Lecture -12

Maintenance

The law of maintenance is not based on any contract; but is evolved out of the right in the
property to which a person was prima facie entitled, but which he became disqualified from
sharing by reason of the nature of the estate or his own disqualification. Being thus excluded
from partition in the estate law offered him the consolation of maintenance. The right of
maintenance is thus not dependant on near relationship but on the existence, in the hands of
the heir, of property upon which all dependant members of a family lay claim.

Definition of Maintenance:

The Hindu Adoption and Maintenance Act 1956, which is not applicable in pour country,
defines maintenance as the provision for food, clothing, residence, education, medical
attention and treatment. In case of unmarried daughters, it includes reasonable expenses of
her marriage.

Liability for maintenance:

The liability of a Hindu to maintain the members of his family may be of following kinds—
1. Personal or absolute liability
2. Liability dependant on the possession of the property
3. Liability of Joint Family to maintain its members

1. Personal Liability:

Personal or absolute liability of a Hindu to maintain others arises in some cases from the
mere relationship between the parties independently of the possession of the property. A
Hindu is under a legal obligation to maintain his wife his minor sons, his unmarried daughters
and his aged parents whether he possess any property or not. The obligation is personal in
nature.

According to Manu, “The aged father and mother, a chaste wife and the infant children must
be maintained even by doing a hundred misdeeds”

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2. Liability to maintain dependant on the Possession of the Property:

An heir is legally bound to provide out of the estate which descends to him maintenance for
those persons whom the late proprietor was legally bound to maintain. The reason is that the
estate is inherited subject to the obligation to provide for such maintenance.

3. Liability of Joint Family to maintain its members:

The Karta of a joint family is under legal obligation to maintain to maintain all male members
of the family and their wives and their children. On the death of one of the male members, the
Karta is bound to maintain the widow and children of the deceased member. So the liability
of the Karta to maintain the members of the family is dependant on the possession of
coparcenary property.

Persons entitled to Maintenance:

1. Son:
 A son is under a personal obligation to maintain his minor son whether legitimate or
illegitimate.
 In case of maintenance of an adult son, there are differences of opinion—
 In the case of Mitakshara, even an adult son is entitled to maintenance
from the joint family property because the son takes a vested interest from
the property.
 In Dayabhaga School the son does not by birth acquire any interest in a
copercenary property. So the father is not liable to maintain his adult son
out of his self-acquired property.
2. Daughter:
 The father is bound to maintain his unmarried daughter. After his death the daughter
must be maintained out of the estate.
 After her marriage she ceases to be a member of her father’s family and thus she must
be maintained by her husband.
 If the daughter is widowed, her father in law is morally bound to maintain her, but he
is not legally bound.
 Her right to claim maintenance ceases on her remarriage.

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3. Aged Parents:
 A son is under a personal obligation to maintain aged father and mother whether or
not he has got a share from the property.

4. Disqualified Heir:
 When an heir is excluded from inheritance he is entitled to maintenance out of the
property which he would receive if he was not excluded.

5. Maintenance of Wife:

A wife is entitled to maintenance from her husband whether he possesses any property or not.
When a man marries with his eyes open a girl accustomed to a certain style of living he
undertakes the liability to provide such style of living.

The maintenance of a wife by her husband is a matter of personal obligation arising from the
very existence of relationship and quite independent of possession of property, ancestral or
self-acquired.

Maintenance of Wife for Separate Residence:

Generally a Hindu wife must stay with her husband and the husband is bound to maintain her
and she must discharge her duties towards her husband. But if she leaves him for own accord,
either without cause or on account of such ordinary quarrels as are incidental to married life,
she can set up no claim to separate residence and maintenance.

On marriage, the wife passes into the dominion of her husband. So ordinarily she lives with
and under the protection of her husband. However a wife may be entitled to have separate
residence and maintenance if she can prove her husband’s guiltful conduct. For example, if
he had treated her with some cruelty which endangers her life.

A wife who lives away from her husband for no reasonable cause, may, at any time, come
back and claim maintenance. Her right is not forfeited; it only remains suspended as long as

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she does not commit a breach of duty. However if she does not give up her right of
maintenance and comes back later and offer to live with him, she can demand maintenance.

“The Hindu Women’s Right to Separate Residence and Maintenance Act” - 1946 says
that, notwithstanding any custom or law a woman is entitled to have maintenance and
separate residence from her husband—

i. If he is suffering from certain loathsome disease,

ii. If he has abandoned her
iii. If he has married another woman
iv. If he is converted to another religion
v. If he is cruel to the wife
vi. If he keeps a concubine

However a woman can not demand maintenance if –

i. She is guilty of unchastity

ii. She converts to another religion
iii. She refuses to go back to her husband without any justified cause
iv. She is remarried to another person.

Maintenance of Widow:

The widow of a member of a family is entitled to maintenance. If husband dies she will be
maintained out of her husband’s estate. But if the husband left no estate, than her father in
law is morally bound to maintain her and on his death, she is to be maintained out of his
estate.

Continued chastity is a condition precedent for the widow to claim maintenance. A Hindu
cannot dispose of his property by gift or will to deprive his widow’s right to maintenance.
The person to whom the property is given must hold it for the maintenance of the widow.

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In the case of Surampalli vs. Surampalli it was held that a widow does not lose her right of
maintenance out of the estate of her husband, even though she was living apart from her
husband during his lifetime and at the time of his death.

However a widow loses her right in following cases—

i. If she has enough Stridhana or other means of support

ii. If she has already received sufficient maintenance and spent it
iii. If she is remarried
iv. If she was living apart from her husband’s family for improper or immoral cause,

The widow who does not succeed her husband’s property is entitled to get maintenance —
 Out of her husband’s separate property
 Out of the joint family property in which he was a coparcener.

Amount of Maintenance:

The Court will determine whether maintenance will be given or how much to be given having
due regard to the following things—

 Demand & necessity of the wife

 Value of the property
 Conduct of the person
 Social standard

A person who is entitled to maintenance can sue for the declaration of her right and she can
also sue for past and future maintenance. A suit for maintenance must be brought within
twelve years from the time when demand was made.