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Article Published in the Express Magazine Dated
May 27, 2001
General Attorney : Rajiv K. Luthra
My sister is getting divorced, after which, her
two minor children (aged 10 and 12) will live with
her. Her husband has told her he will not pay any
maintenance after the divorce. Can he get away
with that? Do the children at least get
maintenance by default?
Anjuli C, Bangalore
The Hindu Marriage Act, 1955, provides maintenance
for the wife both during the pendency of divorce
proceedings and after the dissolution of a
marriage. In case the divorce comes through, your
sister's husband is liable to pay maintenance.
Section 25 of the Hindu Marriage Act makes
provision for a wife to claim alimony through a
court after divorce.
However, there are certain conditions under which
such maintenance is ordered by the Court and each
case depends on individual circumstances. The
amount of maintenance should be such that the wife
can live in reasonable comfort, considering her
status --- economical as well as social --- and
the lifestyle she was used to when she lived with
her husband. If the wife has a private income to
maintain herself in this way, she may not be
entitled to any maintenance whatsoever, depending
upon her husband’s income as well as her own. But
the Courts have held that even where the wife is
educated, but unemployed, maintenance cannot be
refused merely because she is capable of securing
employment. The wife has to be enabled to lead an
independent life. But, if the wife has remarried
or has a new partner the court may, on instance of
the husband, vary, modify or rescind the alimony.
The father must also pay maintenance to his minor
children, legitimate or illegitimate. Though the
children have an independent right to maintenance,
the mother must make a claim for such maintenance.
The children do not get maintenance by default.
The right of the child for maintenance is separate
from that of the mother's. Therefore, your sister
must submit a separate claim for the maintenance
of her children. Even under Section 125 of the
Code of Criminal Procedure, 1973, a magistrate of
the first class may, in the event of a husband’s
refusal to maintain his wife and dependent
children, despite his having “sufficient means”,
order him to pay a monthly allowance for their
maintenance.
Who can be an executor of a Will? What is his
role? Can the executor under a Will also be a
beneficiary under it?
Ravi Barman, Delhi
An executor is a person to whom the execution of
the last will of a deceased person is, by the
testator’s appointment, confided. Any person, who
is of sound mind shall be capable of acting as an
executor. To exclude anyone, very stringent
grounds must be alleged. The appointment of an
executor may be either express or constructive by
any word or circumlocution found in the will. So
nominated, he is a legal representative for all
purposes and he is entitled to represent the
estate of the deceased. He collects the assets,
pays the debts and discharges the legacies
contained in the Will. Further, he has to provide
funds for the performance of the necessary funeral
ceremonies of the deceased in a manner suitable to
his condition, if he has left property sufficient
for the purpose.
There is nothing under the Indian law that states
that an executor under a will cannot receive
benefit under it. If the will so provides any
legacy in favor of a person who also happens to be
an executor of the Will, he shall be entitled to
receive his share just as any other person to whom
any legacy is provided.
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