Maintenance Under Hindu Adoption and Maintenance Act, 1956

Theoretical overview

The term maintenance has been used in a wide sense, it includes maintenance as a provision for food, clothing, residence, education and medical attendance and treatment according to Hindu Adoptions and Maintenance Act, 1956. The duty and the obligation of husband to maintain his wife does not arise out of any contract, express or implied, but only out of the status of marriage, out of the wedlock of husband and wife.

According to Section 3(b) of HAMA, 1956, “Maintenance” includes provision of food, clothing, residence, education and medical attendance and treatment and in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage. 

Three situations of giving maintenance to wife

1. When the wife lives with her husband
2. When the wife lives separate from her husband
3. When the wife lives separate under a decree of the court (judicial separation) or when the marriage is dissolved. 

1. When the wife lives with husband [Section 18 (1)]

In all patriarchal societies, it has been considered an imperative duty of the wife to live with her husband and perform all conjugal rights. Side by side with this obligation of the wife, the husband’s obligation to maintain his wife begins with marriage. It cannot be a valid ground to refuse maintenance that his financial condition is good. The obligation of the husband to maintain his wife is personal obligation. The modern Hindu law lays down that a Hindu wife is entitled to be maintained by her husband during her lifetime. 

2. When the wife lives apart [Section 18 (2)]

A Hindu wife is entitled to maintenance if she lives separate from her husband for a justifiable cause. These are:

1. Desertion: – ‘Desertion’ as a ground for “separate residence and maintenance” means for abandoning of the wife without reasonable cause and without her consent, or against her wish or if wilfully neglecting her. The meaning given to this expression under Section 18 (2) accords with the meaning of desertion given under Section 13 (1) (1b) of HMA. The duration of desertion need not to be less than period of two tears. It may be less than it. 
2. Cruelty: – If the husband has treated his wife with cruelty as to cause reasonable apprehension in her mind that it will be harmful or injurious to live with him, it will be a ground for separate residence and maintenance. In a suit for separate residence and maintenance on the ground of cruelty, the wife has to prove two facts: (a) the husband has treated her with cruelty (b) the cruelty was such as to cause reasonable apprehension in her mind that it will be harmful or injurious for her to live with the husband. 
3. Another wife is living: – Section 13(2) of the Hindu Marriage Act provides an opportunity to the wives of pre-Act bigamous marriages to take divorce from the Court. If any such wife does not want to seek divorce and only desired to live separately from her husband, she may get separate residence and maintenance, provided the other wife is living.
4. Keeping a concubine: – If the husband keeps a concubine in the same house in which his wife is living or habitually resides with concubine elsewhere, then the wife may claim separate residence and maintenance. 
5. Conversion: – If the husband has ceased to be a Hindu by conversion to another religion it is a good ground for the wife to live separately and claim maintenance from him. 
6. Any other cause: – Clause (g) vests a residuary discretion on the Court to order separate residence and maintenance in respect of cases which does not fall under any of the above six clauses. The expression “any other cause justifying her living separately” would cover the cases which are short of cruelty. E.g.: – Insanity of the husband. 

Maintenance of Widowed Daughter-in-Law

A husband is liable to pay maintenance to his wife after they get divorced. However, if the husband is dead it is the obligation of his father to pay maintenance to his daughter-in-law. Section 19 of the Hindu Adoption and Maintenance Act states the same, but the father-in-law shall only be liable to pay maintenance if:

1. His daughter-in-law has no sources of income;
2. She has no property to sustain herself on her own;
3. If she has some property, it is insufficient to meet her basic expenses.

In case she has no property of her own and any property of her husband, parents or children are not fetching her any maintenance.

The second clause of Section 19 also states that a father-in-law shall not be liable to pay any maintenance if:

1. He is not able to do so from any coparcenary property in his possession; 
2. The daughter-in-law has no share in that property, and such obligation will end if she gets remarried.

Maintenance of Children and Aged Parents

People who cannot earn money for themselves due to reasonable grounds need to be given maintenance in order to meet their basic necessities. Such people can include children and old people. Section 20 of the act states: 

1. A Hindu male or female is obligated to maintain their children whether they are legitimate or illegitimate.
2. Children shall claim for maintenance from their parents as long as they are minor. 
3. An unmarried daughter shall be entitled to maintenance even after attaining the age of majority, till the day she gets married.

The section further prescribes that: 

1. Parents who are old or have physical or mental weakness need to be maintained if they are not able to maintain themselves. 
2. A childless stepmother will also be considered a ‘parent’ in the context of this section.

Maintenance of a Dependent

1. Dependent is someone who relies on parents, brother or some other relative for sustaining themselves. Dependents of a deceased must be maintained if they do not have the capacity to do so by themselves. Section 21 of the act defines dependents and Section 22 states that such persons shall be entitled to maintenance.
2. Section 21 of the act says that in the context of this act dependents refer to the following relatives of the deceased:

1. A father.
2. A mother.
3. A widow who has not remarried.
4. A minor son, grandson, or great-grandson with predeceased father and grandfather. Provided he has not been able to obtain maintenance from any other source.
5. Unmarried daughter, granddaughter, or great-granddaughter with predeceased father and grandfather. Provided she has not been able to obtain maintenance from any other source.
6. A widowed daughter who has not been able to obtain maintenance from the estate of her husband, children, or from her in-laws.
7. Widowed daughter-in-law, or widowed granddaughter-in-law, who has not been able to obtain maintenance from any other sources.
8. An illegitimate minor son or illegitimate unmarried daughter.

3. Section 22 of the Act states:

1. That dependents of a deceased Hindu must be maintained by his heirs with the aid of the estate that they inherited from the deceased.
2. When the dependents have not been left with any share in the property or estate by way of will or succession, they are still entitled to be maintained by whoever takes over the estate.
3. If multiple persons have taken over the property of the deceased, each one of them will be liable to maintain the dependents. 
4. The amount of maintenance to be paid will be divided among them depending on the value of the share they hold in that property.
5. In case a dependent has obtained some part of share in the property of the deceased, they will not be liable to maintain other dependents. 
6. Others who have taken over the property will still have to maintain other dependents but the dependent holding a share shall be excluded and maintenance will now be paid from the remaining property.

Determining Amount of Maintenance

There is no fixed amount for maintenance that shall be paid. It is at the discretion of the court to determine the amount of maintenance. Section 23 of the act states that while deciding the amount of maintenance to be awarded to a wife, children, or old and infirm parents – the court must do so considering the following:

1. Status of parties and their current position;
2. The claims of the parties within reasonable limits;
3. If the claimant living separately have justified grounds in doing do;
4. All sources of income of the claimant and the value of their property;

The number of people that are entitled to be maintained

Relevant sections

Section 18 Maintenance of wife – 

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance—

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her;

(b) if he 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;

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

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

(3) 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.

Section 19. Maintenance of widowed daughter-in-law – 

(1) 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: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, 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.

(2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.

Section 20. Maintenance of children and aged parents – 

(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation – In this section “parent” includes a childless step-mother.

Section 21. Dependants defined  – For the purposes of this Chapter “dependants” mean the following relatives of the deceased:—

(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 of his predeceased son or the son of a predeceased son of his predeceased son, so long as he is a minor; provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father’s or mother’s estate, and in the case of a great grand-son, from the estate of his father or mother or father’s father or father’s mother;

(v) his or her unmarried daughter, or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son, so long as she remains unmarried: provided and to the extent that she is unable to obtain maintenance, in the case of a grand-daughter from her father’s or mother’s estate and in the case of a great-grand-daughter from the estate of her father or mother or father’s father or father’s mother;

(vi) his widowed daughter: provided and to the extent that she is unable to obtain maintenance—

(a) from the estate of her husband, or

(b) from her son or daughter if any, or his or her estate, or

(c) from her father-in-law or his father or the estate of either of them;

(vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry: provided and to the extent that she is unable to obtain maintenance from her husband’s estate, or from her son or daughter, if any, or his or her estate; or in the case of a grandson’s widow, also from her father-in-law’s estate;

(viii) his or her minor illegitimate son, so long as he remains a minor;

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

Section 22. Maintenance of dependants – 

(1) Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to maintain the dependants 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 a 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.

(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 person 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 were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.

Section 23. Amount of maintenance – 

(1) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the considerations set out in sub-section (2), or sub-section (3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this 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 claimant’s 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.

(3) In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to—

(a) the net value of the estate of the deceased after providing for the payment of his debts;

(b) the 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 the dependant and any income derived from such property, or from his or her earnings or from any other source;

(g) the number of dependants entitled to maintenance under this Act.

Important case laws

In the case of Mst. Samu Bai v. Shahji Magan Lal, the High Court of Andhra Pradesh held that: The maintenance to aged and infirm parents must only be provided if the parents have no means to sustain themselves, or are unable to maintain themselves out of their own property or earnings. So, we can infer that if the old parents have enough meant to maintain themselves, the obligation of children to maintain them can be relaxed.

Points to remember

• The term maintenance has been used in a wide sense, it includes maintenance as a provision for food, clothing, residence, education and medical attendance and treatment according to Hindu Adoptions and Maintenance Act, 1956.
•  In all patriarchal societies, it has been considered an imperative duty of the wife to live with her husband and perform all conjugal rights. Side by side with this obligation of the wife, the husband’s obligation to maintain his wife begins with marriage.
• A Hindu wife is entitled to maintenance if she lives separate from her husband for a justifiable cause.
• A husband is liable to pay maintenance to his wife after they get divorced. However, if the husband is dead it is the obligation of his father to pay maintenance to his daughter-in-law. Section 19 of the Hindu Adoption and Maintenance Act states the same.
• Dependent is someone who relies on parents, brother or some other relative for sustaining themselves. Dependents of a deceased must be maintained if they do not have the capacity to do so by themselves. Section 21 of the act defines dependents and Section 22 states that such persons shall be entitled to maintenance.