Uniform Method of Maintenance: A Socio Legal Study

Anurag Pandey

NALSAR University Of Law, Hyderabad

Editor’s Note: The paper deals with the method of maintenance in India. The author has looked at the provisions of the Hindu Adoption and Maintenance Act, 1956 and has analyzed the Indian society in terms of the issue.”

INTRODUCTION

The aged parents, a virtuous wife, and an infant child must be maintained even by doing hundred misdeeds.[1]

As we can see from the above statement which is said by Manu, maintaining a family is an absolute liability of a person and this work has to be done or performed by him at any cost. But this notion of maintenance has changed with time. These changes which have occurred with time will be mentioned as the project will be developing.

But first let us know what does maintenance means?

In the world today the definition of maintenance is in two parts: the first one is:

Money that somebody must pay regularly to their former wife, husband or partner, especially when they have had a children together.[2]

This meaning is the most common meaning of maintenance that we all know hence we can call this Alimony also. But there is another meaning of this term Maintenance which is:

The provision of financial support for a person’s living expenses, or the support so provided.[3]

This meaning or definition of maintenance is broader than the previous one as it covers various other members of the family, which include:[4]

  1. Sons[5]
  2. Unmarried daughters[6]
  3. Wife
  4. Parents[7]
  5. Grandparents[8]

Here these 5 groups are again divided into various other sub-groups which include:[9]

  • Illegitimate children
  • Step-Mother
  • Concubines (Avaruddastri)
  • Widow
  • Divorced Wife

But the law and notion of maintenance is a bit different in Hindu and Muslim Law, and that also specially related to wife. As maintenance in Hindu Law is there for the Hindu divorced wife but this was not there in Muslim law as a Muslim husband has the duty to maintain his wife till the time he is married to her and only at the time of Iddat.[10]But this position was challenged in the case of Md. Ahmed Khan V. Shah Bano begum[11], and after this case only The Muslim Women ( Protection of Rights On Divorce)Act, 1986 was enacted to preserve the right of the Muslim woman after divorce as this law lays down the provision of a Muslim women to secure sufficient means of livelihood so that she is not thrown on the street without a roof over her head and without any means for sustaining herself.[12] But this maintenance will be stopped once she will be married and if she is rearing the child then this maintenance will stop after 2 years.[13] This is not the case in Hindu law as the wife after divorce is entitled to maintenance to support her in her pre divorce living standard and may be permanent, except to certain conditions.[14]

And now coming to the exact subject of our project which is Uniform method of Maintenance, in India till date there is no uniform method of allotting maintenance to the aggrieved party and the allocation of maintenance is completely on the discretion of judge and other factors which will be dealt later in the project.

Present method of allocation of maintenance in India:

Sec. 23 of Hindu Adoption and Maintenance Act, 1956 talks about the conditions in view of which an amount of maintenance to the dependant should be allocated. This section says that:

“23. Amount of maintenance.

(1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so the court shall have due regard to the considerations set out in sub- section (2) or sub- section (3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged on infirm parents under this Act, regard shall be had to-

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether the claimant is justified in doing so;

(d) the value of the claimant’ s property and any income derived from such property, or from the claimant’ s own earnings or from any other source;

(e) the number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenance, if any, to be awarded to a dependent under this Act, regard shall be had to-

(a) the net value of the estate of the deceased after providing for the payment of his debts;

(b) the provision, if any, made under a will of the deceased in respect of the dependant;

(c) the degree of relationship between the two;

(d) the reasonable wants of the dependent

(e) the past relations between the dependent and the deceased;

(f) the value of the property of the dependent and any income derived from such property; or from his or her earnings or from any other source;

(g) the number of dependents entitled to maintenance under this Act.”[15]

The other circumstances which affect the amount of maintenance are dealt in the cases of Ekradeshwara Bahusain v. Homeshwar Singh[16] and in case of Rajani Kant Pal v. Sajani Sundari Dassaya[17], in both the case the Privy council stated that:

“The maintenance to be allowed to a widow should be such an amount as will enable her to live consistently with her position as a widow, with the same degree of comfort and reasonable luxury as she had in her husband’s house.”

In another very recent case of maintenance which is Shail Kumari Devi and Anr. V.  Krishan Bhagwan Pathak @ Kishun B. Pathak[18] , the hon’ble Supreme Court of India stated the following factors that leads to the decision of the amount of maintenance which is to be awarded to the aggrieved party or parties. The Supreme Court says that:

“But even on merits, the Family court was not right in fixing the amount of maintenance. The learned Counsel for the respondent took us to the evidence adduced by the parties. From the material on record, it is clear that the appellant No. 1-wife is residing in the house belonging to the respondent- husband and such finding has been recorded even by the Family Court. It is also in evidence that she was receiving income from the land in her possession which belonged to her husband- respondent herein. It is true that the respondent could not state as to the actual amount received by the wife from the cultivation of the land. But it is also one of the considerations which is relevant and material while fixing the amount of maintenance. Moreover, appellant No. 1 has inherited some land from her father.”

The conditions which are mentioned by the hon’ble Supreme Court has mentioned the deciding factors of the amount of maintenance for the wife and event of her minor daughter, as these factors led to the decrease of Rs. 1,000 in the amount of maintenance awarded to the wife.

In another case which is of Gnanaselvi and Ors. V. Illavarasan[19], the Madras High Court said that:

“The first petitioner has been under the care and custody of her mother and she has to incur expenditure to maintain herself and her two children. She has also produced records to show that she had incurred expenses for the education of her children.”

The madras High Court here in this case has pointed out various factors. In the statement quoted above from the judgment of the case we can state the factor which also plays role for the amounting of maintenance which is the expenses incurred in maintaining the child. In this judgment the court also pointed out various other factor which plays key part in the calculating of maintenance. They are:

The salary of the husband,

Number of family member surviving on that salary and his other liabilities,

Whether the petitioner/s were living in the husband/father’s home or separately,

Was the petitioner able to maintain herself in the same standard in which she was living in the husband’s home?

Age of the child asking for maintenance

In this case the court also stated that the burden is always on the petitioner to prove that he/she is in need of maintenance for sustenance.

But in the case of Padmanava Ghosh v. Aparajita Ghosh[20] the hon’ble court held that if after the allocation of maintenance the person who needed the maintenance doesn’t need it anymore because of being able to sustain himself / herself from his / her earning then the amount of maintenance can be reduced to a token amount but cannot completely be quashed altogether. This is also mentioned under Sec.127 (1) and (2) of Code of Criminal Procedure, 1973. Where a magistrate has the right to alter the amount of maintenance allowed to the claimant or even if needed can cancel the whole order.

The same was held in the case of Shri Bhagwan Dutt v. Smt. Kamla Devi and Anr.[21] In this case the Supreme Court expressed the same view but this situation later changed with time and now the whole order of maintenance can be canceled on the change of situation such as re-marriage and wife being able to maintain herself.[22]

The Hon’ble court in the case of Shridhar Bhagwanji Teli v. Sitabai[23] has stated that even the value of estate, taking the debts will also be taken into consideration and will affect the amount of maintenance rewarded to the claimant. In its judgment the court said:

As regards interest, the learned Judge has given interest at 1 per cent per mensem on the thousand rupees borrowed for the daughter’s marriage. That is the rate we are told the family borrows money at. We see nothing wrong in allowing interest which is the interest the plaintiff has herself contracted to pay in respect of the loan. The next item relates to interest on arrears. The learned Judge has given at 8 annas per cent per mensem from the date of judgment until it is paid. We think it proper to vary it to Court rate from the date of suit. The next relates to arrears of maintenance. The position as regards maintenance stands as follows: As we have said the Court found that Rs. 600 a year was the fair rate of maintenance, but the woman was then in possession of the two fields, Nos. 138 and 41, and he allowed Rs. 200 in respect of those fields, making a net liability of Rs.400 a year in cash to be paid to the lady, unless and until she returned the fields. In fact, we are informed she returned the fields in 1933, and also in point of fact she has not received anything by way of maintenance since this suit was filed to the present day. The learned Judge, anticipating some difficulty on the part of the lady in getting her maintenance paid to her, made an order that in default of payment, the arrears will carry interest at 8 annas per. cent, per mensem, with effect from 1st May of the year in which it has fallen due. We think that it is preferable to follow the usual course in such matters and allow Court rate of interest from the date of decree.”

In the following quoted part of the judgment we have seen the widow earning estate has effect on her maintenance amount and even her liabilities has the same effect and in this case it is the marriage of her daughter and the debts she (daughter) has taken which also has reduced her maintenance hence having a negative effect on it. We can observe this from the following words of the judgment:

“The learned Judge’s judgment on this head is sought to be supported by the fact that the widow had, as a matter of fact, incurred debts for maintenance over these years. Those debts would appear to have been incurred by her-for what purposes, is not proved-round about the year 1925, but they end with a bond (Ex. P-4) which purports to be a bond executed in favour of the lender in respect of past loans in the name of the minor, through his guardian, the plaintiff. In other words, the plaintiff has not paid out any sum of money to the lender; she has, as guardian, executed a bond in favour of the lender. It may be we say nothing as to it-that she is not liable on that bond, because she does not purport to be the person made liable by that bond, save in the role as guardian. It is the minor who is the party to the bond through his mother, the guardian, and it would, in our opinion, be unfair to decree in this suit a sum of money on the basis that the widow has discharged that liability when it may be, for all we know (we say nothing as to it), that the creditor suing on that bond would not make her liable but would make the minor liable. If that were so, the result would be that the minor’s share would be burdened twice. It may be, of course, that neither is liable. We say nothing as to that. We therefore-think that it is only fair to reduce the amount given for arrears by the figure of Rs. 874-6-3 and in lieu give the plaintiff a declaration that if she be held liable, after contest, under the bond (Ex. P-4), or for loans made to her for maintenance purposes by the therein mentioned creditor, she shall be indemnified by the defendants against such liability. That reduces the figure found by the learned Judge for arrears roughly to Rs.1000.”

In the very old case of Nittokissore v. Jogendro Nauth[24] while deciding the amount of maintenance the judges has stated that:

“….Their Lordships think that another element to be considered is the position and status of the deceased husband and of the widow. The main subject of inquiry would be the value of the estate; and the question for the Master, and ultimately for the Court, to consider would be the due proportion which should be given to the widow out of it for her proper maintenance, including not only the ordinary expenses of living, but that which she might reasonably expend for religious and other duties incident to the station in life which she might occupy.”

From the above mentioned judgment we can infer two more factors which decide maintenance they are:

The position and status of husband and of wife or widow.[25]

The reasonable want of the widow, including not only the ordinary expenses of living, but also what she might reasonably expend for religious and other duties incident to her position in life.

The case of Purushottamdas Harijivandas v. Bai Ruxmani[26] says that:

“….But that is not an absolute rule for the guidance of Courts in all cases where maintenance is claimed. There are other circumstances upon which the amount of maintenance depends, viz. the past relations of the wife with her husband. These cannot be ignored. There is an indication in the will of the husband that the plaintiff had failed to perform her duties as a wife. The differences between the husband and the wife are also narrated in the agreement. Prima fairer therefore she could not be treated on the same level as the other co-widows for whom the husband had an affectionate regard. It is true that in some years there were windfalls, but the average income between 1923 and 1930 was practically the same and satisfied the plaintiff’s normal requirements. Even when the income was less, as apparently it was when the agreement was entered into, she was content to carry on within that income. It is also true that the total income out of the husband’s estate had progressively increased, but latterly there has been a set-back. Assuming that it was such as could support the plaintiff’s case that was no ground without satisfactory proof that her needs had substantially increased for allowing her claim. The learned Judge below therefore seems to me to have erred in acceding to her prayer for treating her on the same footing as the other co-widows.”

In the judgment as we can see the court has also held that the relationship between the wife and her husband plays a key role in deciding the amount of maintenance. The relationship being sour and cruel from the side of husband to wife will lead to more chances of wife incurring as heavy the amount of maintenance as possible but if the problem in the relationship between the husband and wife is caused because of the wife then she may not get any amount for her maintenance.

In calculating the amount of maintenance Stridhana plays an important role. This was held in the case of Shib Dayee v. Doorga Prashad[27]. In this case the judges held that the stridhana of a wife or widow will be taken into account while calculating the maintenance for the claimant but it (stridhana) will only be taken into account when it is of any productive character, the nonproductive character stridhana plays no role in the calculating of maintenance. The same was held in the case of Gurushiddappa v. Parwatewwa[28] in this case the court held that if the stridhana of women which also include her ornaments are of great value and are likely to be converted into money, then it will affect the amount of maintenance which can be rewarded to the women. The Hon’ble court said that:

Nor will the fact that a widow has in her possession jewels and other property unproductive of income deprive her of or diminish her right to maintenance if they constitute her stridhan, or although forming part of her husband’s estate, they are suitable to the position of the family in society. If, on the other hand, she has property in her possession productive of income, the amount should be taken into consideration in determining the measure of her allowance for maintenance.”

There are three more criterions that play a deciding factor in deciding the quantum of maintenance and these are upheld by the court of law. They are:

In the case of Tagore v. Tagore[29] the court held that the amount of property of a widow or wife is an element in determining and calculation of maintenance but is not regarded as a criterion by the court of law.

In the case of Surampalli v. Surampalli[30] the court has held that the conduct of the claimant towards the defendant and his family will be taken into consideration before awarding of the maintenance. This is same with the maintenance cases of other who can ask for maintenance. For example: Son, Parents, and E.t.c.

And last but not the least is that if a husband forsakes his wife without a justifiable cause then she is entitled to one – third of the property of her husband as her maintenance. This has been held by the High Court of Bombay in the case of Ramabai v. Trimbak[31], and this is also mentioned in the Hindu text of Yajnavalkya[32]

Is there a need of changing this present method of allocation of maintenance to a uniform method of allocating maintenance in respect of the need of the Indian society?

This project is a Socio – Legal Study, meaning that it is not completely a legal subject but also incorporates the societal / sociological aspect in it. This means that it is not important that what is proposed in the subject of this paper is an optimal or viable option for our society. It can be but there is a chance that it may not be.

So, for arriving at a conclusion, the Author has analyzed the whole subject matter of this paper in the view of or in respect of the society of India.

Analysis of the Indian Society and its Needs

As we have seen in the previous chapter dealt in this paper, we have observed that various factors which are now used in calculating maintenance are age old and even there is diversity in the cases of maintenance in India. Why and how can I say so?

India the largest democracy of the world with various personal laws and even public law like Code of Criminal Procedure, 1973. Is still not able to cover each and every circumstance of maintenance claims coming to the court. This is why sec. 125 Code of Criminal Procedure, 1973. This previously was stating that the maintenance amount should not be increasing beyond Rs. 500 /- is now removed by the amendment of the year 2000.[33] Now with this changing economy there are various other demands and even factors arising and it is different from every strata of society of India. But the main event was after the Md. Ahmed Khan V. Shah Bano begum[34] case where it somehow proved the superiority of the personal laws over the public laws because of the flaws in our Government Structure.

The major question is if we codify our maintenance method and made it uniform for everybody then on what basis we are going to make it uniform. Shall it be on the basis of the economic class from which the parties of the case are belonging, especially the claimant/s? Or shall it be on the basis of the religious institution they are belonging to? And in my opinion this should incorporate the previous mentioned method. Or shall it be on the basis of WHO is asking the maintenance? Is he the husband, son, father, parents, grandparents or wife, daughter, mother? Shall gender play the role in making the process of allocating maintenance uniform? Because, our society being a mostly a patriarchal society has always from ages long has deemed the female sex as dependent and weak, needing the support of her male counterpart for life long. Whether that person is her father, son, husband, in laws or any other male family members. But with the changing time we have observed the cases in which even male counterpart are seen dependent for their maintenance on their female counterparts, and here I am not taking in the view of minor child but rather in the view point of earning husband claiming maintenance from his wife because she was earning more than him. This type of case was latest observed in the court of Cuttack. Taking this fact and the nature of our society a stigma will always be there while deciding these cases of maintenance while making the method of maintenance uniform, as male gender getting dependent on female is a stigma and it has been observed in the law of our land especially the personal laws where gender bias are prevalent and keeping the male gender at the upper hand. Last but not the least the religious system of allocation of maintenance. As we have seen the sector of maintenance is basically covered and dealt in the personal religious laws of our nation. It does is covered under various public law but is prevalent in the religious law, and this factor as we can see in the case of Muslim women is not that female beneficiary, as previously no maintenance was given to the Muslim women after divorce but after the Md. Ahmed Khan V. Shah Bano begum[35] case whose decision by The Supreme Court was reverted by our parliament, and an act was passed Act which is The Muslim Women (protection of right on Divorce) Act, 1986, 1986. Now they (Muslim women) were taken out of the ambit of 125 Code of Criminal Procedure, 1973.[36] Only with the exception that they will be given a nominal token amount which is for the fore shake or better to say for the name shake of providing maintenance to the former wife, even in this law the maintenance given for child maintenance is time barred off just two years. The same discrimination and patriarchal feeling is observed in one form or another, and that also of different degrees. But this discrimination is present in mostly every personal law which is present in our nation.

But we cannot say that bringing uniformity in the method of allocation of maintenance will be total failure and not suiting our society. I agree for fast decision in the cases we need a uniform method which should be having some discretion of judges as per mentioned in sec. 23 of Hindu Adoption and Maintenance Act, 1956[37] so that all the cases can be covered in an effective manner. But for bringing uniformity the foremost task which we have to do is to change the present mindset of our law making body, and also a multiple view method have to be adopted to make it possible to cover all the variety of cases, with multiple option of method at the hand of judge and flexibility of law in using them is also needed.

CONCLUSION

In Conclusion I will like to say that, in my view India, and its society is still not ready for the introduction of a UNIFORM METHOD OF MAINTENANCE. Because for getting into this form of allocating maintenance the people of our nation has to come out of the hierarchy and caste and gender superiority feeling, which is deep rooted in the society and can be clearly observed regularly. I think Uniform Method for Maintenance incorporated with the discretion of the judges will be more effective in handling and allocation of maintenance to the claimant, but as we something ought to be done with time for fruits; if we introduce the uniformity in the maintenance perspective of law then it may not be effective or fruit full.  Hence, in conclusion I will say that our society is not ready for this change which has the potential of changing the deep rooted value and norm of hierarchy, gender superiority and discrimination and an ever evolving diversity.

Edited by Amoolya Khurana

[1] Manu Cited in Mitakshara

[2] Oxford Advanced Learner’s Dictionary, 8th Edition, PP.: 929

[3] http://www.oxforddictionaries.com/definition/english/maintenance

[4] Mulla Hindu Law, 21st Edition 2010

[5] Ammakannu v. Appu, (1869) 2 Beng LRAC 15

[6] Bai Mangal v. Laximibai, (1878) 2 Bom 573

[7] Subbarayana v. Subbakka, (1885) 8 Mad 236

[8] Family Law, Dr. Paras Diwan , Ninth Edition: 2009, Reprint2011

[9] Supra 4

[10] Paras Diwan, Muslim Law in Modern India,(1991), PP:  135.

[11] AIR 1985 SC 945.

[12] Supra 5

[13] Ibid

[14] Supra 4

[15] Sec.: 23, The Hindu Adoption and Maintenance Act, 1956.

[16] A.I.R. 1929 P.C. 128 at PP. 187 of 50 I.A.

[17]A.I.R. 1934 P.C. 29

[18] AIR 2008 SC 3006

[19] 1999(1)ALT(Cri)134

[20] (1990)1CALLT296(HC)

[21] AIR 1975 SC 83

[22]  Supra 4, 5

[23] AIR 1938 NAG 198

[24] (1878) 5 IA 55

[25] Supra 4

[26] (1938) Bom 1`

[27] (1872) 4 NWP 63

[28] (1937) Bom 113

[29] (1872) 9 Beng LR 377

[30] (1908) 31 Mad 338

[31] (1872) 9 Bom HC 283

[32] Mayukha, Ch. 20, Para 1

[33] Sec. 125, Code of Criminal Procedure, 1973

[34] Supra 11

[35] Supra 11

[36] Sec.: 125, Code of Criminal Procedure

[37] Hindu Adoption and Maintenance Act, 1956

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