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The Hindu Marriage Act, 1955
Section 26 in The Hindu Marriage Act, 1955
Section 24 in The Hindu Marriage Act, 1955
The Foreign Marriage Act, 1969
The Indian Penal Code, 1860

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Law Commission Report
Sections 24 To 26, Hindu Marriage Act, 1955 :Orders Eor Interim ...
www LAW COMMISSION OF INDIA I . NINETY-EIGHT?] REPORT A ‘ ON SECTIONS 24 TO 26, HINDU MARRIAGE ACT, 1955 :ORDERS EOR INTERIM MAINTENANCE AND ORDERS FOR THE MAINTENANCE OE CHILDREN IN ‘ MATRIM0NIAL PROCEEDINGS April, 1984 w- ¤ · if · ` i . ' . : Gmmni Inlyoductory 2 . . ( —. . U ' . . ., .` ·» l` l` I ·` CH.AI’TIB 2 Sections 24 to 26, Marriage Act, 196ifi . . . . . · 2-3f (iiumn 3 Maintenance for Children withmit afcrmal opplicatiou . ‘. . . —- ‘4·S T i 4 Interim maintenance: Tim eifeetive date ` . . . . . 6 _ CHAPTEBL 5 Anpeal, Revision and Enforcement . . .. . . . it 7 Cnnnn 6 Comments received on tne working I . . . . . .8-11 · , 2 » , · ‘ * ` Gunn 7 ‘Reo0m.menda.ti0n¤ . . . . . ·. . _ . . — 12-13 _ · e — 69};.2* z _¢>fr· 2 v wwe _ T Yr . 2* C ' *4 . W}~·’ it ` Xx ‘ ‘·.._` A, /` , CHAPTER 1 INTRODUCTORY Q 1.1. Certain questions concerned with orders for interim maintenance under the Hindu Marriage Act, 1955 and with orders for the maintenance of children ‘° under the Act are the subject matter of this Report. On several points arising out of the relevant statutory provisions} a conilict of decisions has arisen and it seems appropriate that the contlict should be settled by legislative amendment. On some other points, a discussion has taken place in thewritings on the Act or in case law. These discussions need to be taken note of, The Commission has had occasion to deal with the Hindu Ma-rriage Act morethan once in the past} But the points that are the subject matter of the present study had not arisen ‘ atthe time when the Commission undertook, in its earlier Reports, a survey of various provisions of the Act. ’ 1.2. The questions that are proposed to be discussed in the succeeding The qumiouvtob, Chapters are mainly of a procedural nature. »But they occur. almost daily in considered-nture practice in most matrimonial proceedings under the Hindu Marriage Act, lfurther, °f· relating, as they do to the maintenance of spouses and children, they possess a practical importance of their own. It is therefore desirable that the law on the subject should be settled, made uniform throughout the country andincorporated in the Act. It is for these reasons that the Commission has considered it necessary to deal with the relevant sections of the Hindu Marriage Act in this Report. 1,3, It may be mentioned at this stage that on the subject of this Report, Workin hp.! the Commission had prepared andcirculated a Working Paper,“ setting out the insued gy th• Cem- . issues arising out of the relevant statutory provisions and the possible solution, ¤¤i¤•i¢>¤· The comments that have beenrreceived will be dealt with in detail at the appro- t priate place, in this Report} At this stage, it is enough to state that almost all · the comments received on the Working Paper agree with the need for amending the Act on the lines envisaged in this Report_ The Commission is grateful to all those who have responded by sending their views on the Working Paper. I Sections 24 to 26, Hindu Marriage Act, 1955. “ Law Commission of India, 59th Report (Hindu Marriage Act 1955 and Special Marriage Act. 1954) and 71st Report (Hindu Marriage Act, 1955——Irretrievable breakdown of marriage as a ground of divorce). · _ ’ Working Paper on Sections 24 to 26, Hindu Marriage Act, 1955; Orders for interim mainte- nance and orders for the maintenance of children in .matrimo¤ial proceedings ; dated 16th November, 1983. A • Chapter 6, infra. ` ` _ » CHAPTER 2 i ` SECTIONS 24 T0 26, HINDU MARRIAGE ACT, 1955 Section 24, Hindu 2.1. Before de_aling with the questions proper, it would be desirable to set M•¤‘i¤z¤ AW out the relevant provisions of the Hindu. Marriage Act, 1955. Maintenance pondente lite and egrpenses of proceedings for the spouse are dealt with in section 24 of the Act, quoted below:- ” "24. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent _ income sufficient for her or his support and the necessary expenses on the ‘ , proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and - monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable?. . . ` ‘ ’ I It may be noted that this section is connned to maintenance (pemlenz lite) · of a spouse. It does not deal with children. It does require that there should be , a formal application. < 3 Wl at _ Section 25, Hindu 2.2. Permanent alimony and maintenance for spouses are dealt with in sec- · M*“"’¢° A°"· tion 25 of the Act, reading as unders- ’ "25. (1) 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 un- married, 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. . (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 (1), 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 satisned 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 wedlock, it sha`11 `rescind the · order." , . This section is also connned to spouses and requires a formal application. r. _ It is confined to permanent maintenance, while section 24 is conined to interim maintenance. , S,,,,,,,,, 26, Hindu 2.3. Regarding children both interim order and orders to be passed on Marriage Act. conclusion of the proceeding are dealt with in section 26 of the Hindu Marriage Act, quoted below:- . ‘ e' ` ‘ "26. In any proceeding under this Act, the court may from time to time, 2 pass such inzerirn orders and make such provisions in the decree as it may · · ’ deem just and proper with respect to the custody, maintenance and education. . of minor children, consistently with their ··wishes, wherever possible, and may, 4 after the decree, upon application by petition for the purpose, make from ' 42) 3 t time to time, all such orders and provisions with respect to the custody, V — maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such _ decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made." V The tirst portion of this section, dealing with interim maintenance does not ~ require an application, The second portion concerned with maintenance orders ‘ " for children on conclusion of proceedings does require an application. , 2.4. It will be noticed that- l S·¤p¤r¤t¤¤. •·¤¢i¤¤• _ _ _ , , , _ _ for Spouses and · (1) interim maintenance of _a spouse and interim maintenance of Chl]dI'CH(`hildren. are dealt with in two separate sections (sections 24 and 26, respecti- y vely) of the Act; V· » (ii) one of these two sections (section 24) envisages an "application", but ` t · the other (section 26) does not (in the portion relating to interim ` ` orders) require an application. ' · This apparently minor matter is mentioned here, because it is relevant to one of the questions going to be discussed in the succeeding_ Chapter. · V CHAPTER 3 MAINTENANCE FOR CHILDREN WITHOUT A FORMAL APPLICATION A beer. meme 3.1. The first question that has arisen with reference to the provisions of the _ neneemfn, ennd,en_ Hindu Marriage Act quoted above‘ is th§s—Can interim maintenance be granted for children under section 24 of that Act,2 where there is no separateapplrcation . M under section 26 in respect thereof? ‘ Conflict of views 3.2. There is a conflict of judicial decisions on the point. The following ‘ V “ (1*; e °°°**°¤“ 2*High Courts take the view that even where there is no separate application for °" ‘ the grant of maintenance to children under section 26, the court should, in a _ proceeding initiated by the wife under section 24, exercise its discretion and · ` award maintenance to the children:-— ` _ (i) Andhra Pradesh*; ` . · , (ii) Delhis; ` · ' (iii) Karnataka?; . V (iv) Kerala’; r (v) Punjab & Haryana”; and . _ { A 1 . (vi) Rajasthan? L 3.3 The contrary view, denying the court such a power without a formal Y" ‘ application under section 26 has_been taken by the following High Courts:-— ‘ · A el (i) Jammu & Kashmir"; _ _ , ; _, ’ — (ii) Orissa"; and ' . (iii) Patnam. . V Review ef eeeelew The extensive case law on the_subject_has',,been reviewed in some of, A the rulings, of which an Andhra Pradesh“ one is very useful. Incidentally, the Kerala 'ud¤e‘ment“ takin the wider view attracted a number of favourable as 1 ¤ g . . . . . . well as unfavourable comments m articles published in a Law Journal‘°. — ` Another uestion 3.5. The above case law relates to orders for interim maintenance of children . . q . . . . . . ¤pplww<>¤ _ under unlier the Hindu Marriage Act. A somewhat similar question, which also seems _ . :;‘;;j°'}er2:e;;1;;'fj;to have led to some judicial controversy, has arisen in connection wYth orders nnentenenee of ejnpfor permanent maint·enance of children. The precise question is as follows:-- . V um Can maintenance be granted to a child (section 26, Hindu Marriage Act) _ on an application by the wife under section 25, Hindi} Marriage Act, even thrgugh no specific mention of section 26 is made in the application of the wi e. - —TE:I§¤}_EQJ—”“T """T_;`_——é T . 2 Paragraph 2 -2, supra. V ` _ . ° Paragraph 2 ·3, supra. ‘ - V ‘ ' ‘ Narendra Kumar v. S-uraj Mehta, A.I.R. 1982. A.P. 100. ' 5 Damodar v. Bimla, (1974) P.L.R. (Del.) 33. . ” D. Thimmappa v. Nagaveni, A.I.R. 1976 Karn. 1215 ; Subhashiui v. Umakanth, A.I.R. 1881 · ` Kam. 115. ` - V V 7 .Radha Kumari v. K.M.K. Nair, (1982) K.L.T. 417 (Sukumaran, J.), · 1 · 4 “ Balbir Kaur v. Raghubir, A.1.R. 1974 P & H 225. ’ Baboo Lal v. Prem Lata, A.I.R. 1974 Raj. 93. _ . ` 1** Puma Ohand v. Kamla Devi, A.I.R. 1981 J & K 5, V 11 Akqeam Chiuna Babu v. Akasam Parvcui, A.I.R.- 1967 Orissa 163. _ ` V , » ii Barikim Chandra v. Aizjali, A.I.R. 1972 Pat. 80. _ · · V is Narendra Kumar v. Suraj Mehta, A.I.R. 1982 AP. 100. . l 1-* Rurlha Kumari, v. K.M.K. Nair, (1982) K.L.T. 417 (Sukumaran, J.). _ F - in 5% articles by Shri I’.V. Ayyappan, Shri S. Balachandran, Shri Siby Mathew and Sh¤·iV_K · Fprmeis, respectively ui (1982) K.L;T. (J ourual) pages 65, 79, 83 and 90, ' (4) W · . . 5 According to the Madras High Court‘, this can be done. According to the s Bombay? and Gujarat“ High Courts, this cannot be done. ·\ 3.6. On considering the twcf questions that have createdtroubléhh above,‘{\¤¤¤¤d}¤¤¤;6 ¤;*;9d§d - ` it would appear that there is need to settle the legal position on°both of lhemi?ax;t;Q"Ac{_ "l " which are of a recurring nature, As to the tenor of the amendment required, ° · · the better course would be to give awide scope to the power of the Court, under section 26 of the Hindu Marriage Act,5 so as to make it clear that the A power there-under can be exercised with or without an application.. The object could be achieved by inserting, in section 26 of the Hindu Marri- age Act,“ after the words "from time to time", the words "and whether or not an _ V application for the purpose is made on behalf of the minor children? Such an amendment should suihce to make it clear that (i) interim orders regarding chIl- - » _ dren, (ii) as well as permanent orders regarding them, can be made without a ~ ” formal application, Of course, the court will pass such orders only where the exisu _ · ence of children and the need to pass orders regarding their custody, education _ ` and maintenance are known to exist. That need not be specifically emphasised ` ’ -. V while amending the section. In any case, what the section envfsages is a power, - and not a duty. Incidentally, the present structure of section 26 imposes some , strain on the reader. Opportunity should, therefore, also be taken of breaking up ` I _ the section into clauses so as to facilitate reading. 4 · 1 Jil-umoswamy Rajoo v. Hansa Rani, A.I.R. 1975 Mad. 15. · . i ` 2 Dalli Ram Jain, v. Tanwatz', A.I.R. 1982 Bom. 15. i ’ Dharamahi Priamji v. Bai Sakar Kanji, AIR. 1968 Guj. 150. ~ p ` * Paragraphs 3 ·l and 3 -5, supra. I , * Paragra.phs2 ·3,aupra. . _ ` ° Paragraphs 2 ·6, supra. é _ 6 ;{_ O , "‘ ’ " " " " i" ;;:rt<7t—### rw an · -# Z ·r·- — v»—-»—--A A A up r P: _ _ __ _" V _' _A r g r _ . i ,-‘`@ . ( i _ V ` I E " ,.5~ "` i_e__ v ` . _.· ` ` ` M W » · · I V (V I · I _ \ , lk . s· _ V CHAPTER 4* = ` l · INTERXM `MAINTENANCE é THE EFFECTIVE DATE ‘ \ i The efevtivv •i¤·i¤¤- 4,1. Arising our of sections 24 and 26 of the Hindu M3ff13g€ AG is 3ll0th¢I` s . H ._ question relating to the date from which interim maintenance can_be granted by V ` “ the court Can such maintenance be granted from the date of the service of summons 5 _ on the main petition ? Or, can it be granted only from the date of the application . I _ __ · for interim relief (where such an application is made)? Or, should it beoperattve 1 . only from the date of the order for interim relief. Sections 24 and 26 of the 5 Hindu Marriage Act are silent in,. this regard and_do not bind down .the court _ to a. specific date. However, there issome uncertamty in this respect as will be · _ E ~ evident from the case law summar1sed in the paragraphs that follow, · p A O¤? Yi°';;*;;"é:°g 4,2_ According to some High Courts, the order for interim maintenance can l mm,§;,i,i§,, ,i,i,_ be made effective from the date of service of summons on the main petition. ; , The High Courts taking this view are :— j _ » (i) Calcutta;‘ . Q ' (ii) Delhi;’ g M 1 , (iii) Kerala? . _ ei { (iv) Mysore;‘ and · . — Q z _ (v) Punjab and Haryana} · A Secondviow-date of . 4.3. The second view is that the order can relate bacl; to some date later A ~ issues the effective than {he date of the main petition. Thus, one of the Jammu & Kashmir rulings‘ d“*°°· holds that maintenance is payable only from the date on which issues are framed . (in the mainpetition). » , A . t Third view-·dahe of 4.4. According to the Andhra Pradesh High Court,’ maintenance is payable — . ¤t>P‘¤j:;¤;¤th*;’;;;f¤i from the date of the application for interim relief·—-(by the spouse) under section _ '· . d,;w_ 24. In holding so, it points out that otherwise the respondent may frustrate the » is A ‘ application by avoiding service of the main summons. s ` . Maintenance t in 4.5. Similar controversy has arisen in regard to award of maintenance at ` E ¤t>1>¤¤l· the stage of appeal! In an Allahabadcase, alimony pendeme lite was claimed in r · appeal, and was allowed retrospectively from the date of filing of the appeal? . ( But, according to a ruling of the Andhra "Pradesh High .Court,‘" the order for Q ‘. interim maintenance cannot be made effective from the dateearlier than service f _ Q - of the notice of-appeal. ’ g - Need for Amend- 4.6. In this position, it is desirable to makethe law specific and certain by mms bl' ‘"“°'“"%t-¤inserting—in the. Hindu Marriage Act a provision—say, as section 26A--making e new section 26A, rn. A . . . . . . _ the Hindu Mm,,,g,,it clear that an order for interim maintenance under section 24 (spouse) or under ) ; Ast. section 26 (children) may be _g1ven eifect—g _ - N, . (a) from such date, not earlier than the date of the application under that Q ’ . . section, as the court considers just and. proper in the circumstances, _ - . ( (b) or _where no application has been made under section 26, then from such ' l . _ date, not earlier than the date of service of the notice issued on the` P _,; A I » 4 . petition by. which the mam proceeding was instituted, as the court p considers just and proper in the circumstances A i - l (a) iS’amir—Banerjee v. Sujata Banerjee, (1966) 70 C.WiN. 642. 7 ‘ _ ~ ` V (b) Sobluma v. Amar Kama, A.I.R. 1959 Cal. 455. ` V- .. ¤ Gajna Dwi v. Puraholam, A.I.R. 1977 Delhi 178. , · Q - ` s Radha Kumari v.'K.M.K. Nair, (1982) K.L.T. 417, 424, para. 26. ' W _ . ‘ N. Subramemyam v. M.G. Saraawalh, A.I.R. 1964 Mys. 38, para 7. ` ¤ Sarita Mehta v. Araéind Kumar Mehta, (1978) 8 P.L.R. 213. * ' A ‘ s puran Chmid v.· Kwmla, A.I.R. 1981 `J & K 5. lDeci ion on corresponding provision gf the n State AGL). ' v __ Q . __ ` - 1 Narerndra Kumar v. Suraj Mehta. A.I.R. 1982 A.P. 100, 106, para 18 (Merch). ` ` A ° s As tgiiiie appellate stage, see Harlochm Singh v. Mohinder Kaur, LLB. 1963 Punj. 249,260 ' ‘ • Mahabir Prasad v. Pwnhpamala, (I970)"All L.J. 1406, ` A ‘ A § ( w Bubba Rao v. Anaauyamma. A.I.R. 1957 A.P. 170. _ il ` • ' l A (6* ‘ A V ‘ A lj er , ie Z i it j ( ` ae h i F: z CHAPTER 5 APPEAL, REVISION AND ENFORCEMENT 5.1. Questions have, we find, been raised as to the competence of revision Apr<>ql¤¤d r¤v*¤l<>¤ against orders for interim maintenance passed under the Hindu Marriage Act} ("‘t"'m °"i°"l‘. We have given some thought to the matter and have come to the conclusion that after the amendment of section 28 of the Act, there should be no difficulty ` or obscurity in this regard. Briefly stated, the position as clarified by amended — section 28, is that an order for interim maintenance is not appealable. Revision is therefore permissible in law2 against such an orde}, but only if the High Court, in its discretion, regards the case as tit for interference by way of revision in the ` Q . circumstances of the particular case. No amendment can better or alter this position, and none is therefore proposed. - · r 5.2. Questions have also been raised as to the mode of enforcement of E¤T9r¢¤¤¤°¤'> ¤¥*d°'— orders for interim maintenance. Under section 28A as inserted in the Hindu ;,°°*;€’“ 828AAcI;I"£g Marriage Act, all decrees and orders made by the Court in any proceeding under Otzgigodes 0;,,,,;,,,- the Act shall be enforced in like manner as the decrees and orders of the court cement. made in the exercise of its original civil jurisdiction for the time being are en- forced, For all practical purposes this should suffice. _ 5.3. This does not, of course, mean that other modes of enforcement are Other ¤¤·>d¤¤ of necessarily barred. These other modes could include, for example, (a) stay of pro- °“*°'°°'”°P*· ceedings, where the party in default in paying the interim maintenance is the petitioner in the main proceedings? (b) striking oif the defence under section g 151, Code of Civil Procedure, 1908, where the party in default in paying the interim maintenance is the respondent in the main petition;‘ (c) punishment for _ contempt. 5.4. In this position, it does not appear to be necessary to make any amend- Amendment nm. ` ment on the question of the mode of enforcement of orders for interim mainten- ¤°°d°d as *0 °“f°'°°· ance. _ · » m°"I°‘ 5.5. While on the subject of maintenance orders and their enforcement we Earlier Report of may mention that some years ago, 5 the Law Commission made a recommendation “\° It"' C?m¥°*i - for imposing, in certain circumstances, criminal liability for failure to pay rrmin- f,jf§§,,‘f t° °"°""° tenance or permanent alimony granted to the wife by the court under certain " enactments or rules of law. The Report awaits implementation. . ` l Articles published in the Kerala Law Times : seo footnotes to para 3 -4, supra. — ·" Narendra Kumar v. Suraj Mehta, _A.I.R. 1982, A.P. 100. ~ · _ ’ (a) Malkan Rani, v. Krishna Kumar, A.I.R. 1961 Punj. 42. , (b) Anita v. Birendra, A.I.R. 1962 Cal. 88. 7 . ` (c) Bhurieshwar v. Drortta Bai, A.I.R.· 1963 M.P. 259. · - (a) Jai Singh, v. Khimi Bhilclu, A.I.R. 1978 H.P. 45, 49, 50, para 20. (b) Ram Swaroop v. Jartak, A.I.R.. 1973 Punj. 40. i (c) Anuradluz v. Santosh Nalh, A.ItR. 1976 Del. 246. ‘ Ram Swaroop v. Janak, A.I.R. 1973 Punj. 40. ’ * p s Law Commission of India 73rd Report (Criminal Liability for failure to pay maintenance 0; ` Permanent alimony granted to the wife by the Court under certain enactments or rules of law). . (7) · . ` 4 we CHAPTER 6 . . COMMENTS RECEIVED ON THE WORKING PAPER · Cemnrenu on one 6.1. As stated in the Introductory Chapter} we had circulated to interested W°*k¤¤S P*P°'· persons and bodies a Working Paper on the subject of this Report, inviting their \ views in the matter. A request was made to send views to the Commission by the • . 31st January, 1984. All replies received upto the date of signing this Report have V been taken into account before finalising this Report. ` _ Replies received. 6.2. ln all. ten replies have been received on the Working Paper. Of these, ` Y two replies are from High Courts} four are from State Government} one reply y · . is from a State Law Commission,‘ one reply is from an Advocate,? one reply has · 1 y been received from a social organisationf and one is from a gentleman from J. si V g ·Madras.’ Almost all of them have agreed with the need for amending the Hindu __ . . Marriage Act, on the lines envisaged in this Report. ` _ * i Whether amend- 6.3. One comment received from the office of a State Law Commission} . I ment ¤•=<>¤¤¤¤W· raises a query that an amendment of section 28 is not required. The comment, _ however, (it has been stated) is subject to approval of the State Law Commission, _‘ I We ma mention in this context that we are not recommendin ° an amendment _Y _ S Y . of section 28. The amendments that we are going to recommend"' concern the . matters dealt with in section 24 and 26 of the Hindu Marriage Act and are ` - 4 V necessary in view of the case law discussed (and other points made) in the . Q V relevant Chapters of this Report.“ _ · ( Some of the comments received on the Working Paper while agreeing that! ix . there is need for amendin the Act, also make certain additional su estions. , " . .g . gg We shall deal with these in later paragraphs of this Report? " ‘ i High C¤¤;¤¤· 6.4. Of the two High Courts that have sent in their replies to the Working ` _ . Paper issued by the Commission, one has no comments to offer? while the other“ ; ' agrees that there is need to amend the Act on the points dealt with in.this , Report. . ' . · ’* i \ . » . ? Sim G<>v¤rnm¤¤t=· 6.5. As re ards the four State Governments" that have sent in their re lies ‘ ‘ . g . . P . ; to the_Working‘ Paper, all agree with the need for amendment. One of them has ‘.‘, made certain additional suggestions, which we shall mention in due course." H ' *édd*°*3”“* 1;,°i¤*€- 6.6. Coming to the additional suggestions made in a few of the replies, — i ; w::,`;°" fw;';:" we may first mention that two of the replies have expressed concern about the , ‘ delay and difhculties experienced in the execution of decrees and orders passed · . _ I for maintenance. Of these one is from an Advocate in Madhya Pradesh," who . Y - 'TEQgL§§$t§;Qi—”A—;”__t_—__F*”—-_?" Q ' Law Commission File No.2(14),'S3-L.C. S. No. 5 and 10. I _ ` ’ Law Commission File N0. 2(14)/83-L.C. S. N0. 6, 7, 8 and l1. * _ X v_ ‘ Law Commission File No. 2(l4)/83-.L.C. Nlo. 9. . I 'i 5 Law Commission File No. 2(14)/83-L.C. S. No. 4. V , if ” Law Commission File No. 2(I4)/83-L.C. S. No. 3. ‘ i " Law Commission File No. 2(I4)/83-L.C. S. No. 12. It ' _ ° Law Commission File No. 2(l4)/83-L.C. S. N0. 9 (Madhya Pradesh Law Commission). . _ ,. ° See Chapter °, supra. ‘ *° Chapter 7, infra. V ` ' “ Chapter 2-4, supra. ` ’ { . I 12 Paragraph 6 -6, et. 8Pq..inffd. U i ” Law Commission File N0. 2(14)/83—L.C. S`.·No. 5. , _ ·‘ _ ' N Law Commission File N0. 2(14)/83-L.C. S. No. 10. _ 16 Law Commission File No. F.. 2(I4)/83L. C. S. No. 6,.7, 8 and II. i _ ` 4 4 W Paragraphs 6 -10 to 6 -14, infra. l A Cf H Law Commission File No. F. 2(l4)/83-.L.Cs S. No. 4 (An Advocate from Madhya Pradesh. i _ · isi . _ , - € . I A . ( 9 states that owing to poor economic condition, women are unable to represent their case properly in court. This is a point outside the scope of this report, though _ certainly deserving of attentions by appropriate authorities and organisations. The other—and more elaborate—suggestion is from the Joint Women’s Programme (Christian Institute for the Study of Religion and Society), New Delhi‘. The -’ suggestions made by it are'of a detailed character and are dealt with in the . succeeding few paragraphs? 6.7. In the reply received from the Joint Women’s Programme (Christian “m,n°; Institue for the Study of Religion and Society), New Delhi, mentioned above.“(Su ,,,,,,0,, 0;_yQ,,,€t . gg it has been stressed that maintenance granted under various personal laws and‘Wonien’¤Pregr¤mnie ` under the Code of Criminal Procedure, 1973, does not sufnciently provide for the C·I·S·R·S·)· _ protection of the deserted wife. It has been suggested that to protect thevdeserted J wife and the children and to make the wife’s remedy more effective, provision should be made to deduct the amount of maintenance from the husband’s salary, if the husbands employed in Government or in public or private sector. If the husband is self—employed or not traceable, provision should (it is suggested) be · made for maintenance, with the State as a party, for the protection of the desert- 'ed family. - . We appreciate the concern and anxiety felt by such organisations in regard to the need for the proper enforcement of decrees and orders for maintenance. , Some of the points raised—for example, the State taking over the burden for protecting the deserted family in specified eases—-touch matters transeending the specific areas of the Hindu Marriage Act or any other particular matr2monial enactment. But we would like to point out that so far the attachment of salary or other earnings of the defaulter is concerned, the Code of Civil Procedue.-°l908 make suflicient provisions. All disposable property of the judgment debtor who t ` is in default can under the Code, be attached in execution of a decree or order ` for maintenance} This includes salary or other periodical earnings of the de- faulter. The only qualification is that the case of salary, the Code renders exempt from attachment a specified portion} Under the present law, the exempt portion is one-third of the salary in case of a decree for maintenance. It may further be mentioned that the Code° contains specific provisions as to the procedure to be ' followed by the Courts for the attachment of (i) the salary of Government Servants as well as other employees, and (ii) the noh—salary income of self- _ employed and other persons. We hope that with increased legal literacy, these provisions will become more widely known, ‘ I i 6.8. The same organisations’ (J.oint wOm€H,S·PfOgf&R’lm€, New Delhi). has Dedmtim Mumba stated that men employed overseas enter into dubious and deception marriages berm, m,mi,g,,, with women in India. Such men,_it is stated, disclaim the wife after marriage andwbere husband resi- the deserted wife is left without any provision for her livelihood or maintenance ding °“°°*d° 1******- The suggestion is that in order to overcome this deficiency, the husband should . make a declaration of assets and provide, a.t the time of marriage, for the wife’s ~ A maintenance. While we appreciate the need for protecting women in such . _` circumstances, weimusr note that the suggestion, even if it be regarded as a `~ feasible one, fallsoutside the scope of this report. - 6.9. A suggestion regarding the custody of minor children, made by the Custody of mm, same organisation} similarly falls outside the scope of this Report. The suggestion children. is that custody in divorce cases be awarded to the spouse who is best suited in the child’s interests, and that it may be borne in mind that for the congenial and ‘ happy growth of a child, the mother is of primary importance, unless she is ’ ( mentally deranged? _ r * Law Commission»File No. F. 2(I4)/83-L.C. S. No. 3 (Joint Women’s Programme, CISRS, New _ ' Delhi). ‘ __ _ ’ Paragraphs 6 -7 to 6 ·9, infra. i A ° Paragraph 6 ·6, supra. ° _ V * Section 60(l), Code of Civil Procedure, 1908. . V _ _ ./Q U » 5 Section 60(l), Proviso (i) and (ia), Code of Civil Procedure, 1908. ~' ° Order 21, rules 46 and 48, Code of Civil Procedure, 1908. I 7 Law Commission File No. 2(I`4)/83-L.C. S. N0. 3. B Law Commission File No. F. 2 (14)/83-L.C. S. No. 3 paragraph 2. · `_ ` “ As to handicapped children, see paragraph 6 ·14, infrq, l V » . · . • l0 .S¤8s¤S*iQ¤ f°l@S’· 6.10. A number of additional points have been made by the Government $,;*8 n"n,§;“£,Q;°ndn of West Bengal (in the Legislative Department) in its comments on the Working 26 for Mau at the Paper} The points made show an earnest desire for effecting improvements in ¤¤n¤\¤¤i5>¤ ¤f the the law, though they touch matters beyond the scope of the Report——indeed, come P’°“°‘*d'"g”· of them go beyond the province of the matters that may be litigated in matrimonial ggggjsggat proceedings. Emphasising the fact that a broken conjugal home and an alienat- wn3nQnnnnU_ ed couple spell great disaster to children, the suggestion makes a number of points, which we shall mention in brief. The first point made by the Government of West Bengal is that there should be no insistence on an application, even under section 26, latter part. Hindu Marriage Act, (orders for maintenance to be passed at the conclusion of the hearing) and that the requirement of applica- tion may be dispensed with. We have given some thought to this matter. However, in the absence of any serious difficulties actually felt in practice, we are not in- clined to recommend its delection. The matter is one relating to permanent t maintenance, and if it is dealt with on the basis of some material which is on · record, there is some convenience in practice. Disclosure in plea-A 6.11. The second point made in the suggestion” of the Government of West gigs amut °}"ld'B€¤gHl is that in €V€ry matrimonial proceedings, the pleadings must disclose "' wheher the couple has any children. with details regarding the number, sex, age, custody, maintenance and etnrcation of children. The object is making this suggestion is to ensure that relief for children, if they are the victims of cruel indifference, may attract urgent judicial attention, the expectation being that . on receipt of pleadings, the court may have this aspect of the matter taken up " first with the urgency that it deserves. ; The suggestion is, no doubt, worthy of serious consideration. We do not _ deal with it in this Report, as the suggestion transcends the somewhat narrow . topics to which this Report is addressed. But the suggestion can be taken up if and when the question of reformation the law relating to the welfare of children . is taken up on a broader level? . _ Orders whether to bg 6.12. Commenting on the proposal put forth in the Working Paper of ·the made Mfective from law Commission as to the date from which an order for interim maintenance may · t? g:*:i0P“°; gf be made effective, the Government of West Bengal‘ has suggested that liability . `::n(ii:gn_° " P to pay should arise precisely from the date when the duty to pay maintenance was Sn . · _ violated, and that the date of omission or neglect to maintain a spouse or ggestror of Gov ,_ , __ . , , ._ grnjngut of wm child in distress should, therefore, be the criterion in this regard. We are, how- Bc¤ga1)· ever, afraid that the suggested change would not quite fit in with the prdvisions 'under consideration in this Report, or even with the Hindu Marriage Act taken as a whole. The question of orders for maintenance in the con-text of that Act ° arises because matrimonial relief provided for the Act. Since the subsistenge of * the marriage is in issue in these proceedings, it becomes necessary for the law _ to look into matters consequential on the break—up of the conjugal life of the · r ‘ spouses. It is only to that extent that orders for maintenance are provided for in the Act. Maintenance for the period to the petition seeking relief under the Act ‘ would not be a matter ancillary to the filing of the petition for matrimonial relief and may not appropriately fall within the Act. A matrimonial proceeding does not appear to be an appropriate proceeding wherein to litigate what are, for all practical purposes, claims for the recovery of arrears of past maintenance. As a » matter of substantive law, liability to pay maintenance may arise as soon as theret · is neglect. but the machinery for enforcing the liability may not necessarily find ` ‘ a place in matrimonial legislation. It is for these reasons that we are unablle to accept the suggestion. Lest this should appear to be too technical an approach, 2 we should hasten to add that we do not underratethe importance of speedv disposal of claims for maintenance- Suitable machinery in that regard is provided ` in the Hindu Adoptions and Maintenance Act, 1956, or (where the Act does not A apply) in the general law. _ Finnncm and n,y_ 6.13. It is true that sometimes, because of noniavailability of resources ohologicnl constrai- to file a proceeding and because of other constraints (mcludmg a psychological r nts on the woman. __#__r _____;___é__i_________ I Law Commission File No. F .2(l4)/83-L.C. S. N0. 6. ` · 2 Law Commission File No. F. 2(l4)/83·L.C. S. N0. 3. i ’ Matter for future consideration. - 4 Law Commission File No. F. 2(l4)/S3-LC. S. N0. Q. _ ll reluctance felt by the woman to bring matters to the Court), a woman may not be able to take proceedings immediately, and because of such delay, some maintenance may fall in arrears. But this does notseem to be an adequate reason for disturbing the scheme of the Act. 6.14. The Government of West Bengal has also suggested that provisionl Hqudieqiped should be made in the Hindu Marriage Act regarding the maintenance of handi- °h']d’°¤· capped children. This point also raises issues of the general law of maintenance and cannot be appropriately dealt with in this Report, which is concerned with the machinery for the award of maintenance as a step consequential on multri- · monial relief'. ' _>TLaw o0mirnQl·;i_1}11e Ne. F. 2(14>,/sa-L.o.,s. No. 6. W — W “ See paragraph 6 -12 supra. I { 1 ·· A CHAPTER 7 - t _ RECOMMENDATIONS Rwmmendations 7.1. In the light of what we have stated in the preceding Chapters, and having regard to the problems that have arisen with regard to (i) the question whether a formal application for interim maintenance under section 26, Hindu Marriage Act, 1955 is needed, and (ii) the date from which an order for interim maintenance (for spouses or for children) can take effect under the Act, we__ are of the opinion that it fs necessary to amend the Act on both the points mentioned above. We have come to the conclusion that the most just and convenient course would be- , g = . { (a) to amend section 26 of the Actl, so as to jexpressly dispense with the _ need for a formal application for interim maintenance for the purposes of the section, at the same time also splitting up the section so' as to improve its readability; and - _ (b) to insert in the,Act a new section (say, section 26A), so as to make a specific provision as to the date from which the order for maintenance interim can take effect? ' , Revigodl mum. 26 7.2. Here is a concrete suggestion for revising section 26, if the above ` Hindu Mwisze Act recommendation finds favour :— ` Revised section 26 Hindu Marriage Act, 1955 (as recommended). · "26. In any 'proceeding under this Act— (a) the court may, from time to time, and whether or not an applica- ' tion for the purpose is made 0n behalf of the minor children, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, main- ‘ tenance and education of minor children, consistently with their wishes, wherever possible, and ( (b) the court may, after the decree,. upon application by petition_for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such _ children as might have been made, by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and _ - _ (c) the* court may also, from time to time, revoke, suspend or vary e any such orders and provisions previously made". We recommend amendment as above of section 26 of the Hindu Marriage _ Act. · ‘ ‘it·i=t New hcdlm 26A 7,3, We further recommend that a new section 26A should be inserted in ` Hindu the Hindu Marriage Act, 1955 on the following lines;- · _, ` Act, 1955 (reco- _ _ _ · i · mmeuded). . "26A. An order for interim maintenance under sleetion 24 or section; 26 may be given effect- · ·~ _ (a) from such date, not earlier than the date of the application under . that section, as the court considers just and proper in the circum. stances, (b)_‘or, where no application has been made under section 26, than from such date, not earlier than the date of service of the notice 1 Paragraph 3 -6, supra. * Paragraph 4·6, supra. (12) * 13 . / _ issued on the petition by which the main proceeding was institui- ` { ed, as the court considers just and proper in ·the circumstances of the case." " .% (K.K. MATHEW) _ 2 I ,· Chairman • I (J.P. CHATURVEDI) ` Member ' ` I (Dr. M.B. RAO) ' ` · _ Member ' i ‘ (PM. BAKSHI) [ \ ‘ Part-time Member · , i . “ s V H { (VEPA P. SARATHI) ' g Part-time Member Q4 A " 1 i (A.K. SRINIVASAMURTHY) ` · p s Member-Secrelary or i _ ` I Q Dated: ' = _ -¢ n _ · if V i , ii · g. i » , ¤ · - _ i i ` I . .v _ 8+L/S11{MofLJ&CA—625-16-3-85——GIPS U I j