zHINDU ADOPTION AND MAINTENANCE ACT,
1956
Shuchi Sharma
Sr. Asst. Prof.
z What is maintenance
Maintenance has been described in the definition clause of the act i.e, Section 3(b) as
something that can provide for food, clothing, shelter, education and medical expenses.
• Basically, it is financial support paid by a husband or a father that covers all basic
necessities of life.
• The section also says that if the maintenance is to be provided to an unmarried
daughter, it shall also cover all the reasonable expenses required in her day to day life
till the day she gets married.
The Hindu Adoption and Maintenance Act came into existence to amend and codify the
law relating to adoptions and maintenance among Hindus. The Act extends to the
whole of India and applies to any person who is a Hindu by religion and it specifically
applies to Hindus, including Buddhists, Jains and Sikhs, but in other religions like
Muslims, Christians, Jews and Parsis, no separate laws are given, so they approach the
court for adoption under the Guardians and Wards Act, 1890. The Supreme Court of
India, in M/S Shabnam Hashmi vs. Union of India (2014), held that
the Juvenile Justice (Care and Protection of Children) Act of 2000 is a secular
law. Under this Act, any person, irrespective of their religion, can adopt a child.
WHEN WIFE IS ENTITLED TO MAINTENANCE (Sec. 18)
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Section 18(2) of the Hindu Adoption and Maintenance Act provides a list stating when a wife will be
entitled to maintenance. As per the Section, a wife can live separately from her husband and still have the
right to claim maintenance in the following situations:
• The husband has deserted his wife by abandoning her without any reasonable cause and without seeking
her consent or deliberately ignoring her wish.
• The wife has been subject to cruelty during her marriage and considers living with her husband to be
endangering her life.
• If the husband is suffering from an incurable and contagious disease.
• The husband has another wife or a mistress in the same house or he lives with another wife or mistress at
some other place.
• The husband has converted to some other religion or some other reasonable grounds that can justify why
the wife should live separately.
Maintenance can be paid every month or in a lump sum. Even when the wife has some source of income
and some property but needs some financial aid for necessary expenses such as medical expenses. It is the
obligation of the husband to pay maintenance for such expenses if required.
The same was held by the Hon’ble Supreme Court in the case of Smt. Anita Thaukral v. Shri Satbir Singh
Tkukral.
In the aforementioned case, the wife had some source of income and also had an apartment in a good
location but, she was unable to make enough money to cover up her medical expenses.
The court held that:
• The wife will
z use one of the debit cards of the husband,
• with the undertaking that she will only withdraw a reasonable amount as may be necessary for her
medical expenses.
When maintenance is not to be paid to a wife?
A wife must be maintained after a divorce in order to financially support her. But, there are some
exceptions to this rule.
Section 18(3) of the Act states that a wife will not be entitled to maintenance:
• If a Hindu wife has committed adultery or has any other illicit sexual relationship with anyone else,
she shall not be entitled to maintenance.
• Also, if she no longer remains a Hindu and gets converted to some other religion that does not fall
under the spectrum of Hinduism.
Also, in the case of Abbayolla M. Subba Reddy v. Padmamma:
• The defendant had two living wives,
• The second wife was claiming maintenance,
• A bigamous marriage is illegal under Hindu Laws,
• The validity of the marriage of the defendant with his second wife was in question.
The High Court of Andhra Pradesh held that:
• If a man has two wives, the marriage with a second wife will be void ab initio as Hindu laws prohibit
bigamous marriage and the parties never actually become husband and wife.
• Therefore, the second wife will have no entitlement to any kind of maintenance as the marriage is
No maintenance pendente lite is given to the wife under this Act. But in Neelam Malhotra v. Rajinder
Malhotra ,Maintenance pendente lite though not provided for in sec. 18 can be granted by the court
because a suit
z could take years to settle & until then not granting pendente lite maintenance would be
against the spirit of sec. 18
MAINTENANCE OF WIDOWED DAUGHTER IN LAW (Sec.19)
A husband is liable to pay maintenance to his wife after they get divorced. However, if the husband is
dead it is the obligation of his father to pay maintenance to his daughter-in-law.
Section 19 of the Hindu Adoption and Maintenance Act states the same, but the father-in-law
shall only be liable to pay maintenance if:
• His daughter-in-law has no sources of income;
• She has no property to sustain herself on her own;
• If she has some property, it is insufficient to meet her basic expenses.
In case she has no property of her own and any property of her husband, parents or children are not
fetching her any maintenance.
Section 19(2) also states
If she has obtained share in coparcenary property while partition Animuthu v. Gandhimal
That a father-in-law shall not be liable to pay any maintenance if:
• He is not able to do so from any coparcenary property in his possession;
Maintenance of children and aged parents (Sec. 20)
z
People who cannot earn money for themselves due to reasonable grounds need to be given maintenance in
order to meet their basic necessities. Such people can include children and old people.
Section 20 of the Act states:
• A Hindu male or female is obligated to maintain their children whether they are legitimate or illegitimate.
• Children shall claim for maintenance from their parents as long as they are minor.
• An unmarried daughter shall be entitled to maintenance even after attaining the age of majority, till the day
she gets married.
The section further prescribes that:
• Parents who are old or have physical or mental weakness need to be maintained if they are not able to
maintain themselves.
• A childless stepmother will also be considered a ‘parent’ in the context of this section.
In the case of Mst. Samu Bai & anr v. Shahji Magan Lal, the High Court of Andhra Pradesh held that:
The maintenance to aged and infirm parents must only be provided if the parents have no means to sustain
themselves, or are unable to maintain themselves out of their own property or earnings. So, we can infer
that if the old parents have enough means to maintain themselves, the obligation of children to maintain
them can be relaxed.
Maintenance
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of dependants (Sec. 21 & 22)
Dependents of a deceased must be maintained if they do not have the capacity to do so by
themselves. Section 21 of the act defines dependents and Section 22 states that such persons
shall be entitled to maintenance.
Who are dependents? (Sec. 21)
Dependent is someone who relies on parents, brother or some other relative for sustaining
themselves.
Section 21 of the Act says that in the context of this Act dependents refer to the following relatives
of the deceased:
• A father.
• A mother
• A widow who has not remarried.
• A minor son, grandson, or great-grandson with predeceased father and grandfather. Provided he has
not been able to obtain maintenance from any other source.
• Unmarried daughter, granddaughter, or great-granddaughter with predeceased father and
grandfather. Provided she has not been able to obtain maintenance from any other source.
• A widowed daughter who has not been able to obtain maintenance from the estate of her husband,
children, or from her in-laws.
• Widowed daughter-in-law, or widowed granddaughter-in-law, who has not been able to obtain
maintenance from any other sources.
z
Maintenance of dependents(Sec. 22).
The heirs who take the estate of a deceased Hindu are bound to maintain the dependents of the
deceased out of the estate inherited by them from the deceased if that particular dependant
has not obtained by testamentary or intestate succession any share in the estate of a Hindu
dying after the commencement of the Act.
Example: In Fig 1 : P dies leaving behind 6 heirs namely A,B,C,D,E,F. Out of these 6 heirs suppose
A,B,C come under the category of dependants also . Besides A,B,C there are few other
dependants namely G,H,I,J who did not get any share in the property . Here in this case the
liability of each of the person who take the estate shall be in proportion to the value of the share or
part of the estate taken by him or her.
A FIG. NO. 1
F B
P
E C
D
No Person who is himself or herself a dependant shall be liable to contribute to the maintenance of
others, if he or she has obtained a share or part, the value of which is, if he contributes becomes
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less than what would be awarded to him by way of maintenance.
For example if C in fig.1 gets approx. 1% as a share in the property of deceased, and if it is less
than the maintenance received by the dependants viz ; G or H or I or J then C won’t be liable to
give maintenance to them.
Amount of Maintenance ( Sec. 23)
There is no fixed amount for maintenance that shall be paid. It is at the discretion of the court to determine
the amount of maintenance.
Section 23 of the act states that while deciding the amount of maintenance to be awarded to a wife,
children, or old and infirmAmount parents – the court must do so considering the following:
• Status of parties and their current position;
• The claims of the parties within reasonable limits;
• If the claimant living separately have justified grounds in doing do;
• All sources of income of the claimant and the value of their property;
• The number of people that are entitled to be maintained.
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Section 23(3) further simplifies the process of deciding the amount of maintenance payable to other
dependents. It says that the amount of payment to be made should be with regard to:
• The net value of the deceased’s property after clearing off all his debts;
• Will of the deceased if any;
• Degree of the relationship between the claimant and the deceased and their past relationship;
• What the dependents want within reasonable limits;
• All sources of income of the dependent and the total value of all their properties;
• The number of dependents that can be entitled to maintenance
The claimant of Maintenance should be a Hindu (Sec. 24)
The Hindu Adoption and Maintenance Act has been legislated for the Hindus and has the power and authority
to govern only people that belong to the Hindu religion.
If any of the party is not a Hindu or has ceased to be one, they cannot claim maintenance as per this act.
Section 24 of the Act says:
No one will be entitled to claim maintenance under the Hindu Adoption and Maintenance Act if they have
ceased to be a Hindu by converting themselves to some other religion.
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Alteration of the
amount due to change in circumstances (Sec.25)
The amount of maintenance to be paid can be decided by the court or by an agreement between the parties.
Maintenance is paid to provide aids for the basic needs of everyday life in case a person does not have the
source or ability to provide for themselves.
Section 25 of the act states that the amount of maintenance may be altered with the change in
circumstances.
But, the section is vague. It does not say on what changes in circumstances can the alteration be sought and
how the alteration can be done.
In the case of Binda Prasad Singh v. Mundrika Devi, the High Court of Patna observed that there was no
set procedure mentioned in Section 25 as to how the amount can be altered.
The court stated that:
The amount of maintenance is fixed either by an agreement or by way of a decree.
The only way to alter an agreement is by way of another agreement, and the decree can be altered by
amendment of degree.
So, another suit must be filed for altering the amount of maintenance and a new decree that supersedes the
older one must be granted if the court thinks fit .
z Debts to have priority (Sec. 26)
If there is a charge on the estate of the deceased, the money must first be used
to clear out all the debts that are payable by the deceased, as per Section 26 of
the Hindu Adoption and Maintenance Act. Under Hindu law payment of one’s
debts is considered essential for the salvation of their soul and so one’s duty to
pay their debts back has a religious connotation.
In the case of Kripal Singh v. Balwant Singh, it was held by the court that
such debts shall be binding on the son which is not:
Immoral,
• Illegal,
• Opposed to public policy, or
• Agreed upon due to a reckless borrowing of money for no reasonable grounds
or for deliberate waste.
It is the religious, moral, and legal duty of the dependents to pay off the debts
of the deceased before using the money for maintaining themselves.
Maintenance When to be a charge (Sec. 27) of the
Hindu Adoption
z and Maintenance Act states that:
A dependent’s claim for maintenance must not be a charge on the deceased’s estate unless
otherwise provided in a will of the deceased or an agreement between the deceased and the
dependent.
In the case of Kare More Sharabanna Rudrappa & ors. v. Basamma & ors, it was held
that:
A person’s wife and children who are entitled to be maintained out of his property must be
paid maintenance by making a charge over his property that he possesses, and
Out of those properties that have been transferred gratuitously in order to avoid
responsibilities.
In the case of Gangubai Bhagwan Kolhe v. Bhagwan Bandu Kolhe, it was held that:
If a wife is entitled to maintenance she can recover it from her husband’s estate even after his
death.
It was further held that if the husband’s estate is enough to maintain herself then a charge can
not be made over that property, but if it is not enough, then it is necessary to keep a charge in
order to recover her maintenance.
As judicial precedent has the power to supersede the legislation, maintenance can be a charge
with or without any agreement or will of the deceased.
z Effects of transfer of property on rights to
maintenance (Sec. 28)
A dependent who is entitled to receive maintenance from a property or an estate and the very estate
gets transferred, it becomes the obligation of the transferee to maintain the dependent if the transferee
has received a notice regarding that right or if the transfer is without any reasonable grounds.
Section 28 of the Hindu Adoption and Maintenance Act states that:
The transferee has to maintain the dependent out of the property he received if he has the notice of the
right or the transfer is gratuitous.
This idea flows from Section 39 of the Transfer of Property Act, 1882 which says that:
If a third person is entitled to be maintained from the profit made out of immovable property and such
property is transferred, the transferee will be liable for the payment of such maintenance if there was a
notice or if the transfer is gratuitous.
But, if the property was transferred for consideration and notice was not provided regarding the
maintenance then the transferee will not be liable to make any payments for maintenance.
The maintenance can only be recovered from the property transferred by the person who was originally
liable to pay maintenance and cannot be recovered from any other property that the transferee holds.
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