Maintenance

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duction.²The right of maintenance arises from the concept of an undivided family. The head of such a family is bound to maintain its members, their wives and their children. All members of a joint family, whatever be their status and whatever be their age, are entitled to maintenance. Under Hindu law, a person has personal obligation to maintain his wife, children and aged and infirm parents. It arises from the very nature of the relationship and exists whether he possesses property or not. 




?²It is a right to get the necessities which are reasonable. Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 defines maintenance. According to it maintenance includes² (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment, ë
in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage. It does not rest upon contract. It is a liability created by Hindu Law and arises out of    of the parties. The obligation to maintain besides being statutory in nature is also personal in the sense that it arises from the very existence of the relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father  the mother. .

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!!"#Discussion of this topic may be divided in two groups: (1) Maintenance ; and (2) Separate Residence. 


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 18 of the Hindu Adoptions and Maintenance Act, c
deals with the maintenance and separate residence of a wife. Prior to this Act the Hindu Married Women¶s Right to Separate Residence and Maintenance Act, 1946, was in force but this Act has now been repealed by Section 29 of the Hindu Adoptions and Maintenance Act, 1956. 
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Act.²The right of a wife for maintenance is an incidence of the status or state of matrimony and a Hindu is under a legal obligation to maintain his wife. !"# In most systems of law the wife¶s special position in her husband¶s household is recognized. In the patrilineal family system, the wife¶s main task has been the management of her husband¶s household. The patriarchal society did not consider it to be her function to engage in the earning of wealth. In the modern Hindu society also, most wives are still economically dependent on their husbands. This is reflected in law by the rule that wife can pledge the credit of her husband for necessities. Most systems of law recognize the direct obligation of the husband to maintain his wife so long as marriage subsists and the wife remains faithful. In the modem systems of law, the obligation exists even after the dissolution of marriage. However, Bombay High Court has held that a divorced wife cannot claim maintenance under Section 18 of the Act. Though it is a settled law that second wife taken during subsistence of first marriage -

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riot entitled to any maintenance. The obligation of the husband to maintain his wife does not arise out of any contract, express or implied, but out of the status of marriage, out of the jural relationship of husband and wife created by the performance of the marriage. The obligation of the husband to maintain his wife begins with marriage. It is irrespective of the fact whether he has or has no property. Hindu law-givers did not deny maintenance even to an unchaste wife, provided she continued to live with her husband though in such a case she was entitled to starving maintenance. Under the ancient Hindu law, a wife who did not live with her husband, whatever be the cause, was not entitled to maintenance. But gradually law developed and it came to be established that a wife living separate from her husband for some justifiable cause can claim maintenance. In the modem Hindu law, a wife is also entitled to maintenance after dissolution of marriage. Thus, a wife¶s right to maintenance may arise in the following three situations (1) when the wife lives with her husband,  (2) when the wife lives separate from her husband, (not under a decree of the court), and (3) when the wife lives separate under a decree of the court (judicial separation) or when the marriage is dissolved. S. 18 (1), Hindu Adoptions and Maintenance       all patriarchal societies, it has been considered an imperative duty of the wife to live with her husband and perform all conjugal duties. Side by side with this obligation of the wife, the husband¶ obligation to maintain his wife begins with marriage. A wife who resides with her husband must be maintained by him. It cannot be a valid ground to refuse maintenance that his financial condition is not good. The obligation of the husband to maintain his wife is a personal obligation.¶ Where an immature wife lives with her parents, the husband¶s obligation to maintain her subsists. Except the husband, no other member of the family has any personal obligation to maintain her. The husband¶s obligation to maintain her comes to an end only when she leaves him without any good cause or without his consent. Before 1956, it was a settled law that an unchaste wife who continues to live with her husband, was entitled to starving maintenance.¶ An unchaste wife, who left her husband but subsequently repented, performed expiatory rites and returned to live with her husband, was entitled to maintenance. The modern Hindu law lays down that a Hindu wife is entitled to be maintain by her husband during her life time.¶ Sub-section (3) of S. 18 lays down that ³a Hindu wife shall not entitled to separate residence and maintenance from her husband if she unchaste or ceased to be a Hindu by conversion to another religion.´ It submitted that this provision is applicable to subsection (2) of S. 18 which provides for separate residence and maintenance for a wife in certain cases.. It cannot be applicable to the case of the wife who lives with her husband to subsection (1). This is made clear by S. 24 which lays a gene disqualification; a non-Hindu cannot claim maintenance. Thus, a wife w has ceased to be Hindu cannot claim maintenance under the modern la she could also not claim it under the old law. But an unchaste wife who live with her husband, can claim maintenance against her husband under modern law. Her excommunication, or the conversion of her husband, not lead to forfeiture of her right of maintenance under the old law. It submitted that the same is the position under the modern law.

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       wife who lives apart with the consent of
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'entitled to maintenance. She is also entitled to maintenance if she lives separate from her husband for a justifiable cause.  '
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$% is no absolute right vested in Hindu wife to be maintained by her husband. This maintenance is dependant on her living with him and discharging the duties as wife. The wife will also be entitled to claim maintenance while living separately from her husband, if any of the conditions laid down in Section 18 (2) is fulfilled. She is entitled to maintenance so far as she is a Hindu and chaste. Effect ! &+
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+Hindu.²The husband would not be absolved from his liability to maintain his wife simply because he has ceased to be Hindu. But, sub-section (3) of Section 1 8 takes away the right of wife to claim maintenance under this Act if she ceases to be Hindu by conversion to another religion. The effect of husband ceasing to be Hindu would be that the wife would be entitled to separate residence and to her claim for maintenance.  

 
&-$%wife¶s first duty to her husband is to submit herself obediently to his authority and   

and protection. As a rule a wife is not entitled to separate residence from her husband, unless she proves that by reasons of his misconduct or refusal to maintain her in his own place of residence or other justifying cause, she is compelled to live apart from him. / *
 

Rule.²Sub-section (2) of Section 18 of the Act enumerates the contingencies in which a wife may live separately from her husband without forfeiting her right of maintenance. Sub-clauses (a) to (g) of Section 18 (2) lays down the grounds for claiming separate residence and maintenance.Thus the husband is bound to give his wife the security and comfort of his house and she is entitled to the society and protection of her husband. If neither of these is present and if cohabitation which is the first object of marriage fails, separation is the only expedient method which can be resorted to. 0&' !proof.²Where the wife claims separate residence, the burden lie¶, upon her to show the special circumstance, ´ grounds mentioned in clauses (a) to (g) of Section 18 (2) of the Act which entitle her to a separate residence. So in order to claim separate residence and maintenance from the husband it is necessary for the wife that she had sufficient grounds as mentioned in the Act to claim separate residence. If she fails to establish any of those grounds she cannot succeed. The grounds which will enable the wife to live separately and claim maintenance from the husband are as follows: 1. Desertion by the husband. 2. Cruelty by husband. 3. Husband suffering from virulent form of leprosy. 4. Husband having another wife living.
Husband keeping a concubine. 6. Where husband ceased to be Hindu by conversion. 7. Other justifying cause.



(1) Desertion +
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 18 (2)(a).²-Desertion has been dealt in detail in the chapter of marriage. According to several judicial decisions, there can be desertion by the husband even though the wife and the husband are living in the same house, and that there can be desertion if the husband has no reasonable cause for leaving the wife. In a case of desertion, the wife has to prove the following facts: (1) That the husband has abandoned her; (2) That he has done so (a) without any reasonable cause, (b) without her consent, or (c) against her wish; (3) That he is guilty of wilfully neglecting her. Generally speaking desertion begins when   of separation of husband and wife is completed with the intention to bring the marital relationship permanently to an end.       ?²In     v.   it was laid down that the offence of desertion commences when the fact of separation and the     co-exist but it is not necessary that they should commence at the same time. The  separation may have commenced without the necessary   or it may be that the separation and the      coincide in point of time. Where a husband brings a prostitute in the house in which his wife is living and as a consequence the wife has to leave the house, the husband is guilty of desertion.Where the husband is employed in some service and does not keep his wife with him, such  separation of the husband due to exigencies of his employment is not sufficient to attract Section 18 (2) (a). Desertion includes µwilful neglect¶ of one spouse by the other. In the normal sense, µwilful¶ means µintentional¶. Neglect here means negligence in the discharge of marital obligations of cohabitation and consortium. Mere negligence on the part of the husband will not be sufficient under this section. It is wilful or deliberate negligence that is to be proved if the wife wants to claim the right under this sub-section. ) &-
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 ((2)(b)].²Cruelty may be said to be conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to reasonable apprehension of such danger. Cruelty not only includes physical cruelty such as battery and beating but also mental cruelty such as by words of insult and humiliation. It is well known that the tongue pierces more deeply than the sword, and many have been cases of suicide by the wife who, unable to bear the cruel words spoken by the husband, has preferred a watery grave or the swinging obligation of a rope or the lapping flames of fire. In a suit for maintenance on the ground of cruelty, the wife has to prove the following facts (1) that the husband has treated her with cruelty; (2) that the cruelty was such as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with the husband.           ?²To establish cruelty it is not necessary that physical violence should be used. Even if the conduct of the husband does not amount to physical cruelty, but constitutes a gross moral offence, such as, habitual ill-treatment, the wife would be entitled to separate residence and maintenance. Both physical or mental torture will amount to cruelty. Continuous ill- treatment, cessation of marital intercourse, neglect and indifference on the part of the husband are all factors which may undermine the health of a

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wife. Where a husband insults his wife and behaves with neglect and studied unkindness so as to impair her health, he is guilty of cruelty. Even threat of physical force to a pregnant wife amounts to legal cruelty. In such case it would not be unreasonable to hold that the wife may legitimately apprehend that if she goes to her husband, there will be repetition of such conduct which may result in a complete breakdown of her health. Where evidence of physical violence is not  sufficient to warrant a finding of cruelty, the Court is bound to take into consideration the general conduct of the husband towards the wife. The question of cruelty must be determined from the whole facts and matrimonial relations between spouses. It is to be judged on the basis of the evidence on record and the totality of the circumstances of the case. A solitary incident of cruelty or an isolated lapse of tongue would, however, not be sufficient to bring the case within the ambit of cruelty. The respondent must be shown to have committed the act of imputed cruelty ³persistently or repeatedly.´ The term µcruelty¶ has not been defined. However the conduct complained of should be so grave and weighty that wife cannot reasonably be expected to live with the husband. It must be more serious than the ordinary wear and tear of married life. A few stray incidents indicating a short tempered nature and somewhat erratic behaviour are not sufficient to constitute cruelty. Where husband¶s conduct causes disgrace to wife and subjects her to annoyance and indignity, it amounts to legal cruelty. (3) Husband suffering from virulent form of leprosy [Section 18 (2)(c).²A Hindu wife is entitled to separate residence and maintenance on the ground that her husband is suffering from a virulent form of leprosy. This clause deals with the virulent form of leprosy. The emphasis has been given on the words ³virulent form´. It would be much better if leprosy alone would have been made a ground for the wife to live separately from her husband without specifying the words ³virulent form of leprosy´. Whether leprosy is malignant, virulent or merely in its initial stage, there is always danger for the wife being infected with it. Any disease other than leprosy does not fall under this ground and even mere affliction of leprosy will not do. Leprosy to be ground for separate maintenance must be of a virulent type in the sense of a repulsive character, making the man afflicted unfit for social intercourse. To compel a wife to be in his company is abhorrent to anybody and hence this provision is made. 2 &+
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 () ' 3$%Section 18, sub-section (1) of this Act clearly lays down that the provisions for maintenance of wife would apply in cases whether the marriage was solemnized before or after the commencement of the Act of 1956. Clause (d) of Section 18 (2) entitles the wife to claim separate maintenance and residence where her husband has another wife living. This right would not accrue to the wife if the marriage was a void marriage since under the provisions of the Act, the right to separate maintenance would accrue only if the second marriage was a good marriage. In a case Xwas the first and !was the second wife of one Xclaimed separate maintenance from "that Xis entitled to separate maintenance only if second marriage between and !was a valid one. The intention of the Act is to cure an existing evil and to afford married woman a remedy for separate residence and maintenance against a twice married man, whether such marriage took place before or after the Act; provided it continued on the date of the suit. A second marriage after the

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commencement of the Hindu Marriage Act, c

is clearly prohibited, and therefore, subsequently married wife will be deemed to be a concubine which will be an additional ground for separate residence and maintenance. So far as regards marriages before the Act, the existence of a second wife may, under this clause, be made a ground for enforcing the wife¶s right to separate residence and maintenance. The claim is maintainable irrespective of the fact that the other marriage had taken place after or before the marriage of the applicant wife. In # v.     $the Punjab High Court held that if the second wife who has left her husband for no justifiable reason but also not for any immoral purposes would be entitled to live separately and can claim maintenance under existing provision. (5) &+
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separate residence and maintenance on this ground, it is necessary for
wife to prove the following :² ë
that her husband keeps a concubine; and ë
that the concubine lives in the same house in which the married wife lives; or that the husband habitually resides with the concubine elsewhere. It should be noted that keeping of a concubine should denote some permanent and not a casual act of prostitution. A concubine is a woman in the permanent and exclusive keeping of a man though not married to him.     &+
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 () ! 3$%wife is entitled to maintenance and separate residence where her husband abandons Hinduism. But it should be remembered that the mere fact that a man ceases to be Hindu by religion would not itself break the Hindu marriage. In these circumstances, the wife may, under Section 13 of the Hindu Marriage Act, 1955, claim dissolution of marriage by a decree of divorce or treat the marriage as subsisting and claim separate residence and maintenance. Under Section 24 of the Hindu Adoptions and Maintenance Act, c
no person shall be entitled to claim maintenance if he or she has ceased to be a Hindu by conversion to another religion. Thus the rights of the wife to claim maintenance and separate residence from her husband under this clause, would continue only so long as she remains Hindu. Section 18 (3) also disentitles the wife to separate maintenance and residence if she ceases to be Hindu by conversion to another religion.   

and Xarc husband and wife respectively. converts to other religion and becomes a Muslim. Now Xshall have the right to claim maintenance and separate residence, under clause (f) of subsection (2) of Section 18 of this Act. But where Xalso ceases to be Hindu by conversion, her right to claim maintenance and separate residence from her husband would cease to exist. (7) Other justifying cause.²This is a residual clause and empowers the court to give a Hindu wife such relief which she may be entitled to in those cases which do not specifically fall under any of the above clauses. The language of this residual clause is undoubtedly very wide and is designedly intended to take various circumstances in relation to the particular case before the court which may be joint from the point of wife to live separately from husband. At the same time it is intended that the advantage not be taken generally of the language to claim a right of separate residence and maintenance merely on the ground of domestic bickerings or in

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compatibility of temperament or minor differences as are not unusual in the married lives of parties, if nothing more serious is alleged.  5&

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$%0!awarding the permanent alimony and maintenance under Hindu Marriage Act the court must consider the following elements :² (1) Income and other property of the applicant, (2) Opposite party¶s own ,income and other property, (3) Conduct of the parties. (4) The amount in the opinion of the court must be just. (5) If necessary, such payments may be secured by the charge on the immovable property of the respondent. After the marriage it is the status of the husband which is determinative of quantum !maintenance to be given to the wife. If the husband is wealthy and leading opulent life, his wife also has right to be the partner in his prosperity and live with same standards and equal dignity. In cases of maintenance of deserted wives coming to the court, the court is to apply the principle of equity. !,   


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$% circumstances under which a Hindu wife shall not be entitled to separate residence and maintenance may be enumerated as under :² (1) When she ceases to be Hindu by conversion. (2) When she is unchaste. (3) When she is living separate without any cause justifying the same. (4) When the separate living is by agreement between the husband and wife and wife forfeits her claim for maintenance. Section 18 (3) of the Hindu Adoptions and Maintenance Act, 1956, has mentioned only two grounds (1) and (2) disentitling the wife to claim separate residence and maintenance. Other grounds arose out of judicial pronouncements made by various High Courts. These grounds too, it is submitted will disentitle the wife to claim separate residence and maintenance if there is nothing inconsistent with the provisions of the Act. (1)‘
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+ '&$%Section 18 (3) of the Act clearly lays down that a Hindu wife shall not be entitled to separate residence and maintenance when she ceases to be a Hindu by conversion to another religion. As soon as she ceases to be Hindu, she forfeits her right of separate maintenance. Cessation from Hinduism would not arise from loss of caste or a lapse from orthodoxy; cessation under this sub-section would arise only if she is converted to another religion. (2)‘


%Meaning.²If the wife is living in adultery and persists in that course she would be deemed to be unchaste. Ñ
   the wife is unchaste or is living apart from her husband¶s family for immoral or improper purposes, she is not entitled to maintenance.64 Her right to maintenance is conditional upon her leading a life of chastity. She forfeits her right by unchaste conduct though it is secured by a decree or agreement. So a mere single act of adultery does not amount to unchastity. But if she persists in that course she is unchaste. An unchaste wife at the date of suit is disqualified even for bare maintenance. Section 18, sub-section (3) of the Act provides that she would not be entitled to separate maintenance and residence from her husband if she is unchaste,

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(3)‘ Living separate without justifying cause.²A Hindu wife before she becomes entitled to separate maintenance, must satisfy the court that she had a justifying cause which compelled her to live separately. So there must be some justification for separate maintenance. She is not entitled to separate maintenance when the husband is willing to keep her in his house and she refuses to accept his offer without sufficient justification. A wife voluntarily deserting her husband becomes disentitled to claim separate maintenance. The justifying causes which entitle the wife to claim separate maintenance are mentioned in Section 18 (2) of the Act.   
  
   
 
 wife living apart from her husband for no improper purpose may at any time return and claim to be maintained by him. Her right is not forfeited, but is only suspended so long as she commits a breach of duty, by living apart from him without any justifiable cause. So where she subsequently comes back and offers to live with him, his refusal to take her back entitles her to demand maintenance. (4)‘ Agreement to live separately and not to claim maintenance.² The right to claim maintenance is a right which has now been granted by Statute. it is open to the party, enforcing the right to force or waive his right either in full or in part. So it is open to the wife to enter into an agreement with her husband not to claim the maintenance. Such agreement is valid and enforceable provided that it has not been entered into by fraud, coercion, force, mistake, etc. An agreement not to claim enhancement is a binding agreement and must be enforced. After such agreement, the right of wife to claim maintenance or enhancement, as the case may be, is extinguished. $ '&'*
 
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% & &Hindu law has, all along, recognized it to be an obligation of the joint family to maintain the wives and widows of coparceners. A widowed daughter-in-law can claim maintenance against the joint family property. The claim is enforceable against the  so long as the daughter-in-law has a right to claim maintenance against the coparcenary property in the hands of the father-in-law. Apart from this, the father-in-law has¶ no legal obligation to maintain a widowed daughter-in-law. But Hindu law recognized it to be a moral obligation of the father-in-law to maintain a daughter-inlaw who has no other means of maintenance. On the death of the father-in-law, the moral obligation became a legal obligation against the persons who inherited the property of the fatherin-law. However, the father-in-law had no personal obligation to maintain a daughter-in-law.8 Therefore, where father-in-law did not inherit any ancestral property, he was not liable to pay any maintenance to his widowed daughter-in-law. The Hindu Adoptions and Maintenance Act, 1956, purports to put the daughter-in-law as a class by herself by enacting a separate section for her, S. 19. But on a close scrutiny of the provision, it becomes evident that there is no material difference between her and other dependents about whose maintenance the Act makes provision in Sections 21 and 22. Section 19 does not make it a personal obligation of the father-in-law to maintain his daughterin-law. Proviso to sub-sectiion (1) and sub-section (2) dispel all illusions one might harbour by reading the marginal note or the main provision in sub-section (1). Further, if we read subsection (2), the obligation is confined to the coparcenary interest of the father-in-law. The significance of the provision seems to be this : after partition the father-in-law has no obligation

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to maintain the daughter-in-law under the law of the Mitakshara joint family. But under S. 19 he will be obliged to maintain her in the circumstances mentioned therein. Under 5. 19, the father-in-law¶s obligation to maintain the daughter-in-law is not a primary obligation; it is not even a secondary obligation. It is remote obligation. The father-in-law¶s obligation will arise only if² (a) the daughter-in-law is unable to maintain herself out of their own earnings or other property, or (b) the daughter-in-law (in case she has no property of her own) is unable to obtain maintenance² (i) from the estate of her husband, (ii) from the estate of her father, (iii) from the estate of her mother, or (iv) from her sons or daughters or from their estate. Even then the obligaion of the father-in-law is a very limited one, he is obliged to maintain the daughter-in-law only from ³Any coparcenary property in his possession out of which daughter-in-law has not obtained any share´. Further, the father-in-law should have the means to do so from such property,  if the coparcenary property is already very meagre, he may not have any obligation to maintain the daughter-in-law. If the father-in-law has no coparcenary property, he has no obligation to maintain the daughter-in-law. !    'term ³coparcenary property´ has come for interpretation before the Punjab High Court in three cases.

% %v.  # 1964 Punj. 393. the court said: ³Coparcenary property in S. 19 cannot mean coparcenary property as understood in Mitakshara law because that will nullify to a great extent, the very purpose of the statute, as the word µcoparcenary property¶ in the context is not a -word of art. Parliament was using this word to give it the ordinary meaning, property which has been inherited from a common ancestor.´ The court further said that the termµcoparcenary property¶ includes µancestral property¶ as the term is understood in the Punjab customary law.  0
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& '$?)77892"# The brief facts of the case are that one Major Chanan Singh, who was owner of a house, consisting of more than five rooms, was having one son and four daughters. Appellant No. 1 Balbir Kaur was married to his son Ranbir Singh. After the marriage, she was given a separate room in the said house to live in with her husband. Out of this wed-lock, two sons and one daughter were born. The relations between appellant No. 1 and her husband Ranbir remained strained, but the appellant continued to reside in the room in question. Thereafter, her husband expired in the year 1975. After the death of her husband, she continued to reside in the said room along with her three children. In the year 1977, her father-in-law Major Chanan Singh gifted the entire house including the room in dispute to his daughter Harinder Kaur (plaintiff) vide gift deed dated January 28, 1977 (Ex.P2). On May 02, 1977, about four months after the execution of the gift deed, Harinder Kaur, daughter of Major Chanan Singh, filed the suit for possession against the appellants and respondent Nos.2 and 3 (who are sons of appellant No. 1) pleading that her father Major Chanan

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Singh was owner of the entire house and he allowed his son Ranbir Singh, his wife and children to use the room in question for their residence. Since then appellant No. 1 and her children are in permissive occupation of the room. She further pleaded that since her father Major Chanan Singh has gifted away the entire house to her, therefore, she is entitled to have possession of the same. The defendants-appellants contested the said suit by alleging that appellant No. 1 is in possession of the room in question from the date of her marriage, which took place about 30 years back. She is in hostile and adverse possession of this room. In the alternative, it was submitted that on account of her relationship with Major Chanan Singh, she and her children are entitled to maintenance and right of residence in this house as dependents of Ranbir Singh and respondent No. 1 is bound by this obligation and cannot evict them from the room in question. 3. Both the Courts below have decreed the suit of respondent No. 1. The contention of appellant No. 1 and her children regarding adverse possession as well as their right to maintenance and residence against the estate of Major Chanan Singh in the hand of respondent No. 1 has been declined. 4. Learned counsel for the appellants has raised two contentions; secondly that appellant No. 1, being widow of pre-deceased son of Major Chanan Singh, and her children have a right of maintenance and residence against her father-in-law or his heirs or donee, even if the property is self-acquired property of her father-in-law. Therefore, respondent No. 1 cannot dispossess appellant No. 1 and her children from the room in question. 5. Learned counsel for the appellants has submitted that the following two substantial questions of law are involved in the present appeal:(ii) Whether a widow daughter-in-law is entitled to maintenance from her father-in-law or his heirs or his donees even if the property of her father-in-law is self-acquired property? 11. The second question of law, agitated by learned counsel for the appellants, arose from issue No. 3-A, which was framed by the trial Court as under:3-A. Whether the defendants are entitled to the maintenance and residence in this house as alleged in para 3 of the amended written statement?OPD 12. The right of maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife. The right in case of a widow is a pre-existing right, which existed under the Shastric Hindu law long before the passing of the Hindu Women's Rights to Property Act, 1937 or the Hindu Married Women's Rights to Separate Residence and Maintenance Act, 1946 or the Hindu Adoptions and Maintenance Act, 1956. These Acts merely recognised the position as was existing under the Shastric Hindu law and gave it a statutory backing. The right of maintenance and residence of a widowed daughter-in-law against her father-in-law also existed under the Shastric Hindu law and the same has been recognised by various judicial pronouncements and the statute i.e. Hindu Adoptions and Maintenance Act.

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13. Section 19 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act') deals with the right of maintenance of a widowed daughter-in-law. Whether married before or after the commencement of the Act, she can claim maintenance only if she is unable to maintain herself from her own sources or out of the estate of her husband or her father or mother or from her son or daughter, if any, or his or her estate. The right to claim maintenance from the father-in-law, in the circumstances stated above is, however, conditional upon the father-in-law having in possession of coparcenary property out of which widowed daughter-in-law has not obtained any share. Though under the Act, the right to claim maintenance by widowed daughterin-law against her father-in-law is limited to the extent of coparcenary property in the hand of father-in-law, out of which widowed daughter-in-law has not taken any share, but under the old Hindu Law, prevailing before the enactment of the Act, this right of maintenance to the widowed daughter-in-law against the self-acquired property of her father-in-law, was available. This right is still available to the widowed daughter-in-law of the pre-deceased son against the selfacquired property of her father-in-law, as this right shall not cease to be in force because the same is not inconsistent with any provision contained in the Act. Thus, the widowed daughter-inlaw of a pre-deceased son is entitled to claim right of maintenance against the self-acquired property of her father-in-law, whether it is in his hand or in the hand of his heir or donee. In view of the above discussion, the appeal filed by the appellants is allowed. Judgments and decrees, passed by the Courts below, are accordingly set aside and suit of the plaintiff-respondent No. 1 for possession regarding the room in question is dismissed. The daughter-in-law will forfeit her claim of maintenance if : (a) she remarries, or (b) she ceases to be a Hindu by conversion to some other religion. Maintenance of Dependents :-  21 and 22, Hindu Adoptions and Maintenance Act.%0! 1956, the term ³dependent´ was not used in Hindu law. The law is a part of the law of the Hindu joint family. Sections 21 and 22 of the Act create new rights of certain persons, called dependants. Dependants are relatives of deceased Hindu and they claim maintenance against the property of the deceased in the hands of heirs. The term ³heir´ includes all those persons on whom the estate of the deceased devolves. The right of dependants exists against the property and not against the heirs personally. The right of dependants as dependants, does not arise during the life time of the person on whom they are dependant : they are termed dependants only after his or her death. This is clearly implied from the opening words of S. 21, ³dependants mean the following relations of the deceased.´  -' "#$)7 '&'*
 
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 to maintain one¶s children is a personal obligation and arises out !
personal relationship of parent and child. In most of the early systems of law, the obligation to maintain children was imposed on the father alone and only in respect of legitimate children. Under the old Hindu law, the father was required to maintain both his legitimate and illegitimate children. The modern Hindu law

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imposed the obligation on both the parents and in respect of both legitimate and illegitimate children. Ordinarily, the obligation extends during the minority of children. Œ.



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' $% Hindu is required to maintain his natural as well as adopted sons. The mere refusal of a son to live with his father does not disentitle him from claiming maintenance, though quantum of maintenance may be affected.5 The same is true about a disobedient son. The obligation of parent to maintain the son ceases on his attaining majority, even if the son is incapable of maintaining himself due to temporary illness or disorder.6 But if disability or disorder is of a permanent nature, it is submitted, it would be in consonance with the principles of id Hindu law that parent¶s obligation to maintain him is recognized. ?--.


 $%" law has never considered an illegitimate son as a      and all along imposed an obligation on the putative father to maintain his illegitimate son. From the point of view of maintenance, the illegitimate sons may be classified thus (1) an illegitimate son of the first three classes born of an  (permanently and exclusively kept concubine), called a    (2)   of a  (3) illegitimate son from a non-Hindu woman, and (4) other illegitimate children such as born of adulterous or casual intercourse. The Hindu Adoptions and Maintenance Act, 1956, abolishes, all distinctions between illegitimate sons. All illegitimate Sons are entitled to maintenance during their minority. No illegitimate son can claim maintenance after he has become a major. Œ.



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$%sages, unequivocally, recognized it to be the father¶s obligation to maintain his legitimate daughter till -her marriage and to pay for her marriage expenses. It was the father¶s personal obligation. After the father¶s death, she was to be maintained olit of the separate properties of his father. The obligation ceased on he! marriage. The Hindu sages laid down that even after the marriage of the daughter, the father has a moral obligation to maintain her, if she failed to get maintenance from her husband¶s family. Similarly, father has the obligation to maintain his widowed daughter.¶ It has been seen earlier that if a son lived separate from his father, he did not forfeit his right to maintenance. This was not the case with an unmarried daughter. She was required to live with her father. It was also necessary that she should obey her father. But if she lived separate from the father for a justifiable cause, she could still claim maintenance. Section 20(2), Hindu Adoptions and Maintenance Act lays down that a Hindu has an obligation to maintain his children during their minority. It seems that in respect of unmarried major daughters this obligation continues, though the father or mother are

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required to maintain a major unmarried daughter only so far she is ³unable to maintain herself out of her own earning or other property.´ v. # the Supreme Court said that court has pàwer to award maintenance against the father for major daughters also till they get married or settled gainfully. The question whether she has any earnings of her own or property out of the income of which she could maintain herself is a question of fact to be decided in each case on the material on record. That the major daughter is capable of earning is an irrelevant matter. What has to be shown is that she is actually earning or has property. Section 20(3) does not speak of the capacity to earn an income but speaks of the existence of a source of income and the ability to maintain oneself with such income. The obligation to maintain a daughter includes reasonable expenses of her marriage. The adopted daughter has the same right to claim maintenance as a natural born legitimate daughter. ?--.


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$%'textual law is silent on the putative father¶s obligation to maintain an illegitimate daughter. Before 1956, there was a controversy among our High Courts whether the putative father has an obligation to maintain his illegitimate daughters . The Bombay High Court held that under the old Hidu law an illegitimate daughter had no claim of mainenance against the estate of her deceased father. In ö v. ( the Privy Council held that an illegitimate daughter was as much a member of her father¶s family as an illegitimate son and therefore she was entitled to maintenance. Under the modern Hindu law, the controversy has been set at rest; she is entitled to claim maintenance against both her putative father and natural mother, but only during minority. .'? !

 The obligation to maintain aged or infirm parents is a personal obligation arising out of the parent-child relationship. However, under the old Hindu law, this obligation was imposed on the son alone. Daughters have no such obligation. The modern Hindu law, (s. 20, Hindu Adoptions and Maintenance Act, 1956) makes it an obligation of sons and daughters. Under the old Hindu law, ³parent´ did not include a stepparent. Explanation to S. 20, Hindu Adoptions and Maintenance Act now includes a childless stepmother in the expression µparent¶. The childless stepfather is still ecluded from the purview of the expression ³parent´. The obligation to maintain one¶s aged parents exists during one¶s life time. The obligation being personal, it exists independently of the personal possession of any property, ancestral or personal. However, under the modern Hindu law this obligation is not absolute. One is required to maintain one¶s aged or infirm parent when the latter iühablé o maintain himself or herself out of his or her own earning or property; and if they are not able to maintain themselves, they should be treated as aged or infirm.

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The wife, the children and the aged or infirm parents forfeit their claim of maintenance if they cease to be Hindus. A question arises that right to claim maintenance is available under criminal law as well, under Section 125, Code of Criminal Procedure. So is-. there any conflict between the criminal remedies and remedies available under personal laws? Remedies under both the laws are held to be co-existent, mutually, complementary, supplementary, and in aid and addition to each other. Any order of maintenance ünde section 125, Code of Criminal Procedure cannot foreclose remedy under Section 18 though the amount under Section 125, Code of Criminal Procedure shall be taken into consideration while awarding maintenance under personal law.   
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 :- S. )Hindu Adoptions and Maintenance Act.²According to S. 21, Hindu Adoptions and Maintenance Act, 1956, the following persons are dependants of a Hindu, male or female (1) the father, (2) the mother, (3) the widow, (4) the minor legitimate son, (5) the minor illegitimate son, (6) the minor legitimate unmarried daughter, (7) the minor illegitimate unmarried daughter, (8) the widowed daughter, (9) the ) widow, (10) the grandson¶s widow, (11) the son¶s unmarried daughter, (12) the grandson¶s unmarried daughter, (13) son¶s son¶s minor son. 

$%'parents of a Hindu have a right to maintenance against the property of their daughter or son inherited by any person. The mother µis a Class I heir and the father is in category I of Cass II heirs of a Hindu male. The father being in Class II of the heirs of a Hindu male, he will not take property in the presence of the mother or any other Class I heir. And it may happen that the mother may be excluded by the will of the deceased. As to the heirs of a Hindu female, parents come in entry III and even on intestate succession their turn will come much later. Even when they are heirs, they may be excluded by the will of the deceased Hindu female. When parents do not get a share in the property of their son or daughter whosoever gets it takes it subject to their right of maintenance. Section 21 nowhere says that if the parents have independent means of maintenance, the heir has no obligation to maintain them. Thus, lack of means on the part of parents to maintain themselves is not a condition precedent for their claim of maintenance though the court, while fixing the amount of maintenance, will take into account the income or other property of the claimant. Thus, the existence of independent means of maintenance or part of the mother or father will affect the quantum of maintenance and not their right to claim maintenance. The mother¶s claim cannot be defeated even if she is unchaste or has remarried.

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',$%the widow of the deceased, widow of his or her predeceased son and widow of his or her predeceased son of a predeceased son. All the three widows are Class I heirs of a Hindu male. As heirs to Hindu female, the son¶s widows or grandson¶s widows or great grandson¶s widows are in entry II (as heirs of the husband of the deceased Hindu female). In the former case, a Hindu may dispose of his property by a will to the exclusion of all the three widows. In the latter case, the widows will inherit in the absence of the husband, son, daughter and children and predeceased son and predeceased daughter. This means that even if a Hindu female dies intestate leaving behind any of the aforesaid heirs, the son¶s widow and grandson¶s widow will be dependants and can claim maintenance. As in the case of parents, so in the case of the widow, the section does not say that her claim of maintenance will arise only she has no other means of maintenance. Her unchastity is no bar to the claim of maintenance. But if she had remarried, she forfeits her claim. Moral duty of the father-in-law ripens into a legal obligation in the hands of the heirs or dèvisees.As to other two widows, son¶s widow and grandson¶s widow, they are entitled to claim maintenance only if and to the extent they are unable to get maintenance from the husband¶s estate or from sons or daughters, if any, or from their estate. In the case of grandson¶s widow, there is a further condition that she has been able to get maintenance from her father-in-law¶s estate. Their remarriage will lead to the forfeiture of the claim of maintenance. Under the old Hindu law, there was a controversy whether the widow was entitled to maintenance only if she resided with her husband¶s family. The controversy was set at rest by the Privy Council in   %v. ##  Their Lordships observed : ³All that is required of her is that she is not to leave her husband¶s house for improper or unchaste purposes, and she is entitled to her maintenance unless she is guilty of unchastity or other disreputable practices after she leaves that residence.´ Under the Hindu Adoptions and Maintenance Act, there is no duty on the widow-dependant to reside with the relatives of her husband. Under the modern law, even her unchastity is no bar to her claim of maintenance. 
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$%Jthis head the following daughters are included. Unmarried daughter, legitimate or illegitimate daughter, widowed daughter, daughter of a predeceased son and daughter of a predeceased grandson. The legitimate daughter, son¶s daughter and grandson¶s daughter are class I heirs of a Hindu male. They are also in Entry I of the heirs of Hindu female. Only in case they do not get any share in the estate of the deceased, they are entitled to claim maintenance. This can happen only when the deceased has disposed of her or his estate by will. A destitute widowed daughter can claim maintenance from her brother after the death of her father if she has not been able to get sufficient maintenance from the property of her deceased husband. The illegitimate daughter is not an heir of a Hindu male, though she is an heir in Entry I of the heirs to a Hindu female. An illegitimate daughter like a legitimate daughter will be entitled to maintenance only if she has inherited no share in the estate of the deceased. The grand-daughter and the groat-grand-daughter are entitled to maintenance only and to the extent that the former is unable to obtain maintenance from her father¶s or mother¶s estate and the latter from the estate of her father or mother or father¶s or mother¶s estate. The claim of maintenance of all these daughters is not limited to their minority. It is limited to their maidenhood. As soon as the daughter is married, she forfeits her

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claim of maintenance. They will also not be entitled to maintenance, if they cease to be Hindus. In the case of a widowed daughter, the obligation to maintain exists only and to the extent that she is unable to obtain maintenance : (a) from the estate of her husband, (b) from her son or daughter, if any, or his or he¶r estate, or (c) from the father-in-law or his father or the estate of either of them. In her case it is not stated that she will forfeit the claim on remarriage. However, on remarriage she ceases to remain a. widowed-daughter, and therefore cannot claim maintenance.  $%Under this head are included : Illegitimate sons, son of a predeceased son and son of a predeceased son of a predeceased son. The legitimate Sons of a Hindu male are Class I heirs. The legitimate and illegitimate sons of a female Hindu are in Entry I. They will be entitled to maintenance only if they have not got any share in the property of their deceased parent. The obligation to maintain them extends to their minority only. The obligation is independent of their having any independent source of income, though in fixing the quantum of maintenance, the court will take into account their income and property. In the case of the grandson and the greatgrandson, obligation exists only during their minority. A grandson will be entitled to claim maintenance as a dependant only and to the extent that he is unable to obtain maintenance from his father¶s or mother¶s estate, and in the case of great-grandson only and to the extent that he is unable to obtain it from the estate of his father, mother, father¶s father or father¶s mother. &
!Maintenance.²No fixed rule can be laid down as to the amount of maintenance which each claimant is to have. Each case is to be judged according to the nature of its circumstances. Maintenance depends upon the totality of all the facts, the amount of free estate, the past life of married parties, a survey of the conditions and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in future, regard being, of course, had to the scale and the mode of living and to the age, habits, wants and class of life of the parties. A wife who has agreed to receive maintenance at a particular rate, binding herself not to claim a higher rate, even if circumstances were to change, can make an application for the increase of maintenance if she can prove or justify under Section 23. The income from the husband¶s estate forms the upper limit for fixing the quantum of maintenance. However it is not necessary that the maintenance should be fixed, equal to the income from the husband¶s estate. The court has to determine first what the widow would need for maintaining herself in such reasonable comfort as she would have been maintained while her husband was living.  v.  & the Supreme Court were of the opinion that the quantum of maintenance depends upon 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 necessities and rights of the members on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the scale and mode of living and to the age,

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habits, wants and class of life of the parties. Section 23 (2) makes no departure from these principles as enunciated Section 23 of the Act deals with amount of maintenance which a person is entitled to. The section vests the court with the discretion to determine the amount of maintenance to be paid and to refuse to award maintenance if it so thinks fit. The discretion so conferred by the section is required to be exercised having regard to the considerations set forth in sub-sections (2) and (3) of Section 23. Provisions of Section 23 of the Act are given below: (1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so the court shall have due regard to the considerations set out in sub-section (2) or sub-section (3), as the case may be, so far as they are applicable. (2) In determining the amount of maintenance, if any, to be awarded to wife, children or aged or infirm parents under this Act, regard shall be had to² ë
the position and status of the parties; ë
the reasonable wants of the claimant; ë
if the claimant is living separately, whether the claimant is justified in doing so; ë 
the value of the claimant¶s property and any income derived from such property, or from the claimant¶s own earnings or from any other source; ë
the number of persons entitled to maintenance under this Act. (3) In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to² ë
the net value of the estate of the deceased after providing for the payment of his debts; ë
the provision, if any made under a will of the deceased in respect of the dependant; ë
the degree of relationship between the two; ë 
the reasonable wants of the dependant; ë
the past relations between the dependant and the deceased; ë
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; ë
the number of dependants entitled to maintenance under this Act. Section 23 provides that fixation of the quantum of maintenance shall be in the discretion of the court but while exercising such discretion the court shall have due regard to the factors which have been enumerated in subsection (2) or sub-section (3) of the section, as the case may be. c    of               sets of considerations are laid down for the two categories of maintenance holders. The considerations applicable to a wife, children or aged or infirm parents are set out in subsection (2) while those for dependants are set out in sub-section (3). Most of the clauses in both the two sets of considerations are identical and others are overlapping. The court has been given the discretion to determine the question of maintenance having regard to the considerations set forth in the two sub-sections. Although under Section 19 of the Act provision is made for maintenance of a widowed daughter-in-law, no guidelines are indicated in that section. 2.                %     fixing the amount of maintenance of a Hindu wife, children who are minors (or

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unmarried daughters) and aged and infirm parents regard shall be had to² ë
'       'position and status of the person liable and also of person entitled must be taken into account. ë
#    claimant.²The court must consider what amount would enable a person to live according to his position, so as to enable him to live as he used to live previously. The wants of a minor would differ from those of an aged person and the wants of a widow may differ from those of an unmarried daughter. ë
      %             % 18 (2) of the Act enumerates the causes which justify a wife to live separately. A widowed daughter-in-law is not bound to live with her father-in-law. The consideration is very important because the claimant who is living separately would require more than who is living with the person by whom he is claiming maintenance. So if the claimant is living separately without justifying cause, the court may refuse to allow maintenance. ë 
'    )                 )   %     'intention of the legislature is that the maintenance would not be the absolute liability on the person liable, but such a person will have to provide maintenance so as to fulfil the wants of the claimant. Where the claimant has sufficient income to maintain himself or herself, the court is not bound to award maintenance merely because the claimant has a right to claim maintenance. ë
'           &'court before fixing the amount of maintenance will see the number of persons entitled to maintenance under this Act, because more the persons entitled to maintenance less will be the amount, if the income and status of the person liable is the same, things are to be managed within that sphere. *!        &  (3).²It is in the discretion of the court to determine the exact amount payable by the heir of the deceased, after taking into consideration the following factors mentioned in sub-section (3) of Section 23 ë
'            %     debts.² According to Section 26, debts (secured or otherwise) of the deceased shall have priority over the claims of the dependants for maintenance, unless the maintenance has been made a charge on the property. After deduction in the amount of debts, net value of estate of the deceased will come out. This factor, in this case, is important being the liability of the heirs to maintain dependants to the extent of the share in estate of deceased taken by him or her. ë
'             '  consideration will arise only when the deceased has left any will before his or her death. ë
'%         relative who had never been in touch with the deceased would have a lesser claim and the dependants who are near in relation would have larger claim as dependant¶s than any other remote relative.

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'   Regarding the quantum of maintenance it is well-settled law that it should be fixed keeping in view extent of the estate, the debts for which it is liable, the position and status of the family and the reasonable wants of the claimant paying due regard to the circumstance affecting the mode of living, habits, wants and class of life of the parties. The court should also take into consideration the independent means of support, if any, of the person claiming maintenance. &
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$%The amount of maintenance, whether fixed by a decree of court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration (Section 25). If the maintenance has been adjudicated upon, and court has fixed the quantum or rate of maintenance, or if the maintenance has been fixed by an agreement between the parties, it may be altered or changed by the court. Parties may, if they like, by agreement, change or alter the same if the maintenance was fixed by agreement. For instance, owing to the enormous rise in the price of necessaries of life, the old rate may require enhancement, or the persons or the estate against whom or on which the claim is available may face a financial crisis or collapse, and it would be equitable that the rate which was originally fixed may require reversion to a lesser scale. The amount of maintenance fixed by will can also be changed or altered. The provision of this section would apply whether such decree or agreement was arrived at before or after the commencement of this Act. Thus a family settlement was entered into between the son and the mother stipulating fixed amount for maintenance. Due to change of circumstances the mother applied for enhanced maintenance. It was held that Section 25 is applicable to such a settlement and the suit of the mother for enhanced maintenance was maintainable. !%    ?²It can be changed or altered if the circumstances at the time of fixing the amount of maintenance, whether by court or agreement, have materially changed to justify such alteration. The maintenance can under this section, altogether be stopped if circumstances justify the same. A wife who has agreed to receive maintenance at a particular rate, binding herself lot to claim a higher rate, even if circumstances were to change, can maintain a claim for increase of maintenance if she can justify the same under Section 23. Forum.²Sections 18 and 20 of the Act give a right to persons mentioned therein to claim maintenance, but the Act has made no provision for a forum where the claim may he adjudicated. In such circumstances it is the Civil Court only where claim for maintenance can be entertained.

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Under the Hindu Marriage Act, Section 19 prescribes the District Court as the forum of adjudication under that Act. But on the analogy of the Hindu Marriage Act, claims for maintenance cannot be filed and entertained by a District Court. The only remedy available to persons claiming maintenance is from the Civil Court and not the District Court. With the passing of the Family Courts Act, 1984, the jurisdiction of the District Court has been transferred to the Family Courts. Now all the matters concerning maintenance shall be dealt with the Family Courts. Maintenance²A charge on estate.²Section 27 of the Act incorporates more or less the law as it stood prior to the passing of this Act. A dependant¶s claim for maintenance shall not    be a charge on the estate of the deceased or any portion thereof. But the rule has been made subject to the exceptions that a maintenance allowance due to a dependant, becomes a charge on specific property, when² (I) it has been so created by the will of the deceased; (2) it has been so declared by a decree of court; (3) it has been so made by an agreement between the dependant and the owner of the estate or any portion thereof; (4) it has been created or declared by some similar methods as already enumerated. When the charge has been created by will, the executor will take the property subject to the charge. He gets the right either to reject the legacy or take it with burden. A charge created by the agreement between dependant and the owner of the property is enforceable against the legal representatives of the deceased after his death. No   purchaser of property can plead ignorance of charge created by a court. Effect of a charge.²With regard to the effect of a charge created by a decree for maintenance obtained by the wife of the manager of a 3
family property, the following principles of law emerge² (1) A maintenance order can create a charge over the joint property, when their family was joint. (2) When once her right to maintenance has been declared, defined and reduced to a certainty by a decree of court such right cannot be taken away by any subsequent alteration of such property by partition of such property effected amongst the members of that family. (3) Any person including the step-son of a maintenance-holder, who was a member of a Hindu joint family at the time of the institution of the maintenance suit cannot question her right over such properties, in case such properties, or any portion of the same are allotted to him in a subsequent partition or devolved on him. (4) The charge created on those properties prior to the division of the family will be subsisting and continue till lifetime of the holder and the rights of the third party, if any, in such properties will be only the charge created in her favour.¶  
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amount charged on the property by sale of the property, unless there is a suit and an order of the court for sale has been obtained. Where, however, there has already been a suit and the court has declared that the money is recoverable from the specific property, the declaration amounts to an order of the court for the usual rights that the charge holder has to recover the amount by sale of the property. Whenever a decree is executable for a certain sum of money and charge has been created for the recovery of that amount the property charged is, in the absence of anything to the contrary, saleable in the execution proceeding and no fresh suit is necessary to be instituted. So the provisions of Order 34, Rules 14 and c
C.P.C., do not apply in such cases. Effect of transfer of property on the right to maintenance² Pre-Act law.²The right of maintenance cannot be enforced either against a person who first obtained a transfer for consideration, without notice of the right, or against one who obtained a transfer for value without notice either from an original transferee for value, who had notice from a gratuitous transferee. If the property liable for maintenance was transferred for consideration, the claim to maintenance could not prevail unless the vendor was acting in fraud of a widow¶s claim to maintenance and the vendee purchased the property, not merely with the knowledge of her claim but also of the vendor¶s fraudulent intention. In other words, the collusion of the vendor with the vendee was necessary to challenge the transfer. Present Law.²Same law has been enumerated under this Act except that the collusion of vendee or vendor is no longer necessary to challenge the transfer. But he must have notice of the right of maintenance. Section 28 deals with effect of transfer of property. It runs as follows: +,         %  maintenance.²Where a dependant has a right to receive maintenance out of an estate and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right.´ So, according to this section the right to receive maintenance may be enforced against transferee, if² 1. The transferee has notice of the right of dependant¶s claim to maintenance. 2. The transfer is gratuitous ë without consideration), such as gifts. Gratuitous transferee is liable even if he may not have the notice of the right of maintenance. It is to be noted that this ³section is not exhaustive and a Hindu wife is still entitled to rely on section 39 of the Transfer of Property Act which is not abrogated by the present section ; and it is open to the court to create a charge in her favour over the property of husband as against an alienee of the same who has purchased the same with notice of the right.´

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