The statutory position under the Hindu Adoptions and Maintenance Act

Hindu Law:

◦In Hindu law, there are two statutes that provide for the maintenance, viz, the Hindu Marriage Act, 1955, and the Hindu Adoptions and Maintenance Act, 1956.

Hindu Marriage Act

[s 24] Alimony of the Act states:

Maintenance pendente lite and expenses of proceedings.—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.

◦.[Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be].

◦Non-payment of interim maintenance was construed as a “wrong” within the meaning of section 23 of the Act thereby disentitling the husband to a decree of divorce.

Maintenance pendente lite can be granted even before first making effort for reconciliation.

[s 25] of the Act reads as follows:

Permanent alimony and maintenance.—1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for 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 the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

◦(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, 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 favor an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may, at the instance of the other party, vary, modify or rescind any such order in such manner as the court may deem just.

Hindu Adoptions and Maintenance Act (HAMA)

◦Hindu wife has the advantage of an additional statute viz, the Hindu Adoptions and Maintenance Act, 1956. Under section 18 of this Act a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance, provided her separate living is justified which means that the husband:(i) is guilty of desertion;

◦(ii) has treated her with cruelty;

◦(iii) is suffering from a virulent form of leprosy;

◦(iv) has any other wife living;

◦(v) keeps a concubine in the same house, or is living or habitually resides with a concubine elsewhere;

◦(vi) has ceased to be a Hindu by conversion to another religion or

◦(vii) if there is any other cause justifying living separately.

◦Hindu wife has the advantage of an additional statute viz, the Hindu Adoptions and Maintenance Act, 1956. Under section 18 of this Act a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance, provided her separate living is justified which means that the husband:(i) is guilty of desertion;

◦(ii) has treated her with cruelty;

◦(iii) is suffering from a virulent form of leprosy;

◦(iv) has any other wife living;

◦(v) keeps a concubine in the same house, or is living or habitually resides with a concubine elsewhere;

◦(vi) has ceased to be a Hindu by conversion to another religion or

◦(vii) if there is any other cause justifying living separately.

◦The section provides two specific bars which would disentitle a wife from claiming maintenance under this Act, viz, (i) if she is unchaste or (ii) if she ceases to be a Hindu by conversion to another religion

◦It is pertinent to note that a claim for separate maintenance under this provision can be made only when there is a subsisting marriage. A divorced wife is not entitled to maintenance under the provisions of section 18 of this Act.

◦A claimant, however, is not entitled to get maintenance under all Acts simultaneously and from all the persons who are, under the law, obliged to maintain.

Merubhai Mandanbhai Odedara v Raniben,2000. is a case on point. It is significant to note, however, that the case had come up when there was a ceiling of Rs 500 under section 125 Cr.P.C. The wife in this case got maintenance under section 125 Cr. P.C but because of the ceiling, she approached the court under the provisions of HAMA for accord of a reasonable sum. She claimed Rs 1000/- each by way of maintenance both from the husband as well as from the son under sections 18 and 20 respectively of the HAMA. An appeal was filed by both.

◦The son challenged the order on the ground that where the husband (i.e. his father in this case) is alive and in a position to support his wife (i.e. his mother in this case), the son is not liable.

◦For the husband, it was contended, inter alia, that the amount ordered under section 125 Cr. P.C was not given a set-off. Rebutting these contentions, the counsel for the wife argued that a son was equally liable to maintain his mother, and secondly, that an amount awarded under section 125 Cr. P.C cannot be given a set off as that is an independent right.

◦The Court dismissed these arguments and held that under section 18 of HAMA, the primary duty to maintain the wife rests on the husband and section 29 which provides for maintenance of parents by children carves out an exception which will apply only in a case where the husband is not alive or is otherwise not in a position to maintain his wife.

◦Sub-section 3 of section 20 clearly says that the obligation of children to maintain parents arises only when the parent is unable to maintain himself/herself and in this case, the husband of the applicant being alive and in a position to maintain, the order of the trial court directing the son to pay maintenance to the mother was “wholly perverse”, and set aside.

 

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