What do you mean by maintenance? Give its nature and extent under old as well as modern Hindu Law. Who are the persons entitled to maintenance? (b) Whether a Hindu wife claim maintenance from her husband though living separately ? If yes, under what circumstances? When does a wife lose her right to maintenance?

Ans. (a) Definition of Maintenance — Maintenance is a right the necessities which are reasonable. According to S.3 (b) of the Adoptions and Maintenance Act, 1956, maintenance includes — (i) In all cases, provision for food, clothing, residence, education and medical attendance and treatment, (ii) In the case of an unmarried daughter also the resonable expenses of and incident to her marriage. It does not rest contract. It is a liability created by Hindu Law and arises out of jural relations of the parties. The right of maintenance arises from the concept of an undivided family. The head of such a family is bound to maintain its members and their wives and their children. All members of a joint family, whatever status and whatever be their age, are entitled to maintenance. Nature and Extent of the Right of Maintenance–Under the liability of a Hindu to maintain others arises in some cases from the mere relationship between the parties, independently of the possession of any property. In other cases, it depends altogether her on the possession of property. The first liability maybe called personal or absolute or liability on account of relationship, and the second is liability limited by the possession of ancestral or other property. Thus, the liability may be divided under two heads i.e., —(a) Personal, (b) Limited. Persons entitled to maintenance have been divided into two classes, the first being those who are bound to be maintained by a person during his lifetime, the liability arising from the relationship, status and affinity, existing between the persons entitled and the persons liable. The second class consists of those persons whose claims rest upon property and passing of it on the death of the owner thereof. These persons are nti tied to be maintained by the heirs of the deceased and the liability of he heirs is in proportion to the net property inherited. (A) Personal Liability or Absolute Liability—The obligation ofa Hindu to maintain his relations is personal in charactcr and arises from he very existence of the relation between the parties. According to the pre-Act law, a Hindu was under a legal obligation to maintain his—(i) wife, (ii) Minor sons, (iii) Unmarried daughters, and (iv) Aged parents. Thus, the only persons who are under a personal obligation to maintain others are–l. The father, who is bound to maintain his minor sons and unmarried daughters; 2. The husband who is bound to maintain his wife; 3. The son who is bound to maintain his aged parents. The Act has not brought about any change in this respect except that the illegitimate daughter and widowed daughter-in-law have also to be maintained by the father and father-in-law, respectively with certain conditions laid down in the Act. Thus, it is clear from the above description that a Hindu is not under personal obligation to maintain his (i) adult sons, (ii) grand-children, (iii) his sister, (iv) his sister-in-law. The liability to maintain the above persons may arise from possession of property. (B) Limited Liability—This heading may be sub-divided into three parts according to the liability of different persons to maintain others. (i) Liability of Manager-Under Mitakshara Law–The manager ofa Hindu joint family governed by Mitakshara law is under a legal obligation to maintain all male members of the family, their wives and their children. On the death of any one ofthe male members he is bound to maintain the deceased’s widow and children. The obligation to maintain these persons arises from the fact that the manager is in possession of the family property. Liability of Manager Under Dayabhaga law–Under Dayabhaga law also, the manager of the Hindu joint family is under a legal obligation to maintain all the male members, their wives and children out of the coparcenary property. A father is under a personal obligation to maintain his minor sons under both the laws. But where the father as a manager has ancestral property in his hand, and if the case is governed by the Mitakshara School, sons even if adult, are entided to maintenance out of the ancestral property. It is not so if the case is governed by Dayabhaga law because under that law sons do not acquire by birth any interest in ancestral property. (ii) Liability of Heirs—A heir is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain because the estate is inherited, subject to the obligation to provide for such maintenance. (iii) Liability of the Government–The obligation to maintain extends even to the Government when the Government takes estate of forfeiture or escheat. • Who are the Persons Entitled to Maintenance ?-According to Hindu Law a member of the family is entitled either to a share in the ancestral property or maintenance out ofthe income of that property. The following persons are entitled to such maintenance as enumerated in Hindu Adoptions and Maintenance Act, 1956, and as mentioned in pure (Old) Hindu Law–(i) wife (ii) widow daughter-in-law (iii) Children and aged parents. (iv) Dependants of the deceased —I. His or her father, 2. His or her mother, 3. His widow, 4. His or her son, son of pre-deceased son, or son of a pre-deceased son of a pre-deceased son, 5. His or her unmarried daughters, or the unmarried daughter of predeceased son or unmarried daughter of a pre-deceased son of a pre-deceased son, 6. His Wodowed daughter, 7. Widow of his son or a son of pre-deceased son, 8. His minor illegitimate son, 9. His unmarried illegitimate daughter; It may be noted here that S.21 & 22 of the Act do not in any way abridge the pre-existing rights of the maintenance holders and these provisions under the Act are prospective and apply only to the estate of Hindu whose death takes place at the commencement of the Act. (b) Right of a Hindu Wife to Maintenance and Separate Residence—Under Sec. 18 of the Hindu Adoption and Maintenance Act, 1956, two separate rights have been conferred on the wife; (i) Right to maintenance [S. 18 (i)]; and (ii) Right to separate residence. [S. 18 (ii)] Before the present legislation, an Act known as Right to Separate Residence and Maintenance Act, 1946 was in force, which has been repealed by S. 29 of the Act of 1956. (Before the Act of 1956 came into force it was treated as a binding duty of every husband to maintain his wife, irrespective of any property with him. Since it was regarded as a personal liability, it hardly required the possession of any ancestral or separate property with the husband as a condition precedent for entitling the wife to claim maintenance from him. This right exists for the whole span of her marital life as it is one of the necessary concomitant of marriage between them.) S. 18 of the Hindu Adoption and Maintenance Act, 1956 keeps alive the old textual law and says that all such wives whose marriages were solemnised before or after the enforcement of this Act are entitled to get maintenance from their husband during whole of their life. Although the right of maintenance is created under personal law yet it has been covered under a statutory umbrella in order to strenghten the right. But where the husband is an indigent and pauper he cannot be compelled to provide the maintenance allowance. Circumstances under which a wife is entitled to separate residence and maintenance —A Hindu wife would be entitled to separate residence without forfeiting her right to maintenance where — (a) The husband is guilty of desertion, i.e., the husband without an.y reasonable justification or without her consent or against her wishes abandons her or wilfully neglects her; (b) The husband has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) If the husband is suffering from a virulent form of leprosy, (d) If he has any other wife living; (e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (1) If he has ceased to be a Hindu by conversion; (g) If there is any other cause justifying her living separately. The right of maintenance, being personal, can not be extended against any relations of the husband, during his lifetime irrespective of the fact that she has been abandoned by her husband. But if such relative is in possession of the husband’s property, she could claim maintenance from him. If the property is transferred to any person or is attached under S.87 and 88 of the C.P.C. on account of some offence having been committed by the husband, then the wife’s right to maintenance is forgone. Circumstances under which a wife is not entitled to separate residence and maintenance ?—The wife does not remain entitled to separate residence and maintenance tinder the following circumstances—(i) When she becomes convert; (ii) When she becomes unchaste; (iii) When she resides separately without any just cause; (iv) When the wife lives separetly as a result of compromise and waives her right of maintenance. S. 18 (3) provides only for the first two grounds under which the right of separate residence and maintenance is forfeited.

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