Explanation to hmda
B.swarnalatha
(Querist) 19 June 2012
This query is : Resolved
sir i was trying to ask the meaning for hmda for maintenance of a widowed daughter in law as Mr shonee kapoor has advised earlier that a widowed daughter in law can claim maintenance under hmda.can i ask you sir to kindly explain it.thanking you.
SAINATH DEVALLA
(Expert) 19 June 2012
Swarnalathaji, it is HAMA(Hindu Adoptions and Maintenance Act (1956),and not HMDA.Mr.Kapoor mentioned it as HAMA.OK,
There is a provision in the act specfying as below:
If the wife is widowed by her late husband, then it is the duty of the father-in-law to provide for her. This legal obligation only comes into effect if the widowed wife has no other means of providing for herself. If she has land of her own, or means of an income and can maintain herself then the father-in-law is free from obligation to her. Additionally, if the widow remarries then her late husband's father-in-law does is not legally bound by this Act anymore as well.
SECTION 18 HAMA:
18. Maintenance of wife.-
(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her.
(b) if has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injuries to live with her husband.
(c) if he is suffering from a virulent form of leprosy.
(d) if he has any other wife living.
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.
(f) if he has ceased to be a Hindu by conversion to another religion.
(g) if there is any other cause justifying living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
COMMENTS
Interim maintenance
The right to claim interim maintenance in a suit is a substantive right under section 18 of the Act. Since no form is prescribed to enforce the said right civil court in exercise of its inherent power can grant interim maintenance; Purusottam Mahakud v. Smt. Annapurna Mahakud , AIR 1997 Ori 73.
Maintenance pendente lite
After considering the status of the husband the wife should be awarded maintenance pendente lite, even though there is no separate provision in the Act for grant of maintenance pendente lite. The obligation to maintain the wife remains on the husband even though the wife might be living separately. The suit under section 18 of the Act may take decades to decide, the wife in the first instance be forced to face starvation and then subsequently is granted maintenance from the date of filing of suit. Such a view will be against the very intent and spirit of section 18 of the Act. It is settled law that a court empowered to grant a substantive relief is competent to award it on interim basis as well, even though there is no express provision in the statute to grant it; Neelam Malhotra v. Rajinder Malhotra, AIR 1994 Del 234.
Maintenance to wife/widow
Widow has no charge on separate property of husband. Neither section 18 relating to maintenance of wife nor section 21 dealing with widow provides for any charge for maintenance on separate property of husband; Sadhu Singh v. Gurdwara Sahib Narike , AIR 2006 SC 3282.
Separate residence and maintenance
(i) The wife had been living alone and all the children had been brought up by her without any assistance and help from the husband and there was a clear case of desertion, the wife was entitled to separate residence and maintenance; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.
(ii) The thoughtless action of the husband of evicting the wife from the house where she had been living in collusion with the purchasers of the house and the police inflicted a deep wound on her amounting to cruelty, the wife was entitled to live separately and claim maintenance; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.
(iii) The claim for maintenance by a wife can also be sustained under clause (g) even on a ground covered by one or other clauses i.e. clause (a) to (f) of section 18(2) substantially but not fully. Merely because the wife fails to strictly prove the specific grounds urged by her, she cannot be denied relief; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.
Nadeem Qureshi
(Expert) 20 June 2012
Dear Querist
youcan read section 19 of act
Maintenance of Widowed daughter-in-law
(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.
PROVIDED and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance -
(a) from the estate of her husband or her father or mother, or
(b) from her son or daughter, if any, or his or her estate.
(2) Any obligation under sub-section (1) shall not be enforceable if the father- in- law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.
COMMENTS
Liability of the father-in-law comes to an end where the widow is remarried or she has obtained a share in the coparcenery properties while partition. But her right to share in the separate property of her husband or in his interest in coparcenery property cannot be divested.-Animuthu v. Gandhimmal 1977 HLR 628.
Feel free to call
