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Report No. 98

6.12. Orders whether to be made effective from a date prior to institution of proceedings (Suggestion of Government of West Bengal).-

Commenting on the proposal put forth in the Working Paper of the law Commission as to the date from which an order for interim maintenance may be made effective, the Government of West Bengal1 has suggested that liability to pay should arise precisely from the date when the duty to pay maintenance was violated, and that the date of omission or neglect to maintain a spouse or child in distress should, therefore, be the criterion in this regard. We are, however, afraid that the suggested change would not quite fit in with the provisions under consideration in this Report, or even with the Hindu Marriage Act taken as a whole. The question of orders for maintenance in the context of that Act arises because matrimonial relief provided for the Act.

Since the subsistence of the marriage is in issue in these proceedings, it becomes necessary for the law to look into matters consequential on the break-up of the conjugal life of the spouses. It is only to that extent that orders for maintenance are provided for in the Act. Maintenance for the period to the petition seeking relief under the Act would not be a matter ancillary to the filing of the petition for matrimonial relief and may not appropriately fall within the Act. A matrimonial proceeding does not appear to be an appropriate proceeding wherein to litigate what are, for all practical purposes, claims for the recovery of arrears of past maintenance.

As a matter of substantive law, liability to pay maintenance may arise as soon as there is neglect, but the machinery for enforcing the liability may not necessarily find a place in matrimonial legislation. It is for these reasons that we are unable to accept the suggestion. Lest this should appear to be too technical an approach,we should hasten to add that we do not underrate the importance of speedy disposal of claims for maintenance. Suitable machinery in that regard is provided in the Hindu Adoptions and Maintenance Act, 1956, or (where the Act does not apply) in the general law.

1. Law Commission File No. F.2(14)/83-L.C., S. No. 6.

Sections 24 to 26 of the Hindu Marriage Act, 1955 - Orders for Interim Maintenance and Orders for the Maintenance of Children in Matrimonial Proceedings Back

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