Hindu Adoptions and Maintenance Act-1956

advtanmoy 08/08/2021 6

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.

Reason for Creation of the Code

This part of the Hindu Code deals with the subject of adoptions and maintenance among Hindus.

With the passing of the Hindu Succession Act, 1956, which treats sons and daughters equally in the matter of succession, it has now become possible to simplify the law of adoption among Hindus. The Bill provides for the adoption of boys as well as girls. There is no longer any justification for allowing a husband to prevent his wife from taking a child in adoption after his death. The adoption made by a Hindu widow will hereafter be in her own right. No person need be divested of any property which has vested in him by reason only of the fact that subsequent to such vesting an adoption has been made. This rule of divesting has been the cause of many a ruinous litigation.

In the Hindu Succession Act, 1956, a specific provision was inserted whereby it was declared that the power of a Hindu to make a testamentary disposition of his property shall not affect the right of maintenance of any heir by reason only of the fact that under the testamentary disposition the heir has been deprived of a share in the property to which he would have been entitled if the deceased had died intestate. An assurance was then given that the Chapter of the Hindu Code relating to maintenance would be introduced in Parliament as soon as possible. The latter part of this Bill deals with maintenance. This Chapter does not call for any detailed comments. It is largely based on the existing law as codified in the Bills of Rau Committee and the Select Committee of the Provisional Parliament in 1948.

21st December, 1956

CHAPTER I

Preliminary

1. Short title and extent. – (1) This Act may be called The Hindu Adoptions and Maintenance Act, 1956.
(2) It extends to the whole of India .

2. Application of Act. – (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 or 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 that law in respect of 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 or 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;

(bb) any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jaina or Sikh; and

(c) any person who is a convert or re-convert 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 in the Official Gazette, otherwise directs.
(2-A) Notwithstanding anything contained in sub-section (1), nothing containing in this Act shall apply to the Renoncants of the Union Territory of Pondicherry.
(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 to whom this Act applies by virtue of the provisions contained in this section.

3. Definitions – 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 that the rule is certain and not unreasonable or opposed to public policy; and
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 incident to her marriage;

(c) minor means a person who has not completed his or her age of eighteen years.

4. Overriding effect of Act. – Save as otherwise expressly provided in this Act,
(a) any text, rule or 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 in so far as it is inconsistent with any of the provisions contained in this Act.

CHAPTER II

Adoption

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 provisions 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 rights of any person in the family of his or her birth.

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.

Capacity

7. Capacity of a male Hindu to take in adoption. – Any male Hindu who is of 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 them is unnecessary for any of the reasons specified in the preceding proviso.

8. Capacity of a female Hindu to take in adoption. – Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption:
Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband 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..

9. Persons capable of giving in adoption. – (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) 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: Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them 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.;

(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 expressions father and mother do not include an adoptive father and an adoptive mother;

(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 childs 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.

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 a 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.

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 the adoption is made must not have a Hindu son, sons son or sons sons 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 sons 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 persons;

(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 or in the case of an abandoned child or a 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 an adoption.

Effect of Adoption

12. Effects of adoption. – 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.

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.

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 seniormost in marriage among them shall be deemed to be the adoptive mother and the others 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 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 adopted 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.

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 provisions 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.

CHAPTER III

Maintenance

18. Maintenance of wife. – (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 wilfully 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;

(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.

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 remarriage of the daughter-in-law.

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 in so far 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 this section parent includes a childless step-mother.

21. Dependants defined. – For the purposes of this Chapter dependants mean 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 remarry;

(iv) his or her son or the son of his predeceased son or the son of a pre-deceased 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 fathers or mothers estate, and in the case of a great-grandson, from the estate of his father or mother or fathers father or fathers mother;

(v) his or her unmarried daughter, or the unmarried daughter of his pre-deceased 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 fathers or mothers estate and in the case of a great-grand-daughter from the estate of her father or mother or fathers father or fathers 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 husbands estate, or from her son or daughter, if any, or his or her estate; or in the case of a grandsons widow, also from her father-in-laws 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.

22. Maintenance of dependants. – (1) Subject to the provisions of sub-section (2), 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.
(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.

Amount of Maintenance

23. Amount of maintenance. – (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 claimants property and any income derived from such property, or from the claimants own earnings or from any other source;

(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 dependant 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.

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.

26. Debts to have priority. – 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.

27. Maintenance when to be a charge. – A dependants 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.

Effect on Transfer

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 is 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.

CHAPTER IV

Repeals and Savings

29. Repeals. – Repealed by the Repealing Act, 1960 (58 of 1960), section 2 and Schedule I.
30. Savings. – Nothing contained in this Act shall affect any adoption made before the commencement of this Act, and the validity and effect of any such adoption shall be determined as if this Act had not been passed.

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    • 08/08/2021 at 11:57 #124907
      advtanmoy
      Keymaster

      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.

      [See the full post at: Hindu Adoptions and Maintenance Act-1956]

    • 25/02/2023 at 16:30 #124908
      advtanmoy
      Keymaster

      Dhani Ram v. Santoshi Bai And Another (2012)

      Chhattisgarh High Court

      Admittedly, the respondents herein have filed application under section 125 of the cr.pc by invoking the procedure provided under the Code of Criminal Procedure, 1973 and not filed any petition before such Family Court, though having jurisdiction in terms of Section 18 of the Hindu Adoption and Maintenance Act, 1956. This is not the question of misquoting or wrong quoting of the provisions, but this is a case of choosing wrong forum. The Judge of the Family Court is having parallel jurisdiction to deal with the cases under section 125 of the Cr.PC on criminal side, and the cases of Hindu Maintenance Act and that of other provisions of the Act on civil side. The respondents are at liberty to take appropriate steps under the provisions of the Hindu Adoption and Maintenance Act, 1956, but they are not entitled to claim maintenance under section 125 of the Cr.PC.

    • 25/02/2023 at 16:40 #124909
      advtanmoy
      Keymaster

      Tarini Gupta Chowdhury v. Sm. Gouri Gupta Chowdhury [AIR 1968 Cal 567]

      High Court of Calcutta in Tarini Gupta Chowdhury… v. Sm. Gouri Gupta Chowdhury…., AIR 1968 Cal 567 where A.N Ray, J., as he then was, dissented from the view taken by the High Court of Madras and held that the right of a wife to claim maintenance flows from Section 18 of the Hindu Adoptions and Maintenance Act, and that it is not a right under any section of the Code of Civil Procedure. The learned Judge, in paragraph 15 of the judgment said: Ubi jus ubi remedium; where there is a right there must be a remedy; the right flows from Section 18 of the Hindu Adoptions and Maintenance Act; if there is a general right under the statute to claim maintenance, it follows that also during the pendency of the suit the wife has a right to claim maintenance; the right of maintenance is there because she is the wife; secondly, the right to claim maintenance is being asserted in the suit and thirdly, there is a right to claim maintenance till the suit is determined and followed by a decree. If there is a prima facie case, the Court can pass orders for interim maintenance. What is meant by Prima facie case, has been laid down by Lord Evershed, Master of the Rolls, in Auten v. Rayner, (1958) 3 All ER 566 at p. 568 Lord Evershed has stated that a case which calls for an answer is a prima facie case.

      In Mulla’s Commentary on Hindu Law, 14th Edition, by S.T Desai, at page 1017

       

    • 25/02/2023 at 18:17 #124912
      advtanmoy
      Keymaster

      S. 18 of the Hindu Adoptions and Maintenance Act when it provides for maintenance for wife it includes a divorced wife.

      Originally, the Hindu marriage, succession minority, guardianship, adoption and maintenance were part of one Hindu Code Bill and later on they took statutory form by different Acts, but the Legislative intention to provide maintenance to the spouse even after divorce which is contained in Section 25 of the Hindu Marriage Act, has to be read into both the sections and provisions in both the Acts. Same Legislature cannot be imputed with two different intentions in respect of the same couple on the same question. Under Section 25 of the Hindu Marriage Act, if the provision regarding maintenance is to be applicable, both to a wife and a divorced wife, there is no reason why the same word “wife” which is used in Section 18 should not be read in the same manner because both these provisions deal with the question of maintenance between a husband and a wife. Under S. 25 of the Hindu Marriage Act, there cannot be any doubt or dispute that the wife would necessarily include a divorced wife for the purposes of maintenance and alimony even though the section uses the words “wife” or “husband” and not “divorced wife” or “divorced husband” and it also provides for maintenance not exceeding the life of the applicant. Similarly, in S. 18 of the Hindu Adoptions and Maintenance Act 1956, though the words used are “wife and husband”, the maintenance is provided by the husband during the lifetime of the wife. Thus, the scheme of both these sections is the same; the purpose is the same; the words used are the same. Therefore, when the word “wife” in S. 25 of the Hindu Marriage Act includes a divorced wife so also in S. 18 of the Hindu Adoptions and Maintenance Act, the word “wife” has to be interpreted to be a divorced wife. Any other construction would lead to anomalous and contradictory situations and orders. If the wife makes an application under S. 25 of the Hindu Marriage Act for maintenance even after divorce, that would be maintainable, but if she makes an application for the same purpose under S. 18 of the Hindu Adoptions and Maintenance Act, it would not be maintainable even though both the provisions have same purpose in mind and the same intention to provide maintenance to the wife. Therefore, it is reasonable to hold that the words “wife” and “husband” are used to describe the relationship to provide for maintenance during the lifetime of the wife and it includes a divorced wife and by doing so, there is no violation done of the language or the meaning because the meaning is always to be taken from the context and intention. For example, a married woman living happily with her husband can be held to be a widow on the question of succession to the property of her former deceased husband and by describing her as widow, there is no violence done to her present marital status of having a husband and happily living with the husband because the meaning has to be given in the context of the purpose and the intention. Similarly, when a question of maintenance arises between a husband and a wife, it arises only in a situation where there are serious disputes between the husband and wife and which may arise before divorce or thereafter and legislature makes the provision for the same.

      [Vihalal Mangaldas Patel v. Smt. Maiben Vihalal Patel Opponent., Gujarat High Court-AIR-1995 GUJ 88]

    • 25/02/2023 at 18:28 #124913
      advtanmoy
      Keymaster

      Court can grant interim maintenance during the pendency of the suit under Section 18 of the Act.

      The Calcutta High Court in Tarini Gupta v. Gouri Gupta, A.I.R. 1968 Cal. 567, and in Nemal Chand v. Smt. Lila Jain, A.I.R. 1968 Cal. 405 held that the Court had the power to grant interim maintenance under Section 18 of the Act. In Indra Mal v. Babu Lal, A.I.R. 1977 Raj. 160, it was observed that the power to grant maintenance is implicit and ancillary to the power to entertain a suit for maintenance and the Court has power to grant interim maintenance under Section 18 of the Act. It has been held by the Karnataka High Court in K. Shankare Gowda v. Smt. S. Bharathi, A.I.R. 1975 Knt. 17, if there is a general right to claim maintenance under the statute and where the relationship is not disputed, the power to grant interim maintenance flows from the statute itself. It has also been held by the Delhi High Court in Gian Devi v. Amar Nath, I.L.R. 1975 (1) Delhi 811 that where a petition is filed to permit the wife to sue in forma pauperis for maintenance during the pendency of that petition also, interim maintenance can be granted. It is no doubt true that a learned Single Judge of this Court in Makhan Singh v. Jagdish Kaur and Ors., 1992 C.C.C. 29 referred to a decision of the Andhra Pradesh High Court in Gorevelli Appanna v. Gorivelli Seethamma, A.I.R. 1972 A.P. 02, wherein it has been held that Section 18 of the Act does not authorise the award of interim maintenance pending decision on the claim to maintenance. That decision of the Andhra Pradesh High Court was dissented by the same High Court in Adigarla Simhachalam v. Adigarla Pappamma, A.I.R. 1973 A.P. 31 holding that even during the pendency of the proceedings instituted by the wife under Section 24 of the Hindu Marriage Act, she-can claim interim maintenance.

    • 25/02/2023 at 18:32 #124914
      advtanmoy
      Keymaster

      Chand Dhawan v. Jawaharlal Dhawan, 1993 (2) Mh.L.J (SC) 1731 : (1993) 3 SCC 406

      In the case of Chand Dhawan v. Jawaharlal Dhawan, 1993 (2) Mh.L.J (SC) 1731 : (1993) 3 SCC 406, on the rights of the wife to receive any maintenance either under section 18 of Hindu Adoptions and Maintenance Act or under section 24 of the said Act, the Supreme Court stated as under:23. The preamble to the hindu marriage act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as restitution of conjugal rights, judicial separation, nullity of marriage, divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the Court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the uncodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through Court intervention and with the aid of the case-law developed. Now with effect from December 21, 1956, the hindu adoptions and maintenance act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among hindus. section 18(1) of the hindu adoptions and maintenance act, 1956 entitles a Hindu wife to claim maintenance from her husband during her lifetime. sub-section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the hindu marriage act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the hindu marriage act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or ,divorce, with or without her consent.

      Thus when her marital status is to be affected or disrupted the Court does so by passing a decree for or against her. On or at the time of the happening of that event, the Court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the Court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The Court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the hindu marriage act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the Court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial Court under the hindu marriage act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation or disruption. The wife’s claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the hindu marriage act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus.

    • 25/02/2023 at 18:43 #124917
      advtanmoy
      Keymaster

      Practice Directions for Civil Miscellaneous (Main) Petitions under Art. 227 of Constitution & Civil Rev. Petition under S. 115 of CPC – DELHI HIGH COURT

      1. Advance Service of Petition:-

      (a) In a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 arising from an order in a pending proceeding before a Court subordinate to the High Court, an advance copy of the paper book shall be served upon each opposite party or their counsel (if any) who appeared last for such opposite party in the Trial Court.

      Provided that the requirement of service of advance copy of the paper book is dispensed with in respect of such opposite parties who have been proceeded ex parte before the Trial Court.

      (b) In the event, the opposite party is the Union of India; a State Government, a Statutory Authority, a Public Sector Undertaking, or a Government Department etc., who may have nominated Senior / Standing Counsel; Nominated Counsel; or Empanelled Counsel, such advance copy shall be served directly upon such Counsel (other than a Senior Advocate), under written endorsement of service, and not directly served upon Union of India / State Government / the concerned department, as the case may be.

      (c) The petitioner shall intimate all opposite parties in the matter about the filing and likely date of listing of the said petition. The petition shall be accompanied by written proof of such intimation and their respective service, besides indicating name (s) of all opposite parties in the matter. Once the petition has been cleared for listing by the Registry, the date of listing of the petition shall be intimated by the counsel for the petitioner to each opposite party or their counsel (if any) by phone / SMS/ email. The counsel for the petitioner shall give an undertaking to this effect in his application for urgent listing of the petition.

      (d) The Advocate for the petitioner(s) shall give a written declaration indicating:-

      (i) the total number of opposite parties,
      (ii) whether all the opposite parties have been served with the advance copy of the petition and
      (iii) the mode of their service.
      (e) Where advance service of the petition has been effected personally, the Counsel for the petitioner shall ensure:-

      (i) that on the index at the time of filing pleadings or documents, their full names, enrolment numbers and mobile numbers along with their e- mail addresses are specified.

      (ii) that the acknowledgement of service of advance copies of the paper book is endorsed on the first or second page of the filing index; the person acknowledging receipt of advance copies shall sign, write his name, court clerk’s registration number ( if received by court clerk) and his mobile number as also the party for whom the acknowledgement is being given (Petitioner/Plaintiff/ Defendant/Respondent no.1 or 2 etc.,);

      (iii) that their court clerks do not effectwrong/ false acknowledgements of service in the original pleadings/documents index filed before the Court. Any court clerk, who does so shall be liable for strict action;

      2. Service of petition other than by personal service:-

      (a) Service by UPC will not be accepted by the Registry as adequate proof of service.

      (b) Service on the opposite counsel / party by Registered post A/D, speed post or courier service will be accepted by the Registry as adequate proof of service, effective three clear days after the last date of despatch. Consequently, if the last date of despatch is, say, the 5th of July, then the petition will be listed on or after the 9th of July.

      (c) Service on the opposite counsel / party by e-mail shall also be accepted by the Registry at adequate proof of service provided the petition is accompanied with an affidavit of the filing counsel/party to the effect that the e-mail address at which e-mail has been sent is that of the concerned party/counsel and that the e-mail has been delivered and has not bounced back. The affidavit shall also set out the date and time of the e-mail sent and the e-mail address at which it has been sent. The e-mail shall also specify the actual date when the fresh filing is to be listed. In case there are defects and re-filings, the final filing shall be accompanied with affidavit of service of e-mail of the fresh date of listing.

      3. Details of mobile phone numbers and email of opposite parties:-

      (a) Where a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is filed, the petitioner shall mention in the memo of parties, the name, mobile number and email address of each opposite party or their counsel.
      (b) Where the name, mobile number and email address of each opposite party or their counsel is found mentioned in the memo of parties, the Registry shall enter the same in the data management system of the High Court so that auto generated SMS / email are also sent to each opposite party or their counsel regarding the filing of the petition, its progress during scrutiny by the Registry and its date of listing.

      4. Copies of pleadings, order sheets of Trial Court:-

      (a) Where a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is filed, the petitioner shall file the relevant pleadings of the original proceedings, relevant order sheets, issues if framed in the case, pleadings of relevant interim applications and documents which the petitioner intends to rely upon.

      Provided that every endeavour shall be made to place on record pleadings / documents (other than case law) referred to in the impugned order.

      (b) It shall be sufficient if copies of the documents mentioned above are filed with self certification of the counsel for the petitioner to the effect that each such document is the true copy of its respective original in the file of the Trial Court. The Registry shall not insist upon the petitioner to file certified copies of such documents.

      (c) The Registry shall not list any such petition before the Court which is not accompanied with any of the documents mentioned above.

      5. Appearance on the first date of listing:-

      (a) Where a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is filed, any opposite party desiring to oppose any of the prayers made in such petition or in any interim application accompanying such petition shall appear personally or through counsel to make submissions as he / she may desire before the Court.

      (b) In case any opposite party does not appear before the Court upon advance service of the petition, the Court may not issue any further notice to such opposite party and may pass any order(s) as it may deem fit and proper in the facts and circumstances of the case.

      6. No inherent right of any opposite party to file reply to the petition:-

      (a) Where a Civil Miscellaneous (Main) Petition under Article 227 of the Constitution of India or Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is filed, ordinarily the same may be decided on the basis of the grounds raised in the petition and the record filed with the same.
      (b) No opposite party as a matter of right shall be entitled to file a reply to such petition. The opposite party shall however during the course of hearing be entitled to produce copies of any relevant record intended to be relied upon. In exceptional circumstances, the Court may permit an opposite party to file a reply to such a petition.

      7. Strict Compliance:-

      All the Officers and Dealing Assistants at the Filing Counter shall ensure strict compliance of the above directions. The petition shall not be listed by the Registry if the same does not comply with these directions.

      These Practice Directions shall come into force w.e.f. 15.12.2019.

       

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Accessing justice is a practical reality-CJI

Mon Aug 9 , 2021
Releasing the Vision & Mission Statement and the Legal Services mobile Application of NALSA at a hybrid event which was attended by functionaries across the country, the CJI said that, if we want to remain as a society governed by the Rule of Law, it is imperative for us to bridge the gap of accessibility to justice between the highly privileged and the most vulnerable.
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