{"id":207905,"date":"2019-01-10T12:00:42","date_gmt":"2019-01-10T06:30:42","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=207905"},"modified":"2019-05-15T13:22:16","modified_gmt":"2019-05-15T07:52:16","slug":"maintenance-children-and-parents","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2019\/01\/10\/maintenance-children-and-parents\/","title":{"rendered":"Maintenance – Children and Parents"},"content":{"rendered":"

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]<\/p>\n

Introduction<\/span><\/strong><\/p>\n

In India, beneficial provisions for maintenance of children and parents are provided under various Acts. Objective of such provisions is to achieve a social purpose and to prevent vagrancy and destitution and to provide simple, inexpensive and speedy mechanism for providing support and maintenance to children and parents.<\/p>\n

These provisions along with important cases are discussed below:<\/p>\n

Statutory Provisions<\/strong><\/span><\/p>\n

Hindu Marriage Act, 1955<\/em>, Section 26<\/a>\u00a0 – <\/strong>During the proceedings under the Act, the court may pass orders with respect to the custody, maintenance, and education of minor children. Under this Act, both parents <\/em>(father as well as mother or either of them) are liable to maintain the children as ordered by the court. While making such orders, the court takes into account wishes of the children, as far as possible. Such orders and provisions may be altered from time to time. Any application in respect to maintenance and education of minor children during pendency of proceedings under the Act has to be decided within sixty days from the date of service of notice on the respondent, as far as possible.<\/p>\n

Hindu Adoption and Maintenance Act, 1956<\/em>, Section 20<\/a>\u00a0– <\/strong>A Hindu male or female is bound to maintain his or her legitimate\/illegitimate minor children and aged\/infirm parents. Aged or infirm parent (which includes childless stepmother) or unmarried daughter have to be maintained if they are unable to maintain themselves. Section 23 sub-section (2)<\/a> states that while determining the amount of maintenance to be awarded to children or aged or infirm parents, the court shall consider the following:<\/p>\n

(a<\/em>) position and status of the parties; (b<\/em>) reasonable wants of the claimants; (c<\/em>) if the claimant is living separately, whether the claimant is justified in doing so; (d<\/em>) claimants income and value of property held by him, if any; etc.<\/p>\n

If a person ceases to be a Hindu (changes his religion), he\/she cannot claim maintenance under this Act [Section 24<\/a>]. The amount of maintenance may be modified if there is a change in circumstances warranting so [Section 25<\/a>].<\/p>\n

Under this Act, even the heirs of a deceased Hindu are bound to maintain his\/her “dependants” out of his\/her estate inherited by them [Section 22]<\/a>. Dependents include deceased person’s minor son, unmarried daughter, widowed daughter, minor illegitimate son, minor illegitimate daughter [Section 21<\/a>].<\/p>\n

Criminal Procedure Code, 1973<\/em>, Section 125<\/a>\u00a0–<\/strong> Magistrate may order a person to make monthly allowance for maintenance in a case where any person who despite having sufficient means neglects or refuses to maintain \u2013 (i<\/em>) his legitimate or illegitimate minor child who is unable to maintain itself; or \u00a0(ii<\/em>) legitimate or illegitimate major child (not being a married daughter) unable to maintain itself due to any physical or mental abnormality\/injury; or (iii<\/em>) married daughter till she attains majority if her husband is not able to maintain her; or (iv<\/em>) his\/her father or mother who are unable to maintain themselves. This section also makes a provision for maintenance during the pendency of proceedings regarding monthly allowance for maintenance. Also, application for interim maintenance during pending proceedings is to be decided by the Magistrate, as far as possible, within sixty days of the date of service of notice of application to such person. A person who fails to comply with the order of the Magistrate without showing sufficient cause may also be sent to prison. The order of maintenance passed under this section may be altered by the Magistrate on proof of change in circumstances [Section 127<\/a>].<\/p>\n

Muslim Women (Protection of Rights on Divorce) Act, 1986<\/em>, Section 3<\/a>\u00a0– A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance for children born to her for a period of two years from the respective dates of birth of such children. It does not matter if the children were born before or after the divorce, the former husband is liable to pay maintenance. If the former husband fails to comply with the order passed by Magistrate without showing sufficient reason, he may have to suffer imprisonment up to one year.<\/p>\n

Maintenance and Welfare of Parents and Senior Citizens Act, 2007<\/em>, Section 4<\/a>\u00a0<\/strong>– Parent (father or mother whether biological, adoptive or step father or step mother, whether senior citizen or not) or grand-parent who is unable to maintain himself is entitled to claim maintenance from one or more of his adult children (son, daughter, grandson and grand-daughter but does not include a minor). Obligation of the children to maintain their parents extends to such needs of the parents which will allow them to lead a normal life. Additionally, this Act also makes provision for maintenance of childless <\/em>senior citizens (who has attained the age of sixty years or above) by their relatives. The “relative” means any legal heir of childless senior citizen who is in possession of his property or would inherit it after his death, but it does not include a minor.<\/p>\n

If the parents or senior citizens are incapable of applying for monthly allowance for maintenance themselves, in that case, an application can be made through any other person or organisation authorised by them. Such an application has to be decided by Maintenance Tribunal within a maximum period of 120 days from the date of service of notice to children\/relative. If children\/relative fails to comply with the orders of the Tribunal, this may result in imprisonment upto one month. [Section 5<\/a>]. The Tribunal may order the children\/relative to make a monthly allowance at a rate deemed fit by the Tribunal. However, the maximum amount of maintenance cannot exceed Rs 10,000 per month. [Section 9<\/a>]. The order of maintenance may be altered by the Tribunal on proof of change in circumstances [Section 10<\/a>].<\/p>\n

Cases<\/strong><\/span><\/p>\n

Children of void marriage entitled to maintenance<\/strong><\/span><\/p>\n

A child born out of a void marriage between a woman and a man who already has a wife is to be treated as a legitimate child who is entitled to maintenance under Section 125 CrPC<\/a>, Bakulabai <\/em>v. Gangaram<\/em>, (1988) 1 SCC 537<\/a>.<\/p>\n

Father to maintain the unmarried daughter<\/strong><\/span><\/p>\n

An unmarried daughter unable to maintain herself is entitled to claim maintenance under the Hindu Adoption and Maintenance Act, 1956. The father is obliged to maintain her unmarried daughters even if they are living separately with their mother, Jasbir Kaur Sehgal <\/em>v. District Judge, Dehradun<\/em>, (1997) 7 SCC 7<\/a>.<\/p>\n

Daughter to be maintained until she gets married even after attaining majority<\/strong><\/span><\/p>\n

Daughter is entitled to maintenance under CrPC when read with Hindu Adoption and Maintenance Act, 1956 even after attaining majority but till her marriage, Jagdish Jugtawat v. Manju Lata, <\/em>(2002) 5 SCC 422<\/a>.<\/p>\n

Hindu earning mother is also obliged to maintain children<\/strong><\/span><\/p>\n

Both, a Hindu divorcee father and a Hindu divorcee earning mother are obliged to contribute for maintenance of their children under the Hindu Adoption and Maintenance Act, 1956. Father is not exclusively responsible to maintain children regardless of mother being affluent, Padmja Sharma <\/em>v. Ratan Lal Sharma<\/em>, (2000) 4 SCC 266<\/a>.<\/p>\n

CrPC applies only when there is neglect or refusal to maintain despite having sufficient means<\/strong><\/span><\/p>\n

A case for grant of maintenance under Section 125 CrPC<\/a> arises only when a person despite having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor children who are unable to maintain themselves, Amarendra Kumar Paul <\/em>v. Maya Paul<\/em>, (2009) 8 SCC 359<\/a>.<\/p>\n

Maintenance under CrPC & 1986 Act runs parallel (Muslim children entitled to maintenance under CrPC)<\/strong><\/span><\/p>\n

The benefit under Section 125 CrPC<\/a>\u00a0<\/strong>is available to all children irrespective of religion. Right under Muslim Women (Protection of Rights on Divorce) Act, 1986 is that of the mother to claim maintenance for children for two years from their date of birth and is distinct and independent of the right to maintenance under CrPC to minor children unable to maintain themselves, Noor Saba Khatoon <\/em>v. Mohd. Quasim<\/em>, (1997) 6 SCC 233<\/a>.<\/p>\n

Daughter is also obliged to maintain parents<\/strong><\/span><\/p>\n

Along with a son, Section 125 CrPC<\/a>\u00a0imposes liability even on daughter whether married or unmarried, having sufficient means to pay maintenance to her parents who are unable to maintain themselves, Vijaya Manohar Arbat <\/em>v. Kashirao Rajaram Sawai,<\/em> (1987) 2 SCC 278<\/a>.<\/p>\n

When can a stepmother claim maintenance from her stepson<\/strong><\/span><\/p>\n

A childless stepmother may claim maintenance from her stepson provided she is a widow or her husband, if living, is incapable of supporting and maintaining her, Kirtikant D. Vadodaria<\/em> v. State of Gujarat<\/em>, (1996) 4 SCC 479<\/a>.<\/p>\n

Conditions for grant of maintenance to parents and senior citizens under 2007 Act<\/strong><\/span><\/p>\n

Senior citizens, including parents, will be entitled to maintenance under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 if only they are unable to maintain themselves from their own earnings or out of the income from the property owned by them, M. Venugopal<\/em> v. DM, Kanyakumari<\/em>, 2014 SCC OnLine Mad 5642<\/a>.<\/p>\n

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Further Suggested Reading<\/span><\/strong><\/p>\n

1. Sumeet Malik –<\/strong><\/span> Adoption and Maintenance Laws Manual [Buy Here]<\/a><\/p>\n