Assignment

Family Law

DEFINITION OF DEPENDANTS AND TAKE

IN MAINTENANCE UNDER HINDU LAW

Submitted by
PRASHANS
B.B.A. LL.B. (Hons.)
6th Semester
MAINTENANCE AS A PERSONAL
OBLIGATION
The maintenance of the aged parents, infant children and wife is considered to be the greatest
duty of a person. It is the belief of the Hindus that if one faithfully fulfils this duty, the gates of
heaven are wide open for one. One may also attain salvation for this. On the other hand, a person
who indulges in charity or dan at the cost of the maintenance of his aged parents, infant children
and wife is condemned by the sages: it is like tasting honey which turns to be poison later.
During the British period it was a well established rule that the maintenance of the aforesaid
three sets of persons was a personal obligation of every male Hindu. Under the modern Hindu
law, in respect of aged parents and minor children, this is an obligation of every Hindu, male or
female. Thus a Hindu has personal obligation to maintain (1) his wife, (2) children, and (3) aged
parents.

MAINTENANCE OF DEPENDANTS
Ss. 21 and 22, Hindu Adoption and Maintenance Act. –

Sections 21 and 22 of the Act create rights of certain persons called dependants. Dependants are
relatives of deceased Hindu and they claim maintenance against the property of the deceased in
the hands of heirs. The term “heir” includes all those persons on whom the estate of the deceased
devolves. The right of dependants exists against the property and not against the heirs personally.
The right dependants as dependants, does not arise during the life time of the person on whom
they are dependant; they are termed dependants only after his or her death.

General Rules

The following general rules relating to the right of maintenance of dependants may be noted:-

· The obligation is tagged to the estate and not to the person. Therefore, the
maintenance of dependants is not a personal obligation.

· Apparently, it is possible that the same person may be a dependant as well as heir.
For instance, widow is an heir as well as dependant. But in reality this cannot be.
The key is provided by section 22 (2) which lays down that a dependant is entitled
to claim maintenance only if he has not obtained “any share in the estate of a
Hindu dying after the commencement of this act by testamentary or intestate
succession.

· The liability of the heirs who take the property of the deceased is not a joint
liability. The liability of each heir is an individual liability in proportion of the
value of the share of the estate, inherited by him or her.

· Sub-section (4) of section 22 imposes another limitation on the liability to

maintain. It runs: “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.”

The principle underlying the provision of maintenance of dependants is that all

those persons on whom the estate of the deceased devolves by testamentary or
intestate succession are liable in proportion to the share they get to maintain the
 dependants. The liability is subject to other rules discussed above.

Who are Dependants?

S. 21, Hindu Adoption and Maintenance Act.

According to section 21 of Hindu Adoption and Maintenance Act, 1956, the following persons
are dependants of a Hindu, male or female:-

· The father,

· The mother,

· The widow,

· The minor legitimate son,

· The minor illegitimate son,

· The minor legitimate unmarried daughter,

· The minor illegitimate unmarried daughter,

· The widowed daughter,

· The son’s widow,

· The grandson’s widow,

· The son’s unmarried daughter,

· The grandson’s unmarried daughter,

· Son’s son’s minor son.

Maintenance of the Members of the Joint

Family
So long as the family remains joint, all its members have a right of maintenance against the joint
family property. The persons who claim maintenance out of the joint family funds may be
classified under the following three heads:-

· Coparceners, qualified as well as unqualified,

· Wives, widows and the unmarried daughters of the coparceners, and

· Other members of the family. Under this are included:

· Those male members who are not coparceners (just as a male descendants beyond
the fourth degree,) and

· Concubines and illegitimate children of the father.

The claim of maintenance of the entire aforesaid person is not dependent upon the age
but upon the status: so long as a person, whatever is his age, is a member of the joint
Hindu family, he can claim maintenance against the joint family

Coparceners

In the joint Hindu family the right of maintenance of all the coparceners out of the joint
family funds is an inherent right and an essential quality of the coparcenary. Every
coparcener, from the head of the family to the junior most members, is entitled to
maintenance. Obviously, the right of maintenance is dependant on the possession of joint
family property. The right exists because there is common property and status is joint. All
coparceners are entitled to get all their legitimate expenses defrayed out of the joint
family funds. This includes food, clothing, residence, education, medical care and
marriage.

The disqualified coparceners, who, on account of their disqualifications, cannot take a

share on partition, have a right of maintenance. Even if a partition takes place, a provision
for their maintenance has to be made before the joint family assets are partitioned.

Wives, Widows and Unmarried Daughters

The wives and unmarried daughter of coparcener, including that of the karta, have a right
of maintenance against joint family property. The daughters also have a right to have their
marriage expenses defrayed out of the joint family funds.

A widow of a coparcener, including the widow of the karta, is entitled to maintenance out
of the joint family property. But right of the widow to be maintained does not give her
any interest in the joint family property.

When a widow succeeded to her husband’s interest under the Hindu Women’s Right to
Property Act, 1937, her claim to maintenance was lost. Thus Hindu Adoption and
Maintenance Act, 1956 does not affect the right. Similarly, a widowed mother is also
entitled to maintenance and the fact that she got a share at partition, does not bar her
claim for maintenance.

Other Members of the Family

Under modern Hindu law under this head fall those descendants who are not coparceners
and some other members of joint family who, though have an inferior status, are, none-
the-less, members of the joint family, such as concubine and the illegitimate sons.

· Concubine

The Hindu Adoption and Maintenance Act, 1956, has not destroyed her right of
maintenance out of the estate of a deceased Hindu who has vested in her before
the coming into force of the Act. If the accrues to her after coming into force of
the Hindu Adoption and Maintenance Act, 1956, she cannot enforce it against the
separate estate of her paramour or against her paramour’s interest in the joint
family property.

· Illegitimate son and daughter

Before 1956 he had the right of maintenance against the estate of his father.

An illegitimate daughter has no right of maintenance under the old Hindu law.
Under the modern Hindu law she has the right of maintenance till minority or
 marriage.

Quantum of Maintenance
The means and capacity of a person against whom the award has to be made should be taken into
consideration for determining the quantum of maintenance. In fact, in case of the husband, it is
not only the actual earning, but also his potential earning capacity, which must be considered i.e.
there is a presumption that every able-bodied person has a capacity to earn and maintain his wife.
The income of the husband is a significant factor to be considered by the court in fixing the
quantum of maintenance. It is disposable income and not the gross income, which is to be
considered. Section 23(2) of Hindu Adoptions and Maintenance Act states the factors to be
considered in determining the amount of maintenance payable to the wife, children and aged
parents, and they are as follows – the position of and status of the parties, the reasonable wants of
the claimant, the claimant if living separately is justified or not, the income of the claimant and
the value of the claimant’s property and the number of persons entitled to maintenance under the
Act.

 Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she
has indulged in adulterous relationship or has converted herself into any other religion thereby
ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief,
the marriage must be a valid marriage. In other words, if the marriage is illegal then the
matrimonial relationship between the husband and wife is non-existent and therefore no right of
maintenance accrues to wife. However, thanks to judicial activism, in particular cases the
presumption of marriage is given more weight age and the bars to maintenance are removed.

Section 23, Hindu Adoption and Maintenance Act. –

The Hindu Adoption and Maintenance Act, 1956, now, lays down certain considerations which
the court will take into account in fixing the amount of maintenance.

Sub-section (i) of Section 23 lays down the general rule that the fixation of the amount of
maintenance is in the discretion of the court. In respect of quantum of maintenance of wife,
children and aged or infirm parents, sub-section (2) lays down the following considerations:-
 · The position and status of the parties;

· The reasonable wants of the claimant;

· If the claimant is living separately, whether the claimant is justified in doing so;

· The value of the claimant’s property and any income derived from such property, or from
claimant’s own earning or from any other source; and

· The number of persons entitled to be maintained under the Act.

In regard to the quantum of maintenance of a dependent, sub-section (3) lays down the
following considerations:-

(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
dependent;

(c) The degree of relationship between the two;

(d) The reasonable wants of the dependant;

(e) The past relationship 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 earning or from any other source; and

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

Amount of maintenance may be altered

on change of circumstances.-
The amount maintenance, whether fixed by a decree of court or by agreement, either before or
after the commencement of this Act, may be altered subsequently if there is a material change in
the circumstances justifying such alteration.

Under Section 25(1) of Hindu Marriage Act, 1955, a gross sum can be decreed. In terms, sub-
section (3) does not restrict the powers of the Court to rescind only the payment of monthly and
periodical sums. Sub-section (3) has been widely couched and prima facie it might be made
applicable to rescission of an order awarding a gross sum. Though the matter is not free from
difficulty on account of the inartistic language in which the section has been worked and the
absence of any authority on the point, on a close scrutiny, the view that a decree awarding gross
sum cannot be rescinded appears to be more reasonable. The difference in wording in sub-
sections (2) and (3) is somewhat significant. Under sub-section (2), if the Court is satisfied that
there is a change in the circumstances of either party at any time after the order has been made
under sub-section (1), it may vary, modify or rescind any such order in such manner as it may
deem just. To illustrate, if the husband had higher income at the time of the decree, but he
becomes indigent later on and is not in a position to pay the sums towards maintenance, the
Court may step in to reduce the amount. Similarly if the wife gets an employment and earns a
substantial income sufficient to maintain herself, the Court may rescind the order or decree
granting maintenance. Thus in case of change in circumstances the Court has been given ample
power either to vary, modify or rescind the order.

Under sub-section (3), however the Court has been given the power only to rescind. The word
‘rescind’ means to annual or cancels. If the conditions prescribed under sub-section (3) exist, that
is, if a party in whose favour the order has been made remarries, or, if such a party is the wife
and she does not remain chaste, or, if such a party is the husband and he has had sexual
intercourse with any woman outside wedlock, the Court shall rescind the order. In case of
payment of monthly or periodical sums, the Court can rescind the order as such payments relate
to future payments only. Conferring power on the Court to annul future payments after accrual of
cause of action as prescribed in sub-section (3) appears to be reasonable. The same argument
does not, however, apply to rescission of an order granting gross sum, which would amount to
annulment of a past liability and not a future one. Such annulment also would lead to an
absurdity inasmuch as the past dues accruing in favour of the wife in between decree and the
remarriage cannot be rescinded under the sub-section as such liability constituted an integral part
of the gross sum decreed. The past and future liabilities constituting the gross sum are not
severable. Rescission of such an indivisible liability cannot therefore be countenanced.

The maintenance should not vary in any of the case where the wife is able to maintain herself.
The maintenance amount should be assessed by the courts on case to case basis and it should
only be treated and articulated as punishment for the erring spouse and not as a right of woman.

CONCLUSION
Maintenance means the right of dependents to obtain food, clothing, shelter, medical care,
education, and reasonable marriage expenses for marriage of a girl, from the provider of the
family or the inheritor of an estate. The basic concept of maintenance originated from the
existence of joint families where every member of the family including legal relations as well as
concubines, illegitimate children, and even slaves were taken care of by the family. However,
maintenance does not mean unreasonable expectations or demands.

It is evident from the recent judicial decisions that the Indian courts have been progressively
liberal in deciding cases pertaining to maintenance. The bone of contention however is whether a
paramour can become entitled to receive maintenance merely from the factum of living with a
married man, coupled with the dispute as to whether the bigamy is legally permissible.

Over a period of time improved rights are bestowed upon Indian Hindu women, the rights
available to them do not match with the rights required. Maintenance has been a concern of not
only weaker sections but of the society as well. For weaker sections it is a problem in the sense
their very survival rest on the provision made available as maintenance.