MAINTENANCE AND THE LAW By Ashok Priyadarshi
A woman’s right to maintenance is a personal obligation of the husband and it is his duty to maintain her even if he has no property. If he has, the right of the widow to maintenance becomes an equitable charge on his property and any person who is succeeding it carries with it the legal obligation to maintain the widow. Though the widow's right to maintenance is not a right to property but it is undoubtedly a pre-existing right in property, and the widow can enforce it by getting a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court. The right of maintenance is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance. The right to maintenance is undoubtedly a pre-existing right, which existed in the Hindu law long before the passing of the Act of 1937 or the Act of 1956, and is, therefore, a pre-existing right; The right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband, though her co-ownership is of a subordinate nature. Where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance A wife is entitled to live separately and claim for maintenance even though she claims but fails to prove her allegation of the second marriage of the husband, if the husband is living with another woman Rajathi, vs. V. C. Ganesan AIR 1999 SC.2374 A second wife cannot be allowed any maintenance on the admitted position that the first wife is alive and there has been no annulment of marriage by a decree of divorce Khemchand Om Prakash Sharma, Appellant V. State Of Gujarat, 2000-(3)-SCC –753 A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her. Rohtash Singh, Petitioner V. Ramendri 2000-(3)-SCC -180 Neeraja was drawing a handsome salary in a job, before her marriage to an Non Resident Indian. They stayed together for some time in India before the husband went back to USA. Neeraja obeying her husband gave up her job and stated trying for a visa for USA, but the husband started getting cold and even the writings of the parents and relations couldnot bring a response from him. Neeraja went to court and thus the Supreme Court stressing the need for appropriate steps to safeguard the interest of the women directed the Union India to consider to enact a law to safeguard the right of the women and to see that the women got a proper maintenance as these matters are increasing. The suggestions of the Supreme Court was that the enacted law should take care that no marriage between an NRI and a Indian Women taking place in India be annulled by a foreign court, equal alimony to be provided to the wife in the husband's property in India and abroad, decree granted by the Indian Courts to be executable in foreign courts. The apex court granted Neeraja a compensation of Rs.3 lakhs to be paid by her husband as a compensation so as she may maintain herself in a dignified way. The Supreme Court in Kirtikant D. Vadodaria vs. State of Gujarat (1996) 4 SCC 479 has held that step mothers, who are childless widows can also claim maintenance from their step sons. The children of Muslim parents are entitled to claim maintenance under Section 125 Cr.P.C for the period till they attain majority or are able to maintain themselves, whichever is earlier and in case of females, till they get married, and this right is not restricted Noor Saba Khatoon Vs. Mohd. Quasim. 1997-(6)-SCC -233 In case of a widowed daughter has no income of her own or no estate of her husband to fall back upon for maintenance then she can legitimately claim maintenance from her parents and if they are not in a position then on the estate of her father-in-law. Balwant Kaur And Another, vs Chanan Singh And Others, 2000-(6)-SCC -0310 Maintenance of children has to be born by the divorced employed parents in proportion of their salaries Padmja Sharma,V. Ratan Lal Sharma,2000-(4)-SCC -266. Even mothers can demand maintenance from her married daughters, if they are not able to maintain themselves.
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