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Surviving after divorce
Know how to claim your maintenance
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 Maintenance without divorce
The Hindu Adoptions and Maintenance Act, 1956.
Maintenance, in other words, is right to livelihood when one is incapable of sustaining oneself. Hindu law, one of the most ancient systems of law, recognises right of any dependent person including wife, children, aged parents and widowed daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance Act, 1956, provides for this right.
Maintenance as main relief: for wife
The relief of maintenance is considered an ancillary relief and is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation etc. Further, under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce or any other major matrimonial relief has been recognised in Hindu law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. 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 ranging from growing children to social stigma. Thus, in order to realise her claim, the Hindu wife must prove that one of the situations (in legal parlance 'grounds') as stated in the Act, exists.
Grounds for award of maintenance
Only upon proving that at least one of the grounds mentioned under the Act, exists in the favour of the wife, maintenance is granted. These grounds are as follows:
- The husband has deserted her or has wilfully neglected her;
- The husband has treated her with cruelty;
- The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
- The husband has any other wife living;
- The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
- The husband has ceased to a Hindu by conversion to any other religion;
- Any other cause justifying her separate living;
Bar to relief
Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she has indulged in adulterous relationship or has converted herself into any other religion thereby ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief, the marriage must be a valid marriage. In other words, if the marriage is illegal then the matrimonial relationship between the husband and wife is non-existent and therefore no right of maintenance accrues to wife. However, thanks to judicial activism, in particular cases the presumption of marriage is given more weightage and the bars to maintenance are removed.
Other dependents who can claim maintenance
Apart from the relationship of husband and wife other relations in which there is economic dependency are also considered to be entitled to maintenance by the Hindu Adoptions and Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from her father-in-law to the extent of the share of her diseased husband in the said property. The minor children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance from their parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim maintenance from their children. The term parent here also includes an issueless stepmother.
Conclusion
Thus, the Hindu Adoptions and Maintenance Act, 1956 has taken into its ambit most of the family relationships in which economic dependence exists and has ensured the right of maintenance to such relationships. However, it cannot be said to be a foolproof assurance as there are many 'ifs' and 'buts' that need to be surmounted before any actual relief can reach the needy litigant.
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Jai Vaidya
Leading advocate at the Mumbai High Court
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