NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

Subject – Legal History

Topic: Law of Maintainance

SUBMITTED BY:

Arsh Singh(2019B.B.A.,LL.B. Roll no. 06)

Pency Agarwal (2019B.B.A.,LL.B. Roll no. 30)

Siddhant Saroj (2019 B.B.A.,LL.B. Roll no. 45)

(BBA-LLB; Class of 2024)

SUBMITTED TO:

Mr. Kapil Sharma

National Law University, Odisha

(Research Associate cum Teaching Assistant)

TABLE OF CONTENTS
Acknowledgement................................................................................................. 3
Introduction........................................................................................................... 4
Research Methodology........................................................................................... 5
Objectives.............................................................................................................. 5
Research Questions............................................................................................... 5
Scope and Limitations........................................................................................... 5
I. Maintenance in case of wife............................................................................ 6
II. Maintenance - children and parents...............................................................9
III. Factors Considered to establish the degree of Maintenance......................12
Conclusion........................................................................................................... 14
Bibliography......................................................................................................... 14

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Cases

Bakulabai v Gangaram(1988) 1 SCC 53.........................................................................13

Begum Subanu v A.M Abdul Gafoor,(1987) 2 SCC 28...........................................................7
Bhagwan Dutt v Kamla Devi (1975) 2 SCC 38...................................................................8
Hindu Marriage Act 1955, s 12....................................................................................... 7
Karauppana Gounder v. China Nachamal,(1974) AI.............................................10
Ranjit Kumar Bhattacharya v. Sabita Bhattacharya,(2009) AIR Cal 30.....................................8
T.P.S.H Selva Saroj v T.P.S.H Sasinathan, (1982) Cr Jj 203...................................................13
V.M Arbat v Kashira (1987) SC 110..............................................................................13
Vanamala Smt v Ranganath Bhatta, (1995) 5 SCC 29...........................................................8

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ACKNOWLEDGEMENT
This project is a subject of extensive research could not have been completed without a few
things. First of all, we would like to express our gratitude to our teachers MR. KAPIL
SHARMA and MS. DIVYA RATHOR for helping and guiding us towards the completion of this
project. We would also like to thank the administration for the provision of best facilities
without which the completion of this project would have been impossible. We would also like
to acknowledge the constant support of our seniors who showed the right track. Lastly, we
would like to thank the almighty whose blessings helped us to complete this project.

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INTRODUCTION

Maintenance refers to the right of the wife, parents and children and dependent to get
monitory assistance. This not only includes food, clothes and a place to live according to the
status the person has lived. The wife can claim maintenance after and before the marriage is
dissolved, the children are entitled for maintenance until and unless they are minor or they are
not capable of maintaining themselves and the aged parents are entitled to be maintained
irrespective of the fact that they have or haven’t transferred their property to their children.
Beside that even the widow daughter in law and some people who come under the category
of dependence are eligible to get maintenance.

Before 1956, there was no codified law for maintenance. With the advent of Hindu Adoption
and Maintenance Act, 1956 there were many changes brought with respect to maintenance.
This act brought amendments and made it more codified. Accordingly it defined the
maintenance as provision for food, clothing, residence, education and medical attendance and
treatment. In case of unmarried daughter, it includes reasonable expenses for her marriage.

This act brought up 30 sections among which 18 to 28 are associated with maintenance. It
can further be divided into personal liability which emerges out of personal relationship with
the party and the former is liability that depends on the possession of the property.

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RESEARCH METHODOLOGY
We have undertaken a meticulously descriptive research tactic. Both primary and secondary
sources, Books, Federal Law Reports and Legislative assembly Reports have been used to
extract information and all these have been pivotal material for making this project.

OBJECTIVES
 To observe closely the developments brought by the Hindu maintenance and adoption
act of 1956.
 To find out the differences between personal relationship and dependent maintenance.
 To explore the various factors in determining the degree of relationship and the extent
of the requirement of maintenance.
 To analyse the limitation of the Hindu maintenance and adoption act of 1956.

RESEARCH QUESTIONS
 Why are court proceedings for maintenance a part of CrPc?
 How does the gravity of relationship affects the degree of maintenance?
 What are the developments in the law of maintenance after 1956?

SCOPE AND LIMITATIONS

The scope of this project has been kept reasonable. Bearing in mind, there are not a lot of
resources available on the impacts of different laws of maintenance on society andit was
certainly not possible to have a wide ambit and explain everything about the different types of
implications and workings of the laws of maintenance in this project. As we have not
elaborated on the cases decided in regards to maintenance laws, rather its working, the related
sources of information are limited and hence we could not cover much more than we have
managed.

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I. MAINTENANCE IN CASE OF WIFE

In this case maintenance refers to the amount that is paid by the husband to the wife who is
not capable of maintaining herself. A wife is eligible for seeking maintenance during the
subsistence of marriage and also after the dissolution for marriage. Different laws
administering maintenance are; Hindu adaptation and maintenance act, 1956 for Hindus,
Muslim women act 1986 for Muslims, for Christians it is Divorce Act 1869 ,Parsi Marriage
and Divorce Act, 1936 followed by Parsi, above all there is a uniform secular law which is
laid down under criminal procedure code,1973; special marriage act, 1954.

1. Court procedure

The temporary maintenance is given till the time the final decision is given by the court,
mentioned under the section 36 of special marriage act 1954. The maintenance is given in
case were the wife’s independent earning is not sufficient enough for her basic and necessary
expenses. Here the basic need not only includes food and shelter but maintaining the person
according to the status and life style the person was living before. The case related to
maintenance can be filled under the Code of Criminal Procedure mention in section 125 to 12
of CrPc but generally proceedings and the relief are civil in nature. In these cases the
defendant is not considered as accused and also doesn’t come under the provision of section
2(d) of the code. This is basically done to provide speedy and imminent relief to the sufferer.
Another reason for this was that a magistrate can better handle such matters and can imprison
the person in case the person fails to pay the maintenance according to the requirement.
Beside that there are many divorce cases with a criminal aspect to it such as cases related to
adultery and domestic violence.

In parsi marriage act a similar provision is given under section 39 of the act and also to
Christian under section 36 of divorce act 1869 which is applied to people belonging to
Christian community.

2. Relief provided

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The husband or the wife can ask for maintenance to each other in case they are able to
prove there incapability to afford their living expenses1. Provisional maintenance can be
claimed by the wife during the proceedings pending under the act, such claims can be
made under section 18 of Hindu Adoption and Maintenance Act, 1956. Wife can also
claim separate residence in case of desertion, leprosy, any other wife living in the same
house or any other clause that comes under section 18(2). In Muslim law the women is
authorized to be paid by her previous husband within the iddat period. It is the meher
which has been promised to be given to her and also includes the gifts and properties
given to her by her friends, relatives and husband during marriage. This is mentioned in
section 3 of Muslim women act 1986. In special marriage act which is very similar to
Parsi marriage only wife can ask for maintenance. Maintenance cases can also be filed in
the district court under the divorce act, 1869 section 37. In case the husband fails to pay
such amount then the court may discharge or modify such order.

3. Important case study

3.1. MAINTENANCE OF PREVIOUS WIFE

In Begum SubanuV A.M Abdul Gafoor,2 case a Muslim women asked for maintenance for
herself and her daughter to live separately from her husband as the husband had got married
to another women. The lower court ruled against her but when the case was taken to Supreme
Court it overturned the judgement of the lower court and gave a judgement in favour of the
women. In this case Supreme Court passed the judgement that a wife is entitled to get
maintenance and can also refuse to live with her husband if he is engaged in another
marriage.

3.2. WIFE LIVING SEPARATELY WITH MUTUAL CONSENT

In this case the appellant got married in 1970 and took a divorce from her former husband as
the marriage was not working. At the time of divorce no order for maintenance was made.
Later the women filled a case for claiming maintenance that was rejected by the lower court
but then when she filled the case in higher court and a decision was passed in her favour and
the apex court declared that a women is authorized to get maintenance even if the divorce is

1 Hindu Marriage Act 1955, s 125

2 Begum Subanu v A.M Abdul Gafoor,(1987) 2 SCC 285
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taken by mutual consent under section 125(4) of the code. This case was came to be known
as the Vanamala Smt v Ranganath Bhatta.3

3.3. EARNING WIFE MAINTENANCE

The section 488 do not impose absolute liability on husband the husband to maintain his
wife. The term used ‘may’ in section 488(1) clearly justifies that. In the landmark case of
Bhagwan Dutt v Kamla Devi 4the appellant filed divorce from her husband on the ground of
desertion and cruelty. During the case was going on the women also filed for maintenance for
herself and her daughter under the section 488 of CrPc. The judgement was passed against
the appellant, the court decided that as the wife was earning so the income of the wife will be
taken into consideration for determining the amount of maintenance needs to be provided by
the husband.

3.4. MAINTENANCE TO WOMEN IN LIVE IN RELATIONSHIP

In the case of Ranjit Kumar Bhattacharya v. Sabita Bhattacharya5 a married man and a
woman lived like husband wife for many years and they also had a child. Later they filed for
separation so the wife claimed for her maintenance under section 18 of HAMA and 125 of
CrPc. The court that the there was absence of the marriage procedure followed so rights can’t
be given unless there was a proof of insurmountable obstacles to valid marriage. Hoe ever the
court directed the man to give 30,000 for the damages that she incurred.

4. Maintenance of widowed daughter-in-law

A widowed wife is eligible to receive maintenance under Hindu Adoption and Maintenance
act, 1956.

3 Vanamala Smt v Ranganath Bhatta, (1995) 5 SCC 299

4 Bhagwan Dutt v Kamla Devi (1975) 2 SCC 386
5 Ranjit Kumar Bhattacharya v. Sabita Bhattacharya,(2009) AIR Cal 301
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(1) A Hindu wife, 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:

To the extent 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 acquire 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 19 also has a provision which authorises a widow to ask for maintenance from father-
in-law. It can be seen in the famous case of S.V Parthasarathy Battachariar v. S. Rajeswari.
In this case c widow asks for maintenance from her father-in-law and mother-in-law for
herself and her two children. The court to took a judgement in favour of her stating that the
father-in-law is liable to provide maintenance to the widow daughter-in-law and the grand
children. So the court directed them to pay Rs.3000 per month to them.

MAINTENACE FOR DEPENDENTS

The heirs of a deceased Hindu are bound to maintain the dependant of the estate inherited by
them from decease. The concept of maintenance for dependent is mentioned in section 21 and
22 of the Hindu adoption and maintenance act 1956. Section 21 lists the person who can be
considered as dependent of a deceased Hindu and section 22 lays down the rules relating to
these dependents. As contrast to section 18 to 20 were the maintenance arises from the
relationship one must remember. But in section 21 it depends on the property inheritance. The
former has limited liability as it is just based on the duty of the heirs to maintain the deceased
whom the deceased was bound to maintain. In this Hindu adoption and maintenance act has
not taken into account the calm of the paramour. That is the concubine of a man dying, after
the commencement of this act, is not entitled to maintenance6.

6 Karauppana Gounder v. China Nachamal,(1974) AIR

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The person who inherited some estate is liable to maintain the dependent who has not
obtained any share in the estate of deceased. Act,1956 the following person can be considered
as dependent: Father, Mother, Widow, Minor legitimate son, the minor illegitimate unmarried
daughter, the widowed daughter, the son’s widow, the grandson’s widow, the son’s unmarried
daughter and the son’s son’s minor son7.

In cases there are instance were the same person comes under both the category of
maintenance, but section 22 states it clearly that the dependent is authorized for maintenance
only if “any share in the estate of a Hindu dying after the commencement of this act by
testamentary or intestate succession.”

Suppose in case a man dies and has left his mother, widow and a son. These people will
generally be considered as dependent, but they are still not entitled for maintenance as they
will eventually get a share in the estate of the deceased.

II. MAINTENANCE- CHILDREN AND PARENTS

In India, useful provisions for improvement of children and parents are provided below a lot
of Acts. Aim of such provisions is to cut a social cause and to save the homeless and poor and
to offer simple, cheap and fast mechanism for assistance and preservation to children and
parents.

1. STATUTORY PROVISIONS

Hindu Marriage Act, 1955, [Section 26] – During the proceedings, under the Act, the
courtroom may pass orders to the custody and schooling of youngsters 8. Under this Act, both
mother and father are responsible to keep the kids as ordered with the aid of the court. While
making such orders, the court considers needs of the youngsters. These orders and provisions
may be altered on occasion. Any software for the training of youngsters all through pendency
of lawsuits under the Act, has to be decided in sixty days from the date of carrier of note at
the respxondent.

7 Hindu Adoption and Maintenance Act 1956, s 21

8 Ibid n7 s 26

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Hindu Adoption and Maintenance Act, 1956, [Section 20] – A Hindu male or female is
certain to hold his/her valid minors and elderly parents.Unmarried daughter has to be
maintained if they are not able to maintain themselves. [Section 23 (2)] states that figuring
out the quantity of maintenance to be presented to kids or elderly parents, the courtroom shall
remember the following:

(a) position of the parties;

(b) affordable wishes of the claimants;

(c) if the claimant is residing one by one, whether the claimant is justified in doing so;

(d) claimant’s income and price of the property held with him.

If someone ceases to be a Hindu, he/she cannot declare beneath this Act [Section 24]. The
amount of protection can be changed if the circumstances are warranting so [Section 25].

Under this Act, even the heirs of a dead Hindu are sure to maintain his/her “dependants” out
of his/her property inherited by using them [Section 22]. Dependents include dead man or
woman’s son, single daughter, widowed daughter, unlawful son, unlawful daughter [Section
21].

Criminal Procedure Code, 1973,– Magistrate may order someone to make monthly allowance
for preservation in a case where any man or woman who despite having enough approach or
refuses to keep – (i) his valid minor infant who's not able to hold itself; or (ii) valid or
unlawful baby (now not being a married daughter) unable to hold itself because of any bodily
or mental abnormality or (iii) married daughter till she attains majority, if her husband isn't
capable of holding her; or (iv) his/her parents who are unable to maintain themselves. This
segment also makes a provision for maintenance for the duration of the pendency of lawsuits
regarding monthly allowance9. Also, use for protection at some point of pending proceedings
is to be determined by the Magistrate, within sixty days of the date of service of note of
application to such man or woman. A man or woman who fails to comply with the order of
the Magistrate without stating enough purpose may also be sent to jail. The order passed
below this section can be altered by Magistrate on evidence of exchange in instances 10

9 HAMA 1956, s 125

10 Criminal Procedure Code 1973, s 127

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Muslim Women (Protection of Rights on Divorce) Act, 1986, [Section3] – A divorced

Muslim lady is entitled to a fair provision and renovation for kids born to her for a period of
years, from the dates of delivery of such youngsters. It doesn’t count if the children were born
earlier than or after the divorce, the previous husband has to pay protection. If the previous
husband fails, to comply with the order surpassed by Magistrate, without, showing any cause,
he should go through imprisonment for a year.

, Parent who is unable to maintain himself is to claim renovation from one or extra kids (son,
daughter, grandson and grand-daughter but does no longer include a minor) 11. Obligation of
the kids to preserve their parents extends to such needs of parents if you want to allow them
to steer an everyday existence. Additionally, this Act also makes provision for benefits of
childless senior citizens (who has attained the age of sixty years or above) with the aid of
their relatives. The “relative” manner any prison heir of childless senior citizen who is in
ownership of his belongings or might inherit it after his dying, but it does not longer include a
minor.

If the mother and father or senior residents are not capable of making use of for monthly
allowance for renovation themselves, may be made through every other person or
organization,authorised by means of them. Such an application needs to be determined by
way of Maintenance Tribunal with a maximum period of 120 days from the date of service of
observe to kids/relative. If kids/relative fails to comply with the orders of the Tribunal, this
can bring about imprisonment up to one month. [Section5]. The Tribunal may additionally
order the kids/relative to make a monthly allowance at a price by means of the Tribunal.
However, the amount of maintenance cannot exceed RS 10,000 in line with month. [Section
9]. The order of protection may be altered through the Tribunal, on evidence of occasions
[Section 10].

2. CASES

2.1. Children born out of void marriage

The children born out of void marriage are eligible for maintenance this can be seen
in the landmark judgement of Bakulabai v Gangaram12. In this case the women filled
maintenance for herself and his son alleging lawful marriage with the defendant. The
husband further claims that the marriage is void as before his marriage with the

11 Maintenance and Welfare of Parents and Senior Citizens Act, 2007 s 4

12 Bakulabai v Gangaram(1988) 1 SCC 537
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plaintiff he has married twice and both his wife are alive. The court passed the
judgement in favour of the plaintiff and granted maintenance to her and his child.
2.2. Father to maintain the unmarried daughter
The father is liable to maintain their children till they attain majority. But in case of
daughter it extends till the marriage of the daughter.
2.3. Mother is also liable to provide maintenance
The mother is liable to maintain her children, the liability of a mother to maintain her
children can not be overlooked. Once it can be proved that the mother has sufficient
source for maintaining independent of the father, then the mother becomes liable to
maintain her children, this was decided in the T.P.S.H Selva Saroj v T.P.S.H
Sasinathan13. Here the daughter asks for maintenance from her mother on the ground
of incapacity to maintain herself due to mental and physical problems. The mother
claimed that she can not be asked for maintenance. Further the daughter was not able
to prove her in capacity .But in this case the additional judgement was given which
was not answering the petition.
2.4. Daughters obligation to maintain mother and father
The married daughter are even liable to maintain their parents. This can be traced
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from the land marke case of V.M Arbat v. Kashirao the plaintiff had a married
daughter from his first wife. After the death of hus first wife he got married again. The
father claimed for maintenance from his married daughter on the ground that he was
no more capable of maintaining himself. The objection was raised that this dose not
comes under the section 125 of CrPc but the court made a judgement in favour of the
father and declared that the daughter can be liable for maintenance if it is proved that
she has the sufficient means to do so.

III. FACTORS CONSIDERED TO ESTABLISH THE DEGREE OF

MAINTENANCE

Maintenance in family law refers to alimony or spousal support. Maintenance is a directive of

a court for the support of one spouse by the other spouse. State law, which differs by state,
governs the award of maintenance to a spouse. On application of either party for spousal
support, the court may decree an increase or decrease only upon a showing of a substantial

13 T.P.S.H Selva Saroj v T.P.S.H Sasinathan, (1982) Cr Jj 2032

14 V.M Arbat v Kashira (1987) SC 1100
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and material change of circumstances. The Court may award permanent or temporary
alimony or both to either party, and in so doing may consider, but not be limited to, the
following factors:

1. The actual need;

2. Ability to pay;
3. The duration of the marriage;
4. The age of the parties;
5. The physical health of the parties;
6. The emotional health of the parties;
7. The standard of living established in the marriage and the likelihood that each party
can maintain a reasonably comparable standard of living;
8. The earning capacities of the parties;
9. The educational levels of the parties;
10. The vocational skills of the parties;
11. The employability of the parties;
12. The length of absence from the job market;
13. The custodial responsibilities for children of the party seeking alimony;
14. The time and expense necessary to acquire sufficient education or training to enable the party
seeking alimony to find appropriate employment, and the availability of the training and
employment.
15. The opportunity for future acquisitions of capital assets and income;
16. The history of the non-financial contributions to the marriage by each party including
contributions to the care and education of the children and interruption of personal careers or
educational opportunities;
17. The history of the financial contributions to the marriage by each party including contributions
to the care and education of the children and interruption of personal careers or educational
opportunities;
18. The equitable distribution of property ordered and any payouts on equitable distribution,
directly or indirectly, out of current income, to the extent this consideration is reasonable, just and
fair; and
Any other factors which the court may deem relevant.15

15https://definitions.uslegal.com/m/maintenance/

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CONCLUSION

The law of maintenance provides relief to the handicapped people, who

are not capable enough to bear their daily expenses. The act of 1956
brought Hindu Maintenance and Adoption act which codified the law of
maintenance, and brought many amendments to the law. Even after the
imposition of this act many amendments were brought by the landmark
judgements passed by the apex court of India, this has made the scope of
the law much wider and included many category of people who were
earlier not eligible of getting maintenance under this act. Even after that
many inadequacy still prevails, as there are some grounds were
maintenance is not provided and the amount the of maintenance is not
properly justified which might lead to many conflict of interests. The
maintenance can be persuaded by the people who come under close
degree of relationship or who have not acquired the estate inherited by
decease. For cases related maintenance the victim can move to a
magistrate, the aim for this is to provide speedy justice.

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BIBLIOGRAPHY

Professor Kusum, Family Law Lectures Family Law volume 1 ( third edition).
 Professor Kusum, Cases and Material on Family Law ( second edition).
 H.K. Saharay, Family Law In India.
 B.M. Gandhi, Hindu Law, (third edition).
 Dr. Paras Diwan, Modern Hindu Law.

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