Maintenance under HAMA and traditional rights - Family Law I - Hindu Law

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1. Traditional rights to maintenance
2. The wife: section 18
3. The widowed daughter-in-law: section 19
4. Children and aged parents: section 20
5. Dependants: sections 21 and 22
6. Amount and incidental rules: sections 23 to 28
7. Section 144 BNSS and overlapping remedies
8. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Two kinds of obligation. Some people must be maintained whether or not the person liable has any property: wife, minor children and aged parents. This is a personal obligation. Others, the “dependants”, can claim only out of an estate: the father-in-law's coparcenary property, or the estate of a deceased Hindu in the hands of his heirs. HAMA keeps this old division. Organise your answer around it.

1. Traditional rights to maintenance

Classical Hindu law treated maintenance as a duty arising from the relationship itself. Manu declared that aged parents, a virtuous wife and an infant son must be maintained even by doing a hundred misdeeds. This personal duty did not depend on property. Separately, the joint family was bound to maintain its members and their dependants, such as widows of deceased coparceners and unmarried daughters, out of the family property; a widow's maintenance could be made a charge on specific family property. The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 allowed a wife to live apart and still claim maintenance on specified grounds. HAMA repealed and replaced these rules.

Section 3(b) defines maintenance to include food, clothing, residence, education, and medical attendance and treatment; and, for an unmarried daughter, the reasonable expenses of and incident to her marriage.

2. The wife: section 18

Section 18(1): a Hindu wife, whether married before or after the Act, is entitled to be maintained by her husband during her lifetime. Section 18(2) entitles her to live separately without forfeiting maintenance if the husband:

(a) is guilty of desertion, that is, abandoning her without reasonable cause and without her consent, or wilfully neglecting her;
(b) has treated her with such cruelty as causes a reasonable apprehension that living with him will be harmful or injurious;
(d) has any other wife living;
(e) keeps a concubine in the same house or habitually resides with a concubine elsewhere;
(f) has ceased to be a Hindu by conversion; or
(g) there is any other cause justifying her living separately.

Clause (c), which covered a husband suffering from a virulent form of leprosy, is omitted by the Personal Laws (Amendment) Act, 2019, which comes into force on a date the Central Government notifies; check whether it has been notified. Section 18(3): she is not entitled to separate residence and maintenance if she is unchaste or ceases to be a Hindu by conversion.

Section 18 is the remedy of a wife whose marriage subsists. Permanent alimony under section 25 of the Hindu Marriage Act, 1955 is available only on passing a decree in a matrimonial proceeding; a wife who wants maintenance without seeking any such decree must sue under HAMA: Chand Dhawan v. Jawaharlal Dhawan, 1993 INSC 216, (1993) 3 SCC 406.

3. The widowed daughter-in-law: section 19

A Hindu wife, after her husband's death, is entitled to be maintained by her father-in-law, provided she cannot maintain herself out of her own earnings or other property, or, where she has no property of her own, cannot obtain maintenance from the estate of her husband or her father or mother, or from her son or daughter or his or her estate.

Section 19(2) limits the obligation. It is not enforceable if the father-in-law has no means to do so from any coparcenary property in his possession out of which she has not obtained a share, and it ceases on her remarriage. The obligation is therefore not personal: it is tied to the family property. After the father-in-law's death, the widow is a dependant under section 21(vii) and claims from his estate.

4. Children and aged parents: section 20

A Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and aged or infirm parents. The duty falls on mothers as well as fathers, and on daughters as well as sons.
A legitimate or illegitimate child may claim maintenance from the father or mother so long as the child is a minor.
The obligation to maintain an aged or infirm parent, or a daughter who is unmarried, extends only so far as they are unable to maintain themselves out of their own earnings or other property.
“Parent” includes a childless stepmother (Explanation). In Kirtikant D. Vadodaria v. State of Gujarat, 1996 INSC 585, (1996) 4 SCC 479, the Court discussed this Explanation while holding that a stepmother may claim under the criminal law only in limited circumstances, such as where she is a childless widow.

5. Dependants: sections 21 and 22

Section 21 lists the dependants of a deceased Hindu: (i) his or her father; (ii) mother; (iii) widow, so long as she does not remarry; (iv) son, son of a pre-deceased son, or son of a pre-deceased son of a pre-deceased son, so long as a minor (a grandson or great-grandson only to the extent he cannot obtain maintenance from the estate of his parents or, for a great-grandson, of his paternal grandparents); (v) unmarried daughter, and the unmarried daughter of a pre-deceased son or of a pre-deceased son of a pre-deceased son, so long as unmarried; (vi) widowed daughter, if unable to obtain maintenance from her husband's estate, her son or daughter, or her father-in-law or his father; (vii) widow of a son or of a son of a pre-deceased son, so long as she does not remarry; (viii) minor illegitimate son; and (ix) illegitimate daughter, so long as unmarried.

Section 22 places the burden on the heirs: they are bound to maintain the dependants out of the estate inherited from the deceased. A dependant who has not taken any share by succession or will can claim, and each heir contributes in proportion to the value of the share taken. An heir who is also a dependant is not liable to contribute beyond what would reduce his own share below what he would receive as maintenance.

6. Amount and incidental rules: sections 23 to 28

Section 23(1). Whether and how much maintenance to award is in the court's discretion, having regard to the factors below.
Section 23(2) (wife, children, aged parents): the position and status of the parties; the reasonable wants of the claimant; if the claimant is living separately, whether that is justified; the value of the claimant's property and income; and the number of persons entitled to maintenance.
Section 23(3) (dependants): the net value of the estate after paying debts; any provision for the dependant under the deceased's will; the degree of relationship; the dependant's reasonable wants and past relations with the deceased; the dependant's own property and income; and the number of dependants.
Section 24. A claimant who ceases to be a Hindu by conversion loses the right.
Section 25. The amount may be altered on a material change of circumstances.
Section 26. Debts of the deceased have priority over dependants' claims.
Section 27. Maintenance is not a charge on the estate unless created by will, decree, agreement or otherwise.
Section 28. Where the estate is transferred, the dependant's right may be enforced against a transferee who has notice of it or who takes gratuitously.

7. Section 144 BNSS and overlapping remedies

Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (old section 125 CrPC) gives a summary, secular remedy to a wife unable to maintain herself, children, and father or mother, against a person with sufficient means who neglects or refuses to maintain them. It applies regardless of religion and is meant to prevent destitution. A wife may pursue it alongside HAMA, sections 24 and 25 of the Hindu Marriage Act, and the Protection of Women from Domestic Violence Act, 2005. In Rajnesh v. Neha, 2020 INSC 631, (2021) 2 SCC 324, the Court held that parallel claims are maintainable, but the claimant must disclose earlier proceedings and the later court must adjust or set off what has already been awarded. It required both parties to file affidavits of assets and liabilities and held that maintenance runs from the date of the application.

8. Problem

A young widow with no income claims maintenance from her father-in-law. Her husband left no property. The father-in-law owns only a house he built with his own earnings.

Issue. Is the father-in-law bound to maintain her under section 19?

Law. Section 19(1) and (2).

Application. She meets section 19(1): she cannot maintain herself and has no estate of her husband to look to. But section 19(2) makes the obligation enforceable only out of coparcenary property in his possession. A self-acquired house is not coparcenary property.

Conclusion. Her claim against him under section 19 fails. She will be a dependant under section 21(vii) after his death and can then claim from his heirs out of his estate under section 22.

How this is examined

As an essay: “Discuss the rights of a Hindu wife to maintenance under HAMA” or “Who are dependants entitled to maintenance?” Lead with the personal versus estate-based distinction, then sections 18 to 23 in order, ending with a paragraph on section 144 BNSS and Rajnesh. As short notes: maintenance of widowed daughter-in-law, section 18(2), or dependants.