Detail of REMARRIAGE

REMARRIAGE

REMARRIAGE

Under Section 15 HMA, when a marriage "has been dissolved by a decree of divorce", it shall be lawful for either party to marry again if there is no right of appeal against the decree; or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented; or an appeal has been presented but the same has been dismissed by the court.

     In Lila Gupta v. Laxmi Narian, the Supreme Court observed that a marriage performed by violating the conditions of Section 15 is not void, it is only invalid in law. When one of the parties to a marriage is a lunatic or an idiot and is already married, such a marriage is void ab initio, i.e. it is a non-est marriage. A party to such a marriage can, therefore, marry again.

 

MAINTENANCE OF WIFE, CHILDREN AND OTHER DEPENDANTS

Law of maintenance can be classified into two parts on the basis of the persons for whom maintenance is being provided and these are:

1.      Law of maintenance of the spouse.

2.      Law of maintenance of the children and aged parents.

Maintenance includes all those things which are necessary to sustain life, i.e. food, clothing, education, medical expenses, residence, etc.

Maintenance of wife

A husband may or may not possess property, yet, he is bound by law to maintain his wife. A Hindu male has to maintain not only his wife and children, but also his parents.

   Section 24 HMA makes provision for maintenance of wife.

   An order for maintenance pendente lite and expenses of proceedings can be made in any proceedings under the Act, viz. restitution of conjugal rights, judicial separation, divorce, or nullity of void and voidable marriage.

   Section 24 provides for the support to be given by the employed spouse in favour of the unemployed spouse during the pendency of proceedings before the court. Jurisdiction to pass orders under Section 24 HMA arises as soon as any proceeding s under this section arise or are instituted in the court and it lasts so long as the proceedings are pending. The court has discretionary power to decide the date from which maintenance under Section 24 HMA  should be granted.

Conditions 

Temporary maintenance can be granted by the court when

1.      some proceedings under this Act begin;

2.      the spouse claiming maintenance is unemployed or has no source of independent income; and

3.      the spouse seeking maintenance applies to the court for this purpose.

Section 24 grants two types of reliefs is requested.

a)      To claim cost of the proceedings in regard to which relief is requested.

b)      Relief regarding monthly maintenance during the period of the proceedings.

Considerations

1.      The wife's claim for maintenance, Explanation (b) to Section 125 CrPC, continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance. mere divorce does not end the right to maintenance.

2.      The court is required to take into consideration the income of the parties before deciding the quantum of interim maintenance.

3.      While granting interim maintenance, conduct of either spouse is not a necessary consideration.

4.      Once the husband has contracted a second marriage, the wife becomes entitled by law to claim for separate residence and maintenance.

5.      If the wife establishes that she does not have sufficient independent income for her support, it is open to her to claim maintenance pendente lite.

Hindu Adoptions and Maintenance Act, 1956

There is no provision for maintenance pendente lite for the wife under the HAMA. Section 18 refers to lifelong maintenance for the wife under certain specific conditions laid down therein. The right to claim interim maintenance in a suit is a substantive right under Section 18 HAMA. No particular form is prescribed for the purpose in any Act. This right can be enforced in a civil court in exercise of the court's inherent power of granting interim maintenance.

Permanent alimony

Hindu Marriage Act, 1995

Section 25 HMA provides for permanent alimony. Section 25(1) provides for grant of a gross sum, or monthly or periodical sum towards maintenance on an application made by the wife or husband for a team not exceeding the life of the applicant, taking into consideration the factors specified thereunder. Grant of maintenance under Section 25(1) is incidental to the decree granting substantial relief under the Act.

    The right of maintenance is a continuing right even after a decree is granted under the Act and the quantum of maintenance is variable from time to time if there is change in the circumstances of either party.    

    Section 25 does not apply to cases of divorce only. Either party to marriage can file a petition for maintenance in cases of nullity of marriage, restitution of conjugal rights and judicial separation too.

Quantum of maintenance

Under Section 25, the court would fix a gross amount or grant a monthly maintenance amount or an amount to be paid periodically as permanent maintenance. But before fixing the amount, the court would take into account the following matters:

1.      defendant's income and other property,

2.      petitioner's income and other property,

3.      behaviour of the parties, and

4.      other circumstances attending the case.

The amount of maintenance must necessarily be just and it would be secured considering it as a charge on the property of the respondent.

When such orders are altered, amended or cancelled

Section 25(2)HMA explains the conditions in which the order of maintenance may be altered, amended or cancelled. The altered circumstances would be as under:

1.      the party in whose favour order is made has remarried, or

2.      if such a party is a wife, she has not remained chaste, or

3.      if such a party is a husband, he is guilty of adultery.

Section 18, HMA makes it clear that is the duty of a husband to maintain his wife during her lifetime and the husband's duty is wife's right. Maintenance amount, however, varies according to the status and life standard of the wife.

   A husband is obliged to perform this duty even if he does not have any self-earned or inherited property. A woman cannot be considered as dependent so long as her husband is alive and that is why she cannot demand maintenance from her husband's relatives or from her own relatives.

Wife's right to separate residence

A wife has the right to separate residence if the conditions under Section 18(2) are fulfilled. Her right to maintenance, however, remains intact even thought she demands separate residence.  

     The conditions under which a wife will be entitled to separate residence without losing the right to maintenance are as follows:

1.      Husband is guilty of desertion.

2.      Husband is cruel towards his wife.

3.      Husband is suffering from leprosy, a contagious disease.

4.      Husband has a second wife living.

5.      Husband keeps his second wife with his first in the same house.

6.      Husband keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.

7.      Husband has converted to other religion and has ceased to be a Hindu.

8.      Wife has got any other reasonable cause which impels her to live separately from her husband.

Second wife's right to maintenance

The supreme Court in Badshah v. Sou. Urmila Badshah Godse, gave the right to maintenance to the second wife under Section 125. Apart from a limited right to maintenance and the children of such marriages being legitimate, the second wife is not a legal heir. She can claim some rights under the Protection of Women from Domestic Violence Act, 2005 (DV Act) though.

    Live- in relationships or relationships in the nature of marriage, where neither of the parties is married have been recognised in the DV Act and the women are entitled to rights under the same. However children in cases where the couple do not even claim to be married, though part of a void, marriage, are not legitimate. 

When is the wife disentitled to separate residence and maintenance?

The right of claiming separate residence by a wife is not an absolute right under Hindu Law. To claim separate residence, the wife has to fulfil the following conditions:

1.      she has to remain chaste, and

2.      she has to remain a Hindu i.e. she cannot accept some other religion.

If the wife violates any of the above conditions she would not be able to claim separate residence from her husband as a matter of right.

Quantum of maintenance

Under Section 23 HAMA, the court has the discretion to decide the quantum of maintenance.

Section 23 HAMA clearly lays down the conditions which must be taken into consideration before deciding the quantum of maintenance.

1.      Status of both the parties.

2.      Reasonable requirements of the wife.

3.      If the wife is living separately, is she justified in doing so.

4.      The value of wife's property, any income that may be derived from such property and also the wife's own earning, if any.

5.      If the husband is maintaining somebody else as well, like parents, dependants, etc., then that shall also be considered.

Alimony and maintenance as an independent remedy

Alimony and maintenance as an independent remedy has been provided under the HAMA. The Act envisages certain situations in which it may become impossible for a wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial tie for various reasons. Thus, in order to realise her claim, the Hindu wife's must prove that one of the grounds stated in the Act does exist.

    There is no inconsistency between Section 125 and the provisions in Section 18 HAMA since the scope of the these two laws are different.

Maintenance of husband 

Sections 24 and 25 HMA entitles not only the wife but also the husband to claim maintenance pendente lite and permanent maintenance on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped from earning and supporting his livelihood.

Maintenance of widowed daughter-in-law

       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.

Maintenance of children and aged parents

According to Section 20(1), 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. Though a child may be in her mother's custody, the father is bound to maintain him/her.

Children

Maintenance for children amongst the Hindus has been provided under two personal law statues, which create an obligation to maintain children -HAMA and HAMA.

    Under Section 24 or Section 25 HMA, the children are also entitled to get maintenance if the claimant has the responsibility of maintaining them, i.e. the claimant's right to maintenance also includes the right of maintenance of the children. The maintenance granted under the HMA is only ancillary to the main relief.

   Section 20 HAMA imposes an obligation equally upon both mother and the father to maintain their children. This obligation is a personal obligation and does not depend on father or mother holding any property. Under this section, children includes both legitimate and illegitimate child. The children are entitled to maintenance during their minority which means the person who has not completed the age of 18 years. Whereas for the daughter, this right is extended up to the time she gets married is she is unable to maintain herself.

Maintenance of illegitimate children

Mother is the natural guardian of the illegitimate children. However, they are entitled to maintenance from their natural fathers in case of a boy till 18 years, for a girl till marriage and for persons with disability, till whenever they are dependent on the father.

Maintenance of children of void and voidable marriages

Under the Hindu Succession Act, children of void and voidable marriages are legal heirs of the father and can inherit from him just the way the children of valid marriages can inherit from him. But the children who are illegitimate have been disenfranchised and disinherited by the HSA, which privileges legitimate children and bars illegitimate children from inheriting from their fathers.

Parents

Section 20(3)HAMA provides for the maintenance of the parents. It lays down an obligation of maintenance of old and infirm parents who are unable to maintain themselves out of their own personal earnings and property. The obligation to maintain is not only limited to the sons but it also extends to the daughters.

Quantum of maintenance

Children and old or infirm parents.

     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 consideration 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 claimant's property and any income derived from such property, or from the claimant's own earning 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 decreased 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 dependent and the deceased;

g)      the number of dependents entitled to maintenance under this Act. Therefore, it can safety be said that what is implicit under Section 3 is made explicit in Section 23.

Maintenance and Welfare of Parents and Senior Citizen Act, 2007      

This Act accords prime responsibility for the maintenance of parents on their children, grand children or even relatives who may possibly inherit the property of a senior citizen. It also calls upon the State to provide facilities for poor and destitute older persons.

Maintenance of dependants

Dependants according to the HAMA means the following relatives of a deceased Hindu male:

1.      Father of the deceased.

2.      Mother of the deceased.

3.      Widow of the deceased (until she remarries).

4.      Son of the deceased, predeceased son's son (PSS), predeceased son's son's son (till he is a minor).

5.      Deceased's unmarried daughter or unmarried daughter of the predeceased son or her daughter (so long as she remains unmarried).

6.      Deceased's widowed daughter.

7.      Deceased's widowed daughter-in-law or such son's son's widow.

8.      Deceased's minor illegitimate son.

9.      Deceased's illegitimate daughter (so long as she remains unmarried).

As the deceased was liable to maintain his relatives, the same way his successors would discharge such responsibility. This responsibility is to be discharged from the property which has been inherit by him.

    A widow has a right to maintenance out of her deceased husband's property and the successors of the deceased man are obliged to maintain the widow out of the property of the deceased inherited by them. A widow can also enforce her right to receive maintenance against the transferee of her deceased husband's property.

When successors are many

Where the successors are more than one, their responsibility to maintain is in proportion  to the property they inherit.

Right of maintenance cannot be transferred to any other person

Right of maintenance is a personal right. It is, therefore, not possible to transfer it in somebody else's name. Such a transfer may be on account of past maintenance or it may be for future maintenance, but that is not allowed because the right is a personal right.