RAYAT COLLEGE OF

LAW
RAILMAJRA
FAMILY LAW
PROJECT REPORT ON

MAINTENANCE OF WIFE

Submitted To : Submitted By:

Ms. Angy Bhardwaj Atin Kumar
(Asst. Prof. of Family B.Com LLB 4th
Law) sem (16611)

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ACKNOWLEDGMENT
I would like to express my special thanks of gratitude to my
management professor MS. ANGY BHARDWAJ for their
able guidance and support in completing my project on
MAINTENANCE OF WIFE She had been very kind and
patient while suggesting me the outlines of this project. Last
but not least, I would like to thank my friends who helped me
a lot in gathering information and guiding me from time to
time in making this project .
Thanks again to all who supported and helped me a lot .

Atin Kumar

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sions of Maintenance of wife under Hindu Adoption
And Maintenance Act, 1956.
A Detailed Study About The Right of Hindu Wife To Maintenance Under Hindu Adoption
And Maintenance Act

“Half of the Indian populations too are women. Women have always been discriminated
against and have suffered and are suffering discrimination in silence. S elf-sacrifice and self
denial are their nobility and fortitude and yet they have been subjected to all inequalities,
indignities, and discrimination”. --Justice K.Rama Swamy in Madhu Kishwar vs. State of
Bihar

Introduction
Marriage is the very foundation of any society. It is sine qua non for family peace and
stability. Being so, legislatures all around the world have given certain rights and imposed
certain obligations on husband and wife which are important constituents of any family. In
ancient times, marriage was considered to be decided by the God and divinity was associated
with it.It is considered to be a sacred social institution. Marriage, according to the Hindu
Law, is a holy union for the performance of religious duties. Marriage is not a contract but it
is a Sanskar or Sacrament‟. The Sanskar ordained that once a maiden is given in marriage,
she must preserve her chastity as much after as before her husband’s death.” According to the
Mahabharata, Wife is not only a source of Dharma, Artha and Kama‟ but also a source of
Moksha‟. In Ramayana, Wife is said to be the very soul of her husband. She is Grihini‟ [the
lady of the House], Sachiva‟ [wise Counselor] and Sakhi [friend of her husband]. She is
Griha Laxmi, Ardhangini (half of him) and Samarajyi‟. Hindu marriage protects a woman by
guaranteeing her legal rights for restitution of conjugal rights in case of desertion, legitimacy
of the children, relief in case of cruelty, adultery, impotency, claim of maintenance and
alimony etc. and order for maintenance to wife who is unable to maintain herself. Husband
and wife are two wheels of a family chariot and it is but natural that in the course of time they
unknowingly enter into a state of discord. Notwithstanding enactment of a plethora of laws,
the male dominated society of India doesn’t allow even a modicum of improvement in the
status of a married woman.

With the result, the Indian home has become the safest place for men to commit violence
against women who are defenceless. To overcome this age-old disability, The Hindu
Marriage Act (HMA), 1955, The Hindu Succession Act (HAS), 1956, The Hindu Adoption
and Maintenance Act (HAMA), 1956 and The Hindu Guardian and Wards Act (HGWA),
1956 have been enacted. The State tries to empower married women through its policies and
laws mentioned above. But due to their ineffective implementation, the Constitutionally-
mandated concept of equality‟ continues to be a mere paper blessing, far divorced from the
touch of reality. So much so Hindu wife is not entitled to maintenance by spouse’s family
under Hindu Adoptions and Maintenance Act, 1956. This paradox is the result of patriarchal
norms and values institutionalized by the State. This leads to creation of inferior image of a
woman which is an age-old tragic reality of Indian society. The Researcher here tries to
adumbrate and justify rights of maintenance of a Hindu married woman, whose husband is
unable to provide maintenance to her under Hindu Adoptions and Maintenance Act, 1956

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Objectives of The Section 18 Of Hama Act, 1956

a. To analyze response of Indian judiciary and legal luminaries to Right of the Hindu wife to
Maintenance under Hindu Adoptions and Maintenance Act, 1956
b. To compare the status of :

i. Right to Maintenance of the Hindu wife u/S.18 of Hindu Adoptions and Maintenance Act,
1956
ii. Right to Maintenance of widowed daughter-in-law u/S.19 of Hindu Adoptions and
Maintenance Act, 1956
iii. Right to Maintenance of a Hindu wife, whose husband is unable to provide maintenance
to her under Hindu Adoptions and Maintenance Act, 1956
c. To study Right to maintenance in classical Hindu law
d. To suggest remedial measures to alleviate sufferings of a woman whose husband is unable
to provide maintenance to her under Hindu Adoptions and Maintenance Act, 1956 in India.

Right To Maintenance Of Hindu Women Under Hindu Adoption And

Maintenance Act

The right of maintenance arises from the concept of an undivided family. The head of such
family is bound to maintain its members, their wives and their children. It is declared by
Manu that “the aged mother and father, the chaste wife, and an infant child must be
maintained even by doing a hundred misdeeds.”

Definition of Maintenance: It is a right to get necessities which are reasonable. Section 3(b)
of the Hindu Adoptions and Maintenance Act, 1956 defines maintenance. According to this
section Maintenance include

(i) in all cases, provision for food, clothing, residence, education and medical attendance and
treatment,
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her
marriage,
(c) “minor” means a person who has not completed his or her age of eighteen years.

In State of Haryana v. Smt. Santra, it was held that it is a liability created by Hindu Law
and arises out of jural relation of the partie

Nature And Extent Of The Right Of Maintenance Under The Hindu

Adoptions And Maintenance Act, 1956:

(A) 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.

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(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.

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.

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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.

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 –
(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.

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
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.‟

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In Raj Kishore Mishra v. Smt. Meena Mishra, 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.

IV. Status Of Wife of A Joint Hindu Family And Hindu Coparcener

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.

B. Status Of Wife of A Coparcener

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

The Response of The Indian Judiciary And Legal Luminaries To ‘Right To Maintenance Of
Hindu Wife’ In Classical Hindu Law

It is clear from the foregoing that though, 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.
In this context Indian Judiciary is found to be ambivalent. This conclusion is fortified in
Masilamani Mudliar vs. idol of sri swaminathswami thirukoli where the Supreme Court came
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to the conclusion that the personal laws, to the extent they are in violation of the Fundamental
Rights, are nothing but void. On 11th February 2014 a Bench of the High Court of Punjab
and Haryana consisting of Hon‟ble Justice Paramjeet Singh in Avtar Singh vs. Jasbir Singh,
identified the lacuna in HAMA, 1956 with regard to property and maintenance rights
available to Hindu wives. In the said case, the Plaintiff was the wife of a man of unsound
mind, who had sought 1/4th share in the land belonging to the family, from her father in law
as maintenance for herself, her husband and her minor sons. The said share had been
provided to her by her father in law through a family settlement before the Gram Panchayat;
but the wife was later forcibly dispossessed of the land by her father in law and brother in
law. Since the said property had been voluntarily given by the father in law to his son of
unsound mind and his family through a family settlement, the substantial question of law
regarding the legal obligations of the father in law in such situations was not raised and the
case was decided on the basis of whether the said family settlement before the Gram
Panchayat was required to be registered in order to effect the validity. However, before
parting with the case, the Learned Judge made the following observations with regard to legal
position of Hindu wives: “Before parting with judgment, it would be appropriate to mention
that no provision has been brought to my notice by learned counsel for the parties that if
husband is insane or of unsound mind, the daughter in law who is not having any source of
maintenance can claim maintenance for herself. When she has to maintain her mentally-ill
husband, her condition is worse than being a widowed daughter in law. In such a situation,
the wife should be deemed to be dependent upon the father in law and entitled to maintenance
as provided under Section 19 of the Hindu Adoptions and Maintenance Act. Copy of this
Order is sent to the Union Ministry of Law and Justice and the Law Commission of India for
taking appropriate measures for amendment in the Act.”

It is needless to emphasis that the principle of maintenance is an integral part of Hindu joint
family system. Maintenance was a supreme duty cast upon a Hindu Karta on whose shoulders
his dependants depend. The classical Hindu law is framed in such a way that no member of a
Hindu joint family, especially the female members, should be left unprovided for Family Law
scholars, Paras Diwan and Peeyushi Diwan note the relevance of the notion of the jointness
of family life, to understand the basis of maintenance as follows: “Every member of the joint
family has a right to maintenance against the joint family property. It was the duty of the
karta‟ to see that all reasonable wants of the family members were satisfied. If the karta‟
failed to fulfill his duty, the members of the joint family could enforce it by legal action.
Even with the emergence of the concept of self-acquired property and the coparcener’s right
of partition, maintenance did not lose its importance.

Rather the concept of maintenance further grew and developed. So far the right was available
against certain properties; now it became available against certain persons also.” Under
classical Hindu law, the liability to pay maintenance arises under two conditions. It is either
an incident of the relationship between the parties, which leads to a personal obligation to pay
maintenance. In other cases, the liability to maintain certain members of the family is based
on possession of property, for example, by way of inheritance. Several scholars also note that
classical Hindu law made a distinction between the moral and legal rights of maintenance. If
a male Hindu did not perform his moral obligation to pay maintenance during his lifetime,
then upon his death, the obligation would transform into a legal obligation which could be
realized against the property of the deceased male. This illustrates that the obligation to
maintain attached to a person even after his death, but at the same time also underscores the
significance attached to maintenance in classical Hindu law.

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Among many members of a Hindu joint family who depend upon the Karta for their rights to
maintenance, wife happens to enjoy a special position in the classical Hindu law on
maintenance. All major legal scholars agree that paying maintenance to a wife constitutes a
personal obligation of her husband which begins to be operative from the very moment the
marriage takes place. Refusal to maintain a wife attracts a stricter censure than the
maintenance of other members of joint family. To illustrate the above reality, Shatri’s
exposition of the principle is particularly illuminating and relevant for our purpose here: “The
establishment of such a relation, ipso-facto, provides a right to the wife to have maintenance
from her husband, right to the daughter-in-law to have maintenance from her father-in-law in
case of inability of the husband to maintain her and a right to the widow to have maintenance
from the property of her husband or from those persons who are managing the affairs of the
property of her husband.” This principle finds its reflection in an important judicial decision
too.

In Ramabai wife of Bhikaji Bhaskar v Trimbak Ganesh Desai, the husband, an undivided
member of a Hindu joint family, had deserted his wife. The wife claimed maintenance for
herself and her child from the husband‟s relatives. The Bombay High Court held: “No doubt,
the authorities do not show that the relations of a deserted wife are under a personal liability
to maintain her; but they do show that she is entitled to be maintained out of her husband’s
property to the extent of one-third of the proceeds of that property.” The High Court thus
upheld the claim of the wife to receive maintenance from her husband’s relatives, even
though the latter did not have a personal obligation to do so. The validity of this holding is
indicated by fact that this judgment is cited in the authoritative book, Mayne’s Hindu Law &
Usage, to illustrate the wife’s established right to receive maintenance from the husband’s
family members on 13 February, 1928 the Madras High Court.

In Gopala Pattar v Parvathi Ammal also principle the above thinking and observed: “It is
difficult to see any distinction between the position of a widow who has been obliged to
enforce her charge for maintenance and that of an abandoned wife who is obliged to do the
same. If she has this right against her husband personally it can be enforced by the attachment
and sale of his property and that property consists of an undivided share in the joint family
property. A charge, therefore, so long as the husband is alive and available is not really of
such a benefit to the wife for, in effect, she is able to enforce a charge in execution; but if the
husband should die or abscond, her right would be very considerably impaired, for she could
no longer enforce the personal obligation, and would have to institute proceedings against the
family and against the family property. If there is no legal objection to a charge being given,
it is.”In the above case, the High Court ordered that the abandoned wife should be paid
maintenance out of her husband’s share in the joint family property. Mull’s Principles of
Hindu Law, which is an authoritative exposition on both classical and modern Hindu law,
Mitakshara, Chapter II, section 10, states the following: “When a person is excluded from
inheritance on account of disability, he, and his wife and children, are entitled to maintenance
out of the property which he would have inherited but for the disability and where he is
excluded from a share on partition, he and his wife and his children are entitled to have a
provision made for their maintenance out of the joint family property.”Continued chastity is a
pre-condition for grant of right to maintenance to a Hindu wife as per the statement of Mulla.
One must hasten to add that by virtue of Section 28 of the Hindu Succession Act 1956, there
is no longer any disqualification from inheritance on the ground of any disease, defect of
deformity.

Suggestions And Recommendation

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In the light of the foregoing discussion which handled the issue threadbare by delving deep
into all its intricacies, the Researcher gives her unstinted support to the recommendations of
the Law Commission of India which would make a large section of aggrieved daughter-in-
laws in heave a sigh of relief. The suggested Right of Hindu wife to Maintenance under
Section18 of Hindu Adoptions and Maintenance recommendations to the existing law are
insertion of sub-section 4 under Section 18 of Hindu Adoptions and Maintenance Act
(HAMA), 1956 as below: a. “Section 18 (4) - Where the husband is unable to provide for his
wife, on account of physical disability, mental disorder, disappearance, renunciation of the
world by entering any religious order or other similar reasons, the Hindu wife is entitled to
claim maintenance during her lifetime, from members of the joint Hindu family of the
husband, except where the husband has received his share in the joint family property.

Explanation: For the purpose of this Section, the term “mental disorder” shall have the same
meaning assigned to it under the Explanation to Section 13(1) (iii) of the Hindu Marriage
Act, 1955.

b. Maintenance of Wife- Section 18(3) of HAMA, 1956 uses the word 'unchaste', which the
Researcher recommends to be deleted. Chastity of a woman cannot be put to any test. In our
epic Ramayana, the lord Rama tried to test the chastity of his wife Sita‟ by compelling her to
undergo Agni-Pariksha, which was crueler than cruelty. In the Mahabharata the similar hard
proof for chastity was demanded by Duryodhana from his wife Draupadi.

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Hindu Marriage Act, 1955
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 discriminationbecause
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.

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 suppose 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
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.

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Maintenance of wife under criminal procedure code
1973

Introduction
The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX
of the Code of Criminal Procedure deals with provisions for maintenance of wives, children
and parents. ‘Maintenance’ in general meaning is keeping something in good condition.
‘Maintenance’ in legal meaning is money (alimony) that someone must pay regularly to a
former wife, husband or partner, especially when they have had children together. It is the
duty of every person to maintain his wife, children and aged parents, who are not able to live
on their own.

In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and it
includes even those cases where a man and woman have been living together as husband and
wife for a reasonably long period of time. Strict proof of marriage should not be a
precondition of maintenance under Section 125 of the Cr.PC.

In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav, the
Supreme Court held that marriage of women in accordance with Hindu rites with a man
having a living spouse is completely nullity in the eye of law and she is not entitled to benefit
under Section 125 of the Cr.PC.

In the case of Sirajmohmedkhan Janmohamadkhan v Hafizunnisa Yasinkhan, the

Supreme Court held that maintenance can be allowed to the wife when her husband is
impotent.

A wife can claim and get maintenance from her husband in the following conditions:

She is divorced by her husband, or

Obtained divorce from her husband, and
She has not remarried, and
She is not able to maintain herself.
Note: Muslim wife can also claim maintenance under Cr.PC though they have a separate Act
(Muslim Women Protection of rights on Marriage Act) for them.

A wife can not claim and get maintenance from her husband in the following conditions:

Wife living in adultery, or

Refuses to live with husband without any valid reasons, or
Living separately by mutual consent.

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THE MUSLIM WOMEN (PROTECTION OF
RIGHTS ON DIVORCE) ACT, 1986
[19th May, 1986.] An Act to protect the rights of Muslim women who have been divorced
by, or have obtained divorce
from, their husbands and to provide for matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Thirty-seventh year of the Republic of India as follows:—

1. Short title and extent.—

(1) This Act may be called the Muslim Women (Protection of Rights on Divorce) Act, 1986.

(2) It extends to the whole of India except the State of Jammu and Kashmir. 2. Definitions.—
In this Act, unless the context otherwise requires,—

(a) “divorced woman” means a Muslim woman who was married according to Muslim law,
and has been divorced by, or has obtained divorce from, her husband in accordance with
Muslim law;

(b) “iddat period” means, in the case of a divorced woman,—

(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the
delivery of her child or the termination of her pregnancy, whichever is earlier;

(c) “Magistrate” means a Magistrate of the First class exercising jurisdiction under the Code
of Criminal Procedure, 1973 (2 of 1974) in the area where the divorced woman resides;
(d) “prescribed” means prescribed by rules made under this Act.

3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.—

(1) Notwithstanding anything contained in any other law for the time being in force, a
divorced woman shall be entitled to—
(a) a reasonable and fair provision and maintenance to be made and paid to her within the
idda tperiod by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a
reasonable and fair provision and maintenance to be made and paid by her former husband
for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by
her relatives or friends or the husband or any relatives of the husband or his friends.

(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower
due has not been made or paid or the properties referred to in clause (d) of sub-section(1)
have not been delivered to a divorced woman on her divorce, she or any one duly authorised

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by her may, on her behalf, make an application to a Magistrate for an order for payment of
such provision and maintenance, mahr or dower or the delivery of properties, as the case may
be.
(3) Where an application has been made under sub-section (2) by a divorced woman, the
Magistrate may, if he is satisfied that—
(a) her husband having sufficient means, has failed or neglected to make or pay her within the
iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties
referred to in clause (d) of sub-section (1) have not been delivered to her,

make an order, within one month of the date of the filing of the application, directing her
former husband to pay such reasonable and fair provision and maintenance to the divorced
woman as he may determine as it and proper having regard to the needs of the divorced
woman, the standard of life enjoyed by her during her marriage and the means of her former
husband or, as the case may be, for the payment of such mahr or dower or the delivery of
such properties referred to in clause (d) of sub-section (1) the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the
said period, he may, for reasons to be recorded by him, dispose of the application after the
said period.

(4) If any person against whom an order has been made under sub-section (3) fails without
sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the
amount of maintenance or mahr or dower due in the manner provided for levying fines under
the Code of Criminal Procedure, 1973 (2 of 1974), and may sentence such person, for the
whole or part of any amount remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one year or until payment if sooner made,
subject to such person being heard in defence and the said sentence being imposed according
to the provisions of the said Code.

4. Order for payment of maintenance.—(1) Notwithstanding anything contained in the

foregoing provisions of this Act or in any other law for the time being in force, where a
Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain
herself after the iddat period, he may make an order directing such of her relatives as would
be entitled to inherit her property on her death according to Muslim law to pay such
reasonable and fair maintenance to her as he may determine fit and proper, having regard to
the needs of the divorced woman, the standard of life enjoyed by her during her marriage and
the means of such relatives and such maintenance shall be payable by such relatives in the
proportions in which they would inherit he property and at such periods as he may specify in
his order:

Provided that where such divorced woman has children, the Magistrate shall order only such
children to pay maintenance to her, and in the event of any such children being unable to pay
such maintenance, the Magistrate shall order the parents of such divorced woman to pay
maintenance to her:
Provided further that if any of the parents is unable to pay his or her share of the maintenance
ordered by the Magistrate on the ground of his or her not having the means to pay the same,
the Magistrate may, on proof of such inability being furnished to him, order that the share of
such relatives in the maintenance ordered by him be paid by such of the other relatives as

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may appear to the Magistrate to have the means of paying the same in such proportions as the
Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relatives as
mentioned in sub-section (1) or such relatives or any one of them have not enough means to
pay the maintenance ordered by the Magistrate or the other relatives have not the means to
pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid
by such other relatives under the second proviso to sub-section (1), the Magistrate may, by
order, direct the State Wakf Board established under section 9 of the Wakf Act, 1954 (29 of
1954), or under any other law for the time being in force in a State, functioning in the area in
which the woman resides, to pay such maintenance as determined by him under sub-section
(1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at
such periods as he may specify in his order.

5. Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974.—If on

the date of the first hearing of the application under sub-section (2) of section 3, a divorced
woman and her former husband declare, by affidavit or any other declaration in writing in
such form as may be prescribed, either jointly or separately, that they would prefer to be
governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973
(2 of 1974), and file such affidavit or declaration in the court hearing the application, the
Magistrate shall dispose of such application accordingly.
Explanation.—For the purposes of this section, “date of the first hearing of the application”
means the date fixed in the summons for the attendance of the respondent to the application.

6. Power to make rules.—(1) The Central Government may, by notification in the Official
Gazette, make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the foregoing power, such rules may provide for—

(a) the form of the affidavit or other declaration in writing to be filed under section 5;
(b) the procedure to be followed by the Magistrate in disposing of applications under this Act,
including the serving of notices to the parties to such applications, dates of hearing of such
applications and other matters;
(c) any other matter which is required to be or may be prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before
each House of Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified form or be of
no effect, as the case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.

7. Transitional provisions.—Every application by a divorced woman under section 125 or

under section 127 of the Code of Criminal Procedure, 1973 (2 of 1974) pending before a
Magistrate on the commencement of this Act, shall, notwithstanding anything contained in
that Code and subject to the provisions of section 5 of this Act, be disposed of by such
Magistrate in accordance with the provisions of this Act.
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Conclusion
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.

Chapter IX of the Code of Criminal Procedure deals with provisions for maintenance of
wives, children and parents. ‘Maintenance’ in general meaning is keeping something in good
condition. ‘Maintenance’ in legal meaning is money (alimony) that someone must pay
regularly to a former wife, husband or partner, especially when they have had children
together. It is the duty of every person to maintain his wife, children and aged parents, who
are not able to live on their own.

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BIBLIOGRAPHY

Book:
1. Dalbir Bharti, Women and law

Web Refrences:
2. Lawcommissionofindia.nic.in
3. Ncw.nic.in
4. Lawctopus.in

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