RIGHT TO ECONOMIC SUPPORT IN HINDU

MARRIAAGE
Submitted by:

Aman Jaisawal, B.A.L.L.B(Hons.)

2nd sem., Roll No. 2308 (Two Thousand Three Hundred and Eight)

Session : 2020-2025

Submitted to :

Mrs. Pooja Srivastava

Research Associate/Teaching Assistant

This Final draft is submitted in the fulfilment of the topic

“RIGHT TO ECONOMIC SUPPORT IN HINDU MARRIAGE”.

6th JUNE,2021
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
 DECLARATION BY THE CANDIDATE
I, hereby, declare that the work reported in the B.A. L.L.B (Hons.) Project Report titled
“RIGHT TO ECONOMIC SUPPORT IN HINDU MARRIAGE” submitted at
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA is an authentic record of my
work carried out under the supervision of Mrs. Pooja Srivastava, Professor of Family Law. I
have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.

Aman Jaisawal (2308)

B.A. L.L.B(Hons.), 2nd Semester
CNLU, Patna

2
 ACKNOWLEDGEMENT

I would like to show my gratitude towards my guide Mrs. Pooja Srivastava, Professor of
Family Law, under whose guidance, I structured my project.
I owe the present accomplishment of my project to everyone, who helped me immensely
with materials throughout the project and without whom I couldn’t have completed it in the
present way.
I would also like to extend my gratitude to my friends and all those unseen hands that helped
me out at every stage of my project.

THANK YOU

AMAN JAISAWAL
2nd Semester.
CNLU, PATNA

3
 AIMS AND OBJECTIVES

1. The researcher wants to discuss about prior status of right of Maintenance before any
act.
2. The Reseracher will also discuss the two main types of Maintenance given to women.
3. The Researcher will discuss the underlying sections of Hindu Marriage Act 1955 and
The Hindu succession Act, 1956 from where women get their economic rights.

HYPOTHESES

1. Alimony comes as a relief to those who cannot maintain themselves owing to their
personal reasons and conditions, provisions of the act has enabled many to maintain
themselves.
2. Section 125 of cr.P.c. provides for stringent means to comply with the provisions of
economical support irrespective of religion.

RESEARCH METHODOLOGY
The researcher will do doctrinal type of research in which he will go through the primary as
well secondary sources.These sources will mainly include Library research,research done
upon some text writngs or documents,articles,books as well as online journals and research
relating to the subject .The researcher through this methodology will be able to get an exact
picture of the all the questions that may arise. The project is an intensive one so this method
is sufficient to address the findings and to arrive at concrete conclusions.

LIMITATIONS OF THE STUDY

The researcher has monetary and time limitations in completing this project. The researcher also
faced territorial restriction due to the covid-19.

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 TABLE OF CONTENTS

DECLARATION BY THE CANDIDATE…………….………………………………………2

ACKNOWLEDGEMENT……………………………………………..……………………….3

RESEARCH OUTLINES…………..……………………………………………….…………4

 AIMS & OBJECTIVES…………………………………………………………….……4

 RESEARCH METHODOLOGY………………………………………………………..4
 LIMITATIONS OF THE STUDY………………………………………………………4
1. INTRODUCTION………………………………………………………………6-7

2. MAINTENANCE UNDER HINDU MARRIAGE ACT,1955.......................8-13

 TYPES OF MAINTENANCE…………………………………………………….8-10

 OBLIGATION TO MAINTAIN WIFE………………………………………..

…….11

 OBLIGATION TO CHILDREN & PARENTS………….………………………12-13

3. MAINTENANCE UNDER HINDU ADOPTION & MAINTENANCE

ACT,1956…………………………………………………………………….………..14-19

4. STATUS OF WIFE OF A HINDU JOINT FAMILY……………………...20-21

5. MAINTENANCE UNDER SEC.125OF Cr.P.C……….……………….…..22-23

6. CONCLUSION…………….………………………………………………..…24-25

BIBLIOGRAPHY…………………………………………..…………………..…….26

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 INTRODUCTION
Maintenance statute in India is that they are based not on the concept of equal economic
partnership of husband and wife, but on the concept of maintenance as gratis or at best an act
of compassion. This is revealed by the phrases adopted by the enactments in the first
category: 'having regard to ... income and the other property of the applicant' (Section 25,
Hindu Marriage Act, 1955); coming to the Acts in the second category, under Cr. P.C, a wife
who is 'unable to maintain herself' can claim maintenance. The object of the Act is to prevent
starvation or destitution.

Hindu Adoptions and Maintenance Act 1956 (HAMA) also says that a court, while granting
maintenance, should have regard to 'the value of the claimant's property and any income
derived from such property, or from the claimant's own earnings, or from any other source.

Another feature of the laws of maintenance is that maintenance is conditional upon certain
norms of behaviour. Hindu Marriage Act 1955 (HMA), require that the wife in whose favour
the maintenance has been granted should be chaste and should not remarry. Cr. P.C requires
the wife not to be 'living in adultery', while Hindu Adoption and Maintenance Act, 1956
imposes the condition that she remains chaste and not cease to be a Hindu by conversion to
another religion. This position may be compared to that of a widow who succeeds to the
property of the husband on his death. She does not forfeit her right in the property either by
subsequent unchastity or by remarriage.

The above mentioned provisions of various maintenance laws, explicitly reveal that
maintenance right of the female is not absolute but a conditional one; it points out the
coercive nature of such prescriptions. It notes that the economic dependency of the wife
during marriage is perhaps the surest ‘guarantee’ that she will have need for support after
separation.

However, the ability of a wife, upon dissolution or breakdown of-the marriage, to continue
to enjoy the privilege of, or perhaps more accurately, to remain in the condition of

6
dependency may depend not upon this need, but upon a favorable assessment of the
propriety of her personal conduct. Thus, to the moral standards that prescribe contemporary
norms of marital conduct for both spouses, the law adds an element of financial coercion
based upon individual behaviour or 'worthiness' that is applied only against the wife.

The prevailing norms of maintenance do not take into consideration a divorced woman's loss
of career opportunities or late entry into profession on account of marriage or because of the
custody of children born out of the distorted wedlock.

Maintenance is in the nature of a personal right and is liable to be defeated on the death of
the person under obligation to provide maintenance, unless a charge had been created on the
immovable property. (By definition, whenever immovable property is made to secure the
payment of money, and it does not amount to a mortgage; a charge is said to have been
created.) The amount that is granted as maintenance depends largely on the discretion of the
judge and its realization in civil cases is affected by the whims of the husband, which proves
torturous to the claimant. Mounting inflation is not kept in view and the maintenance granted
by courts quickly gets reduced in real value. It is unrealistic to expect a claimant to approach
the courts frequently for enhancement of maintenance.

Under the present chapter an attempt has been made to ascertain the nature and scope of the
alimony and maintenance under Hindu Marriage Act 1955 and other enactments like Hindu
Adoption and Maintenance Act, 1956 and under Section 125 of the Code of Criminal
Procedure, 1973 and an endeavour has been made to locate the anomalies and the
insufficiency of maintenance to nurture the lives of the deserted helpless females and in
addition to bring up their lives with the children as the case may be, and emphasize has been
laid on the recent Supreme Court decision in which maintenance was denied to the wife
because her marriage was void in the eyes of law.

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 MAINTENANCE UNDER HINDU MARRIAGE ACT,1955

Maintenance as a concept when considered from the point of view of law refers to the kind
of financial assistance given to either of the litigating parties on an application made by them
and only through an order passed by the court having jurisdiction to do so and upon
execution of decree in this regard.

It is often referred to as “alimony” or a kind of monetary support from the spouse i.e. spousal
assistance. Maintenance on the other hand, is an act of bearing the financial expenses or
reducing the burden of the spouse whose burden increases and economical position gets
materially changed on the decree of divorce.

Further, the main purpose of granting maintenance is to maintain the standard of living of
the spouse equivalent to that of the other spouse and in accordance with status prior to the
separation. It is granted during the proceeding of decree or after the decree of divorce and
ceases to exist on the death or remarriage of the alimony holder. The spousal maintenance is
determined on the existence of various factors by the court as follows: 1

 No separate source of income. The most important factor to be considered before

granting maintenance or alimony is to check whether the spouse seeking maintenance
has any separate source of income or not or is solely dependant on the income of
his/her spouse.
 Standard of living of both the litigating parties before separation.
 Expenses required to maintain children.
 Requirement to maintain the same standard of living of the spouse as it was before
the separation.
 Skills, capabilities and educational background of the spouse to earn his/her living
and maintain themselves etc.

Types Of Maintenance

1
Divya Rai, https://blog.ipleaders.in/concept-of-maintenance-in-hindu-marriage-act-1955.

8
On consideration of factors by the competent court, maintenance can be granted on the
following basis-2

Temporary Maintenance- It is also referred to as maintenance pendente lite which is awarded

by the courts during the continuation of proceedings of the divorce. The purpose is to meet
the necessary and immediate expenses of the spouse who is a party to the proceedings. On
satisfaction, the court may grant it. Section 24 of Hindu Marriage Act,1955 deals with this
kind of maintenance. Further can be claimed under Section 125(1) of CrPC.

Permanent Maintenance- As the term suggests, it refers to the granting of a sum on a

periodical basis or on a continued basis once the proceedings have been disposed of. Section
25 of Hindu Marriage Act, 1955. Either of a spouse is entitled to receive it.

Interim Maintenance:

‌When the wife file petition for her maintenance then Court may award her interim
maintenance. The husband must have to pay the maintenance. Interim maintenance is
awarded by Court if wife literally has no source of income to maintain herself. The amount
of maintenance depends on the discretion of Court that means not pre-decided that how
much maintenance should be provided but the amount of maintenance should fulfill all the
necessity of wife to maintain herself.

And the Interim maintenance is provided to wife till the date of claim during the processing
of diverse and after the divorce too.

Permanent Maintenance:

In case of divorce the husband uses to pay his wife for her maintenance that is known as
Permanent Maintenance. The court can order to husband to pay the maintenance to his wife
and the amount of maintenance is determined and decided through the petition of
maintenance. ‌The husband is bound to pay amount monthly.3

2
Ibid.
3
Supra 1, at 21.

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However if there are any change in the circumstances of wife, she may not be eligible for
maintenance. Without any effect on right to claim maintenance, a wife has right to live
separate from her husband.

Circumstances where wife can live separately from her husband:

 ‌When husband has extra marital affair.

 Husband behavior is cruel and aggressive toward the wife.
 The husband has abandoned the wife without any reasonable cause.
 Religion conversion

When wife is not entitled to claim maintenance:

 ‌When the wife gets religion conversion from Hindu to other religion.
 When wife has extra physical relationship with another man or she is guilty of
adultery.
 When the wife remarried after the divorce.

The factors which are under the consideration before fixing the maintenance amount are:

 ‌Whether wife need the maintenance amount.

 The position and status of the husband and the wife.
 Justified reasons on living the wife separately.
 The total property and income of individuals separately, both of husband and wife.
 The expenses of their own personal and individual of husband and wife.

How the Maintenance is claimed under the Hindu law.4

 In family court, a wife is required to file a Maintenance Petition, which has

appropriate jurisdiction to deal with the matters. The maintenance petition is filled
with required necessary documentary.
 Required documents: Affidavit and Income Relating Documents.

4
article/2211/Right-of-Hindu-Wife-To-Maintenance-Under-Hindu-Adoption-And-Maintenance-Act.

10
Obligation To Maintain Wife

Section 24 and Section 25 of the said act deals with the provisions of allowing pendente lite
and permanent maintenance respectively. In Dr. Kulbhushan v/s Raj Kumari and Anr, the
court while deciding the amount of maintenance observed that it is determined based on the
facts of each case and declared that if the court enhances or moulds the amount of
maintenance, then such a decision would be justified. It was further held in this case that it
would be fair to provide wife with 25% of husband’s net salary as maintenance.

Under Section 24 of the act if the court considers fit and is satisfied that either wife or
husband does not have an independent income, then it can order the respondent to pay the
maintenance to the petitioner in accordance with the provisions of this Section. Thus, the
claimant can be a husband as well.

Further, according to the provisions of Section 25 of the Act, which deals with the granting
of alimony on a permanent basis, the court may on the application made by the respondent ,
order to provide for maintenance either in the form of periodical payments or a gross sum to
be provided. Thus, in this case as well the respondent can either be a wife or a husband.

The purpose of interpreting the provision in this way is to avoid the discrimination because
both husband and wife are equal in the eyes of law.

Delhi High Court recently in the case of Rani Sethi v/s Sunil Sethi, ordered
wife( respondent) to pay maintenance to her husband (petitioner) of Rs 20,000 and
Rs.10,000 as litigation expenses. Further a Zen car was ordered to be given for the use of the
petitioner.5

Wife on being aggrieved by the same order approached the High Court, where the scope of
Section 24 of HMA was construed and it was held that the purpose of this Section to provide
support to the spouse who is incapable of earning his/her independent income.

Further it was held that the term “support” shall not be construed in a narrow sense and
thus, it includes not only bare subsistence. It aims to provide a similar status as that of the
5
https://www.scconline.com/blog/post/2019/01/04/maintenance-wife/.

11
respondent spouse. Thus, considering all the facts and circumstances, the appeal of wife was
dismissed.

Though Section of the above said Act provides sufficient right to both husband and wife to
move an application before the court for seeking maintenance, if they do not have an
independent source of income and have been solely dependant upon his/her spouse. But this
Section cannot be invoked in such a manner as to where husband though capable of earning
does not continue to do so intentionally for the sole purpose of depending on his wife. In
such a case husband cannot move an application for seeking maintenance. This was held by
the Madhya Pradesh High Court in the case of Yashpal Singh Thakur vs Smt. Anjana Rajput
where husband incapacitated himself by stopping to run an auto rickshaw. Hence, where a
person intentionally incapacitates himself he loses the opportunity to file an application for
seeking maintenance.

Obligation To Maintain Children And Parents

Section 26 of the same act deals with the custody, maintenance and education of minor
children. Court may, as it considers necessary and deems fit, from time to time pass interim
orders in this regard and at the same time has the power to revoke, suspend or vary such an
order. Obligation to maintain lies on both father and mother of the child or on either of the
parents as ordered by the court. Section 20 of Hindu Adoption and Maintenance Act, 1956
lays down an obligation on a hindu male or female to maintain their legitimate/ illegitimate
minor children and aged/ infirm parents, the amount of which is to be determined by the
competent court on the following factors-:6

 Economic position and status of the litigating parties.

 Reasonable wants and needs of the parties.
 Dependence of the parties, etc.

6
Ibid.

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In Sukhjinder singh saini v/s Harvinder kaur, certain observations were made by the Delhi
High Court while dealing with the issue of deciding the maintenance to be granted for a
child:

 Both the parents have a legal, social and a moral obligation to maintain their children
and provide them with the best standard of living, depending on the financial footing
of the parties.
 They are equally obligated to provide means for best education.
 It was further held that even if the child is living with the spouse whose income is
sufficient enough to maintain the child cannot be taken as a good ground by the other
spouse of not maintaining the child or taking care of the child’s welfare.

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 MAINTENANCE UNDER HINDU ADOPTION AND MAINTENANCE ACT,1956

Maintenance of Wife: Section18 of the Hindu Adoptions and Maintenance Act, 1956 deals
with the maintenance and separate residence of wife.

(1) a Hindu wife, whether married before or after the commencement of this Act, shall be
entitled to be maintained by her husband during her life time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her
claim to maintenance

(a) If he is guilty of desertion, (b) if has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injuries to live with her husband. (c) If he
is suffering from a virulent form of leprosy. (d) If he has any other wife living. (e) If he
keeps a concubine in the same house in which his wife is living or habitually resides with a
concubine elsewhere. (f) If he has ceased to be a Hindu by conversion to another religion.
(g) If there is any other cause justifying living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Interim maintenance: In Purusottam Mahakud v. Smt. Annapurna Mahakud, Supreme Court

held that the right to claim interim maintenance in a suit is a substantive right under section
18 of the Act. Since no form is prescribed to enforce the said right civil court in exercise of
its inherent power can grant interim maintenance.

Maintenance pendente lite: After considering the status of the husband the wife should be
awarded maintenance pendente lite, even though there is no separate provision in the Act for
grant of maintenance pendente lite. The obligation to maintain the wife remains on the
husband even though the wife might be living separately.

Maintenance to wife/widow: Widow has no charge on separate property of husband. Neither

section 18 relating to maintenance of wife nor section 21 dealing with widow provides for
any charge for maintenance on separate property of husband.

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Right of Separate residence: (i) the wife had been living alone and all the children had been
brought up by her without any assistance and help from the husband and there was a clear
case of desertion, the wife was entitled to separate residence and maintenance. (ii) The
thoughtless action of the husband of evicting the wife from the house where she had been
living in collusion with the purchasers of the house and the police inflicted a deep wound on
her amounting to cruelty, the wife was entitled to live separately and claim maintenance; (iii)
The claim for maintenance by a wife can also be sustained under clause (g) even on a ground
covered by one or other clauses i.e. clause (a) to (f) of section 18(2) substantially but not
fully. Merely because the wife fails to strictly prove the specific grounds urged by her, she
cannot be denied relief.

B. Maintenance of widowed daughter-in-law. Section 19 of the Hindu adoption and

Maintenance Act, provides that a widowed daughter-in-law is entitled to be maintained by
her father–in –law. Section 19 run as follows;

(1) A Hindu wife, whether married before or after the commencement of this Act, shall be
entitled to be maintained after the death of her husband by her father-in-law provided and to
the extent that she is unable to maintain herself out of her own earnings or other property.

In Raj Kishore Mishra v.Meena Mishra, it was held that where from the estate of the parents,
the daughter-in-law can maintain herself; question of father-in-law does not arise.

C. Maintenance of children and aged, infirm parents. Under Section 20 of the Act not merely
the father but mother is also under a legal obligation to maintain Son or illegitimate son.

D. Maintenance of dependants: Section 21of the Hindu Adoption and Maintenance Act deals
with the rights of the dependants of the deceased to claim maintenance from the heir of the
deceased.

Section 21 defined dependants: For the purposes of this chapter “dependants” means the
following relatives of the deceased.

his or her father.

15
his or her mother,

his widow, so long as she does not re-marry.

(iv) his or her son or the grandson or great grandson, so long as he is in minor, provided and
to the extent that he is unable to obtain maintenance, in the case of a grandson from his
father’s or mother’s estate, and in the case of a great grand-son, from the estate of his father
or mother or father’s father or father’s mother.

His or her unmarried daughter or the unmarried granddaughter or the unmarried great
granddaughter, so long as she remains unmarried, provided and to the extent that she is
unable to obtain maintenance, in the case of a grand-daughter from her father’s or mother’s
estate and the case of a great-grand-daughter from the estate of her father or mother or
father’s father or father’s mother.

(vi) his widowed daughter, provided and to the extent that she is unable to obtain
maintenance –7

(a) from the estate of her husband, or

(b) from her son or daughter if any, or his or her estate, or

(c) from her father-in-law or his father or the estate of either of them.

(vii) any widow of his son or grandson, so long as she does not remarry provided and to the
extent that she is unable to obtain maintenance from her husband’s estate, or from her son or
daughter, if any, or his or her estate, or in the case of a grandson’s widow, also from her
father-in-law’s estate.

(viii) his or her minor illegitimate son, so long as he remains a minor.

(ix) his or her illegitimate daughter, so long as she remains unmarried.

Maintenance of dependents (Section 22): (1) the heirs of a deceased Hindu are bound of
maintain the dependants of the deceased out of the estate inherited by them from the
7
article/2211/Right-of-Hindu-Wife-To-Maintenance-Under-Hindu-Adoption-And-Maintenance-Act.

16
deceased. A person having concubine and he himself dying after the Act coming into force,
would confer a right to maintenance upon the concubine. Where no property is inherited by
the brothers from their father, they cannot be compelled to contribute for the marriage of
their sister. Where there is no maintenance from the estate of the husband or from her son or
daughter such Hindu widow, is to be taken as dependant of the father-in-law under this
section as section19 would not be having its application to such a case.

Amount of maintenance (Section23): Section 23 of the Act provides the amounts

maintenance which is a person entitled to. (1) It shall be in the discretion of the Court to
determine whether any, and if so what, maintenance shall be awarded under the provisions
of this Act. The amount payable by way of maintenance depends on the facts of each case
and as such, no exception could be taken to the amount fixed by the trial Court as well as the
date from which the maintenance could be claimed. 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.

Maintenance when to be a charge: A dependant’s claim for maintenance under this Act shall
not be a charge on the estate of the deceased or any portion thereof, unless one has been
created by the will of the deceased, by a decree of court, by agreement between the
dependant and the owner of the estate or portion, or otherwise.

Effect of transfer of property on right to maintenance: Where a dependant has a right to

receive maintenance out of an estate, and such estate or any part thereof its transferred, the
right to receive maintenance may be enforced against the transferee if the transferee has
notice of the right or if the transfer is gratuitous; but not against the transferee for
consideration and without notice of the right. 8

Maintenance- Section 18 - Maintenance Of Wife.-9

8
article/2211/Right-of-Hindu-Wife-To-Maintenance-Under-Hindu-Adoption-And-Maintenance-Act.html.
9
https://www.scconline.com/blog/post/2019/01/04/maintenance-wife/.

17
(1) Subject to the provisions of this Section, a Hindu wife, whether married before or after
the commencement of this Act, shall be entitled to be maintained by her husband during her
life time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her
claim to maintenance- (a) if he is guilty of desertion, that is to say, of abandoning her
without reasonable cause and without her consent or against her wish or willfully neglecting
her; (b) if he 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; (c) if he is suffering from a
virulent form of leprosy; (d) if he has any other wife living;.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another religion.‟ Under
the Hindu Adoptions and Maintenance Act, 1956 as it stands today, even if the husband is a
member of a joint family, his wife has no right to maintenance against the relatives of her
husband who is incapacitated and therefore unable to maintain her. Under such
circumstances, the aggrieved woman has only two alternative remedies available to her: i) a
suit for partition in respect of her husband’s estate, or ii) a divorce petition for claim of
maintenance. But, alas, neither of these two alternatives brings any meaningful solace to the
aggrieved woman and her children, in the face of a ruthlessly endless list of cases pending
judicial adjudication in Indian Courts. It is, therefore, necessary to deeply delve into and
critically analyze the prevailing background of law in this regard.

Section 19 - Maintenance of widowed daughter-in-law.- (1) A Hindu wife, whether married

before or after the commencement of this Act, shall be entitled to be maintained, after the
death of her husband, by her father-in law: Provided and to the extent that she is unable to
maintain herself out of her own earnings or other property or, where she has no property of
her own, is unable to obtain maintenance- (a) from the estate of her husband or her father or
mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under
sub-section (1) shall not be enforceable if the father-in law has not the means to do so from

18
any coparcener property in his possession out of which the daughter-in-law has not obtained
any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.‟

In Raj Kishore Mishra v. Smt. Meena Mishra, 10 Court held that the obligation of father-in-
law shall not be enforceable if he has no means to maintain his daughter-in-law from any
coparcenary property in his possession out of which the daughter-in-law has not obtained
any share. The object of this Section is to make it clear that the widowed daughter-in-law
can claim maintenance from her father-in-law only where she is unable to maintain herself
out of her own property or from the estate of her husband, father, mother, son or daughter. It
is also provided that the father-in-law shall be under no obligation to maintain his daughter-
in-law except in cases where there is some ancestral property in his possession from which
the daughter-in-law has not obtained any share.

STATUS OF WIFE OF A HINDU JOINT FAMILY & HINDU COPARCENER

10
https://www.scconline.com/blog/post/2019/01/04/maintenance-wife/.

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Status of Wife Of A Joint Hindu Family :

A joint Hindu family comprises of all persons lineally descended from a common ancestor,
and includes their wives and unmarried daughters as well. In classical Hindu law, joint
Hindu family was treated to be a normal condition of a Hindu family, it must be, noted that
this idea of joint-ness of a Hindu family is separate from any notion of joint-ness of property
ownership. Mulla’s Principles of Hindu Law clarifies that “the existence of joint estate is not
an essential requisite to constitute a joint family; and a family which does not own any
property may nevertheless be joint. Authoritative judgments have explained this point as
follows: “Hindus get a joint family status by birth, and the joint family property is only an
adjunct of the joint family.” However, where there is joint estate and subsequently the
members become separate in estate, the family ceases to be a joint Hindu family.

Status Of Wife of A Coparcener11:

The Hindu Succession Act (HSA), 1956 was amended in 2005 [Hindu Succession
(Amendment) Act, 2005 (39 of 2005)] conferring coparcener property rights in favour of
daughters. The earlier Law (HAS, 1956) had conferred coparcener rights upon male
members only. This has altered the fundamental framework of Mitakshara coparcener and a
daughter is now inter alia capable of acquiring an interest in the coparcener property,
demand a partition of the same, and dispose of the same through testamentary disposition.
The HAS, 1956 conferred limited rights upon those members of joint family who entered
into it through marriage, whereas the 2005 Amendment confers coparcener rights upon those
members who are born in the family and, therefore, they enjoy coparcener property rights by
birth. Those members who enter into joint family through marriage enjoy rights which are
restricted i) to maintenance out of its funds, ii) right of residence in the family house, etc. n
the light of the above, it can be said that the wives married into the joint Hindu family are
denied any other coparcener property rights (beyond maintenance and residence) which are
11
Ibid.

20
available to daughters who are born in the family. On the other hand, the share of a daughter
12
would diminish the share of wife married to a coparcener.

MAINTENANCE UNDER SECTION 125 OF Cr.P.C

12
https://www.scconline.com/blog/post/2019/01/04/maintenance-wife/.

21
According to this Section magistrate of first class has the power to order the person to
provide monthly allowance to:

 His parents,
 Wife, or
 To his legitimate or illegitimate minor children who are unable to maintain
themselves
 Legitimate or illegitimate major child not being a married daughter, who are unable
to maintain themselves due to any physical injury or abnormality
 Married daughter till she attains her majority if her husband is unable to maintain her
 His or her father or mother if they are unable to maintain themselves,whoever
neglects or refuses to do so.

Magistrate may issue warrants for levying the amount due, in case of non-compliance with
the order. Making of an application is mandatory to the court for levying such amount within
a period of one year from the date on which the amount was due, otherwise warrant cannot
be issued.

Where in case a wife is living separately without any sufficient reason or is living in adultery
or they have separated through a mutual consent, then in such cases she is not entitled to
receive allowance.13

JUDGEMENT TO SECTION 125 Cr.P.C14

Mohd Ahmed Khan V. Shah Bano Begum– This has been a landmark case in the history
which clearly dealt with the clarifying the scope of Section 125 and which proved to be a
milestone specifically in the struggle for the rights of muslim women. Facts of the case are
as follows:

 In the year 1975 , at the age of 62 years , with 5 children, shah bano was disowned
by her husband.

13
Ibid.
14
article/2211/Right-of-Hindu-Wife-To-Maintenance-Under-Hindu-Adoption-And-Maintenance-Act.

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  Her husband Mohd Ahmed refused to grant her maintenance on the ground that there
was no specific provision in the muslim law for providing maintenance to muslim
divorced women.
 She had no separate source of income and at this age it was impossible for her to
maintain herself and to take care of the welfare of her children at the same time. Thus
she filed a suit claiming maintenance.

Main issue that raised before the court was whether Section 125 applies to muslim women or
not and whether uniform civil code applies to individuals of all religions or not. Supreme
court on the following reasons rejected Mohd Ahmed’s plea of not granting alimony: 15

 The court held that without any discrimination, Section 125(3) applies to muslim
women too.
 The concept of muslim husband’s responsibility towards his wife only till the iddat
period cannot suffice to contemplate the rule laid down in Section 125 CrPC.
 Merely a triple talaq cannot take away the right of divorced muslim women from
seeking maintenance if she is not in a condition to maintain herself and her children
because of no independent source of income.

CONCLUSION

15
https://blog.ipleaders.in/concept-of-maintenance-in-hindu-marriage-act-1955.

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The judgments delivered by various High Courts and Supreme Court from time to time cast
an unavoidable legal obligation on the father-in-law to maintain his daughter-in-law in an
unfortunate event of inability of daughter-in-law’s husband to maintain her. This judicial
thinking finds full support from legal luminaries. The above thinking lends full support to
the amendments proposed by The Law Commission of India in its 252nd Report (6th
January, 2015) titled “Right of the Hindu Wife to Maintenance: A relook at Section 18 of the
Hindu Adoptions and Maintenance Act, 1956 to make father-in-law obliged to pay
maintenance to his daughter-in-law, whose husband is unable to provide maintenance to her
under Hindu Adoptions and Maintenance Act, 1956. The researcher fully agrees with the
proposed Amendment.

Another feature of the laws of maintenance is that maintenance is conditional upon certain
norms of behaviour. Hindu Marriage Act 1955 (HMA), require that the wife in whose favour
the maintenance has been granted should be chaste and should not remarry. Cr. P.C requires
the wife not to be 'living in adultery', while Hindu Adoption and Maintenance Act, 1956
imposes the condition that she remains chaste and not cease to be a Hindu by conversion to
another religion. This position may be compared to that of a widow who succeeds to the
property of the husband on his death. She does not forfeit her right in the property either by
subsequent unchastity or by remarriage.

From the plethora of judgements it can be concluded that Section 125 of Cr.P.C provides for
stringent means to comply with the provisions of maintenance. It not only breaks the barrier
of religion which acts as a hurdle in providing justice to people but also provides for equal
protection of law and justice for all irrespective of religion followed by an individual.
Religion cannot overcome the principles of “justice” and “equity”. The concept of
maintenance is interpreted in different ways under different statutory provisions yet the
purpose of it is to grant support. Thus, Code of Criminal Procedure through Section 125
aims at providing individuals following different religions to seek alimony through a
uniform way.

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The above mentioned provisions of various maintenance laws, explicitly reveal that
maintenance right of the female is not absolute but a conditional one; it points out the
coercive nature of such prescriptions. It notes that the economic dependency of the wife
during marriage is perhaps the surest ‘guarantee’ that she will have need for support after
separation.

However, the ability of a wife, upon dissolution or breakdown of-the marriage, to continue
to enjoy the privilege of, or perhaps more accurately, to remain in the condition of
dependency may depend not upon this need, but upon a favorable assessment of the
propriety of her personal conduct. Thus, to the moral standards that prescribe contemporary
norms of marital conduct for both spouses, the law adds an element of financial coercion
based upon individual behaviour or 'worthiness' that is applied only against the wife.

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 BIBLIOGRAPHY
1. ARCHANA PARASHAR, WOMEN AND FAMILY REFORM IN INDIA
2. DALBIR BHARTI, WOMEN AND LAW
3. BARE ACT OF HMA 1955 AND THSA 1956
4. ARTICLES AND BLOGS
5. REFERENCE FROM SCC ONLINE

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