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Brother-In Law to Pay Maintenance: A Step towards Protection of Women

“Half of the Indian populations too are women. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequalities, indignities, and discrimination”. ---- Justice K. Rama Swamy in Madhu Kishwar vs. State of Bihar[i]


Marriage is the very foundation of any society. It is sine qua non for family peace and stability. Being so, legislatures all around the world have given certain rights and imposed certain obligations on husband and wife which are important constituents of any family. In ancient times, marriage was considered to be decided by the God and divinity was associated with it. Hindu marriage protects a woman by guaranteeing her legal rights for restitution of conjugal rights in case of desertion, legitimacy of the children, relief in case of cruelty, adultery impotency, claim of maintenance and alimony etc. and order for maintenance to wife who is unable to maintain herself.


To overcome the difficulties and the atrocities faced by the women in the house, The Hindu Marriage Act (HMA), 1955, The Hindu Succession Act (HAS), 1956, The Hindu Adoption and Maintenance Act (HAMA), 1956 and The Hindu Guardian and Wards Act (HGWA),1956 and the Domestic Violence Act have been enacted. The State tries to empower married women through its policies and laws mentioned above.


MAINTENANCE OF WIDOW UNDER HINDU LAW

For maintaining a widow , there are not many provisions and legislations enacted.. Section 19 of Hindu Adoptions and Maintenance Act (HAMA), 1956[ii] states that “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 neither from her husband nor her father or mother. But in the case of Raj Kishore Mishra v. Smt. Meena Mishra, [iii], Court held that the father-in-law shall not be liable to maintainif he has no means to maintain his daughter-in-law from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share.


The object of this Section is to make it clear that the widowed daughter-in-law can claim maintenance from her father-in-law only where she is unable to maintain herself out of her own property or from the estate of her husband, father, mother, son or daughter. It is also provided that the father-in-law shall be under no obligation to maintain his daughter-in-law except in cases where there is some ancestral property in his possession from which the daughter-in-law has not obtained any share.

In Bhikaji Bhaskar v Trimbak Ganesh Desai,[iv], the husband is considered to be an undivided member of a Hindu joint family, had deserted his wife. The wife claimed maintenance for herself and her child from the husband’s relatives. The Bombay High Court held that she is entitled to be maintained out of her husband’s property to the extent of one-third of the proceeds of that property. The High Court thus upheld the claim of the wife to receive maintenance from her husband’s relatives, even though the latter did not have a personal obligation to do so.


RECENT CASE OF AJAY KUMAR VS LATA @ SHARUTI & ORS

In the case of Ajay Kumar vs Lata @ Sharuti & Ors, [v], the Supreme Court observed that the maintenance to a widow under the Protection of Women from Domestic Violence Act, 2005 can be given by the Brother-in law also. The Appellant is the brother-in law of the respondent i.e. his brother’s widow who used to live together in a Hindu Joint Family Property. The complaint in the Supreme Court put forward that there are no provisions in the Act which liable the Appellant to pay the maintenance to the Brother’s wife.[vi] Only if they were under the joint venture of business, does not bide him to pay the maintenance.


Under the Section 12(1) of Domestic Violence Act, 2005[vii] provides that the person may approach the magistrate for seeking relief or for the payment of monetary relief to meet the losses suffered to her or her child as a result of domestic violence but this does not include the ordering of maintenance under the Section 125 of the Code of Criminal Procedure or any other law. The woman alleged that after the death of her husband, she was not allowed to live in her matrimonial home and was thrown out with her child and she has no means of income and she is unable to maintain herself and her child.


The Apex Court rejected the contention of the appellant that the Section 2(q) Protection Women from Domestic Violence Act, 2005[viii] indicates that the expression “respondent” means any adult male person who is, or has been, in a domestic relationship with the person against whom relief is sought. The Supreme Court have drafted a domestic relationship between the women and her brother-in law and have stated that the brother-in law and the women reside in a joint family.[ix] The Court upholding the order of the High Court of Punjab & Haryana stating that the Section 2(f), Section 2(q) and Section 2(s) of Domestic Violence Act, 2005[x] are matters of evidence but for the interim order of maintenance, brother-in law has to pay Rs.4000 to the women and Rs. 2000 to her child and directed regarding the payment of maintenance.


CRITICAL ANALYSIS

Mulla’s Principles of Hindu Law clarifies that “the existence of joint estate is not an essential requisite to constitute a joint family; and a family which does not own any property may nevertheless be joint”. The SC in Sadhu Singh vs. Gurudwara Sahib Narike, [xi], observed that “a widow has a right to maintenance out of her deceased husband’s property. Heirs of the deceased are obliged to maintain the widow out of the property of the deceased inherited by them. Widow can also enforce her right to receive maintenance even against the transferee of her deceased husband’s property”.


Women have always had a secondary status and being a widow on the top of it is seen as a curse on her and on her surroundings. These widows were considered as a curse to society and they were forced to live an in isolation. With the advancement in society, such taboos have been demolished today and they just have an archaic status. But still, widows have not reached to the status of even a married woman. With time, different personal laws have developed to provide them not only with an equal status to not only of a married woman but also that of a man. In India, separate personal laws have recognized the rights of widows, not only mere right of maintenance but also right of inheritance with some limitations.


CONCLUSION

In addition to that, the right of maintenance as envisaged under criminal code has led to speedy justice and has propagated equality in gender as provided under Art. 14 and art. 15 of the Indian Constitution. But in future, still a lot has to be done for widows to help them from economic and social disparity to achieve equality in its full sense and the inception of this could be done by giving a widow an equal status to that of a married woman, by educating her so that she can sustain herself and also, the social status of widows can be uplifted by allowing her to re-marry, which is still not prevalent in Indian society. But, mainly by changing the mind-set of individuals towards the widows. Thus, it all can be done by a change in perspective towards the way we see widows today.


The judgment given by the Supreme Court in the Ajay Kumar vs Lata @ Sharuti stating that the court can order brother-in law to pay the maintenance is just a one step towards bringing the equality and protection of women. This would help in empowering the law for women and upgrading the women’s social, economic and legal status in the society.

ENDNOTES [i] Madhu Kishwar vs. State of Bihar (1996) 5 SCC 148 [ii] The Hindu Adoptions and Maintenance Act, 1956, No. 78, § 19. [iii] Raj Kishore Mishra v. Smt. Meena Mishra, AIR 1995 ALL 70. [iv] Ramabai wife of Bhikaji Bhaskar v Trimbak Ganesh Desai (1872) 9 Bom HC 283. [v] Ajay Kumar vs Lata @ Sharuti & Ors (2019) 15 SCC 352. [vi] Brother In Law Can be ordered to pay Maintenance to Widow under Domestic Violence Act, Says SC, Live Law (May 26, 2019, 12:01 PM), https://www.livelaw.in/top-stories/brother-in-law-can-be-order-to-pay-maintenance-to-widow-under-dv-act-145281 [vii] The Protection of Women from Domestic Violence Act, 2005, No. 43, § 12(1). [viii] The Protection of Women from Domestic Violence Act, 2005, No. 43, § 2(f). [ix] Shruti Mahajan, Maintenance Under Domestic Violence Act: What the Supreme Court Held, Bar and Bench (May 26, 2019, 4:42 PM), https://www.barandbench.com/news/brother-in-law-can-be-directed-to-pay-maintenance-under-domestic-violence-act-supreme-court [x] The Protection of Women from Domestic Violence Act, 2005, No. 43, § 2(q), 2(s).

[xi] Sadhu Singh vs. Gurudwara Sahib Narike, AIR 2006 SC 3282.


ABOUT THE AUTHOR

This blog has been authored by Abhinav Aakash, who is a 2nd Year B.A., LL.B. (Hons.)student at Damodaram Sanjivayya National Law University, Visakhapatnam.

[PUBLICATION NO. TLG_BLOG_20_9204]

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