In a recent ruling , the Division Bench of the Bombay High Court at Aurangabad consisting of Justices Ravindra V. Ghuge and Y.G Khobragade held that the married daughter of a deceased woman cannot make a claim for enhancing the maintenance which has been awarded to her mother.
According to the facts of this case , Ms. Jayashree Jindam ( now deceased) had filed an application under Section 18 of the Hindu Adoption and Maintenance Act ( HAMA) through which she sought for enhancement of the monthly maintenance of Rs.10,000 which was awarded to her after she filed for a divorce under Section 498 A. Ms. Jayashree Jindam passed away during the pendency of the appeal and her daughter , who was married , contended that she should be allowed to contest the appeal on behalf of her mother. It was also noted that the daughter was awarded 1/5th of her father’s property but was not granted maintenance .
Advocate SB Ghatol Patil , who appeared on behalf of the daughter argued that despite the demise of her mother , the cause of the action does not cease to exist and claimed that the daughter has the right to continue with the appeal and requested the Court that she be considered on record as the legal heir of the original appellant ie. Ms. Jayashree Jindam.
The respondent’s side , who was represented by Advocate SS Bora contended that the right to claim maintenance is a right in personam ( personal in nature ) and therefore the cause of action ceases to exist upon the death of the person who claimed right to maintenance under the existing statute.
The Division Bench passed a judgement concurring with the respondent side’s argument stating the right to claim for maintenance is an individual right which is governed under Section 18 of the Hindu Adoption and Maintenance Act thereby granting cause of action against an individual person.
Furthermore , the Court declared that the right to claim for maintenance which is a right in personam confers legal right upon a specific person and it is not a proprietary right. The Court also brought to notice that the daughter was not a minor when Ms. Jayashree Jindam applied for proceedings under Section 18 of the Hindu Adoption and Maintenance Act , her daughter was not a minor who was dependent on her income .
Taking in consideration the provisions of Order 22 Rule 1 & 2 of the Civil Procedure Code , the Court held that a married daughter has no right to sue for claim to enhance maintenance on behalf of the appellant ie. the deceased mother.
Written by – Parvati Arun, intern under Legal Vidhiya
