THE HINDU ADOPTIONS AND MAINTENANCE ACT 1956

Background and Need of child Adoption

The desire for male offspring was very natural in all early societies. The Veda declares; endless are the worlds of those who have sons; there is no place for the man who is destitute of male offspring. Manu explained the necessity of a son because through a son, a man conquers the world, through a grandson he obtains immorality and through his great-grandson he gains the world of the son. It is the foremost duty of a man, who is sonless to have a son by any means.

The Hindu Adoptions and Maintenance Act 1956, has steered off clearly from all the religious and sacramental aspects of adoption and has made adoption a secular institution and secular act, so much that even a religious ceremony is not necessary for adoptions. It prescribes only ceremonies of giving and taking under this Act a daughter can also be adopted whereas she can neither offer funeral cake nor can perform last rites of deceased.

Adoption is neither recognized under Mohammedan law, nor by the Parsi law. It is recognised by the Hindu law but even in that system by proved custom families or castes were prohibited to take child in adoption, effect was given to it by court.

Definitions HAMA Section 3

Refer Bare Act HE HINDU ADOPTIONS AND MAINTENANCE ACT 1956 for all sections and clauses.

Section 3(b) “Maintenance” includes

• in all cases, provision for food, clothing. residence, education and medical attendance and treatment
• in the case of an unmarried daughter, also the reasonable expenses of an incident and treatment Section 3 (c) ‘Minor” Means a person who has not completed his or her age of eighteen years.

Over-riding effect of Act section 4 Adoption to be regulated by this chapter

Section 5 of the Act lays down that no adoption shall be made after the commencement of the Act

except in accordance with the provision contained in the chapter of Adoption and any adoption made in accordance with the provision contained in the chapter shall be void. But a valid adoption made before the commencement of the Act shall not be deemed to be void irrespective of the fact that such an adoption is not in accordance with the provisions of this Act with regard to the valid adoption under the old law, the Act is not retrospective in its operation. The adoptions which were lawful under the prior law, but are not valid under this Act are deemed to be valid.

Requisites of a valid adoption section 6—No adoption shall be valid unless—

• the person adopting has the capacity, and also the right, to take in adoption;
  • the person giving in adoption has the capacity to do so;
  • the person adopted is capable of being taken in adoption; and
  • the adoption is made in compliance with the other conditions mentioned in this chapter.

According to section 6 of the Act one of the conditions to made the adoption valid is that the person taking in adoption must have the capacity to adopt as well as the right to adopt. So the capacity and right and right to take in adoption are two different things A person may have the capacity to adopt but at the same time he may not have a right to adopt. Therefore to constitute a valid adoption both things must be present.

Adoption Eligibility – Who may adopt:

Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956 deal with person who may adopt a child. Whether male or female the person who is adopting a child must have capacity and also the right to take a child in adoption.

Adoption Capacity of a male to take in adoption section 7

A major male Hindu of sound mind can adopt. Whether he is a bachelor, widower, divorcee or married person. But for a married Hindu male, it is obligatory to obtain the consent of his wife In case he

has more than one wife, consent of all the wives is necessary. An adoption made without the consent or separately shall be void. The consent of the wife may be express or implied. The consent of the wife or of any of the wives in case a person has more than one may be dispensed with in any of the following cases:-

• if the wife has ceased to be a Hindu
• if she has finally and completely renounced the world
• if she has been declared by a court of competent jurisdiction to be of unsound mind.

Ghisalal v. Dhapubai (dead) by Lrs. and others 2011 SC It was held that consent of wife envisaged in proviso to Section 7 should either be in writing or reflected by an affirmative act voluntarily and willingly done by her. Consent cannot be inferred from mere presence, silence or lack of protest.

Adoption Capacity of a female Hindu to take in adoption section 8

Under the old Hindu law a female had no capacity to make an adoption to herself though a widow under certain circumstances could adopt a son to her deceased husband.

Under the Hindu Adoption and Maintenance Act, 1956, a Hindu unmarried woman widow or divorcee has capacity to adopt where a widow adopts a child she need not take the consent of a co-widow because she adopts the child in her own capacity (Vijayalakshamma v. B.T.Shanker). An unchaste woman also has capacity to adopt. Earlier a married Hindu Woman had no right to adopt a child even with the consent of her husband. Section 8 has totally been substituted by the personal Laws (Amendment) Act 2010. Now a married woman can adopt a child with the consent of her husband. An adoption made without the consent of husband is void except in any of the following three cases:-

• If her husband has ceased to be a Hindu
  • If he has finally and completely renounced the world
  • If he has been declared by a court of competent jurisdiction to be of unsound mind.

Persons capable of giving in adoption section 9

Before 1956, the father’s power to give his son in adoption was absolute and he could give the child in adoption even if his wife dissented from it. After father the mother but no one else could give the child in adoption. Under Hindu Adoption and Maintenance Act, father, mother and the guardian have the power to give the child in adoption.

Father as Adoption Giver

Mother as Adoption Giver

The father can not now give the child in adoption without the consent of the mother of the child except where she has finally and completely renounced the world or she has ceased to be a Hindu or she has judicially declared to be of unsound mind. In no other case, even if the marriage has been dissolved consent of the mother can not be dispensed with. In absence of mohter’s consent adoption is void. The expression father does not include an adoptive father, putative father or step father.

The mother of an illegitimate child has power to give the child in adoption and no question arises of putative father’s consent. Before the personal Law (Amendment) Act 2010, the mother had no right to give the child in adoption even with the consent of the father except where father has finally and completely renounced the world or father has ceased to be a Hindu or he has judicially declared to be of unsound mind. Now, after 2010 Amendment father or mother if alive save with consent of the other shall have equal right to give the child in adoption .The consent of other is dispensed with under circumstances provided in amended section 9. The mother does not include adoptive mother or stepmother. But it seems that a mother on conversion to any another religion or on divorce will not lose her right to give the child in adoption.

Eligibility of The Guardian as a Adoption Giver

The term guardian includes both de jura and de facto guardians. Guardian can exercise the power if

• both parents are dead or
• parents have finally and completely renounced the world or
• parents have judicially declared to be of unsound mind or
• parents have abandoned the child or
• the perentage of the child is not known

When the guardian exercise power of giving the child in adoption prior permission of the court is necessary. No court will accord permission to a proposed adoption unless it will be for the welfare of the child. If the child is capable of expressing his wishes, his wishes will be taken into account though the court can pass order contrary to the child wishes because welfare of the child is paramount consideration.

The court may refuse to accord the permission to the proposed adoption if any thing in cash-or kind has been given or taken or agreed to be given or taken in consideration of the adoption except cost of the performance of ceremonies of adoption, and cost of upkeep of the child that guardian has incurred from his own pocket.

Eligibility to be Adopted – Persons who may be adopted HAMA Section 10

Prior to this Act, following was regarding the person who could be adopted:-

1. Must be a Hindu
   1. Must be a male
   1. Must be a nearest sapinda
   1. Must be of the same caste
   1. Must not be deaf and dumb
   1. An orphan could not be validly adopted in the absence of a custom
   1. Only eldest son
   1. etc….

The present Act has taken a practical view of adoption and consequently the elaborate rules regarding the persons to be adopted have been dropped as will be evident from section 10 of the Act, under section 10 of Hindu Adoptions and Maintenance Act 1956, no person shall be capable of being taken in adoption unless following conditions are fulfilled namely:-

• Male or female
• Must be a Hindu
• Child has not already been adopted
• Should not be a married person unless custom permits
• The child must not have completed the age of fifteen years unless custom and usages permit

Other conditions for a valid adoption section 11

Before 1956, the ceremonies relating to an adoption were:-

• ceremony of giving and taking
• data homan
• other minor ceremonies

Ceremonies under the present law

The present Act requires only the ceremony of actual giving and taking of child in adoption as will be clear from section 11 (vi). This ceremony has to be performed by the person who gives the child in adoption whether he is father, mother or guardian and to be the person who takes the child in adoption. Ceremony of giving and taking is essential (Lakshman Singh Kothari v. Srimati Rup Kumar).

Datta Homan

Datta Homan is the sacrifice of burning of clarified butter which is offered as a sacrifice to fire by way of religious propitiation or ablation is no longer a necessary ceremony.

Other conditions

In every adoption, the following conditions must be complied with:-

• if the adoption is of a son, the adoptive father or mother by whom the adoptive 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.
• If the adoption is of a daughter, the adoptive father or mother by whome 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.
• 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;
• 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;
• The same child may not be adopted simultaneously by two or more persons;

• 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 the case of an abandoned child or child whose parentage is not known, from the place of family where it has been brought up} to the family of its adoption;

Provided that the performance of data homan shall not be essential to the validity of adoption.

Effects of adoption section 12

Under Hindu law, both old and new, the adoption of a child means that the child is totally uprooted from the natural family and transplanted in the new family. For secular, religious and civil purposes, the adopted child ceases to be the child of the natural family. The natural parent’s right of guardianship ceases with effect from the date of adoption, whatever be the age of the child.

Under section 12 of the Act the doctrine of relation back has been dispensed with (Kesarbai v.

State of Maharashtra).

The adopted child is deemed to be the child of the adopter for all purposes. His position for all intents and purposes is that of a natural born son; he has the same rights, privileges and the same obligations in the adoptive family.

• Only tie that he retains with his natural family is that he can not marry any person in his natural family whom he could not have married before his adoption.[Proviso (a) of section 12]
• If the adopted child has been vested with some property of his or her family of birth, before adoption took place, the adoptee shall continue to enjoy that property and it will not go back to the family of birth but the property so vested will be liable for such encumbrance as the property may be liable to, in respect of maintenance or other charges due to members of that family of birth [Proviso (b) of section 12]
• The adopted child would only become the son or daughter entitled such to the properties, if any, left by his or her adopting parent on his or her death. Neither will the widow be divested of any property nor will any partition effected prior to the adoption be re-opened for purpose of re- adjustment of joint family property. The adopted child does not divest any person in the adoptive family of any property vested in such person before adoption. Where the entire property vested in the adoptive father alone before adoption, the adoption could not have the result of reducing his fall share in the property to one-half.[Proviso (b) of section 12]

Relationship of adopted child

• Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.
  • Where an adoption has been made with the consent of more than one wife, the seniormost in marriage among them shall be deemed to be the adoptive mother and the others to be step- mothers.
  • Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child.
  • Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.

Valid adoption not to be cancelled section 15

An adoption once made is irrevocable. A valid adoption made by any person can not be cancelled by any of the parties to the adoption or by any other person, nor can the adopted child give up his or her status as such adopted child and claim rights in the family of his or her birth it is however, open to the adopted child to give up or modify his or her rights to properties and inheritance in the adoptive family either before or after adoption.

Proof of adoption section 16

No writing or execution of any document is necessary on the validity of the adoption. So the fact of adoption must be proved with cogent evidence and the burden is on the person who sets an adoption (Kehtrabai Padhan v. Biskishan Padhan)

The law as to proof of oral or written adoption is same as it was before the Act.

But now according to section 16 of the Act on adoption which is witnessed by a registered deed of adoption will be presumed to be valid unless disproved by positive evidence. The burden of proof in such as case is on the person who questions the adoption.

The act of giving and taking in adoption has to be proved positively otherwise presumption provided under section 16 will not arise. The presumption provided under this section is rebuttable. The details in deed of adoption is only a proof of adoption that is not the conclusive proof of adoption.

Dhanno v. Tuhi Ram, Mere placing of registered adoption deed without proof of the ceremonies of giving and taking and without proving that after adoption the adoptee was treated as his son by adopter, there is no valid adoption.

Jai Singh v. Shakuntala, The Supreme Court observed that section 16 envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be presumption that adoption has been made in accordance with law.

Maintenance

“It is declared by Manu that the aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds”.

Section 3 (b) of the Hindu Adoptions and Maintenance Act, 1956 defines maintenance. According to it maintenance includes (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage.

The obligation to maintain besides being statutory in nature is also personal in the sense that it arises from the very existence of relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father or the mother.

Maintenance of wife:- There are three different types of provisions regarding maintenance to a wife

• Provisions under H.A.M.A. ,1956
  • Provisions under H.M.A ,1955
  • provisions under Cr.P.C. 1973

• Under H.A.M.A. 1956 :- The right of a wife for maintenance is an incidence of the status or state of matrimony and a Hindu is under a legal obligation to maintain his wife. The obligation to maintain the wife is personal in character and arises from the very existence of the relation between the parties.

Under section 18 (1) of the Act, a Hindu married woman, irrespective of the date of marriage shall be entitled to be maintained by her husband throughout her life. This right to claim maintenance is her personal right against her husband irrespective of fact whether the husband has got any property either ancestral or self-acquired. A wife is entitled to be maintained out of the profits of her husband’s property in the hands of the alienee with notice of her claim (section 39 TPA) but can not follow her husband’s property in the hands of a transferee for valuable consideration, nor against government under section 82, 83 cr. P.C. but would be entitled to obtain a decree from a civil court creating a formal charge upon the specific property of her husband.

C.Obula Konda Reddi v. C. Pedda venkata Lakshmma

The court held that the words ‘Hindu wife’ in section 18 can not be interpreted to mean only a wife whose marriage is valid according to the provisions of the Hindu Marriage Act. The Hindu wife contemplated by section 18 means a wife whose marriage is solemnized, though void under Hindu Marriage Act. She will therefore be entitled to claim maintenance from the husband.

There is no absolute right vested in Hindu wife to be maintained by her husband. The maintenance is dependent on her living with him and discharging the duties as wife. The wife will also claim maintenance while living separately from her husband if any of the conditions laid down in section 18(2) is fulfilled.

The grounds which will enable the wife to live separately and claim maintenance from the husband are as follows:-

• Desertion by husband
• Cruelty by husband
• Husband suffering from virulent form of leprosy.
• Husband having another wife living
• Husband keeping a concubine
• Where husband has ceased to be Hindu by conversion
• Other justifying cause.

The HAMA 1956 has repealed the Hindu Married women’s Right to seprate residence and maintenancne act 1946. Section 18 (2) provides for’ Separate residence and maintenance to wife. As per section 18 (3) , a Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchasete or ceases to be a hindu. Thus her right is not absolute.

•  Under H.M.A. 1955 :- Section 24 of Hindu Marriage Act deals with maintenance pendente lite while section 25 of HMA deals with permanent maintenance to be fixed at the time of passing of decree or subsequent thereto.

Unlike Hindu Marriage Act, the Hindu Adoption and Maintenance Act does not authorize and empower any court to pass an order for payment of litigation expenses and maintenance during the pendency of the proceedings. The court can pass an order under the H.A.M. Act for payment of permanent alimony and maintenance at the conclusion of the proceedings only. There being no specific provision in the Act for interim relief, the court may resort to its inherent powers under section 151 CPC to give interim relief if the circumstances of the case so require and the court is satisfied that thereby it tends to promote the ends of justice.[Shanti Saroop v. Mst Usha devi]

Interim maintenance sec 24 :- Under it the claim may be made (either by husband or by wife) for

• Personal maintenance of the claimant and (2). Expenses of proceedings (i.e. any proceedings under this Act) only requirement is that the claimant should establish that he/she has no independent income sufficient for his/her maintenance and support and he/she has no means to meet the expenses of proceedings. If the respondent has no means and no income then the court need not fix any amount of maintenance . In fixing interim maintenance applicant’s conduct is immaterial (e.g. accusation of adultery.

In Rita Mago v. V.P. Mago (AIR 1977 Del. 176) held that an order for interim maintenance and for the expenses of proceedings u/s 24 can be passed during the pendency of the proceedings only. Such an order can not be passed after the conclusion of trail and passing of the decree.

Permanent maintenance sec 25 :- On application of either spouse the court may pass an order for permanent alimony and maintenance at the time of passing any decree granting the petition or at any time subsequent thereto. The court mau order the payment of grass or monthly or periodical sum for a term not exceeding the life of the applicant having regard to the income and other property of respondent and applicant , the conduct of the parties (e.g. conduct towards marriage) and other circumstance of the case.

Sec 25 confers on a spouse a ‘special eight right though not absolute or discretionary. It must be remembered that righ to maintenance is statutory right and therefore a party can not contract himself or herslf out of the same. Thus a wife can not bind herself under an agreement with her husband to forgo her right of maintenance in case of matrimonial proceedings between them.

The wife under a void or voidable marriage is also entitled to maintenance and alimony u/s 25.u/s 25(2) the court has power to vary, modify or discharge any order of permanent alimony at the instance of either party (either prospectively or retrospectively) if change of circumstances is shown.

u/s 25 (3) the court may rescind the order if the party in whose favour an order has been passed has remarried or if such party is the wife she has not remained chaste or if such party is the husband he committed adultery.

Under Cr.P.C. 1973 :- Section 125 of Cr.P.C. provides that if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself …a Magistrate of the first class may upon proof of such neglect or refusal order such person to make monthly allowance for maintenance of his wife at such monthly rate as the Magistrate thinks fit.

Provide that if such person offers to maintain his wife on condition of her living wih him and she refuses to live with him such Magistrate may consider any grounds of refusal stated by her and make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation:-‘ Wife’ includes a woman who has been divorced by or has obtained divorce from her husband and has not remarried.

Note:-‘Wife’ means only a legitimate/legally wedded wife and therefore a marriage proved illegal can not give a wife any right of maintenance. The second wife or a woman living as ‘wife’ is not entitled to get maintenance.

Maintenance of widowed daughter-in-law section 19

Hindu law has all along recognized it to be an obligation of the joint family to maintain the wives and widows of coparceners. Her claim is enforceable against the karta so long as the daughter-in-law has a right to claim maintenance against the coparcenary property in the hands of father-in-law. Where father-in-law did not inherit any ancestral property he was not liable to pay any maintenance to his widowed daughter-in-law. (Master Daljit Singh v. S.Dara Singh, 2000 Del. 292)

Under section of this Act, the father-in-law’s obligation to maintain the daughter-in-law is not a primary obligation; it is not even a secondary obligation. It is remote obligation. The father-in-law’s obligation will arise only if:-

• The daughter-in-law is unable to maintain herself out of their own earnings or other property (section 14 (1) of Hindu succession Act, 1956)
  • The daughter-in-law (in case she has no property of her own) is unable to obtain maintenance from:-
    • the estate of her husband
    • the estate of her father
    • the estate of her mother, or
    • her sons or daughters or from their estate.

The benefit of the right conferred by this section has been conferred on all daughters-in-law whether married before or after the commencement of the Act, and whether she became a widow, before or after the commencement of the Act. But the right under this section will occure from the date when the Act, has came in to force. It is clear from the section that this section only deals with the right of daughter-in-law to claim maintenance from his father-in-law. This presupposes that widow’s husband predeceased her father-in-law. It is implicit in the rule laid down in this section that a daughter-in-law whose husband is alive has no right, moral or legal, to claim maintenance from her father-in-law.

Maintenance of children and aged parents section 20

The obligation to maintain one’s children and aged or infirm parents is a personal obligation arises out of personal relationship of parent and child. Under old Hindu law, the father was required to maintain both his legitimate and illegitimate children and the obligation was imposed on son alone to maintain his aged or infirm parents. The modern Hindu law under section 20 Hindu Adoption and Maintenance Act imposed the obligation on both the parents and in respect of both legitimate and illegitimate children during the minority of children and makes it an obligation of sons and daughters to maintanin their aged parents.

Under the old Hindu law, “parent” did not include a step-parent. Explanation to section 20 HAMA 1956 now includes a childless step-mother but step-father is still excluded from the purview of the expression “Parent”.

Dependants defined section 21—For the purposes of this Chapter ‘dependants’ mean the following relatives of the deceased:-

• his or her father;
• his or her mother;
• his widow, so long as she does not re-marry;
• his or her son or the son of his predeceased son or the son of a predeceased son of his predeceases son, so long as he is a minor; provided and to the extent that he is unable to obtain maintenance, in the case of a grandson from his father’s or mother’s estate, and in the case of a great grand-son, from the estate of his father or mother or father’s father or father’s mother;
• his or her unmarried daughter, or the unmarried daughter of his predeceases son or the unmarried daughter of a predeceases son of his predeceased son, so long as she remains unmarried: provided and to the extent that she is unable to obtain maintenance, in the case of a grand-daughter from her father’s or mother’s estate and in the case of a great-grand- daughter from the estate of her father or mother or father’s father or father’s mother;
• his widowed daughter: provided and to the extent that she is unable to obtain maintenance—
  • from the estate of her husband, or

• from her son or daughter if any, or his or her estate, or
  • from her father-in-law or his father or the estate of either of them;
• any widow of his son or of a son of his predeceases son, so long as she does not remarry: provided and to the extent that she is unable to obtain maintenance from her husband’s estate, or from her son or daughter, if any, or his or her estate; or in the case of a grandson’s widow, also from her father-in-law’s estate;
• his or her minor illegitimate son, so long as he remains a minor;
• his or her illegitimate daughter, so long as she remains unmarried.

Maintenance of dependants section 22

Under this section of the Act the liability to maintain is limited and extends only up to the estate of the deceased. Section 22(1) applies to the dependant of a person who had died after 21^st of December 1956.

Sub section (2) covers cases of those dependants who do not succeed to any share or part of the estate of the deceases at his death, by reason that they have not been given any share by will or that they have been excluded due to existence of nearer relations than them or by not being heir in accordance with the provisions of Hindu Succession Act. The liability of the person who took the estate in this case also in proportion to the value of the share or part of the estate taken by him or her.

Sub section (4) 22 when the contributor to the maintenance of dependant is a dependant, this rule will be further contingent on the amount of the share received by him/her as an heir, if the contribution made to the maintenance of a dependant makes the share received as an heir less than the maintenance to which he or she is entitled as a dependant, then the liability to contribute would not be enforceable to that extent.

Ramabai v. Meerabai AIR 1967 MP 86

It was held that sections 21 and 22 of the Act do not in any way a bridge the pre-existing right of maintenance holders and those provisions of the Act are prospective and apply only to those cases of Hindu whose death takes place after the commencement of this Act.

• The settle position of law is that an heir is legally bound to provide, out of the estate which descends to him maintenance for those persons whom the late proprietor was legally or morally bound to maintain.

Amount of maintenance section 23

No fixed rule can be laid down as to the amount of maintenance which each claimant is to have. Each case is to be judged according to the nature of its circumstances. Maintenance depends upon the totality of all the facts, the amount of free estate, the past life of married parties, a survey of the conditions and necessaries and rights of the members, on a reasonable view of change of circumstances possibly required in future regard being of course, had to the scale and the mode of living the age, habits, wants and class of the parties.[Ekradeshwariu v. Hamshear (PC)

Shashi Ammal v. Thaiyu Ammal AIR 1961 Mad 217

The fact that the rate of maintenance was fixed by a compromise decree makes no difference and she can make application for the increase of maintenance if she can prove or justify under section 23.

Section 23 vests the court with the discretion to determine the amount of maintenance to be paid and to refuse to award maintenance if it so thinks fit. But discretion is required to be exercised having regard to the considerations set forth in subsection (2) and (3) of section 23.

(1) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the considerations set out in sub-section (2), or sub-section (3), as the case may be, so far as they are applicable.

• In determining the amount of maintenance, if any, to be awarded to a wife, chidren or aged or infirm parents under this Act, regard shall be had to—
  • the position and status of the parties;
  • the reasonable wants of the claimant;
  • if the claimant is living separately, whether the claimant is justified in doing so;
  • the value of the claimant’s property and any income derived from such property, or from claimant’s own earnings or from any other source;
  • the number of persons entitled to maintenance under this Act.
• In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to—
  • the net value of the estate of the deceases after providing for the payment of his debts;

• the provision, if any made under a will of the deceased in respect of the dependant;
  • the degree of relationship between the two;
  • the reasonable wants of the dependant;
  • the past relations between the dependant and the deceased;
  • the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other source;
  • the number of dependants entitled to maintenance under this Act.

Claimant to maintenance should be a Hindu Section 24

No person shall be entitled to claim maintenance under this chapter if he or she has ceased to be a Hindu by conversion to another religion.

Amount of maintenance may be altered on change of circumstances section 25

If the maintenance has been adjudicated upon, and court has fixed the quantum or rate of maintenance it may be altered or changed by the court. The amount of maintenance fixed by will can also be changed or altered (Sitharathnam v. Seshamma). The provision of this section would apply whether such decree or agreement was arrived at before or after the commencement of this Act.

Maintenance can be changed or altered if the circumstances have materially changed to justify such alteration. The maintenance can under this section, altogether be stopped if circumstances justify the same.

In Shashi Ammal v. Thaiynu Ammal:- The Madras High Court held that the right conferred under section 25 superseds any contract of not to claim a higher rate even if circumstances were to change.