S. 21 lays down a list of relatives of the deceased who would be included within the term “dependents”. This list runs as follows:
(i) His or her father;
(ii) His or her mother;
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(iii) His widow so long as she does not re-marry;
(iv) his or her son, or the son of his predeceased son, or the son of a predeceased son of his predeceased son, so long as he is minor provided and to the extent that he is unable to obtain maintenance, in the case of a grandson, from his father’s or mother’s estate, and in the case of a great-grandson, from the estate of his father or mother or father’s father or father’s mother;
(v) his or her unmarried daughter, or the unmarried daughter of his predeceased son, or the unmarried daughter of a predeceased son of his predeceased son, so long as she
remains unmarried- provided and to the extent that she is unable to obtain maintenance, in the case of a granddaughter, from her father’s or mother’s estate, and in the case of a great-great-grand-daughter the estate of her father or mother or father’s father or father’s mother;
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(vi) His widowed daughter -provided and to the extent that she is unable to obtain maintenance-
(a) From the estate of her husband; or
(b) From her son or daughter, if any, or his or her estate; or
(c) From her father-in-law, or his father, or the estate of either of them;
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(vii) any widow of his son or of a son of his predeceased son, so long as she does not remarry provided and to the extent that she is unable to obtain maintenance from her husband’s estate, or from her son or daughter, if any, or his or her estate, or in the case of grandson’s widow, also from her father-in-law’s estate.
(viii) His or her minor illegitimate son so long as he remains a minor,
(ix) His or her illegitimate daughter so long as she remains unmarried.
S. 22 then provides that, subject to what is stated below, the heirs of a deceased Hindu are bound to maintain the dependants of the deceased (-see the list above-) out of the estate inherited by them from the deceased.
It is further provided that if a dependent has not obtained (by testamentary or intestate succession) any share in the estate of a Hindu dying after the commencement of the Act, such a dependent can claim maintenance from those who take the estate.
It may also be noted that the liability of such persons (as are referred to above) is not joint and several, but is proportionate to the value of the share or the part of the estate received by each of such persons.
S. 22 also lays down that a person who is himself a dependant of the deceased male or female, and has taken a share or part of the estate of the deceased, is liable to contribute towards the maintenance of any other dependant who has not obtained any share by testamentary or intestate succession. His proportionate contribution in any such case is, however, to be computed in such a manner that what remains with him of the share of the estate after his liability to make contribution is enforced, is not less than what would have been awarded to him by way of maintenance as a dependant.
Amount of maintenance (Ss. 23 and 25):
Under Section 23, it is in the discretion of the Court to determine whether any, and if so what maintenance should be awarded under the Act. In exercising this discretion, the Court will have regard to the following considerations, as far as they are applicable.
When determining the amount of maintenance to be awarded to a wife, children or aged or infirm parents, the Court will have regard to the following, viz. :
(a) The position and status of the parties;
(b) The reasonable wants of the claimant;
(c) If the claimant is living separately whether he (or she) is justified in doing so;
(d) The value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source; and
(e) The number of persons entitled to maintenance under the Act.
In the words of the Privy Council-, the amount of maintenance to be awarded to a wife would depend on “a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and the necessities and rights of the members, on a reasonable view of change of circumstances possible in the future, regard being, of course, had to the scale and mode of living, and to the age, habits, wants and class of life of the parties”. (Ekradeshwari v. Hameshwar, A.I.R. 1929 P.C. 128)
The above observations of the Privy Council, expressed before the passing of the Hindu Adoptions and Maintenance Act, were later approved by the Supreme Court in Kulbhushan v. Raj Kumari (A.I.R. 1971 S.C. 234)
Likewise, when determining the amount of maintenance to be awarded to a dependant, the Court will have regard to the following seven considerations, viz.-
(a) The net value of the estate of the deceased, after providing for the payment of his debts;
(b) The provisions, if any, made under the will of the deceased, in respect of the dependant;
(c) The degree of relationship between the two;
(d) The reasonable wants of the dependant;
(e) The past relations between the dependant and the deceased;
(f) The value of the property of the dependant and any income derived from such property, or from his or her earnings, or from any other source; and
(g) The number of dependants entitled to maintenance under the Act.
It is to be noted that the Court has a wide discretion in the matter of granting maintenance. Firstly, it is left to the Court’s discretion whether any maintenance should be granted at all. Secondly, it is also in the Court’s discretion to determine the amount of maintenance to be awarded to such a person.
This discretion, however, is judicial, and not arbitrary or capricious. It is to be based on sound principles of law, and is to be exercised within the ambit of the provisions of the various sections of the Act and also having regard to the objects of the Act.
The Gujarat High Court has held that the amount of maintenance to be awarded to a wife can be one-third, and, in a fit case, even one-half, of the husband’s income. If the income of the husband is on the higher side, and he has no other person to maintain except himself, the Court would, in a fit case, be justified in awarding even one-half of the husband’s income for the maintenance of the wife and their two children. This would, however, depend on the circumstances of the case and the needs of the family. (Maganbhai v. Maniben, A.I.R. 1985 Guj. 187)
The Bombay High Court has observed that in a suit for maintenance, the Income-tax return is not the sole guide for determining the income of a party in such as it is quite notorious that, in India, all tax-payers do not disclose their full incomes. (Vinod Mehta v. Kanak Mehta, A.I.R. 1990 Bom. 120)
Section 23 should be read along with S. 25, which provides that the amount of maintenance, whether fixed by a decree of a Court or by agreement (whether before or after the commencement of the Act), may be altered subsequently if there is a material change in the circumstances justifying such alteration.
In addition to the factors mentioned above, the Delhi High Court has enumerated eleven factors which must be kept in mind when awarding maintenance under the Act, namely, –
(a) The status of the parties.
(b) The reasonable wants of the claimant.
(c) The independent income and property of the claimant.
(d) The number of persons whom the non-applicant has to maintain.
(e) Whether the amount granted would aid the applicant to live in a similar life-style as he or she enjoyed in the matrimonial home.
(f) The liabilities, if any, of the non-applicant.
(g) Provisions for food, clothing, shelter, education, medical assistance, etc. of the applicant.
(h) Payment capacity of the non-applicant.
(i) Some guess-work, while estimating the income of the non- applicant when all sources or correct sources are not disclosed. (The court took judicial notice of the fact that, in India, unfortunately, parties do not reveal their real income.)
(j) Defraying the cost of litigation by the non-applicant.
(k) The amount, if any, awarded under S. 125 of the Code of Criminal Procedure.
Claimant to maintenance should be a Hindu (S. 24):
Section 24 declares that a person cannot claim maintenance under the Act if he or she has ceased to be a Hindu by conversion to another religion. This is a necessary corollary which follows from S. 2 of the Act, which states the general rule that the Act applies only to Hindus (in the wide sense of the term, as therein clarified.)
Debts to have priority (S. 26):
Section 26 lays down that debts contracted or payable by a deceased Hindu are to have priority over the claims of his dependents for maintenance, unless there is a valid charge created in respect of the same under S. 27 (below).
Maintenance, when to be a charge (S. 27):
Section 27 reiterates the well-established rule of uncodified Hindu Law that a dependant’s claim for maintenance is not to be treated as a charge on the estate of the deceased, unless such a charge has been created by the will of the deceased or by a decree of a Court, or by an agreement between the dependant and the owner of the estate, or otherwise.
This Section should be read along with the next section, which deals with the effect of transfer of property on the right of maintenance.
Effect of transfer of property on the right to maintenance (S. 28):
Section 28 lays down that if a dependant has a right to receive maintenance out of an estate, and such estate (or a part thereof) is transferred, the dependant can enforce his right to receive maintenance against the transferee:
(i) If the transferee has notice of such right; or
(ii) If the transfer is gratuitous;
But not against a transferee for consideration and without notice of such a right.