423981527-dhhhh-guu - Which Section lays down provision regarding PDF

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Which Section lays down provision regarding...

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NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

Subject – Legal History Topic: Law of Maintainance

SUBMITTED BY:

Arsh Singh(2019B.B.A.,LL.B. Roll no. 06) Pency Agarwal (2019B.B.A.,LL.B. Roll no. 30) Siddhant Saroj (2019 B.B.A.,LL.B. Roll no. 45) (BBA-LLB; Class of 2024)

SUBMITTED TO:

Mr. Kapil Sharma

National Law University, Odisha (Research Associate cum Teaching Assistant)

TABLE OF CONTENTS Acknowledgement................................................................................................. 3 Introduction........................................................................................................... 4 Research Methodology........................................................................................... 5 Objectives.............................................................................................................. 5 Research Questions............................................................................................... 5 Scope and Limitations........................................................................................... 5 I.

Maintenance in case of wife............................................................................ 6

II.

Maintenance - children and parents............................................................... 9

III.

Factors Considered to establish the degree of Maintenance......................12

Conclusion........................................................................................................... 14 Bibliography......................................................................................................... 14

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National Law University, Odisha

Cases Bakulabai v Gangaram(1988) 1 SCC 53......................................................................... 13 Begum Subanu v A.M Abdul Gafoor,(1987) 2 SCC 28...........................................................7 Bhagwan Dutt v Kamla Devi (1975) 2 SCC 38...................................................................8 Hindu Marriage Act 1955, s 12....................................................................................... 7 Karauppana Gounder v. China Nachamal,(1974) AI.............................................10 Ranjit Kumar Bhattacharya v. Sabita Bhattacharya,(2009) AIR Cal 30.....................................8 T.P.S.H Selva Saroj v T.P.S.H Sasinathan, (1982) Cr Jj 203...................................................13 V.M Arbat v Kashira (1987) SC 110..............................................................................13 Vanamala Smt v Ranganath Bhatta, (1995) 5 SCC 29...........................................................8

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National Law University, Odisha ACKNOWLEDGEMENT This project is a subject of extensive research could not have been completed without a few things. First of all, we would like to express our gratitude to our teachers MR. KAPIL SHARMA and MS. DIVYA RATHOR for helping and guiding us towards the completion of this project. We would also like to thank the administration for the provision of best facilities without which the completion of this project would have been impossible. We would also like to acknowledge the constant support of our seniors who showed the right track. Lastly, we would like to thank the almighty whose blessings helped us to complete this project.

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National Law University, Odisha

INTRODUCTION

Maintenance refers to the right of the wife, parents and children and dependent to get monitory assistance. This not only includes food, clothes and a place to live according to the status the person has lived. The wife can claim maintenance after and before the marriage is dissolved, the children are entitled for maintenance until and unless they are minor or they are not capable of maintaining themselves and the aged parents are entitled to be maintained irrespective of the fact that they have or haven’t transferred their property to their children. Beside that even the widow daughter in law and some people who come under the category of dependence are eligible to get maintenance. Before 1956, there was no codified law for maintenance. With the advent of Hindu Adoption and Maintenance Act, 1956 there were many changes brought with respect to maintenance. This act brought amendments and made it more codified. Accordingly it defined the maintenance as provision for food, clothing, residence, education and medical attendance and treatment. In case of unmarried daughter, it includes reasonable expenses for her marriage. This act brought up 30 sections among which 18 to 28 are associated with maintenance. It can further be divided into personal liability which emerges out of personal relationship with the party and the former is liability that depends on the possession of the property.

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National Law University, Odisha

RESEARCH METHODOLOGY We have undertaken a meticulously descriptive research tactic. Both primary and secondary sources, Books, Federal Law Reports and Legislative assembly Reports have been used to extract information and all these have been pivotal material for making this project.

OBJECTIVES 

To observe closely the developments brought by the Hindu maintenance and adoption

 

act of 1956. To find out the differences between personal relationship and dependent maintenance. To explore the various factors in determining the degree of relationship and the extent



of the requirement of maintenance. To analyse the limitation of the Hindu maintenance and adoption act of 1956.

RESEARCH QUESTIONS   

Why are court proceedings for maintenance a part of CrPc? How does the gravity of relationship affects the degree of maintenance? What are the developments in the law of maintenance after 1956?

SCOPE AND LIMITATIONS The scope of this project has been kept reasonable. Bearing in mind, there are not a lot of resources available on the impacts of different laws of maintenance on society andit was certainly not possible to have a wide ambit and explain everything about the different types of implications and workings of the laws of maintenance in this project. As we have not elaborated on the cases decided in regards to maintenance laws, rather its working, the related sources of information are limited and hence we could not cover much more than we have managed.

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National Law University, Odisha

I.

MAINTENANCE IN CASE OF WIFE

In this case maintenance refers to the amount that is paid by the husband to the wife who is not capable of maintaining herself. A wife is eligible for seeking maintenance during the subsistence of marriage and also after the dissolution for marriage. Different laws administering maintenance are; Hindu adaptation and maintenance act, 1956 for Hindus, Muslim women act 1986 for Muslims, for Christians it is Divorce Act 1869 ,Parsi Marriage and Divorce Act, 1936 followed by Parsi, above all there is a uniform secular law which is laid down under criminal procedure code,1973; special marriage act, 1954.

1. Court procedure The temporary maintenance is given till the time the final decision is given by the court, mentioned under the section 36 of special marriage act 1954. The maintenance is given in case were the wife’s independent earning is not sufficient enough for her basic and necessary expenses. Here the basic need not only includes food and shelter but maintaining the person according to the status and life style the person was living before. The case related to maintenance can be filled under the Code of Criminal Procedure mention in section 125 to 12 of CrPc but generally proceedings and the relief are civil in nature. In these cases the defendant is not considered as accused and also doesn’t come under the provision of section 2(d) of the code. This is basically done to provide speedy and imminent relief to the sufferer. Another reason for this was that a magistrate can better handle such matters and can imprison the person in case the person fails to pay the maintenance according to the requirement. Beside that there are many divorce cases with a criminal aspect to it such as cases related to adultery and domestic violence. In parsi marriage act a similar provision is given under section 39 of the act and also to Christian under section 36 of divorce act 1869 which is applied to people belonging to Christian community.

2. Relief provided

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National Law University, Odisha The husband or the wife can ask for maintenance to each other in case they are able to prove there incapability to afford their living expenses1. Provisional maintenance can be claimed by the wife during the proceedings pending under the act, such claims can be made under section 18 of Hindu Adoption and Maintenance Act, 1956. Wife can also claim separate residence in case of desertion, leprosy, any other wife living in the same house or any other clause that comes under section 18(2). In Muslim law the women is authorized to be paid by her previous husband within the iddat period. It is the meher which has been promised to be given to her and also includes the gifts and properties given to her by her friends, relatives and husband during marriage. This is mentioned in section 3 of Muslim women act 1986. In special marriage act which is very similar to Parsi marriage only wife can ask for maintenance. Maintenance cases can also be filed in the district court under the divorce act, 1869 section 37. In case the husband fails to pay such amount then the court may discharge or modify such order.

3. Important case study 3.1.

MAINTENANCE OF PREVIOUS WIFE

In Begum SubanuV A.M Abdul Gafoor,2 case a Muslim women asked for maintenance for herself and her daughter to live separately from her husband as the husband had got married to another women. The lower court ruled against her but when the case was taken to Supreme Court it overturned the judgement of the lower court and gave a judgement in favour of the women. In this case Supreme Court passed the judgement that a wife is entitled to get maintenance and can also refuse to live with her husband if he is engaged in another marriage.

3.2.

WIFE LIVING SEPARATELY WITH MUTUAL CONSENT

In this case the appellant got married in 1970 and took a divorce from her former husband as the marriage was not working. At the time of divorce no order for maintenance was made. Later the women filled a case for claiming maintenance that was rejected by the lower court but then when she filled the case in higher court and a decision was passed in her favour and the apex court declared that a women is authorized to get maintenance even if the divorce is

1 Hindu Marriage Act 1955, s 125 2 Begum Subanu v A.M Abdul Gafoor,(1987) 2 SCC 285

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National Law University, Odisha taken by mutual consent under section 125(4) of the code. This case was came to be known as the Vanamala Smt v Ranganath Bhatta.3

3.3.

EARNING WIFE MAINTENANCE

The section 488 do not impose absolute liability on husband the husband to maintain his wife. The term used ‘may’ in section 488(1) clearly justifies that. In the landmark case of Bhagwan Dutt v Kamla Devi 4the appellant filed divorce from her husband on the ground of desertion and cruelty. During the case was going on the women also filed for maintenance for herself and her daughter under the section 488 of CrPc. The judgement was passed against the appellant, the court decided that as the wife was earning so the income of the wife will be taken into consideration for determining the amount of maintenance needs to be provided by the husband.

3.4.

MAINTENANCE TO WOMEN IN LIVE IN RELATIONSHIP

In the case of Ranjit Kumar Bhattacharya v. Sabita Bhattacharya5 a married man and a woman lived like husband wife for many years and they also had a child. Later they filed for separation so the wife claimed for her maintenance under section 18 of HAMA and 125 of CrPc. The court that the there was absence of the marriage procedure followed so rights can’t be given unless there was a proof of insurmountable obstacles to valid marriage. Hoe ever the court directed the man to give 30,000 for the damages that she incurred.

4. Maintenance of widowed daughter-in-law A widowed wife is eligible to receive maintenance under Hindu Adoption and Maintenance act, 1956.

3 Vanamala Smt v Ranganath Bhatta, (1995) 5 SCC 299 4 Bhagwan Dutt v Kamla Devi (1975) 2 SCC 386 5 Ranjit Kumar Bhattacharya v. Sabita Bhattacharya,(2009) AIR Cal 301

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National Law University, Odisha (1) A Hindu wife, 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: To the extent 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 acquire maintenance(a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in law has not the means to do so from any 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. Section 19 also has a provision which authorises a widow to ask for maintenance from fatherin-law. It can be seen in the famous case of S.V Parthasarathy Battachariar v. S. Rajeswari. In this case c widow asks for maintenance from her father-in-law and mother-in-law for herself and her two children. The court to took a judgement in favour of her stating that the father-in-law is liable to provide maintenance to the widow daughter-in-law and the grand children. So the court directed them to pay Rs.3000 per month to them. MAINTENACE FOR DEPENDENTS The heirs of a deceased Hindu are bound to maintain the dependant of the estate inherited by them from decease. The concept of maintenance for dependent is mentioned in section 21 and 22 of the Hindu adoption and maintenance act 1956. Section 21 lists the person who can be considered as dependent of a deceased Hindu and section 22 lays down the rules relating to these dependents. As contrast to section 18 to 20 were the maintenance arises from the relationship one must remember. But in section 21 it depends on the property inheritance. The former has limited liability as it is just based on the duty of the heirs to maintain the deceased whom the deceased was bound to maintain. In this Hindu adoption and maintenance act has not taken into account the calm of the paramour. That is the concubine of a man dying, after the commencement of this act, is not entitled to maintenance6.

6 Karauppana Gounder v. China Nachamal,(1974) AIR

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National Law University, Odisha The person who inherited some estate is liable to maintain the dependent who has not obtained any share in the estate of deceased. Act,1956 the following person can be considered as dependent: Father, Mother, Widow, Minor legitimate son, the minor illegitimate unmarried daughter, the widowed daughter, the son’s widow, the grandson’s widow, the son’s unmarried daughter and the son’s son’s minor son7. In cases there are instance were the same person comes under both the category of maintenance, but section 22 states it clearly that the dependent is authorized for maintenance only if “any share in the estate of a Hindu dying after the commencement of this act by testamentary or intestate succession.” Suppose in case a man dies and has left his mother, widow and a son. These people will generally be considered as dependent, but they are still not entitled for maintenance as they will eventually get a share in the estate of the deceased.

II.

MAINTENANCE- CHILDREN AND PARENTS

In India, useful provisions for improvement of children and parents are provided below a lot of Acts. Aim of such provisions is to cut a social cause and to save the homeless and poor and to offer simple, cheap and fast mechanism for assistance and preservation to children and parents.

1. STATUTORY PROVISIONS Hindu Marriage Act, 1955, [Section 26] – During the proceedings, under the Act, the courtroom may pass orders to the custody and schooling of youngsters 8. Under this Act, both mother and father are responsible to keep the kids as ordered with the aid of the court. While making such orders, the court considers needs of the youngsters. These orders and provisions may be altered on occasion. Any software for the training of youngsters all through pendency of lawsuits under the Act, has to be decided in sixty days from the date of carrier of note at the respxondent. 7 Hindu Adoption and Maintenance Act 1956, s 21 8 Ibid n7 s 26

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National Law University, Odisha Hindu Adoption and Maintenance Act, 1956, [Section 20] – A Hindu male or female is certain to hold his/her valid minors and elderly parents.Unmarried daughter has to be maintained if they are not able to maintain themselves. [Section 23 (2)] states that figuring out the quantity of maintenance to be presented to kids or elderly parents, the courtroom shall remember the following: (a) position of the parties; (b) affordable wishes of the claimants; (c) if the claimant is residing one by one, whether the claimant is justified in doing so; (d) claimant’s income and price of the property held with him. If someone ceases to be a Hindu, he/she cannot declare beneath this Act [Section 24]. The amount of protection can be changed if the circumstances are warranting so [Section 25]. Under this Act, even the heirs of a dead Hindu are sure to maintain his/her “dependants” out of his/her property inherited by using them [Section 22]. Dependents include dead man or woman’s son, single daughter, widowed daughter, unlawful son, unlawful daughter [Section 21]. Criminal Procedure Code, 1973,– Magistrate may order someone to make monthly allowance for preservation in a case where any man or woman who despite having enough approach or refuses to keep – (i) his valid minor infant who's not able to hold itself; or (ii) valid or unlawful baby (now not being a married daughter) unable to hold itself because of any bodily or mental abnormality or (iii) married daughter till she attains majority, if her husband isn't capable of holding her; or (iv) his/her parents who are unable to maintain themselves. This segment also makes a provision for maintenance for the duration of the pendency of lawsuits regarding monthly allowance9. Also, use for protection at some point of pending proceedings is to be determined by the Magistrate, within sixty days of the date of service of note of application to such man or woman. A man or woman who fails to comply with the order of the Magistrate without stating enough purpose may also be sent to jail. The order passed below this section can be altered by Magistrate on evidence of exchange in instances 10

9 HAMA 1956, s 125 10 Criminal Procedure Code 1973, s 127

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National Law University, Odisha Muslim Women (Protection of Rights on Divorce) Act, 1986, [Section3] – A divorced Muslim lady is entitled to a fair provision and renovation for kids born to her for a period of years, from the dates of delivery of such youngsters. It doesn’t count if the children were born earlier than or after the divorce, the previous husband has to pay protection. If the previous husband fails, to comply with the order surpassed by Magistrate, without, showing any cause, he should go through imprisonment for a yea...