HAMA | Daughter Cannot Continue Mother's Maintenance Claim After Her Death: Bombay High Court

A division bench of Justice Ravindra V Ghuge and Justice YG Khobragade sitting at Aurangabad refused to allow married daughter of a deceased woman to continue claim for enhancement of maintenance awarded to her mother.

“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…right of maintenance of wife against her husband is in personam and not in rem, therefore, the right to sue does not survive in favour of the applicant, who is married daughter of the deceased Appellant and Respondent”, the court held.

The case involved one Jayshree, who is now deceased. She had filed an application under Section 18 of the HAMA seeking enhancement of maintenance awarded to her from her husband, one Satyendra Jindam. After her death, her married daughter sought to continue the case and filed the present application seeking to be brought on record as her mother’s legal heir.

As per the applicant, her parents marital relations were initially cordial, but they later grew strained, leading to separate living arrangements. Jayshree had filed a petition before the Family Court in Nanded, seeking maintenance of Rs. 1.50 lakhs per month. However, the Family Court granted maintenance of Rs. 10,000/- per month. Consequently, she filed an appeal under Section 19 of the Family Courts Act seeking enhancement of maintenance to Rs. 1.50 lakhs. However, during the pendency of the appeal, Jayshree passed away on May 13, 2023. The applicant argued that the cause of action survives, and she has the right to continue with the appeal as Jayshree's legal heir.

The question before the court was whether the right to sue survives with the legal heirs of the deceased in a case for enhancement of maintenance under the personal law, specifically the Hindu Adoption and Maintenance Act.

Advocate for the respondent-husband argued that the right to claim maintenance under the Act is limited to legally wedded wife and children. They contended that the right to claim maintenance is personal in nature and ceases upon the death of the person who claimed maintenance under the statute.

The court examined the legal provisions, including Order 22 Rules 1 & 2 of the CPC, which deals with the abatement of suits after the death of a party. The court stated that the right to sue survives when it pertains to the creation, transfer, or devolution of interest in the nature of property. However, the court clarified that it does not apply when the right to sue is personal in nature.

The court noted that the right to claim maintenance under personal laws like the HAMA is an individual prerogative right. Such rights are in personam or rights against specific individuals based on the personal law governing them. It emphasized that the right to maintenance is not a right in rem (right in respect of thing), but rather a right in personam (right against or in respect of a person).

The court rejected the application holding that the appeal has abated as right to sue for enhancement of maintenance does not survive for the married daughter in respect of her deceased mother's claim.

“Nevertheless, when the Appellant (Deceased) had filed proceedings under Section 18 of the Hindu Adoption and Maintenance Act, the present applicant was not minor and she was not dependent on income of the Appellant. Therefore, taking into consideration of provisions of Order 22 Rule 1 & 2 of C.P.C., no right to sue survives to the married daughter to claim for enhancement of maintenance in respect of deceased Appellant”, the court added.

The court clarified that the applicant, being a legal heir, can recover the arrears of maintenance granted against her father after obtaining a succession certificate from the competent court of law.

Case no. – Family Court Appeal No. 35 of 2021

Case Title – Jayshree @ Pushpa v. Satyendra s/o Shivram Jindam