Widowed Hindu Daughter-in-law Right to Maintenance

Widowed Hindu Daughter-in-lawRight to Maintenance

LA L ITA PARIHAR*

Hindu morals and religion enjoin a Hindu to maintain hisdependants. The Hindu sages emphatically enjoined upon everyperson the duty of maintaining the dependant members of hisfamily. Sir Thomas Strange has opined:1

"Maintenance by a man of his dependants is, with theHindus, a primary duty. They hold that he must be justbefore he is generous, his charity begining at home; andthat even sacrifice is mockery if to the injury of those whomhe is bound to maintain. Nor of his duty in this respectare his children the only objects, co-extensive as it is withhis family, whatever be its composition, as consisting ofother relations and connections including (it may be) ille-gitimate offspring."

Jolly remarks:

"When the remarriage of widows and Niyoga were abolished,the widows' right to inherit seems to have developed by thesuccessive stages indicated by the commentary on Gautama.At first the heirs were at liberty either to maintain her orto set a certain portion of the property apart for her main-tenance. Then they had to leave a part of the estate at herdisposal in every case. The last step would be to give herthe entire property. This important right, however, accord-ing to most Smiriti Writers does not accrue except undercertain restrictions such as that the late husband must have

B.A., LL.M. (Alig), Lecturer in Law, University of Jammu, Jammu.1. Thomas Strange, Hindu Law (1859), Vol. 1 at p. 67.

LALITA PARIHAR 353

been divided in estate from his coparceners, that the widowmust remain chaste and obedient to her guardians, that shemust offer the customary craddhas, and must not waste theproperty etc".2

LAW PRIOR TO HINDU ADOPTIONS AND MAINTENANCE ACT 1956

The law of maintenance assumed a special importance inHindu Law owing to the fact that the entire structure of theHindu society was based on the joint family system which im-plied jointness in property. The obligation to maintain the widowof the members of the coparcenary emanated from the Patri-archal system upon which the society was based. Hence themanager of the Mitakshara joint family in possession of jointfamily property was bound to maintain all its members bothmale and females including the widows and children of deceasedcoparceners, out of the income or corpus of the joint familyproperty. This obligation was and is commensurate with the pos-session of family property. In other words the fight of the wido-wed daughter-in-law existed only against the coparcenary pro-perty and was enforceable against the Karta of the family. Apartfrom this there was no personal obligation of the father-in-lawto maintain his widowed daughter-in-law.

DUTY OF FATHER-IN-LAW AND HIS HEIRS

The rights of the widowed daughter-in-law to claim main-tenance where her husband had left no estate after his death wasinitially moulded by three cases, two of Calcutta High Court 1and one of the Bombay High Court. 4 The question which arosein Rujjomoney Dossee v. Shib Chunder Mullick 5 for decisionwas whether a son's widow, who insisted on separate residencewithout any reasonable cause, was entitled to claim maintenance

J. Jolly, History of Hindu Law, Lecture IX p. 194.Rujjomoney Dossee v. Shib Chunder Mullic, 1897 Hyde's Reports103 and Khetramani Dasi v. Kashinath, (1868) 2 B.L.R. 15.Savitri Bai v. Luxmi Bai (1869)2 B.L.R. 573.

Hyde's Reports. 1897 p. 103 (The case was decided on June 23,1864).

354 COCHIN UNIVERSITY LAW REVIEW V9 e3

from her father-in-law who had inherited no property from plain-tiff's husband. About a year after the death of her husband theplaintiff went to reside at the house of the defendant. After threemonths she left the house on the ground that she was illtreatedand beaten by the wife of her deceased husband's brother. ChiefJustice Norman, speaking for the Court said:

"I am not satisfied on evidence that there has been anyreal cruelty to the plintiff so as to render it impossible forher to live in the defendant's house. She appears to shrinkfrom the severity and the discipline which Hindu Law andcustom impose on widows in her rank of life."

He further observed:

"According to Hindu law, probably the plantiff should bemaintained in the house of her father-in-law who ought tofind her in food and raiment. But when the father and theson are not joint in estate, the maintenance of the son'swidow appears to be a mere moral duty in her father-in-law,to the performance of which he is not compellable by law.The absolute power of a father as master and head of thefamily, over property acquired by himself, his right to dis-tribute it at his pleasure and to keep and reserve what hethinks fit for himself is asserted in the most distinct mannerin the numerous texts."'

The findings of the Court were far from satisfactory. Reliance hadbeen placed for the conclusion on the twin grounds of absolutepower of the father over his self acquired property and pre-ceptive nature of the Shastric texts enjoining the duty to main-tain family members. R An examination of the original texts andthe translations consulted by the Court, shows that the commen-

Id. at p. 104.

Ibid.

The Court in the course of its judgment relied on numerous textsof Hindu Law. The commentator Jaganatha treats the maintenanceof a family out of a man's own wealth as preceptive merely and afather slighting such precepts commits a moral offence but incursno civil penalty.

"ALIT A PARIHAR

56

tator Jaganatha was quoted out of context and stray observa-tions were picked out and aligned together. Jaganatha was deal-ing with partition when he referred to maintenance by way ofanalogy. The distinction between moral and legal culpability wasmade in the context of distribution of property by the fatheramong his sons. The two observations occur at different placesand in fact the latter precedes the former. 9

There were some earlier precedents where the father andthe son were joint in estate, the liability of the father-in-law tomaintain a son's widow was asserted.") Dealing with these casesthe Court observed:

"The present case is wholly distinguishable from thosewhere an heir takes property, subject to the obligation ofmaintaining persons excluded from inheritance, out of theestate of the deceased proprietor, or whom the deceasedproprietor was morally bound to maintain. In such casesHindu Law seems to annex the duty as a burden on theinheritance in the hands of the heir, and the right of theparty claiming maintenance appears to be a legal right ana-logous to a right of property." u

The above observation envisaged two classes where inheritancewas charged with the burden of maintenance, one consisting ofdisqualified heirs and the other of persons whom the deceasedproprietor was morally bound to maintain. There is specificShastric authority for provision of maintenance to those fallingin the first of these classes' and none appears to exist for themembers of the second class. The Court did not bother to explainits observations or indicate their Shastric foundations, perhaps,because the issue did not arise for decision in the instant case.

Rekhi, V. S., "Mahmood's opinion in Janki case: A study in acti-vism," Aligarh Law Journal (1973) p. 113.

Mst. Bheelu v. Phool Chand, Sudder Dewanny Vol. III (1824) p.298. Rai Sham Bullubh v. Pran Kishen Ghose, Sudder Dewanny(1820) Vol. III p. 44.

Supra, n. 5 at p. 104-105 (per Norman, C.J.)

See Mitakshara, Ch. 2 Sec. 10 (Colebrooke's Trans).

356 COCHIN UN!VERSITI' LAW REVIEW

It appears that the Rujjomoney Dossee's case (Commonlynown as Betal Chewer case) pursued the notion of maintenance

being co-extensive with property. If a person received propertyfrom the departed, he must maintain those whom the deceasedmight have maintaned or ought to have maintained. But HinduLaw would show that in certain case the duty to maintain adependant knew of no exception. A son cannot refuse to main-tain his mother on the ground that he had inherited nothingfrom his father. Therefore the parallelism of maintenance andinheritance could not be considered a feature of the Hindulegal system, nor perhaps did it fit in the complex relations ofa joint hindu family. The harsh individualistic materialism ofthe doctrine implicit in the observations of the Court in theBetel Chewer case was incompatible with the whole fabric ofHindu social life built round concepts of piety, spiritual benefitand corporate life.13

The ratio of the Rujjomoney Dossee's 14 case was con-sidered and the reasons advanced therein were reaffirmed andfurther strengthened by the Calcutta High Court in KhetramaniDasi v. Kashinath.15

Supra, n. 9 p. 114.

Supra, n. 3.

(1868) 2 B.L.R. 15: Where a daughter-in-law, who was resid-ing separately from her father-in-law, filed a suit for maintenanceagainst the father-in-law. The trial court decreed the suit. On appealto the High Court the matter first came up before a Division Benchbut was referred to a Full Bench consisting of the Chief Justiceand three other judges. Justice Loch, with whom justice Kemp agreedwas of the view that the father-in-law had a legal obligation to main-tain his son's widow in all cases. He rejected the distinction soughtto be made by Chief Justice Norman in the Rujjomoney Dossee'scase between the legal and moral obligations. The learned judge ex-pressed the view that if the property is self acquired the father-in-law is bound to maintain his widowed daughter-in-law as if he werein possession of ancestral property. Chief Justice, Peacock dissentingfrom the above view held that the maintenance of the son's widowis a mere moral obligation of her father-in-law and that such moralobligation cannot be converted into legal liabilities. The learnedChief Justice expressed the view that the heir who inherits andtakes the estate not for his own benefit but for the spiritual benefit

f. n. contd.

LALIT A PARIHAR , 381

The distinction between moral and legal obligations wastraced to the nature of the sanction indicated in the text im-posing the obligations. It was held that since the obligation tomaintain family members was coupled only with non-temporalsanctions like threat of hell or sin, it could not be a legal obli-gation. The other reason namely the unlimited powers of thefather over his self acquired property was asserted in a differentgarb. The Court held that the right cannot be enforced in acourt of law otherwise it would amount to an unwarranted in-trusion into the domain of Hindu domestic life jeopardising thefamily autonomy that the texts assure 16 The rule laid down inthis case has been subjected to strong criticism." Perhaps thecircumstances in which the case arose weighed heavily againstthe widow. She had refused to live in her father-in-law's housewithout any justifiable cause. The father-in-law was an old manhaving on a pension. He had his own wife to maintain. In fact

of the late father-in-law ought to perform the obligation of main-taining the widowed daughter-in-law. Maopherson, J., concurred withthe view expressed by Peacock, C.J. Since the Bench was equallydivided the appeal was decided according to the opinion of theChief Justice. The matter was then taken in appeal to a FullerBench consisting of seven judges.

"The father-in-law has a right to determine for himself as to themanner in which that obligation would be discharged and the civilcourts ought not to interfere with his discretion." Id. at p. 48 (perNorman J. See also Phear, J to the same effect at p. 50).

Bhattacharya considers the rule as harsh, unsympathetic and un-realistic "to a mind not penetrated with European notions and stillretaining the spirit of ancient Hindu Law as propounded by Rishisand their earlier commentators, this exposition of the law relatingto a widow's maintenance would appear harsh and unsympathetic.The life of a Hindu female is one of seclusion; outside the Zanana,her knowledge is as limited as that of a tender child, culture, train-ing or education she has absolutely none. If her rights are invadedby the male members of the family, she is utterly helpless; and shefalls under the influence of persons whose motives for lending hera help are the farthest from those of philanthropy or disinterestedgood will. Females belonging to the respected classes are incapableof earning their own livelihood, if the family property is trans-ferred by the male relations, what can these females do to keeptheir rights of maintenance secure?" Tagore Law Lectures, 1885,p. 232).

358 GOGH IN UNIVERSITY LAW REVIEW

at one stage, in his opinion chief Justice Peacock remarkedwhether the defendant was not to leave anything for his ownwidow. 18

The profound impact of the instant case becomes apparentby the fact that there has not been a single report of a judicialdecision awarding food and raiment to a son's widow residingwith her father-in-law who was not joint in estate with hisson and had not inherited any estate from him. Perhaps it dis-couraged litigations, or even more possibly, a Hindu widowresiding in her father-in-law's house had neither the courage northe means to sue him. If she left the house her rights vanished.The doors of temples of justice thus remained firmly closedagainst them.

The Full Bench was in complete accord with the conclu-sions arrived at by Chief Justice Peacock but it did not reiteratethe obiter of Norman, C.J. in the Rujjomoney Dossee's casewhich is virtually reproduced by the Chief Justice in his opinionin the instant case. However, it seems that the observations ofPeacock, J. were a distinct improvement over those occurringin Rujjomoney Dossee's case in so far as the reasons for whichthe moral obligation to maintain a dependant might be trans-formed into a legal one against the heirs of the obligee were alsohinted at.' 9

A Full Bench of the Bombay High Court in Savitri Bai's20

case completed the process initiated in Rujjomoney Dossee. The

Supra, n. 14 at p. 36.

"The maintenance of a widow being a moral obligation of the lateproprietor, the son who inherits takes the estate not for his ownbenefit but for the spiritual benefits of the late proprietor, and heought to perform the obligation of maintaining the widow." Khetra-mani Dasi v. Kashinath, (1868) 2 B.L.R. 15 at p. 34 per Peacock, C.J.

Savitri bai v. Luxmi Bat, (1869) 2 B.L.R. 573 (F.B.), where in apartition had taken place between her father-in-law and his brother,and another partition had taken place between her husband and hisfather. Both the husband and his father had consumed their estatesso that after their death the widow was placed in penury conditions.The defendant was willing to maintain her if she resided with him

f. n. contd.

LALITA PARIFIAR 359

widow had claimed maintenance from her husband's uncle. TheCourt denied the claim on two grounds viz (i) the distinctionbetween moral and legal obligation to maintain and (ii) theconnection between legal obligation to maintain the dependantsand inheritance to the estate of the deceased on whom they weredependant.

The various texts relating to maintenance were cited in thiscase and these were divided by the learned Chief Justice into twogroups with reference to the nature of the sanction indicated inthe text. The imperative text provided for a temporal sanctionlike fine, and were considered to impose legal obligation. The pre-ceptive texts enjoined a duty with only a non temporal sanctionand hence were held to impose only a moral obligation. 2i Sincethe texts relating to maintenance of family members other thanparents, wife or son indicated non temporal sanctions and pro-mised bliss or heaven as the reward for the performance, theywere considered as imposing only moral obligation. Ultimately itwas held that the brother of the father-in-law had only a moralobligation to maintain the claimant.

The Court ignored the social transition which brought suchlitigation to Courts. The Shastric texts related to a period whereprobably the sanction of hell had a hold on the mind of thecommon people and the fear of public censure and caste insti-tutions assured compliance. Those institutional controls lost theirvitality with the passage of time. Alternatives had yet to crystalize.

but she defended her refusal to live with him on the ground thatafter her husband's death while she lived there for a short durationshe was ill treated.

21 A sample may be cited;

Imperative text: A mother, a father, a wife and a son shall notbe forsaken, he who forsakes either of them, unless guilty ofa deadly sin, shall pay 600 panas to the king". Manu C 8 p. 389.Perceptive text: "The ample support of those who are entitledto maintenance is rewarded with bliss in heaven but hell is theportion of that man whose family is afflicted with pain by hisneglect; therefore let him maintain his family with the utmostcare."

360 COCHIN UNIVERSITY LAW REVIEW

A Full Bench of Allahabad High Court decided Gangabaiv. Sita Ram 22 on the same premise. It was held that a Hinduwidow is not entitled under the Mitakshara law, to be maintainedby the husband's relations merely because of her relationship.Her right depends upon the existence of ancestral property intheir hands. It was further held that the allowance drawn by thefather-in-law from the government is not in the nature of ance-stral property and hence she is not entitled to claim maintenance.However her claim to occupy two rooms in the house was de-creed by the court.

These cases 23 firmly established the principle that a father-in-law had only a moral obligation to maintain his son's widow.

The right of widowed daughter-in-law to claim maintenancefrom the family chief was discussed at length in Janki v. NandRam. 24 The subordinate court denied the claim on the groundthat family chief had no legal obligation tomaintain Janki. Onfurther appeal, the matter was referred to a Full Bench of theAllahabad High Court comprising of Chief. Justice Edge, JusticeTyrrell and Justice Mahmood.

The appellant vehemently contended that the Hindu Lawimposed an obligation on the family chief to maintain all the

[1876] D.L.R. I All. 170.

Rujjomoney Dossee v. Shib Chunder Mullick, Supra n. 5; Khetra-mani Dasi v. Kashinath, Supra, n. 3; Savitribai v. Luxmibai. Supra,n. 20; Gangabai v. Sita Ram, Supra, n. 22.

24 (1889) 1.L.R. 11 All. 195 (F.B.), The facts of the case were thatone Khilai Ram had two sons Ghasi and Nandram. The sons hadno interest in the self acquired properties of their father nor hadthey any estate of their own. Ghasi was' married to Janki whenboth were minors. Ghasi died during the life time of his fathereven before the Ganna Ceremoney could be performed. The widowbeing a minor herself at the time of her husband's death had nevercohabited with him or resided with his family or received any main-tenance from him but had resided with and been maintained by herfather. After Ghasi's death she continued to reside with her father.She claimed no maintenance from her fother-in-law but after hisdeath sued , Nand Ram, who become the family chief and father-in-law's widow on whom had developed the estate of Khiali Ramfor maintenance allowance at the rate of Rs. 8 per month.

LAL1TA- PARIHAR 381

members of his family and the obligation' should be.: judiciallyenforced. In the alternative it was contended that while thefather-in-law could be said to have only a moral obligation tomaintain his widow, the obligation ripens into a legal one asagainst his heirs. The respondents adopted the classical standthat the Shastric texts did not impose a legally enforceable obli-gation to maintain a brother's widow, that the obligation is con-fined to those who inherited from her late husband and con-sequently the courts must not travel beyond those limits.

The majority opinion in Janki was delivered by Chief JusticeEdge. The court held the defendant respondent liable to main-tain the widow mainly by relying on the settled principles viz;(i) A father-in-law had a moral obligation to maintain his son'swidow and (ii) Inheritance in Hindu Law was for the purposeof securing spiritual merit to the deceased. The court derived theconclusion from a combination of these two principles that theheirs of the Tather-in-law had a legal obligation to maintain hisson's widow out of the inherited estate since that Would conferspiritual merit on the deceased father-in-law. The authority forthis dine 'of reasoning was , found in the obiter . in they fiujjomoneyDosseeP- that had been reiterated in Khetramani Dasi.26 in addi-tion analogies of conversion of moral into legal obligation weredrawn from the doctrine of pious obligation of the son to payhis father's debts and the obligation of the brother to defray theMarriage expenses of his sister.

The majority opinion in the Janki's case thus took recourseto spiritual benefit doctrine as a catalyst in transforming themoral obligation of the father-in-law to maintain his son's widowinto a legal obligation. The real grounds for the opinion werehardly disclosed and the assiduity with which it avoided anyreference to extra judicial considerations must have dissatisfiedJustice Mahmood and constrained him to write a separate thoughconcurring opinion. Mahmood, J. after referring to several textson Hindu law gave an elaborate judgment holding that thedaughter-in-law was entitled to claim maintenance out of the

Supra, n. 5.

• Supra, .n, 14.


self acquired property of her father-in-law in the hands of hisson or heir. The steps of reasoning that led him to this conclu-sion are:

I. A Hindu father is under a moral, if not legal obligation togive his daughter in marriage.

By marriage a Hindu woman ceases to belong to herparental family and becomes a member of her husband'sfamily.

The head of a Hindu family is bound morally, if not legallyto provide for the maintenance of all the members of thefamily according to the various rules applicable to the claimsof each class of members.

Although a father-in-law in possession only of self acquiredproperty is not legally compellable to maintain his son'swidow, yet the Hindu law imposes a moral obligation onhim to provide for her maintenance.

An essential element of the son's right of inheritance fromhis father is spiritual benefit which in the contemplation ofHindu Law, the son confers upon the soul of his deceasedfather.

A son inheriting the self acquired property of his fathertakes that property subject to such moral obligations as areconducive to the spiritual benefit of his father and that suchmoral obligations become legal obligations as against theson who holds his father's property by inheritance.

Reflection on these premises reveals that a basic change in theoutlook is implied. These considerations had no relevance if thematter was to be considered on the basis of the father-in-law'sfreedom to deal with his self-acquired property. They rather drawattention to joint hindu family as the basic unit of the Hindulegal system. Justice Mahmood was not thinking in terms ofpersons but in terms of family members. This inference is re-inforced by the consideration relating to the moral liability ofthe manager to maintain all the members of the joint family.Thus Mahmood, J. substituted the joint hindu family as the

LALITA PARIHAR 363

proper perspective for determination of issues arising in thelanki's case. 27

The substitution of perspective achieved by Justice Mall-mood made it possible to focus attention on the core problem.The females in the 19th century had the role of a supervisorin domestic economy. She slaved, served and saved but wasnever an earning member and seldom had properties of her own.She looked for her succour to her family which was by andlarge her only source of strength. 28 The Shastric texts relating tomaintenance sought to assure her a minimum of decent life ina social set up that sapped all her initiative. To deny her main-tenance was virtually to deny her the right to live, for she usuallyhad no resources to fall back upon. Sharing of resources in thefamily was her only means. As a child she shared in her father'sfamily and as a married woman she looked to her husband'sfamily irrespective of the nature of the properties held by hermentors. Mahmood, J. perceived all this.

DUTY OF DONEE OR DEVISEE HEIRS

The principles enumerated in respect of maintenance of thewidowed daughter-in-law in Khetramani Dasi's29 case and Janki'scase30 have been reiterated in several decisions of various HighCourts. The Madras High Court has decided many cases3' onthis aspect of law. In Rangammal v. Echamma132 the daughter-in-law whose husband died during the life time of her father-in-law, claimed maintenance, after her father-in-law's death, againsther mother-in-law who inherited some of the items of the father-in-law's property under a will, and rest by succession. Subra-

Rekhi, V., S., op. cit. at p. 125.

Pannikar, K. M., "The middle period", Women of India, p. 13.

Supra, n. 15.

Supra, n. 24.

Rangammal v. Echammal, (1899) I.L.R. 22 Mad. 305; MeenakshiAmmal v. P. Rama Aiyer, A.I.R. 1914 Mad. 587; Ambu Bai V.

Sona Bai, A.I.R. 1940 Mad. 804; Appavu Udayan v. Nallammal, A.I.R.1949 Mad. 24.

32(1899) I.L.R. 22 Mad. 305.


mania Ayyer, J. speaking for the Bench held that the moralobligation of the father-in-law ripens into a legal obligation inthe hands of the heirs. The learned judge relied upon Janki'sdecision 33 and further observed:

"The better conclusion is, perhaps that the party whosemoral claim becomes a legal right would not be affected bytestamentary dispositions in favour of volunteers made bythe person morally bound to provide the maintenance. Nodoubt, if the title of the female claiming the maintenancewere dependant on the volition of such a testator he could,by his will have directed that she should get no maintenanceout of his estate. Nor in cases like this, her claim to main-tenance, originating from the status acquired by her mar-riage becomes a legal right independently of his violationand comes into existence at the same moment as the dis-positions in favour of the volunteer becomes operative. It isconsequently difficult to see how the latter could affect theformer."'4

The reasoning in Rangammal is based on the ethos that adependent member of family cannot be left unprovided for. Thetexts have gone to the extent of holding that even if there is noproperty left by the father leave apart the self acquired property,the heirs are liable to discharge the obligation of maintainingthe dependants. 35 So far the decisions laid down that the moralobligation ripens into a legal obligation as against the heirs. Butthe decision in Rangammal's case went a little further by hold-ing that even if it is a testamentary succession the legal obliga-tion exists. The same view was not doubted in Meenakshi Ammal

v. P. Rama Aiyar.36

Supra, n. 24.

Supra, n. 31 at p. 308.

15... Jolly,. op. cit. at pp. 134-135. There is a reference to a passage fromthe. writings of .Kamalakara to show that it is incumbent on thesons and grandsons to maintain indigent widows and doughters-in-laws, though no wealth of the father may be in existence,

36. A.I.R. 1914 Mad. 587.

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A Full Bench of Madras High Court in Ambu Bai v. SonaBai37 had to consider a similar question.. The question involved.was whether the step-mother in possession of the property of herhusband is bound to provide maintenance to the widoweddaughter of her late husband by the first wife when her hus-band's family was not able to support her This decision clinches'the issue whether the moral obligation ripens into a legal obli-gation when the heirs succeed the property. Leech, C.J. observed:

"The doctrine that a moral obligation becomes a legal obli-gation when the estate of a person on whom the moralobligation lay comes into the the possession of his heirsmay be open to criticism but it is too late in the day toindulge in it and the court must confine itself to the ques-tion—Whether the principle should extend beyond the caseof a widowed daughter-in-law."38

it, was held by the court that the rule of Hindu Law that thereis a moral obligation on a father to support his daughter, whethermarried or unmarried, applies to a widowed daughter who ispenniless. Consequently a Hindu widow is bound to maintainout of her husband's estate her husband's widowed daughterwhen the 'daughter is without means and her husband's familyis unable to support her.

Again a Division Bench of the Madras High Court inAppavu Udayan v. Nallamal 39 held that the obligations are gene-ral and are not confined to the Instance where the widoweddaughter-in-law is penniless and that the father-in-law's moralobligation to maintain his widowed daughter-in-law arises outof the affinity, between them and it is not dependent upon andirrespective of the family status which, existed between her hus-band and her father-in-law. Hence the moral obligation of thefather-in-law to maintain his widowed daughter-in-law out ofhis self acquired property and upon his death the ripening ofthat obligation into a legal liability of his heirs arises even when

A.I.R. 1940 Mad. 804.

Id. at p. 805.

A.I.R. 1949 Mad. 24,


there is a disruption by partition in the family of which thefather-in-law and the deceased husband of the widowed daughter-in-law were members.

The Calcutta High Court also in some of the decisions4°dealt with the basic principles involved in providing maintenanceto the widowed daughter-in-law or the dependants. The viewtaken by the court in all these cases was that the moral obliga-tion to support the daughter-in-law ripens into a legal obligationagainst the assets of the father-in-law in the hands of the heir.In Gopal Chandrapal v. Kadimbini Dasi, 41 the point involvedwas whether the daughter-in-law is entitled to maintainenanceout of the property in the hands of the donee or devisee. Thecourt preferred to follow the decision of Rangammal's case.42Rejecting the contention that the daughter-in-law is not entitledto maintenance from out of the property in the hands of thedonee or devisee, the Bench observed:

If the contention of the appellant were to prevail, it wouldbe possible for the father-in-law to evade his moral obli-gation and to protect his estate after his death from theclaim of the daughter-in-law which according to well esta-blished rules at this stage ripens into a legal claim.43

The Bench further held:

. . . . that the plaintiff is not entitled to evade the liabilitymerely because he received the estate of his father not byinheritance but way of gift during his life time. That thisview is well founded on principle is clear from the longline of cases which establish the right of the widow tomaintenance out of the estate of her husband when it haspassed into the hands of his heirs.44

Kwnini Dasee v. Chandrapoda Mondle (1889-90) I.L.R. 17 Cal.373 and Devi Prasad v. Ganwani Koer (1895) I.L.R. 22 Cal. 410.Infra, n. 43.Supra, n. 31.Gopal Chandrapal v. Kadimbini Dasi A.I.R. 1924 Cal. 364 at365 per Mookerjee and Chotzner, JJ.

Id. at p. 365.

P.

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This principle applicable to the widow of the deceased wasextended even to the widowed daughter-in-law. It will suffice toconclude from this decision that there is a legal obligation on thepart of the donee and devisee to provide maintenance to thewidowed daughter-in-law

In Foolcoomari v. Debendra Nath, 45 Ameer Ali, J. deli-vered a classical judgement and considered the conflicting viewsthat were in existence. It was a case where a father-in-law exe-cuted a will of his self acquired property making a provisionfor his wife but no provision was made for his son's wife. Thequestion was whether a devisee heir was liable to pay main-tenance to the widowed daughter-in-law. He made it clear thatthe decision in Gopal Chandrapal's46 case was sufficient to dis-pose of the case before him, but for the attempt made to bringin a distinction on the ground that Gopal Chandrapal's case wasa case of gift while Foolcoomari's case was one of testamentarydisposition. The learned judge treated both will and gift on thesame footing, one being transfer during lifetime and the otherbeing a transfer taking place at the time of death.

Ameer Ali, J. proceeded to find out as to how the moralobligation ripens into a legal obligation of the heirs. He observedthat it is the duty of the Hindu heirs to provide for the bodily,mental and spiritual needs of their immediate and nearest ance-stors; to relieve them from bodily and mental discomfort, toprotect their souls from the consequences of sin e.g. the leavingof outstanding debts and the leaving of dependents unprovidedfor, to protect them from the importunities of those who havebeen injured by neglect.

The learned judge observed:

. . there would be no rigid distinction between moralduty and legal duty, as there is in modern society. Bearingthis in mind, the explanation that occurs to me is as follows:The father can perform the duty. As long as he lives there

A.I.R. 1942 Cal. 474.

Gopal Chandrapal v. Kadimbini Dasi A.I.R. 1924 Cal. 364.


is the expectation that he will . He can perform it to thevery moment of his death. It is assumed that he will. If hedies without performing it, he has committed a sin; he hasleft something undone which he should have done. Oncehe dies the thing has happened; it cannot be remedied byhim. It is only for this reason that it cannot be remediedthat the court is ready to compel his heirs to relieve fatherfrom the consequences of sin." 47

This indicates that the learned judge by his own reasoning reachedthe same conclusion as was arrived at in Rangammal's case.

The only decision of the Madras High Court which dif-fered from Rangammal's case was in Sankramurthy v. Subbama48and this decision was mainly based on the authorities of theHigh Courts of Bombay" and Lahore 5° holding that the de-visee or donee heir is not liable to maintain the widowed daugh-ter-in-law.

I n the background of these cases it was held in Sankra-murthy's case that the widowed daughter-in-law does not acquirelegal right to mainteance out of the self acquired property ofher father-in-law which had been bequeathed by will. Thereasoning given by the court was that Subramania Aiyer, J. inRangammal's S1 was dealing with the very question which wasthen before them viz, whether a widow acquires a legal right tomaintenance out of the self acquired property of her father-in-law which had been bequathed by will. The Bench extractedthe relevant passage from that authority. 52 With reference tothat passage the Bench observed:

A.I.R. 1942 Cal. 474 at p. 475.A.I.R. 1938 Mad. 914.Bai Parvati v. Tarawadi Dolatram, (1901) I.L.R. 25 Bom. 262;Yamunabai v. Manubai, (1899) I.L.R. 23 Bom. 698; BhargirathiBai v. Dwaraka Bai, A.I.R. 1933 Born. 135.Bhagwanti v. Thakur Mal, A.I.R. 1926 Lahore 198.

Supra, n. 31.The passage runs as follows:"The better conclusion is perhaps that the party whose moral claimbecomes a legal right would not be affected by testamentary dis

1. n. contd,

LALITA PAkIHAR 369

"It will at once be clear from the quotation that what Subra-mania Aiyer, J. says though deserving of the very greatestrespect, does not lay down the law in the full sense of theterm. It is expressly made obiter dictum and is prefaced bythe word, 'perhaps' which can hardly suggest that thelearned judge had finally made up his mind. We ourselvesare again with great respect unable to follow him. He doesnot cite any text for authority in support of his statementof law. He does not say why the right to maintenance isindependent of the volition of the testator. His argumentreally in our opinion amounts to this, that the right tomaintenance is charged upon the testator's self-acquiredproperty and that he cannot . get rid of the charge. But if thewidow has no legal claim against him during his life-time,it cannot be charged on his property. We return to whatwe said when considering the distinction between inherit-ance and passing of property by will or gift, and repeat thatwe can see no valid reason why the right of a Hindu todispose of his self-acquired estate should be in any mannerrestricted."53

The Court took the view that when the transfer of propertyis by way of will or gift it is not necessary that the legattee ordonee should think of the spiritual welfare of the testator ordonor. The reasoning adopted by the Court was that the doneemay be a stranger, a Christian, Mahommedan or anybody. In

positions in favour of volunteers made by the person morally boundto provide maintenance. No doubt if the title of the female claim-ing maintenance were dependent on the volition of such a testatorhe could by his will have directed that she should get no maintenanceout of his estate. But in cases, like this, her claim to maintenan:eoriginating from the status acquired by her marriage becomes alegal right independently of his volition and comes into existence atthe same moment as the dispositions in favour of the volunteer be-comes operative. It is consequently difficult to see how the lattercould affect' the former."

Id. at p. 308 per Subramania Aiyar, J.

53. Sankara Murthy v. Subama, A.I.R. 1938 Mad. 914 per King andStodart, JJ., at p. 916.


these circumstances it cannot be said that they will do any actfor the spiritual welfare of the donor or the testator.

So long as the law was not codified, the society was guidedby the principles laid down by the text books on Hindu Lawwhich were given by the Rishis and law givers. The basic con-cept that the Hindu family is a homogeneous family consistingof all the members cannot be ignored in this context. It wasobserved in Sankrarnurthy's case 54 that Subramania Aiyer, J., inRangamal's cases expressed the view that when persons aremorally bound to provide maintenance testamentary dispositionscannot affect the legal right that accrued for maintenance. Inother words when there is a moral claim which matures into alegal right after the death of the father-in-law, it cannot bedefeated by testamentary dispositions or gift. The reasoning givenin support of this proposition is that the claim to maintenanceoriginates from the status acquired by marriage and when oncethat status is acquired, it cannot be defeated by any kind ofdisposition of the property. Whenever the moral obligation comesto an end, the legal right starts and the liability gets fastened.The reasoning is also based on the ground that a dependantmember of the family cannot be left unprovided for. The textsof Hindu law point out that there is a moral obligation on thefather-in-law to maintain the daughter-in-law and that the heirswho inherit the property are liable to maintain the dependants.It is the duty of the Hindu heirs to provide for the bodily andmental or spiritual needs of their immediate and nearer ancestorsto relieve them from bodily and mental discomfort and to pro-tect their souls from the consequences of sin. They should main-tain the dependants of the persons of property they succeeded.Merely because the property is transferred by gift or will infavour of the heirs the obligation is not extinct. When there isproperty in the hands of heirs belonging to the deceased whohad a moral duty to maintain, it becomes a legal duty in thehands of heirs. It makes no difference whether the property isreceived either by way of succession, or by way of gift or will,the principle being common in either case. The view expressed

Ibid.

Supra, n. 51.

LALITA PARIHAR 371

in Rangamma1, 56 Gopal Chandra Pat" and Foolcoomari Dasi,85wherein it was held that the legal liability upon a Hindu heir toprovide maintenance to daughter-in-law exists irrespective of thefact whether ' the heir takes the property by intestacy or undera will or gift, is logical.

DUTY OF STRANGER DONEE OR DEVISEE

The law regarding the liability of stranger donee or deviseeof father-in-law to maintain the widowed daughter-in-law wasnot well settled. With regard to gift or devise to strangers, AmeerAli, J. observed:

. . . . It does not seem to me so "startling," or so prepost-erous to conceive of a state of law whereby volunteers orpersons taking with notice should be affected by the claimto maintenance of a Hindu widowed daughter-in-law. Onthis qestion I am not called upon to express any finalview." 59

The above observation of Ameer Ali, J. indicates that evenif a donee or devisee is a stranger the liability to maintain doesnot cease. If we take into consideration the principle that thefather-in-law has to maintain the widowed daughter-in-law andprovide her maintenance during his life time, it is a moral obli-gation and is treated as a duty upon him to maintain her. It isfurther treated as a sin if she is not provided for. In such cir-cumstances could it be said that such a man could dispose ofhis property in favour of strangers in such a manner as to de-prive the widowed daughter-in-law of her maintenance. Theentire background of the Hindu jurisprudence clearly indicatesthat such an arrangement could never be made by a person whohas a moral obligation to maintain his dependants, because themoral obligation was treated as nothing short of legal obligationto maintain the dependants.

Supra, n. 51.

Supra, n. 46.

Supra, n. 45.

Supra, n. 45 at p. 475.


When the entire property is bequeathed or made over by agift to a stranger the donor or testator would naturally expectthat the obligations he has to fulfil during his life time wouldbe fulfilled by the donee or devisee stranger. Therefore we haveto presume that the donee or devisee stranger would fiulfil allthe moral obligations of the testator or donor. We often comeacross the cases where the self-acquired property of a person issought to be protected from going into the hands of a spendthrift son by bequeathing the same to his grandsons or to anotherson so that the dependants are properly maintained. When thatis so, can it be said that the moral obligation does not ripen intolegal liability when the property is in the hands of the donee ordevisee stranger? This is one aspect of the matter. This can belooked upon from another angle also over which some thoughtwas given in Gopal Chandra Pal's case. 6° wherein it was observedthat there was no difference in principle between a widow andwidowed daughter-in-law in so far as the maintenance is con-cerned. The Court took the view that there was no differencebetween a moral obligation and legal obligation as per the Hindusystem of jurisprudence.

It is submitted that the status of a widowed daughter-in-law is equivalent to that of a widow, who has indisputablya right of maintenance out of the property transferred asgratuitous and the right of maintenance of the daughter-in-lawshould be treated as equal to the right of a widow. Keep-ing in view the background of Hindu society and its customsand moral obligations, it is submitted that the claim to mainten-ance originating from the status acquired by marriage becomesa legal right independent of the father-in-law's volition and comesinto existence at the same moment as the dispositions in favourof the volunteer becomes operative. There is another aspect thatalso needs to be considered. The head of the family in Hindusociety whether or not he possessed ancestral property or self-acquired property, treated himself as head of the family andprovided maintenance to the dependents. Even in the absence ofany property it was considered to be a moral obligation on himto maintain the dependants out of his own earnings. As a na-

60. Supra, n. 46.

LALITA PARIHAR 373

tural corollary, when the property was bequeathed by a will ormade over by a gift, the person who took the property wouldhimself step into the shoes of the deceased and would dischargethe obligations attached to the property during the life time ofthe "karta."

Keeping in view the background of the Hindu society as itexisted and also having regard to the fact that there is no differ-ence between a moral obligation and legal obligation in so faras the head of the family is concerned, the only inference thatcould be drawn is that the property even if self-acquired, wastreated as trust property for maintenance of the family membersincluding the dependants. To put it in other words, the head ofthe family visualised that there is a charge attached to the pro-perty to maintain the family members. If that is so the transferees are affected by such charge and they would also constituteas trustees to maintain the dependants when the property is intheir hands. Therefore it is submitted that donee or deviseestrangers were also liable for maintenance of the widoweddaughter-in-law.

LAW AFTER THE HINDU ADOPTIONS AND MAINTENANCE ACT 1956

The Hindu Adoptions and Maintenance Act, 1956 61 confersa statutory right on a widowed daughter-in-law to claim main-tenance against her father-in-law. The Act puts the widoweddaughter-in-law as a class by herself. Section 19 of the Act pro-vides for maintenance of a widowed daughter-in-law by herfather-in-law under the circumstances mentioned therein.62

Hereinafter referred to as the Act.

Seiction 19 of the Act runs as under:"(1) A Hindu wife whether married before or after commence-ment of this Act, shall be entitled to be maintained after the deathof her husband by her father-in-law:Provided and to the extent that she is unable to maintain herselfout of her own earnings or other property or where she has no pro-perty of her own, is unable to obtain maintenance.

from the estate of her husband or her father or mother orfrom her son, daughter if any or his or her estate.

(f. n. contd.)


RIGHT TO MAINTENANCE DEPENDS ON EXISTENCE OF COPAR-CENARY PROPERTY

Any obligation under section 19 shall not be enforceableif the father-in-law has no coparcenary property in his possessionout of which the daughter-in-law has not obtained any share.63The question therefore arises as to what is the meaning of theexpression "Coparcenary Property." The term "CoparcenaryProperty" has not been defined in the Act or in the GeneralClauses Act. Taking note of this fact we have to find out theintention of the legislature while using this expression. At thetime of passing of the Act the legislature was well versed withthe meaning of the expression `coparcenary property' which al-though a technical term occurred very frequently in Hindu Law.

There are two Schools of Hindu Law, Mitakshara andDayabhaga. Under the Mitakshara law and under the DayabhagaLaw, coparcenary property consists of ancestral property, or ofjoint acquisitions or of property thrown into the common stockand accretions to such property. 64 Thus the definition of "Copar-cenary Property" is the same under both the schools of HinduLaw, even though their incidents are somewhat different.

In Gurdip Kaur v. Ghumand Singh, 65 a Full Bench of thePunjab High Court considered the question whether the expres-sion `Coparcenary Property' in section 19(2) of the Act appliesto ancestral property as that expression is understood undercustom as it is followed by the tribe of the parties, that is tosay, Jats in the state of Punjab. In view of the majority opinion

(2) Any obligation under sub section (1) shall not be enforceableif the father-in-law has not the means to do so from any coparcenaryproperty in his possession out of which the daughter-in-law has notobtained any share and any such obligation shall cease on the re-marriage of the daughter-in-law."

According to the provisions of section 19(2) of the Act, a father-in-law is bound to maintain his widowed daughter-in-law if he hasgot any coparcenary property in his possession out of which thedaughter-in-law has not obtained any share.Mulla, D.F., Principles of Hindu Law, para 276 at p. 315 (13thEdn.)A.I.R. 1965 Punjab 238.

LALITA PARIHAR 375

the term ccoparcenary property' occurring in section 19(2) ofthe Act means "The Property, or joint acquisitions, or propertythrown into the common stock and accretions to such pro-perty." 66 The Court gave a wider meaning to the expression"Coparcenary Property." P.C. Pandit, J. while delivering thejudgment of the Court gave the reasons for giving such widermeaning and observed:

"The intention of the legislature while using the term `copar-cenary property' in section 19(2) of the Act was also to thesame effect, because their object was to give maintenanceto the widowed daughter-in-law out of such property. Thisterm cannot be limited to the "ancestral property" above,because in a case where father-in-law has no ancestral pro-perty, but is in possession of the property which was jointlyacquired by him and his predeceased son, the widoweddaughter-in-law cannot be deprived of her maintenance andshe should get the same out of the joint property. Evenotherwise it is the moral obligation of the father-in-law tomaintain his widowed daughter-in-law, who cannot maintainherself. This moral obligation has now been turned into alegal obligation. There is no manner of doubt that this Acthad been framed with a view to confer much larger rightson women than they had hitherto been enjoying. Certainother Acts e.g. the Hindu Marriage Act 1955, the HinduSuccession Act 1956, the Hindu Minority and Guardian-ship Act 1956, were also framed with this object in view.Under these circumstances, a liberal interpretation in favourof the women should be given while construing the provi-sions of these Acts."67

ESTATE OF HUSBAND OR PARENTS BARS CLAIM

The Act imposes a statutory liability on a father-in-law tomaintain the widow of his predeceased son, only if she is notable to get maintenance either from the estate of her husband

Id. at p. 254.

Id. at p. 239.


or father or mother. 68 In Jal Kaur v. Pala Singh 69 a DivisionBench of the Punjab High Court considered the scope of theword "estate" and the expression "obtain maintenance from."Construing the word "estate," the Court was inclined to considerthat it has reference to the estate of the deceased persons andnot to their estate during their life-time. Regarding the meaningof the expression "obtain maintenance from," Dua, J. observed:

"There must, in my view, be a legal right in the widoweddaughter to demand maintenance from her father or motherof their estate, as the case may be, and she must in asser-tion of that right be able to so obtain maintenance. It isonly when she can obtain maintenance in pursuance of law-ful right that the operation of the proviso (a) to section19(1) can be said to be attracted."7°

In order to understand and appreciate the true meaningand scope of section 19 of the Act, the section must be construedand interpreted in the background and light of the legislativescheme or pattern which is discernible and which emerges froma reading together of the progressive legislative measures onsimilar cognate subjects like the Hindu Succession Act 1956,the Hindu Adoptions and maintenance Act 1956, and the HinduWomen's Right to Property Act 1937, as amended later andother enactments which have conferred on Hindu women a rightwith respect of property which they were considered not topossess under the original texts of Hindu Law. All these enact-ments which have, as their fundamental purpose, the removalof Hindu women's disabilities and conferment on them of betterrights for maintenance and property may be legitimately and withadvantage referred to and harmoniously construed for the pur-pose of ascertaining the real manifest intention and the under-lying cardinal purpose of the parliament in enacting the HinduAdoptions and Maintenance Act, in response to the needs anddemands of a progressive society.

These enactments clearly reflect the modern liberal tendency

Section 19.A.I.R. 1961 Punj. 391.Id. at p. 395.

LALITA PARIHAR 371

of the Hindu society to confer on Hindu women much largerrights than they had hithertofore been enjoying. The medievalconservative theory of treating women as inferior beings hasbeen finally discarded by Parliament in the clearest possibleterms. In view of these objectives a liberal interpretation favour-ing Hindu women should be placed on the provisions of theAct. Examining Section 19 in this background, in order to dis-entitle a Hindu widow of her right to claim maintenance fromher father-in-law as provided in section 19(1) of the Act, itmust be established affirmatively that she is able as of right toobtain maintenance either from the estate of her husband orfrom her father or mother.7'

S 19(2): NOT APPLICABLE TO DAYABHAGA

It is clear from the provisions of sub-section (2) of sec-tion 19 that in enacting that sub-section the legislature had in itsmind the provisions of section 6 of the Hindu Succession Act,1956. In view of section 6, if a male coparcener dies leavingbehind him a widow, the latter will inherit the share of her hus-band in the coparcentary property. As, therefore by virtue ofsection 6 of the Hindu Succession Act, the interest of a deceasedson in the Mitakshara coparcenary property devolves upon hiswidow by testamentary or intestate succession, the father-in-lawhas been absolved from the obligation to maintain his widoweddaughter-in-law if she has obtained a share of her husband'sinterest in the coparcenary property. In case she has not obtainedsuch share, still the obligation cannot be enforced against thefather-in-law unless the coparcenary property in the hands ofthe father-in-law is sufficient for the discharge of the obligation.Under the Dayabhaga school of Hindu Law, however, so longas the father is alive, the property whether self acquired or copar-cenary understood in the sense of ancestral property belongs tohim absolutely and his sons have no claim to the same. He may

71. Under section 21 of the Act, widowed daughter is dependant onlywhen, and to the extent that, she is unable to obtain maintenancefrom the estate of her husband or from her son or daughter, ifany or his or her estate; or from her father-in-law or his father,or the estate of either of them.

318 COCIIIN UNIVERSITY LAW REVIEW

dispose of his property in any way he likes. There is, therefore,no question of a widow inheriting a share of her husband in anycoparcenary property undeir the SDayabhaga school of HinduLaw. The provisions of sub-section (2) of section 19 cannottherefore apply when the parties belong to Dayabhaga schoolof Hindu Law. 72

SELF ACQUIRED PROPERTY AND FATHER-IN-LAW'S LIABILITY

Recently in T. A. Lakshmi Narasaimba v. T. Sunndar-amma, 73 a Full Bench of the Andhra Pradesh High Court con-sidered an important question of law as to whether the moral obli-gation of a father-in-law possessed of separate or self-acquiredproperty, to maintain a widowed daughter-in-law ripens into alegal obligation in the hands of persons to whom he has eitherbequeathed his property or made a gift of his property. TheCourt held that it does. The Court said:

"Merely because the property is transferred by gift or bywill in favour of the heirs the obligation is not extinct. Whenthere is property in the hands of the heirs belonging to thedeceased who had a moral duty to provide maintenance, itbecomes a legal duty on the heirs. It makes no differencewhether the property is received either by way of succes-sion or by way of gift or will, the principle being commonin either case."74

With regard to the liability of a donee or devisee stranger,the Court observed:

"Even if a donee or devisee is a stranger, the liability tomaintain does not cease. The entire background of theHindu jurisprudence clearly indicates that the head of thefamily cannot dispose of property in favour of strangers in

Katzailal Pramanik v. Smt. Pushpa Rani Pramanik, A.I.R. 1979 Cal.172.

A.I.R. 1981 A.P. 88 (F.B.)

Id. at pp. 105-106, per Madhava Rao, J.

LALITA PARIHAR 37 9

such a manner as to deprive the dependants of theirmaintenance.""

The head of the family visualised that there is a charge attachedto the property to maintain the family members. If that is so,the transferees are affected by such charge and they would alsoconstitute as trustees to maintain the dependants when the pro-perty is in their hands.

Section 22 of the Act speaks that the heirs of a deceasedHindu are bound to maintain the dependants of the deceasedout of the estate inherited by them from the deceased. 76 The word"heirs" used in sub-section (1) of section 22 includes doneesaild devisees. A Division Bench of the Punjab High Court ob-served in Gulzara. Singh v. Smt. Tej Kaur77 that the word "heir"must be construed in a broad and general sense so as to 'includeall those on whom the estate of the deceased devolves whetheron intestacy or by means of a testamentary instrument like awill.

CONCLUSION

Section 19 of the Act does not make it a personal obliga-tion of the father-in-law to maintain his widowed daughter-in-law. The right guaranteed to her has been made conditional bycertain limitations, namely, (a) widowed daughter-in-law shouldnot be able to maintain hereself by her own earnings or otherproperty, or where she has no property of her own, is unable tomaintain hereself from the estate of her husband or her father,

75. Id. at pp. 107-108.

76. Section 22 of the Hindu Adoptions and Maintenance Act runs:

"Subject to the provisions of sub-section (2) the heirs of adeceased Hindu are bound to maintain the dependants of thedeceased out of estate.

Where a dependant has not obtained; by testamentary or inte-state succession any share in the estate of a Hindu dying afterthe commencement of this Act, the dependant shall be entitled,subject to the provisions of this Act, to maintainance fromthose who take the estate.

77. A.I.R. 1961 Punj. 288.

380 COCHIN UNIVERSITY LAW REVIEW C1S'3

or mother or from her son or her daughter, if any or from hisor her estate. (b) The father-in-law should be able to maintainher from that coparcenary property in which the daughter-in-law has not obtained any share (c) the daughter-in-law shouldremain unmarried.

Barring the last limitation the other provisions reflect harsh-ness towards her. In the first limitation it is essentially implicitthat falling short of her own earnings and husband's estate thewidowed daugther-in-law should obtain maintenance from theestate of her father or mother. This is incompatible and incon-sistent with the ethos of Hindu community where a Hinduwoman ceases to belong to her parental family by marriage andbecomes a member of her husband's family. At times the widowmay somehow manage to live with or be maintained by herfather or they may somehow manage to save her from starva-tion. It does not mean that since she has obtained maintenancefrom her parent's estate the father-in-law's obligation to main-tain her becomes extinct.

The second limitation leads towards nullifying the veryobjective which the legislature bore in mind while drafting theHindu Code Bill.'" To say that the father-in-law is bound tomaintain her only if he has in his possession that coparcenaryproperty in which the daughter-in-law has not taken any shareis to provide noting. Suppose the daughter-in-law has obtained ashare in the coparcenary property but that share is nominal.Does it mean that since she got a share in the coparcenary pro-perty the father-in-law has no obligation to maintain her eventhough he is an affluent person? Under Section 19 of the HinduAdoptions and Maintenance Act the father-in-law's obligationis a very limited one. If the coparcenary property in his handsis very meagre he may not have any obligation to maintain herand if there is no property in his hands there is no obligationwhatsoever. The Act makes maintenance payable out of thecoparcenary property. After the passage of the Hindu Succession

78. The draft Hindu Code of 1947 had proposed that a widowed daug-ter-in-law should be maintained by her father-in-law even out ofhis personal wealth. (See the draft code of 1947 section 126 partIII).

LALITA PARIHAR 381

Act 1956 or the coming into force of the provisions of the HinduWomen's Right to Property Act 1937 - the daughter-in-law inher own right could claim the share of her husband in the copar-cenary property. She is entitled to maintenance, only if she doesnot enforce her right to share, it becomes an unappreciable andunwanted right.79

•

A distinction is made by section 19 of the Act between theMitakshara and Dayabhaga laws with regard to the liability ofa father-in-law to maintain his widowed daughter-in-law. If oneis governed by Mitakshara law, only the coparcenary propertywould be liable, whereas under Dayabhaga law both the self-acquired and inherited property would be included. Thus sub-section (2) of section 19 is not uniform in its application toMitakshara and Dayabhaga widowed daughter-in-law. This pro-vision needs to be amended making self acquired and separateproperties liable for maintenance even under the Mitaksharalaw so that both the schools are brought at par. Such a measurewould be in consonance with the notions of distributive justiceWithin the family, especially when the state has not introducedadequate measures of social security.

79. The moral obligation of a father-in-law possessed of separate or selfacquired properties to maintain the widowed daughter-in-law ripensinto a legal obligation in the hands of persons to whom he has eitherbequeathed or made a gift of his property. From this state of lawthe analogy that can be drawn is that the notion of maintenance isco-extensive with property. But even a passing acquaintance withHindu Law would show that in certain cases the duty to maintaina dependant knew of no exception. Could a son refuse to maintainhis mother on the ground that he had inherited nothing from hisfather?

Widowed Hindu Daughter-in-law Right to Maintenance

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