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Synopsis

A division bench of the Bombay High Court at Aurangabad, comprising Justice Ravindra V Ghuge and Justice YB Khobragade, recently ruled that the right to maintenance under Section 18 of the Hindu Marriage Act is a right in personam and not a right in rem.

“Needless to say that right to claim maintenance under the personal laws viz., Hindu Adoption and Maintenance Act, Muslim Law, Christen Law is in the personal nature. It is an individual privilege of a person who is governed under the Personal Law. The right to maintenance is a right in personam or jus-in-personam,” the high court said.

The high court was hearing a plea filed by the daughter of a deceased mother seeking enhancement of the maintenance awarded by the Family Court. The mother had previously filed a Section 498A case against her husband and also applied under Section 18 of the Hindu Adoption and Maintenance Act before the Family Court.

The Family Court had directed the husband to pay monthly maintenance of Rs. 10,000 to the wife. However, the wife filed an appeal seeking an increase in the maintenance amount.

Notably, the daughter had obtained a decree in her favour, and 1/5 of the property was awarded to her. However, no maintenance was granted to the daughter.

During the pendency of the appeal filed by the mother, she passed away, and the daughter contended that she should be allowed to contest the appeal on behalf of her deceased mother.

Advocate SB Ghatol Patil, representing the daughter, argued that even though the mother has passed away, the cause of action still exists, and the daughter has the right to continue with the appeal. Therefore, it is requested that the daughter be brought on record as the legal heir of the original appellant.

On the other hand, Advocate SS Bora, representing the husband, contended that the right to claim maintenance is personal in nature, and the cause of action comes to an end upon the death of the person who claimed maintenance under the statute.

Thus, in the present case, the cause of action ceases with the death of the original appellant (wife), and the married daughter does not have the right to continue with the appeal for enhancement of maintenance.

The division bench concurred with the husband's argument and noted that the right in personam is an individual prerogative right governed under the specific statute, which gives rise to a cause of action against another individual person.

“Under Section 18 of the Hindu Adoption and Maintenance Act, a Hindu married woman, minor children are entitled for maintenance. The right in personam is an individual prerogative right governed under the Specific Statute, give rise to a cause of action against the another individual person. The right in personam confers legal right on a specific/single person. Right of maintenance is in the nature of personam and it is not a right-in-Rem or proprietary right,” the bench observed.

Furthermore, the court observed that when the wife had initiated proceedings under Section 18 of the Hindu Adoption and Maintenance Act, the daughter was not a minor and was not dependent on the income of the appellant (wife).

Considering the provisions of Order 22 Rule 1 & 2 of the Civil Procedure Code, the court held that no right to sue survives for the married daughter to claim an enhancement of maintenance on behalf of her deceased mother (wife).

However, the court allowed the daughter to recover arrears of maintenance granted from the father after obtaining a succession certificate from the competent court of law.

Case title: Jayshree Jimdam & Anr vs Satyandra Jimdam