Hindu Adoptions And Maintenance
Act, 1956
[78 of 1956, dt. 21-12-1956][1]
An Act to amend and codify the
law relating to adoptions and
maintenance among Hindus
Be it enacted by Parliament in
the Seventh Year of the Republic of
India as follows:-
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Chapter II Adoption |
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Amount
of maintenance may be altered on change of circumstances |
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Hindu Adoptions And Maintenance
Act, 1956
PRELIMINARY
(1) This Act may be called
the Hindu Adoptions and Maintenance Act, 1956
(2)
It
extends to the whole of India expect the State of Jammu and Kashmir.
(1) This Act applies-
(a) to any person, who is a Hindu by religion
in any of its forms or developments, including a Virashaiva, a
Lingayat or a follower of the Brahmo, Prarthana of Arya Samaj,
(b) to any person who is a Buddhist, Jaina or
Sikh by religion and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved
that any such person would not have been governed by the Hindu law or by any
custom or usage as part of the law in respect any of the matters dealt with herein if this Act had not been passed.
Explanation
: The
following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate,
both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one
of whose parents is a Hindu, Buddhist, Jaina, and Sikh by religion and who is
brought up as a member of the tribe, community, group or family to which such
parent belongs or belonged; [2][**]
[3][(bb) any child, legitimate or illegitimate who has been abandoned both
by his father and mother or whose parentage is
known and who in either case is brought up as a Hindu, Buddhist, Jaina
or Sikh; and]
(c)
any
person who is convert or reconvert to
the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in
sub-section (1), nothing contained in this Act shall apply to the members of
any Scheduled Tribe within the meaning of clause (25) of article 366 of the
Constitution unless the Central Government, by notification the Official
Gazette, otherwise directs.
(3) The expression "Hindu" in any
portion of this Act shall be construed as if
it included a person who, though not a Hindu by religion, is, nevertheless,
a person whom this Act applies by virtue of the provisions contained in this
section.
In this Act, unless the context
otherwise requires :-
(a) the expressions "custom" and
"usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained
the force of law among Hindus in any local area, tribe, community, group or
family.
PROVIDED the rule is certain and not unreasonable or
opposed to public policy :
PROVIDED FURTHER that, in the case of a rule applicable only to a
family, it has not been discontinued by the family ;
(b) "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 reasonable expenses of and
incidents to her marriage ;
(c) "Minor" means a person who has
not completed his or her age of eighteen years.
COMMENTS
Where
the custom is such as permitting the second marriage during the lifetime of the
spouse cannot be given the force of law keeping in mind the statutory provision
against bigamy Raghuvira Kumar v Shankmukha Vadivu 1970 (2) MLJ 193
As per
the custom prevailing in Himachal Pradesh, daughter is conferred a right where
for she can make a representation in non-ancestral property including the
property of a collateral- Ram Rakha v. Ram Rakshi 1983 HP 18
A
custom is a particular rule which has existed either actually or presumptively
from time immemorial, and has obtained the force of law in particular locality,
although contrary to or not consistent with the general common law of the realm. A custom to be held valid must
have four essential attributes. First it must be immemorial; secondly, it must
be reasonable; thirdly, it must have continued without interruption since its
immemorial origin; and fourthly it must be certain in respect of its nature
generally as well as in respect of the locality where it is alleged to obtain
and the person whom it is alleged to affect.- Halsbury's law of England 4th ed.
vol. 12 para 401.
Save as otherwise expressly
provided in this Act.-
(a) any text, rule of interpretation of Hindu
law or any custom or usage as part of that law in force immediately before the commencement
of this Act shall cease to have effect with respect to any matter for which
provision is made in this Act;
(b) any other
law in force immediately before the commencement of this Act shall cease
to apply to Hindus insofar as it is inconsistent with any of the provisions
contained in this Act.
COMMENTS
Where
the adoption takes place following the custom, then the custom must be such as
not in contradiction of statutory provisions laid down as regards adoption.
That adoption which is against the provision of the Act is invalid.- Kartar
Singh v. Surjan Singh 1975 (1) SCR 742
ADOPTIONS
5 Adoptions
to be regulated by this chapter
(1) No adoption shall be made after the
commencement of this Act by or to a Hindu except in accordance with the
provisions contained in this Chapter, and any adoption made in contravention of
the said provision shall be void.
(2) An adoption which is void shall neither
create any rights in the adoptive family in favour of any person which he or
she could not have acquired except by reason of the adoption, nor destroy the
right of any person in the family of
his or her birth.
COMMENTS
Adoption
that takes place after the death of the husband contrary to the will of
deceased husband and after the Act came into force it was held that, legality
of the adoption is to be considered in
accordance with the provision of Act, and the
adoption cannot be held invalid just for the fact that it was against
the directions as mentioned in the will
of deceased husband.- Kavuluru V. Kuntamukkala 1971 (1) An. WR 134
6 Requisites of
a valid adoption
No adoption shall be valid
unless-
(i) the
person adopting has the capacity, and also the right, to take in adoption;
(ii) the
person giving in adoption has the capacity to do so;
(iii)
the
person adopted is capable of being taken in adoption; and
(iv)
the
adoption is made in compliance with the other conditions mentioned in this
Chapter.
COMMENTS
Where any
of the requirements as laid down under s.6 are not strictly observed, that
non-observance of the requisite or requisites is enough to convert the adoption
as invalid one.-Dhanraj v. Suraj Bai 1972 Raj LW 612
Doctrine
of factum valet does not have its application in case the adoption is against
what is said by the provisions of the Hindu Adoption and Maintenance Act, 1956-Lalla
Ram v. Gohri Ram 1972 All WR (HC) 612
7 Capacity of a
male Hindu to take in adoption
Any
male Hindu who is sound mind and is not a minor has the capacity to take a son
or a daughter in adoption:
PROVIDED
that, if he has a wife living, he shall not adopt except with the consent of
his wife unless the wife has completely and finally renounced the world or has
ceased to be a Hindu or has been declared by a court of competent jurisdiction
to be of unsound mind.
Explanation: If a person has more than one
wife living at the time of adoption, the consent of all the wives is necessary
unless the consent of any one of the them is unnecessary for any of the reasons
specified in the preceding proviso.
COMMENTS
The
person taking in adoption must not suffer from idiocy or insanity; he must have
the capacity enough to understand the nature of the Act and what would be the
legal effects of adoption . Simultaneously it is not the requirement the person
concerned must be possessed with a very high degree of intelligence. There is a
very strong presumption favouring soundness of
mind.-Babubarelal v. Gulzari Devi 1979 All LJ 1333
Deaf
and dumb but possessed with the capacity to express through signs and gestures,
though not clearly, is to be taken as a person of sound mind.-Ambrish Kumar
v. Hatu Prasad 1981 HLR 781
Proviso
places a restriction as concerned to right to take in adoption that makes the consent
of the wife a necessity so as to make the adoption valid. The consent must be
obtained prior to the civil adoption takes place and not later on where the
proviso is disregarded adoption is not valid.-Badrilal v. Bheru 1986 (1) HLR
81.
In the
case of divorce the consent is not necessary but in the case of judicial
separation, consent would be necessary. In case of two wives, consent must be
of both the wives despite the fact that one of them was not living under the
same roof for a big job of twenty or thirty years.-Bhooloo Ram v. Ram Lal 1989 (2) HLR 162
8 Capacity of a
female Hindu to take in adoption
Any female Hindu
:-
(a) Who is of sound mind,
(b) who
is not a minor, and
(c) who is not married, or
if married, whose marriage has been dissolved or whose husband is dead or has
completely and finally renounced the world or has ceased to be a Hindu or has
been declared by a court of competent jurisdiction to be of unsound mind,
has the capacity to take a son or
daughter in adoption.
COMMENTS
After
the completion of the age of eighteen, a woman gets the capacity to adopt even
though. she herself is unmarried. Where after the adoption, she is married, her
husband would be step-father and she herself would remain adoptive mother as
earlier. Adoption by an unmarried can also take place despite the fact that she
is having an illegitimate child. - Ashoka Naidu v. Raymond AIR 1976 Cal 272.
A
married woman has got no right to take in adoption during the subsistence of
the marriage. But where the husband has completely and finally renounced the
world or he had ceased to be Hindu or some competent court has declared him to
be of unsound mind, the wife can adopt.- Dashrath V. Pandu 1977 Mah LJ 358
9 Persons
capable of giving in adoption
(1) No person except the father or mother the
guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provision of 1[sub-section (3) and sub-section (4)],
the father, if alive, shall alone have the right to give in adoption, but such
right shall not be exercised save with the
consent of the mother unless the mother has completely and finally
renounced the world or has ceased to be a Hindu has been declared by a court of
competent jurisdiction to be of unsound mind.
(3) The mother may give the child in adoption
if the father is dead or has completely and finally renounced the world or has
ceased to be a Hindu or has been declared by a court of competent jurisdiction
to be of unsound mind.
1[(4) Where both the father and mother are dead or have completely and
finally renounced the world or have abandoned the child or have been declared
by a court of competent jurisdiction to be of unsound mind or where the
parentage of the child is not known, the guardian of the child may give the
child in adoption with the previous
permission of the court to any person including the guardian himself.]
(5) Before
granting permission to a guardian under sub-section (4), the court shall be
satisfied that the adoption will be for the welfare of the child, due
consideration being for this purpose given to the wishes of the child having
regard to the age and understanding of the child and that the applicant for permission
has not received or agreed to receive and that no person has made or given or
agreed to make or give to the applicant any payment or reward in consideration
of the adoption except such as the court may sanction.
Explanation: For
the purposes of this section-
(i) the
expression "father" and "mother" do not include an adoptive
father and an adoptive mother; 2[***]
3[(ia) "guardian" means a person having the care of the person
of a child or of both his person and property and includes-
(a) a guardian appointed by the will of the
child's father or mother; and
(b) a guardian appointed or declared by a
court: and]
(ii) "court" means the city civil
court or a district court within the local limits of whose jurisdiction the
child to be adopted ordinarily resides.
COMMENTS
Where
the adoption takes place and step-son is given in adoption by step-mother
having no capacity to give in adoption such an adoption is not valid one by
virtue of s.5(1) read with s.6(ii)-Dhanraj v. Suraj Bai 1975 (Supp) SCR 73
It is
the District Court where in the application for giving and taking in adoption
has to be moved and not in the Family Court. How and in what manner the
permission is to be made there is no such mention under the Act and the
provisions that have to be followed are there as laid down under Guardians and
Wards Act.-Central Bank Relief & Welfare Society, In re AIR 1991 Kar 6
10 Persons who may be
adopted
No
person shall be capable of being taken in adoption unless the following
conditions are fulfilled, namely:-
(i) he
or she is Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless
there is a custom or usage applicable to the parties which permits persons who
are married being taken in adoption;
(iv) he or she has not completed the age of
fifteen years, unless there is a custom or usage applicable to the parties
which permits persons who have completed the age of fifteen years being taken
in adoption.
COMMENTS
There
is a bar imposed by this s. 10 and that being a married person cannot be
adopted. But the case is different where there is some custom among Jats of
Punjab and Haryana in having a legal sanction and judicially recognised where
under the custom permits the adoption of married person-Amar Singh V.Tej Ram
1982 (84 )Punj LR 2387
The
person above the age of 15 years cannot be given in adoption and if there is
some custom permitting that the same must be strictly pleaded and proved-Mahalingam
v. Kannayyar AIR 1990 Mad. 333. 1989 (2) MLJ 3441
Existence
of custom be it family or tribal custom having its applicability to the parties
concerned whereby the adoption of a person married or of the age of more than
15 years is permitted, is all that is
required to be established by the
provision of section 10 so as to make adoption valid.-Maya Ram v. Jai
Narian 1989 (1) HLR 352
11 Other
conditions for a valid adoption
In every adoption, the
following conditions must be complied with:
(i) if the adoption is of a son, the
adoptive father or mother by whom adoption is made must not have a Hindu
son, son's son or son's son's son (whether by legitimate blood relationship or
by adoption) living at the time of
adoption;
(ii) if the adoption is of a daughter, the
adoptive father or mother by whom the adoption is made must not have a Hindu
daughter or son's daughter (whether by legitimate blood relationship or by
adoption)living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty one years older than the person to be
adopted;
(iv) if the adoption is by a female and the
person to be adopted is a male, the adoptive mother is at least twenty -one
years older than the person to be adopted;
(v) the same child may not be adopted
simultaneously by two or more person;
(vi) the child to be adopted must be actually
given and taken in adoption by the parents or guardian concerned or under their
authority with intent to transfer the child from the family of its birth 1[or in
case of an abandoned child or child whose parentage is not known, from the
place or family where it has been brought up] to the family of its adoption:
PROVIDED
that the performance of datta homam shall not be essential to the validity of
adoption.
COMMENTS
Requirement
of an age gap of 21 years between the adoptee and the adopted, if violated is
sufficient to render the adoption invalid.- Golak Chandra v . Kritibas AIR 1979 Ori. 205
Where
the case is, one child is given to the family of other so that the child is
brought up, this giving of the child does not constitute adoption. There must
be an intention to give and to take the child in adoption.-Kewal Singh v.
Bakshish Singh 1975 (77) Punj LR 321
Absence
of parents at the time of adoption ceremony and not proving the giving and
taking the child in adoption, adoption was held invalid. v.Bakshish Singh
-Kewal Singh 1979 HLR 431
An
adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the
date of the adoption and from such date all the ties of
the child in the family of his or her
birth shall be deemed to be severed and replaced by those created by the adoption
in the adoptive family :
PROVIDED that -
(a) the child cannot marry any person whom he
or she could not have married if he or she had continued in the family of his
or her birth;
(b) any property which vested in the adopted
child before the adoption shall continue to vest in such person subject to the
obligations, if any, attaching to the
ownership of such property, including the obligation to maintain relatives in
the family of his or her birth;
(c) the adopted child shall not divest any
person of any estate which vested in him or her before the adoption.
COMMENTS
The
assumption that all the ties of child with the family of his or her birth shall
be severed operates only from the day the adoption takes place and from the day
the ties are replaced by those created by the adoption in the adoptive
family.-Kanwaljit Singh v. State of Haryana 1981 Pun LJ 64.
Adopted
girl is conferred an entitlement to succeed the property within the meaning of s.8 of Hindu Succession Act
despite the fact that the property was owned by the deceased by reason of his
adoption.- Neelawwa v. Shivawwa 1988 (2) HLR 799.
Under
the provisions of s.14 of the Hindu Succession Act, widow becomes an absolute owner,
and it is not possible that the child adopted by her is divesting her of the
right which has already been vested in her.- Dinaji v.Dadde AIR 1990 SC 1153.
Where
the property is in absolute terms vested in a person as the last surviving
coparcener a child subsequently adopted cannot divest him of it .-Krishnabai v.
Ananda Sevaram AIR 1981 Bom 240
13 Right of
adoptive parents to dispose of their properties
Subject
to any agreement to the contrary, an adoption does not deprive the adoptive
father or mother of the power to dispose
of his or her property by transfer inter vivos or by will.
COMMENTS
Where
the child is taken in adoption by the sole surviving widow, oral
relinquishment by her in favour of
adopted child is valid and effective.-Hirabai v. Babu Manika
AIR 1980 Bom. 315
14 Determination
of adoptive mother in certain cases
(1) Where a Hindu who has a wife living adopts
a child, she shall be deemed to be the adoptive mother.
(2) Where an adoption has been made with the
consent of more than one wife, the senior-most in marriage among them shall
be deemed to be the adoptive mother and the other to be step mothers
(3) Where a widower or a bachelor adopts a
child, any wife whom he subsequently marries shall be deemed to be step mother
of the step mother of the adopted child.
(4) Where a widow or an unmarried woman adopts
a child, any husband whom she marries subsequently shall be deemed to be the
step father of the adoptive child.
15 Valid adoption
not to be cancelled
No
adoption which has been validly made can be cancelled by the adoptive father or
mother or any other person, nor can the adopted child renounce his or her
status as such and return to the family
of his or her birth.
16. Presumption
as to registered documents relating to adoption
Whenever
any document registered under any law for
the time being in force is produced before any court
purporting to record an adoption made and is signed by the person giving and the person taking the
child in adoption, the court shall presume that the adoption has been made in
compliance with the provisions of this Act unless and until it is disproved.
COMMENTS
In case
a challenge is thrown to the deed of adoption on the ground of its execution
being by fraud, coercion or undue influence, it is for the party challenging
the document that has to establish that the execution was so vitiated.-Sushil
Chandra v. Bhoop Kunwar AIR 1977 All 441.
Presumption
as to registered documents relation to adoption
is only a rebuttable presumption.-Bhoolo Ram v. Ramlal 1989 (2) HLR 162
Where
the validity of the adoption was asked for on the ground of not obtaining the
consent if the husband on account of his unsound mind but this fact found no place in the plaint as
required by order 6, rule 6, CPCand there was only the presentation of
registered document it was held that presumption as under s. 16 of Hindu
Adoption and Maintenance Act would prevail over the provision of order 6, rule
6 of C.P.C. It is for the other party if it wants to, to rebut the
presumption.-1979 MP LJ 591.
17 Prohibition
of Certain Payments
(1) No person shall receive or agree to
receive any payment or other reward in consideration of the adoption of any person, and no person shall make or give or
agree to make or give to any other person any payment or reward the receipt of
which is prohibited by this section.
(2) If any person contravenes the provision of
sub-section (1), he shall be punishable with imprisonment which may extend to
six months, or with fine, or with both .
(3) No prosecution under this section shall be
instituted without the previous sanction of the State Government or an officer
authorised by the State Government in this behalf.
MAINTENANCE
(1) Subject to the provisions of this section,
a Hindu wife, whether married before or
after the commencement of this Act, shall be entitled to be maintained by her
husband during her lifetime.
(2) A Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to maintenance -
(a) If he is guilty of desertion, that is to
say, of abandoning her without reasonable cause and without her consent or
against her wish, or of willfully neglecting her;
(b) If he 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 he is suffering from a virulent from 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;
(f) if he has ceased to be a Hindu by
conversion to another religion ;
(g) if there is any other cause justifying
her living separately;
(3) A Hindu wife shall not be entitled to
separate residence and maintenance from her husband if she is unchaste or
ceases to be a Hindu by conversion to another religion.
COMMENTS
The
words "wife or widow" in the
context of marriage, succession or maintenance enactments are of
restrictive legal character and imply relationship which is not recognised by
land-Rajesh Bai v. Santha Bai 1982 HLR 445.
A man
marrying a second time, during the lifetime of his wife, second wife though,
having no knowledge of the first marriage, is not entitled to claim maintenance
under s, 125 of the Code of Criminal Procedure, as she was not legally
wedded wife and for that the marriage was void.-Jamuna
Bai v.Anant Rao 1988 Cr LJ 793.
There
is no forum provided under the Act so as to claim maintenance. Maintenance can
only be claimed through regular suit.-Krishan Lal v. Sudershan Kumari 1979 HLR
576.
19 Maintenance
of Widowed daughter-in-law
(1) A
Hindu wife, whether married before or after the commencement of this Act, shall
be entitled to be maintained after the death of her husband by her
father-in-law.
PROVIDED and to the extent that
she is unable to maintain herself out of her own earnings or other property or,
where she has no property of her own, is unable to obtain maintenance -
(a) from the estate of her husband or her
father or mother, or
(b)
from
her son or daughter, if any, or his or her estate.
(2) Any
obligation under sub-section (1) shall not be enforceable if the father- in-
law has not the means to do so from any
coparcenary property in his possession out of which the daughter-in-law has not
obtained any share, and any such
obligation shall cease on the re-marriage of the daughter-in-law.
COMMENTS
Liability
of the father-in-law comes to an end where the widow is remarried or she has
obtained a share in the coparcenery properties while partition. But her right
to share in the separate property of her husband or in his interest in
coparcenery property cannot be divested.-Animuthu v. Gandhimmal 1977 HLR 628.
20 Maintenance
of children and aged parents
(1) Subject to the provisions of this section
a Hindu is bound, during his or her lifetime, to maintain his or her legitimate
or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may
claim maintenance from his or her father or mother so long as the child is a
minor.
(3) The obligation of a person to maintain his
or her aged or infirm parent or a daughter who is unmarried extends insofar as
the parent or the unmarried daughter, as the case may be, is unable to maintain
himself or herself out of his or her own earnings or other property.
Explanation:
In his section "parent” includes a childless step-mother.
COMMENTS
There
is no liability casted upon step-son as
to maintain his step mother under this section, though the step-son is liable
to maintain her as a dependent- Pannalal v. Fulmani AIR 1987 Cal 768
Unmarried
daughter, aged or infirm parents can enforce their rights only in these cases
where they are unable to maintain themselves from their own earnings or from
the property owned by them where almost all the property is given in gift by the mother to her only daughter
and the rest of property is sold by her to her brother, she gets entitled to be
maintained by her daughter.-Munnidevi.v. Chhoti AIR 1983 All 444.
For the
purposes of this Chapter "dependants” means the following relatives of the
deceased:
(i) his or her father ;
(ii) his
or her mother;
(iii) his
widow, so long as she does not re- marry
(iv) his or her son or the son of his
predeceased son or the son of predeceased son of his predeceased son, so long
as he is a minor:
PROVIDED and to the extent that
he is unable to obtain maintenance, in the case of a grandson from his father's
or mother's estate, and in the case of a great - grand son, from the estate of
his father or mother or father's father or father's mother;
(v) his
or her unmarried daughter, or the unmarried daughter of his predeceased son or
the unmarried daughter of a predeceased son of his predeceased son , so long as
she remains unmarried;
PROVIDED and to the extent that
she is unable to obtain maintenance, in the case of a grand - daughter
from her father's or mother's estate
and in the case of great-grand- daughter from the estate of her father or
mother or father's father or father's mother;
(vi) his widowed daughter :
PROVIDED
and to the extent that she is unable to obtain maintenance
(a) from the estate of her husband, or
(b) from her son or daughter if any, or his or
her estate; or
(c) from her father-in-law or his father or
the estate of either of them ;
(vii) any
widow of his son or of a son of his predeceased son, so long as she does not
remarry:
PROVIDED and to the extent that
she is unable to obtain maintenance from her husband's estate, or from her son
or daughter, if any, or his or her estate; or in the case of a grandson's
widow, also from her father-in-law's estate
(viii) his or her minor illegitimate son, so long as he remains a minor;
(ix) his or her illegitimate
daughter, so long as she remains unmarried.
(1) Subject to the provisions of sub section
(2) the heirs of a deceased Hindu are bound of maintain the dependants of the
deceased out of the estate inherited by them from the deceased.
(2) Where a dependant has not obtained, by
testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act,
the dependant shall be entitled, subject to the provisions of this Act, to
maintenance from those who take the estate.
(3) The liability of each of the persons who
takes the estate shall be in proportion to the value of the share or part of
the estate taken by him or her.
(4) Notwithstanding anything contained in sub
section (2) or sub section (3), no person who is himself or herself a dependant
shall be liable to contribute to the
maintenance of others, if he or she has obtained a share or part the value of
which is, or would, if the liability to contribute were enforced, become less
than what would be awarded to him or her by way of maintenance under this Act.
COMMENTS
A
person having concubine and he himself dying after the Act coming into force, would confer a right to maintenance
upon the concubine.-Laxminarasamma v. Sundaraamma AIR 1981 AP 88.
Where
no property is inherited by the brothers from their father, they cannot be
compelled to contribute for the marriage of their sister.-Challaiyan v.
Salia Krishan AIR 1982 Mad 148.
Where
there is no maintenance from the estate of the husband or from her son or
daughter such Hindu widow, is to be taken as dependant of the father-in-law
under this section as s,19 would not be having its application to such a case
.-Bitala Kunwari v. Girand Singh AIR 1983 All 425.
(1) It shall be in the discretion of the court
to determine whether any, and if so what, maintenance shall be awarded under
the provisions of this Act, and in doing so the court shall have due regard to
the considerations set out in sub-
section (2), or sub- section(3), as the case may be, so far as they are
applicable.
(2) In determining the amount of maintenance,
if any, to be awarded to a wife, children or aged or infirm parents under this
Act, regard shall be had to.-
(a) the position and status of the parties;
(b) the reasonable wants of the claimant ;
(c) if the claimant is living separately, whether the claimant is justified in doing
so;
(d) the value of the claimant's property and
any income derived from such property , or from the claimant's own earnings or
from any other sources;
(e) the number of persons entitled to
maintenance under this Act
(3) In determining the amount of maintenance,
if any, to be awarded to a dependent under this Act, regard shall be had to.-
(a) the net value of the estate of the deceased after providing for the payment
of his debts;
(b) the provision, if any, made under a will
of the deceased in respect of the dependant;
(c) the degree of relationship between the
two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant
and the deceased;
(f) the value of the property of the dependant and any income
derived from such property; or from his or her earnings or from any other
source;
(g) the number of dependants entitled to
maintenance under this Act.
COMMENTS
Quantum
of maintenance depends upon a gathering together or all the facts of the
situation, the amount of free estate, the past life of the married parties and
the families a survey of the conditions and necessities and rights of the
members, on a reasonable view of the change of circumstances possibly required
in the future, regard being of course to the scale and mode of living to the
age, habits, wants and class of life of the parties.-Rashmi Mehra v.Sunil Mehra
AIR 1991 Del.44
24 Claimant
to maintenance should be a Hindu
No
person shall be entitled to claim maintenance under this chapter if he or she
has ceased to be a Hindu by conversion to another religion.
25 Amount of
Maintenance may be altered on change of circumstances:
The
amount of maintenance, whether fixed by a decree of court or by agreement,
either before or after the commencement of this Act, may be altered
subsequently if there is a material change in the circumstances justifying such alteration.
COMMENTS
When
the power is conferred to alter the prior decree or agreement it definitely
includes a power to annul the same if the circumstances requires so.- Dattu
Bhat v. Tarabai AIR 1985 Bom.106
Subject
to the provision contained in section 27 debts of every description contracted
or payable by the deceased shall have priority over the claims of his
dependants for maintenance under this act.
27 Maintenance
when to be a charge
A
dependant's claim for maintenance under this Act shall not be a charge on the
estate of the deceased or any portion thereof, unless one has been created by
the will of the deceased, by a decree
of court, by agreement between the
dependant and the owner of the estate or portion, or otherwise,
28 Effect of
transfer of property on right to maintenance
Where a
dependant has a right to receive maintenance out of an estate, and such estate
or any part thereof its transferred, the right to receive maintenance may be
enforced against the transferee if the transferee has notice of the right or if
the transfer is gratuitous; but not against the transferee for consideration
and without notice of the right.
[1] Act has been extended to Dadra and Nagar Haveli by Regulation 6 of 1963
[2] Word “and” omitted by the Act 45 of 1962
[3] Inserted by Act 45 of 1962
1 Substituted by Act 45 of 1962, w.e.f. 29-11-1962
1 Substituted by Act 45 of 1962, w.e.f. 29-11-1962
2 Word “and” omitted by Act 45 of 1962, w.e.f. 29-11-1962
3 Inserted by Act 45 of 1962