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Report No. 252

4.5 The above position is reflected in judicial decisions too. In Ramabai v. Trimbak Ganesh Desai, (1872) 9 Bom HC 283, the husband, an undivided member of a Hindu join family had deserted the wife. The wife claimed maintenance for herself and her child from the husband's relatives. The Bombay High Court held:

No doubt, the authorities do not show that the relations of a deserted wife are under a personal liability to maintain her; but they do show that she is entitled to be maintained out of her husband's property to the extent of one-third of the proceeds of that property.

4.6 The High Court thus upheld the claim of the wife to receive maintenance from her husband's relatives, even though the latter did not have a personal obligation to do so. The validity of this holding is indicated by the fact that this judgment is cited in the authoritative book, Mayne's Hindu Law & Usage8, to illustrate the wife's established right to receive maintenance from the husband's family members.

8. Misra, Ranganath and Vijender Kumar (Ed.) Mayne's Hindu Law & Usage. 16th Edition. New Delhi: Bharath Law House. page 1285

4.7 In Gopala Pattar v. Parvathi Ammal, AIR 1929 Mad 47, following the above and other similar judgments, the Madras High Court observed,

It is difficult to see any distinction between the position of a widow who has been obliged to enforce her charge for maintenance and that of an abandoned wife who is obliged to do the same.

If she has this right against her husband personally it can be enforced by the attachment and sale of his property and that property consists of an undivided share in the joint family property. A charge therefore so long as the husband is alive and available is not really of such benefit to the wife for in effect she is able to in-force a charge in execution, but if the husband should die or abscond, her right would be very considerably impaired, for she could no longer enforce the personal obligation, and would have to institute' proceedings against the family and against the family property. If there is no legal objection to a charge being given it is.

4.8 The High Court ordered maintenance to be paid to the abandoned wife, out of the husband's share in the joint family property.

4.9 Mulla's Principles of Hindu Law, another authoritative exposition on both classical and modern Hindu law, draws of Mitakshara, Chapter II, section 10, and states the following:

When a person is excluded from inheritance on account of disability, he, and his wife and children, are entitled to maintenance out of the property which he would have inherited but for the disability and where he is excluded from a share on partition, he and his wife and his children are entitled to have a provision made for their maintenance out of the joint family property.10

10. Mulla, Principles of Hindu Law, Vol I, twentieth edition, (ed SA Desai), Third Reprint, 2009. New Delhi: Lexis Nexis Butterworths. p. 223

4.10 Mulla goes on to state that the right to maintenance of such a wife, is "conditional upon her continued chastity."11 One must hasten to add that by virtue of Section 28 of the Hindu Succession Act 1956, there is no longer any disqualification from inheritance on the ground of any "disease, defect of deformity."

11. Ibid, at 888.

4.11 Thus there is sufficient basis in classical Hindu law to cast a legal obligation on the father-in-law to maintain the daughter-in-law, when the husband of the latter is unable to do so. The above discussion lends support to the legislative amendment proposed by the Commission that seeks to spell out in the law, the father-in-law's obligation to pay maintenance to the daughter-in-law.

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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