Child Maintenance under Hindu Law

Childhood care plays an important role in the development of a child. Their future productivity depends upon their early age care and maintenance. Every parent has the duty to provide the best they can do for the development of their child. Parent’s duty to maintain their children is their right. There are a number of provisions under Hindu law which states about child maintenance as the primary obligation of parents. In this article various provision as well as decided case laws are examined which state that child maintenance & welfare has given uttermost important under Hindu law.

                “The child supplies the power but the parents have to do the steering”

                                                                                                           –Benjamin Spock

Introduction

In the upbringing of children, both mother and father play a very crucial role. It is the responsibility of both the parents to provide the basic necessities to their children for their healthy growth. Both the parents have a legal, social & moral obligation to maintain their children despite the fact whether they are living together or separated.

The term maintenance means financial assistance which is provided for the basic necessities of life like, food, cloth, shelter, education, medical care, etc by the provider of the family.

Section 3(b), Hindu Adoption and Maintenance Act, 1956 defined Maintenance as:[1]

Maintenance includes-

  1. in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
  2. in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.

The government defines child maintenance as the “financial support towards your child’s everyday living cost when you have separated from the other parent.”[2]

In the case of separation of parents, the one who suffers the most is the child, in order to save the child by becoming the victim for the action of their parents, several provisions are introduced by the legislature under Hindu law which talks about the maintenance rights of the child. If the custody of a child is given to one parent, it does not cease the liability of another parent to maintain their child, both parents have equal liability to maintain their child till the age of minority.

A minor child has right of maintenance in the following situation from both the parents. Although an unmarried daughter has the right of maintenance even after attaining the age of majority (i.e. 18 year).

  1. When the child lives with their parents.
  2. When the custody of a child is with one parent, in case of their separation.
  3. When the child born out of void marriage.
  4. When the child born out of a live-in relationship.

Provision regarding child maintenance under Hindu law

A. Hindu Marriage Act, 1955

Section 26 provides for passing interim orders with respect to the custody, maintenance, and education of the minor child, consistently with their wishes, wherever possible.

This section state about custody, maintenance, and education of a minor child if any proceeding is pending under this act either regarding restitution of conjugal right, dissolution of marriage, or any other proceeding. Either the trial court or the appellate court has the power to pass interim maintenance orders.

98th Law Commission Report has given a recommendation that even without a formal application the interim maintenance for the children can be allowed but the irony is that the 98th Law Commission Report was not fully implemented.

In D.Thimmappa v. R. Nagaveni,[3] it was held that “The court is entitled to grant maintenance not only for the wife but also for children in view of section 26 of the Hindu Marriage Act. The object behind section 26 of the Hindu Marriage Act is to take care of the minor children while granting decree under the Hindu Marriage Act.”

 In, Mahendra Kumar Mishra v. Smt Snehalata Kar,[4]a revisional application was filled by husband arises out of an order granting interim maintenance to the wife and the child, which was directed by the learned subordinate judge. It was held that section 26 of the Hindu Marriage Act empowered the court to pass interim maintenance in respect of minor children. The objection raised by the petitioner that the learned subordinate court has no jurisdiction to grant maintenance to the child was failed and the revision is dismissed with the respective modification.

In, S.Sumathi v. Shravanakumar,[5] it was held by the Madras High Court that Section 24 and Section 26 of the Hindu Marriage Act perform in different angels, they do not overlap each other. If the wife wants to claim maintenance for the child, separately, then she will have to make an application representing the minor child under Section 26 of the Hindu Marriage Act.

B. Hindu Adoption and Maintenance Act, 1956 

Section 20 provides for Maintenance of children and aged parents, under this section a Hindu male or female is bound, during his or her lifetime, to maintain-

  1. His or her legitimate, or illegitimate children (minor),
  2. An unmarried daughter,
  3. His or her aged, or infirm parents.

In Sukhjinder Singh Saini v. Harvinder Kaur,[6] Delhi High Court observed a certain point while dealing with the issue of granting maintenance right to a child:

  1. The word male or female under section 20 of the Hindu Adoption and Maintenance Act,1956 include, both father and mother, they together have a legal, social, and a moral obligation to maintain their children and provide them with the best standard of living in accordance with their financial status.
  2. Both parents are equally responsible for the best education of their children.
  3. It was further held that even if the child is living with the parent whose income is sufficient enough to maintain the child, it does not mean that the liability of other parents to maintain their children does not arise.

In the case of, Padmja Sharma v. Ratan Lal Sharma,[7] both the parents are employed, it was held that a minor child can claim maintenance from his/her father or mother. It is the obligation of father and mother both to maintain the child as both the parents are employed and the salary of the husband is twice that of his wife, they will maintain their child in proportion to their salaries i.e. 2:1. The appellant’s mother is, therefore, also obliged to contribute to the maintenance of the children.

In, Ramesh Gajanan Rege v. Gauri Ramesh Rege,[8] the petitioner challenged the constitutional validity of sub-section 3 of section 20 of the Hindu Adoption and Maintenance Act, 1956 which provide that it is the obligation of both the parents to maintain his/her unmarried daughter who is unable to maintain herself even after she attains majority, under Article 226 of the Constitution of India.

Petitioner urged that if the father is under no obligation to maintain his major son then why he should be obliged to maintain his unmarried daughter, even after she attains the age of majority, he further argued that sub-section (3) is a violation of Article 14 and Article 15 of the Indian Constitution, as the said provision discriminates on the basis of sex.

Court dismissed the argument of the petitioner and observed that clause (3) of Article 15 of the Constitution provides that nothing in Article 15 shall prevent the state from making any special provision for women and children. It was further held that the class of unmarried major sons is different from the class of unmarried daughter, in view of the peculiar position of the daughter, therefore the discrimination as prohibited under Article 15 does not attract at all.  Lastly, the court rejected the writ petition and decided in the favour of daughter.

Besides from the above-said provision a child is entitled to claim maintenance from their parents under Code of Criminal Procedure.

C. Section 125 in the Code of Criminal Procedure, 1973

Under this section, maintenance can be claimed by-

  1. Wife, when she is unable to maintain herself,
  2. Legitimate or illegitimate minor child, whether married or not, who is unable to maintain herself or himself,
  3. Father or mother who is unable to maintain himself or herself.

The main objective of this provision is to provide maintenance to the above-said dependents, who are unable to maintain themselves. The right to claim maintenance under this section is secular in nature which cannot be overridden by any personal law.

In Bakulabai v. Gangaram,[9] it was held that a child born out of a void marriage as stated under section 11 of the Hindu Marriage Act 1955 is still entitled to claim maintenance under section 125 of Code of Criminal Procedure.

Conclusion

The child maintenance law in India lays down the duty of both the parents i.e. mother and the father to provide maintenance to their children when they are unable to maintain themselves. From the above provisions and case law, it is clear that the law is abundantly clear on the point that child’s welfare is a paramount consideration as stated under section 13 of The Hindu Minority and Guardianship Act,1956 while deciding the issue related with the child in any cases. The provisions regarding child maintenance under Hindu law as well as under Code of Criminal Procedure promote the interest of the child and protect the children from any kind of discrimination which is also the motive of  United Nations Convention on the Right of the Child, Article 2(2), to which India ratified,  as well as of the Universal Declaration of Human Right, Article 25(2) which also states about child protection under International Law. So, we can conclude that India is on the right path to protect childhood & promote the welfare of children which is guaranteed under our Constitution.


[1] https://indiankanoon.org/doc/544463/

[2] https://austinkemp.co.uk/2017/11/06/what-does-child-maintenance-cover/

[3] AIR 1976 Karnataka 2015. https://indiankanoon.org/doc/1921968/

[4] AIR 1983 Ori 74. https://www.legitquest.com/case/mahendra-kumar-mishra-v-snehalata-kar/D6DB3

[5] CRP (PD) No.486 of 2013. https://indiankanoon.org/doc/26407098/

[6] 2017 SCC OnLine Del 11621.  https://www.scconline.com/blog/post/2017/11/22/husband-cannot-deny-duty-maintain-wife-neither-earning-divorce/

[7] https://www.casemine.com/judgement/in/56ea7a35607dba36e9456948

[8] https://www.casemine.com/judgement/in/58117fd82713e1794795717d

[9](1988) 1 SCC 537.  https://www.lawyerservices.in/BAKULABAI-Versus-GANGARAM-1988-01-27

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