Law of Maintenance

In one minute

Maintenance is the support that the law makes one person pay to another. Under Chapter III of the Hindu Adoptions and Maintenance Act, 1956, a Hindu wife, a widowed daughter-in-law, children, aged or infirm parents and certain dependants of a dead person can claim it.

The court fixes the amount by the status of the parties, the claimant's reasonable wants and means. A claimant who ceases to be a Hindu loses the claim under this Act. Other laws also give maintenance, such as section 144 of the BNSS and the Domestic Violence Act.

Legal provision

• Section 3(b): "maintenance" includes food, clothing, residence, education and medical attendance and treatment, and for an unmarried daughter the reasonable expenses of her marriage.
• Section 18: a Hindu wife is entitled to be maintained by her husband for her lifetime, and may live apart on the grounds in section 18(2) without losing the claim. She loses it if she is unchaste or ceases to be a Hindu.
• Section 19: a widowed daughter-in-law may claim from her father-in-law, to the extent that she cannot maintain herself. The claim ends on her remarriage.
• Section 20: a Hindu must maintain his or her legitimate or illegitimate children and aged or infirm parents. A child may claim while a minor. Parents and unmarried daughters can claim to the extent that they cannot maintain themselves.
• Sections 21 and 22: dependants of a dead person are maintained out of the estate by the heirs.
• Sections 23 to 28: amount, claimant must be a Hindu, alteration, priority of debts, charge on the estate, and effect of transfer.

Meaning and definition

Maintenance is the provision of the basic needs of a person who cannot meet them, by a person bound by law to provide them. Under the Act it is a personal obligation of a living person, and for dependants an obligation of the heirs, payable out of the estate they inherit. It is a charge on the estate only if one is created (section 27).

• Maintenance under the Act
  • From a living personWife (section 18); children and aged parents (section 20); widowed daughter-in-law from the father-in-law (section 19).
  • From the estate of a dead personDependants, from the heirs (sections 21 and 22).

Detailed explanation

Step 1: the wife (section 18)

A Hindu wife may claim maintenance from her husband during her life, whether she was married before or after the Act. She may live apart without losing it in these cases. The husband has deserted or neglected her. He has treated her with cruelty that causes reasonable fear of harm. He has another wife living. He keeps a concubine in the same house or lives habitually with one. He has converted to another religion. Or there is any other cause that justifies living apart. She has no claim if she is unchaste or has ceased to be a Hindu.

Step 2: the widowed daughter-in-law (section 19)

After her husband's death she may claim from her father-in-law if she cannot maintain herself from her own earnings or property. She must also be unable to get it from her husband's estate, her parents' estate or her children. The obligation is not enforceable if he lacks the means from coparcenary property in his hands in which she has had no share. It ends if she remarries.

Step 3: children and aged parents (section 20)

A Hindu must maintain legitimate or illegitimate children and aged or infirm parents, including a childless step-mother. A child may claim while a minor. A parent or an unmarried daughter may claim to the extent that he or she cannot maintain himself or herself from own earnings or property.

Step 4: dependants of a dead person (sections 21 and 22)

Dependants include the father, mother, widow (until she remarries), minor sons and grandsons, unmarried daughters and granddaughters, widowed daughter, widow of a son, and a minor illegitimate son and unmarried illegitimate daughter, with conditions. The heirs must maintain them out of the estate they inherit. A dependant who got no share can claim from those who take the estate, in proportion to the value of what each took. A dependant who is also an heir need not contribute if the share is less than the maintenance due.

Step 5: amount (section 23)

The court has discretion whether to award maintenance and how much. For a wife, children and parents it considers the position and status of the parties, the reasonable wants of the claimant, whether living apart is justified, the claimant's property and income, and the number of persons entitled. For dependants it considers the net value of the estate, any provision in a will, the degree of relationship, reasonable wants, past relations, the dependant's property and the number of dependants.

Step 6: other points

• Hindu claimant (section 24): a person who has ceased to be a Hindu by conversion cannot claim under this Chapter.
• Alteration (section 25): a material change in circumstances justifies a change in the amount, whether it was fixed by decree or agreement.
• Debts first (section 26): debts of the deceased have priority over dependants' claims.
• Charge (section 27): a dependant's claim is not a charge on the estate unless created by will, decree, agreement or otherwise.
• Transfer (section 28): the right may be enforced against a transferee who had notice or took by gift, but not against a buyer for value without notice.

Step 7: other laws

• Hindu Marriage Act, sections 24 and 25: interim and permanent maintenance in matrimonial cases.
• Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023: maintenance of wives, children and parents, which carries forward section 125 of the Code of Criminal Procedure. It applies to persons of every religion.
• Protection of Women from Domestic Violence Act, 2005: relief for women in a domestic relationship, including a relationship in the nature of marriage.

Exceptions and special rules

• Second wife in a void marriage: she cannot claim as a wife under section 125, as held in Yamunabai.
• Wife under the criminal law: the meaning of "wife" in section 125 was referred to a larger Bench in Chanmuniya.
• Live-in partners: a woman in a relationship in the nature of marriage may seek relief under the Domestic Violence Act.

Don't confuse: maintenance of a wife and of a dependant

Point	Wife (section 18)	Dependant (sections 21 and 22)
Who pays	The husband, personally	The heirs, out of the estate
When	During the husband's life	After the death of the owner
Charge on property	Personal obligation	Charge only if created (section 27)
Loses the claim	If unchaste or converts	If widow remarries; if converts

Common mistakes

• Saying that a wife loses maintenance whenever she lives apart. Section 18(2) lists justified reasons.
• Forgetting that a claimant who ceases to be a Hindu loses the claim under this Act (section 24).
• Saying that the dependant's claim is automatically a charge on the estate. Section 27 says it is not.
• Mixing maintenance under the 1956 Act with maintenance under the Hindu Marriage Act and the BNSS.

Apply it

Problem

Ramesh dies leaving his widowed mother Parvathi, who has no income. He had two sons who inherited all his property. Parvathi asks for maintenance. The sons refuse. Decide.

Issue

Can Parvathi claim maintenance from the heirs?

Rule

The mother is a dependant (section 21). The heirs must maintain dependants out of the estate they inherited (section 22).

Application

Parvathi cannot maintain herself and is a dependant of her dead son. The sons took the estate. Her claim is not a charge unless created, but the sons must maintain her out of the estate, each in proportion to the share taken.

Conclusion

The sons must pay maintenance to Parvathi, and the court fixes the amount under section 23.

Leading case laws

• Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav

  Facts. A woman who went through marriage rites with a man whose first wife was alive claimed maintenance as his wife under section 125 of the Code of Criminal Procedure.

  Principle. The marriage was void under sections 5(i) and 11. She could not claim the status of a wife under section 125.

  Why it matters. It shows that the claim to maintenance as a wife depends on a valid marriage.

• Chanmuniya v. Virendra Kumar Singh Kushwaha

  Facts. A widow said she was married by Katha and Sindur to her husband's younger brother. The High Court held the essentials of marriage were not performed.

  Principle. The Bench favoured a broad meaning of wife in section 125 of the Code of Criminal Procedure, but could not go against two earlier two-Judge decisions. It referred three questions to a larger Bench.

  Why it matters. It is a reference order that shows the debate on who is a wife for maintenance.

• D. Velusamy v. D. Patchaiammal

  Facts. A woman claimed maintenance as the appellant's wife. He said he was already married to another woman.

  Principle. The Court laid down a four-condition test for when a live-in relationship is marriage-like under the Domestic Violence Act.

  Why it matters. It extends relief to women in relationships in the nature of marriage.

• Indra Sarma v. V.K.V. Sarma

  Facts. An unmarried woman lived for years with a married man who then left her without maintenance.

  Principle. A woman who knowingly lives with a married man is outside the Act's protection. The Court gave eight guidelines and asked Parliament to legislate.

  Why it matters. It sets limits on maintenance claims by live-in partners.

How to write this answer in the exam

Key points to remember

• Section 18: wife; may live apart for justified reasons.
• Section 19: widowed daughter-in-law, from the father-in-law.
• Section 20: children and aged or infirm parents.
• Sections 21 and 22: dependants of the dead, from the estate.
• Section 23: factors for the amount. Section 24: claimant must be a Hindu.
• Section 144 BNSS applies to all religions.

Quick self-test

Related topics

• Maintenance pendente lite
• The Hindu Adoption and Maintenance Act, 1956
• Law of Guardianship