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Law Commission recommends provision to provide maintenance to Hindu Wife from family members in case of incapacity of husband

Apoorva Mandhani
13 Jan 2015 7:55 AM GMT
Law Commission recommends provision to provide maintenance to Hindu Wife from family members in case of incapacity of husband
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The Law Commission of India, in its Report No. 252, titled, “Right of the Hindu Wife to Maintenance: A relook at Section 18 of the Hindu Adoptions and Maintenance Act, 1956”, has recommended insertion of sub-section 4 under Section 18 in order to protect the right of a Hindu woman, whose husband is unable to provide maintenance to her.

Section 18 of the Hindu Adoptions and Maintenance Act provides for the wife to be maintained by her husband during her lifetime.

Therefore, under the Hindu Adoptions and Maintenance Act, the wife of a person who is incapacitated does not enjoy such right to maintenance against the relatives of the husband even if the husband is a member of a joint family. The only remedies available to such women to get any form of maintenance is to either file a suit for partition in respect of the estate of her husband or file for divorce in order to claim maintenance.

Recommending a change in this respect, the report asserts, “Thus there is sufficient basis in classical Hindu law to cast a legal obligation on the father-in-law to maintain the daughter-in-law, when the husband of the latter is unable to do so. The above discussion lends support to the legislative amendment proposed by the Commission that seeks to spell out in the law, the father-in-law’s obligation to pay maintenance to the daughter-in-law.”

The Recommended sub-section 4 would read as follows:

“Section 18 (4) - Where the husband is unable to provide for his wife, on account of physical disability, mental disorder, disappearance, renunciation of the world by entering any religious order or other similar reasons, the Hindu wife is entitled to claim maintenance during her lifetime, from members of the joint Hindu family of the husband, except where the husband has received his share in the joint family property.

Explanation: For the purpose of this Section, the term “mental disorder” shall have the same meaning assigned to it under the Explanation to Section 13(1) (iii) of the Hindu Marriage Act.”

Justice Paramjeet Singh of the Punjab and Haryana High Court had, in the case of Avtar Singh v. Jasbir Singh, RSA No. 29/1988, through a judgment passed on February 11, 2014, identified a lacuna in the position of Hindu Women with respect to their property and maintenance rights under the existing law.

In the said case, the Plaintiff was the wife of a man of unsound mind. She had demanded 1/4th share in the land belonging to the family, from her father-in-law as maintenance for herself, her husband and her minor sons.

The demanded share had been provided to her by her father-in-law through a family settlement before the Gram Panchayat, but the wife was later forcibly dispossessed of the land by her father-in-law and brother-in-law.

Since the property had been handed over voluntarily by the father-in-law to the son with unsound mind and his family through a family settlement, the substantial question of law regarding the legal obligations of the father-in-law in such situations was not raised. However, before parting with the case, Justice Paramjeet Singh made the following observations with regard to legal position of Hindu wives:

“Before parting with judgment, it would be appropriate to mention that no provision has been brought to my notice by learned counsel for the parties that if husband is insane or of unsound mind, the daughter in law who is not having any source of maintenance can claim maintenance for herself. When she has to maintain her mentally ill husband, her condition is worse than being a widowed daughter in law. In such a situation, the wife should be deemed to be dependent upon the father in law and entitled to maintenance as provided under Section 19 of the Hindu Adoptions and Maintenance Act. Copy of this Order be sent to the Union Ministry of Law and Justice and Law Commission of India for taking appropriate measures for amendment in the Act.” Read the judgment here.

Based on the above recommendation, the Law Commission of India decided to look into the question. The Committee for the purpose comprised of Mr. Justice (Retd.) Ajit Prakash Shah, Chairman, Law Commission of India; Justice (Retd.) Ms. Usha Mehra, Member, Law Commission of India, Ms. Dipika Jain, Associate Professor, Jindal Global University, Sonepat; and Mr. Saptarishi Mandal, Assistant Professor, Jindal Global University, Sonepat.

Read the LCI Report here.

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