STATUS OF WOMEN UNDER HINDU LAW

Maintenance

The whole concept of maintenance was introduced in order to see that if there is a spouse who is not independent financially than the other spouse should help him/her in order to make the living of the other person possible and independent.

Providing maintenance means that the other person who is getting the maintenance should be able to live the life as he or she lived before marriage in case of divorce and in case where the two partners are not living together and they seek maintenance than the spouse getting maintenance should be able to live a life as when they lived together. Maintenance is the amount which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances. At this point of time I would also like to mention that according to my understanding maintenance not only includes basic necessities like food, clothing and residence but it also includes the things necessary for comfort and status in which the person entitled is reasonably expected to live. According to me the main aim of providing maintenance is that the wife should not be left destitute on separation or divorce from her husband. In a laymen’s term maintenance are those things which are indispensible for the survival of human being[1].

Maintenance under Hindu Marriage Act, 1955

Section 24: Maintenance pendente lite and expenses of proceedings: -Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable: 54 [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

ChitraLekha v. Ranjit Rai[2]: – it has been laid down that the object behind Section 24 is to provide financial assistance to indigent spouse to maintain herself (himself) during the pendency of the proceedings, and also to have sufficient funds to defend or carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for wants of funds.

Section 24 thus confers a substantial right on the applicant during the pendency of the proceedings. When such a right has accrued to the applicant and the matter has been filed, allowance of temporary alimony is not regarded as a matter of right but as a matter of right but as a matter within the judicious discretion of the court. A liberal interpretation, however, is to be given to Section 24, as its object is to secure that the indigent spouse should not suffer during the pendency of the proceedings. The court has to act in accordance with sound judicial principles which are as follows:-

Position and status of parties.
Reasonable wants of the claimants.
Income of the claimants.
Income of the opposite party.
Number of persons the opposite party has to maintain.
Amit Kumar Sharma v. Addl. District and Sessions Judge[3]: – it was held that maintenance under the Act is available only to the parties to the proceedings, the provisions cannot be stretched to include maintenance for the mother of the husband or mother-in-law.

Section 25: Permanent alimony and maintenance

Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall 55 [***] pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant 56 [, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, 57 [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

Mehta Gunviantray v. Bal Prabha: Court held that the words “while the applicant remains unmarried” (omitted by amendment in 1976) did not restrict the applicability of the section to cases of divorce and nullity, but would apply also to cases of judicial separation, decree of nullity and restitution of conjugal rights.

Maintenance under Hindu Adoptions and Maintenance Act, 1956

Section 18

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.
A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance—
- 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 wilfully neglecting her;
- 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;
- if he is suffering from a virulent form of leprosy;
- if he has any other wife living;
- if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
- if he has ceased to be a Hindu by conversion to another religion;
- if there is any other cause justifying living separately.
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.

Objectives of Section 18[4]

To analyze response of Indian judiciary and legal luminaries to Right of the Hindu wife to Maintenance under Hindu Adoptions and Maintenance Act, 1956.
To compare the status of:
Right to Maintenance of the Hindu wife u/S.18 of Hindu Adoptions and Maintenance Act, 1956.
- Right to Maintenance of widowed daughter-in-law u/S.19 of Hindu Adoptions and Maintenance Act, 1956.
- Right to Maintenance of a Hindu wife, whose husband is unable to provide maintenance to her under Hindu Adoptions and Maintenance Act, 1956.
To study Right to maintenance in classical Hindu law.
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.

Section 19: -Maintenance of widowed daughter-in-law

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-
- from the estate of her husband or her father or mother, or
- from her son or daughter, if any, or his or her estate.
Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary 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.

Case Laws:

O.K Reddy v. C.P.V. Lakshamma[5]: – It was held that ‘section 18 would include a wife whose marriage is solemnized, though the marriage is void’. In this case, the claimant was married at a time when the husband had another wife ‘living’ and hence her marriage was void.
Raj Kishore Mishra v. Smt. Meena Mishra[6]:-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 Section 19 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.

Kirtikant D. Vadodaria v. State of Gujarat[7]: – It was held that the obligation of the Hindu male to maintain his wife, minor sons, unmarried daughters, and aged or infirm parents is personal, legal and absolute in character and arises from the very existence of relationship between the parties. The husband is liable to maintain his wife if he is capable of earning. He cannot plead that he is unable to maintain his wife due to financial constraints.

There are, however, certain conditions under which a Hindu wife shall not be entitled to separate residence and maintenance. They are:-

When she ceases to be a Hindu by conversion.
When she is unchaste.
When she lives separately without any cause justifying the same.
When the wife is living separately by agreement between husband and wife, and wife forfeits her claim for maintenance. Such an agreement is valid and enforceable provided that it has not been entered into by fraud, coercion, force or mistake.
YamunabaiAnantraoAdhav v. AnantraoShivramAdhav[8]: – Man married second time when his wife is living and second wife has no knowledge of the first marriage, the court held that the second wife was not entitled to get maintenance. The ground for rejecting her claim was that she was not a legally wedded wife as her marriage was void.
Maintenance while living separately: – Section 18 confers a statutory right on a Hindu wife to claim maintenance in ordinary circumstances, i.e. living with the husband or living separately from the husband in exceptional cases.

Siddingappa v. Sidana[9]: -A wife’s first duty to her husband is to fulfil her marital obligations and to remain under his roof and protection. Thus, as a rule, a wife is not entitled to separate residence from her husband, unless she proves that by reasons of his misconduct or refusal to maintain her in his own place of residence or other justifying cause she is compelled to live apart from him.

According to Section 18(2), a Hindu wife can claim maintenance from her husband even while living separately in the following cases:

If he is guilty of desertion.
If he treats her with cruelty.
If he is suffering from a virulent form of leprosy.
If he has another wife living.
If he keeps a concubine in the same house.
If he is converted to another religion.
If there is any other cause justifying her living separately.
It is thus clear that the above list is not exhaustive but only illustrative in nature.

Succession of Women under Hindu Law:

Women in traditional Hindu society have commanded a very reversed. A position of respect, however, in spite of this fact, the rights of women over property have been mostly Nil. Until, the Hindu Succession (Amendment)Act, 2005 came into being. The Hindu Succession Act is a landmark law which has drastically improved the position of women in the society. The act has given equal rights to the daughter as that to the son in a family.

So women in a joint family that are governed by the mitakshara law can now claim equal rights over the coparcenary property of their father. Simply, speaking a coparcenary property is the ancestral property that their fathers have inherited. So, now women are equally entitled to their ancestral property.

Initially, The Hindu Succession Act, 1956, did not give daughters equal rights to the ancestral property. The amendment that came into force on September 9, 2005, removed this disproportion. Before the enactment of the Hindu Succession Act in 1956, Hindus were governed by the smritees and regional customs. Needless, to say that they changed from region to region.

Under the Mitakshara School of Hindu law, which was in being before the Hindu Succession Act came into being and most parts of the country followed this school. Under the Mitakshara, a woman in a joint Hindu family only had the right to maintenance and not to the inheritance of property.

As a result, if a partition took place in the joint family property, then each male coparcener was entitled to a share. But a daughter would not get a share. Only in the incident of the death of coparcener, the daughter would get a share as one of the heirs. The Hindu Succession (Amendment) Act, 2005 eliminated this discriminatory practice by granting the following rights to daughters in a family;

All daughters have equal right of inheritance as sons to their father’s property and also have a share in the mother’s property.

Daughters

To a coparcener shall by birth become a coparcener, same as in case of the son;
have the same rights in coparcenary property as she would have if she were a son;
shall be subject to the same liability in the said coparcenary property as that of a son;
shall be allocated the same share as that of a son;

It must also be noted that the Supreme Court in Prakash and Ors. V.Phulavati and Ors[10]has held that the law is not applicable retrospectively will only apply in cases where both the father and the daughter are alive as of the date of commencement of the amendment i.e. 09 September 2005.

Further, while women now have equal rights they still do not have the right to shelter at their parent’s house if they are still married. However, she can claim a right to residence if her husband desertsher divorces her or dies. Also, like men, women too have an absolute right over self-acquired property, and they are free to dispose it off the way they like.

Rights of Wife

A wife has several rights of ownership of the property of her husband while having the exclusive right over her streedhan. She can claim a portion equal to her sons in case the joint family property is being partitioned between her husband and his sons. She can also claim the portion of her husband in case of the death of her husband. So, the portion which would rightfully come to the husband would, in the event of his death, will go to his wife. A married woman has a right to maintenance and residence at her husband’s place and in case the husband refuses her those rights, she can claim these rights from his family in case he lives in a joint family.

Rights of Mothers

Apart from the rights available to a widowed wife, a widowed mother can also claim maintenance from children who are not dependents.

Sections relating to this: Section 14: Property of a female Hindu to be her absolute property:

Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Section 14 is retrospective insofar as it enlarges a Hindu woman’s limited estate into an absolute estate, even with regard to property inherited or held by her as limited owner at the time when the Act came into force.

G.T.M. Kotturuswami v. SetraVeeravva[11]: – The plaintiffs is that they are the owners of the suit property, a house and the defendant was tenant under them in respect of the premises in question at a monthly rental of Rs. 100/- payable according to Bengali Calendar month. The defendant did not pay any rent for the suit premises to the plaintiffs in spite of demand, Moreover the plaintiffs required the premises for reconstruction of a new house on the land for their own use. As the defendant did not vacate the house in spite of service of notice to quit the suit was filed for recovery of khas possession and also for arrears of rents. The defendant filed a written statement stating that there was no relationship of landlord and tenant as between him and the plaintiffs. The allegation about arrears of rent is false. According to the defendant one Sishubala is the owner of the house and the defendant is a tenant under her and he paid rents to the said landlady. It has been further stated that the father of the plaintiffs obtained several deeds from Sishubala by making misrepresentation and by practicing fraud. The trial court found that the case of the plaintiffs was proved and the defense case was not accepted. The suit was, therefore, decreed. In the first appeal taken by the defendant, it was held that the defendant was a tenant under the plaintiffs and the appellate court below also agreed with the trial court to affirm the decree passed against the defendant.

Mahesh Chand Sharma v. Raj Kumari Sharma[12]: -the SC opined that Section 14 should be allowed to be invoked or relied upon in appeal, even though no reference to the said provision is found in the judgment of the learned Single Judge or the Division Bench. It is a highly-salutary provision which should not be ignored on technicalities.

If the legatee, alienee or donee of the widow, prior to the Act, transferred that property to any third party either before the Act or after the Act, Section 14(1) would have no application and the subsequent transferee would not have absolute right in such property because

what was conveyed by the widow was only a limited estate;
the original transferee from the widow cannot transfer any title higher than his own or that of the transferor widow; and
the widow had neither interest (any possession) nor possession (either actual or constructive) of the property on the date of commencement of the Act.

In the absence of any words conferring absolute rights of ownership, the presumption was that in cases of gift or bequest the done or legatee took a limited estate. But there has been a change in the judiciary’s view since the time of the Privy Council.

In kalawatibi v. Soiryabai[13]:- a Hindu widow made a gift of her entire estate to one of her two daughters which was challenged by the other daughter in a suit for declaration that the gift was invalid and for partition. The gift was made prior to the Hindu Succession Act, 1956. When the donor was entitled to only a widow’s estate, the done contended that the widow’s estate acquired by her under the gift became an absolute estate under Section 14(1). The SC negatived the contention holding that the alienee under those circumstances will not be entitled to an absolute estate.

When the property was given to the female Hindu at the time of partition, it was only a limited estate. The exception was when it was specifically given to her to be held by as her absolute stridhana. After the commencement of the Hindu Succession Act, 1956, vide Section 14, she takes as full owner.

Prasad v. Kanso Devi[14]: – a partition had taken place between the parties and the widow was allotted her share of properties, she took a limited estate, since the partition was embodied in a decree of the court; the main argument before the court was that sub-section (2) of Section 14, Hindu Succession Act, 1956 applied and, therefore, her estate did not become her absolute property. It was held that her estate become absolute by virtue of sub-section (i) of Section 14 and sub-section (2) did not apply.

The property, if given in lieu of maintenance, falls within the scope of Section 14(1) as the right of maintenance of a female Hindu in the family is a pre-existing right.

SulabhaGouduni v. Abhimanyu Gouda[15]: – a Hindu woman was entitled to maintenance before the commencement of the Hindu Succession Act, 1956, and she was not in possession of the property, she does not acquire absolute ownership. But if the property out of which sheis entitled to get maintenance is in her possession, such property becomes her absolute property within Section 14(1).

TarabaiDattarayaGujarathi v. RangnathVishwanathGujarathi[16]: -it was held that where the widow of the son received property for residence during her lifetime and maintenance by means of a decree of civil court before the coming into force of the Hindu Succession Act, 1956 after its enforcement her pre-existing right of maintenance of limited nature ripens into full ownership.

The use of the expression “possessed by” instead of “in possession of” in Section 14 (1) was intended to enlarge the meaning of the expression to cover cases of possession in law where land has descended to a female Hindu but she has not actually entered into it. Thus, this provision would become applicable to any property which is owned by a female Hindu even though she is not in actual, physical or constructive possession of that property. According to Mayne, two elements constitute possession, namely:[17]

animus possidendi, and
corpus possessionis.

Thus, if without an intention to possess a woman is in possession that will not be sufficient for Section 14(1) to confer absolute power on her. Mere possession without a right was no possession.

Mangal Singh v. Rattno[18]: -a female who inherited property but did not actually enter into possession, or who entered into possession but subsequently was dispossessed, also constitutes legal possession, unless such right is barred by lapse of time and the other person in possession has perfected his or her title by adverse possession.

PalasseriVelayudhan v. PalasseriIthayi[19]: -it was held that where the female heir is in actual or constructive possession, Section 14(1) is not applicable. Possession means and refers to a right to possession and not necessarily actual or physical possession. So long as the female has a right to possession, the mere fact that the female Hindu was not in physical possession matters very little.

Section 14(2) is an exception to Section 14 (1), where a property is possessed by a female Hindu as a limited estate; it would become on and from the date of commencement of the Act her absolute estate. However if she acquires property after the Act with a restricted estate, sub-section (2) would apply. These acquisitions may be under the terms of a gift, will or other instrument or a decree or order or award.

The SC in Naraini Devi v. Ramo Devi[20] held that where by an award an interest was created in favour of a widow and she would be entitled to rent out the property for her lifetime, it amounted to a restricted estate by virtue of an instrument within the meaning of sub-section (2) and not (1). The widow did not get absolute right in the property.

MoniramKolita v. Kerry Kolitany[21]:- it may be recalled that one of the characteristic features of a woman’s estate was that the female owner had no independent stock of descent in respect of it. On her death the estate reverted to the heirs of the last full owner as if the latter had died when the limited estate ceased. Such heir could be male or female. These reversioners had only a spessuccessionis during the lifetime of the owner of the woman’s estate or till termination of such estate by other means like remarriage, surrender, etc. now the rights of the reversioners cannot be enforced.

PranayMajumdar v. BinaMajumdar: – if during pendency of an appeal before the SC, a settlement is arrived at between the parties and a joint memorandum of settlement duly signed and attested by the parties is filed, wherein it is stated that a sum of Rs 3,00,000 has been paid to the wife as full and final settlement of a claim as permanent alimony, the decree of the divorce granted by the trial court will be restored.

Section 6:- Devolution of interest in coparcenary property:

On and from the commencement of the Hindu Succession (Amendment) Act, 2005 , in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
- by birth become a coparcener in her own right in the same manner as the son;
- have the same rights in the coparcenary property as she would have had if she had been a son;
- be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 .
Any property to which a female Hindu becomes entitled by virtue of sub- section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-
- the daughter is allotted the same share as is allotted to a son;
- the share of the pre- deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre- deceased daughter; and
- the share of the pre- deceased child of a pre- deceased son or of a pre- deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre- deceased son or a pre- deceased daughter, as the case may be. Explanation.- For the purposes of this sub- section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
After the commencement of the Hindu Succession (Amendment) Act, 2005 , no court shall recognise any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub- section shall affect-
- the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or
- any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.- For the purposes of clause (a), the expression” son”,” grandson” or” great- grandson” shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.- For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908 ) or partition effected by a decree of a court.

Section 15:- General rules of succession in the case of female Hindus:

The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16:
- firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
- secondly, upon the heirs of the husband;
- thirdly, upon the mother and father;
- fourthly, upon the heirs of the father; and
- lastly, upon the heirs of the mother.
Notwithstanding anything contained in sub-section (1):
- any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
- any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

Section 16:-Order of succession and manner of distribution among heirs of a female Hindu:

The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:-

Among the heirs specified in sub-section(1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.
If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death.
The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.

KeshriParmaiLodhi v. Harprasad[22]:- the court laid down that from the language of Section 15 it is clear that the intention of the legislature was to allow the succession of the property of a female Hindu to her sons and daughters. Only in the absence of such heirs would the property go to the husband’s heirs. Consequently, the female’s property would devolve on her sons and daughters even where the sons and the daughters are born of the first husband and the property left by the female was inherited by her from her second husband.

Lachman Singh v. Kirpa Singh[23]:- the SC held that in the absence of heirs mentioned in Section 15(1)(a), sons, daughters, children of predeceased sons and daughters and husband’s heirs mentioned in clause (b) of Section 15(1) succeed. Among the heirs of clause (b) will come the stepson of the Hindu female as her husband’s heir. It is obvious that in the presence of a son, a stepson cannot inherit.

DebahariKumbhar v. SribatsaPatra[24]: – the property after the death of the mother shall be inherited by her son and daughter under Section 15(1) (a) and not under any other provision of law. Niyati Sarangi v. Urabi Ladies Club of Jamuhata[25]:- the existence of custom of primogeniture was established in single lineal succession by way of primogeniture. Section 5(ii), Hindu Succession Act, 1956 will protect such a custom in spite of other provisions of the Hindu Succession Act.

Adoption under Hindu Law:

According to Manu, adoption is the “taking of a son, as a substitute for the failure of a male issue.” Thus it is a transplantation of a son from one family in which he is born to another family where he is given by the natural parents by way of gift. Adoption is a legally recognised mode of affiliation as the son of a person, of one who in fact was not his son.

On adoption, ties of the son with his old family are severed and he is taken being born in the new family, acquiring rights, duties and status in the new family. In Ramasubbaya v. Chenchuramayya[26]the Privy Council observed that the correct view is that the foundation of the doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of his line and solemnization of the necessary rites on his death.

Now, in the present scenario, the Hindu Adoption and Maintenance Act, 1956 has completely codified the law of adoption and has materially modified it in correspondence to the needs of dynamism of Hindu society. Therefore, every adoption shall be made in conformity with this act and any contravention of the provisions of this act shall be void.

Adoption under Hindu Adoptions and Maintenance Act, 1956:

Requisites of a valid adoption: -No adoption shall be valid unless—

the person adopting has the capacity, and also the right, to take in adoption;
the person giving in adoption has the capacity to do so;
the person adopted is capable of being taken in adoption; and
the adoption is made in compliance with the other conditions mentioned in this Chapter.

In DevgondaRaygondaPatil v. ShamgondaRaygondaPatil[27]the Bombay High Court held that a lunatic can also be adopted under the present law. There is no such incapacity with such child which prevents him from being adopted. In an act of adoption motive is irrelevant. The legal effect of an adoption cannot be avoided on the ground that the adoption was intended to deprive the adopted child from getting property in the family of his or her birth.

Section 7:-Capacity of a male Hindu to take in adoption: -Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption: Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Explanation: – If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.

Prafulla Kumar Biswal v. SasiBewa: -the Orissa High Court held that the capacity of a Hindu to adopt a son or a daughter is circumscribed insofar as he has no right to adopt except with the consent of the wife, although the consent need not necessarily be expressed and may be by necessarily implication or can be inferred from the facts and circumstances of the case.

LalithaUbhayakar v. Union of India: – it was held by the Karnataka High Court that before adoption by wife under section 7, Hindu Adoptions and Maintenance Act, consent of husband is required and this is not violative of Article 14 of the Constitution.

Section 8: – Capacity of a female Hindu to take in adoption: – Any female Hindu-

who is of sound mind,
who is not a minor, and
who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.

Section 9:- Persons capable of giving in adoption: –

No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
Subject to the provisions of 4 [sub-section (3) and sub-section (4)], the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
The mother may give the child in adoption if the father is dead or has completely and Finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.

Under this section, three persons have been given the right to give a child in adoption:

Natural father
Natural mother
Guardian (whether testamentary or appointed by the court)

The clause relating to the satisfaction of the court is a statement of public policy which the courts are bound to consider while permitting a guardian to give a ward in adoption. While enquiring into any possible monetary dealings in that regard, the court shall satisfy itself that there would not be any trafficking in children in the guise of adoption.

Section 10:- Persons who may be adopted:- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-

he or she is a Hindu;
he or she has not already been adopted;
he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

Section 11:- Other conditions for a valid adoption: – In every adoption, the following conditions must be complied with:-

if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
the same child may not be adopted simultaneously by two or more persons;
the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:

Provided that the performance of dattahomam shall not be essential to the validity of adoption.

Sitabai v. Ramachandra[28]: – the SC held that for a valid adoption mere giving and taking is not sufficient unless such giving and taking is done with the intent of transferring the child from the family of its birth to that of its adoption. The effect of adoption is that the ties of the adopted child in his family of birth are severed and replaced by those of the adoptive family.

Narinderjit Kaur v. Union of India[29]: – it was held that the child is given in adoption willingly by his or her natural parents and was taken in adoption by the adoptive mother through an attorney, it is a valid adoption. Subsequent marriage of an adoptive mother does not invalidate the adoption.

Section 12:- Effects of adoption: – An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

Provided that-

the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

The Hon’ble Supreme Court of India in a landmark case of Laxmikant Pandey v. Union of India[30] laid down few principles governing the rules for Inter-Country adoption. The case was instituted. The Hon’ble Court asserted in para 8 of the judgment that, ” while supporting Inter-Country a on the basis of a letter addressed to the court by a lawyer, Laxmikant Pandey alleging that social organisations and voluntary agencies engaging in the work of offering Indian children to foreign parents are indulged in malpractices. It was alleged that these adopted children were not only exposed to long horrendousjourney to distant foreign countries at the risk of their life but they also ultimately become prostitutes and beggars. Supreme Court in this case expressed its opinion and framed certain rules for Inter-Country adoption, it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the people, great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able provide to the child a life of moral and material security or the child may be subjected to moral and sexual abuse or forced labour or experimentation for medical or other research went on to give the prerequisites for foreign adoption.

It stated that “In the first place, every application from a foreigner desiring to adopt a child must be sponsored by social or child welfare agency recognised or licensed by the government of the country in which the foreigner is a resident. No application by and may be placed in worse situation than that in his own country.” It furthers a foreigner for taking a child in adoption should be entertained directly by any social welfare agency in India working in the area of Inter-Country adoption or by any institution or centre or home to which children are committed by the juvenile court.” The Supreme Court did not stop at that.

It also insisted the age within which a child should be adopted in case of Inter-Country adoption. “if a child is to be given in Inter-Country adoption, it would be desirable that it is given in such adoption before it completes the age of 3 years.” Such a ruling was delivered by the Supreme Court because it felt if a child is adopted by a foreign parent before he/she attains the age of 3, he/she has more chances of assimilating to the new environment and culture. Another important rule framed by the Court during the course of judgement was”. Since there is no statutory enactment in our country providing for adoption of a child by foreign parents or laying down the procedures which must be followed in such a case, resort had to be taken to the provisions of Guardian and Wards Act, 1890 for the purpose of felicitating such adoption.

In A.S. Sailaja v. Kurnool Medical College[31] the petitioner, daughter of A.S. Radhakrishna, an Advocate of Cuddapah in Andhra Pradesh, had initially appeared for Common Entrance Examination for 1984-85 for admission into medical college, but failed. For the Common Entrance Examination for 1984-85 she described herself to be the daughter of the natural father Radhakrishna but in the application for admission made on 13-7-1985, she claimed that she was adopted by one B. Sivaramaiah (shepherd), a Backward Class in Andhra Pradesh and sought admission on that basis. She secured 417 marks out of 600 and when she claimed to be an OBC, but was not given admission, she filed a writ petition in the A.P. High Court for direction to the college to admit her in the Backward Class Group D. The High Court considered the interplay of adoption under the Hindu Adoptions and Maintenance Act, 1956 and the protective discrimination under Article 15(4) of the Constitution of India.

It held that the native endowments of men are by no means equal. The minds of children brought up in culturally, educationally and economically advanced atmosphere are accounted highly as they are bound to start the race of life with advantages. It would apparently have its inevitable profound effect on the quality of the child born in that atmosphere. The children born amongst Backward Classes would not start the race of life with the same quality of life. It would, therefore, be necessary to identify the competing interests between diverse sections of society and it is the duty of the court to strike a balance between competing claims of different interests. Citizens belonging to a group of Backward Classes identified by the appropriate authority or the commission, as a part of that class, fulfilling the traits of socially and educationally backward among that group, would alone be eligible for admission as Backward Class citizens under Article 15(4).

In that event, the Court declined to go into the question whether such person is socially or educationally backward which is an exclusive function of the commission/authority appointed under Article 340 of the Constitution. But any person who would attempt, by process of law, and seek to acquire the status of such a Backward Class, should satisfy that he/she suffered the same handicaps or disadvantages due to social, educational and cultural backwardness. A person born in upper caste and having early advantages of education is not entitled to the benefit of Article 15(4).

In Harchand v. Ranjit[32], the natural father of the adopted son died before he was given in adoption, and thereby he succeeded to the property. Thereafter, he was given in adoption since the natural father’s property vested in him on his father’s death; it was held that his natural brother could not divest him of the property, which he inherited from his natural father.

It has been held by the Supreme Court in Rajender v. Kalyan[33] that by a legal fiction the adopted child who was bom after the death of the husband of the adoption mother cannot be treated as bom on the date when husband ofthe mother died. He can’t claim any property which been succeeded by mother from her late husband.

In PrafullaBalaMukharji v. Satish Chandra Mukherji[34], adoption was not proved as the adoptee all along considered his naturalmother as his mother. He made her his nominee in LIC policy and provident fund. He attended the shraddha’ ceremony of his natural father. It was held under the facts; there wasno proof of adoption. But under the modern law as well under old Hindu law, if an unmarriedperson, a bachelor or a virgin, adopts a child, the child will have only one parent, adoptivefather or adoptive mother, and will have only one line, parental or maternal, as the case maybe[35].

In KishanBaburaoMemane v. Suresh Sadhu Memane[36] original owner of the property died in 1919 and his widow gifted some property to defendants in 1948. She adopted the plaintiff in 1973 and she died in 1975. It was held that the adopted son could not divest suit property vested in defendants before adoption even presuming that the gift was valid.

Guardianship: –

A legal guardian is an adult who is appointed or chosen by a court to make decisions on behalf of an individual who cannot make his or her own decisions. Normally, a guardian is chosen for a minor, but sometimes a court will establish a guardian for an adult with special needs or an adult child can become an elderly parent’s legal guardian. In some instances, parents whose child comes into a large amount of money may establish guardianship over their child’s estate.

The types of decisions a guardian can make on behalf of someone (normally called the “ward”) can vary from simply arranging life necessities, like food and clothing, to making big medical and financial decisions. Therefore, the selection of a guardian is a very serious decision. A guardian can be appointed by the ward herself, perhaps in a will or power of attorney, or by someone like a parent, spouse, or other relative with close ties to the ward. In special cases, a state employee with familiarity with the person and his or her incapacity will be chosen by the court as a legal guardian[37].

Guardianship under Hindu Law: –

The Dharmashastras did not deal with the law of guardianship. During the British regime the law of guardianship was developed by the courts. It came to be established that the father is the natural guardian of the children and after his death, mother is the natural guardian of the children and none else can be the natural guardian of minor children. Testamentary guardians were also introduced in Hindu law: It was also accepted that the supreme guardianship of the minor children vested in the State as parenspatrie and was exercised by the courts. The Hindu law of guardianship of minor children has been codified and reformed by the Hindu Minority and Guardianship Act, 1956.

Hindu Minority and Guardianship Act, 1956: –

Section 4(b): -Definitions -“major” means a person having the care of the person of a minor or of his property or of both his person and property, and includes –

a natural guardian,
a guardian appointed by the will of the minor’s father or mother,
a guardian appointed or declared by a court, and
a person empowered to act as such by or under any enactment relating to any court of wards;

Apart from the above categories specifically referred to, the old Hindu Law had the de facto and the ad hoc guardians as well. These have no place under the Act.

It is pertinent to note here that under the Act no guardian for a minor’s undivided interest in the joint family property is to be appointed. The provisions of the Act do not apply in respect of a minor’s undivided coparcenary property. But the power of the High Court to appoint a guardian in respect of such interest has been restricted. Section 12 says: –

Section 12:– Guardian not to be appointed for minors undivided interest in joint family property: – Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:

Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court the welfare of the minor shall be the paramount consideration.

Dhanasekaran v. Manoranjthammal[38]: – The management of the Joint Family and its affairs can be taken up not only by an adult male member of the family but also by a female member of the family like the mother.

Section 6: – Natural guardians of a Hindu minor: -The natural guardians of a Hindu, minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are: –

in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father;
in the case of a married girl – the husband;

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—

if he has ceased to be a Hindu, or
if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation – In this section, the expressions ‘father’ and ‘mother’ do not include a step-father and a step-mother.

EssakkayalNadder v. SreedharanBabu[39]: – Father is the natural guardian of a minor. In the absence of father, mother is the natural guardian. In this case, the mother of the minor children was dead, but the father was not residing with the children, who were being looked after by the aunty. It was held that though father was not residing with his children, he is still alive, has not ceased to be a Hindu or renounced the world and has not been declared unfit. This does not authorise any other person to assume the role of natural guardian and alienate the minor’s property.

GithaHariharan v. Reserve Bank of India[40]: – In the phrase “the father and after him, the mother” the word ‘after’ need not necessarily mean after the lifetime of father. In the context in which it appears in section 6(a) it means ‘in the absence of ‘, the word ‘absence’ therein referring to the father’s absence from the care of minor’s property or person for any reason whatsoever. If the father is wholly indifferent to the matters of the minor or if by virtue of mutual understanding between the parents, the mother is put exclusively in charge of the minor or if the father is physically unable to take care of minor for any reason whatsoever, the father can be considered to be absent and mother being a recognised natural guardian can act validly on behalf of the minor as the guardian. Such an interpretation will keep the statute within the constitutional limits otherwise the word ‘after’ if read to mean a disqualification of a mother to act as guardian during lifetime of father the same would violate one of basic principles of our constitution i.e. gender equality.

Jajabhai v. Pathankhan[41]: – Where the mother and father had fallen out and were living separately and the minor daughter was under the care and protection of her mother, the mother could be considered as the natural guardian of the minor girl.

Section 8: – Powers of Natural Guardian: –

The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant.
The natural guardian shall not, without the previous permission of the court,—
- mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or
- lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court…..

NaryanLaxmanGilankar v. Uday Kumar Kashinath Kaushik[42]: – Immovable property contemplated in section 8 means a minor’s definite property and not his fluctuating indefinite interest in the joint family property. Interest is ever fluctuating depending upon exit and entry in the family by natural process or otherwise. It is only upon a partition that a definite share can be culled out. Undivided interest of a minor is left untouched. Section 8 is in parimateria with section 29 of Guardians and Wards Act[43].

Sale transaction by a natural guardian even if beneficial for the minor is voidable and not void ab initio, if it is done without the previous permission of the court. It was held that the minor can challenge only after attaining majority and not during his minority.

Vishwambhar v. Laxminarayana[44]: – Alienation made by the mother of the minor in contravention of section 8(2) are voidable at the option of minor and such alienation were required to set aside if minor wanted to avoid the transfers and regain the properties from the purchasers. If in plaint the prayer for setting aside the sale deeds was not there and such a prayer has been introduced after period of limitation which is three years from the date when minor attains majority, has elapsed, the claim for recovery of possession of property is not maintainable.

Section 9: – Testamentary guardians and their powers:

A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.
An appointment made under sub-section (1) shall have not effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.
A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both.
A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property or in respect of both.
The guardian so appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will.
The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

Rajalakshmi v. Ramachandran[45]: – Under this section power is conferred on the father or the mother in certain circumstances to appoint a guardian by will. This power does not extend to a donor of property.

Sundaramurthy v. Shanmuganadar[46]: – Where a grandmother appoints the mother as testamentary guardian for the property bequeathed to the minor, during the lifetime of the father, the mother cannot alienate the property of the minor as the grandmother has no power to appoint a testamentary guardian. Such alienation would be void ab initio.

K. Venkat Reddy v. C.V. Reddy[47]: – the court opined that mere dislike of father by grandparents was no ground to deny custody to the father where the minor child had already lost his mother. It would be wholly erroneous to deprive him of his father and over look his calm and give custody to the maternal grandparents.

Maintenance under Muslim Law:

Muslim Law passively considers male to be superior to the woman. It is believed that a man can take care of himself whereas the woman cannot, in other words it is deduced that a woman cannot be self reliant. Hence, in Muslim law the wife has been bestowed with an absolute right to be maintained and the husband is bound to maintain her regardless of the fact whether she’s poor or not. Wife’s right to maintenance is a debt against the husband.

In Muslim law, wife is preferred over all the other persons (even the young children & other necessitous relations). However, the woman’s right and husband’s obligation exists only if the wife remains faithful to her husband and obeys all his reasonable orders.

Nonetheless, the wife does not lose the right to maintenance if she refuses access to her husband on legal grounds such as her illness or if the marriage cannot be consummated i.e. cannot be concluded by the sexual intercourse because of her old age, illness, his minority or faulty organ. However if the wife being too young for sexual intercourse, lives with her parents, she does not possess any right for maintenance[48].

Under Muslim Law, women are considered weak as compared to men. It is believed that they are not able to maintain herself on her own so it is the liability of the husband to provide maintenance to her wife in all conditions even if she is capable of maintaining herself. Maintenance is known as “Nafqah” which means what a man spends on his family. Nafqah basically includes food, clothing, and lodging. But under Muslim Law, maintenance is provided to wife even if she is capable of maintaining herself which differs it from other laws.

Muslim marriage is a contract, an agreement is made between the parties to the marriage which prescribes the rights and duties if husband and wife. The condition of agreement should be valid otherwise the marriage should be considered as illegal. In this agreement, the wife can stipulate some conditions for husband and in case of breach of such conditions; she has a right to live separately and is entitled to maintenance. Such conditions are as follows:

If the husband ill-treats her;
- Takes a second wife or concubine;

An agreement which stipulates that wife is entitled to maintenance after divorce is also valid. But she is entitled to maintenance only during the period of iddat and not beyond that. The husband’s liability is only till the iddat period[49].

Ali Akbar v. Mst. Fatima[50]: – An allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in addition to the amount of maintenance which she is entitled to get from her husband. It was held that the wife is entitled to it irrespective of the fact that she refuses to stay with her husband. (Kharach-i-Pandan is a personal allowance and it cannot be transferred.)

Maintenance under Muslim Women (Protection of Rights on Divorce) Act:

Section 3: – Mahr or other properties of Muslim woman to be given to her at the time of divorce: –

Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to—
- a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
- 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;
- 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
- all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
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 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.
Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that—
- 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
- 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 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 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) to 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.
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.

Section 4: -Order for payment of maintenance: –

Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where the 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 her 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 may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.
Where a divorced woman is unable to maintain herself and she has no relative 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
- 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.

Under Muslim Law the rights of the wife to get maintenance during the marriage is absolute but after the dissolution of marriage, her rights are limited. She is entitled to maintenance from husband after divorce is only till iddat period (Iddat is a period of three menstrual courses or three lunar months). Muslim law does not provide maintenance to wife after the iddat period is over. In Hanafi school of law, a divorced Muslim wife is entitled to maintenance during iddat period whereas in Shefai law, a divorced Muslim wife is not even entitled to maintenance.

In case of dower, which is the right of Muslim wife, which she is entitled at the time of marriage, the husband is under the obligation to pay her whatever the amount of dower has been agreed upon between the parties at the time of marriage or if no amount is decided then a reasonable amount should be paid by the husband to wife for her maintenance.

But this creates hardship for Muslim wife as under Muslim Law it is very easy for men to give divorce to his wife as the Law allows him to marry thrice. Muslim wife does not have any proper means for herself in Muslim Law. If after the expiry of iddat period, she has no means to maintain herself then in that case husband has no liability for her and she is left with nothing.

Under section 125 of Crpc, provides for maintenance to divorced wife of all religion. It stated that after divorce if the wife is not able to maintain herself, she is entitled to maintenance from her husband until she gets married. The act applies this provision to Muslim women also who are not entitled to the maintenance after the period of Iddat. This act creates liability over husband to provide maintenance to wife even after the period of Iddat.

But the provisions of this act are in conflict with the provisions of Muslim Law and a debate was going on as which law should be applied. This matter was seen by the Supreme Court in a landmark judgment

Shah Bano Begum Vs Mohammad Ahmed Khan[51]: -In this case, Shah Bano Begum, a 62 years old lady filed a petition under section 125 of Crpc before Judicial Magistrate of Madhya Pradesh. The petition stated that her husband has pronounced Talaq to her and she has not even remarried and thus she was entitled to maintenance. For which her husband has stated that he had no liability to provide maintenance to her as under Muslim Law, a divorced wife has no right of maintenance after Iddat period.

The magistrate, in this case, passed an order stating that the husband is entitled to provide her maintenance of Rs.25 per month as per Section 125 of Crpc. Shah Banu filed a revision petition against this order in the High court of Indore for enhancement of the amount of maintenance. For which Indore High court has enhanced the amount of maintenance to 179.20 Rs per month.

Against this order, Mohd. Ahmed Khan appealed to the Supreme court. Supreme court rejected the appeal and stated that Muslim wife is entitled to maintenance even after the period of Iddat if she is not able to maintain herself.

The Supreme Court has observed that with this judgment the distinction between the Muslim personal law and Civil Procedure code will come to an end. But the judgment has even increased the controversy as a result of which the legislatures have to make a new law to govern Muslim divorce i.e. Muslim Women (Protection of Rights on Divorce) Act 1986.

This act has enacted some provisions in support of Muslim Personal Law and has restricted the application of Section 125 of Crpc regarding the maintenance of Muslim wife. The Act has stated that the husband is entitled to provide maintenance only during the period of Iddat and not beyond that. If the wife is not able to maintain herself after iddat period then, in that case, she can seek maintenance through Wakf Board or relatives of her or her husband. This act has not mentioned anything clearly and has created various confusions in the judicial system and was considered as vague. The confusion of this act has been solved by the Supreme Court of India under:

Daniel Latifi v. Union of India[52]: -A writ petition was filed challenging the validity of the act. For which the court has stated as under:

As per Section 3 of the act, Muslim husband is entitled to provide fair and reasonable maintenance to his wife and has to make proper arrangement for her maintenance after the divorce.
Muslim husband’s liability under this act is not limited to iddat period. He has to make arrangement within the period of iddat for her wife’s maintenance.
A divorced Muslim woman is entitled to maintenance under section 4 of this act from her relatives who are entitled to her property after her death.
If her relatives are not able to maintain her then, in that case, a Wakf board has been created by this act that will take care of the maintenance of such women.
The magistrate can direct this board to pay maintenance to them.

The Supreme Court on the basis of the above points has held the act constitutionally valid.

Conclusion:

After reading and going through various sources of the personal laws, I feel that the Hindu law is much more clearly defined and gives much more rights to women in comparison to the Muslim law. Providing maintenance means that the other person who is getting the maintenance should be able to live the life as he or she lived before marriage in case of divorce and in case where the two partners are not living together and they seek maintenance than the spouse getting maintenance should be able to live a life as when they lived together. Maintenance is the amount which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances.

If we read the Shah Bano case we could see that the Muslim and the Hindu women were on the same side. But latter when the government passed The Muslim Women (Protection of Rights on Divorce) Act, 1986 the Muslim women were again seen to be more unprivileged than the Hindu women. But latter the court in the Daniel Latify judgment said that the Muslim women can also be awarded the same maintenance as Hindu women for life time. Therefore according to my understanding or according to my knowledge I would say that both the Hindu and the Muslim women are in the same place in case of awarding the maintenance.

Law of maintenance is personal as well as legal in character and arises from the very existence of relationship between the parties.

From the above discussion, it can be concluded that Law of maintenance with no doubts is inclined towards the females in both the structures whether it be Hindu Law or Muslim Law. Women have been bestowed with many more privileges in comparison to men and husbands have been granted a lot more of responsibilities and obligations. Although the given laws may sound unjust to a few but pragmatically they seem to be correct as in our country even till date women do not have the social status equal to that of men. Hence, it won’t be incorrect to extrapolate that Law makers while formulating these provisions must have kept in mind the situation of the women in the patriarchal society of India. The women of both the communities are suffering due to being poor, being women and than being a part of the patriarchic society.

Vini Jain (Law Graduate & Judiciary-Aspirant)