In-laws of Hindu woman should pay maintenance if husband cannot maintain her due to disability, recommends Law Commission


A seven-member committee of the Law Commission of India led by its Chairman (retired) Justice A.P. Shah, has recommended an amendment to the Hindu Adoption and Maintenance Act, 1956 (“Act”). This amendment would direct the family of a man to protect and maintain his Hindu wife if he cannot do so himself due to physical, mental, or any other kind of disability.

The matter was referred to the Law Commission by the Punjab and Haryana High Court after the case of Avtar Singh v. Jasbir Singh, RSA No. 29/1988. In that case, the wife of a man of unsound mind had sought, as maintenance, a one-fourth share in the land belonging to the family. Initially she was given the share through a settlement effected by the village Panchayat but was later driven out of the land by her father-in-law.

In passing his judgment, Justice Paramjeet Singh noted “In such a situation, the wife should be deemed to be dependent upon the father-in-law and entitled to maintenance as provided under Section 19 of the Hindu Adoptions and Maintenance Act.”

The panel has recommended the following insertion in Sub-section 4 of Section 18 of the Act, as: “Where the husband is unable to provide for his wife, on account of physical disability, mental disorder, disappearance, renunciation of the world by entering any religious order or other similar reasons, the Hindu wife is entitled to claim maintenance during her lifetime, from members of the joint Hindu family of the husband, except where the husband has received his share in the joint family property.”

Even before Avtar Singh, the issue had been in focus before the Bombay High Court in Ramabai v. Trimbak Ganesh Desai in which it held, “No doubt, the authorities do not show that the relations of a deserted wife are under a personal liability to maintain her; but they do show that she is entitled to be maintained out of her husband’s property to the extent of one -third of the proceeds of that property.”

In Gopala Pattar v. Parvathi Ammal (1929), the Madras High Court declared, “It is difficult to see any distinction between the position of a widow who has been obliged to enforce her charge for maintenance and that of an abandoned wife who is obliged to do the same If she has this right against her husband personally it can be enforced by the attachment and sale of his property and that property consists of an undivided share in the joint family property.

The proposed amendment will apply not only to wives whose husbands have a mental or physical disability, but also those who have disappeared or renounced the world by entering a religious order. The singular exception is when the husband has already received his share in the family property by way of partition.

The Committee handed over its report to Law Minister D.V. Sadananda Gowda on January 6, 2015.

(Prapti Patel is a student of the Indian Law Society’s Law College in Pune.)


The Supreme Court’s advocacy of a uniform civil code

AkshaySreevatsaOver the last three decades, in spite of the deeply divisive nature of the issue (as I had explained in my previous post here), the Supreme Court of India has strongly supported moving towards the aspiration enshrined in Article 44 of the Constitution of India by unifying the personal laws of the nation’s diverse communities. The Court is often at the frontline of the nation’s policy debates and its decisions often guide other branches of government. I will now briefly examine three landmark cases that have come to exemplify the Court’s stance on the uniform civil code.

The first major case to focus attention on the issue was Mohammed Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945). Here, a penurious Muslim woman claimed maintenance from her husband under Section 125 of the Code of Criminal Procedure, 1973 (“CrPC”), and was granted her claim. The then Chief Justice of India, Y.V. Chandrachud, came out strongly in favour of a uniform civil code, observing that, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.” A national furore erupted in the wake of this decision, prompting the incumbent Rajiv Gandhi government to overturn the decision by enacting the Muslim Women (Protection on Divorce) Act, 1985, which effectively barred Muslim women from claiming maintenance under Section 125. This move contradicted the observations of the Supreme Court and was justified on the grounds that mere observations of the Court did not obligate the other branches of government to actually implement such a uniform code.

Justices Y.V. Chandrachud, Kuldip Singh, and V.N. Khare

A decade later, in Sarla Mudgal v. Union of India (AIR 1995 SC 1531), the Supreme Court revisited the matter. The issue in question was whether a Hindu man who embraced Islam could solemnise a second marriage as a Muslim. The Court held that in such a case, the first marriage would have to be dissolved under the Hindu Marriage Act, 1955. A simple conversion to Islam followed by marrying again would not amount to such a dissolution. The man’s first marriage would therefore, still be valid and under Hindu law, his second marriage, solemnised after his conversion, would be illegal under Section 494 of the Indian Penal Code, 1860. Justice Kuldip Singh, delivering the judgment, remarked sharply that “the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. He went on to note that, “When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India.

Thereafter, in 2003, in John Vallamattom v. Union of India (AIR 2003 SC 2902), the Court had reason once again to express its opinion on the subject of a uniform civil code. In this instance, John Vallamattom, a Christian priest, challenged the constitutional validity of Section 118 of the Indian Succession Act, 1925, claiming that it was unfairly discriminatory against Christians for placing unreasonable restrictions on their ability to will away land as donations for charitable and religious purposes. A three-judge bench of the Supreme Court, comprising Chief Justice V.N. Khare, and Justices A.R. Lakshmanan and S.B. Sinha, struck down the provision as being violative of Article 14 of the Constitution. Chief Justice Khare commented: “We would like to State that Article 44 provides that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India…It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.” This case was also acknowledged in the 209th Law Commission Report on the Proposal for the Omission of Section 213 of the Indian Succession Act, 1925. In the immediate aftermath of the ruling, the BJP called for a national debate on a uniform civil code, and wanted the Law Commission to incorporate “fair and equitable ingredients” from the personal laws of the Hindus, Muslims, Christians, and Parsis to formulate a common code.

Therefore, despite the political ambivalence surrounding the issue, the Supreme Court’s consistent advocacy in favour of a uniform civil code suggests that from a legal perspective, India may well be ready for uniform personal laws, and also that there is sufficient institutional competence and willingness for the adjudication and administration of these new laws.

(Akshay Sreevatsa is an alumnus of NLSIU (2011) and UC Berkeley School of Law (2014). He currently teaches International Law at The School of Law, Christ University, Bangalore.)


Controversial Madras HC order signals more progress on maintenance rights in “relationships akin to marriage”

Relationships akin to marriageThe times, they are, a-changing. The final draft of Madhya Pradesh’s Women’s Policy, 2013 – 2017 recognises the need to protect the legal rights of partners in live-in relationships. Yesterday’s controversial order of the Madras High Court equated some such relationships to marriage. Justice Karnan’s order protects the rights of women in partnerships outside of marriage to maintenance and the rights of children born to such couples. The Supreme Court too, in Velusamy v. Patchiammal in 2010, progressively interpreted and applied maintenance laws. It is high time the legislative machinery caught up.

Even parts of the West have been slow to accept this change. For instance, in the U.K., neither partner can legally claim maintenance after the end of such a relationship. However, children born in such relationships are guaranteed child support from the party that holds legal guardianship. Perhaps the most pragmatic view has been taken in the Netherlands. The Dutch recognise three kinds of living arrangements — co-habitation agreements, registered partnerships, and marriage. Ending or dissolving any of these may give rise to the right to maintenance and regardless of the relationship between the parents; Dutch law ensures equal parenting to children. It is time to take a leaf out of their books.

It is especially vital to provide access to basic maintenance in India, because of the large numbers without access to mainstream education. The Madhya Pradesh government will set a very good example if its innovative Draft Women’s Policy is sanctioned and implemented with the spirit intact. Similarly, it is also time to think about the innumerable women and children who can now rightfully claim a life with dignity because our courts are recognising change.

(Suhasini Rao Kashyap is part of the faculty on