1

Law of Adoption

INTRODUCTION

The concept of sonship is very important for Hindus because they consider it necessary that
their son should be in existence as putre (liberator from hell) and also to keep the lineal order
intact. In order to ensure the existence of a son, they go for adoption of a male from a different
family, endow it with the status of a real son. The doctrine of adoption is having religious, as
well as, social sanction behind it. In this lesson we will try to understand its legal position and
need to keep this institution going. It will also be analyzed as to, who can be adopted? What
are the conditions for valid adoption and what are the rights and obligations of an adopted son
or daughter, etc.
The doctrine of adoption has essentially a religious background, which has been in existence
from the time Immemorial. According to Manu, a great Hindu Guru, the adoption is important
for every Hindu and has prescribed the manner of following it as under:
He whom his father and mother give to another as his son, provided that the donee has
no issue, if the boy was of the same class and affectionately disposed is considered as
a son given, the gift being confirmed by pouring water.
Similarly, another authority on ancient Hindu religion, Vasistha declares: But let no man give
or accept an only son, since he must remain to rise up a progeny for the obsequies (funeral
service) of ancestors. Nor let a woman give or accept a son, unless with the assent of her lord
(husband). He who means to adopt a son must assemble his kinsmen, give humble notice to
the king, and then having made an oblation (solemn offering) to fire with words from the Veda,
in the midst of his dwelling house, he may receive as his son by adoption boy nearly allied to
him or even one remotely allied.
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Thus, adoption is the gift of a son by a family to another family, as a substitute for failure of
male issue in that family which is having religious sanctity behind it and sustains the
philosophy of reincarnation amongst the Hindus. According to Mulla, a great jurist, adoption
can be described as under: Adoption is the admission of a stranger by birth to the privileges of
a child by a legally recognised form of affiliation. The adopted son is then taken as being born
in new family and he acquires rights, duties and status in the new family and his ties with the
old family become severed.
OBJECT OF ADOPTION
Adoption has both religious characteristics. There were twelve kinds of sons recognised under
the Classical Hindu laws of which five were those of adopted sons. The modern Hindu law
recognized the aurasa or legitimate son begotten by him on the lawfully wedded wife. Of the
adopted sons it recognised only two kinds, the dattaka and the kritrima.The dattaka form
prevailed all over India; the kritrima form prevailed in Mithila and adjoining districts. Like the
ancient law the Adoption and Maintenance Act, also recognizes the adoption both of son and
a daughter.
Adoption under the Act
The Adoption and Maintenance Act,1956 is primary statute governing the law of adoption and
contains a bundle of rules relating to Of a valid capacity and right of a male and female Hindu
to take in adoption a son or daughter who must be a ‘Hindu’, an expression to be understood
in the light of the comprehensive meaning given to it in the Act. It also deals with the subjects
of persons who may give in adoption and persons who may be taken in adoption. It also
provides for certain forms of ceremonies to be followed for the sake adoption. Section 5 of the
Act makes it clear that after the commencement of this Act, no adoption can be permitted
without following the provisions of this Act and any adoption made hereafter shall be null and
void, in case it contravenes any provisions of the Act. An adoption which is void does not
affect the status or rights of any of the parties. It creates no rights in favour of the adoptee boy
or girl in the adoptive family. Nor does the adoptee lose any rights in the family of his or her
birth. Adoptions made prior to the coming into force of the Act on 21st December 1956 are not
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affected by the rules relating to the validity and effect of adoptions contained in this Act. Their
validity and effect must be determined by the law as it stood before the Act came in force.
Valid Adoption—Requirements of Capacity to take in adoption the requirements of valid
adoption under the Act are:

Person competent to give in adoption

1) The person adopting must have the right to take and Actual giving with full intention.
Be lawfully capable of taking a son or daughter in adoption under section 7 and 8 of the
Act;
(2) The person giving in adoption must be lawfully capable of being taken in adoption
under section of the Act;
(3) The person adopted must be lawfully capable of being taken in adoption under
section 10 of the Act;
(4) The conditions relating to adoption including actual giving and taking of the child
with the intention of transferring the child from the family of its birth must be complied
with in terms of section 11 of the
Prior to the enactment of the Hindu Adoption and Maintenance Act in 1956 only a son could
be adopted. Adoption of a female was not permissible except under custom which had to be
established. Even if the name of the alleged adoptive father is given as the father of the girl in
the school certificate or other documents that would not establish that there was a legal
adoption unless a custom permitting adoption of a female child is pleaded and proved. This
was a case (Lalitha v.Parameshwari1) where adoption of a female child was alleged to have
taken place in 1946 i.e., prior to the Act
CAPACITY TO TAKE IN ADOPTION
Section 7 of the Act provides ---
Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a
daughter in adoption Provided that, if he has a wife living, he shall not adopt except with the
consent of his wife unless the wife has completely and finally renounced the world or has
1
2001 Mad 363
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ceased to be a Hindu or has been declared by a court of competent jurisdiction to be unsound

mind.
Explanation:-
If a person has more than one living wife at the time of adoption, the consent of all the wives is
necessary, unless the consent of any one of them is unnecessary for any of the reasons
specified in the preceding proviso. Under section 7 of the Act, a married male Hindu has to
take his wife’s consent for adopting a child and in case of more than one wife the consent of
all the wives is required unless the consent of the wife/wives is not necessary under the
provisions of the Act. There is however no rider on a widow’s right to take in adoption without
consulting her co-widows. This issue came up for determination in Vijayalakshmamma v.
B.T.Shankar 2 where a senior widow took a male child in adoption without consulting the junior
widow. The adoption was challenged as being invalid. It was contended that the stipulation in
the proviso to section 7 with the explanation requiring consent of all wives should be read into
section 8 as well which refers to the capacity of a female Hindu to take in adoption. The court,
however, did not accept this plea and held that the deliberate omission as regards requirement
of consent from a co or junior widow was an indication of Parliament’s intention to give
independent authority to a female in this matter. This is in keeping with the changing social set
recognizing equal rights and status for women. The apex court observed:
To subject the exercise of power by senior widow to adopt conditioned upon the consent of the
junior widow where the Hindu male died leaving behind two widows with no progeny of his
own, would render the exercise of power more cumbersome and paradoxical, leaving at times,
such exercise of power to adopt only next to impossibility.
That apart, the court held that in any case no injustice would be caused to a co-widow whose
consent is not obtained nor required to be obtained by the law since the adopted child would
not divest any person of any estate vested in him or her before adoption. In this case, the
husband had died in 1968 so under the provisions of Hindu Succession Act, all the widows
inherited the properties in equal share. The adoption by one widow did not affect the share of
the other widow. The court in this case referred to Nariana Swami Naick v.Mangamal decided
2
(AIR 2001 SC 1424)
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by a division bench of the Madras High Court way back in 1905 where it was held that while
for family peace and good relationship a senior widow should do well to consult the younger
one before adopting but there is nothing in law which compels her to do so and the adoption
would be valid.
Factum of adoption
The Adoption and Maintenance Act does not provide for elaborate formalities for adoption still
some fact has to be shown. The apex Court in a case captioned, Ram D v.Gandhiabai 3 where
a significant point regarding the factum of marriage was involved. The petitioner filed the suit
for partition against his deceased father’s brother who alleged that the petitioner had no right
as he was no longer a member of the family because he had been given away in adoption
to a man whom his mother later married. The court held that simply because the step-father
spent money on his maintenance does not by itself imply that he had been adopted by the
step-father. It was accordingly held that even though he was brought up by the step father he
continued to be the member of the deceased father’s family and had all the rights of a son of
that family.
CAPACITY TO GIVE IN ADOPTION
Section 9 of the Act specifies the persons who are legally entitled to give a son or a daughter
in adoption does not make any substantial changes in the law previously applicable to Hindus
except that under the previous law the only persons could lawfully give a son in adoption were
his father and mother. The present section principally confines the capacity to give a son or
daughter in adoption to the father and the mother of the child but it also rules that where both
the father and mother of the child are dead or disabled from exercising the right by reason of
mental incapacity or renunciation of the world, etc. the guardian of the child can give the child
in adoption with the previous permission of the court. When both the parents are dead, or
have renounced the world or have abandoned the child or have declared by a court to be of
unsound mind or where the parents of the child are not known, the guardian has the right to
give the child in adoption. But he will do so only with the permission of the court. The court
shall while according such permission satisfy itself that—
3
(AIR1997)
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(i) Welfare of the child, both physical and moral is safeguarded. It shall scrutinize
the where withal of the guardian, his qualification to adopt a child etc.
(ii) Wishes of the child may also be obtained in case the ward is intelligent
enough to give such consent.
(iii) The guardian is not doing it for the sake of some monetary consideration the
applicant has not been offered money by somebody else to take in adoption.
In case of any violation committed by guardian under conditions stipulated in section 9 of the
Act, he can be punished under section 17 of the Act. It may be noted that any agreement to
give consideration for giving a son or daughter in adoption contrary to public policy as
amounting to trafficking in children. The parliament has taken a serious view of the matter and
prohibits in this section the giving and receiving of any payment or reward by any person in
consideration of adoption of any person.
CAPACITY OF THE PERSON TO BE ADOPTED
Section 10 of the Act specifies the persons who are eligible under the Act to be adopted. The
section reads:
No person shall be capable of being taken in adoption unless the following conditions
are fulfilled, namely:-
i. he or she is a Hindu;
ii. he or she has not already been adopted;
iii. he or she has not been married ,unless there is a custom or usage
applicable to the parties which permits persons who are married being taken in
adoption;
iv. He or she has not completed the age of fifteen years, unless there is a
custom or usage applicable to the parties which permits persons who have
completed the age of fifteen years being taken in adoption.
The present section lays down some simple rules of uniform applicability to all Hindus, the
expression Hindus being understood in the wide connotation given to it by section 2.Under the
previous law it was necessary that the person to be adopted had to belong to the same caste
as his adoptive father; thus a Brahmin could not adopt a Kshatriya, a Vaishya or a Sudra. No
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such restrictions are imposing by the Act and the limitations pertaining to the caste of the child
to be adopted are abolished. All that is now required is that the boy or girl to be adopted must
be a Hindu whether a Hindu, which expression has to be understood in the very wide
connotation given to it by section 2.It is, therefore, permissible now to a Hindu whether by
religion and belonging to any caste, or Jain, or a Buddhist or a Sikh to take in adoption a boy
or a girl who is a ‘Hindu’ in that expansive sense and regardless of the caste of the boy or the
girl.
Proof of adoption whether implied
The Calcutta High Court had to deal with a peculiar case of adoption where the adoptive
mother sought decree for declaration of absolute right in the property of her adoptive son who
merely her live therein .The court in this case, namely Prafulla Bala Mukerjee v. Satish
Chandra Mukerjee 4 held that the mere fact that an allegedly adopted son allowed his
adoptive’ mother and her family to live in his house was no proof of adoption. On the contrary
there were several facts to disprove adoption like-the adopted considering his natural mother
as his mother till his own death, making her his nominee in the insurance policy, provident
fund etc., performing the shradha ceremony of the real father and on his own death his
shradha ceremony being performed by his brother. Similarly in Suma Bewa v. Kunja Bihar
Nayak5, the plea of adoption was rejected as there was no proof of adoption whatsoever under
section 6 of the Act. There was no document executed by the parties in support of the alleged
adoption, nor any other document recording name of adopted son as son of adoptive father.
On the other hand the voter’s list indicated the name of the natural father. Besides oral
evidence was found to be suspicious. Even there was no proof of the adoptive father and
adopted son living together. Under such circumstances the only inference can be drawn that
there existed no valid adoption.

4
(AIR 1998 Cal 86)
5
(AIR 1998 Ori 29)
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CONDITIONS FOR A VALID ADOPTION

Section 11 of the Act is very significant section as it regulates the institution of adoption
according to law, equity and justice. Section 11 reads: In every adoption, the following
conditions must be complied with: -
(1)if the adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son, son’s son or son’s son’s son
(Whether by legitimate blood relationship or by adoption) living at the time
of adoption;
(2) If the adoption is of a daughter, the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or son’s daughter (whether
by legitimate blood relationship or by adoption) living at the time of adoption;
(3) If the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty-one years older than the person to be adopted;
(4) If the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty-one years older than the person to be
adopted;
(5) The same child may not be adopted simultaneously by two or more persons;
(6) the child to be adopted must be actually given and taken in adoption by the
parents or guardian concerned or under their authority with intent to transfer
the child from the family of its birth or in case of an abandoned child or a child whose
parentage is not known, from the place or family where it has been brought up to the family of
its adoption: Provided that the performance of datta homam shall not be essential to the
validity of adoption.
As noted above, the objects of adoption of a son by a Hindu are twofold. The first is religious,
to secure spiritual benefit to the adopter and his ancestors by having a son for the purpose of
offering funeral cakes and oblations of water to the names of the adopter and his ancestors.
The second is secular, to secure an heir and perpetuate the adopter’s name. Hindu law at one
time recognized twelve kinds of sons of which there were five kinds of adopted sons.
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EFFECTS OF ADOPTION
According to section 12 of the Act the adoption has certain vital effects and results which may
be briefly enumerated as follows:
1. Transferring of the adopted boy or girl from his or her natural family into the
adoptive family;
2. Conferment of same rights on the adoptee as enjoyed by the natural born
child in the said family;
3. The adoptee deemed to have born in the adoptive family and all his ties with
his original family deemed to cease;
4. Any property which vested in the adopted child before the adoption shall
continue to remain in such person subject to the obligation, if any, attaching
to the ownership of such property, including the obligations to maintain
relation in the family of his or her birth.
5. The adopted child shall not divest any person of any estate, which vested in
him or her before the adoption.
Perceived as a religious and spiritual act under the classical law and post-1956, an extremely
important facility for the childless couples yearning for parenthood, as also for the orphans to
get a home of their own, the issue of adoption of late has become more of a property grabbing
mechanism san the pious objectives. Feigned adoption deeds in order to lay claim over the
property or clinging to the biological family despite being given in adoption, with an eye on the
natural father’s assets, are common features of materialistic world of today with relations
having little solace for each other. In Khidmat Singh v. Joginder Singh6 the father had
executed a will of his property in favour of one of the sons. The other, who had been given in
adoption, challenged it saying that the father was incompetent to do so as the same were
coparcenary property and thus he also had a share in it. The claim of the son was dismissed
by the court citing two reasons, firstly, that post adoption, the son had no right in the property
of the biological father, and second, that it was not the coparcenary but the separate property
of the father and thus he was competent to make a will of the same in favour of any one. This
6
AIR 2010 (NOC) 617 (P&H).
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judgment though ended correctly raises important issues of the effects of adoption, and bares
the lack of clarification over the very legislative permissibility of testamentary disposition of
coparcenary property by an undivided coparcener. Adoption under the present Act constitutes
an irreversible act and once a child is given in adoption, presumption of his death for the
biological parents, and a re-birth in the adoptive family are legally conclusive. Under the
present law, whether it was the separate property or a share in the coparcenary property , the
father is competent to bequeath the same and a son ,who ceases to be part of the natural
family after his adoption , cannot challenge its validity.7
Proxy adoption
The Punjab and Haryana High Court had to deal with an interesting situation in Narinderjit
Kaur v. Union of India 8 wherein the issue raised was that of adoption by proxy and the effect
of remarriage of a divorced Hindu woman on her right to adopt. The facts, briefly stated were
thus. A divorced Hindu woman adopted a female child through her attorney and brother-in-law
in whose favour she had executed a special power of attorney. All the formalities of physically
handing over by the natural parents and taking of child by the mother’s attorney for being
handed over to her, and ceremonies were performed. A registered deed of adoption was also
executed. The passport officer (defendant), however, refused to issue a new passport to the
child with the adoptive mother’s name, on the ground that an adoption made by a proxy was
not valid in Indian law. Later on, however, in the written statement the defendant agreed that
the Law Ministry had clarified that the child could be given/taken in adoption by parents,
guardian ‘under their authority’ but a fresh objection was raised viz. That the adoptive mother
having remarried she had no authority to adopt and so passport for the child with the adoptive
mother’s name could not be issued. The court, after going through the facts came to the
conclusion that the respondent’s plea was untenable as the adoptive mother had remarried in
1994 whereas the adoption took place in 1990.Thus, on the date of adoption and her
subsequent remarriage cannot invalidate the adoption. The adopted daughter was held
entitled to a new passport with the name of the adoptive mother inserted in it.

7
See P P Saxena, Hindu Law, Annual Survey of India 2010 at 386.
8
(AIR 1997 P&H 280)
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Constitutional vires of section 11

What is the effect of conditional ties put on the right of a person to adopt and whether this
section is constitutionally valid came into focus in a significant case reported as Sandhya v.
Union of India 9 where section of the Act came under close scrutiny of the Bombay High Court.
Under this section adoption of more than one child of the same gender is not permitted. In fact
even when one has a biological child of that gender, adoption is not permissible. In this case
the petitioner who had already adopted a daughter were prevented from taking another female
child in adoption in view of the provision of section 11(I) and (ii) of the Act. The validity of the
section was challenged on the ground that it violated articles 14 and 21 of the constitution. It
was argued that, since it discriminated between (a) parents with unlimited number of children
and parents without children, (b) between a child adopted and a child to be adopted,(c)
between parents with any number of children of the same sex and parents prevented from
taking any child of same sex in adoption, it was against the equality provision of articles 14 .It
was also against the human dignity as contemplated under article 21 of the constitution. The
court did not find favour with either of the two arguments. The court observed:
Article 21, even by stretching it to its farthest end cannot embrace such right of having
size of family according to one’s own choice person could have any number of
biological children, by Grace of God. That does not certainly render support to claim to
have any number of children by adoption...The Act with its mythological and secular
mission has stood the test of time for around four decades and has conveniently
withstood the assault as attempted from time to time. We, therefore, refrain from
examining validity of the impugned provisions on the touchstone of Arts.14 and 21.
The judgment of the court has far reaching effect as the institution of adoption can be used for
extraneous reasons, in case the refrain as suggested by the court is not adhered to. Adoption
of girls for ulterior and dubious reasons cannot be checked unless there is blanket ban on
adoption beyond one child especially the female one and that too when, it is found most
desirable. It may also minimize discrimination of adopted children by the unsavory people.

9
(AIR 1998 Bom.228)
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Non divesture
A child given in adoption after the death of his father does not lose the right and title in the
coparcenary property, which devolves on him immediately on death of his father. This was
held by Rajasthan High Court in Revti v. Board of Revenue, Ajmer 10 wherein the father died in
1918 and the son was given in adoption in 1938, it was held that upon adoption, his right to
property would not be affected. Even his own statement to the effect that upon adoption he
has lost right, title and interest in the properties would not affect the right already vested in
him. Any statement made by the said regarding his entitlement will have no effect in case it is
against law.
Ceremonies of adoption
While performance of any ceremonies, including datta homam, is not an essential
requirement for adoption, nonetheless there must be some evidence of actual giving and
taking of the child in adoption. In Nilima Mukerjee v. Kanta BhushanGhosh11 ,a landlord filed
an eviction petition against the appellant who was a relative of the tenant and used to stay in
the suit premises on the ground that after the death of the tenant, the tenancy had become
extinct and the appellant was a trespasser. The latter raised an objection that she was
adopted by the deceased and the fact that she had a joint bank account with him was an
indication of the same. Apart from this, there was no document, no ceremony, nor any
evidence that she was actually given in adoption by her father and taken in adoption by the
deceased tenant. The court held that mere fact of having joint account was no proof of
adoption and accordingly, she could not be considered to be the adopted daughter of the
deceased tenant.
Customary adoption
Long recognition of a child as an adopted child cannot give validity to an adoption which is
otherwise prohibited. Thus, in Satya Gupta v. Om Prakash Gupta12 where custom was
pleaded in support of adoption of a son after the upanayan(thread) ceremony but the evidence
produced was insufficient and ambiguous, it was held that the burden of proving the custom

10
(1998 AIHC 4507)
11
(AIR 2001 Supreme Court 2725)
12
(2001 AIHC1276,All)
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was not discharged. In spite of the fact that the son was since long recognised as the adopted
son, the court refused to accept the adoption. In fact, even a person who himself or herself is a
party to an adoption which is legally not permissible can challenge the adoption as there can
be no estoppels against law.
Likewise in Ranjit Kumar Jain v.Kamal Kumar Chowdhury13 where validity of adoption of a
daughter’s son was challenged on the ground that it was against the rule of prohibited degrees
and the plaintiff failed to prove community custom that allowed such adoption, the adoption
was held to be invalid.
DOCTRINE OF RELATION BACK
The doctrine of relation back owes its origin to the classical Hindu law under which there was
a fiction of law under which a son adopted by a widow was deemed to have been adopted
from the date of death of the father. It is rather anachronistic (improper) that the doctrine is
being invoked even after the enactment of the Hindu Adoption and Maintenance Act which has
already abrogated the doctrine. In Heera Lal v. Board of Revenue 14 the rights of a son
adopted by a widow, in the coparcenary in which the deceased father to whom the child was
adopted, was one of the coparceners. When the coparcener died in 1910, the other surviving
coparceners got the property mutated in their name. The widow adopted a son in 1959 i.e.
after the coming into force of the in1956.The son sought his share in the joint family property
on the basis of the fiction of law which relates back the adoption to the date of father’s death
whereupon the adopted son steps into the shoes of his father. Against this, it was argued that
the property already vested in the surviving coparceners in 1910 and they could not be
divested by the son who was adopted in 1959 in view of the provisions of section 12 of the
Act.The court, however, did not accept this contention. It held that the adoption by the widow
would divest the other coparceners and their legal representatives of the interest of her
husband in the joint family property notwithstanding the partition amongst the surviving
coparceners after the death of her husband. Thus, the adopted son was held to be entitled to
the shares of his deceased father in the joint family property. Not this alone the court went

13
(2001 AIHC 3167)
14
(AIR 2001 Raj 318)
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further still and held that since he was not given his due share and he was compelled to
litigate in civil court for nearly 35 years, it was a fit case for awarding exemplary costs.
Krishtappa v. Ananta Kalappa Jarata Khare 15 was another case where the doctrine of relation
back was invoked divesting daughters and widow of the deceased of properties that came to
be vested in them. The father, in this case, died in1930 whereupon his widow and two
daughters succeeded to the suit properties as heirs. The widow adopted a son who was born
in 1933, in 1953.It was held that the daughters would be divested of the suit property
belonging to the deceased father and the adopted son would become the exclusive owner.
The plea that the son who was born in 1933 was even in existence in 1930 when the father
died and, therefore, the property which vested in the widow and two daughters could not be
divested from them by virtue of the adoption in 1953, was not accepted. The court held that:
an adopted son is entitled to take in defeasance by the rights acquired prior to his adoption on
the ground that in the eye of law his adoption relates back by a legal fiction to the date of
death of his adoptive father, he being put in position of a posthumous son. As such the
appellant must be deemed to have been in existence as the son of his adoptive father at the
time of latter’s death by virtue of the said legal fiction.
The cases decided on the doctrine of relation back seem to be passed in violation of section
12 of the Act which clearly forbids any legal fiction created by the doctrine of relation back
.According to the legal experts these cases may have the effect of creating certain
unmanageable problems by allowing divesture of property after a long period of time .The
best course suggested here is to adopt the doctrine in the background of section 12 of the
Adoption and Maintenance Act and not in derogation of it.
Adoption does not automatically take away the adoptive parent’s rights to will away their
property .According to section 13 rights of adoptive parents to dispose of their property does
get extinguished. It reads:
Subject to any agreement to the contrary, an adoption does not deprive the adoptive
father or mother of the power to dispose of his or her property by transfer inter vivo or by will.

15
(AIR2001 Kant 322)
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Adoption by A Hindu Female

Under the Act a female has a right to take in adoption without any legal infirmity.
Section 8 of the Act reads: Any female Hindu—
(a) who is of sound mind,
(b) Who is not a minor, and
(c) Who is not married, or if married, whose marriage has been dissolved or whose
husband is dead or has completely and finally renounced the world or has
ceased to be a Hindu or has been declared by a court of competent jurisdiction
to be unsound mind, has the capacity to take a son or daughter in adoption.
This section brings about a very important and far-reaching change in the law of adoption as
hitherto applied in case of Hindus. It is competent now to a female Hindu who is of sound mind
and has completed the age of eighteen years to take a son or a daughter in adoption to
herself, in her own right provided- she is not married; or is a widow; or is a legally divorcee; or
if married, her husband has finally renounced the world, or ceased to be a Hindu or has been
declared to be of unsound mind by a court having jurisdiction to pass a declaratory decree to
that effect.
The Hindu Adoption and Maintenance Act, 1956, while systematizing and extensively
modifying the classical adoption law have switched its primary purpose from purely religious/
spiritual to secular. Thus prior to 1956, amongst females the capability to adopt a son vested
in a Hind widow but conditional upon the permissibility of the same coming from the deceased
husband or his sapindas.16 Post 1956, this qualified power was liberalized and she acquired
competence to adopt a child in her own right. However, due to operation of the doctrine of
relation back, the confusion persisted about the date of legal entry of the adopted child in the
new family: whether the child would be deemed to be borne in the new family from the date of
adoption or due to operation of the doctrine of relation back would be treated as in existence
on the date of death of the adopted father, even though he in reality might not have been born.
The issue rose in connection with the family pension to be awarded to the next of kin of a

16
See Siddalingaiah v. H.K. Kariappa, AIR 2009 (NOC) 888 Karn., wherein it was held that the consent of the
sapindas was no longer required under the changed circumstances.
 16

freedom fighter, who died in 1952 leaving behind his widow and a daughter.17 The family
pension as per rules was sanctioned to his widow that she received till her death in 1998. A
little before her death, i.e., on 28 Oct.1997, she allegedly adopted a seven year old son of her
own daughter through a registered adoption deed. This child, after death applied for the grant
of family pension, which according to rules could be granted to the widow of the freedom
fighter and then to the minor son. This application was forwarded to the concerned authorities
and the district magistrate in 2008 who rejected the same on two grounds, firstly, that a Hindu
woman cannot adopt the son of her own daughter, so the adoption in itself was invalid, and
secondly, that this child born 45 years after the death of the freedom fighter was neither his
son nor was entitled to any benefit due to family of the freedom fighter by way of pension
grants. The court was confronted with these primary issues:
i. Can a person validly take her daughter’s son in adoption?
ii. Was the adoption made by the widow valid?
iii. What is the effective date of adoption in the light of legal fiction of the doctrine of
relation back?
iv. Is it the date of adoption in the adoptive family or is it the date of death of the husband
of the widow, more so where death was much prior to the date of adoption?
With respect to the first and second issues, the court noted that the shastric Hindu law
prohibited adoption of son of the sister, daughter or mother’s sister. Only such son could be
adopted who could have been begotten by the adopter through Niyoga and child could be
adopted whose mother in her maiden state , the adopter could not have legally married. This
invalidation of adoption on account of Viruddh sambandh as also the impediment on the
explicitly and presently such a child can validly be taken in adoption capacity of females to
take a child in adoption was removed by the Act. On the other issues the court held that in the
instant case the legal fiction of relation back would not be applicable, as the child was adopted
45 years after the death of the husband. The court observed:18

17
Abhishek Sharma v. State of U.P. ,AIR 2009 All 77.
18
See also Namdev Vyankat v. Chandrakant , AIR 2003 SC 1735, relied upon by the court in this regard.
 17

There is specific change in the scheme of the Act as reflected in section 12. The
adopted child is deemed to be the child of his adoptive father or mother with effect from
the date of adoption. Earlier shastric law treated adoption as adoption even if the
adoptive father died earlier. However, the apex court in Namdev Vyankat v.
Chandakant , with respect to the consequences of adoption held ‘it is plain and clear
that adopted child shall be deemed to be the child of his or her adopted father or
mother for all purposes with effect from the date of adoption as is evident from the main
part of section 12. The proviso of the same section in clear terms states that the
adopted child shall not divest any person of any estate, which vested in him or her
before adoption. The adopted child therefore is not to be treated as far as the date of
inclusion in the adoptive family is concerned as the natural born child but he is deemed
to be born in the adoptive family from the date of adoption only19.
A contrary view on the same issue however, came from the Bombay High Court wherein
applying the doctrine of relation back the court treated the adopted child in existence on the
date of the death of adoptive father. It resulted in his acquiring the interest of the adoptive
father in his property to the complete exclusion of his natural born daughters. The facts
showed that a Hindu man died in 194820, leaving behind three widows and four daughters.
Upon his death ,his widows and daughters took possession of the property. However, one of
the widows adopted a son a year later and then remarried. This adopted son filed a suit in
1950, for a declaration that he was the sole owner of the complete property left by the adopted
father and a further relief of recovery of possession of the property that was in the hands of the
two widows and daughters. The daughters contended that the property had already vested in
them, and a subsequent adoption could not divest them of the property and the doctrine of
relation back did not apply as adoption was effected subsequent to the death of the deceased
father whose property he was claiming. The trial court ruled in his favour .Subsequently,
according to the sisters sued him for the other half of the property. The court held that only the
son would be the exclusive owner of the property and the widows and the daughters of the

19
In Rajendra Kumar v. Kalyan (2000) 8 SCC 99.
20
Nivrutti Kushaba BInnar v. Sakhubai, AIR 2009 Bom. 93.
 18

deceased could claim only maintenance out of this property. The court further held that as the
widows were not the owner of the property, in any capacity not even as the limited owner,
these maintenance rights would not mature into full-fledged ownership rights in
1956.Consequently, the son alone would continue to be the owner of the property. The claim
of the daughters were dismissed on the ground that due to the application of the relation back,
the adopted son was deemed to be in existence at the time of death of the adopted father. As
the daughters were not heirs, there was no vesting of the property in their favour and to
contend that adopted child cannot legally divest any person of the property already vested in
them could not be applied here21.
Adoption by husband without consent of wife
Amongst married couples, adoption is an act based on a mutual decision and its unilateral
exercise is limited to cases where one spouse suffers from a legal disability making his/her
consent irrelevant. Legal permissibility to adopt vests in a single woman or a man , but
amongst married couples , it is only the husband who can do so though only with the consent
of his wife unless the wife is judicially disqualified to give her consent. If the wife refuses, the
husband cannot go ahead legally with this adoption.22 Identical rules apply where the child is
given in adoption. The father can give the child but only with the consent of the mother unless
her consent is not required in law.23 An adoption where the child was given by natural father
but without the consent of the mother is invalid under the Hindu Adoption and Maintenance
Act. The issue came up for adjudication before the court24 in connection with the alleged
adoption of an only son effected through a registered adoption deed but without the consent of
the biological mother. The facts showed that an old lady who owned a house inducted tenants
in the same but soon thereafter both the parties were embroiled in bitter multiple litigations.
The lady filed, amongst others, a suit for eviction against the tenant. However, upon her death,
a claim to the house was put forward by the tenant’s son contending that when he was 12

21
Poonam Pradhan Saxena , Hindu Law , Annual Survey Of India, vol. XLV 2009 at 462.
22
Sarabjeet Kour v. Gurmel Kour, AIR 2009 NOC 889 (P&H).
23
The consent of the mother is not required if she ceases to be a Hindu; or has finally and completely renounced the
world or has been declared by a court of complete jurisdiction to be of unsound mind.
24
Deen Dayal v. Sanjeev Kumar, AIR 2009 Raj. 122.
 19

years old, the deceased had adopted him through a registered adoption deed. The heirs of the
lady refuted this claim on the ground that:
(i) The alleged adopted child and his family were neither the relatives nor knew the
deceased before their introduction as tenant in the disputed house.
(ii) Their relations towards each other were bitter, as the widow had filed several cases
against the tenant in the court.
(iii) Their caste and gotra were different from that of the lady; the child was the only son
having two sisters in the biological family.
(iv) No ceremony of giving and taking of the child in adoption were performed.
(v) No witness was present at the time of the alleged adoption.
(vi) And above all, even the mother of the child was neither present nor gave her consent
to this alleged adoption.

The court rejected the claim by the tenant’s son. It noted25 that on the face of it appears highly
implausible that a father would give his only son in adoption.
In Ghisalal v. Dhapubai26the Supreme Court had to deal with a matter where the father had
through a registered deed given his son in adoption after observing all the ceremonies. The
adpted father had inherited certain landed property from his late father and had gifted some of
it to his wife and sold another portion of it to a third person. The adopted son challenged the
disposition of the property by the adopted father on the ground of coparcenary rights. The
court formulated two main issues in this case, firstly, whether the adoption of the petitioner by
adopted father was in accordance with law and secondly, what was the character of the
property in the hands of the adopted father. If the adoption was validly effected then the
adopted son would be transported to adopted father’s family as his son for all purposes
including becoming a coparcener, but if the court concluded that the adoption in itself was not
valid, then the second issue needed no exploration. The trial court concluded that the
properties in the hands of adopted father were ancestral in character; the wife’s presence at

25
Id. At 126
26
AIR 2011 SC 644.
 20

the site of adoption was equivalent to her consent perfecting adoption and since the petitioner
was validly adopted, the deeds executed by him in favour of third persons were without any
legal effect. The high court confirmed the judgment and declared the petitioner as the
representative of W, the owner of half of the property. The apex court however, reversed the
judgment and observed27:
Adoption is to be effected by the father but with the consent of his wife. Consent of the
wife envisaged in section 7 proviso should be in writing or reflected by an affirmative
/positive act voluntarily and willingly done by her. If adoption, by a Hindu male becomes
subject matter of challenge before the court, the party supporting adoption has to
adduce evidence to prove that the same was done either by producing document
evidencing her consent in writing or by leading evidence to show that the wife had
actively participated in ceremonies of adoption with an affirmative mindset to support
the action of the husband to take a son or daughter in adoption. The presence of wife
as spectator in assembly of people who gather at place where ceremonies of adoption
are performed cannot be treated as her consent; court cannot presume the consent of
the wife simply because she was present at the time of adoption. The wife’s silence or
lack of protest on her part also cannot give rise to an inference that she had consented
to adoption.
Limitation period to challenge the validity of adoption
The validity of adoption can be challenged within a reasonable time. However, often the
factum of adoption is challenged when succession to the property is to be decided. By then,
considerable time would have elapsed and it becomes difficult to bring in the proof of adoption,
more so when the adoptive parent is dead. The Karnataka High Court held28that the moment
adoption deed is registered; the parties to the adoption would have a constructive notice of the
same. Thus, a suit challenging this adoption, filed after 40 years after its registration, would be
barred by limitation. Even if limitation is not set up as a defense, it becomes the duty of the

27
Id at 652, para 20.
28
Siddalingaiah v. H K Kariappa, AIR 2009 (NOC) 888 Kar.
 21

court to take note of it and dismiss the suit. The court further held that there can be no bar to
raise the plea of limitation even at the stage of second appeal.
Adoption of a child who is above the age of 15 years
Statutory accommodation to contrary customs and availing their benefits in all eventualities
may not be a smooth ride in the light of the requirement of their stringent proof. The Hindu
Adoption and Maintenance Act, 1956 provides the maximum age of the child as 15 years for a
valid adoption, yet makes room for its contravention if the custom prevailing in the community
permits so. The courts are often confronted with the issue of validity of adoption, where the
person at the time of adoption was above 15 years but pleads a contrary custom in his
community. In Amit Chandhabhai Chouhan v. Ahmedabad Municipal Corporation29 the High
court of Gujarat rejected the contention of the petitioner, who had attained the age of 24 years,
that his adoption under custom in his community beyond the age of 15 years was a valid one.
The court focused on the validity of adoption in valimiki community based on custom beyond
the age of 15 years, which was not endorsed by authentic proof. In another case30 apex court
had to deal with a case which involved adoption of an 18 years old male. He filed the petition
claiming the property of the alleged adopted father on the ground that since he died intestate,
he being the adopted child was entitled to the complete property. The claim was resisted by
the other relatives of the deceased who challenged the validity of adoption on the ground that
since the claimant was above the age of 15 years on the date of adoption, the same would not
be valid under the Act. Adoption was through a registered deed that stated that the natural
parents of the claimant aged 18 years had given him in adoption in presence of the elders to
Anne Seetharamaiah who was issueless in accordance with the provisions of the Hindu
Adoptions and Maintenance Act 1956. The court accepted the adoption as valid, in view of the
statutory exception made in favour of the custom to the contrary.31

29
AIR 2011 Guj 145.
30
Atluri Brahmanandam v. Anne Sai Bapuji, AIR 2011 SC 545.
31
The court relied on Ujagar Singh v. Jeo, AIR 1959 SC 1041.
 22

J&K HINDU ADOPTION AND MAINTENANCE ACT, 1960

Like other matrimonial laws, the present Act also came to be passed on the edifice of the
central Act pertaining to the adoption and maintenance. Since the institution of Adoption is a
well settled concept of the Hindu Philosophy so it is followed with all fervor and favour in all
parts of India including the Hindus of Jammu and Kashmir as well. The local Act came into
force on 9th of March, 1960 applicable in the whole of J&K state. The Act inter alia provides for
the application & administration of the adoption & maintenance on the same lines as
discussed in case of the central Act. This Act has tried to regulate the testamentary disposition
by declaring in clear terms that it shall be the Mitakshara doctrine which shall govern the right
of deposition of a Hindu coparcener. To conclude adoption is indispensable.

Hindu Law of Maintenance

Introduction
We saw in the last chapter how the institution of adoption came to be regulated under the
enactment of the Hindu Adoption and Maintenance Act and also the need for its enactment. In
the present chapter we will try to know the other facet of this Act i.e. law of maintenance. We
will try to understand the general principles of maintenance, the persons liable to pay it, the
persons entitled to receive it and the conditions under which it is payable. It will also be our
endeavor to highlight legal, economic and social dimensions of this institution, especially the
role of courts to delineate its contours and parameters. 'Maintenance ‘means the necessities
of life that a person is legally bound to provide to another person in discharge of that duty,
which in turn entitles the beneficiary to get that, maintained necessarily by person. Now the
question arises what does this term legally connote. According to Section 3(b) of the Hindu
Adoption and Maintenance Act, 1956, the term ‘maintenance’ Includes---
i. In all cases, provision for clothing, residence, and education and medical
attendance and treatment;
 23

ii. In the case of an unmarried daughter, also reasonable expenses of and

incident to her marriage;
The definition of maintenance is so worded that it rendered applicable to the case of all
entitled to claim maintenance under the various provisions of the Act, in case of unmarried
daughter it includes both maintenance and reasonable expenses of and incidental to the
marriage.
Maintenance of wife
The right of the wife emanates from the special tie with which she gets bound the legally
wedded wife of her husband to the Exclusion of all others .The obligations to maintain the wife
are in character and arise from the very existence of the relation between the parties.
Section 18 of the Act reiterates the right of wife to maintenance as under:
i. Subject to the provisions of this section wife, whether married before or after
the commencement of this Act, shall be entitled to be maintained by her husband
during her lifetime.
ii. A Hindu wife shall be entitled to live separately from husband without forfeiting
her claim to maintenance;
(a) if he is guilty of desertion ,that is to abandoning her
without reasonable cause and without her consent or
against her wish, or of willfully neglecting her;
(b) if he has treated her with such cruelty as to cause a
reasonable apprehension in her mind that it will be
harmful or injurious 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;
 24

(g) If there is any other cause justifying her living

separately?
The rule laid down in the section cannot, however, be said to be absolute although the right
exists independently of the possession of any property by the husband ancestral or self-
acquired. The rule laid down in this section is subject to the exceptions stated in sub-
section(3) which lays down that wife cannot claim separate residence and maintenance if she
is unchaste or ceases to be Hindu by conversion to religion. The section has to be read with
section 23 of the Act which lays down that it shall be in the discretion of the court any, and if
so what, maintenance shall be awarded under the provisions of this Act.

Hindu law of Maintenance-Historical Perspective

As noted above the law of maintenance has come to be regulated in India under the Hindu
Adoption Maintenance Act, 1956 in its modern shape and size. But the institution of
maintenance has a not only a social background based on a vital edifice, it has religious
overtones as well. According to Manu the maintenance of aged parents virtuous wife and an
infant must be maintained even by doing a hundred misdeeds. According to Mulla, the
doctrine of maintenance has always been favored by Hindu jurisprudence. They speak of and
insist upon maintenance and support of various members of the family and lay down an
elaborate number of injunctions on a solid basis.
Modern Hindu law recognizes the rule that a Hindu is under a legal obligation to maintain his
wife, his minor sons, his unmarried daughters and his aged parents whether he possesses
any property or not. The obligations to maintain these persons are personal in character and
this obligation has to be discharged in every case.
According to Prof. Paras Diwan, the maintenance of the aged parents, infant children and wife
is considered to be the greatest duty of a person. This is based on a general belief of a Hindu
that if he faithfully discharges this duty, he will get nirvana and bliss of the Brahma and the
gates of heaven remain wide open for that person.
 25

Maintenance under Hindu marriage Act

Section 24 of the Hindu Marriage Act, 1955 provides for the grant of maintenance pending
litigation and also litigation expenses where it appears to the court that the petitioner has no
independent sufficient income for her or his support and the necessary expenses to conduct
proceeding. The use of the word “support’ in the section does not mean bare subsistence. It
means that the claimant spouse should be able to live more or less in comfort, as the other
spouse. This issue was agitated in V.Usha Rani V .K.L.N.Roa32 where both the spouses had
independent income but income of the husband was higher. She filed an application claiming
Rs.10, 000/-per month plus Rs.15, 000/-towards litigation expenses. Relying on Gurveen kaur
v. Ranjit Singh Sandhu33. It was argued that she was entitled to be maintained in the same
standard of living even if her personal earning was less than her husband’s or no earnings at
all. On the other hand, it was contended on behalf of husband that an application under this
section could be granted only if the applicant was unable to maintain or incur litigation
expenses. The court rejected husband’s argument. While conceding that section 24 could not
be intended to bring about arithmetical equality between the two, it remarked that the ‘word
‘support should not be so narrowly interpreted. It does not mean bare existence. It means that
the spouse be in so much comfort as the other spouse is. In the facts of the case, the court
allowed Rs.2000/-per month to her to make her feel “more comfortable” and Rs.5000/- as
expenses.
Voluntary incapacitation
Under the provisions of the Hindu Marriage Act, both the spouses have a right to make an
application provided the applicant has no means and the non-applicant is in a position to pay.
Thus, where husband resigned his job and made an application under section 24 of the Hindu
Marriage Act for maintenance from the wife, the trial court held that the petitioner was capable
of getting a job and earning enough for self sustenance. Besides, the wife with her carry-home
salary of Rs.4725 was maintaining not only her own self but also her two years old son.
Moreover, the applicant had received enough money by way of provident fund and other dues

32
(AIR 2001 P&H 371)
33
(1990 1 L.R.672)
 26

after he resigned his job. The revision application by the husband was dismissed. The court in
this case, namely Yashpal Singh Thakur v. Anjana Rajput 34 remarked: It can be irrefutably
concluded that the husband petitioner has by his own conduct decided to a leisurely life and
has made no attempt to money which he is capable of earning. He cannot afford to
incapacitate himself and file an application under section 24 of the Act.It will be an anathema
to the very purpose of the provision.
In D.Balakrishishnan v. Pavalamani 35 a wife’s claim for permanent alimony was rejected as
she had not made any proper application under section 25, furnishing details of her own and
other party’s income. She had got interim maintenance and prayed for permanent alimony by
way of a request, which was made at the time of the disposal of the divorce appeal. A Hindu
wife is entitled to maintenance under two statutes viz. the Hindu Marriage Act, 1955 and Hindu
Adoption and Maintenance Act, 1956.While in the former, she can seek maintenance when
proceedings under that Act are filed/pending, under the latter Act, she may ask for
maintenance even in the absence of any matrimonial proceedings. Now let us try to explore
the difference maintenance and alimony in order to understand its effect on the maintenance
by a wife.
Permanent Alimony and Maintenance
Section 25 of the Hindu Marriage Act, reads:
(I) Any court exercising jurisdiction under this Act may, at the time of passing
any decree or at any time subsequent thereto, on application made to it for the purpose by
either the wife or the husband, as the case may be, order that the respondent shall, while the
applicant remains unmarried, pay to the applicant for her or his maintenance and support such
gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant
as, having regard to the respondent’s own income and other property, if any, the income and
other property of the applicant and the conduct of the parties, it may seem to the court to be
just, and any such payment may be secured, if necessary, by a charge on the immovable
property of the respondent.

34
(AIR2001 MP67)
35
(AIR 2000 MP 48)
 27

(2) If the court is satisfied that there is a change in the circumstances of either party at any
time after it has made an order under sub-section (I), it may, at the instance of either party,
vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this
section has remarried or, if such party is the wife, that she has not remained chaste, or if
such party is the husband, that he has had sexual intercourse with any woman outside wed
lock, it shall rescind the order. Section 25,although recognizes the right of the wife and the
husband to be in equal proportion in the matter of maintenance when a decree is passed
granting relief in any matrimonial cause, it is primarily intended to secure maintenance and
support for the wife in whose favour a decree is made granting any of the relief’s under the
Act. The obligation of the husband to provide for his wife’s maintenance and support does not
come to an end simply on the passing of a decree for any of the relief’s which the court is
empowered to grant under the Act even when the decree is in favour of the husband. An order
for permanent alimony or maintenance can be made only when any decree’ granting
substantive relief is passed. When the main petition for relief under the Act is dismissed or
withdrawn, permanent alimony under section 25 cannot be given. This is settled law in view of
the apex court’s judgment in Chand Dhawan v.Jawaharlal Dhawan36, In this case, after the
husband’s divorce petition was got dismissed, the wife filed an application for maintenance
under 25.After analyzing the case law on the issue the court ruled that an order of dismissal of
petition is not a decree. It remarked:
Without the marital status being affected or disrupted by the matrimonial court under the Hindu
Marriage Act, the claim of permanent alimony was not to be valid as ancillary or incidental to
such affectation or disruption.
Relying on this, the Madya Pradesh High Court in Badri Prasad v. Urmila Mahobiya 37 held
that a husband’s petition for divorce was dismissed by the court, the wife could not be granted
alimony under section 25.

36
(1993) 3 SCC 406
37
(AIR 2001 MP 106)
 28

Interim Maintenance
The question whether a wife is entitled to interim maintenance in a petition under section 18 of
the Hindu Adoption and Maintenance Act can be gauged by analyzing the following two cases
decided by Orrisa and Bombay High Courts. The Orrisa High Court in Purusottum Mahakud v.
Annapurna Mahakud38 wherein the husband had contended that in the absence of any
statutory provision recognizing the right to interim maintenance, an order made by the civil
court was without jurisdiction. The High Court, however, did not accept this argument.
Likewise, the Bombay High Court in a case titled Sangeeta Piyush Raj v. Piyush Chaturbhuj
39held that a suit filed under section 18,the court has jurisdiction and power to pass
appropriate interim and ad interim orders. The following observations of the Supreme Court in
Savitri v. Govind Singh Rawat40, a case under section 125 of the Code of Criminal Procedure,
were court ostensibly ruled& relied upon:
Whenever anything is required to be done by law and it is found impossible to do that unless
something not authorized in express terms be also done, then that something else will be
supplied by necessary intendment. Another issue decided by the court in Sangeeta Piyush Raj
was that even if matrimonial proceedings between the parties are pending there is no
requirement that an application for interim maintenance must be made only under the
provisions of section 24 of the Hindu Marriage Act, 1955.
Whenever the marital status is being affected or disrupted by the matrimonial court unless
provided otherwise under the Hindu Marriage Act, the claim of permanent alimony could not
be valid as ancillary or incidental to such affection or disruption. Relying on this, the Madhya
Pradesh High Court in Badri Prasad v. Urimila Mahobiya 41 held that when a husband’s
petition for divorce was dismissed by the court, the wife could not be granted alimony under
section 25 of the Hindu Adoption and Maintenance Act.

38
(AIR 1997 73)
39
Raj(1998 Bom 151)
40
(AIR 1986 SC 986)
41
(AIR2001 MP 106)
 29

In Lata v. Neeraj Pawar42the petition filed by the husband for dissolution of marriage on the
ground that she lived an immoral life but the court granted the interim maintenance as a
statutory right irrespective of the result of the litigation.
In a case from AP pursuant to matrimonial differences, the husband filed a petition praying for
a decree of divorce and the wife claimed maintenance for herself as also for two children born
of this wedlock under section 24 of the HMA. This prayer for interim maintenance was allowed
and maintenance at the rate of Rs. 15000 per month was granted in her favour as also for the
children. The petition of the husband was accepted and the decree of divorce was awarded to
him in 2005. The family court directed the husband to pay the arrears of maintenance awarded
in favour of the children as also to the wife. However, the AP High court reversed the judgment
of the family court for grant of interim maintenance beyond the period of pendency of the
case43.
Maintenance under Hindu Adoption and Maintenance Act
Apart from the provisions under section 125 of the Cr P.C. and the Hindu Marriage Act, a
Hindu wife can seek maintenance even under section 18 of the Hindu Adoption and
Maintenance Act. The Bombay High Court, however, restricted this right to a wife whose
marriage was subsisting. Once there is a divorce she has to seek relief under section 25 of the
Hindu Marriage Act or under the provisions of section 125 Cr.P.C. according to the court. This
dictum was pronounced in Panditrao Chimaji Kalure v. Gayabai44. This is in contrast with
Vishal Mangaldas Patel v. Maiben Vithalal Patel 45 wherein the court held that a wife includes
a divorced wife and the husband’s contention that the section would be applicable only where
the marriage subsists was not accepted. Provision for maintenance is contained in more than
one Act as is clear from the above discussion. While a claimant is not entitled to maintenance
under all Acts simultaneously, the provisions under the different Acts are supplementary. Thus
maintenance application under one Act cannot foreclose the remedy under the other Act. In
Aher Mensi Ramsi v. Aherani Bai Min Jetha46, a wife had obtained a maintenance order under

42
(2010) DMC 540 (P&H)
43
Arvind Chenji v. Krishanveni, 1 (2010) DMC 545 (AP).
44
(AIR 2001 Bom 445)
45
(AIR 1995 Guj 88)
46
(AIR 2001 Guj 148)
 30

section 18 of the Hindu Adoption and Maintenance Act also. The husband challenged the
same on the ground that once an order had been made in proceedings under section 125 of
the Cr PC the trail court would not grant maintenance under another statue as well.
The court, however, did not accept this argument. It is obvious that the legislature did not
intend to oust the remedies available under several Acts since, when the Hindu Adoption and
Maintenance Act was enacted in 1956, section 488 of the old Cr PC was already existent.
Likewise when the Cr PC was amended in 1973, the old provision under section 488 was
retained by way of section 125 in the new code and section18 of the Hindu Adoption and
Maintenance Act was also already there. The very fact that despite maintenance provisions in
the Cr PC, section 18 was incorporated in the Hindu Adoption and Maintenance Act providing
for maintenance to the wife goes to show that section 18 is a specific provision as against the
general provision in section 125 of the Cr PC. According to the court, the grant and receipt of
maintenance under Cr PC is no bar or impediment to grant of adequate amount of
maintenance under the Hindu Adoption and Maintenance Act. Provisions in the Cr PC are
general in nature whereas Hindu Adoption and Maintenance Act is a special enactment and
order passed under general law cannot take away the remedy under special law. The court
held:
The remedies under both these laws are available to the wife and these
remedies are co-existent, mutually complementary, supplementary and in aid and
addition of each other.
A widow is one of the dependants under section 21 of the Act who is to be maintained by the
heirs of the deceased out of the estate inherited by them from the deceased. In this context, a
reference may be made to an interesting case (Shobha Suresh Jumani v. Appellate Tribunal,
Forfeited Property, 47 where a wife invoked the above mentioned provision to get an
advantage under Smuggler and Foreign Exchange Manipulators (Forfeiture of Property) Act,
1976. Under section 12(4) of the Act, a person aggrieved by an order of forfeiture of properties
is competent to file appeal against such order. A wife sought to file such appeal on the plea
that a wife of the smuggler whose property is forfeited has a vested right to maintenance from
47
AIR 2001 SC 2288)
 31

her husband and his properties and as such she is an “aggrieved person” within the meaning
of the Act. The court, however, dismissed the appeal and held that while it is true that a wife
may be aggrieved because her husband’s properties are forfeited but that would not confer a
right to file an appeal against such order of forfeiture. There is no infringement of her legal
right for the purpose of the Act. In any case no charge of maintenance was created in favour
of the wife on properties which were forfeited. “She has not suffered any legal grievance and
has no legal plea for a justifiable claim to hang on”, the court remarked.
The HMA contains two specific provisions dealing with maintenance of spouse involved in a
matrimonial litigation. These provisions are not available to any of the souses during the
smooth running of marriage or upon a mere refusal of either of the spouse to maintain the
other without any litigation. Two things are important in this connection, first, that maintenance
can be claimed only when a matrimonial petition is either pending in the court awaiting
disposal or has culminated into the award of a decree, and second, that maintenance can be
claimed by either the husband or the wife dependent solely on the criterion of who is in
indigent circumstances and who is financially secured. Section 24 deals with maintenance
penden lite, i.e., during the pendency of litigation48and therefore, as the terminology itself
indicates, it cannot be availed of by the parties if no matrimonial litigation is pending in the
court. Similarly, section 25 stipulates that at the time of passing of any decree or at any time
subsequent thereto, the court on the application made by either spouse may pass an order
directing one of the parties to pay to the other permanent alimony or maintenance. In
Polavarapu Hanumantha v. Plollavarapu Siva Parvathi49 the parties had two children and
lived together for a short time period after which they separated. The husband filed a petition
for divorce and the wife successfully claimed maintenance for her and the children under
section 24 of HMA. She had also claimed maintenance under section 125 of Cr P C, that was
granted in her favour but owing to its non-compliance by the husband, the wife filed an
application for his arrest and detention in a civil prison. The matrimonial court passed an order
granting maintenance to the wife and the children under section 25, even when the petition

48
Section 24 of the Hindu Marriages Act 1955.
49
AIR 2009 AP 98.
 32

filed by the husband for divorce was dismissed by the court. The matter went to the High Court
which overruled the maintenance order passed by the lower court on the ground that since the
main matrimonial remedy had not been granted, the court cannot invoke section 25 of the
HMA50.
Incapacity of Educated Wife to Maintain Herself
The first and foremost condition that the wife has to satisfy in order that she becomes eligible
to claim maintenance from her husband is her incapability to maintain herself. Under the core
Hindu law ,while deciding the claim of husbands who sought maintenance from their wives,
their ability to earn has always been taken into consideration and the mere fact that for the
time being or temporarily they were not economically active has not worked in their favour. If
the husband is an able bodied man or is highly or even modestly educated and is in a position
that upon his earnest attempts to seek employment he would be successful, his claim of
maintenance as against the wife would be dismissed.51 However, the educated wife can
maintain a petition for maintenance if she is unable to maintain herself unlike the husband as
mandated by section 125 of Cr P C. the Karnataka High Court therefore, granted the
maintenance to the wife who had been asked to resign after marriage and was now living an
indigent life.52
Evasion of economic responsibilities by bigamous husbands
Hindu law contemplates an exclusive matrimonial union with monogamy as the primary rule
for Hindu men. Consequentially, both parties who violate this rule suffer though differently. A
bigamous party attracts the penalty under section 494; fails to get the status of a legally
wedded spouse and this deprival is not merely a denial of status but also of their mutual rights
and obligations including their economic rights. In Gurmit Kour v. Buta Singh53 the wife herself
was guilty of getting married to the man while her first marriage was subsisting. The husband
prayed for a decree of nullity and a declaration of the marriage as non est (non-existing) in the
eyes of law, and the wife filed a claim for maintenance as against him. The court dismissed his

50
Annual Survey of India, 2009 at 484.
51
Kanchan v. Kamalendra ,AIR 1993 Bom 493.
52
Tejeswini v. Arvinda Tejas Chandra, AIR 2010 NOC 228 (Kar.).
53
1(2010) DMC 316 (P&H)
 33

contention and followed an earlier apex court decision wherein it was held that even in cases
where marriage was declared null and void under section 11 read with section 5(i) of the HMA,
the party was entitled to maintenance at the time of the passing of a decree. The present court
thus awarded permanent alimony and maintenance to the wife as also costs of litigation to the
tune of Rs 11,000.
In complete contrast the Bombay high Court in Mangla Bivajilad v. Dhondiba Rambhau Aher54
the court denied maintenance to a woman who was an innocent victim of fraud played by the
husband regarding the subsisting bigamous marriage. This decision has been criticized by
commentators on Hindu law55.
Maintenance includes a provision for residence
The term maintenance has not been defined under the Act but is understood to have a
monetary connotation and its quantum, enough to prevent destitution and vagrancy of the
grantee. It is never intended to financially or economically strengthen the indigent spouse, but
should be sufficient to take care of his/her primary needs. What are the basic needs is in itself
a question that has been answered variedly by courts in the light of facts and circumstances of
each case, but in case of the spouse who is thrown out of the home, should it also include a
residence is a question that becomes very important from the point of view of an estranged
wife as the first problem is that she is confronted with situations like where to go? Matrimonial
home is usually in the name of the husband or his parents or is arranged by them. It is ironic
that in Indian patriarchal society, customarily a married woman has very limited choice or
rights over a home in her own right more specifically in case of a marital discord. Husband’s
continued residence post-marriage in the same home that he or his parents own accords him
a security that can rarely be felt by an estranged wife. Usually, therefore, marital discords take
a woman back to her natal home but in several cases with increased parental support,
awareness and necessity of a secured roof, women are prompted to retain residences of the
husband in totality or partially post-matrimonial discord as well. Statutory recognition to her
rights of residence has also been accorded with the enactment of Protection of Women from

54
AIR 2010 Bom. 122
55
See Saxena P P, Hindu Law, Annual Survey of India, Vol. XLVI 2010 at 417.
 34

Domestic Violence Act 2005, but would they generally be in included under MHA, was a
question that arose before the apex court . Here,56a suit was filed by the owner for declaration
of title to the property that he had purchased out of his own funds. The wife had taken
exclusive possession of this house pursuant to a decree of maintenance. The High Court
declared the husband to be the owner of the property; directed the wife to hand over the
possession to him and observing that in view of the factual setting in the case when the
relations between the husband and the wife are estranged, the wife cannot still claim a right of
residence in the matrimonial home so as to resist a decree for possession, dismissed the
second appeal preferred by the wife. The matter was taken to the Supreme Court which
endorsed the right of woman to a residence as included in the general term ‘maintenance’ and
observed:
Maintenance necessarily must encompass a provision for residence. Maintenance is given so
that the lady can live in the manner, more or less to which she was accustomed. The concept
of maintenance must therefore include provision for food, clothing and the like and take into
account the basic need of a roof over the head. Provision for residence may be made either by
giving a lump sum in money or property in lieu thereof. It may also be made by providing for
the course of the lady’s life, a residence and money for other necessary expenditure.
Application of the HAMA to members of schedule tribe
The Hindu Adoption and Maintenance Act, 1956 applies to Hindus but a specific provision
excludes members of scheduled tribes from its application. If they marry in accordance with
Hindu rites and traditions, would this fact be sufficient to bring them within the application of
the Act? If two members of scheduled tribes, who are not obliged to marry or follow the
provisions of the Hindu law, do so, would they be governed by the provisions of Hindu law
even though an express provision takes them out of its application? In Lakhan Murmu v.
Gurubhai Murmu57 the court granted the maintenance to the wife despite the contention of the
husband that they were not bound by the HAMA and belonged to santhal tribe specifically
excluded by section 2(2) of the Act.

56
Kemalam Amma v. Kumara Pillai Raghavan Pillai, AIR 2009 SC 636.
57
AIR 2011 Ori 13
 35

Claim presented by the partner of a live relationship

Economic responsibilities can be imposed on a person only through the instrumentalities of
law and relationships of people’s own making short of legal recognition would give to no
mutual rights and obligation that are legally enforceable. Intimate physical relationships may
stem from love and affection and a mutual desire to cohabit, but unless and until they are
preceded by legally recognised rituals and ceremonies of marriage, this affectionate tie has no
statutory force. Despite promises of faithfulness, love and caring for each other’s physical of
economic requirements, a breach of the same would result in affixing of no responsibilities.
Economically insecure women, therefore, entering into such a relationships do it at their own
peril as in cases of desertion by their parents ; law does not guarantee them any sustainable
financial rights as against the male partner/ friend. In a case from Jharkhand58 , the application
was filed by a women claiming maintenance from the man on the ground that she was his
wedded wife,a claim that she could not substantiate. The man, on the other a hand, was able
to convince the court that he never married her and at the most, the relationship can be
equated with the live in relationship. The claimant, married women with four children after the
death of her husband had started living with this man D K Sinha of the Jharkhand High Court
reemphasized the importance of marriage before a claim of maintenance can be entertained
from a women, and equated it with live in relationship. He said that a legal and valid marriage
was not proved as between the parties and the concepts of live in relationship in the
background of Indian culture and societal sanction is yet to be interpreted by the larger bench
of the apex court. The court refused to widen the language of section 125 of Cr PC to include
a partner within the meaning of the term “wife” and dismissed her petition claiming
maintenance.
Maintenance claim by an able-bodied husband
Law in theory treats both the spouses with equality in matters of claim of maintenance.
However, the provision cannot be disassociated with the social reality and accepted familial
behaviour in a patriarchal society. in case the prayer for claiming maintenance emanates from
a women as against her husband and she claims to be either a home maker or even gainfully
58
Vineeta Devi v. BabluThakur , 2011 MLR 805(Jhar).
 36

employed but with meager income, her able-bodiness or capability to secure a gainful
employment fetching her a good income is not a matter of serious concern for the judiciary as
her economic dependence on the husband still remains predominantly the rule. A man’s
status as that of a provider makes it mandatory, on the other hand, for him to earn a livelihood
and an able-bodied man sitting at home or without making a living is perceived as displaying a
sign of an abnormal behaviour bordering to delinquency. Such a person would be looked
down upon and advices from all walks of life would pour in enjoining upon him to mend his
ways. Though advocacy of self sufficiency are desirable for every person yet the force or
rigidity of its application is glaringly apparent in case of a man than that of a woman. A
consistent judicial stand further corroborates it. In a case under the survey59, the husband filed
a petition praying for a decree of divorce and then made an application under section 24 of the
HMA, claiming interim maintenance and litigation expenses from his earning wife. He pleaded
that he had no source of income. The wife was able to prove that he was well qualified, but
had deliberately left his job. His father had retired as a school teacher and his mother was
working in a government school. The trial court on the application of the husband had granted
maintenance to him to the tune of rupees 500 per month and an additional rupees 2000 as the
litigation expenses. On appeal, the high court reversed the judgment of the trial court and held
that a person who is able-bodied , capable to earn but incapacitates himself deliberately is not
allowed to claim maintenance from the spouse.
Maintenance obligations: daughter-in-law vis-à-vis the father-in-law
The right of maintenance of the wife by the husband are universally recognised. While
husband’s obligation towards the wife is well entrenched in Hindu law, statute gives some
relief to genuinely financially distressed husbands from their economically secure wives as
well, but beyond the spousal relations and responsibilities, the extended/joint family system
saddles other relations with the financial/maintenance liabilities as well. A widowed daughter-
in-law in this connection assumes an important place. Being a member of the family, can the
father-in-law be brought under a legal obligation to maintain her and if the answer to this
question is in the affirmative, can in appropriate situations a daughter-in-law be directed to
59
Monika Rana v. Yogeshwar Singh Sapehia, AIR(2011) 7 HP54
 37

maintain the parents in law? In our son centred economy , heavily reflected in the patriarchal
society if the son dies and the compensation package including a job on compassionate
grounds goes to the spouse it may leave the parents of the deceased son totally helpless. In
Bharati Mahanta v. Narahari Mahanta 60 a couple’s only married son died. He was working as
a peon in a school , which after his death , provided his widow with employment as a peon
under the rehabilitation scheme in his place. The entire pension and other related benefits
upon the death were availed of by the widow. The parents in law claimed maintenance from
her, but she denied any obligation on her part to maintain them. Her main contentions were;
firstly, that parents in law had sufficient income to maintain themselves and thus their basic
eligibility to claim maintenance from anybody else does not arise; secondly, the language of
section 125 of the Cr PC is very clear and binds only children with maintenance obligations
and a daughter-in-law cannot be called a child. Section 125 obliges a person to maintain his
wife, son, daughter or parents who are incapable to maintain themselves and the statutes do
not use the term daughter-in-law or parent-in-law. Thirdly, it cannot be said that she has
stepped into the shoes of the husband as she did not inherit any of his property nor enjoyed
any share in the ancestral property belonging to him or belonging to him or belonging to his
family in which he had a share. She cannot be equated and placed on the same footing as a
son. The court dismissed all of her contentions held her responsible for maintaining the
parents of the deceased husband and said that section 125 not only conceives of an order of
maintenance but is essentially a measure of social justice with a view to protect persons who
do not have sufficient means for survival. Social justice is not a mere constitutional claptrap
but fighting faith which enlivens legislature texts with militant meaning and illustrates its
functional relevance as an aid to statutory interpretation. Keeping this in mind , if any person
having sufficient means neglects or refuses to maintain his father or mother who is unable to
maintain him or herself an application under section 125 is maintainable. Thus section 125,
that entitles a wife, child and parent should be widely interpreted to include other members of
a family. Since the term “family” includes a group of people related tn each other by blood or
marriage , even a married daughter is liable to maintain parents if they do not have any
60
2011 MLR509 (Ori)
 38

sufficient means to maintain themselves and there is no justifiable reason whatsoever for a
daughter-in-law not be saddled with similar responsibility in the event of the death of the son,
especially when she obtains all the death-cum pension benefits including employment under
the rehabilitation scheme. It is interesting to note that all the three courts, i.e.,: the lower
appellate court and the high court , here adopted a consistent li=ne of reason and awarded
maintenance to the parents in law as against the daughter-in-law.
In another case 61 having a reversal of facts , the parties married and the husband died in
a motor accident. Next day, the wife left the matrimonial home. The parents in law went to her
natal home; brought her back but she returned after two/three days back to her parents. She
received around one lakh as the insurance claim; applied for her husband’s share in the
property in the court of tehsildar,got a favourable order; got the share , and she sowed paddy
in it . Thereupon, she claimed maintenance from her father-in-law. The family court rejected
her claim firstly, because she was voluntarily residing at her parents’ house without any
sufficient reasons and secondly, under section 19 of the HAMA, the obligation of the father-in
–law to maintain the daughter-in-law is not personal but is depended upon the coparcenary
property in his hands. Even in cases where the father-in-law has coparcenary property in his
hands, his obligation to maintain the daughter-in-law is subject to the condition that:62
i) The daughter-in-law is unable to maintain herself out of her own earnings or
other property of her own;
ii) She is unable to obtain maintenance from her son or daughter or his/her
estate,
iii) That father-in-law has coparcenary property in his hands/possession out of
which she has not obtained any share,
iv) That coparcenary property has sufficient income, and
v) That the daughter-in-law has not remarried.

61
Dayali Sukhal Sahu v. Anjubani Santosh Sahu,AIR 2010 Chh 80.
62
Id.,at 81.
 39

The high court noted that in the present case, as she had already taken her share, she was
not entitled to claim maintenance from her father-in-law.
Conclusion
The Adoption and Maintenance Act, 1956 has specifically made the provision of maintenance
not only mandatory but also meaningful. It has followed the doctrine of equitable provision for
maintenance rather the minimal quota provided under the general law. courts have allowed
maintenance to wife even if she is working and can maintain herself and has made are entitled
to separate residence and maintenance according to the standard of their living. In Jammu
and Kashmir a separate but an analogical enactment is in vogue which specifically applies to
Hindus in the state, apart from the general maintenance provision under section 488 of
Cr.P.C.1898. While as the J&K Hindu Adoption and Maintenance Act, 1960 does provide for
maintenance to wife, children and parents, this is supplanted by the general law where one of
the parties is a non-Hindu. The maintenance is payable from the date of application, unless
the wife proves with cogent reasons the circumstances warranting its grant from the date of
becoming entitled to receive it as a legally wedded wife. It was remarked by the J&K High
Court in the case of Anita Nargotra v.Shri Rajinder Nargotra 63 that where the husband has
been paying interim maintenance to his wife and children in such eventuality it not be given
from the date of application unless proved otherwise.

63
2002 SLJ 402