How should the amount of maintenance be determined by the Court in India?

Section 23 vests the Court with a wide discretion in the matter of fixing the quantum of maintenance. The discretion must be sound and reasonable and judicially exercised. The Court must be guided by the relevant provisions of the Act and have regard to its object. The fixation of the quantum of maintenance cannot be a matter of mathematical certainty.

In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents, regard shall be had to.

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(a) The position and status of the parties;

(b) The reasonable wants of the claimants;

(c) If the claimant is living separately, whether the claimant 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 earning or from any other source;

(e) The number of persons entitled to maintenance [Vide sub­section (2) of section 23].

Quantum of maintenance depended upon gathering together of all facts of situation, amount of free estate, past life of married parties and families, a survey of conditions and necessities and rights of members on a reasonable view of change of circum­stances possibly required in future, regard being had to scale and mode of living and to the age, habits, wants and class of life of parties. Section 23(2) makes no departure from these principles except perhaps to a limited extent envisaged in sub-clause (d) and (e). [Bhagwan v. Kamla Devi, A.I.R. 1975 SC 83).

In determining the amount of maintenance, if any, to be awarded to a dependant, regard shall be hard to

(a) That net value of the estate of the deceased after providing for the payment of his debts;

(b) The provision, if any, made under a will of the deceased in respect of the dependant;

(c) The degree of relationship between the two;

(d) The reasonable wants of the dependant;

(e) The past relations between the dependant and the deceased;

(f) The value of the property of the dependant and any in­come derived from such property; or from his or her earn­ings or from any other source;

(g) The number of dependants entitled to maintenance under the Hindu Adoptions and Maintenance Act. [Vide sub­section (3) of section 23].

Section 24 of the Act provide that no person shall be entitled to claim maintenance if he or she has ceased to be a Hindu by conversion to another religion.

The amount of maintenance, whether fixed by decree of Court, or by agreement, either before or after the commencement of the Hindu Adoptions and Maintenance Act, may be altered subse­quently if there is a material change in the circumstances justify­ing such alteration. [Vide Section 25].

Section 26 of the Act says that the debts of every description shall have priority over the claim of his dependants under the Act.

A dependant’s claim for maintenance however, shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of Court, by agreement between the dependant and the owner of the estate or portion or otherwise. [Vide Section 27].