Maintenance of Son’s Wife

    INTRODUCTION

    Maintenance of son’s wife is provided in Hindu Adoption and Maintenance Act of 1956 Hindu law refers to the system of personal laws (marriage, adoption, inheritance, etc.), traditionally derived from Hindu texts and traditions, that shaped the social practice of Hindu communities. Local laws never conformed completely to the ideals of Dharmashastra, but both substantive and procedural laws of the tradition did impact the practical law, though largely indirectly.

    In the early 1950s, contentious debates ensued over the so-called Hindu Code Bill, which had been offered in the Indian parliament, as a way to fix still unclear elements of the Anglo-Hindu law. Though a small minority suggested some kind of return to classical Hindu law, the real debate was over how to appropriate the Anglo-Hindu law. In the end, a series of four major pieces of legislation were passed in 1955-1956 and these laws form the first point of reference for modern Hindu law: Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance Act (1956). Though these legislative moves purported to resolve still unclear parts of the Anglo-Hindu law, the case law and interpretive tradition of British judges and Indian judges in the British employ remained and remains crucial to the application of modern Hindu law.

    HINDU ADOPTION AND MAINTENANCE ACT 1956

    The Hindu Adoptions and Maintenance Act (HAMA) was established in the year 1956 as part of the Hindu Code Bills. This act extends to the whole of India except the State of Jammu & Kashmir and applies to Hindus domiciled in our country. Hindu Adoptions and Maintenance Act was introduced to codify and standardize the current Hindu legal tradition. This act dealt specifically with the legal process of adopting children by a Hindu adult, and with the legal obligations of a Hindu to provide maintenance to various family members. In this article, we look at the various aspects of the Hindu Adoptions and Maintenance Act (HAMA), 1956 in detail.

    Hindu Adoptions and Maintenance Act apply to Hindus and all those considered under the umbrella term of Hindus as described below. As per the provision of this act, the following person can adopt a child in India.

    • This act applies to any person who is domiciled in the territories
    • A person who is a Hindu by religion in any of its forms or development, including the Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj
    • A person belongs to a Buddhist, Jain or Sikh can adopt a child
    • A child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains or Sikhs
    • A child legitimate or illegitimate one of whose parents are Hindus, Buddhists, Jains or Sikhs and has been so brought up
    • An abandoned child, legitimate or illegitimate of unknown parentage brought up as a Hindu, Buddhist, etc.; and
    • A person who has been converted to the Hindu, Buddhist, Jain or Sikh religion

    MAINTENANCE

    The Hindu Adoption and Maintenance Act lays down the provisions relating to maintenance rights of a woman under Hindu laws. Under the Act, the wife, daughter-in-law, children, elderly parents and other dependents have a right to claim maintenance.

    In case of divorce, the wife has a right to claim maintenance from her husband when she is unable to maintain herself financially. The fact whether the wife is working and earns some income or not, does not affect her right to claim maintenance from her husband.

    However, the quantum of maintenance that the husband is required to pay to her wife depends upon the income earned by the wife, the income and property of the husband, his personal expenses and the expenses borne by him from his dependents.

    The amount of maintenance to paid depends upon different factors. Following factors must be considered to fix a maintenance amount:

    • The position and status of both parties,
    • Whether the claimant has an actual claim for maintenance.
    • The claimant’s total property and income.
    • The total property, income generated from this property, and other income of the person who has to maintain other.
    • The total number dependents and their expenses borne by the person asked to pay maintenance.
    • The personal expenses of the person asked to pay maintenance.

    S.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, whether 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 subsection 1 shall not be enforceable if the father in law has not the means to do so from any coparcenary any property in his possession out of which the daughter in law has not obtained any share and any such obligation selfies on the remarriage of the daughter in law.

    The right of a widowed daughter in law when she did not succeed to her husband’s property was of considerable importance and consequence. The rights of the three widows– one of whom was the window of a predeceased son – mentioned in the Hindu Women’s Right to Property Act, 1937, to claim maintenance, were not abolished by that Act in express terms, but the effect was that there was little occasion for them to claim maintenance since they were entitled to share on partition. There was nothing, however, in the Act to compel the widow to sue for partition where the deceased husband was member of a joint family and she could, if she so desired, claim only maintenance without having recourse to the remedy of partition. The position and rights of a widow and particularly of a widow of a predeceased son in matters of inheritance, have been materially challenged by the Hindu Succession Act, 1956, and the question of the right to maintenance of the widow of a predeceased son must now be considered in the context of the provisions of that Act.

    CASE I: T.A. Lakshmi Narasamba v T. Sunaramma[1]

    It was held that in uncodified Hindu Law, father in law was under an obligation to maintain daughter in law even though he had no coparcenary property. The father in law in that case had died in 1954 and his son had pre-deceased him. In this background, the question of maintenance in widow of such pre-deceased son arose and the Full Bench has found that the provisions of Hindu Adoption and Maintenance Act, 1956, were only prospective in operation, and did not take away right of such widow already vested before the commencement of codified enactment.

    During the lifetime of husband the wife is entitled to claim maintenance against the husband which is personal obligation. But after the death of husband, sub-section (1) of section 19 confers write on a widow to claim maintenance from her father in law provided the conditions laid down in the section exist in her favour. The liability of father-in-law created under section is not a personal one and is dependent upon the existence of any coparcenary property in the hand of the father in law. Where father in law has not inherited any coparcenary property, he would not be liable to maintain the daughter in law under the Act. Merely because the son was assisting the father in the business, it would not change its character and make it joint family business. The subsection confers a right on a widowed daughter in law to claim maintenance from her father-in-law irrespective of whether they are governed by Mitakshara or Dayabhaga School of Hindu Law.

    CASE II: Balbir Kaur v Harinder Singh[2]

    The High Court held that the right of maintenance under Section 19 includes provision for residence and widowed daughter in law is entitled to claim right of maintenance against self acquired property of father in law in his hands or in the hands of his heirs.

    She is one of the preferential heirs of the father in law mentioned in class I of the schedule to that Act and inherits simultaneously among others with the widow, son, daughter and mother of the deceased. If her husband was a member of our Dayabhaga coparcenary, her position and rights as an heir of her husband are fully recognised. If her husband was at the time of his death a member of Mitakshara coparcenary, she becomes entitled by operation of Section 6 of the Act to get a share out of the interest of the deceased husband in the coparcenary property on the footing of a notional partition deemed to have taken place immediately before his death. The same is the position in case of death of the father in law who at the time of his death was a member of a Mitakshara coparcenary.

    This section is equally applicable to a daughter in law governed by Dayabhaga School.

    A father in law is bound to maintain his daughter in law, if and as long as the case falls under the section.

    Proviso. – Proviso to Section 19 (1) of the Act further provides that the liability of father in law is dependent upon the conditions that the daughter in law:-

    • is unable to maintain herself out of her own earnings or other property;
    • she is unable to obtain maintenance from the:
      • estate of husband, or
      • estate of her father, or
      • estate of her mother;
    • she is unable to obtain maintenance from her son or daughter in whom the personal obligation is created in Section 20 of the Act or from his or her estate.

    The liability of father in law is limited by clause (2) of section 19, in so far as he is possessed of any coparcener’s property in his hands and the widow has not obtained any share out of this property after the death of the husband and the liability in any cases ceases of her remarriage.

    Coparcenary property means the property in which the deceased husband had an interest as a joint owner during his lifetime. Joint family property is synonymous with coparcenary property. It consists of ancestral property, joint accusations or property thrown into common stock and accretions to such property. After the passing of Hindu Succession Act, under Section 6, a widow is a class I heir and entitled to claim a share unless the deceased husband has bequeathed his undivided share under Section 30 of Hindu Succession Act. If the husband bequeaths all the properties in favour of other and disinherits the widow, she would be entitled to claim maintenance from those who take the estate under Section 22 of Hindu Adoptions and Maintenance Act. The difference between Section 22 and Section 19 of the Act is that while under Section 22 the liability is only to the extent of value of the share or part of the state taken by him, i.e, the value of share which comes to the possession of father in law. But under section 19 a larger right against her father in law is provided subject to any share in the caparcenary property.

    CASE III: Venubai & ors. v Laxman Lahanuji Rambhad & ors.[3]

    The High Court held that even though there may have been as per uncodified law, some obligation upon a father in law to maintain his widowed daughter in law even out of his self acquired property; it has ceased to have effect and cannot be implemented if right to claim it accrued after the Hindu Adoption and Maintenance Act, 1956. Section 4(a) emphatically states that of a statutory provision is made on any custom, the obligation under the uncodified law automatically ceases to operate. It was contended that provisions of Section 19 (2) only bar execution of the obligation by such widowed daughter in law against the father in law of he has not coparcenary property, the obligation of father in law which springs from Section 19 (1) is independent of its enforceability under Section 19 (2).

    The High Court held that an obligation which cannot be legally enforced cannot be recognized as legal obligation at all. Section 19 is a complete scheme in itself which provides for an obligation and also its enforcement. It creates a right in daughter in law with corresponding liability on father in law. T is therefore not possible to read Section 19 (1) independent of Section 19 (2) of the Act.

    The present section deals with the right of maintenance of a widowed daughter in law, whether married before or after the commencement of this Act. This proviso implies that she can claim maintenance from the father in law only if she is unable to obtain maintenance—

    (1) from her own resources; or

    (2) out of the estate of her husband or her father or her mother; or

    (3) from her son or daughter of his or her estate.

    The right to claim maintenance from the father in law, in the circumstances stated above, is further conditional upon the father in law having in possession coparcenary property, out of which the widowed daughter in law had not obtained any share. If the evidence points to the fact that there is no coparcenary property, a claim under this section can not enure. The High Court of Punjab and Haryana has, however, held that she is entitled to claim maintenance from the father in law’s self acquired property or from his donee. The proviso to this section has been read to mean that the widowed daughter in law has a right of being maintained by her father or mother during their respective lives, apart from her claim against the estate of the husband. This, on the reasoning that the words ‘the estate of’ before the words ‘her husband’ or not to be read into the latter part of the clause as ‘estate of her father or mother’. The right against the father can be enforced against his property. The intention of the legislature in not using the words ‘ estate of her father’ in proviso (a) to Section 19(1) is deliberate, since the right of a widowed daughter is covered under Section 21 (vi) read with Section 22(2). This proviso creates a personal right against her father during his lifetime. Therefore, any property given in lieu of maintenance would fall within Section 14(1) of the Succession Act being in recognition of a pre existing right recognised by the father. The right to claim maintenance envisaged in sub-section (2) can be enforced even if the daughter in law, though entitled to claim a share of the joint family property does not choose to do so.

    It is implicit in the rule laid down in this section that a daughter in law whose husband is alive has no right, moral or legal, to claim maintenance from her father in law.

    If the widow has parents, they should be made a party. A clear finding is a necessary whetyher the parents have estate sufficient to maintain and on which circumstances she is unable to maintain herself. Any order making father in law liable to pay maintenance, without considering all these aspects would be without jurisdiction.[4] Widowed daughter has a right to maintenance against her father and if she is given some property in lieu of her right to maintenance for her lifetime, that would become her full interest under section 14 (1) of the Hindu Succession Act. During the lifetime of father it is personal obligation under Section 19 and after his death it is of heirs out of state of deceased father under Section 21.

    Thus, a combined reading of these sections show that where the widow has not factually obtained any share from the caparcenary property, which she is entitled by virtue of Section 6 of Hindu Succession Act, she can claim maintenance against the father in law. The difference would be that a share of the widow in the separate as well as undivided interest in coparcenary of deceased Hindu is not liable to be divested on any ground viz., conversion to another religion, unchastity or remarriage, but right to maintenance will cease on remarrying and conversion. It has been held by the Bombay High Court that the first obligation to maintain the widowed daughter in law is always on the father in law and its shifts to her father when such widow cannot get it from the father in law.

    Sub-section (2) of section 19 applies only to parties governed by the Mitakashara School of Hindu law. There is no question of a widow inheriting a share of her husband in any caparcenary property under the Dayabhaga School of Hindu law. Therefore, provisions of section 19 (2) cannot apply when the parties belong to Dayabhaga School of Hindu law.

    The right envisaged in this section to claim maintenance ceases on her remarriage. This section is prospective and retrospective. This section must be read with section 23 which lays down that 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. This section must also be read with section 22 post which relates to the right of dependents of a deceased person to claim maintenance from heirs who have inherited his estate (by will). Section 21(vii) mentions widowed daughter in law as one of the dependents of a deceased Hindu.

    OBLIGATION OF MOTHER IN LAW TO MAINTAIN

    CASE IV: Vimalben Ajitbhai Patel v Vatslaben Ashokbhai Patel & ors.[5]

    The SupremeCourt held that the maintenance of a married wife, during the subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain the daughter in law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother in law can neither be subject matter of attachment nor during the lifetime of the husband, his personal liability to maintain his wife can be directed to be enforced aganst such property. Section 18 and 19 prescribe the statutory liabilities in regard to maintenance of wife by her husband and only on his death upon the father in law, mother in law thus, cannot be fastened with any legal liability to maintain her daughter in law from her own property or otherwise.

    RIGHT TO RESIDENCE

    The Protection of Women from Domestic Violence Act, 2005 provides for a higher right in favour of wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per under the legislation extend to joint properties in which the husband has a share.[6]

    Interpreting the provisions of the Protection of Women from Domestic Violence Act, 2005, the Supreme Court gave judgement in:

    CASE V: S.R. Batra v Tarun Batra,[7]

    Supreme Court held that even a wife could not claim a right of residence in the property belonging to her mother in law and stated:

                “13. As held by this Court in B.R. Mehta v Atma Devi and others,[8] whereas in England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right exists in India.

    14. In the same decision it was observed “it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife.”

    15. In our opinion, the above observation is merely an expression of hope and it does not lay down any law. It is only the legislature which can create a law and not the Court. The courts do not legislate, and whatever may be the personal view of a Judge, he cannot create or amend the law, and must maintain judicial restraint.

    16. There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-1aw or mother-in-law.

    17. Here, the house in question belongs to the mother-in of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house.

    18. Appellant No.2, the mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.

    INTERIM MAINTENANCE

    The power to make an interim order for maintenance pending an application under this section is implicit in the section. The mere fact that this section or the Act not contain any provision of such interim relief, is no ground for negativing the same. Such relief would be ancillary, and the power would be a necessary corollary to the power of the court to entertain the application for substantive relief. It has also been regarded as an inherent power of the court. The High Court of Andhra Pradesh had taken contrary view,[9] which has now been overruled.[10]

    If a prima facie case is made out, the court would in a case falling under this section, grant interim relief. The jurisdiction of the court does not depend upon the acceptance, or denial of the relationship or the right by the husband. The parties to a maintenance application having been proved as living together for a long time, an application for maintenance cannot be dismissed on the ground that the date of solemnization of the marriage is not mentioned.

    The High Court of Andhra Pradesh has taken a contrary view. There are conflicting views as to whether any interim maintenance can be granted by the court pending a wife’s application to sue in forma pauperis. The provisions of this section are not inconsistent with the provisions of Section 24 of the Hindu Marriage Act and is, therefore, not hit by as Section 4(b) of the Act. An application for interim maintenance has to be disposed of at the earliest possible opportunity point if there are delays in adjudicating such interim issues, the purpose of interim maintenance would be rendered nugatory.

    NEWS[11]

    Pune: A widow is entitled to claim maintenance from his father in law if the latter is in possession of a deceased husband’s self acquired property, a family court here has ruled.

    Judge A G Farswani pronounced a judgement to this effect recently while allowing the petition filed by a woman, who lost her husband in January 2009, over 2 years after their marriage as per the Hindu Vedic rites at Deolali in Nashik in November 2006, and was forced out of her matrimonial home by her in laws.

    In a 28-page judgement, the court directed the father in law to pay her maintenance of Rs 40000 per month and the lump sum maintenance of Rs 700000 for the period between September 2009, when the petition was filed, till the date of the order. The court also directed the father in law to pay Rs 10,000 cost to the petitioner. The lump sum amount and the cost are to be paid within a fortnight from the date of order, the court ruled.

    The woman and her husband were living in a joint family along with her father in law and two sisters in law at Katraj. A fortnight after her husband’s death, she had to leave for Mumbai to see her ailing mother. However, when she returned on February 3, 2009, her in-laws refused to let her enter the house. Later, she filed the case against the in laws, seeking compensation, ‘streedhan’ and other reliefs under the Domestic Violence Act and the matter is pending in a magestrial court.

    In September 2009, she moved a petition for the family court seeking residence and maintenance under the Hindu adoption and maintenance act from her father-in-law.

    She claimed that her husband, who owned an ice cream factory at Katraj, was earning Rs 40000 per month and also had substantial investment in shares, insurance policy, public provident fund and mutual fund accounts. He also owned a share in the proceeds of the matrimonial family’s ancestral house which was sold in 2007.

    She alleged that she was driven out of the matrimonial house and was deprived of her legal rights and that her father in law had withdrawn money from the bank accounts she jointly held with her husband. She claimed Rs 1 lakh monthly maintenance and right to live in the matrimonial house.

    On his part, the father in law has claimed that he was entitled to keep all the properties by virtue of a will left on November 3, 2008 by his deceased son. He also claimed that he had extended a substantial loan to his son which the daughter in law was liable to repay. The daughter in law has challenge to probate of will (court process by which a will is proved valid or invalid) and the same is pending final disposal.

    The family court observed that it was not going into the question of validity of the will but was considering whether the respondent (father-in-law) had in his custody the estate of the deceased person.

    It’s noted that the respondent himself had admitted that the state of his son – assessed at over Rs 1.5 crore as per the value of 2009 was in his custody. This included movable and immovable properties of the deceased husband, some of which was reinvested by the father in law.

    The court observed, “it is a well known principle under the Hindu Adoption and Maintenance Act that a testator (person who leaves a will) can only bequeath his self acquired property and not the coparcenary (inherited) properties. The petitioner being the widowed daughter in law having no sufficient earnings of her own or other property, is entitled to be maintained as a dependent from the estate of a deceased husband which was in custody and position of the father in law. As such, she is entitled to claim maintenance.”

    The court set aside an earlier grant of interim maintenance of Rs 5,000 to the petitioner under the Domestic Violence Act and ruled that the Rs 40,000 monthly maintenance is all inclusive.

    CONCLUSION

    Thus, it can be rightly said that it is the responsibility of father in law to maintain his widowed daughter in law, but only out of the coparcenary property. It is not the personal obligation of the father in law. Where father in law has not inherited any coparcenary property, he would not be liable to maintain the daughter in law under the Act. Coparcenary property means the property in which the deceased husband had an interest as a joint owner during his lifetime. Joint family property is synonymous with caparcenary property. It consists of ancestral property, joint accusations or property thrown into common stock and accertions to such property. She is one of the preferential heirs of the father in law mentioned in class I of the schedule to that Act and inherits simultaneously among others with the widow, son, daughter and mother of the deceased.

    This proviso implies that she can claim maintenance from the father in law only if she is unable to obtain maintenance from her own resources or out of the estate of her husband or her father or her mother or from her son or daughter of his or her estate. If the widow has parents, they should be made a party. A clear finding is a necessary whether the parents have estate sufficient to maintain and on which circumstances she is unable to maintain herself. Any order making father in law liable to pay maintenance, without considering all these aspects would be without jurisdiction.


    [1] AIR 1981 AP 88 (F.B.)

    [2] AIR 2003 P&H 174

    [3] AIR 2008 Bom 130.

    [4] Raj Kishore v Meena, AIR 1996 All. 70

    [5] AIR 2008 SC 2675.

    [6] Ibid

    [7] (2007) 3 SCC 169

    [8] B.R. Mehta v Atma Devi and others, (1987) 4 SCC 183

    [9] G. Appanna v G. Seethamma, AIR 1972 AP 62

    [10] P. Srinavasa Rao v P. Indira, AIR 2002 AP 130 (FB)

    [11] Widow entitled to claim maintenance from father-in-law, TIMES OF INDIA, https://timesofindia.indiatimes.com/city/pune/Widow-entitled-to-claim-maintenance-from-father-in-law/articleshow/46523869.cms