The Hindu Adoption and Maintenance Act, 1956 (hereinafter ‘the Act’) is an important personal law that aims to amend and codify the law relating to adoptions and maintenance among the Hindus. Apart from the Hindus, this act also applies to Buddhists, Jains, Sikhs and any other person who is not a Muslim, Christian, Parsi or Jew.
In this article, we shall be dealing with the consideration the Court takes into account in fixing the amount of maintenance for aged or infirm parents, wife and children under the Act.
Meaning of Maintenance
- provision for food,
- medical attendance and treatment
- in the case of an unmarried daughter, maintenance also includes reasonable expenses for her marriage.
This Act provides rules for the maintenance for wife, children, aged or infirm parents, widowed daughter-in-law and dependents. But we shall be focusing on maintenance for wife, children and aged or infirm parents.
The main reason behind the provision of maintenance is to provide financial support to a divorced wife or aged parents or minor children or any other dependents for their well-being and for their sustenance needs.
Maintenance for women
The Act provides that a Hindu wife is entitled to be maintained by her husband throughout her lifetime.
A Hindu wife can live separately while getting the alimony from her husband if:-
- her husband is guilty of desertion, i.e., abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her;
- her husband 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;
- her husband has any other wife living;
- her husband keeps a concubine in the same house in which his wife is living;
- her husband habitually resides with a concubine elsewhere;
- her husband has converted to another religion and ceased to be a Hindu;
- if there is any other cause justifying her living separately.
A Hindu wife is not entitled to maintenance if:-
- she was unchaste, meaning, she engaged in illicit relations or had an extramarital affair;
- she ceases to be a Hindu by converting to any other religion.
Maintenance of children and aged
The Act provides that a Hindu is obliged under this Act to maintain her/his children and aged or infirm parents if they are unable to maintain themselves out of their own earnings.
Here, the term ‘children’ means –
- minors who are below the age of 18 years;
- the term includes legitimate and illegitimate children.
Also, the term ‘parent’ includes a childless stepmother.
Amount of Maintenance for wife, children, and aged or infirm parents
The Act specifically mentions that it shall be the discretion of the Court to determine whether the claimant is entitled to maintenance or not and if so, what.
Once the Court is satisfied that the claimant is entitled to the allowance, it needs to take the next step which is to decide the amount to maintenance that shall be awarded to the claimant.
The Act lists out the considerations the Court takes into account to decide the amount of maintenance to be awarded to the wife, children, aged or infirm parents, widowed daughter-in-law and dependents. But we shall focus on the considerations for wife, children and aged or infirm parents.
The Act provides the following considerations that the Court shall take into account to decide the amount of maintenance to be awarded to the wife, children and aged or infirm parents –
1. The position and status of the parties:
The status and position of the parties include their financial and social status and any other status which must be taken into account.
In all the cases, the means and capacity of the party against whom the award of maintenance has to be made must be taken into account. The Court must evaluate the earning potential of that party and accordingly fix the amount of maintenance after considering other factors. Apart from the status and position of the party against whom the award of maintenance has to be made, the status and position of the claimant(s) shall be taken into account.
In the claimant is a wife, her financial and social status must be considered. If the wife is earning, the husband cannot deny his liability to maintain her if her income is not sufficient to sustain her. In the case of the claimant(s) being children or aged parents, their financial and social status must be considered. Unmarried daughter above the age of 18 years can claim maintenance. The amount of maintenance fixed by the Court must suit the position and status of the aged parents or the children.
2. The reasonable wants and claims of the claimant:
The claims of the claimant(s) who may be the wife or children or the aged parents must be reasonable and must match the standards of necessities in their lives. If their claims are not feasible keeping in mind various factors like the earning potential of the party against whom the award of maintenance has to be made, the claimant’s necessities, etc., or if their claims are not reasonable and excessive and redundant, the Court shall not entertain such claims.
3. Whether the claimant is justified in living separately if she is doing so:
The wife is entitled to the claim of maintenance even if she lives separately but only if she is justified in doing so. The grounds on which a Hindu wife can live separately while being maintained by her husband are mentioned above under the sub-heading, ‘Maintenance for women’. Only when she satisfies any of those grounds and the Court finds her justified, the Court shall award maintenance to her. The same rule is applicable to children and aged parents who live separately from the party against whom the award of living expense has to be made.
Though the Act does not provide any grounds on which the children and the aged parents shall be justified in living separately but the Court shall consider their reasons for living separately which depend on the facts and circumstances of each case. The Court shall also consider this factor to determine the amount of maintenance because the standards of living and expenses incurred while living with the party against whom the award of maintenance has to be made, may differ from the standards of living and expenses incurred while living separately.
4. The value of the claimant’s property and all sources of their income:
The Court shall consider all the sources of income and the properties of the claimant(s) to decide the amount of maintenance. If Court finds that the income and/or the properties of the claimant(s) is not enough to fulfill their needs, to meet their standards of living and to meet their expenses, the Court shall try to fill the lacuna by accordingly fixing the maintenance amount to support them.
5. The number of persons entitled to be maintained under this Act:
The number of persons entitled to be maintained plays an important role in fixing the amount of maintenance because the earning potential and the status of the party against whom the award of maintenance has to be made should not be ignored. If the number of persons entitled to be maintained is more as compared to the earning potential of the party against whom the award of maintenance has to be made, the Court shall accordingly reduce the maintenance amount and vice-versa.
The claimant(s) whether it be a wife or children or aged parents shall not be entitled to claim maintenance under this Act if they cease to be a Hindu. The amount of maintenance may be changed with a change in circumstances and factors affecting the decision to fix the amount of maintenance.
This article is authored by Tonangi Sanjana Priya, First-Year, B.A. LL.B (Hons.) student at GITAM University, Visakhapatnam
Also Read – Maintenance Of Wife Under Muslim Law
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