|
Besides
this the wife only has an alternate remedy in terms of maintenance under Section
125 under Criminal Procedure code to the extent of a
maximum of Rs. 500 per month.
HINDU ADOPTIONS
AND MAINTENANCE ACT, 1956
CHAPTER I
PRELIMINARY
1. Short title and extent
(1) This Act may be called the Hindu
Adoptions and Maintenance Act, 1956.
(2) It extends to the whole of India
except the State of Jammu and Kashmir.
2. Application of Act
(1) This Act applies-
(a) to any person, who is a Hindu by
religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana
or Arya Samaj,
(b) to any person who is a Buddhist,
Jaina or Sikh by religion, and
(c) to any other person who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is
proved that any such person would not have been governed by
the Hindu law or by any custom or usage as part of the law in
respect of any of the matters dealt with herein if this Act
had not been passed.
Explanation: The following persons are
Hindus, Buddhists, Jainas or Sikhs by religion, as the case
may be:
(a) any child, legitimate or
illegitimate, both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion;
(b) any child, legitimate or
illegitimate, one of whose parents is a Hindu, Buddhist, Jaina
or Sikh by religion and who is brought up as a member of the
tribe, community, group or family to which such parent belongs
or belonged; 1[***]
2[(bb) any child, legitimate or
illegitimate, who has been abandoned both by his father and
mother or whose parentage is not known and who in either case
is brought up as a Hindu, Buddhist, Jaina or Sikh;
and]
(c) any person who is convert or
reconvert to the Hindu, Buddhist, Jaina or Sikh
religion.
(2) Notwithstanding anything contained in
sub-section (1), nothing contained in this Act shall apply to
the members of any Scheduled Tribe within the meaning of
clause (25) of article 366 of the Constitution unless the
Central Government, by notification in the Official Gazette,
otherwise directs.
(2A) Notwithstanding anything contained
in sub-section (1), nothing contained in this Act shall apply
to Renoncants of the Union Territory of
Pondicherry.
(3) The expression "Hindu" in any portion
of this Act shall be construed as if it included a person who,
though not a Hindu by religion, is, nevertheless, a person to
whom this Act applies by virtue of the provisions contained in
this section.
3. Definitions
In this Act, unless the context otherwise
requires,-
(a) the expressions "custom" and "usage"
signify any rule which, having been continuously and uniformly
observed for a long time, has obtained the force of law among
Hindus in any local area, tribe, community, group or
family:
PROVIDED that the rule is certain and not
unreasonable or opposed to public policy:
PROVIDED FURTHER that, in the case of a
rule applicable only to a family, it has not been discontinued
by the family;
(b) "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 incidents to her
marriage;
(c) "minor" means a person who has not
completed his or her age of eighteen years.
4. Overriding effect of Act
Save as otherwise expressly provided in
this Act,-
(a) any text, rule or interpretation of
Hindu law or any custom or usage as part of that law in force
immediately before the commencement of this Act shall cease to
have effect with respect to any matter for which provision is
made in this Act;
(b) any other law in force immediately
before the commencement of this Act shall cease to apply to
Hindus insofar as it is inconsistent with any of the
provisions contained in this Act.
CHAPTER II
ADOPTION
5. Adoptions to be regulated by this
Chapter
(1) No adoption
shall be made after the commencement of this Act by or to a
Hindu except in accordance with the provisions contained in
this Chapter, and any adoption made in contravention of the
said provisions shall be void.
(2) An adoption which is void shall
neither create any rights in the adoptive family in favour of
any person which he or she could not have acquired except by
reason of the adoption, nor destroy the rights of any person
in the family of his or her birth.
6. Requisites of a valid adoption
No adoption shall be valid
unless-
(i) the person adopting has the capacity,
and also the right, to take in adoption;
(ii) the person giving in adoption has
the capacity to do so;
(iii) the person adopted is capable of
being taken in adoption; and
(iv) the adoption is made in compliance
with the other conditions mentioned in this
Chapter.
7. Capacity of a male Hindu to take in
adoption
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
ceased to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind.
Explanation: If a person has more than
one wife living 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.
8. Capacity of a female Hindu to take in
adoption
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 of unsound mind, has the capacity to take a
son or daughter in adoption.
9. Persons capable of giving in
adoption
(1) No person
except the father or mother or the guardian of a child shall
have the capacity to give the child in adoption.
(2) Subject to the provisions of
3[sub-section(3) and sub-section(4)], the father, if alive,
shall alone have the right to give in adoption, but such right
shall not be exercised save with the consent of the mother
unless the mother 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 of unsound
mind.
(3) The mother may give the child in
adoption if the father 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 of unsound
mind.
3[(4) Where both the father and mother
are dead or have completely and finally renounced the world or
have abandoned the child or have been declared by a court of
competent jurisdiction to be of unsound mind or where the
parentage of the child is not known, the guardian of the child
may give the child in adoption with the previous permission of
the court to any person including the guardian
himself.]
(5) Before granting permission to a
guardian under sub-section (4), the court shall be satisfied
that the adoption will be for the welfare of the child, due
consideration being for this purpose given to the wishes of
the child having regard to the age and understanding of the
child and that the applicant for permission has not received
or agreed to receive and that no person has made or given or
agreed to make or give to the applicant any payment or reward
in consideration of the adoption except such as the court may
sanction.
Explanation: For the purposes of this
section-
(i) the expression "father" and "mother"
do not include an adoptive father and an adoptive mother;
1[***]
2[(ia) "guardian" means a person having
the care of the person of a child or of both his person and
property and includes-
(a) a guardian appointed by the will of
the child's father or mother; and
(b) a guardian appointed or declared by a
court; and]
(ii) "court" means the city civil court
or a district court within the local limits of whose
jurisdiction the child to be adopted ordinarily
resides.
10. Persons who may be adopted
No person shall be capable of being taken
in adoption unless the following conditions are fulfilled,
namely,-
(i) he or she is 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.
11. Other conditions for a valid
adoption
In every adoption,
the following conditions must be complied with:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) the same child may not be adopted
simultaneously by two or more persons;
(vi) 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 2[or in the
case of an abandoned child or 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.
12. Effects of adoption
An adopted child shall be deemed to be
the child of his or her adoptive father or mother for all
purposes with effect from the date of the adoption and from
such date all the ties of the child in the family of his or
her birth shall be deemed to be severed and replaced by those
created by the adoption in the adoptive family:
PROVIDED that-
(a) the child cannot marry any person
whom he or she could not have married if he or she had
continued in the family of his or her birth;
(b) any property which vested in the
adopted child before the adoption shall continue to vest in
such person subject to the obligations, if any, attaching to
the ownership of such property including the obligation to
maintain relatives in the family of his or her
birth;
(c) the adopted child shall not divest
any person of any estate which vested in him or her before the
adoption.
13. Right of adoptive parents to dispose
of their properties
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 vivos or by will.
14. Determination of adoptive mother in
certain cases
(1) Where a Hindu
who has a wife living adopts a child, she shall be deemed to
be the adoptive mother.
(2) Where an adoption has been made with
the consent of more than one wife, the senior-most in marriage
among them shall be deemed to be the adoptive mother and the
others to be step-mothers.
(3) 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.
(4) 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.
15. Valid adoption not to be
cancelled
No adoption which
has been validly made can be cancelled by the adoptive father
or mother or any other person, nor can the adopted child
renounce his or her status as such and return to the family of
his or her birth.
16. Presumption as to registered
documents relating to adoption
Whenever any document registered under
any law for the time being in force is produced before any
court purporting to record an adoption made and is signed by
the person giving and the person taking the child in adoption,
the court shall presume that the adoption has been made in
compliance with the provisions of this Act unless and until it
is disproved.
17. Prohibition of certain
payments
(1) No person
shall receive or agree to receive any payment or other reward
in consideration of the adoption of any person, and no person
shall make or give or agree to make or give to any other
person any payment or reward the receipt of which is
prohibited by this section.
(2) If any person contravenes the
provisions of sub-section (1), he shall be punishable with
imprisonment which may extend to six months, or with fine, or
with both.
(3) No prosecution under this section
shall be instituted without the previous sanction of the State
Government or an officer authorised by the State Government in
this behalf.
CHAPTER III
MAINTENANCE
18. Maintenance of wife
(1) Subject to the provisions of this
section, a Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to be maintained
by her husband during her lifetime.
(2) A Hindu wife shall be entitled to
live separately from her husband without forfeiting her claim
to maintenance-
(a) if he is guilty of desertion, that is
to say, of abandoning her without reasonable cause and without
her consent or against her wish, or of wilfully 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;
(g) if there is any other cause
justifying her living separately.
(3) A Hindu wife shall not be entitled to
separate residence and maintenance from her husband if she is
unchaste or ceases to be a Hindu by conversion to another
religion.
19. Maintenance of widowed
daughter-in-law
(1) A Hindu wife,
whether married before or after the commencement of this Act,
shall be entitled to be maintained after the death of her
husband by her father-in-law:
PROVIDED and to the extent that she is
unable to maintain herself out of her own earnings or other
property or, where she has no property of her own, is unable
to obtain maintenance-
(a) from the estate of her husband or her
father or mother, or
(b) from her son or daughter, if any, or
his or her estate.
(2) Any obligation under sub-section (1)
shall not be enforceable if the father-in law has not the
means to do so from any coparcenary property in his possession
out of which the daughter-in-law has not obtained any share,
and any such obligation shall cease on the re-marriage of the
daughter-in-law.
20. Maintenance of children and aged
parents
(1) Subject to the
provisions of this section a Hindu is bound, during his or her
lifetime, to maintain his or her legitimate or illegitimate
children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child
may claim maintenance from his or her father or mother so long
as the child is a minor.
(3) The obligation of a person to
maintain his or her aged or infirm parent or a daughter who is
unmarried extends insofar as the parent or the unmarried
daughter, as the case may be, is unable to maintain himself or
herself out of his or her own earnings or other
property.
Explanation: In this section "parent"
includes a childless step-mother.
21. Dependants defined
For the purposes of this Chapter
"dependants" means the following relatives of the
deceased:
(i) his or her father;
(ii) his or her mother;
(iii) his widow, so long as she does not
re-marry;
(iv) his or her son or the son of his
predeceased son or the son of predeceased son of his
predeceased 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;
(v) his or her unmarried daughter, or the
unmarried daughter of his predeceased son or the unmarried
daughter of a predeceased 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;
(vi) his widowed daughter:
PROVIDED and to the extent that she is
unable to obtain maintenance-
(a) from the estate of her husband,
or
(b) from her son or daughter if any, or
his or her estate; or
(c) from her father-in-law or his father
or the estate of either of them;
(vii) any widow of his son or of a son of
his predeceased 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
(viii) his or her minor illegitimate son,
so long as he remains a minor;
(ix) his or her illegitimate daughter, so
long as she remains unmarried.
22. Maintenance of dependants
(1) Subject to the provisions of
sub-section (2) the heirs of a deceased Hindu are bound to
maintain the dependants of the deceased out of the estate
inherited by them from the deceased.
(2) Where a dependant has not obtained,
by testamentary or intestate succession, any share in the
estate of a Hindu dying after the commencement of this Act,
the dependant shall be entitled, subject to the provisions of
this Act, to maintenance from those who take the
estate.
(3) The liability of each of the persons
who takes the estate shall be in proportion to the value of
the share or part of the estate taken by him or
her.
(4) Notwithstanding anything contained in
sub-section (2) or sub-section (3), no person who is himself
or herself a dependant shall be liable to contribute to the
maintenance of others, if he or she has obtained a share or
part the value of which is, or would, if the liability to
contribute were enforced, become less than what would be
awarded to him or her by way of maintenance under this
Act.
23. Amount of maintenance
(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.
(2) In determining the amount of
maintenance, if any, to be awarded to a wife, children or aged
or infirm parents under this Act, regard shall be had
to-
(a) the position and status of the
parties;
(b) the reasonable wants of the
claimant;
(c) if the claimant is living separately,
whether the claimant is justified in doing so;
(d) the value of the claimant's property
and any income derived from such property, or from the
claimant's own earnings or from any other source;
(e) the number of persons entitled to
maintenance under this Act.
(3) In determining the amount of
maintenance, if any, to be awarded to a dependant under this
Act, regard shall be had to-
(a) the net value of the estate of the
deceased after providing for the payment of his
debts;
(b) the provision, if any, made under a
will of the deceased in respect of the dependant;
(c) the degree of relationship between
the two;
(d) the reasonable wants of the
dependant;
(e) the past relations between the
dependant and the deceased;
(f) 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;
(g) the number of dependants entitled to
maintenance under this Act.
24. Claimant to maintenance should be a
Hindu
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.
25. Amount of maintenance may be altered
on change of circumstances
The amount of maintenance, whether fixed
by a decree of court or by agreement, either before or after
the commencement of this Act, may be altered subsequently if
there is a material change in the circumstances justifying
such alteration.
26. Debts to have priority
Subject to the provisions contained in
section 27 debts of every description contracted or payable by
the deceased shall have priority over the claims of his
dependants for maintenance under this Act.
27. Maintenance when to be a
charge
A dependant's
claim for maintenance under this Act shall not be a charge on
the estate of the deceased or any portion thereof, unless one
has been created by the will of the deceased, by a decree of
court, by agreement between the dependant and the owner of the
estate or portion, or otherwise.
28. Effect of transfer of property on
right to maintenance
Where a dependant
has a right to receive maintenance out of an estate, and such
estate or any part thereof is transferred, the right to
receive maintenance may be enforced against the transferee if
the transferee has notice of the right or if the transfer is
gratuitous; but not against the transferee for consideration
and without notice of the right.
CHAPTER IV
REPEAL AND SAVING
29. [Rep. by the Repealing and Amending
Act, 1960]
30. Saving
Nothing contained in this Act shall
affect any adoption made before the commencement of this Act,
and the validity and effect of any such adoption shall be
determined as if this Act had not been passed.
Foot Notes
1 Word "and" omitted by the Act 45 of
1962, w.e.f. 29-11-1962.
2 Inserted by Act 45 of 1962, w.e.f.
29-11-1962.
3 Substituted for "sub-section (3)" by
Act 45 of 1962, w.e.f. 29-11-1962.
Muslim women right to maintenance u/s
125
The Supreme Court, in
Mohd. Ahmed Khan v. Shah Bano Begum and others has held that
if the divorced woman is able to maintain herself, the
husband's liability ceases with the period of iddat, but if
she is unable to maintain herself after the period of iddat,
she is entitled to maintenance under section 125 of the Code
of Criminal Procedure. This led to controversy as to the
obligations of the Muslim husband to pay maintenance to the
divorced wife. The Muslim Women (Protection of Rights on
Divorce)
|
OPTION TO BE GOVERNED BY CODE OF
CRIMINAL PROCEDURE
If a
divorced woman and her former husband declare, by
affidavit or any other declaration in writing, either
jointly or separately, that they would prefer to be
governed by the
provisions of Sections 125 to 128 of the Code of
Criminal Procedure, and file such affidavit or
declaration in the Court hearing the application, the
Magistrate shall dispose of such application
accordingly. |
| |
|
| COMPARATIVE CHART - BROAD
OUTLINE |
|
| |
Muslim Women(Protection of
Rights on Divorce) Act 1986 |
Section 125 Code of Criminal
Procedure |
|
Jurisdiction |
Application is filed in the
area where divorced woman resides |
Application where the husband
is, or resides or where he last resided with his
wife |
|
Relief
available |
Reasonable and fair provision
and maintenance, or the amount of mahr or dower
paid, all properties given at the time of marriage
or after marriage. If unable to maintain herself,
after Iddat period relatives ordered to pay
maintenance and if no relatives exist then Warf
board pays. |
Allowed a monthly allowance,
not exceeding Rs.500. No provision for maintenance
by children, relatives or Wakf Board after Iddat
period. |
|
Punishment on failure to
pay |
Imprisonment which may extend
to one year. |
Imprisonment which may extend
to one month. |
|
Applies to |
Only to divorced
woman |
To every married or divorced
woman. |
|
Alteration
/allowance |
No such
Provision. |
On change of circumstances
Alteration maybe made. |
|
Maintenance after
Iddat |
Woman to be maintained by her
children or parents or relatives or the Warf
board. |
No such provision.
| |
| |
|
|
A divorced woman means a Muslim
woman who was married according to Muslim law, and has
been divorced by, or obtained divorce from her husband
in accordance with Muslim law. - |
| |
|
|
Iddat period means in the case
of a divorced woman -
-
three menstrual courses after the
date of divorce, if she is subject to menstruation;
and
-
three lunar months after her
divorce, if she is not subject to menstruation; and
-
if
she is pregnant at the time of her divorce, the period
between the divorce and delivery of her child or the
termination of her pregnancy whichever is earlier.
| |