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Hindu Wife Right to Maintenance: 252nd Report of the Law Commission

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A joint Hindu family which comprises all persons who are lineal descendants of a common ancestor and includes their wives and unmarried daughters. However, it is not synonymous with the concept of joint ownership of property.[1] Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family.[2] Coparcenary on the other hand, includes those persons who have acquired a birth interest in the joint family property or coparcenary property. Ordinarily, these are the sons, grandsons and great grandsons of the last holder of the joint property[3] However, after the 2005 amendment to the Hindu Succession Act, 1956 daughters of coparceners have also been included in the coparcenary. But the amendment does not grant the privilege to other female members in the family, such as the mother, wife and daughter-in-law despite being joint family members and enjoying the right of residence and maintenance.[4]

The Hindu law on maintenance has been devised in such a way that no member of the joint family is un-provided for. Every member of the joint family has a right to maintenance against the joint family property.[5] The liability to pay maintenance manifests under 2 conditions- either as an incident of the relationship between the parties which leads to a personal obligation, or on possession of property, such as by way of inheritance.[6]  However, if a male Hindu does not pay maintenance during his lifetime, then the moral obligation to pay maintenance is converted into a legal obligation, to be realized against the property of the deceased male.[7]

Thus, the wife’s right of maintenance is a personal obligation of the husband, which arises from the fact of marriage. The refusal to undertake the obligation attracts a stricter penalty than in case of other family members.[8] Such a relation when established, ipso facto, provides the right to the daughter-in-law to have maintenance from her father-in-law in case of inability of the husband to maintain her.[9]

252nd Report of the Law Commission: Right of the Hindu Wife to Maintenance

The 252nd report of the 20th Law Commission raises some fundamental difficulties pertaining to a Hindu wife’s right to maintenance under the Hindu Adoptions and Maintenance Act (hereinafter, the Act), 1956. The Hon’ble Punjab & Haryana High Court via its decision in Avtar Singh v. Jasbir Singh[10] recommended that the law commission take a look at provisions of the Act, concerning the admissibility of maintenance to a woman whose husband is unable to maintain her.[11] The case concerned a  plaintiff , the wife of a man of unsound mind, who had sought 1/4th share in the land belonging to the family from her father in law as maintenance for herself, her husband and her minor sons.The said share had been provided to her through a family settlement before the Gram Panchayat, but she was later dispossessed forcibly of the land by her father in law and brother in law. The case was decided on the basis of whether the aid family settlement before the Gram Panchayat was required to be registered. However, before parting with the case, Justice Paramjeet Singh made the following observations-

“Before parting with judgment, it would be appropriate to mention that no provision has been brought to my notice by learned counsel for the parties that if husband is insane or of unsound mind, the daughter in law who is not having any source of maintenance can claim maintenance for herself. When she has to maintain her mentally ill husband, her condition is worse than being a widowed daughter in law. In such a situation, the wife should be deemed to be dependent upon the father in law and entitled to maintenance as provided under Section 19 of the Hindu Adoptions and Maintenance Act.

Copy of this Order be sent to the Union Ministry of Law and Justice and Law Commission of India for taking appropriate measures for amendment in the Act.”[12]

Section 18[13] of the Act, provides for the right of wife to be maintained by her husband during her lifetime, while Section 19[14] provides for the right to maintenance by her father in law, in case of husband’s death. However, in cases where the husband is of unsound mind, the law does not provide any potent remedy to the wife. Filing a suit for partition with respect to the husband’s share in the coparcenary or filing for divorce are the only and rather far-fetched and ineffective.[15]

Need for Amending Section 18

 Section 18[16] while providing for a Hindu wife’s right to maintenance, also postulates the possibilities wherein the wife is entitled to maintenance while living separately from her husband[17]. However, she will not be entitled to any maintenance or separate residence if she is unchaste or ceases to be a Hindu by conversion to another religion[18]. In situations where a person is excluded from inheritance or a share in partition on account of a disability, he, his wife and his children are entitled to maintenance from the property which he would have inherited or joint family property, whichever applicable[19].

In order to fill this gaping loophole in the Act, which may become a source of consternation and harassment, the 20th Law Commission has proposed amending section 18 of the Act, by adding a subsection (4). The proposed section 18(4) reads-

“Where the husband is unable to provide for his wife, on account of physical disability, mental disorder, disappearance, renunciation of the world by entering any religious order or other similar reasons, the Hindu wife is entitled to claim maintenance during her lifetime, from members of the joint Hindu family of the husband, except where the husband has received his share in the joint family property.”

An explanation is proposed to be added to the above section-

“Explanation: For the purpose of this Section, the term “mental disorder” shall have the same meaning assigned to it under the Explanation to Section 13(1)(iii) of the Hindu Marriage Act.”

The proposed amendment seeks to provide a Hindu wife, the right to receive maintenance from her father-in-law, through her husband’s share in the joint property, in case the husband is suffering from a mental disorder or has disappeared or has renounced his residence and conjugal duties by taking to religion or any other way. The term “mental disorder” includes mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia. Psychopathic disorder,[20] here, means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.[21]

The proposed amendment, if incorporated, may be more than successful in correcting the loophole in the Act, which is prone to mischief.Since, a woman whose husband is of unsound mind does not only have to care for her husband, but her children and herself, this amendment prevents her from being left at the mercy of her in-laws. Such cases being one too many in India are symptoms of a deeper problem within the legal system.

 However, the above amendment may still not be enough to provide justice to a Hindu wife as she can still be disqualified from being entitled to receive maintenance from her husband’s share in the joint property if she is unchaste.[22] The ‘chastity’ requirement is not only regressive but an affront to the dignity of the women and the very idea of womanhood. Though a flurry of criticism and calls for removal of the provision have flowed from several quarters, including National Commission for Women and other legal experts, this disturbingly feudal provision still continues to stand; a continuing menace for Hindu women.

by Siddhartha Singh

  1. 1252nd Report, 20th Law Commission of India, Right of the Hindu Wife to Maintenance:A relook at Section 18 of the Hindu Adoptions and Maintenance Act, 1956,(http://lawcommissionofindia.nic.in/reports/on%20Right%20of%20the%20Hindu%20Wife%20to%20Maintenance%20-%20A%20relook%20at%20Section18%20of%20the%20Hindu%20Adoption%20and%20Maintenance%20Act,1956.pdf)  accessed on 8 February, 2015.
  2. Jankiram v. Nagamony (1926) 49 Mad 98.
  3. Supra note 1, at 7.
  4. Id.
  5. PARAS DIWAN AND PEYUSHI DIWAN,LAW OF MAINTENANCE IN INDIA, at pp. 7-8, (1990).
  6. Id. at 17.
  7. Supra note 1, at 10.
  8. Id.
  9. Ramabai v. Trimbak Ganesh Desai (1872) 9 Bom HC 283; MADHU SHASTRI, STATUS OF HINDU WOMEN: A STUDY OF LEGISLATIVE TRENDS AND JUDICIAL BEHAVIOUR, at pp. 171-172, (1990).
  10. RSA No. 29/1988 (O&M), at 12. (http://www.scribd.com/doc/252473920/Avtar-singh-v-jasbir-singh-pdf#scribd) accessed 8 February, 2015.
  11. Supra note 1, at 2.
  12. Avtar Singh, supra note 10, at 12.
  13. The Hindu Adoptions and Maintenance Act, 1956 [hereinafter, “the Act”], § 18. (http://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf) accessed on 8 February, 2015.
  14. Id., §19.
  15. Supra note 1, at 4.
  16. Supra note 12.
  17. The Act, S. 18(2).
  18. The Act, S. 18(3).
  19. MULLA, PRINCIPLES OF HINDU LAW,  Vol. 1, (20th ed., 2009) (S.A. Desai ed.),at 223.
  20. The Hindu Marriage Act, 1955, §13(1)(iii)(a). http://bokakhat.gov.in/pdf/The_hindu_marriage_act.pdf accessed on 8 February, 2015.
  21. Id. §13(1)(iii)(b).
  22. 2The Act, §18(3).