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Report No. 252

Chapter 4

Right to Maintenance in Classical Hindu Law

4.1 The classical Hindu law on maintenance was devised in such a way that no member of the joint family, especially the female members, should be left unprovided for. Maintenance was a supreme duty that a Hindu owed to all those who were dependent on him, and which bound both the person and the property, including even the purchaser of joint family property.

4.2 The above idea was based on the principle that maintenance is an integral part of the concept of join family. Family law scholars, Paras Diwan and Peeyushi Diwan note the relevance of the notion of the joint-ness of family life, to understand the basis of maintenance:

Every member of the joint family has a right to maintenance against the joint family property ... It was the duty of the karta to see that all reasonable wants of the family members were satisfied. If the karta failed to fulfil his duty, the members could enforce it by legal action.

Even with the emergence of the concept of self-acquired property and the coparcenor's right of partition, maintenance did not lose its importance. Rather the concept of maintenance further grew and developed. So far the right was available against certain properties, now it became available against certain persons also.3

3. Diwan, Paras and Peeyushi Diwan (1990). Law of Maintenance in India. New Delhi: Deep & Deep, Pp. vii-viii

4.3 Under classical Hindu law, the liability to pay maintenance arises under two conditions. It is either an incident of the relationship between the parties, which leads to a personal obligation to pay maintenance. In other cases, the liability to maintain certain members of the family is based on possession of property, for example, by way of inheritance. Several scholars also note that classical Hindu law made a distinction between the moral and legal rights of maintenance.4

If a male Hindu, did not perform his moral obligation to pay maintenance during his lifetime, then upon his death, the obligation would transform into a legal obligation which could be realized against the property of the deceased male. This illustrates that the obligation to maintain attached to a person even after his death, but at the same time also underscores the significance attached to maintenance in classical Hindu law.

4. Diwan, Paras and Peeyushi Diwan (1990). Law of Maintenance in India. New Delhi: Deep & Deep, page 17; Aggarwal, S.N. (1988). Commentary on the Law of Maintenance. 3rd review edition. Allahabad: Orient Publishing. page 3

4.4 On the specific question of the wife's right to maintenance, all major scholars and commentators agree that paying maintenance to the wife is a "personal obligation" of the husband, which arises from the fact of marriage, from the moment the marriage takes place.5 Wife has a special position in the classical law on maintenance, such that refusal to maintain a wife attracts stricter censure than in case of other members of the family. Shastri's exposition of the principle is particularly illuminating and relevant for our purpose here:

5. Diwan, Paras and Peeyushi Diwan (1990). Law of Maintenance in India. New Delhi: Deep & Deep, page 39; Aggarwal, S.N. (1988). Commentary on the Law of Maintenance. 3rd review edition. Allahabad: Orient Publishing. page 8; Sharma, Preeti (1990). Hindu Women's Right to Maintenance. New Delhi: Deep & Deep. P. 77; Gupte, N.Y. (2001). Law Relating to Family Courts Act, 1984. 3rd Edition. Mumbai: Ravindra. p. 153

The establishment of such a relation, ipso-facto, provides a right to the wife to have maintenance from her husband, right to the daughter-in-law to have maintenance from her father-in-law in case of inability of the husband to maintain her and a right to the widow to have maintenance from the property of her husband or from those persons who are managing the affairs of the property of her husband.6

6. Shastri, Madhu (1990). Status of Hindu Women: A Study of Legislative Trends and Judicial Behaviour. Jaipur: RBSA. Pp. 171-172



Right of the Hindu Wife to Maintenance: A relook at Section 18 of the Hindu Adoptions and Maintenance Act, 1956 Back




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