Law Commission of India Report No. 98
Sections 24 to 26, Hindu Marriage Act, 1955: Orders for Interim Maintenance and Orders for the maintenance of Children in Matrimonial Proceedings
Forward to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by K.K. Mathew, Chairman, Law Commission of India, on April, 1984.
Introductory1.1. Scope.—Certain questions concerned with orders for interim maintenance under the Hindu Marriage Act, 1955 and with orders for the maintenance of children under the Act are the subject-matter of this Report. On several points arising out of the relevant statutory provisions,1 a conflict of decisions has arisen and it seems appropriate that the conflict should be settled by legislative amendment. On some other points, a discussion has taken place in the writings on the Act or in case law. These discussions need to be taken note of. The Commission has had occasion to deal with the Hindu Marriage Act more than once in the past.2 But the points that are the subject-matter of the present study had not arisen at the time when the Commission undertook, in its earlier Reports, a survey of various provisions of the Act. 1. Sections 24 to 26, Hindu Marriage Act, 1955. 2. Law Commission of India, 59th Report (Hindu Marriage Act, 1955 and Special Marriage Act, 1954) and 71st Report (Hindu Marriage Act, 1955—irretrievable breakdown of marriage as a ground of divorce). 1.2. The questions to be considered—nature of.—The questions that are proposed to be discussed in the succeeding Chapters are mainly of a procedural nature. But they occur almost daily in practice in most matrimonial proceedings under the Hindu Marriage Act. Further, relating as they do to the maintenance of spouses and children, they possess a practical importance of their own. It is therefore desirable that the law on the subject should be settled, made uniform throughout the country and incorporated in the Act. It is for these reasons that the Commission has considered it necessary to deal with the relevant sections of the Hindu Marriage Act in this Report. 1.3. Working Paper issued by the Commission.—It may be mentioned at this stage that on the subject of this Report, the Commission had prepared and circulated a Working Paper,1 setting out the issues arising out of the relevant statutory provisions and the possible solution. The comments that have been received will be dealt with in detail at the appropriate place, in this Report.2 At this stage, it is enough to state that almost all the comments received on the Working Paper agree with the need for amending the Act on the lines envisaged in this Report. The Commission is grateful to all those who have responded by sending their views on the Working Paper. 1. Working Paper on sections 24 to 26, Hindu Marriage Act, 1955: Orders for interim maintenance and orders for the maintenance of children in matrimonial proceedings, dated 16th November, 1983. 2. Chapter 6, infra.
Sections 24 to 26, Hindu Marriage Act, 19552.1. Section 24, Hindu Marriage Act.—Before dealing with the questions proper, it would be desirable to set out the relevant provisions of the Hindu Marriage Act, 1955. Maintenance pendente lite and expenses of proceedings for the spouse are dealt with in section 24 of the Act, quoted below:—
(i) interim maintenance of a spouse and interim maintenance of children are dealt with in two separate sections (sections 24 and 26, respectively) of the Act;
(ii) one of these two sections (section 24) envisages an "application", but the other (section 26) does not (in the portion relating to interim orders) require an application.This apparently minor matter is mentioned here, because it is relevant to one of the questions going to be discussed in the succeeding Chapter.
Maintenance for Children without a Formal Application3.1. Interim maintenance for children.—The first question that has arisen with reference to the provisions of the Hindu Marriage Act quoted above1 is this—Can interim maintenance be granted for children under section 24 of that Act,2 where there is no separate application under section 26 in respect thereof?3 1. Chapter 2, supra. 2. Para. 2.2, supra. 3. Para. 2.3, supra. 3.2. Conflict of views as to sections 24 and 26.—There is a conflict of judicial decisions on the point. The following High Courts take the view that even where there is no separate application for the grant of maintenance to children under section 26, the court should, in a proceeding initiated by the wife under section 24, exercise its discretion and award maintenance to the children:—
(i) Andhra Pradesh1;
(v) Punjab & Haryana5; and
(vi) Rajasthan6.1. Narendra Kumar v. Suraj Mehta, AIR 1982 AP 100. 2. Damodar v. Bimla, 1974 PLR (Del) 33. 3. D. Thimmappa v. Nagaveni, AIR 1976 Kam 215; Subhashini v. Umakanth, AIR 1981 Karn 115. 4. Radha Kumari v. K.M.K. Nair, 1982 KLT 417 (Sukumaran, J.). 5. Balbir Kaur v. Raghubir, AIR 1974 P&H 225. 6. Baboo Lal v. Prem Lata, AIR 1974 Raj 93. 3.3. The contrary view, denying the court such a power without a formal application under section 26 has been taken by the following High Courts:—
(i) Jammu & Kashmir1;
(ii) Orissa2; and
(iii) Patna31. Puran Chand v. Kamla Devi, AIR 1981 J&K 5. 2. Akasam Chinna Babu v. Akasam Parvati, AIR 1967 Ori 163. 3. Bankim Chandra v. Anjali, AIR 1972 Pat 80. 3.4. Review of case law.—The extensive case law on the subject has been reviewed in some of the rulings, of which an Andhra Pradesh1 one is very useful. Incidentally, the Kerala judgment2 taking the wider view attracted a number of favourable as well as unfavourable comments in articles published in a Law Journal.3 1. Narendra Kumar v. Suraj Mehta, AIR 1982 AP 100. 2. Radha Kumari v. K.M.K. Nair, 1982 KLT 417 (Sukumaran, J.). 3. See articles by Shri P.V. Ayyappan, Shri S. Balachandran, Shri Siby Mathew and Shri V.K. Francis, respectively in (1982) KLT (Journal), pp. 65, 79, 83, 90. 3.5. Another question—Application under section 26 if necessary for permanent maintenance of children.—The above case law relates to orders for interim maintenance of children under the Hindu Marriage Act. A somewhat similar question, which also seems to have led to some judicial controversy, has arisen in connection with orders for permanent maintenance of children. The precise question is as follows:—
Interim Maintenance: The Effective Date4.1. The effective date.—Arising out of sections 24 and 26 of the Hindu Marriage Act is another question relating to the date from which interim maintenance can be granted by the court. Can such maintenance be granted from the, date of the service of summons on the main petition? Or, can it be granted only from the date of the application for interim relief (where such an application is made)? Or, should it be operative only from the date of the order for interim relief. Sections 24 and 26 of the Hindu Marriage Act are silent in this regard and do not bind down the court to a specific date. However, there is some uncertainty in this respect as will be evident from the case law summarised in the paragraphs that follow. 4.2. One view—service of main petition to be the effective date.—According to some High Courts, the order for interim maintenance can be made effective from the date of service of summons on the main petition. The High Courts taking this view are:—
(iv) Mysore;4 and
(v) Punjab and Haryana.51. (a) Samir Banerjee v. Sujata Banerjee, (1966) 70 CWN 642. (b) Sobhana v. Amar Kanta, AIR 1959 Gal 455. 2. Gajna Devi v. Purshotam, AIR 1977 Del 178. 3. Radha Kumari v. K.M.K. Nair, 1982 KLT 417 (424), para. 26. 4. N. Subramanyarn v. M.G. Saraswath, AIR 1964 Mys 38, para. 7. 5. Sarita Mehta v. Arvind Kumar Mehta, (1978) 8 PLR 213. 4.3. Second view—date of issues to be the effective date.—The second view is that the order can relate back to some date later than the date of the main petition. Thus, one of the Jammu & Kashmir rulings1 holds that maintenance is payable only from the date on which issues are framed (in the main petition). 1. Puran Chand v. Kamla, AIR 1981 J&K 5 (Decision on corresponding provision of the State Act). 4.4. Third view—date of application for interim relief to be the effective date.—According to the Andhra Pradesh High Court,1 maintenance is payable from the date of the application for interim relief (by the spouse) under section 24. In holding so, it points out that otherwise the respondent may frustrate the application by avoiding service of the main summons. 1. Narendra Kumar v. Suraj Mehta, AIR 1982 AP 100 (106), para. 18 (March). 4.5. Maintenance in appeal.—Similar controversy has arisen in regard to award of maintenance at the stage of appea1.1 In an Allahabad case, alimony pendente lite was claimed in appeal, and was allowed retrospectively from the date of filing of the appeal.2 But, according to a ruling of the Andhra Pradesh High Court,3 the order for interim maintenance cannot be made effective from the date earlier than service of the notice of appeal. 1. As to the appellate stage, see Harlochan Singh v. Mohinder Kaur, AIR 1963 Punj 249 (250). 2. Mahabir Prasad v. Push Pamala, 1970 All LI 1406. 3. Subba Rao v. Anasuyamma, AIR 1957 AP 170. 4.6. Need for amendment by inserting new section 26A, in the Hindu Marriage Act.—In this position, it is desirable to make the law specific and certain by inserting in the Hindu Marriage Act a provision—say, as section 26A—making it clear that an order for interim maintenance under section 24 (spouse) or under section 26 (children) may be given effect—
(a) from such date, not earlier than the date of the application under that section, as the court considers just and proper in the circumstances, or
(b) where no application has been made under section 26, then from such date, not earlier than the date of service of the notice issued on the petition by which the main proceeding was instituted, as the court considers just and proper in the circumstances.
Appeal, Revision and Enforcement5.1. Appeal and revision (interim orders).—Questions have, we find, been raised as to the competence of revision against orders for interim maintenance passed under the Hindu Marriage Act.1 We have given some thought to the matter and have come to the conclusion that after the amendment of section 28 of the Act, there should be no difficulty or obscurity in this regard. Briefly stated, the position as clarified by amended section 28, is that an order for interim maintenance is not appealable. Revision is therefore permissible in law2 against such an order, but only if the High Court, in its discretion, regards the case as fit for interference by way of revision in the circumstances of the particular case. No amendment can better or alter this position, and none is therefore proposed. 1. Articles published in the Kerala Law Times: see footnotes to para. 3.4, supra. 2. Narendra Kumar v. Suraj Mehta, AIR 1982 AP 100. 5.2. Enforcement under section 28A, Hindu Marriage Act and other modes of enforcement.—Questions have also been raised as to the mode of enforcement of orders for interim maintenance. Under section 28A as inserted in the Hindu Marriage Act, all decrees and orders made by the Court in any proceeding under the Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced. For all practical purposes this should suffice. 5.3. Other modes of enforcement.—This does not, of course, mean that other modes of enforcement are necessarily barred. These other modes could include, for example, (a) stay of proceedings, where the party in default in paying the interim maintenance is the petitioner in the main proceedings;1 (b) striking off the defence under section 151, Code of Civil Procedure, 1908, where the party in default in paying the interim maintenance is the respondent in the main petition;2 (c) punishment for contempt. 1. (a) Malkan Rani v. Krishna Kumar, AIR 1961 Punj 42.
(b) Anita v. Birendra, AIR 1962 Cal 88.
(c) Bhuneshwar v. Dronta Bai, AIR 1963 MP 259.
(d) Jai Singh v. Khimi Bhiku, AIR 1978 HP 45 (49, 50), para. 20.
(e) Ram Swaroop v. Janak, AIR 1973 Punj 40.
(f) Anuradha v. Santosh Nath, AIR 1976 Del 246.2. Ram Swaroop v. Janak, AIR 1973 Punj 40. 5.4. Amendment not needed as to enforcement.—In this position, it does not appear to be necessary to make any amendment on the question of the mode of enforcement of orders for interim maintenance. 5.5. Earlier Report of the Law Commission as to criminal liability.—While on the subject of maintenance orders and their enforcement we may mention that some years ago, the Law Commission made a recommendation1 for imposing, in certain circumstances, criminal liability for failure to pay maintenance or permanent alimony granted to the wife by the court under certain enactments or rules of law. The Report awaits implementation. 1. Law Commission of India, 73rd Report (Criminal Liability for failure to pay maintenance or permanent alimony granted to the wife by the Court under certain enactments or rules of law).
Comments Received on the Working Paper6.1. Comments on the Working Paper.—As stated in the Introductory Chapter,1 we had circulated to interested persons and bodies a Working Paper on the subject of this Report, inviting their views in the matter. A request was made to send views to the Commission by the 31st January, 1984. All replies received upto the date of signing this Report have been taken into account before finalising this Report. 1. Para. 1.3, supra. 6.2. Replies received.—In all, ten replies have been received on the Working Paper. Of these, two replies are from High Courts1, four are from State Government,2 one reply is from a State Law Commission3 one reply is from an Advocate,4 one reply has been received from a social organisation,5 and one is from a gentleman from Madras.6 Almost all of them have agreed with the need for amending the Hindu Marriage Act, on the lines envisaged in this Report. 1. Law Commission File No. F.2(14)/83-L.C., S. Nos. 5 and 10. 2. Law Commission File No. F.2(14)/83-L.C., S. Nos. 6, 7, 8 and 11. 3. Law Commission File No. F.2(14)/83-.L.C., S. No. 9. 4. Law Commission File No. F.2(14)/83-L.C., S. No. 4. 5. Law Commission File No. F.2(14)/83-L.C., S. No. 3. 6. Law Commission File No. F.2(14)/83-L.C., S. No. 12. 6.3. Whether amendment necessary.—One comment received from the office of a State Law Commission,1 raises a query that an amendment of section 28 is not required. The comment, however, (it has been stated) is subject to approval of the State Law Commission. We may mention in this context that we are not recommending2 any amendment of section 28. The amendments that we are going to recommend3 concern the matters dealt with in sections 24 and 26 of the Hindu Marriage Act and are necessary in view of the case law discussed (and other points made) in the relevant Chapters of this Report.4 Some of the comments received on the Working Paper while agreeing that there is need for amending the Act, also make certain additional suggestions. We shall deal with these in later paragraphs of this Report.5 1. Law Commission File No. F.2(14)/83-L.C., S. No. 9 (Madhya Pradesh Law Commission). 2. See Chapter 5, supra. 3. Chapter 7, infra. 4. Chapters 2-4, supra. 5. Para. 6.6, et. seq, infra. 6.4. High Courts.—Of the two High Courts that have sent in their replies to the Working Paper issued by the Commission, one has no comments to offer,1 while the other2 agrees that there is need to amend the Act on the points dealt with in this Report. 1. Law Commission File No. F.2(14)/83-L.C., S. No. 5. 2. Law Commission File No. F.2(14)/83-L.C., S. No. 10. 6.5. State Governments.—As regards the four State Governments1 that have sent in their replies to the Working Paper, all agree with the need for amendment. One of them has made certain additional suggestions, which we shall mention in due course.2 1. Law Commission File No. F.2(14)/83-L.C., S. Nos. 6, 7, 8 and 11. 2. Paras. 6.10 to 6.14, infra. 6.6. Additional points—Execution of maintenance decrees.—Coming to the additional suggestions made in a few of the replies, we may first mention that two of the replies have expressed concern about the delay and difficulties experienced in the execution of decrees and orders passed for maintenance. Of these one is from an Advocate in Madhya Pradesh,1 who states that owing to poor economic condition, women are unable to represent their case properly in court. This is a point outside the scope of this report, though certainly deserving of attentions by appropriate authorities and organisations. The other—and more elaborate—suggestion is from the Joint Women's Programme (Christian Institute for the Study of Religion and Society), New Delhi2. The suggestions made by it are of a detailed character and are dealt with in the succeeding few paragraphs.3 1. Law Commission File No. F.2(14)/83-L.C., S. No. 4 (An Advocate from Madhya Pradesh). 2. Law Commission File No. F.2(14)/83-L.C., S. No. 3 (Joint Women's Programme, CISRS, New Delhi). 3. Paras. 6.7 to 6.9, infra. 6.7. Attachment of husband's earnings (Suggestion of Joint Women's Programme, C.I.S.R.S.).—In the reply received from the Joint Women's Programme (Christian Institute for the Study of Religion and Society), New Delhi, mentioned above,1 it has been stressed that maintenance granted under various personal laws and under the Code of Criminal Procedure, 1973, does not sufficiently provide for the protection of the deserted wife. It has been suggested that to protect the deserted wife and the children and to make the wife's remedy more effective, provision should be made to deduct the amount of maintenance from the husband's salary, if the husbands employed in Government or in public or private sector. If the husband is self-employed or not traceable, provision should (it is suggested) be made for maintenance, with the State as a party, for the protection of the deserted family. We appreciate the concern and anxiety felt by such organisations in regard to the need for the proper enforcement of decrees and orders for maintenance. Some of the points raised—for example, the State taking over the burden for protecting the deserted family in specified cases—touch matters transcending the specific areas of the Hindu Marriage Act or any other particular matrimonial enactment. But we would like to point out that so far the attachment of salary or other earnings of the defaulter is concerned, the Code of Civil Procedure, 1908 make sufficient provisions. All disposable property of the judgment debtor who is in default can under the Code, be attached in execution of a decree or order for maintenance.2 This includes salary or othe periodical earnings of the defaulter. The only qualification is that the case of s lary, the Code renders exempt from attachment a specified portion3 Under th present law, the exempt portion is one-third of the salary in case of a decre for maintenance. It may further be mentioned that the Code4 contains specific provisions as to the procedure to be followed by the Courts for the attachment of—(i) the salary of Government Servants as well as other employees, an (ii) the non-salary income of self-employed and other persons. We hope th t with increased legal literacy, these provisions will become more widely known. 6. Para. 6.6, supra. 2. Section 60(1), Code of Civil Procedure, 908. 3. Section 60(1), Provisos (i) and (ia), Cod of Civil Procedure, 1908. 4. Order 21, rules 46 and 48, Code of Civi Procedure, 1908. 6.8. Declaration of assets before marri ge, where husband residing outside India.—The same organisations1 (Joint W men's Programme, New Delhi) has stated that men employed overseas enter to dubious and deception marriages with women in India. Such men, it is state , disclaim the wife after marriage and the deserted wife is left without any provi ion for her livelihood or maintenance. The suggestion is that in order to overco e this deficiency, the husband should make a declaration of assets and provide, at the time of marriage, for the wife's maintenance. While we appreciate the eed for protecting women in such circumstances, we must note that the su gestion, even if it be regarded as a feasible one, falls outside the scope of thi report. 1. Law Commission File No. F.2(14)/83-L. , S. No. 3. 6.9. Custody of minor children.—A suggestion regarding the custody of minor children, made by the same organi ation,1 similarly falls outside the scope of this Report. The suggestion is that custody in divorce cases be awarded to the spouse who is best suited in the child's terests, and that it may be borne in mind that for the congenial and happy growth of a child, the mother is of primary importance, unless she is mentally deranged.2 1. Law Commission File No. F.2(14)/83-L. ., S. No. 3, para. 2. 2. As to handicapped children, see para. 6 14, infra. 6.10. Suggestion to dispense with ap lication under section 26 for order at the conclusion of the proceedings uggestion of Government of West Bengal).—A number of additional points have been made by the Government of West Bengal (in the Legislative Depar ent) in its comments on the Working Paper.1 The points made show an earne t desire for effecting improvements in the law, though they touch matters be and the scope of the Report—indeed, some of them go beyond the province f the matters that may be litigated in matrimonial proceedings. Emphasising t e fact that a broken conjugal home and an alienated couple spell great disaste to children, the suggestion makes a number of points, which we shall menti n in brief. The first point made by the Government of West Bengal is that here should be no insistence on an application, even under section 26, latte part, Hindu Marriage Act, (orders for maintenance to be passed at the co clusion of the hearing) and that the Orders for the Maintenance of Children in Matrimonial Proceedings requirement of application may be dispensed with. We have given some thought to this matter. However, in the absence of any serious difficulties actually felt in practice, we are not inclined to recommend its deletion. The matter is one relating to permanent maintenance, and if it is dealt with on the basis of some material which is on record, there is some convenience in practice. 1. Law Commission File No. F.2(14)/83-L.C., S. No. 6. 6.11. Disclosure in pleadings about children.—The second point made in the suggestion1 of the Government of West Bengal is that in every matrimonial proceedings, the pleadings must disclose whether the couple has any children, with details regarding the number, sex, age, custody, maintenance and education of children. The object is making this suggestion is to ensure that relief for children, if they are the victims of cruel indifference, may attract urgent judicial attention, the expectation being that on receipt of pleadings, the court may have this aspect of the matter taken up first with the urgency that it deserves. The suggestion is, no doubt, worthy of serious consideration. We do not deal with it in this Report, as the suggestion transcends the somewhat narrow topics to which this Report is addressed. But the suggestion can be taken up if and when the question of reformation the law relating to the welfare of children is taken up on a broader level2. 1. Law Commission File No. F.2(14)/83-L.C., S. No. 3. 2. Matter for future consideration. 6.12. Orders whether to be made effective from a date prior to institution of proceedings (Suggestion of Government of West Bengal).—Commenting on the proposal put forth in the Working Paper of the law Commission as to the date from which an order for interim maintenance may be made effective, the Government of West Bengal1 has suggested that liability to pay should arise precisely from the date when the duty to pay maintenance was violated, and that the date of omission or neglect to maintain a spouse or child in distress should, therefore, be the criterion in this regard. We are, however, afraid that the suggested change would not quite fit in with the provisions under consideration in this Report, or even with the Hindu Marriage Act taken as a whole. The question of orders for maintenance in the context of that Act arises because matrimonial relief provided for the Act. Since the subsistence of the marriage is in issue in these proceedings, it becomes necessary for the law to look into matters consequential on the break-up of the conjugal life of the spouses. It is only to that extent that orders for maintenance are provided for in the Act. Maintenance for the period to the petition seeking relief under the Act would not be a matter ancillary to the filing of the petition for matrimonial relief and may not appropriately fall within the Act. A matrimonial proceeding does not appear to be an appropriate proceeding wherein to litigate what are, for all practical purposes, claims for the recovery of arrears of past maintenance. As a matter of substantive law, liability to pay maintenance may arise as soon as there is neglect, but the machinery for enforcing the liability may not necessarily find a place in matrimonial legislation. It is for these reasons that we are unable to accept the suggestion. Lest this should appear to be too technical an approach,we should hasten to add that we do not underrate the importance of speedy disposal of claims for maintenance. Suitable machinery in that regard is provided in the Hindu Adoptions and Maintenance Act, 1956, or (where the Act does not apply) in the general law. 1. Law Commission File No. F.2(14)/83-L.C., S. No. 6. 6.13. Financial and psychological constraints on the woman.—It is true that sometimes, because of non-availability of resources to file a proceeding and because of other constraints (including a psychological reluctance felt by the woman to bring matters to the Court), a woman may not be able to take proceedings immediately, and because of such delay, some maintenance may fall in arrears. But this does not seem to be an adequate reason for disturbing the scheme of the Act. 6.14. Handicapped children.—The Government of West Bengal has also suggested that provision1 should be made in the Hindu Marriage Act regarding the maintenance of handicapped children. This point also raises issues of the general law of maintenance and cannot be appropriately dealt with in this Report, which is concerned with the machinery for the award of maintenance as a step consequential on matrimonial relief. 1. Law Commission File No. F.2(14)/83-L.C., S. No. 6. 2. See para. 6.12, supra.
Recommendations7.1. Recommendations.—In the light of what we have stated in the preceding Chapters, and having regard to the problems that have arisen with regard to (i) the question whether a formal application for interim maintenance under section 26, Hindu Marriage Act, 1955 is needed, and (ii) the date from which an order for interim maintenance (for spouses or for children) can take effect under the Act, we are of the opinion that it is necessary to amend the Act on both the points mentioned above. We have come to the conclusion that the most just and convenient course would be—
(a) to amend section 26 of the Act1, so as to expressly dispense with the need for a formal application for interim maintenance for the purposes of the section, at the same time also splitting up the section so as to improve its readability; and
(b) to insert in the Act a new section (say, section 26A), so as to make a specific provision as to the date from which the order for maintenance interim can take effect2.1. Para. 3.6, supra. 2. Para. 4.6, supra. 7.2. Revised section 26, Hindu Marriage Act.—Here is a concrete suggestion for revising section 26, if the above recommendation finds favour:—
(a) the court may, from time to time, and whether or not an application for the purpose is made on behalf of the minor children, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and
(b) the court may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made, by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and
(c) the court may also, from time to time, revoke, suspend or vary any such orders and provisions previously made".
(a) from such date, not earlier than the date of the application under that section, as the court considers just and proper in the circumstances,
(b) or, where no application has been made under section 26, then from such date, not earlier than the date of service of the notice issued on the petition by which the main proceeding was instituted, as the court considers just and proper in the circumstances of the case."