga Devi, AIR 1980 All 130.
III - Shyamali V. Ashim, 1988 Cal. 123.
IV - Gita Chatteijee V. Prabhat Kumar, AIR 1988 Cal. 83.
 107

The court was of the opinion that the word was of the opinion that the word in Section 24 will not include
other property or assets, thus in fixing the amount of maintenance pendentelite, the court will have regard
only to the income of the applicant and not her or his assets or property not yielding any kind of income.
When a wife files a petition for maintenance the onus1 of disclosing his income is on the husband - Chitra
V. Dhrnba - AIR 1988 Cal. 98.

If it is established then when the applicant has no sufficient means for her or for his maintenance and
support, die court has no option but to pass an order for interim maintenance as of usual manner. But if
the respondent has no means, no income so to say, then the court need not fix any amount of maintenance.
Because ability of paying of the respondent is a criterion, no doubt. In fixing interim maintenance, the
conduct c>f the applicant is immaterial. So, an accusation of adultery is but immaterial. The Kerala High
Court has opined that in fixing interim maintenance, income of the parties has to be looked into and not11
what property they are holding - Hena V. Bhat, 1986 Ker.320 neverthless, the court has discretion in
fixing the amount of maintenance, although the court can not act capriciously or arbitrarily.

It is not obligatory on the part of the court as laid down in Indian Divorce Act (Section 36) that one fifth
of the net income of the husband (or wife) should be awarded by way of interim maintenance to the
applicant. It may be a good criterion in some cases, but not in all cases. Foreign precedents can not™
always hold good in India - Ashit V. Sushmita - 1987 Cal 153. In fixing the quantum of maintenance,
several factors are to be considered by court such as the income of the applicant and non-applicant, means
of die non-applicant number of members to be maintained, reasonable wants of the claimant and so on.
But the maintenance amount can not be so fixed as to exceed the total income of the other party. An order
passed without considering the income of both parties is illegaL

So far as fixing of quantum of interim maintenance is concerned, the main test is whether the applicant
has no sufficient means to support himself or herself. Charity of relatives and friends can not be taken into
consideration. The fact that the application is being supported by relatives can not be a ground for not
awarding maintenance allowance to the applicant. Interim maintenance should come out of sound judicial
and reasonable consideration. It is obvious that if the claimant has sufficient means to cover her expenses,
no order of maintenance for her can be granted.

I-Chitra V. Dhruba- AIR 1988 CaL 98.

fi - Hena V. Bhat, 1986 Rer. 320.
ffl - Ashit V. Sushmita - 1987 Cal 153.
 108

A question may arise whether interim maintenance should be granted from the date of the petition for
matrimonial relief or from the date of the application for maintenance or from the date of service of
summons upon the respondent. The decisions of different High Courts rathervaiy. It one case1, the view
was taken that grant of maintenance pendentelite from the date of institution of petition is valid - Jwala
V.Meena, 1987 All 130.

Maintenance pendentelite order to be a speaking order -

An order fixing maintenance pendentelite under section 24 of Hindu Marriage act, 1955 which does not
contain facts nor grounds of decision is not a proper order in the eye of law. If the order of maintenance
pendentelite is not supported by reason and does not discuss the pros and cons of die rival versions of the
parties relating to quantum of income of husband, the order11 *is IV
liable to be setaside -Satish Bindra V.
Surjit Singh Bindra - AIR 1977 Punj 383.

Conditional order of maintenance

In a particular casem, the trial court fixed an amount of maintenance of the wife, on the condition that if
she keeps herself in adultery, she would refund the amount of maintenance -Saroj V. Asok - AIR 1988
Raj. 84. The petition was on the ground of adultery. The Rajasthan High Court held that no such
condition should be attached to the order.

Order of interim maintenance

An order of interim maintenance of the applicant and children and for the expenses of the proceedings can
be made in any matrimonial cause, Viz, nullity of marriage, judicial separation, divorce or restitution of
conjugal rights and even in proceedings for permanent alimony and maintenance under section 25 of the
Hindu Marriage Act, 1955. It appears that interim maintenance can be granted in proceedings under
section 25 of Act, even when a petition is made after the decree in the main proceedings has been
allowed.

Penial of maintenance to compel the wife to reconciliation

A Court can not deny maintenance to the wife with the object of Coercing her into
reconciliation. Such an order shall be a misuse™ of power of the Court - Gurmeet V. Gurraj, AIR 1989 P
& H 223.

I-Jwala V. Meena, 1987 All 130.

II - Satish Bindra V. Suijit Singh Bindra - AIR 1977 Punj. 383.
IH-Saroj V. Asok - AIR 1988 Raj. 84.
IV - Gurmeet V. Gurraj, AIR 1989 P & H 223.
 109

Discretionary power of the Court

The award of maintenance pendentlite and expenses of proceedings under section 24 of the act is the
discretion of the Court which the court should exercise judicially on sound legal principles and not by
caprice1 or humour - M. Kunwar V. Ajeetchand, AIR 1958 Raj. 322. The question of judicial discretion is
decided by the Court with reference to principles of equity and good conscience. Thus, unless a very good
cause is shown for depriving the claimant of the right of maintenance pendentelite and expenses of the
proceedings, the court should not reject die prayer.

Court has in herent power to modify, vary, rescind or temporarily suspend court’s previous order. Court
can enforce obedience of order or prevent abuse of process by staying the proceedings or striking off the
defence or temporarily suspending the operation - AIR 1976 DeL 246.

A question may arise as to the situation if the non-applicant may defeat the interim maintenance cause by
withdrawl of his petetion in the matrimonial cause. Section 24 of tide Act does not supply answer to this
question in the positive and courts are of the opinion that if a party drags another to a court of law and if
the latter is able to make out a case for interim maintenance and expenses of the proceedings, his claim
can not be frustrated by the petitioner by withdrawal of the main petition and he has to make provision of
the interim maintenance11 and expenses of the proceedings as ordered by the court - Krishnan V.
Thallmabai, (1969) IM L J 328.

Court will not allow111 the

IV Vpetitioner to withdraw the petition, since the expenses might have been already
incurred - Muniratan V. Shantamma, AIR 1971 Mys.25.

In one case, it was right by observed that the liability to pay interim maintenance can not be avoided in
respect of the period during which the petition was pending and subsequent dismissal of the petition does
not excuse the non-claimant from the liability^ already incurred. - Devaki V. Purshotam, AIR 1973 Raj.

The provision of section 24 of the Hindu Marriage Act, 1955 continues even after the main petitions since
the applicant is entitled to maintenancev till the date on which the main petition is dispossed of -Parchuri
V. Parchuri, AIR 1955 AP 147.

I-M. Kunwar V. Ajeetchand, AIR 1958 Raj. 322.

II - Krishnan V. Thallmabai, (1969) IM L J 328.
EH -Muniratan V. Shantamma, AIR 1971 Mys.25
IV - Devaki V. Purshotam, AIR 1973 Raj. 2
V - Parchuru V. Parchuri, AIR 1955 AP 147.
 no

In some oases, it may happen that the application for interim maintenance may remain pending in die

Court till the conclusion of the proceedings.

In such a nature of case the court still has the jurisdiction1 so as to dispose of the application - Amik
Singh V. Narinder, AIR 1979 P&H 211.

The Court may decide the pending application for interim maintenance even when the court has passed
the decree. But if the petition is dismissed, no application11 for interim maintenance is maintainable
thereafter. - Ganga V. Maroti, AIR 1979 Bom 264.

If on an application for alimony pendentelite, the court imposes the condition that the application would
not be heard unless she files written statement in the suit filed by the husband for judicial separation, or it
the court rejects her prayer for time to file written statement till after the decision of the alimony petition
and fixes the suit for ex parte hearing, the orders can not be sustained111 -Latika
IV V VI Ghosh V. Nirmal Kumar

Ghosh, AIR 1968 CaL68.

An order of alimony pendentelite can be made in any proceeding under the Act and thus it may be
ordered even in a revisionallv proceedings under section 115 of the code of Civil Procedure, 1908 (as
amended in 1976) - Surendra Kumar Asthana V. Kamalesh Asthana, AIR 1974 All.l 10. It may likewise
be asked for the first time in appeal - S. Ammal V. B. S. Reddi (1954) 2 Mad.L.J.397. The provisions of
the Code of Civil Procedure govern matrimonial proceedings and so when an application for interim
maintenance is made, the place where the other side resides will have jurisdiction to entertain1 the
petition - Gomati V. Nata Rajan, AIR 1973 Mad. 247.

Provisions of alimony under the matrimonial laws VIS-A-VIS Section 25 of the Code of Criminal
Procedure (CUP.C.I.
The legislature did not provide to the effect that in the event of maintenance under section 125 of
C.RP.C., maintenance under any special status will not be applicable. Therefore, notwithstanding grant
of maintenance under section 125 C.R.P.C., there shall be no bar'71 to grant maintenance under the
matrimonial statutes - A. M. Ramsi Y. A. Bai. Mini Jetha, AIR 2001 Guj. 148.

I - Amik Singh V. Narinder, AIR 1979 P&H 211.

n-Ganga V. Maroti, AIR 1979 Bom 264
ffl -Latika Ghosh V. Nirmal Kumar Ghosh, AIR 1968 Cal.68.
IV - Surendra Kumar Asthana V. Kamalesh Asthana, AIR 1974 All.l 10.
V - Gomati V. Mata Rajan, AIR 1973 Mad. 247.
VI - A. M. Ramsi V. A. Bai. Mini Jetha, AIR 2001 Guj. 148.
 Ill

Who can claim Alimony Pendentelite.

The “petitioner” as referred in various Acts does not signify the petitioner of the original proceedings, but
the petitioner who has made the prayer it appears that against an interim order of maintenance
pendentelite, no appeal is maintainable though a revision1 will lie.- Subhasini V. B. R Umakant, AIR
1981 Kant 118 appeals -

Section 28 of the Act, says that appeals may be preferred against all orders and decrees passed under the
Hindu Marriage Act, 1955 except as against interim11 order and orders and decrees for costs only - Sunil
V. Payal, AIR 1991 Bom 423.

The period of limitation for appeals and orders is 30 days but not 90 days.

It is well established rule as much applicable else where that as matrimonial cases, finding made by the
trial court should not be easily set aside by the appellate court.

Appeal against the orders and decrees of the matrimonial courts is to be made to the court to is be made to
the court to which appeals shall lie ordinarily from the decrees and orders of such court. When a
subordinate court is invested with the jurisdiction under a notification of the state government, it does not
by the same fact only become a District Court and appeals against the orders and decrees of such courts is
to be preferred to the appellate court to which appeals lie111 from the decrees and orders of such court -
Gangadhar V. Gangadhar, AIR 1960 Bom.42.

A full Bench of a High Court has expressed the view tha: an appeal against an order under section 24 of
the Act passed by a civil judge who was a District Court Judge within the meaning of the Act, will lieIV to
V
the High Court - Parasram V. Janaki Bai, AIR 1961 All. 395.

The Madras High Court was of the opinions that interim maintenance is not restricted to one-fifth of the
husband’s income. The fact that the wife’s brother is an income-owner is not a valid ground so as to
refuse interim maintenance to the wife. A grant of Rs.150/- per month granted to the wife by the lower
court was held to be reasonablev -Rajendran V. Gajalakshmi, AIR 1985 Mad.195.

I - Subhasini V. B. R Umakant, AIR 1981 Kant. 118.

II - Sunil V. Payal, AIR 1991 Bom 423.
ffl - Gangadhar V. Gangadhar, AIR 1960 Bom.42.
IV - Parasram V. Janaki Bai, AIR 1961 AIL 395.
V - Rajendran V. Gajalakshmi, AIR 1985 Mad.195.
 112

It was held in a Calcutta case that the discretion vested in a court in granting a reasonable amount of
maintenance is not to be curtailed by importing of principles from Indian Divorce Act, 1869 and there
should not be any rigid1 rule in the matter of quantum of alimony pendentelite - Protima V. Karnal,
68CWN316.

As held in an Allahabad Case, the quantum of alimony pendentelite under section 24 of Hindu Marriage
Act, 1955 depends upon the very discretion of the court which dependends upon circumstances of each
case.

There is no minimum or maximum11 in it — Preeti V. Ravind Kr. Sharma, AIR 1979 All.29.lt is to be
noted that section 36 of the Indian Divorce Act, 1869 corresponds to section 24 of Hindu Marriage Act,
1955, section 36 of the special marriage Act, 1954 and section 39 of the Parsi Marriage and Divorce Act,
1936.

It has to be noted that an application under section 24 of the Act is a summary proceeding and the very
object of it shall be frustrated. If the case is remanded to trial court which would result in undue delay, so
the revisional court granted interim maintenance to the wife keeping in view the status of the parties and
their income - 1980 Marriage L.J. 429 (434).

It can not be said that application under section 125 of the code of criminal procedure, 1973 is not
maintainable, simply because an order of alimony pendentelite has been passed under section 24 of lire
Act in a matrimonial poceeding between the parties and proceeding under section 125 Cr. P.C. would not
be stayed, till disposal of matrimonial suit - 1990 Cal Cri LR 107 : (1991) I Hindu LJR. 39.

Claim of maintenance under section 24 of the Act can not be rejected on the ground that wife’s earlier
claim under section 125 Cr. PC was dismissed for her refusal to live with the husband, as because right
under section 24 of the Act is independent from the right under section 125 Cr. P.C. - 1989 Marriage L.J.
429(431).

Neglect by a spouse or refusal to maintain spouse is one of the essential ingredients while granting or
declining maintenance under Section 125, Cr. P.C. It is not a pre-condition under section 24. Maintenance
granted under Section 24 of the Act is only an ad-hoc arrangement during pendency of proceedings -
(1990) I Hindu L.R.273 (P & H).
I - Protima V. Kamal, 68CWN 316.
II - Preeti V. Ravind Kr. Sharma, AIR 1979 A11.29.
 113

Family Court can exercise its jurisdiction in deciding an application under Section 24 of Hindu Marriage
Act in a proceeding under section 9 of Hindu Marriage Act, in view of Section 7(a) of the Family Court
Act (LXVI of 1984) - (1990) I Mad. L J 407(408).

The fact that the wife was being supported by her parents is no ground for husband to claim immunity
from liability to pay maintenance. Special status, age, educational and other requirements of children are
relevant factors in fixing quantum of maintenance - AIR 1983 Ker 139 (145).

Interim maintenance can not be refused on the ground that the brother of the petitioner has high salary and
sufficient income to maintain her - AIR 1985 Mad 195 (199).

Amount to be granted under Section 24 of the Act should be sufficient to maintain herself (wife)
according to status and standard which the wife would have enjoyed as wife of husband respondent - .AIR
1988 Cal 98 (D.B.).

Where it is established by evidence that the wife had sufficient independent income by way of shares in
various businesses, immovable properties, bank accounts, lockers, etc. for her support and that the income
is not less than die income ot her husband, then no order for maintenance pendentelite could be granted to
the wife.

On wife’s application for maintenance, Court can grant interim maintenance to children also in absence of
separate application under section 26 of the Act - AIR 1987 Cal 230(232) D.B.; (1986) 2 Cal H. N. 455.

Finding of Matrinomial Court while refusing to grant pendentelite maintenance, is not binding on die
Criminal Court under Section 125 CR. P.C. Proceedings, as the said order is not a final determination of
the right of wife - 1994 Cri. L. J. 998 (1001) (H.P.).

Evidence and Proof

In view of assertion of the husband that his wife had independent source of income, sufficient to maintain
herself, the trial Court was bound to record its finding after enquiry of summary nature, before making an
order under section 24 of the Hindu Marriage Act - (1985) 2 Hindu L R 321(322).

In a case wherein the relationship between husband and wife, itself is denied, the Court is required to take
evidence as to the conduct of the parties and if it is prima facie established that the parties were living as
husband and wife or the marriage is otherwise prima face established, then the application under section
 114

24 should he allowed - (1984) I Cal, H.N.29(31) (D.B).

Where the husband claimed that he was not employed bid he did not adduce either oral or documentary
evidence to corroborate his claim that he was out of employment and the husband was an able - bodied
youngman of 34 years, under these circumstances although there was no evidence before the Court of the
actual income, if any, earned by him, the Court can take into consideration his ability to earn a reasonable
amount of income and grant maintenance to the wife under section 24 of the Act - (1986) 90 Cal W.N.
816(1987).

Procedure
Mere fact that application for maintenance was filed ai a belated stage is of no consequence to debar wife
from maintenance - (1988) 2 Hindu L. R. 573.

Application under section 24 of the Act can not be decided in a proceeding under order 9 R13 of the code
of civil procedure for setting aside expartc decree an mulling marriage - (1990) 2 Cal L J 319(324).

Duty and Powers of the Court

Where in proceedings by the husband for restitution of conjugal rights, the court directs under section 24
of the Act the husband to pay the wife maintenance pendentelite and litigation expenses, the court has
inherent power to stay the proceedings till the husband paid the amount which he has been ordered to pay
under section 24 of the Act - (1982) 2 Cal L.J. 70(72, 73).

Contempt proceedings are maintainable for willful disobedience of order of court directing payment of
pendentelite maintenance to wife - 1984 Hindu 4.R.I (7,8).

Quantum of maintenance
Section 24 of the Act leaves the grant of maintenance pendentelite in the discretion of the court. Court can
direct such sum to be paid as maintenance as it may seem to the court to be reasonable -(1970) 74
C.W.N.691(693). Detailed enquiry by framing issues and recording oral evidence is not mandatory -
(1964) 68 C.W.N.316.

Quantum of maintenance - Finding that annual net income of the husband could be taken as Rs.3 0,000/-
the sum of Rs.500/- as pendente lite for the wife could not be said to be unreasonable - (1978) 2 Cal
L.J.602(606).

Meaning of petitioner and ‘respondent’

The expression “petitioner” and “respondent appearing in Section 24 of the Act refer clearly to the
 115

petitioner and the respondent in the application and noc the original proceeding taken under the Act - AIR
1962 Cal 455 (456) : 66 CWN 388.

Revision
After the passing of Marriage Laws (Amendment) Ac: (68 of 1976) only a revision will lie against order
passed under section 24 of the Act and not an appeal - (1986) I Hindu L. R 424(M.P). Appeal against
order passed under section 24 is not maintainable as die order is an interlacutory order - AIR 1995 Raj
47(48).

Permanent alimony and maintenance

Section 25 of the Hindu Marriage Act, 1955 deals with permanent alimony and maintenance which is
now to be discussed after the provision of section 24 has been discussed just earlier.

When a claim of permanent alimony and maintenance is made after the passing of the decree, it should be
done by filing, a petition in the court which granted the petition.

No Order can be made, if petition is dismissed

At a time, it was the confirmed view that if the petition has been dismissed, no application or petition for
permanent alimony and maintenance can be made under section 25 of die Act.

Some recent decisions have dissented from this view. It was argued that decree should not be given a
restricted meaning. The position has been cleared1 by Supreme Court in Chand Dhawan V. Jawahar Lai
i 1993 ) 3 SCC 406. The Supreme Court was of the opinion that if the main petition is dismissed, the court
has no jurisdiction to award permanent maintenance. It may be said that technically, this judgement is
correct.

Merely because an application under section 25 of the Act was not filed before the trial court, it cannot
be said that such application filed before the appellate court is not maintainable -(1989) I Ker L.J. 643.

Where the court did not allow application of wife for amendment pertaining to alimony under section 25
of the Act, the exercise of jurisdiction was but illegal. The wife should be allowed to incorporate paras in
her application in the main petition. (AIR 1983 SC 3IS was relied upon).

The mere fact that the wife was a qualified teacher, would not disentitle her from getting any maintenance
because being qualified for a job and being employed cn the job are two different things. While granting
I- Chand Dhawan V. Jawahar Lai - (1993)3 SCC 406.
 116

maintenance, the criteria is not bare maintenance of the wife and the child but the criteria is that they must
be in a position to maintain themselves as per the status, economical as well as social, of the husband or
the father.

The rights of the parties, their needs, their means and their status have to be closely analysed in fixing the
amount of permanent alimony.

Permanent Alimony
A Hindu wife is entitled to get maintenance from her husband not only under the general provisions of
law which would govern her case but also under section 25 of the Hindu Marriage Act. But these
remedies are open to her and it is for her to select a panicular remedy -1975 Hindu 4. R. 277.

Where a wife deserts husband and judicial seperation is granted to husband. If the wife is not unchaste nor
her conduct is flagrantly vicious. In such a case order for alimony in favour of wife should not be
interfered with.

An application for interim maintenance during pendency of application for permanent alimony under
section 25 is maintainable - AIR 1981 Delhi 99,1979 Hindu L R 392 (393) (P&H).

Wife’s right for permanent alimony under the provision of Section 25 of the Act is not negatived by
allegation of adultery by husband - AIR 1986 Guj 8(9).

Where the respondent wife was living in adultery with the co-respondent even at the time when the case
was being heard, the court should not make any order of maintenance in favour of the wife - AIR 1960
Cal 575(576), 64 Cal W.N. 225 (DB).

Unlike in Section 24, quantum of maintenance to be granted under section 25 is to be allowed not only by
“income” but also by rather property of the respondent-AIR 1988 Cal 83(85)(D.B).

Jurisdiction as to filing cases for obtaining Permanent Maintenance and Alimony

The proceedings for permanent alimony and maintenance whether filed at the time of passing of the
decree or subsequently to that are but ancilliarv proceedings under the provisions of Hindu Marriage Act,
1955.
These are to be filed in the Court where the original petition seeking matrimonial relief in any
matrimonial cause has been filed. It can not be filed in any other court even if that court has jurisdiction
under Section 19 of the Act.
 117

The parties have liberty to make contract for maintenance and alimony, if the court finds those to be
reasonable enough, it may give effect to those matters. Maintenance can be allowed under a compromise
decree.

The Orissa High Court was of the opinion that where the proceedings are ended by compromise or by
mutual agreement between the parties and the compromise or the agreement is not component part of the
decree of the Court, the court has no jurisdiction to make orders1 for permanent alimony and maintenance
either at the time of dismissal or withdrawal of the petition in accord with the terms of compromise or
agreement, or at any time thereafter. -Chinna V Parvati, AIR 1967 OR. 163.

A sum granted for permanent alimony and maintenance can be for any term not exceeding the life - time
of the applicant.

The basis of claim of maintenance is that the claimant has no sufficient capacity to maintain herself or
himself. When a wife is highly qualified, but she has no employment or any other income, the Court has
every power to grant maintenance to her for her survival.

The wife under a void or voidable marriage is also entitled11 to maintenance and alimony. -Krishna V
Padma, 1968 Mys 226.

Even if the marriage is declared to be a nullity on the ground that it was not performed in proper form, the
court may grant permanent alimony. In fixing the amount of maintenance, the court is required to
consider materials :-

(a) The income and if the claimant has other property, value of the same.

(b) The income and other property of the non-claimant.

(c ) The Conduct of the Parties.

(d) Any other particular circumstances or any special factor.

Income of the claimant and non-claimant

In the matter of fixing of maintenance, the court generally takes into account, the income of both the
parties and also any other property that they may possess and own. In order to determine the amount of
maintenance of the wife presented by her application. The status of her is immaterial but the status of her
I - Chinna V Parvati, AIR 1967 or 163.
n - Krishna V Padma, 1968 Mys 226.
 118

husband is very relevant and material. Ordinarily, the wife is entitled to an amount of maintenance which
would enable her to maintain her the standard of living to which she was accustomed before the
breakdown of marriage tie - TSauver V. Satiya (1966) 70 CWN 633; nChitra V. Dhruba AIR 1985 CaL
98.

Like Section 24, the court has wide discretion under section 25 and it can exercise this discretion in a
judicial manner, in the light of the circumstances of each case. So wide is the discretion of the court in
such manner that it appears that the court can make order in favour of a wife, even though a decree for
judicial separation have been passed against her on the ground of adultary or cruelty or desertion on the
part of her. However such proposition is not altogether free from doubt, and there is conflict of decisions
on the point. For instance, Kerala High Court held that if the court orders judicial separation against the
wife on the ground of her unchastity, no order for maintenance can be passed in her favour, as court has
no discretion to allow her maintenance.The Calcutta High Court has however differed from the view.
Though the conduct of the parties may be relevant factor in deciding a claim for permanent alimony under
section 25 each case has to be considered on its own merit. It is not correct to reach or say that grant of
judicial separation on the ground of cruelty of the wife is no bar to her getting permanent alimony. Yet,
the mere fact that she is the guilty party is not by itself sufficient to disentitle her from getting alimony. In
deciding her claim she must be presumed to be innocent - AIR 1975 Cal 64 (65,66).Cruelty may be
physical or mental. It may be by words, gestures only silence - mDastane V. Dastane.

The court may pass orders that the non-claimant should pay to the claimant some monthly or periodical
sum for his or her support. According to the practice of English courts, the monthly allowance that the
non-claimant may be ordered to is one-third of his income. In some cases, the Indian Courts have
followed this rule. However, the one-third formula is merely a guideline and no rigidity in the matter is
applicable. In a given case, the court may allow more, it may allow less, depending upon each kind of
circumstances. A husband can not escape the wife’s claim of maintenance on the ground that he is
unable™ to obtain a good job with good salary or the wife is living with her husband or that the wife is
herself sufficiently qualified to obtain a job or is supported by her father - Krishna V Padma, AIR 1968
Mys. 226.

I -Sauver V Satiya (1966) 70CWN 633

II - Chitra V Dhruba, AIR 1985 Cal 98.
HI - AIR 1975 Cal 64 (65,66).
IV- Krishna V. Padma, AIR 1968 Mys. 226.
 119

Even if the husband is not employed in a gainful job, if he is able-bodied, he (husband) should pay
maintenance to his wife. In a case the Punjab and Haryana Court fixed the income of an able-bodied
husband who was not earning any money at minimum wages fixed by the State and ordered that he
(husband) should pay to his wife Rs.100/- permonth only - ^Jrmila V Hariram, AIR 1988 P & H 81.

Conduct of the Parties.

The term, conduct is used in a wide sense and so it includes (i) conduct of the parties towards each other
(ii) conduct of the parties towards the marriage, such as, which party was marriage, and (iii) the conduct
of the parties towards the court.

Conduct of the parties means conduct not merely of wife who applies for or claims alimony but also of
husband in relation to their life together as husband and wife.

It is to be remembered that the right to maintenance is a statutory right, and therefore a party can not
contract himself (or herself) out of the same. Thus a wife can not bind herself under an agreement with
her husband to forgo her right of applying to the court for maintenance in case of matrimonial
proceedings between them.

The right to the permanent alimony of a wife who has always been unloving and of selfish nature and the
cause of breaking down of marital wedlock should not be equated with the case of a wife who was
always loving to her husband. It is a cardinal point cf law that Court should consider the conduct of the
parties. Further, the court ought to look into the conduct of the parties before and after the marriage. The
conduct of a wife who takes half share of the house at the time when she was committing adultery was
considered to be a grossI11 misconduct - Kuzner V. Underdown (1974) 2 All ER 351.

Although the conduct of the parties may be relevant factor in deciding a claim for permanent alimony
under section 25 of the Hindu Marriage Act, 1955, each case has to be considered on its own merit. It is
not correct to say that grant of judicial separation on ground of cruelty of the wife is no bar to her getting
permanent alimony. Yet, the mere fact that she is the guilty party is not by itself sufficient to disentitle her
to alimony. In deciding her claim, she must be presumed to be innocent111- Jagdish V. Manjula, AIR 1975
Cal 64.

In one time English law was of the view that if the claimant for maintenance was responsible for
I - Unnila V Hariram, AIR 1988 P & H 81
H - Kuzner V. Underdown (1974) 2 AH ER 351.
ffl - Jagdish V. Manjula, AIR 1975 Cal 64.
 120

breakdown of marriage, she can not be allowed any maintenance. The English Courts do not now adopt
this rigid attitude. Now, it has been established that if the wife is responsible for breaking the marriage or
is guilty of the matrimonial offence, the court may grant her maintenance, though the quantum of
maintenance may be affected. The Court will be justified in awarding less than the usual maintenance. It
appears that judicial opinion in India is not very well-settled on this issue and out outlook about adultery
is rather orthodox in nature and people are still maintaining the outlook of Dharmashastra. The views of
Kerala High Court which was rather orthodox varied with the views expressed by Jammu and Kashmir
High Court. A single lapse was held to be heinous by Kerala High Court. It is to be noted that women are
still not bread eamess and non-payment of maintenance may very often lead to immorality.

However, modem trend is against the Orthodox old view. In a particular case, Calcutta High Court was of
the opinion that if the wife has ceased to live in unchastity, she is competent1 get starving maintenance
(This principle is alike to Dharmasastra) - Amar Kanta V Sovana - AIR 1960 Cal 438. In another case, it
was held that the wife can not be denied maintenance and alimony on the ground that the decree was
passed against her on account of her cruelty11 - Jagdish V Manjula, AIR 1975 Cal. 64.

After careful considerations, it appears that ‘Conduct” is one of the consideration but however important
the same may be, undue importance would not be attributed to it.

The grant of decree for divorce to the husband does not disentitle the wife from claiming maintenance
from her husband where after the grant of a decree of divorce to the husband the wife applies for grant of
maintenance, the court is entitled to take into consideration the conduct of the wife and if the conduct is
abominable, it may disentitle the wife from obtaining any maintenance. But, the mere fact that the wife
unjustly deserted the husband which ultimately led him to get a decree for divorce is not abominable as to
debar her from claiming maintenance.

The fact that during the period intervening between the decree for judicial separation and the decree for
divorce, the husband made no attempt at reconciliation or restoration of matrimonial ties would be a
factor in favour of granting the wife’s claim for maintenance - fflAIR 1978 Andh. Pra 6.

It is to be noted that permanent alimony granted to the wife would cease from the date of her remarriage
with another person.
I - AmarKanta V Sovana - AIR 1960 Cal 438.
II - Jagdish V Manjula, AIR 1975 Cal. 64.
ffl - AIR 1978 Andh, Pra 6.
 121

In this connection, it will be relevant to quote the relevant provisions contained in Section 25(3) of the
Hindu Marriage Act, 1955 under the heading Permanent Alimony and maintenance which runs as :-

Sub Section 3 of Section 25 - 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 had 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 Section 25(3) of the Act stipulates an independent cause of action for getting the order of alimony
rescinded. In order to have the same, a fresh application and fresh material proving conditions mentioned
in that sub-section must be placed before the court. It is open to the husband to file an application for
rescission even at the appellate stage, but it is not open to him to take objection at the execution stage as
that would amount to go behind the decree. Where a decree is passed awarding a gross sum, it can not be
rescinded under section 25(3) of the Act Next, the question of appeal etc. may be taken up. Section 28 of
the Act is relevant and provisions contained in the Section are reproduced below.
Section 28 Appeals from decrees and orders.
This Section runs as :

(1) “All decrees made by the court in any proceeding under this Act, shall subject to the provisions of
sub-section (3), be appelable as decrees 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 proceedings under this Act, under Section 25 or Section 26
shall, subject to the provisions of sub-section (3), be appealable, if they are no interim orders, and
even/ 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 from the date of
the decree or order.
From the above it transpires that order passed under section 25 of the Act is appealable under section 28
of the Act. There is no scope of second appeal challenging the determination of the amount of permanent
alimony made by the lower appellate court unless the complaint be that the lower appellate court has
failed to take into accounts any factors set out in section 25 or taken into account any extraneous or
irrelevant factors. It is to be noted further that the determination of the quantum of the amount of
 122

permanent alimony on a consideration of factors set out in section 25 is essentially a question of fact.
Question regarding a quantum of maintenance also can not be challenged in revision under section 115 of
the code of civil procedure.

Appeal against the orders and decrees of the matrimonial courts lie to the court to which appeals
ordinarily lie from the decrees and orders of such courts. When a subordinate court is invested with the
jurisdiction under a notification of the state government, it does not thereby become a District Court and
appeals against the orders and decrees if such courts shall lie to that appellate court to which appeals lie
from the decrees and orders of such court1 - Balaji V Raj Kumari, AIR 1972, Mad 278.

In Madhavi V Marhavar11, III

the* V
Bombay High Court took the view that where a case assigned by the
District Court to the Assistant District Judge without there being a notification conferring such
jurisdiction, the assistant judge becomes the part of District Judge, so to say, and appeals against his order
will lie to High Court.

A letters patent appeal is also maintainable against the judgement of a single judge of High fflCourt.

Forum for appeal - Under Section 3(b) of Hindu Marriage Act, 1955, “District Court” means the (i) City
Civil Court or (ii) the principle civil court of original jurisdiction and includes (ii) any other civil court
specified by the state government”.

Therefore, ordinarily, the higher courts where the appeals against the decisions of such courts are
preferred should be considered as the courts of appeal for the purpose of this Act as well. If a petition was
presented to the District Judge, who later transferred it to a subordinate court, which the government
notified as a ‘district court’ under section 3 th), the appeal shall be straight to High Court. Because, the
petitioner derived the right to appeal to the High Court when he presented the petition to the District
Judge - ^Valliammal V Periaswami Udayar, AIR 1959 Mad 510. But, as the cases under the Hindu
Marriage Act are to be filed and decided by the District Judges (including Additional District Judges) in
most of the places, the appeals lie straight to the vHigh Court - Ambi Pundalik V Pundalik, AIR 1960
Bom 521. First appeal as well as second appeal is maintainable against decree passed under the Hindu
Marriage Act, 1955. However, sitting in second appeal, High Court can not re-appreciate evidences. AIR
I -Balaji V Raj Kumari, AIR 1972, Mad 278.
II - Madhavi V Marhavar, AIR 1984 Bom 239.
III - Kamala V Ramdas, AIR 1981 Bom 187.
IV- Valliammal V Periaswami Udayar,AIF_ 1959 Mad 510.
V - Ambi Pundalik V Pundalik, AIR 1960 Bom 521.
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1975 SC 1534 may not be ignored. Section 100 of die Code of Civil Procedure, 1976 is very relevant in
such matter which puts restrictions. Next, the provisions of custody, maintenance and education of
children may be considered. Section 26 of the Hindu Marriage Act, 1955 is relevant, which is reproduced
below for ready reference.

Section 26 - Custody of Children

In any proceeding under the 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, whenever possible, and may alter 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
may also from time to time, revoke, suspend or vary any such orders and provisions previously made.

The matters under the ambit of Section 26 are very important matters as parents are emotionally, socially
and economically involved.

A matrimonial court may decide questions and pass orders regarding education, custody and maintenance
of children at various stages, such as
(1) At the time of passing of the decree allowing the petition. Such kind of orders are deemed as
permanent orders.

(2) Orders may be passed between the period of filing of petition and final decision of the petition.
Those kinds of orders are called interim orders or temporary orders.
(3) A petition may be considered by the court and allowed after passing the decree. Then, the
question may come up in either of the ways.
(a) When no application was made for custody, maintenance etc. of children in the
matrimonial proceedings and after the decree a very different fresh application may be
made for maintenance, custody and education of children, or
(b) If the court had passed a permanent order of custody, maintenance etc., an application
may be preferred to have such order modified, changed or rescinded.
If however, the matrimonial proceedings are rejected by the court by dismissal, proceedings related to
children terminate as a matter of course. If the court has juriscliction in the main petition, only then, the
court can exercise jurisdiction over children.
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In respect of orders regarding children whether permanent or temporary the same can never be final as
such. The court may, on the application of either party, modify, cancel or alter any order passed by the
court at any s:age of the proceedings or later, at any time after the decree is passed till the child becomes
major.

The court has a very wide discretion and broad powers in the matter of custody of children. In all cases,
welfare of the children is of paramount importance, although the court may consider other matters also,
such as, age, sex and wishes of the child. Wishes of the child of matured age is of vital importance and the
same can only be ignored in the welfare of the child. This basic principle has been adopted by and
statutory recognized by Section 13 of the Hindu Minority and Guardianship Act, 1956. Custody of a child
below five (5) years should in normal cases be given to the mother of the child. Section 6(a) of the Hindu
Minority and Guardianship Act, 1956 is relevant in the matter. There is some exception also. If the
mother leads unchaste life and neglects the child, he can be deprived of the custody of child below five
(5) years. Father can be entitled to get custody of child only if such custody is needed for the very welfare
of the child.

Interim orders towards custody of children and their maintenance may also he passed.

Access of children to parents

When the parents are separate from each other, the court may give custody of children to any one of the
parents. It dees not however mean that the child will be completely out of touch of the other one parent.
This is not generally done as because normal rule is that children should get touch of both the parents.
They should grow up in the full knowledge of both the parents.

This is complied with by granting access to children to the parent who does not have the custody of
children. Access has not been specifically mentioned in the Hindu Marriage Act, 1955 or in the Hindu
Minority and Guardianship Act But by apply of conception and necessary implication, access is held to
be part of custody and it necessarily transpires that if the court has power to provide custody, then it has
also the power to provide access and also allied matters.

The courts in India have passed such orders in the matrimonial proceedings as well as in guardianship
proceedings. When a party gets custody of child, the other party also obtains access to the child usually so
that a child or children may not be debarred from the society of the parents in full and the children may
grow in the full awareness and also affection of both the parents. In the context of social background of
Hindu Joint family, the court has granted access not only to the other parent but also to other relations.
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Access order terminates on the attainment of majority of the children.

Access may however be restricted in some cases for welfare of the children.

Access Order after die trial is completed

The Court generally provides a provisions of access when the child is given the custody of one of the
parents. Such access is of paramount importance and should not be denied without very sufficient and
cogent reasons1-P. Bahadur V. U. Bahadur-AIR 1999 SC 1741.

If a parent does not pay maintain are in spite of order and is solvent, such kind of parent may be “denied
access - V. C. Gajanan V. A. Chandra, ADR. 1933 Bom 22.

The provision of maintenance of life and relations has been dealt in chapter III (a) under the provisions of
Hindu Adoption and Maintenance Act in details. Further the, scope and ambit of maintenance has been
described in details in chapter-fifth) under the provisions of Hindu Marriage Act, 1955. After considering
the provisions of these two important basic acts which speak of the maintenance laws in details among the
Hindus who are by far, a great section of Indian population so to say, it is felt just and convenient to take
up the maintenance laws among the Muslims in India who occupy a large section of population in India.
So. in chapter IVtal it is proposed to take up the principles of Mohammedan Law or Muslim Taw in
relation to ‘Maintenance Laws’ in India.

Before concluding the provisions of Hindu Laws to maintenance, some basic differences between die two
modem Acts relating to Hindu Law i.e., some distinguishing factors been Section 24 of Hindu Marriage
Act, 1955 and Section 18 of the Hindu Adoptions and Maintenance Act, 1956 may be recalled which are
reproduced below
(1) The definition of the term “maintenance” itself has not been defined anywhere in Hindu Marriage
Act, 1955 but there is an indirect definition in Section 3(b) of the Hindu Adoptions and
Maintenance Act, 1956.
(2) The provisions of “maintenance” in the Hindu Adoptions and Maintenance Act, 1956 is broader
that of Hindu Marriage Act, 1955.
(3) Under Section 24 of the Hindu Marriage Act, 1955, “maintenance” can be claimed by both
husband and wife from the other spouse, but under sec. 18 of the Hindu Adoptions and
maintenance Act, 1956, only the wife can claim the maintenance from her husband.

I - P. Bahadur V U. Bahadur - AIR 1999 SC 1741.

n -V. C. Gajanan V. A. Chandra, AIR 1933 Bom 22.
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(4) The proceedings under Section 24 of Hindu Marriage Act are of summary nature, can be disposed
by affidavits only, but proceedings under section 18 of the Hindu Adoptions and Maintenance
Act involves a regular trial requires leading of evidences for proper disposal.

(5) The order passed Under Section 24 of Hindu Marriage Act, 1955 is not appealable though
revision lies. The decree passed under Section 18 of the Hindu Adoptions and Maintenance Act is
appealable being a product of full-scale trial.

(6) The proceedings Under Section 24 of Hindu Marriage Act, 1955 requires quick disposal. No
such, stigma is there for the proceedings under Section 18 of the Hindu Adoptions and
Maintenance Act, 1956.

It emerges from the foregoing discussion that provisions of maintenance under Hindu Law are of special
significance to be cared for. This chapter is ended.