Adoption:

Meaning of adoption :- Adoption means the taking of another’s child as one’s

own. Thus, when a person accepts lawfully, the child of another person as his
own child, is called adoption. It is a legal authorisation to a person who is
childless to have a child, by adopting the child of another person.

Objects of adoption :- Under ancient Hindu Law, the object of adoption was
purely religious. It was for the purpose of securing spiritual benefits from the
pindas and water-oblation, and perpetuating the name and family of the
adopter. In the case of Amrendra Mansingh v. Sanatan Singh (AIR 1933, PC),
the Privy Council observed that the foundation of the Braminical doctrine of
adoption is the duty which every Hindu owes to his ancestors to provide for
the continuance of the line and solemnization of the necessary rites that in
this doctrine the devolution of property, though recognised as inherent right
of the son, is altogether a secondary consideration. This Act presents the
secular object of the adoption. Actual giving and taking of the son is necessary
and the data homa ceremony is not necessary. Though, in the case of
Chandrasekhara Mudaliar v. Kulandaivelu Mudaliar (AIR 1963,SC), the
Supreme Court has held that it may be safely held that the validity on an
adoption has to be judged by spiritual rater than temporal considerations and
devolution of property is only of secondary importance. The analysis of this
Act reveals the following objectives of adoption :

(1) To give status of being father or mother to the childless

person. (2) To provide consolation and relief to childless person.
(3) To provide an opportunity to the childless person to continue the family
line.
(4) To give an opportunity to have a legal representative of the property.

Adoption under the ancient Hindu law :- Following are the features of an
adoption under the ancient Hindu law :
(1) Only the male was entitled to adopt a child.
(2) A widow was entitled to adopt a child exceptionally, only if she was
authorised by her husband during his life time.
(3) Only the father or mother was entitled to give the child in adoption. (4) The
person giving the child in adoption was required to have completed the age
of discretion, which was generally of fifteen years.
(5) It was not necessary for a father to take consent of the mother of a child in
order to give him in adoption.
(6) Only the male child could be adopted by a person.
(7) An unmarried woman was not entitled to adopt a child in any situation. (8)
In taking a child in adoption, the husband was not bound to obtain the
consent of his wife.
(9) The dancing community was entitled to adopt a girl child. (10) It was
necessary that the child required to be adopted must be of the same caste to
which the adoptive person was belonging. (11) No any specific age for a child
required to be adopted was prescribed. (12) It was necessary that the
adoption of child must be made before his upnayan sanskar.
(13) The religious ceremony, as Datta-home or Dattagrahan was necessary for
the valid adoption.

Adoption under the Hindu Adoptions and Maintenance Act, 1956 :

Conditions or requirements of a valid adoption : The conditions or
requirements of a valid adoption are provided in this Act under different
sections as following :

(1) Adoption must be in accordance with the provisions of this Act :-Section-5
provides the general condition for a valid adoption. According to this section,
adoption by a Hindu must be made in accordance with the provisions of this
Act. Thus, no Hindu will be permitted to adopt a child contrary to the
provisions of this Act. If an adoption, by a Hindu, is made in contravention of
the provisions of this Act, it shall be void. Such adoption shall have no any
legal effect.

(2) Requisites of valid adoption must be satisfied :- Section-6 of this Act

provides about the requisites of a valid adoption. According to this section, no
adoption shall be valid unless the requisites of valid adoption are satisfied.
These requisites are mentioned as following :

(i) The person adopting the child must have capacity and right to take the child
in adoption.
(ii) The person giving in adoption must have capacity to do so. (iii)
The person adopted must be capable of being taken in adoption.
(iv) The other conditions required by this Act must also be satisfied.
(3) Other conditions for a valid adoption :- Some certain conditions, for a
valid adoption, are mentioned in Section 11 of this Act. The adoption made in
violation of the conditions provided under this section shall not be valid. The
conditions provided by Section-11 are as following :

(i) Any person willing to adopt a son must not have a son :- Clause (i) of
Section 11 provides that if a person wants to adopt a son, he must not have a
Hindu son or son’s son, or son’s son’s son living at the time of adoption. It is
immaterial that such son is a natural son or a adopted son. Thus, a person who
has a son, or grandson, or great grandson either natural or adopted cannot
adopt a son. But, a person who, has a daughter, is entitled to adopt a son.

(ii) Any person willing to adopt a daughter must not have a daughter :-
Clause-(ii) of this section provides that if a person wants to adopt a daughter
he must not have a daughter, or son’s daughter living at the time of adoption.
It is immaterial that such daughter is natural or adopted. Thus, if a person has
his own daughter either natural or adopted or the granddaughter natural or
adopted, he cannot adopt a daughter. But, a person who has a son, will be
entitled to adopt a daughter.

(iii) Difference of age :- Clauses-(iii) and (iv) of this Section provides that there
must be difference of the particular age between the person adopting and the
person being adopted. According to clause-(iii), if the adoption is by a male and
the person to be adopted is female, the adoptive father must be at least
twenty one years older than the person to be adopted. Clause-(iv), provides
that if the adoption is by a female, and the person to be adopted is a male, the
adoptive mother must be at least twenty-one years older than the person to
be adopted. This condition has been provided for the purposes of maintaining
morality between the father and daughter, or mother and son.

(iv) No simultaneous adoption by two or more persons :- Clause-(v) provides

that the same child cannot be adopted simultaneously by two or more
persons. Thus, this condition requires that a child should be adopted only by
one person and not by two or more persons in common or in group. It is
noticeable point that a child cannot at the same time be the son or daughter
of two or more adoptive fathers or mothers. This provision brings certainty in
the paternity of a child.

(v) There must be actual giving and taking of the child :- Clause-(vi)
establishes it as an essential condition that there must be actual giving and
taking of the child in adoption. Thus, the law requires that the natural parents
shall handover the adoptive child to the adoptive parents and the adoptive
parents must
receive him. In the cases of Laxman Singh Kothari v.Roop Kumar (AIR, 1961
SC),Kartar Singh v. Surjan Singh (AIR 1964,SC), and Devi Prasad v. Triveni
Prasad (AIR 1970,SC), the Supreme Court has held that the procedure of giving
and taking is an essential condition for a valid adoption. Thus, without
performing this condition, the adoption shall not be valid and effective. In the
case of Kishori Lal v. Chakti Bai (AIR 1959,SC), the Supreme Court held the
adoption to be ineffective and invalid because there was no actual giving and
taking of the child.

Performance of Datta Homa is not essential :- The proviso to this section

expressly provides that the performance of Datta Homa is not necessary for
the validity of adoption. In the case of Gurudas (M) v. Rasaranjan (AIR
2006,SC), the Supreme Court approved this concept and said that under the
present Act, for the validity of adoption Datta Homa is not necessary. Thus, for
the validity of adoption, this Act requires that there must be actual giving and
taking of the child, but no Datta Homa or any religious ceremony is required
for its validity.

(4) Prohibition of certain payments or consideration :- Section-17 of this Act

establishes the prohibition of payments or consideration as an essential
condition for a valid adoption. This section provides that no person shall
receive or agree to receive any payment or 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 in adoption. If any person
violates this condition he shall be punishable with imprisonment which may
extend to six months, or with fine, or with both. But the prosecution will be
instituted with the previous sanction of the State Government or an officer
authorized by the State Government in this behalf. This provision is based on
the public policy to prevent trafficking in children.
‘””
Presumption as to the validity of adoption :- Section 16 provides that the
court shall presume the adoption to be valid unless and until it is disproved, if
the following conditions are satisfied :

(i) The document recording the adoption must have been produced before
the Court.
(ii) Such document must be registered under the law in force. (iii) Such
document must have been signed by both the parties, i.e. the giver and
taker of the child in adoption.

Valid adoption not to be cancelled :- Section 15 prohibits the cancellation of a

valid adoption by any person. According to this section, no adoption which has
been validly made can be cancelled by the adoptive father or mother or any
other person. This section prohibits the adopted child also to leave the
adoptive family. The adopted child also cannot renounce his or her adopted
status and return to his natural family. Adoption is not a matter of contract
but is a matter of status, therefore the parties are not entitled to cancel it
again. In the case of Daniraiji Maharaj v. Srichandra Prabha (AIR,1975 SC), the
Supreme Court said that the adoption made before the commencement of
this Act under any custom which permits the cancellation of adoption can be
cancelled. But the adoption made under this Act, if valid, cannot be cancelled.

Effects of adoption :- The effects or consequences of a valid adoption are

provided under Section 12 of the Hindu Adoption and Maintenance Act, 1956.
These effects are as following :

(1) An adoption becomes effective from the date of adoption. (2) An adopted
child shall be deemed to be the child of his or her adoptive father or mother
for all purposes.
(3) All the relations and ties of the adopted child with his or her natural family
shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family.
(4) He becomes entitled to inherit the property in the adoptive family as the
natural child inherits.
(5) He becomes incapable to inherit the property in his original or natural
family.
(6) He becomes incapable to marry within the prohibited degrees of
relationship or the Sapinda relationship of his adoptive family.
Factors which are not affected by adoption :- The proviso to this section
provides that the following factors do not affected by the adoption :

(i) Prohibition on marriage :- Proviso-(a) provides that the adopted child

cannot marry any person when he or she could not have married if he or she
had continued in the family of his or her birth. Thus, the adopted child cannot
marry within the prohibited relationship or within the Sapinda relationship of
his natural family even after the adoption.
(ii) Property vested in the adopted child before his adoption :-The proviso-(b)
makes it clear that any such property which has been vested in the adopted
child before his adoption shall not be divested from him even after his
adoption. Thus, if any property belonging to his original family became vested
in him before his adoption, the adoption shall not affect it and he shall
continue to be the owner of such property. But, it shall be 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.

(iii) No divesting by the adopted child :- Proviso (c) provides that the adopted
child shall not divest any person of any estate which has vested in him or her
before the adoption. Thus, if any property of his adoptive family, for which he
is entitled after his adoption, has become vested in any person before his
adoption, it shall not be divested from that person after his adoption. The
Supreme Court has also approved this concept in the cases of Sawan Ram v.
Kalawanti (AIR 1967,SC), and Sitabai v. Ramchandra (AIR 1970,SC).

Capacity and right to take in adoption :

Any person, whether male or female, married or unmarried, widow or
widower, has right to adopt under this Act, if he or she is capable to adopt
according to this Act. This Act does not make any distinction between a male
and female and confers equal right of adoption. Section 6 of this Act
establishes it as an essential condition for a valid adoption that a person
adopting a child must have capacity and the right to take in adoption. Clauses
(i) and (ii) of Section 11 provides when a person has right to adopt a child.
Section 7 and 8 provides about the capacity to take in adoption as following :

Capacity of a male Hindu to take in adoption :- Section 7 of this Act provides

that any male Hindu has capacity to take a son or a daughter in adoption if he
has the following capacity :
(1) He is of sound mind,
(2) He not a minor.

(3) Consent of the wife :- If a male person has a living wife, adoption can only
be made with her consent. The proviso to Section 7 provides that if he has a
wife living, he shall not adopt except with the consent of his wife. Explanation
to this section provides that if a person has more than one wife living at the
time of adoption, the consent of all the wives is necessary. Consent of the wife
is not necessary only in any of the following conditions :
(1) When the wife has completely and finally renounced the
world, (2) When the wife has ceased to be a Hindu,
(3) When the wife has been declared by a court of competent jurisdiction to
be of unsound mind.

Capacity of a female Hindu to take in adoption :- Section 8 of this Act provides

that any female Hindu has the capacity to take a son or daughter in adoption, if
she has the following capacities :

(1) If she is of sound mind,

(2) If she is not a minor.

Consent of the husband is necessary :- The proviso to Section 8 provides that

if she has a husband living, she shall not adopt a son or daughter except with
the consent of her husband. The consent of the husband is not necessary only
if any of the following conditions is present :

(1) The husband has completely and finally renounced the

world, (2) He has ceased to be a Hindu,
(3) He has been declared by a court of competent jurisdiction to be of
unsound mind.

Adoption by a female Hindu who has no husband :- If any female Hindu is

unmarried or divorced or widow, she can adopt a child and the provision of
husband’s consent shall not apply to her.

Persons capable of giving in adoption :- Clause (ii) of Section 6 of this Act

provides the essential condition for a valid adoption that the person giving in
adoption must have capacity to do so. Section 9 mentions the persons who can
give a child in adoption. Sub-section (1) of this section provides that no person
except the father or mother or the guardian of a child shall have the capacity
to give the child in adoption. Thus, a child can be given in adoption only by his
father or mother or by his guardian and not by any other person.

Father and mother have equal right :- Sub-section(2) of Section 9 give equal
right father and mother, both, to give a son or daughter in adoption. This sub
section provides that subject to the provisions of Sub-section (4), the father or
the mother, if alive, shall have equal right to give a son or daughter in
adoption. This provision has been made in Sub-section (2) by Amendment in
2010. Before this Amendment, the right to give a child in adoption was given
only to the father if he was alive, and not to the mother. The mother was
given the right to give a son or daughter in adoption by Sub-section (3) if the
father of the child was not alive, or renounced the world or declared by a
court of competent jurisdiction to be of unsound mind. Sub-section (3) has
been omitted by this Amendment and the equal right has been given to
mother and father, both.
‘””
Consent is necessary :- The proviso to Sub-section (2) of Section 9 provides
that when a child is given in adoption by his or her father, the consent of his or
her mother is necessary. Similarly, when a child is given in adoption by his or
her mother, the consent of his or her father is necessary. Thus, the right to
give a child in adoption shall not be exercised by either of them without the
consent of the other. But, the consent is not necessary in any of the following
conditions :

(i) When one of them has completely and finally renounced the
world, (ii) When one of them has ceased to be a Hindu,
(iii) When one of them has been declared by a Court of competent
jurisdiction to be of unsound mind.

Meaning of father and mother :- The expression ‘father’ and ‘mother’ means
the natural father and mother. The explanation (i) to Section 9 makes it clear
that the expression ‘father’ and ‘mother’ do not include an adoptive father and
an adoptive mother. In the case of Dhanraj v. Suraj Bai (1975,SCC), the
Supreme Court has held that ‘mother’ means the natural mother and not the
stepmother.

(3) By the guardian of the child :- Generally, the father or mother of a child is
authorised to give him in adoption. Thus, no guardian can give a child in
adoption the ordinary conditions. Sub-section (4) of Section 9 mentions the
conditions in which a guardian may give a child in adoption with the previous
permission of the court. A guardian may give a child in adoption to any person
including the guardian himself. These conditions are as following :

(1) If both, the father and mother are dead,

(2) If both, the father and mother have completely and finally renounced the
world,
(3) If both, the father and mother have abandoned the child, (4) If both, the
father and mother have been declared by a court of competent jurisdiction to
be of unsound mind,
(5) If the parentage of the child is not known.

Permission of the Court :- Sub-section (4) of Section 9 provides that the

guardian of the child can give the child in adoption only with the previous
permission of the Court. Sub-section (5) provides about the granting of
permission to a guardian for giving a child in adoption. According to Sub-
section (5), before granting permission to a guardian under Sub-section-(4),
the court must 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. The Court must also be
satisfied 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.

Meaning of guardian :- Explanation (i-a) to Section 9 provides that guardian

means a person having the care of the person of a child or of both his person
and property and includes the following :

(a) a guardian appointed by the will of the child’s father or

mother; (b) a guardian appointed or declared by a Court.

Persons who may be adopted :- Section 10 provides that a person can be

taken in adoption only on having the following capabilities :

(i) He must be a Hindu,

(ii) The child should not have been already adopted,
(iii) The child must be unmarried, unless there is a custom or usage applicable
to the parties which permits persons who are married being taken in
adoption,
(iv) The child must be below 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.

Relation back theory :- The ‘relation back theory’ was applicable under the old
Hindu Law, i.e. before the enactment of this Act. This theory was applied
where the adoption was made by a widow. According to this theory, the son
adopted by a widow was considered to have been adopted on the date of
death of her husband. In this situation, all the rights of the adopted son
related back from that date of the adoptive father’s death. In the easy words,
the adopted son was deemed to be adopted by his adoptive father before his
death. This theory was based on this ground that a widow was entitled to
adopt a child only on behalf of her husband, therefore the adoption was
considered by her husband and not by her. But, it is noticeable point that
under the Hindu Adoptions and Maintenance Act,1956, the adoption becomes
effective only from the date on which it has been made. Proviso-(c) to Section-
12 expressly provides that the adopted child shall not divest any person of any
estate which vested in him before the adoption. Thus, the theory of relation
back and the provisions of this
Act as to the right of an adopted child in respect of the property vested in any
other person before his adoption becomes contrary to each other and given
birth to litigation. In the case of Sawan Ram v. Kalawanti (AIR 1967,SC), the
Supreme Court recognized the application of the theory relation back and said
that the adoption by a widow is not only to herself but also to her deceased
husband and consequently that relates back to the death of the husband for
the purposes of determining the right of the adopted son to succeed to the
property of the deceased husband, whether it is vested in her or in others. In
the case of Sitabai v. Ramchandra (AIR, 1970 SC), the Supreme Court has
expressed the same view again. It is very clear that the decision given in these
cases is contrary to the provisions embodied in Section-12 of this Act. In the
case of Dharma Shamrao Agalwe v. Pandurang Miragu Agalwe (AIR 1988,SC),
the Supreme Court said that a child adopted by a widow can claim a share in
the joint family property already devolved on the sole surviving coparcener on
the death of the husband of the adopting widow, but he cannot claim in
property already alienated by such coparcener prior to the date of adoption.
In the case of Dinaji v. Daddy (AIR 1990,SC), the Supreme Court said that the
child shall not divest a person from a property after his adoption. Thus, the
relation back theory is not substituted for the provisions of Section-12.

Right to dispose of the property :- Section-13 gives right to adoptive father or

mother to dispose of his or her property even after adoption of a child.
According to this section, 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. But this right is subject to an agreement made contrary to it. It means if
there is agreement that the adoptive father or mother shall not dispose of the
property after the adoption, the agreement will be applicable not the
provisions of this section. In the case of Chiranjilal Shrilal Goenka v. Jasjit
Singh (AIR 2001,SC), the Supreme Court expressed the same view.
Determination of adoptive mother :- Sub-section-(1), (2) and (3) of Section-14
provides about the rules of determining the adoptive mother. Such rules are as
following :

(1) Where a Hindu adopts a child and his wife is living, she shall be deemed
to be the adoptive mother.
(2) Where a person has more than one wife and adopted a child with the
consent of all of them, the wife who is senior most in marriage shall be
deemed to be the adoptive mother and the others to be step-mothers.
(3) Where a person, who is widower or a bachelor adopts a child, and
afterwards
marries, his wife shall be deemed to be the step-mother of the adopted child.

Determination of adoptive father :- When a male Hindu adopts a child he shall

be the adoptive father of such child. Sub-section (4) of Section 14 provides that
if the child is adopted by a widow or an unmarried woman and afterwards she
marries, her husband shall be deemed to be the step-father of the adopted
child. ‘””

Maintenance :

Meaning and definition of maintenance :- In the ordinary words, maintenance

means all those necessary means without which the survival of a person is not
possible. Section 3(b) of the Hindu Adoption and Maintenance Act, 1956
defines the word ‘maintenance.’ According to this section, maintenance
includes food, clothing, residence, education and medical attendance and
treatment. If there is unmarried daughter, the reasonable expenses and
incident to her marriage are also included. Thus, providing all those things
which are necessary for leading a comfortable life with social status is a
maintenance.

Basis of maintenance :- Under the ancient Hindu law the basis of maintenance
was the joint family and coparcenary property. It was recognized as the moral
duty to maintain them who were not having the share in such property. The
perusal of the provisions of the Hindu Adoption and Maintenance Act,1956
reveals that a Hindu is bound to maintain a person on the following two
grounds :

(1) Personal liability based on the relationship,

(2) Liability depending on the inheritance of the property.
Persons liable to maintain :- According to the provisions of the Hindu
Adoption and Maintenance Act, 1956, the following persons are bound to
maintain :

(1) The husband to his wife. (Section-18)

(2) The father to his minor children either legitimate or illegitimate. (Section
20) (3) The mother to her minor children either legitimate or illegitimate.
(Section 20) (4) The children to his or her aged or infirm parents, [Section 20
(3)] (5) The persons who inherit the property of a deceased Hindu to the
dependents of such deceased. (Section 22)

Persons entitled for maintenance :- Following persons are entitled for

maintenance :

(1) The wife from her husband. (Section 18)

(2) The children from their parents. (Section 20)
(3) The aged or infirm parents from their children. [Section 20 (3) ]
(4) The dependents of the deceased Hindu from the persons who have
inherited the property of such deceased. (Section 22)
(5) Widowed daughter-in-law in some certain conditions. (Section 19)

Maintenance of wife :- The wife is made entitled to claim maintenance to her

husband under Section 18 of this Act. This section imposes personal obligation
upon the husband to maintain his wife. In the case of Raghubir Singh v. Gulab
Singh (AIR1998,SC), the Supreme Court has decided that the right of
maintenance of the wife arises due to social and worldly knot between two
persons. Before the passing of this Act, the liability of a husband to maintain
his wife was only moral. The wife was required to remain chaste, faithful,
dutiful for her husband. But after the passing of this Act, the liability to
maintain his wife is not limited to moral duty only, but it has been established
as a legal and personal duty. In the case of Vimalben Ajitbhai v. Vatslaben
Ashokbhai Patel (AIR 2008,SC), the Supreme Court has approved this view
and said that to maintain his wife is the personal obligation of the husband.
The right conferred upon the wife under this section is not dependent on any
condition. Thus, the husband will be bound to maintain his wife whether he
has property or means to maintain or not. The wife shall be entitled to be
maintained by her husband during her lifetime. It is noticeable point that for
the purpose of maintenance under this section, the divorced wife is also
included within the term ‘wife.’ For the maintenance under this section, the
following conditions are necessary :
(1) The wife must be legally wedded wife.
(2) The wife must be a Hindu.
(3) The wife must be living with the husband.

Right of maintenance with the right of separate residence :- As a general

rule, the wife is not entitled to claim for maintenance with the claim of
separate residence from her husband. But, under-clauses (a) to (g) of Sub-
section (2) of Section 18 some certain conditions are mentioned in which the
wife is entitled to live separately from her husband without forfeiting her
claim to maintenance. These conditions are as following :

(a) If her husband is guilty of desertion :- If the husband has deserted his wife
without reasonable cause and without her consent or against her wish or he is
wilfully neglecting her, the wife will be entitled to claim for maintenance even
she is living separately. It is noticeable point that the wife is to prove the
desertion, but only proving of factum of desertion is sufficient, and not animus
desserendi.
(b) If the husband has treated her with cruelty :- If 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 him, she can claim for maintenance
with the separate living. The cruelty may be physical or mental.

(c) If the husband is suffering from a virulent form of leprosy :- This ground
has been omitted by Amendment in 2019.

(d) If the husband has any other wife living :- If the husband has any other
wife living, the wife will be entitled for maintenance with the separate living
on this ground.

(e) If the husband keeps concubine :- If the husband keeps a concubine in the
same house in which his wife is living or habitually resides with a concubine
elsewhere, the wife will be entitled to claim for maintenance living separately.

(f) If the husband ceases to be a Hindu :- When the husband ceases to be a

Hindu by conversion to another religion, the wife will be entitled to claim the
maintenance living separately from her husband.

Any other reasonable cause :- If the wife is living separately and there is any
other cause justifying her such living, she will be entitled to claim the
maintenance from her husband living separately from him. The cause is
justifiable or not, it will be decided by the court on the basis of facts and
circumstances of the case. The general formula may be that the circumstances
should be such that the living of the wife with her husband should become
impossible.

Conditions in which wife is not entitled for separate residence and

maintenance :- Sub-section (3) of Section 18 provides the conditions in which a
wife is not entitled to separate residence and maintenance from her husband.
These conditions are as following :

(1) When she becomes unchaste.

(2) When she ceases to be a Hindu by conversion to another religion.

The above grounds are mentioned in Sub-section (3). Following are two other
grounds also :
(1) When has started living separately from her husband without justifiable
cause.
(2) When she is living separately under mutual agreement with her husband.

Maintenance of widowed daughter in law :- The provisions relating to

maintenance of widowed daughter in law are provided in Section 19 of this
Act. The analysis of this section reveals that the liability of a father-in-law to
maintain his daughter-in-law is conditional and secondary. According to this
section, a Hindu wife shall be entitled to be maintained after the death of her
husband by her father-in-law only in the following conditions :

(1) Her husband must have been died.

(2) The father-in-law must have means to maintain her out of coparcenary
property in which she has not obtained any share.
(3) She has not re-married.
(4) She must be unable to maintain herself out of her own earnings or other
property, or where she has no property of her own, she should be unable to
obtain maintenance from the followings :

(i) From the estate of her husband, or her father, or her

mother, (ii) From her son or daughter, or his or her estate.

Maintenance of children :- Provisions relating to the maintenance of the

children are provided under Sub-sections (1) and (2) of Section 20 of this Act.
These sub-sections imposes liability upon the parents to maintain their minor
children whether legitimate or illegitimate, male or female. This Act makes
liable to the mother and father both to maintain their children. The obligation
of the parents to maintain their children is personal obligation and does not
depend on this factor that the parents are holding property or not. The child
will be entitled for the maintenance whether he is living with the parents or
not. This view has been expressed by the Madras High Court in the case of
Annamalai v. Perumayi (AIR 1965,Mad HC). In the case of Thulasikumar v.
Raghvan Nair (AIR 1985,Kerala, HC), said that the responsibility to maintain
exists even if child is taken care of by others. It is noticeable point that the
liability of maintaining children is limited only to the minority of the children.
When the children become major they are not entitled of being maintained by
their parents.

Maintenance of an unmarried daughter :- Sub-section (3) of Section 20 gives

right to an unmarried daughter to claim for maintenance from her parents. In
case of an unmarried daughter, the provision, that the children are entitled for
maintenance only during their minority, does not apply. Thus an unmarried
daughter can claim for maintenance also during majority if she is unable to
maintain herself out of her own earnings or other property. It is noticeable
point that her marriage expenses are also included in her maintenance.
‘””
Maintenance of aged or infirm parents :- Sub-section (1) of Section 20
imposes obligation upon a Hindu to maintain his or her aged or infirm parents.
Sub-section (3) provides that the obligation of a person to maintain his or her
aged or infirm parent extends in so far as the parent is unable to maintain
himself or herself out of his or her own earnings or other property. Thus, a
Hindu is bound to maintain to his mother or father if the following two
conditions are satisfied :

(1) The father or mother should be aged or infirm.

(2) The father or mother should be unable to maintain himself or herself out
of His or her own earnings or other property.

If the above conditions are satisfied, the child will be liable to maintain his or
her father or mother as the case may be. This section imposes liability of
maintaining parents not only upon the son but the daughter is also made
equally liable as the son is liable to maintain their parents. In the case of Smt.
Vijaya Manoher v. Kashirao Rajaram (AIR 1987,SC), the Supreme Court has
held that married daughter is liable to maintain her old and incapable father.
Thus, parents are entitled to claim for maintenance against the son as well as
the daughter. The objective of this section is to ensure the survival of the aged
or infirm parents. The word ‘parent’ include the natural and adoptive, both
the parents. The explanation to this section makes it clear that the childless
step mother is also included in the word parent. It means, if the step-mother
has no her own child, she will be entitled to claim maintenance against her
step-son or daughter.

Interim maintenance :- Section 18 and 20 both are silent in respect of interim

maintenance. The provision for maintenance are positive in nature, and
positive interpretation makes a person entitled to claim for interim
maintenance. In the case of Nemi Chand Jain v. Smt. Lila Jain (AIR 1968,Cal
HC), the Calcutta High Court said that the courts have inherent power to
award interim maintenance. There is nothing in this Act, which prohibits from
awarding such maintenance.

Maintenance of dependents :- The provisions relating to maintenance of

dependents are provided in Sections 21 and 22 of this Act. These provisions as
following :

Meaning of dependents :- The dependents are defined under Section 21 of

this Act. This section provides that the following relatives of the deceased
person will be the dependents for the purpose of maintenance :
(i) His or her father or mother,
(ii) His widow, so long as she does not re-marry,
(iii) His or her son so long as he is a minor,
(iv) Minor son of his pre-deceased son if he is unable to maintain himself
from his father’s or mother’s estate.
(v) Minor son of a pre-deceased son of his pre-deceased son if he is unable to
obtain maintenance from the estate of his father or mother or father’s
father, or father’s mother.
(vi) His or her unmarried daughter so long as she remains unmarried. (vii) The
unmarried daughter of his pre-deceased son so long as she remains
unmarried. But she should be unable to obtain maintenance from her father’s
or mother’s estate.
(viii) Unmarried daughter of a pre-deceased son of his pre-deceased son so
long as she remains unmarried. But, she should be unable to obtain
maintenance from the estate of her father or mother or father’s father or
father’s mother. (ix) His widowed daughter if she is unable to obtain
maintenance from the followings :
(a) from the estate of her husband, or
 (b) from her son or daughter, or his or her estate, or
(c) from her father-in-law or his father or the estate of either of them. (x) Any
widow of his son or of a son of his pre-deceased son, so long as she does not
remarry. But it is necessary that she should be unable to obtain maintenance
from her husband’s estate, or from her son or daughter, or his or her estate.
In the case of a grandson’s widow, also from her father-in-law’s estate.
(xi) His or her minor illegitimate son.
(xii) His or her illegitimate daughter, so long as she remains unmarried.

Obligation of maintenance of the dependents :- Sub-Section (1) of Section 22

imposes obligation of maintenance of the dependents of a deceased Hindu
upon his such heirs who inherit his estate. This sub-section provides that the
heirs of a deceased Hindu are bound to maintain the dependants of the
deceased out of the estate inherited by them from the deceased. The liability
of maintaining dependants is not personal and it is limited to the property.
Thus, if any heir of the deceased has not inherited the property of the
deceased, he shall not be bound to maintain his dependants.

The dependant must has not obtained any share in the estate :- Sub-section
(2) of Section 22 expressly provides that a dependant is entitled for
maintenance
under this section only if he has not obtained, by testamentary or intestate
succession, any share in the estate of Hindu dying after the commencement of
this Act. Thus, if he has obtained any share in the estate, he shall not be
entitled for maintenance under this section.

Extent of liability :- Sub-section (3) of Section 22 provides about the extent of

liability. According to this sub-section, 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.

Exemption from the liability :- Sub-section (4) of Section 22 provides that

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.

Amount of maintenance :- The amount of maintenance is not specified by this

Act. Section 23 gives discretion to the Court to determine the amount of
maintenance. This section empowers the Court to determine whether any
maintenance shall be awarded under the provisions of this Act and if so, what
amount. In determining this the Court shall have due regard to the
consideration set out in Sub-sections (2) and (3).

(i) In case of wife, children or aged or infirm parents :- Sub-section (2)

provides that in determining the amount of maintenance to be awarded to a
wife, children or aged or infirm parents under this Act, the court shall take the
following factors into account :

(1) The position and status of the parties,

(2) The reasonable wants of the claimant,
(3) If the claimant is living separately, whether the claimant is justified in doing
so,
(4) The value of the claimant’s property and any income derived from such
property, or from the claimant’s own earning or from any other source, (5)
The number of persons so entitled to maintenance under this Act.

(ii) In case of the dependents :- Sub-section (3) of Section 22 provides that in

determining the amount of maintenance to be awarded to a dependant under
this Act, the following factors shall be taken into account :
(1) the net value of the estate of the deceased after providing for the
payment of his debts,
(2) the provision made under a will of the deceased in respect of the
dependant, (3) the degree of relationship between the two,
(4) the reasonable wants of the dependant,
(5) the past relations between the dependant and the deceased, (6) 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, (7) the number
of dependants entitled to maintenance under this Act. Alteration in the
amount of maintenance :- Section 25 of this Act provides about the alteration
of amount of maintenance on change of circumstance. According to this
section, the amount of maintenance may be altered subsequently if there is a
material change in the circumstances justifying such alteration. Such amount
may be fixed by a decree of Court or by agreement either before or after the
commencement of this Act.

Claimant to maintenance should be a Hindu :- It is necessary to claim

maintenance under this Act, the claimant must be a Hindu. Section 24 of this
Act expressly provides that no person shall be entitled to claim maintenance,
under this Act if he or she has ceased to be a Hindu by conversion to another
religion.

Debts to have priority :- Section 26 of this Act provides about the priority of
debts. According to this section, subject to the provisions 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.

Maintenance to be a charge :- Section 27 provides that a dependant’s claim of

maintenance under this Act shall not be a charge on the estate of the deceased
or any portion thereof. It may be a charge only if it has been created by the will
of the deceased or by a decree of Court or by an agreement between the
dependant and the owner of the estate or portion or otherwise. Thus, the
object of this section is to satisfy the interest of the creditors of the deceased.

When the claimant is a wife, child or aged or infirm parent :- Section 26 and
27 do not apply when the claimant is a wife, child or aged or infirm parent.
Thus, where the questions, relating to maintenance of wife, children and aged
or infirm parents on one hand and the debts on the other, are to be settled, all
of them have to be treated on an equal footing and have to be paid
proportionately.
Effect of transfer of property on right to maintenance :- Section 28 of this Act
provides about the effect of transfer of property on right to maintenance. This
section makes it clear that if a dependant has a right to receive maintenance
out of an estate and such estate or any part thereof is transferred, the right to
receive maintenance may be enforced against the transferee. According to this
section, if the transfer is with consideration, this right may be enforced against
the transferee for consideration only if he has notice of the right. But, if the
transfer is gratuitous, i.e. without consideration, it may be enforced whether
the transferee has notice or not.