PPT comprises of detailed position of personal and general law on Maintenance, with the specifications as to who are the claimants, criteria of claim and reformation in law, by judiciary.
5. ▪ General discussion about Maintenance
▪ Rationale behind the Law of Maintenance
▪ Law of Alimony & Maintenance
✓ Hindu Law
✓ Muslim Law
✓ Christian Law
✓ Parsi Law
✓ Secular Laws
• Code of Criminal Procedure (Sec.125-128)
• Special Marriage Act, 1954.
▪ Maintenance to Wives, AGED PARENTS & CHILDREN.
▪ Comparative Analysis of Personal & Secular Law of Maintenance.
▪ Guidelines & Considerations:
▪ Legislative
▪ Judicial decisions
6. ▪Inability to earn.
▪Unable to maintain himself
or herself.
▪Ability to earn
▪Competent to earn
▪Dependent
▪Income Assessment
▪Job/Business
▪Sufficient Means
▪Quantum of Maintenance
▪Means of earning
▪Conduct of applicant
▪U/certain circumstances
▪‘Changed’ circumstance
▪Provisions for:
✓ Residence
✓ Kharcha-aye-pandan
✓ Living.
✓ F a i r & R e a s o n a b l e
provision
Crucial Terms
7. 7) Persons entitled
• Wife
• Children (Minor/Major/Married/Insane,
Illegitimate son or daughter, etc)
• Widowed daughter
• Parents & Grand Parents (‘Father’, ‘Mother’,
G’mother and G’father)
• Concubine or Kept or Mistress
• Other relations
8. 7) M & A as an Independent Remedy:
• Review of Personal Laws
• Code of Criminal Procedure
• Muslim Women (Protection of Rights on Divorce)
Act, 1986
8) Maintenance include:
• Residence
• Livelihood
• Property: movable or immovable?
• Money/Cash
• Kind
• Kharcha-aye-pandan
29. ➢ CLAIMANTS U/S.125:
2. Wife:
▪ Wife means “legally wedded wife”
▪ Explanation (b) to Section 125 defines “WIFE” so as to
include unmarried divorced wife. (U/old Code it was
not)
▪ Wife term is not qualified by any Religion.
▪ Husband is u/an obligation to maintain her.
32. ➢ Quantum of Maintenance:
▪ Magistrate may order for Maintenance “as Magistrate
thinks fit” and to provide such person as the Magistrate
may from time to time direct.
▪ Law Commission of India has recommended to remove
the ceiling of 500/- and the Magistrate should have
power to award amount of Maintenance as he thinks fit.
▪ Previously, before Amendment Act of 2001, it was “not
exceeding 500/-.
▪ State Amendments to Code of Criminal Procedure vary in
terms of quantum of maintenance.
33. Section 125 of Cr. P.C. and
Claim of Muslim Divorced Wife:
Problem of:
• Interpretation
• Contradiction
• Question of law
• Personal law vs. General
34. # Mohd. Ahmed Khan Vs. Shah Bano Begum
((1985) 2 SCC 556): NEW INTERPRETATION TO
LAW
• Interpretation of Section 125 was in
question.
• Maintenance “beyond the period of
Iddat” was in question.
• Conflict of Laws: Muslim Law Vs. Secular
Law of Maintenance which is reflected
in the provision of Section 125 of
Criminal Procedure Code.
• (Divorced) Muslim Women can resort to
Section 125 of Criminal Procedure Code.
36. • This change in the Cr.P.C. constitutes a fictional relationship of
Wife, to prevent erstwhile husbands to drive their ex-wives to a
state of poverty and destitution till they remarry.
• After this, Statutory/Legal position is that: a woman continues
to be wife within the meaning of S.125 even after divorce, in
order to claim maintenance.
• Even a wife who has been divorced prior to the amendment, is
entitled to avail protection u/this provision.
• Divorce at whose instance doesn’t matter, since the words are:
• ‘….has obtained divorce from the husband’
42. PROF. ASHOK WADJE, SLS, NOIDA
• Post Shah Bano Law: Muslim Women (Protection of
Rights on Divorce) Act, 1986
✓ Repercussions of Shah Bano’s case.
✓ Unprecedented DEBATE & CONTROVERSTY evoked.
✓ Parliament had to pass this piece of legislation in order
to shut the mouths of Muslim Husbands in India.
✓ Act applies only to Divorced Wife.
✓ Act deals with the Right to be Maintained by:
• Husband
• Relatives
• Wakf Board.
51. ❶ HINDU LAW OF MAINTENANCE:
• Hindu Adoption & Maintenance Act, 1956.
• Hindu Marriage Act, 1955.
✓ Personal Obligation
✓ Greatest duty of person
✓ The gates of heaven are wide open for one who maintains
some one.
✓ Manu declared: “….obligation subsists in spite of doing
hundred misdeeds.”
✓ Now-a-days it is a matter of necessity.
❖ Maintenance of WIVES, PARENTS & CHILDREN:
52. ▪ Hindu Adoption & Maintenance Act, 1956.
1. Section 18: Of Wife
2. Section 19: Of Widowed Daughter- in- law.
3. Section 20: Children & Aged Parents.
4. Section 21: Dependents
53. 1) Of Wife: (Section 18)
✓ Legally-wedded-wife.
✓ In most of the legal system this obligation is recognized.
✓ So long as she remains “faithful.”
✓ Obligation exists even after the ‘dissolution of marriage”
✓ In the case of #Vihal Vs. Maiden (AIR 1995 Guj. 88) it was
held that a “divorced wife” is included within the
expression wife.
✓ The obligation arises out of ‘status of marriage’ or ‘jural
relationship.’
✓ Three situations wherein this right/obligation arises:
▪ When she lives with her husband
▪ When she lives separate
▪ When she lives separate under Decree of Court.
54. ✓ Who is “Wife”
✓ During her Life-time.
✓ By “Husband” (Sub-Section (1).
✓ Living Separate & Claiming Maintenance ? Yes, on certain
grounds. (Sub-Section (2)
✓ Bar to Maintenance & Separate Living: Subject to condition
u/Sub-section (3) that Wife should not be:
▪ Unchaste
▪ Cease to be Hindu.
55. 2) Of Widowed Daughter- in- law: (Section 19)
• As a manager of a joint family, Father-in-Law was under a
MORAL OBLIGATION.
• Statutory improvement: Hindu Women’s Right to Property
Act, 1937 (Right to step her into the shoes of her deceased
husband).
• Now by virtue of this Section 19, she is having a LEGAL
RIGHT to receive maintenance. SO FATHER –IN-LAW IS
LEGALLY BOUND TO MAINTAIN.
(Logic: Those who inherit the property of deceased
husband, are obviously bound to maintain herself who is in
immediate relationship.)
56. Requirements:
• Property with the Father-in-Law should be COPARCENARY.
• Daughter-in- Law is UNABLE to provide for herself by her own
earnings or from her own property.
• Unable to get maintenance from the ESTATE of her husband
or Parents or from Children or from their estate
• REMARRIAGE bars her to claim from her Father-in-Law.
NOTE: Parents of the widowed daughter in law are required to be
heard before court grants any decree of maintenance (Raj Kishore
Mishra Vs. Smt Meena Mishra AIR 1995 ALL.70)
57. 3) Maintenance of Children and Aged Parents
(Section 20)
• A ‘Hindu’ is under an obligation to maintain:
✓ Legitimate or illegitimate children (also
adoptive)
✓ Aged or infirm (Weak/Sick) parents.
• Legitimate or illegitimate child should be MINOR.
• Aged or infirm parents should be unable to maintain
himself or herself out of their own property or other
property.
• Parents do include “childless step-mother”.
58. CHILDREN:
✓ Legitimate and Adopted children.
• Obligation arises OUT OF PERSONAL RELATIONSHIP OF
PARENT & CHILD.
• Legitimate son is entitled even though son is not living
or not in talking terms or for whatever misdeeds.
• The obligation of Parents to maintain ceases on his
attaining majority, even if the son is incapable of
maintaining himself due to temporary illness or
disorder. But if disability or disorder is of a permanent
nature, Parent’s obligation is there.
• Adopted son or daughter has the same right as that of
natural born legitimate children.
59. ✓ Major/Unmarried DAUGHTER:
• A major daughter is entitled to maintenance until she
gets marry.
• In case of daughter, maintenance includes a reasonable
provision for her marriage.
• In so far as she is unable to maintain herself.
✓ Illegitimate Son/daughter:
• Previously used to get only from Putative father
• Now from both the Putative Father and Natural mother.
• Only entitled for maintenance and nothing else.
60. PARENTS
• The HAMA, is the first statute which imposes obligation
on the children to maintain their parents.
• Sons and Daughters have EQUAL DUTY to maintain.
Previously only sons were under obligation. Now with
the changing times, the Law has recognized that
daughters also should have a duty to maintain parents.
(Logic: Sons alone inherited the properties. The
daughters neither inherited nor had any other
income of their won by way of personal earnings.)
• Mother and Father both have an EQUAL RIGHT. Law also
explicitly refers to “Step-Mother” , however it is only
childless step-mother.
61. • No ‘Capacity’ word is there. Children are ‘bound’ to
maintain Parents. In this respect, Hindu Law is in
contrast with the Cr.P.C.
• It is pertinent to note that, even though word
“maintenance” includes provisions for ‘residence’ it
does not confer a legal right to on the parents to live
in the house of the son along with his family.
CASE LAW: Anjali D. Jadhav Vs. Nirmala Ramchandra
Kore (AIR 2000 SC 1386)
✓ This was the case under Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947.
✓ A mother who was the tenant was living in the suit
premises with her sons for 30 years.
62. ✓ The Landlord sought to evict the tenant on the ground that she
had acquired “alternative accommodation” which was a ground
for eviction under the Bombay Rent Control Act, 1948.
✓ The Court held that the mother was not liable to be evicted on
the ground of having acquired ‘vacant possession’ because the
house built by her sons is not hers over which she has any legal
right to reside.
✓ So here, though this Judgment is to the advantage of the mother,
yet, the observations of this case have a potential of being
invoked to the detriment of parents in some cases.
✓ Court observed: “though morally sons are u/obligation to
accommodate with them yet in Law we cannot enlarge this
obligation to legal duty.”
63. 3) Dependents of a DECEASED HINDU: (Section 22)
• Dependents are RELATIVES of deceased Hindu and they
can claim maintenance against the property of the
deceased in the hands of heirs.
• Heirs are all those persons on whom estate of deceased
legally devolves.
• This is in a case that they do not get any share in the
estate either by SUCCESSION or WILL.
• Persons u/obligation, equally liable to maintain in
proportion to the value of the share.
• There is a difference in HEIRS & DEPENDENTS.
• WHOSOEVER GETS ANY SHARE IN PROPERTY IN THE
PROCESS OF DEVOLUTION, TAKES IT SUBJECT TO DUTY/
RISK OF MAINTENANCE OF DEPENDENTS OF A DECEASED
HINDU.
64. • Liability:
• The dependent can exercise this right against the
heirs only when he himself is NOT an heir or has
NOT obtained any legacy under the Will of the
deceased/testator.
• If there is a separate provision for the maintenance
of the dependents the heirs have no further
liability.
• The maintenance should be OUT OF THE ESTATE of
the deceased inherited by heirs and not personal or
otherwise.
• If the value of the share or part of the estate (in
the event of contribution) becomes less than the
maintenance awarded to him, not liable to
contribute.
65. Example (1) A Hindu dies leaving behind a WILL
(Testamentary), under which he bequeaths all his
property to his Son. He leaves behind a SON, WIDOW and
MOTHER. In this case, widow and mother as Dependents
can claim maintenance against the estate of the
deceased in the hands of the Son.
For Example (2) : a Hindu dies SUCCESSION (intestate),
leaving behind a MOTHER, A WIDOW and a SON, all three
will take a share in the estate of the dependent. None of
them can claim maintenance as dependent against the
others.
66. ▪The father
▪The mother
▪The widow
▪The minor legitimate
son
▪The minor illegitimate
son
▪The minor illegitimate
unmarried daughter
▪The minor legitimate
unmarried daughter.
▪The widowed
daughter
▪The son’s widow
▪Grandson’s widow
▪The son’s unmarried
daughter
▪The grandson’s
unmarried daughter
▪Son’s minor son
▪Son’s son’s minor.
son
Definition of Dependents: (Section 21)
74. # Mohd. Ahmed Khan Vs. Shah Bano Begum
(AIR SC 1986): NEW INTERPRETATION TO LAW
• Interpretation of Section 125 was in
question.
• Maintenance “beyond the period of
Iddat” was in question.
• Conflict of Laws: Muslim Law Vs. Secular
Law of Maintenance which is reflected
in the provision of Section 125 of
Criminal Procedure Code.
• (Divorced) Muslim Women can resort to
Section 125 of Criminal Procedure Code.
77. • Muslim Women (Protection of Rights on Divorce) Act,
1986
✓ Repercussions of Shah Bano’s case.
✓ Unprecedented DEBATE & CONTROVERSTY evoked.
✓ Parliament had to pass this piece of legislation in order
to shut the mouths of Muslim Husbands in India.
✓ Act applies only to Divorced Wife.
✓ Act deals with the Right to be Maintained by:
• Husband
• Relatives
• Wakf Board.