Child Maintenance Laws in India: A closer analysis

I. Introduction

“The child supplies the power but the parents have to do the steering” – Benjamin Spock

Childhood care and support plays a very essential role in the growth of the child. The future potency of the child depends upon their early age maintenance and care. It is the duty of both the parents to provide basic necessities to their children for their betterment and growth. This duty of the parents is very well acknowledged by the Indian laws as well as the Indian judiciary. The parents have a social, moral and legal obligation to maintain their child despite the fact that they are separated or living-together. In literary terms, ‘maintenance’ may mean to provide hand to one in need. Nevertheless, under matrimonial law maintenance means clothing, education, food, lodging, medical care, or any other arrangement of comforts or necessaries of life. It may also be understood as a name given to the monthly/weekly payments which may be ordered by the decree of nullity/divorce to maintain and support one of the spouses. Similarly, laws on maintenance of children provide this benefit to the child, which may be pleaded during the proceedings of nullity, divorce, restitution of conjugal rights or judicial separation². This paper tries to do a closer analysis of various child maintenance laws in India. In order to do so, the paper tries to focus on different personal laws as well as secular law that govern maintenance of a child in India. While highlighting the various personal laws, the paper tries to do a detail analysis of Hindu and Muslim personal law. The detailed analysis of Hindu and Muslim personal laws is done by examining the conflict between various laws and provisions through judicial precedents. Further the paper also tries to highlight the grey areas in these laws and finally attempts to show if there is a need for uniform civil code in India.

II. Maintenance of child under different laws and provisions in India

In India people of different religious backgrounds, customs and traditions are governed through their own set of personal laws. To analyse the law relating to child maintenance in India, along with different personal laws, we may refer to secular provisions and procedures mentioned in the Code of Criminal Procedure,1973-

1. Maintenance of child under Code of Criminal Procedure (Section 125)

Section 125 of Code of Criminal Procedure, 1973 gives a statutory recognition to the social, legal, moral and fundamental duty of a man to maintain his child, wife and parents. Even though this section provides relief to a distressed father, the main objective of this provision is to protect the interest of aggrieved children and women. According to Section 15(3) of the Indian Constitution, the state may make special provisions for children and women. In respect to maintenance of child this section provides that a minor son or an unmarried daughter, whether legitimate or illegitimate, are entitled to claim maintenance under this section from their father, under all circumstances.

At the time of enactment of the CrPC, this section was meant to be applicable to all the people governed by the Code irrespective of their personal laws. This intention of the legislature and the secular nature of the provision was highlighted by the Supreme Court in the famous landmark case of Ahmed Khan v Shah Bano Begam (1985)³. This was also recently reiterated in Abdul Latif Mondal v Anuwara Khatun⁴ (2001).

1.1. ESSENTIAL CONDITIONS FOR GRANTING MAINTENANCE:

Section 125 (1) of the CrPC, provide certain conditions that are required to be fulfilled before order of maintenance may be granted-

• Sufficient means for maintenance- If a person has sufficient means for maintenance, then it is his responsibility to maintain his children, wives and parents. However, insufficient means of maintains is a good and a valid defence for those who are legally bound to maintain their children, wives and parents.
• Refusal or neglect to maintain the dependant – The person who is asked for maintenance denies to maintain his wife, children or parents in malice intention.
• The dependant is unable to maintain himself/herself- It is important to note that the person who is asking for maintenance must be unable to maintain himself/herself. For instance, in the case of Abdulmunaf v Salima, it was upheld that a wife who is sufficiently educated to earn herself or is wealthy, but refuses to earn herself and claims maintenance then she may not be entitled to claim maintenance under this section.

1.2. DISTINCT PROVISION FOR MAINTENANCE OF A MARRIED MINOR GIRL-

It may be noted that in case the husband of a minor girl is unable to maintain her due to insufficiency of means then it is the duty of the father to maintain her. In 2008, the Allahabad High Court in Alok Bnaerjee v Atoshi Banerjee⁵ upheld this principle.

1.3. AMOUNT OF MAINTENANCE:

According to the Amendment Act of 2001, it is on the discretion of the court to decide the justified quantum of maintenance keeping in mind the status of the family.⁶

Chapter 1X of the CrPC is very important for the protection of the rights children. The chapter contains various provisions like essentials for granting maintenance, who is entitled to it, procedure of maintenance (Section 126), enforcement (Section 128) and alteration of previous orders (Section 129) etc.

2. Maintenance of child under Hindu Law

2.1. STATUTORY PROVISIONS

Section 3(b) of Hindu Adoption and Maintenance Act,1956 defines ‘Maintenance’. According to this section it includes-

• In all the cases residence, food, education and medical care
• Also, in case of unmarried daughter, all the reasonable expenses for her marriage.

In a case where the parents are separated, the child suffers the most. In order to protect the children from becoming victims for the actions of their parents, several provisions are enacted by the legislature under the Hindu personal laws. Moreover, in a situation where the child is in the custody of a single parent then it may in no case absolve the other parent from the liability to maintain the child.

A minor child i.e., under the age of 18 years has the right of maintenance in the given situations from the both of his/her parents-

• When the child lives with his/her parents
• When the child is born out of an invalid marriage
• When parents are separated and the child lives in the custody of one parent
• When the child is born out of a live-in relationship

Some important provisions for maintenance under Hindu Law-

A. Hindu Marriage Act, 1955

Section 26 of the HMA,1995 provides the provision for passing interim orders with respect to education, maintenance and custody of a minor child, if any proceedings for either regarding dissolution of marriage, restitution of conjugal rights or any other proceedings. Trial or appellate courts have the power to pass such interim maintenance orders.

B. Hindu Adoption and Maintenance Act, 1956

Section 20 of HAMA, 1956 lays down provision for maintenance for children and aged parents. Under this section, both Hindu male and female, in their lifetime are bound to maintain their-

• Unmarried daughter
• Illegitimate or legitimate minor son/daughter
• Infirmed/aged parents

C. Section 125 of CrPC- as this section is secular in nature and is applicable on everyone governed by the Code, irrespective of their personal laws, Hindus in India are also governed by this provision.

2.2. CONFLICTS AND QUESTIONS ON LAW

Due to the existence of various statutes and provisions, conflicts often arise between two or more provisions-

a. Can maintenance be given to a child under Section 26 of the HMA,1995 on an application filed by the wife under Section 25, HMA,1995 even if in a case no specific mention of 26 has been made in the plea of the wife?

The answer to this question of law was highlighted in the 98^th Law Commission Report as one of the recommendations that was given stated that even without a formal application, courts may give interim orders, however, the irony is that this report was never implemented. So, to understand the solution to the issue, let us go through some important judicial precedents –

• In the case of D. Thimmappa v R. Nagveni (1976)⁷ it was held that even though there was no formal application to grant maintenance of child, it may seem that when a wife pleads for maintenance and she has some children, maintenance granted to her would be meaningless if her children are not granted maintenance.
• However, this view of the Karnataka High court was refused by Bombay High Court in Dalli Ram v Taravati ⁸(1982), where the requirement of formal application for child under Section 26 of HMA was mandated. This opinion of the Bombay High Court was also reiterated by Madras High Court in 2013, in the case of Sumathi vs R.Sharavanakumar.⁹

Hence, from the latest judicial precedent it may be inferred Section 24 and 26 of the HMA, 1995 don’t overlap each other and perform in different angles. If a wife wants to claim maintenance of her child, she is required to make a separate representation of the child in the application under Section 26 of the act.

b. In the recent case of Ramesh Gajanan Rege v. Gauri Ramesh Rege(2015)¹⁰, the constitutional validity of Section 20(3) was challenged by the petitioner. Section 20(3) establishes the obligation on both the parents to maintain their unmarried daughter who is not able to maintain herself even after she has reached the age of majority. Further, the petitioner alleged that if the parents are under no obligation to maintain their unmarried son after attaining majority, then why are they obliged to maintain their daughter? He continues to argue that this provision is violative of Article 14 and 15 of the Indian Constitution as well.

However, the arguments presented by the petitioner were rejected by the court on the grounds that nothing in Article 15 stops the state from making any special provisions for women and children. It was held that as the class of unmarried daughter is different from the class of unmarried son, the question of discrimination doesn’t even arise. Thus, the court rejected the petition and decided in favour of the daughter

An interesting observation was recently made by the Delhi High Court in Sukhjinder Singh Saini v. Harvinder Kaur (2017)¹¹, which highlighted that under Section 20 HMA, both the parents are equally obligated to maintain their children, which was also upheld in Padmja Sharma v. Ratan Lal Sharma¹². However, a closer analysis shows that CrPC poses this obligation only on the father. This contention between the two provisions may be raised.

c. In the latest landmark case of Abhilasha v Prakash (2020)¹³, the Supreme Court addressed the conflict between Section 125 of the CrPC and Section 20 of the HAMA. The conflict between the two provisions arose as according to Section 125 of CrPC it is the duty of the father to maintain his son or daughter until he/she reaches the age of majority. This section further extends the duty of the father to maintain his child if he/she after majority is unable to maintain himself/herself due to physical or mental disability. However, even though the provision to claim maintenance for a Hindu son is same in HAMA, the provision for the Hindu daughter stands out to be different. This is because HAMA, poses an obligation on the parents to maintain their daughter until she is unmarried. To absolve this conflict between the two provisions the Supreme Court held that both the provisions stand valid in the eyes of law. A Hindu daughter may claim maintenance under either of the two provisions, which deems fit for her case.

From the above case laws and provisions, it may be observed that as stated under Section 13 of the HMA, child’s welfare is the prime consideration in any case relating to children. The provisions relating to child maintenance under CrPC or Hindu laws primarily promote the interests of the child.

3. Maintenance of child under Muslim law

Under the Muslim law there is no specific provision that deals with child maintenance as the personal law for Muslims is completely uncodified. Under the Muslim law, it is the moral duty of a person to take care of his children till they become independent. The term used for maintenance under Islam is ‘Nafaqah’. Usually, the condition of the person providing the maintenance is also considered and in case the person is not financially sound, the question of maintenance does not arise.

3.1. QUANTUM OF MAINTENANCE:

The quantum of maintenance is not defined under any statute. It is usually decided by the court according to the needs of the children and financial condition of the father. However, to determine the amount of maintenance Hanafi law demands to look at position of both the parents but Shafei law requires to consider the position of husband.

3.2. FATHER’S DUTY:

Under Islam, it a fixed duty of the father to maintain his child. He is supposed to maintain-

• son until adolescence
• unmarried daughter
• married daughter, in case her husband is unable to maintain her
• major son, if he is unable to maintain himself due to physical or mental disability

It is also important to note that no liability exists in a case where his children deny to live with him without any valid reason. Also, a daughter doesn’t have an unlimited right to claim maintenance from her father, she may only claim under special circumstances.

3.3. MOTHER’S DUTY:

The duty of a mother is different in various schools of Muslim law. For instance, under the Hanafi law, the obligations of the father are transferred to the mother in case he is not financially sound. Nevertheless, in Shefai law, the obligations are transferred to the grandfather.

In Akhatari Begam v Abdul Rashid¹⁴ (1937), it was held that when a child is in the custody of their mother then she may claim maintenance for son till the age of adolescence and daughter till the time she is married. This may also be observed in the recent case of Shaik Rafath Begum v T.V.R(2006). ¹⁵.

3.4. IS THE RIGHTS OF CHILD SAME AS THAT OF DIVORCED WIFE?

In the landmark case of Hazi Farzand Ali v. Noorjahan(1987)¹⁶, it was held that the rights of a child is separate from the rights of the divorced wife and the wife may compel her husband to maintain his child. This was reiterated in the Asif Saied v S.M. Unnissan (2011)¹⁷.

3.5. MAINTENANCE OF AN ILLEGITIMATE CHILD:

The Islamic law is silent on the maintenance of illegitimate children as it considers the requirement of maintenance for legitimate child only. However, different practices show that in Hanafi law it is the duty of the mother to maintain the illegitimate child whereas Isthna Asharia School of Shia is silent on the issue.

Nevertheless, it must be kept in mind that Section 15(1)(2) poses a duty on the father to maintain legitimate as well as illegitimate child.

The law on maintenance under Muslim law is different from other personal laws. It may be observed that under Islam, the duty of man extends towards his child besides his wife.

4. Maintenance of child under Parsi and Christian law:

Child maintenance under Parsi and Christian law is less complex. The child maintenance law for Parsis may be governed by Parsi Marriage and Divorce Act, 1939, which very much corresponds to the provisions of Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Whereas the Christian personal law relating to child maintenance is governed by Indian Divorce Act, 1869, which provides for permanent as well as interim maintenance.

NOTE-Recently, the Supreme Court of India in the landmark case of Rajnesh v Neha (2020)¹⁸ held that in case different provisions are laid down under the secular provisions (Section 125) for maintenance and the personal law provisions then both may go hand in hand, the person pleading for maintenance may apply either of the provisions to claim maintenance.

III. Comment on the child maintenance laws in India

Uniform Civil code- Need of the hour?

From above it is easy to observe that often conflict arise between the secular provisions of law and the personal provisions of law. These conflicts may direct our thoughts to a larger question – is Uniform Civil Code need of the hour? Uniform Civil Code in general terms, may mean uniform personal laws for everyone in the India despite, religion, caste, customs or traditions. According to Article 44 of the Indian Constitution, the state shall endeavour a uniform civil code for everyone in the Indian territory. In many cases like Ms. Jorden Diengdeh v. S. S. Chopra¹⁹ (1985), Agnes Alias v Rageena Thomas ²⁰(2010), Shayara Bano Begum v Union of India²¹ (2017) the judiciary time and again emphasised on the need for uniform civil code to cure the grey areas and loopholes in law. Some of the reasons to introduce Uniform Civil Code is as follows-

• Inter-religion differences- Diverse personal laws in India are not only attributed to different religions but also to different sub-categories in religion. Eg. Muslim law. So, it also becomes difficult to have same laws for people of same religion.
• Inequality before the law- It is often said that everyone is equal before law. But in India rights of a Muslim woman same as a Hindu woman after divorce? The answer to this is reluctantly, No! Due to varied personal laws, the outcome of cases with similar facts become different. Is this equality?
• Judicial precedents show that there are many loopholes in the Muslim personal laws. The judiciary time and again upholds Section 125 of CrPC against Muslim Personal laws to deliver justice to Muslim women and children. Often this is seen as frustrating for the Muslim community and creates conflicts in reality within the society unnecessarily.

Thus, taking into consideration the loopholes, emphasis the need for uniform laws for the whole country. Also, it must be noted that implementation of uniform law doesn’t mean imposition of law of the religious majority on the people with religious minority. This simply may mean a development of balanced framework to encourage common principles like equality, welfare etc.

IV. Conclusion

In India, there are secular provision as well as personal law provisions to regulate the maintenance of the child. Judicial precedents show that in matters of conflict the prime focus of the judiciary is in favour of welfare of the child. There are many loopholes in the personal laws of the people. Uniform civil code may be seen as a remedy to solve the conflicts that arise due to the different personal laws.

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V. Reference

• Pragati, Child Maintenance under Hindu Law, INDIAN LAW PORTAL (July 8,2020) https://in dianlawportal.co.in/child-maintenance-under-hindu-law/ (Last visited- 25^th October,2021).
• District Court, Maintenance E-DISTRICTCOURTS https://www.thedivorcelawfirm.in/pdf/Maintenance-for-wife-and-children.pdf (last visited- 26th October 2021).
• Harshita Varshney, Aspects of maintenance of children under Muslim Law, I-pleaders (August 16,2020) https://blog.ipleaders.in/aspects-of-maintenance-of-children-under-muslim-law/ (Last Visited- 26^th October).
• Ujjwal Singh& Rajat Aggrawal, Research Paper on Law relating to maintenance in India with special reference to Uniform Civil Code, INTERNATIONAL SCIENCE AND TECHNOLOGY JOURNAL (2018).
• Jasmin Kaur Need for a relook on legal provision regarding Maintenance under Hindu Law, INTERNATIONAL JOURNAL OF RESEARCH AND ANALYTICAL REVIEWS (2019).

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