By Dhruva Vig
Introduction
Under the Indian legal system, a variety of constructive and favourable provisions have been provided for the purposes of maintenance of children and parents under various Acts/Statutes. The sole objective of such provisions is mainly centred around a social purpose, and the goal to prevent vagrancy and destitution to the subjects of such Acts, and to provide simple, inexpensive and speedy redressal mechanism for the purposes of providing support and maintenance to the children/descendants.
The historical background relating to Hindu Maintenance laws dates back to 1950s, when the Hindu code bills under the leadership of Rau Committee, with B. N. Rau as its chairman, who were in the process of codifying draft legislation of the laws governing Hindu communities in post-colonial India.
In a nutshell, the Hindu code bills were several laws that were passed in the 1950s that aimed to codify and reform Hindu personal law in India, and were consequently successful in passing four Hindu code bills in 1955-56, with the Hindu Adoptions and Maintenance Act being one of them.
Over the lengthy and extensive course of Indian Judicial system, the various courts across the country have taken a multitude of distinct approaches to the issue of maintenance of children with reference to the legal provisions that are scattered under various acts and provisions.
These provisions along with important cases on the issue of maintenance of the child have been discussed below.
Legal Provisions
Hindu Marriage Act, 1955
Section 26 – During the proceedings under the Hindu Marriage Act, the Court, if it finds it necessary, may pass orders with respect to the custody, maintenance, and education of minor children associated with the relevant case. Under the Hindu Marriage Act, both parents (i.e., both father as well as mother or either of them) are liable to maintain the children as and when ordered by the Court by way of judicial pronouncement.
While making such judicial pronouncement in form of a decree or an order, the Court shall take into account the wishes of the children, as far as possible. Such orders and provisions may be altered from time to time, depending upon the circumstances of each and every case.
Any application which is made with respect to the maintenance and education of minor children during pendency of proceedings under the Hindu Marriage Act, must be decided within a period of sixty days from the date of service of notice on the respondent, as far as possible.
Hindu Adoption and Maintenance Act, 1956
Section 20 – Under this Act, an individual who is a follower of Hinduism, is legally bound to maintain their legitimate/illegitimate minor children. The legal provisions provide for an unmarried daughter to be maintained if she is unable to maintain herself. Section 20 states the maintenance of children and aged parents, while section 23 sub-section (2) states that while determining the amount of maintenance which is to be awarded to children or aged/infirm parents, the Court shall consider the following essentials:
- The position and status of the parties involved;
- Reasonable wants of the partis/claimants;
- If the claimant is living separately or not, whether claimant stands justified in doing so;
- Income of claimants and the value of property held by him, if any; etc.
If any individual ceases to be a Hindu (i.e., changes/converts their religion), he/she cannot claim for maintenance under this Act, in accordance with Section 24 that is. The amount of maintenance may be subject to modification if there are change in circumstances warranting so, in accordance with Section 25 of the Act.
Furthermore, even the heirs of a deceased person who was a Hindu, are legally bound to maintain his/her “dependants” out of his/her estate which has been inherited by them as provided under Section 22 of the Act.
The term dependents shall include deceased person’s minor son, unmarried daughter, widowed daughter, minor illegitimate son, minor illegitimate daughter, as stated under Section 21.
Criminal Procedure Code, 1973
Section 125 – Under the provisions of this Section, a magistrate can order or legally enforce any individual to make monthly allowance for the purposes of maintenance in a case where any individual, who despite having sufficient means and resources, neglects or refuses to maintain the following persons-
- His legitimate/illegitimate minor child who is not able to maintain for itself; or
- Legitimate/illegitimate major child (excluding married daughters) who is not able to maintain itself due to some physical/mental abnormality/injury; or
- A married daughter till she attains the age of majority if her husband is unable to maintain her; or
- His/her father or mother or both, who are not able to maintain themselves.
The aforementioned section under CrPC also provides for maintenance during the pendency of proceedings by way of monthly allowance for such maintenance.
Further, an application for interim maintenance during the pendency of proceedings is to be decided, as far as possible, within a period of sixty days of the date of service of notice of application to such person, by the Magistrate.
Any individual who fails to comply with the said order of the Magistrate without showing sufficient cause may also be subject to a term of imprisonment according to procedure established by law. The said order of maintenance which has been passed under this section, shall be subject to alteration by the Magistrate upon proof of changes in the prevailing circumstances, as provided under Section 127 of the code.
Muslim Women (Protection of Rights on Divorce) Act, 1986
Section 3 – Under the provisions of this Act, a divorced Muslim woman shall be legally entitled to a reasonable and fair provision, as well as the maintenance for children which are born to her, for a period of two years from the respective dates of birth of such children.
It shall be considered immaterial whether the children took birth before or after the divorce of the said Muslim couple, the former husband shall be held liable to pay the said amount of maintenance. If the former husband fails to comply with the order passed by Magistrate without showing due and sufficient reasoning, he may have to suffer imprisonment up to one year.
Landmark Cases
Balbir Singh v. Hardeep Singh[1]
Held:
A father’s liability to maintain the child does not cease merely because the child has attained the age of discretion but is living with the mother on account of natural love and affection.
V. Kameswaramma v. V. Raghu Ramulu[2]
Held:
Though Section 20 of the Hindu Adoptions and Maintenance Act does not expressly prohibit the parents to give maintenance, but no obligation has been casted upon a Hindu to maintain the children when they attain majority, and Section 20 of the Act can be considered as a bar to claim the maintenance as of right by a child who has attained the majority.
In view of the same, the inherent power of the Court cannot be exercised to get over the bar contained in Section 20.
Ramesh Chander v. Veena Kaushal[3]
Held:
The words “in the whole” occurring in Section 125(1) of the Code must be construed as meaning ‘taking all items of maintenance together’ and not ‘all the members of the family put together’.
This ensures a reasonable amount of up to Rs 500 per month to each of the claimants mentioned in Section 125(1) under the corresponding State Amendments, and not just Rs 500 per month to all such claimants taken together.
Rajnesh v. Neha[4]
Held:
The purpose and object of Section 125 of CrPC is to provide immediate relief to the wife and children in a summary proceeding, whereas under Section 20 read with Section 3(b) of the Hindu Adoptions Maintenance Act, a much larger right has been contemplated, which requires determination by a civil court of competent authority.
Bakulabai v. Gangaram[5]
Held:
A child who has been born out of a void marriage between a woman and a married man, i.e., a man who already has a wife, such child shall be treated as a legitimate child who shall be entitled to maintenance under Section 125 of Cr.P.C.
Jasbir Kaur Sehgal v. District Judge, Dehradun[6]
Held:
An unmarried daughter who is unable to maintain herself, shall be legally entitled to claim maintenance under the provisions of Hindu Adoption and Maintenance Act, 1956. The father of such unmarried daughter shall be held obliged to maintain his unmarried daughters, even if they are living separately with their mother.
Jagdish Jugtawat v. Manju Lata[7]
Held:
A daughter shall be legally entitled to maintenance under the provisions of CrPC when read with Hindu Adoption and Maintenance Act, 1956, even after attaining majority but till her marriage.
Padmja Sharma v. Ratan Lal Sharma[8]
Held:
Under the provisions of Hindu Adoption and Maintenance Act, 1956, both a Hindu divorcee father and a Hindu divorcee earning mother are obliged to contribute for the maintenance of their children. The father cannot be held exclusively responsible to maintain his children regardless of mother being affluent.
It was further held that a Hindu is bound, during his or her lifetime, to maintain his or her children. A minor child so long as he is a minor can claim maintenance from both his or her father or mother. It is as much the obligation of the father to maintain a minor child as that of the mother.
The Court reiterated that it was not the law that howsoever affluent the mother may be, that it was the sole obligation only of the father to maintain the minor.
Amarendra Kumar Paul v. Maya Paul[9]
Held:
The relevant provisions of CrPC apply only when there is neglect or refusal to maintain despite having sufficient means, and a case for grant of maintenance under Section 125 CrPC arises only when an individual, despite having the sufficient means and resources, still chooses to neglect or refuses to maintain his legitimate/illegitimate minor children who are not able to maintain themselves.
Noor Saba Khatoon v. Mohd. Quasim[10]
Held:
The benefit under Section 125 of CrPC shall be available to all children irrespective of their religion. The right under Muslim Women (Protection of Rights on Divorce) Act, 1986 is that of the mother to claim for maintenance of her children for a period of two years from their date of birth, and such shall be distinct and independent of the right to maintenance under CrPC to minor children who are not able to maintain themselves.
Thus, maintenance under CrPC & 1986 Act runs parallel i.e., Muslim children are entitled to maintenance under CrPC.
Jagdish Jugtawat v. Manju Lata[11]
Held:
Although Section 125 of CrPC does not fix liability of parents to maintain children beyond attainment of majority, but the right of a minor girl for maintenance from her parents after attaining the age of majority till her marriage has been recognized under Section 20(3) of Hindu Adoptions and Maintenance Act still exists.
Therefore, on a combined reading of the two provisions, it shall be held justified to grant maintenance under Section 125 to the daughter, even after her attaining majority but till her marriage, to avoid multiplicity of proceedings.
Wali Ram v. Mukhtiar Kaur[12]
Held:
The expression ‘is unable to maintain himself or herself out of his or her own earnings or other property’ is more in the nature of a proviso to the first part of Section 20(3), which imposes, in most unequivocal terms, an obligation on the father or the mother regarding their unmarried daughter or infirm or aged parents, as the case may be.
It is therefore, for either the father or the mother of the child, to establish the fact that his or her case falls under the said proviso of Section 20(3) of Hindu Adoptions and Maintenance Act. It does not seem to be the intention of the Act that a presumption of ability to earn and maintain herself should, in the case of a Hindu girl, be raised from her bodily health or age alone.
Jasbir Kaur Sehgal v. Distt. Judge, Dehradun[13]
Held:
Under the provisions of Hindu Adoptions and Maintenance Act, 1956 it shall be the obligation of the individual to maintain his unmarried daughter if she is not able to maintain herself. In instances where the wife has no income of her own, it shall be the obligation of the husband to maintain the wife and her unmarried daughters, even if they are living with the wife.
Vaijayantabai v. Keru Anant Gangarde[14]
Held:
An unmarried daughter who is an adult cannot claim maintenance by way of marriage expenses under Section 20(3) of the Act. A minor daughter shall be entitled to maintenance till date of attainment of her majority. However, the court has differed from such opinion in a more recent judgement of Kusum v. Krishnaji.
Kusum v. Krishnaji[15]
Held:
Every father shall be under the obligation to maintain his daughters and even to get them married under the statute. The very obligation to maintain his daughter and get her married is said to be personal in character, and shall arise from the very existence of the relationship between a father and a daughter. Even if a father who lives separately from his wife, he cannot escape the liability to maintain his daughters.
The law envisages that a father shall be legally bound to make provision for the marriage expenses of the daughters as a part of maintenance. Therefore, if the wife of such person has spent for the performance of the marriage of their daughter, the husband would certainly be held liable to reimburse the wife for bearing such expenses. He cannot escape his liability in any case.
- Balbir Singh v. Hardeep Singh 1976 Cri LJ 1136 (P&H) (FB) ↑
- V. Kameswaramma v. V. Raghu Ramulu (1982) 2 AP LJ 44 (SN) ↑
- Ramesh Chander v. Veena Kaushal 1979 Cri LJ 3 (SC), (Petition for Special Leave to Appeal (Crl.) No. 1268 off 1977, decided on April 27, 1978/August 22, 1978) ↑
- Rajnesh v. Neha (2021) 2 SCC 324, (Criminal Appeal No. 730 of 2020, decided on November 4, 2020) ↑
- Bakulabai v. Gangaram (1988) 1 SCC 537, (Criminal Appeal No. 579 of 1986, decided on January 27, 1988) ↑
- Jasbir Kaur Sehgal v. District Judge, Dehradun (1997) 7 SCC 7, (Civil Appeal No. 5803 of 19987 decided on August 27, 1997) ↑
- Jagdish Jugtawat v. Manju Lata (2002) 5 SCC 422, (SLP (Crl.) No. 905 off 2001, decided on April 23, 2002) ↑
- Padmja Sharma v. Ratan Lal Sharma (2000) 4 SCC 266, (Civil Appeal No. 2462 of 1999, decided on March 28, 2000) ↑
- Amarendra Kumar Paul v. Maya Paul (2009) 8 SCC 359, (Criminal Appeal No. 1413 of 2009, decided on August 4, 2009) ↑
- Noor Saba Khatoon v. Mohd. Quasim (1997) 6 SCC 233, (Criminal Appeal No. 1197 of 1995, decided on July 29, 1997) ↑
- Jagdish Jugtawat v. Manju Lata (2002) 5 SCC 422, (SLP (Crl.) No. 905 of 2001, decided on April 23, 2002) ↑
- Wali Ram v. Mukhtiar Kaur 1968 SCC OnLine P&H 220 : ILR (1969) 2 P&H 534 : PLR (1968) 70 P&H 1112 : AIR 1969 P&H 285 : 1968 Cur LJ 918, (R.S.A. 732 of 1967, Decided on August 28, 1968) ↑
- Jasbir Kaur Sehgal v. Distt. Judge, Dehradun (1997) 7 SCC 7, (Civil Appeal No. 5803 of 1997, decided on August 27, 1997) ↑
- Vaijayantabai v. Keru Anant Gangarde 1991 SCC OnLine Bom 97 : (1992) 1 Mah LJ 417 : (1991) 2 Bom CR 336 : (1991) 93 Bom LR 1004 : (1993) 1 HLR 45, [F.A. No. 147 of 1978 (Bombay) and F.A. No. 722 of 1989, Decided on February 19, 1991] ↑
- Kusum v. Krishnaji 2008 SCC OnLine Bom 28 : (2008) 2 Mah LJ 314 : AIR 2008 Bom 185 : (2008) 66 AIC 307 (Bom) : (2008) 2 Bom CR 24 : (2008) 5 AIR Bom R 79 : (2008) 3 CCC 43 : (2008) 2 DMC 113, (F.A. No. 191 of 2006, Decided on January 15, 2008) ↑