No fixed rule can, however, be laid down with respect to the amount of maintenance. Each case is to be judged according to its own merit. Maintenance depends upon the totality of all the facts of the situation including the amount of free estate, a survey of the conditions and necessities and the rights of the members.
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A wife who has agreed to receive maintenance at a particular rate, binding herself not to claim a higher rate even if circumstances were to change, can still make an application for the increase of maintenance if she can prove or justify under Section 23. The right under this section supersedes any contract to the contrary. The fact that the rate of maintenance was fixed by a compromise decree makes no difference.
ADVERTISEMENTS:
In Kulbhusan v. Kumari the Supreme Court expressed the opinion that the quantum of maintenance depends upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the members on a reasonable view of change of circumstance possibly required in the future, regard being, of course, had to scale and mode of living and to the age, habits, wants and class of life of the parties.
In Kamalam Amma v. Kumara Pillai Raghawn Pillai & others, the Supreme Court expressed the opinion that the concept of maintenance includes provision for food and clothing give and take into account the basic need of a roof over the head. Because the concept of maintenance is not narrow, it also includes provisions for basic needs of food and clothing and a roof to live in a dignified manner.
The provision for residence may be made either by giving a lump-sum money or property in lieu thereof. It may also be made by providing for the course of the wife’s life, a residence and money for other necessary expenditure.
In this case the Court also observed that a Hindu wife is also entitled to separate residence if by reason of the husband’s conduct or by his refusal to maintain her in his own residence or any other just cause she is compelled to live apart from him and right to residence is a part and parcel of wife’s right to maintenance.
ADVERTISEMENTS:
The Act has conferred absolute power on the courts to determine the amount of maintenance, which they would exercise according to their best discretion keeping in view the due regard to the considerations set out in sub-section (2) or sub-section (3), as the case may be, so far they are applicable.
(1) In determining the amount of maintenance in case of wife, children and aged parents, regard shall be had to—
a) The position and status of the parties;
b) The reasonable wants of the claimants;
ADVERTISEMENTS:
c) If the claimant is living separately, whether she 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.
In the case of Maganbhai Chhotubhai v. Maniben, the Gujarat High Court considering on the quantum of maintenance held that the wife may be given 1/3 share or in certain circumstances 1/2 share in the total income of the husband. It will depend upon the conditions and circumstances in which maintenance is being claimed. If the husband is having good income and the wife is living separately along with her children, the wife may be entitled to 1/2 of the total income of the husband.
In Baby Rashmi Mehra v. Sunil Mehra, the Delhi High Court held that the quantum of maintenance depends upon the position and status of the parties including financial position of the husband and also on the reasonable demands of the claimants. In some cases the last life of the married parties and the families, mode of their living, the age, habits, wants and day to day needs, costs of reasonable living, position and status of the parties, the amount has to be fixed.
(2) In determining the amount of maintenance» if any, to be awarded to a dependant under this Act, regard shall be had to—
i. The net value of the estate of the deceased after providing for the payment of her debts;
ii. The provisions, if any made under a will of the deceased in respect of the dependant;
iii. The degree of relationship between the two;
iv. The reasonable wants of the dependants;
v. The past relations between the dependant and the deceased;
vi. The value of the property of the dependant and any income derived from such property or from his or her earning or from any other source;
vii. The number of dependants entitled to maintenance under this Act.
According to Section 24 of the Act, the person claiming the maintenance must be a Hindu. In case of conversion to some other religion, the right to maintenance goes. In Sunderambal v. Snbbiah Pillai, the court laid down that an unmarried daughter who has become a convert, cannot claim maintenance for the period even before her conversion. It is a well settled principle that the right to claim maintenance is a personal right which arises from mutual relationship and therefore the right extinguishes on the death or conversion of the claimant.
The proceeding under Section 24 of the Hindu Marriage Act was merely interlocutory proceeding and not an original proceeding and granting a meagre or no maintenance towards the expenses of litigation, in the facts and circumstances shall not debar the petitioner to give an occasion to a failure of justice or cause irreparable injury to the party against whom such order was made.