Introduction
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, wife and parents.
These provisions along with important cases are discussed here below:
Maintenance under Section 125 of Code of Criminal Procedure, 1973
Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) His wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) The Code of Criminal Procedure discusses about the maintenance for parents to be provided by children. The section states that “If any person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, a magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate and the expenses of such proceeding which the Magistrate considers reasonable and to pay the same to such person as the Magistrate may from time to time direct”. Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.”;
Who is liable to pay maintenance?
Section 125 of Cr.P.C states that both mother and father, whether natural or adoptive, can claim maintenance from any of their children. Under Section 125 even daughters are liable to pay maintenance to her mother and father. In case of step mother, she can claim maintenance only if she is a widow and doesn’t have any natural-born sons or daughters. Married daughters are also liable to pay maintenance to parents if they are solely dependent on her.
Conditions required for claiming maintenance
- Father or mother must be unable to maintain himself or herself: By giving a plain meaning to the language used in section 125(1)(d), it seems that there are only two circumstances under which parents can claim maintenance, which are as follows:
- The parents must be unable to maintain themself
- The person against whom an order under Section 125 of Cr.P.C is passed by the court must have sufficient means/resources to maintain his/her parents and yet neglects or refuses to maintain them.
The provision in section 125 is one of general application. The provision provides the statutory recognition of the obligation that a son who has sufficient means is bound to maintain a father or mother who is unable to maintain himself or herself.
Daughter is liable to pay maintenance to parents: There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. The parents will be entitled to claim maintenance against their daughter provided the above mentioned conditions are fulfilled. However, before passing an order in favour of parents against their married daughter, the court must be satisfied that the daughter has sufficient means of her own which should be independent from that of her husband.
- Adoptive mother can claim maintenance: The Bombay High Court in Baban Alias Madhav Dagadu Dange v. Parvatibai Dagadu Dange observed that according to the definitions given in the General Clauses Act, the expression “father” includes both natural as well as adoptive father. It is true that the General Clauses Act has not defined the expression “mother” But that does not mean that the expression should be taken in its restrictive sense. Now if expression “father” and “son” is to be given wider interpretation, there is no valid reason why the expression “mother” should not be given similar wider interpretation so as to include an “adoptive mother” as well.
- Step-mother can claim maintenance: The Hon’ble Supreme Court in Kirtikant D. Vadodaria v. State of Gujarat and Ors.[1] held that “a childless step-mother may claim maintenance from her step-son provided she is a widow or her husband, if living, is also incapable of supporting and maintaining her”.
However the Karnataka High Court in Ulleppa v. Gangabai [2] added its view to the judgement pronounced by Supreme Court in Kirtikant D. Vadodaria v. State of Gujarat. The court observed that if it is proved that step mother has other modes of maintaining herself she may not be able to get maintenance from her step sons.
Obligation of children to maintain their parents under Personal Laws
Hindu Adoption and Maintenance Act, 1956[3]
The Hindu Adoption and Maintenance Act, 1956 is the first personal law statute in India, which imposes an obligation on the children to maintain their parents. The obligation to maintain parents is not confined to sons only, even the daughters have an equal obligation/duty to maintain their parents. It is to be kept in mind that parents who are financially unable to maintain themselves from any source, only then they are entitled to seek maintenance under this Act.
According to Section 20 of Hindu Adoption and Maintenance Act, 1956 it is the obligation of children to maintain their aged infirm parents (children here include legitimate as well as illegitimate). The term ‘children’ under Hindu Adoption and Maintenance Act, 1956 does not include grandson and granddaughter. The liability to maintain parents is personal and is not dependent on the possession of property (as is the case of proceedings under Maintenance and Welfare of Parents and Senior Citizens Act) and this obligation ceases with the death of the person liable to maintain.
Hindu Marriage Act, 1955, Section 26[4] – 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 (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 by the court. 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.
Muslim Women (Protection of Rights on Divorce) Act, 1986 Section 3[5] – 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.
Maintenance and Welfare of Parents and Senior Citizens Act, 2007[6], Section 4 – 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 senior citizens (who have 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.
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].
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].
The order of maintenance may be altered by the Tribunal on proof of change in circumstances [Section 10].
Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019[7]
The government brought the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2018 by which the government has tried to expand the ambit of social security for the elderly people by:
- Making Relative responsible for their maintenance if they inherit the property as define under the Act,
- Increasing the amount of fine payable and the period for imprisonment for abandoning parents. Now the imprisonment would be upto six months with a fine upto Rs. 10,000 or both.
- The most important change brought in by the government is removing the financial cap of Rs. 10,000 for the maintenance of parents. However, it is felt that while removing this cap is adequate for the rural areas or small towns but it is inadequate in bigger/metropolitan cities.
- The definition of “children” has been expanded under the amendment bill to include daughter-in-law and son-in-law. This means that, so far, a daughter, son, grandson or granddaughter was responsible for the care of parents and senior citizens. But after the amendment, even the daughter-in-law and son-in-law, a minor through its guardian or a relative of a childless elderly would be held responsible for their care.
Cases
- Children of void marriage entitled to maintenance– 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, Bakulabai v. Gangaram, (1988) 1 SCC 537.
- Father to maintain the unmarried daughter– 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 v. District Judge, Dehradun, (1997) 7 SCC 7.
- Daughter to be maintained until she gets married even after attaining majority– 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, (2002) 5 SCC 422.
- Hindu earning mother is also obliged to maintain children-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 v. Ratan Lal Sharma, (2000) 4 SCC 266.
- CrPC applies only when there is neglect or refusal to maintain despite having sufficient means– A case for grant of maintenance under Section 125 CrPC 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 v. Maya Paul, (2009) 8 SCC 359.
- Maintenance under CrPC & 1986 Act runs parallel (Muslim children entitled to maintenance under CrPC)– The benefit under Section 125 CrPC 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 v. Mohd. Quasim, (1997) 6 SCC 233.
- Daughter is also obliged to maintain parents-Along with a son, Section 125 CrPC imposes 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 v. Kashirao Rajaram Sawai, (1987) 2 SCC 278.[8]
- When can a stepmother claim maintenance from her stepson– 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 v. State of Gujarat, (1996) 4 SCC 479.[9]
- Conditions for grant of maintenance to parents and senior citizens under 2007 Act– 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 v. DM, Kanyakumari, 2014 SCC OnLine Mad 5642.[10]
[1] https://indiankanoon.org/doc/1183806/
[2] https://indiankanoon.org/doc/687405/
[3] https://legislative.gov.in/sites/default/files/A1956-78_0.pdf
[4] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
[5]https://indiankanoon.org/doc/976981/#:~:text=make%20an%20order%2C%20within%20one,life%20enjoyed%20by%20her%20during
[6] https://legislative.gov.in/sites/default/files/A1986-25_1.pdf
[7] http://164.100.47.4/BillsTexts/LSBillTexts/asintroduced/374_2019_LS_Eng.pdf
[8] https://indiankanoon.org/doc/780813/
[9] https://indiankanoon.org/doc/1388011/
[10] https://indiankanoon.org/doc/91169080/