Maintenance of Child under Hindu law
Authored by Pulkit Tiwari
Keywords: maintenance, child rights, Hindu law.
India is a country of great population and like every country, it needs certain laws and rules. These sets of disciplines are obviously created by the government on matters concerning the economy, society, territory, etc. A certain set of rules are also created for the personal sphere, marriage being one of them. The personal sphere is an area where laws of other countries diverge from India’s, because of the difference of the definition of secularism. Secularism according to major democracies like the USA, the UK, Australia, etc. is the absence of religion in governance, whereas India’s definition of secularism means consideration of every religion and equal respect for every religion because people of almost every religion are found in India except Shintoism, and religion has a major impact in people’s life. Due to this difference personal laws in India consider the religious angle and an important one, especially in marriage. Marriage is a synecdoche for activities related to marriage like marriage, divorce, maintenance, etc.
Marriages in different religions have different rituals and therefore different religions have different marital laws. Hindu marital activities are governed by the Hindu Marriage Act of 1955. The act mentions that it is applicable to people who are Hindu, Buddhist, Jain, and Sikh by religion and who do not belong to Muslim, Christian, Parsi, or Jew religion. Marriage and Divorce is a highly discussed topic, and everyone is aware of the laws relating to the two, but children whose parents are getting a divorce and their maintenance is an under-discussed topic. Similar to marriage, the maintenance of children of different religions is governed by a different law. Maintenance of children whose parents married under The Hindu Act 1955 will be provided maintenance under the same.
What is maintenance?
Maintenance in law is the fixed amount paid to a person dependent on someone if the relation of two people relation is considered by law and if there exists a law of maintenance after the relationship has been terminated e.g. a husband has to pay maintenance to his wife dependent purely on him, an earning parent has to pay maintenance to his/her children if he/she does not have the custody.
Under Indian law, the term ‘maintenance’ includes an entitlement to food, clothing, and shelter.
Maintenance of Child under Hindu Law
Section 26 of the Hindu Marriage Act of 1955 mentions that the court will appoint the custody for child and will also make a parent liable to pay maintenance to the minor child.
Section 20 of the Hindu Adoption and Maintenance Act of 1956 states that a Hindu male or female is bound to maintain his/her legitimate/ illegitimate minor children.
Section 23 sub-section (2) states the condition for consideration of maintenance amount which are:
a) Position and status of the parties (might be parents or guardians).
b) Reasonable wants of the claimants.
c) If the claimant is living separately, whether the claimant is justified so.
d) Claimants income and value of property held by him, if any.
Custody is provided on the grounds with which parent the child is comfortable which is obviously asked by the child. The maintenance is given by the parent who earns more and who is independent in economic terms. The payment of maintenance for many years from the initiation was burdened on the father of the child subjected. If seen logically it was a faulty consideration because it can also be the case that the mother is highly affluent and therefore independent and her male counterpart is the one dependent on her. This decision was therefore turned down in the case Padmja Sharma v. Ratan Lal Sharma. The court mentioned that if the Hindu mother is affluent enough so she included with the father need to contribute to the maintenance of the child Hindu Adoption and Maintenance Act of 1956.
Section 25 of the Hindu Adoption and Maintenance Act of 1956 states that the amount of maintenance granted to the child can change with change in certain conditions.
Section 23 of the same act mentions that the maintenance cannot be claimed if the person receiving it ceases to be Hindu (changes the religion)
The maintenance of children for Indian citizens is called under section 125 of the Code of Criminal Procedure (CrPC). This section mentions that the court of law will order a self-sufficient parent if he/she does not maintain his/her:
a) Legitimate/illegitimate minor child who is not able to maintain himself/herself.
b) Legitimate/illegitimate major child (not being a married daughter) unable to maintain himself/herself due to any physical or mental abnormality/injury.
c) Married daughter till she attains the majority if her husband is not able to maintain her.
Major children not being able to maintain themselves means that they are not in a position to earn themselves either because they are studying or due to any disease.
The case Amarendra Kumar Paul v. Maya Paul of 2008 clarified that the section applies only to those who despite having sufficient means neglects or refuses to maintain their legitimate/illegitimate minor/major child.
Facilities for illegitimate children weren’t provided since the creation of the law, but in 1988 the case Bakulabai v. Gangaram changed this. The case concluded that a child born to a woman and man who is already married is to be treated as a legitimate child and therefore the child is entitled to maintenance under this section.
The case JagdishJugtawat v. Manju Lata Daughter is entitled to maintenance even after attaining the majority but till her marriage under CrPC when reading with the Hindu Adoption and Maintenance Act of 1956.
The creation of such laws and further amendments to it is always important, because if not the repercussions of separation and divorce of a couple would have to be majorly faced by the child which is unfair because he/she has to face the backlash of something he never did but was only a part of.
Hindu child maintenance was a reformation for people who would suddenly give up on responsibilities of a person or a whole family dependent on the person, the laws mentioned made the person remember his duty and also liable. It is, basically, a measure of social justice and an outcome of the natural duty of a man/woman to maintain his/her child. The law holds extreme importance for children who have no means of earning and are completely dependent on their parents. The main objective to legally provide maintenance is to prevent immorality and destitution and ameliorate the economic condition of children. The laws made initially did not cover a vast domain and therefore certain cases have brought amendment bringing in evolution to the laws so that no dis-advantaged ones are left behind.
1.) Hindu Marriage Act, 1955
2.) Hindu Adoption and Maintenance Act, 1956
3.) Code of Criminal Procedure, 1973