Criteria for deciding maintenance in Matrimonial cases in India

Rajnish Vs. Neha, 4 November, 2020, Supreme Court of India 

In Rajnesh v. Neha, a division bench of Hon’ble Supreme Court framed guidelines relating to the payment of maintenance in matrimonial disputes to ensure uniformity.

1. Act’s covered :

1. Constitution of India -Article 15(3), Article 39
2. P.C – Section 125, 128
3. Special Marriage Act, 1954 – Section 4, 36, 37
4. Protection of women from Domestic Violence Act, 2005
5. Hindu Adoptions and Maintenance Act 1956 – Section 18, 23
6. Hindu Marriage Act, 1955 – Sections 9 to 14, 24 and 25

2. Facts of the Case:

The wife filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf of herself and the minor son. Family Court vide a detailed Order dated 24.08.2015 awarded monthly interim maintenance to wife and son from 01.09.2015 onwards till further orders were passed in the main petition.

The husband challenged the Order of the Family Court vide Criminal Writ Petition No.875/2015 filed before the Bombay High Court, Nagpur Bench. The High Court dismissed the Writ Petition vide Order dated 14.08.2018, and affirmed the Judgment passed by the Family Court.

 The husband filed Criminal Appeal in Hon’ble Supreme Court against the order of Hon’ble Bombay High Court. The Supreme Court affirmed the order of the Family Court and directed the husband to pay the entire arrears of maintenance within a period of 12 weeks from the date of this Judgment.

In the present case, proceedings for interim maintenance were pending from last seven years, the Hon’ble Supreme Court directed the family court to decide the application u/s 125 of Cr.P.C. within 6 months from the date of this judgement in light of the issued guidelines.

4. Hon’ble Supreme Court Guidelines for deciding Maintenance in matrimonial disputes:

Considering the present case, wherein the application for interim maintenance was pending before various courts for seven years, Hon’ble court decided to frame guidelines on issues relating to maintenance in matrimonial disputes covering following issues:

1. Overlapping jurisdiction under different enactments for payment of maintenance;
2. Payment of Interim Maintenance;
3. Criteria for determining the quantum of maintenance;
4. Date from which maintenance is to be awarded; and
5. Enforcement of orders of maintenance.

Overlapping jurisdiction under different enactments for payment of maintenance

As maintenance may be claimed under various statutes and each provides independent and distinct remedy with specific purpose and object. A Hindu wife may seek remedy in

• Hindu Adoptions and Maintenance Act 1956
• proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under Sections 24 and 25
• the Hindu Marriage Act, 1955.
• Maintenance under section 125 of Cr. P.C.

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country.

The Hon’ble Court directed that:

• where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set- off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
• it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
• if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

Payment of Interim Maintenance

The Hon’ble court noticed that applications kept pending for years despite the fact that Section 24 of Hindu Marriage Act and section 125 of Cr. P. C. provides that proceedings for interim maintenance shall be disposed of within 60 days from date of service of notice on the contesting partner.  The delays are caused by various factors, such as tremendous docket pressure on the Family Courts, repetitive adjournments sought by parties, enormous time taken for completion of pleadings at the interim stage itself, etc. Pendency of applications for maintenance at the interim stage for several years defeats the very object of the legislation.  Considering these obstacles, The Hon’ble court laid down following guidelines:

1. In the first instance, the Family Court in compliance with the mandate of Section 9 of the Family Courts Act 1984, must make an endeavour for settlement of the disputes.
2. Marriage Counsellor should be appointed in every Family Court, to help in process of settlement to give effect to the provisions of Section 5 and 6 of the Family Courts Act.SS
3. The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before the concerned court, as a mandatory requirement.
4. The aforesaid affidavit will be used for making objective assessment of the approximate amount to be awarded towards maintenance at the interim stage by the appropriate Court. The Hon’ble court also provided an uniform format of comprehensive Affidavit of Disclosure of Assets and Liabilities.
5. With regards to Permanent Alimony, the Court held that Parties can lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse. The duration of the marriage should be considered as a relevant factor when determining the permanent alimony to be paid. If there are any trust funds/investments created by any spouse/grandparents in favour of the children, this should also be taken into consideration while deciding the final child support.

The Hon’ble Court held that the Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of the judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.

Criteria for determining quantum of maintenance

The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. Following factors to be  considered while deciding quantum of maintenance:

1. status of the parties;
2. reasonable needs of the wife and dependant children;
3. educational and professional qualifications of the applicant;
4. any independent source of income of applicant;
5. standard of living as she was accustomed to in her matrimonial home;
6. whether the applicant was employed prior to her marriage?
7. whether she was working during the subsistence of the marriage;
8. whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family;
9. reasonable costs of litigation for a non-working wife.
10. the standard of living of the husband
11. financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain;
12. spiralling inflation rates and high costs of living.

The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

In addition to facts stated above, following factors should be given due consideration:

1. Age & employment of parties
2. Right of residence: Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly. Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household.
3. Where wife is earning some income:- The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Court must determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home.
4. Maintenance of minor children:- The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular / coaching classes, and not an overly extravagant amount which may be claimed. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
5. Serious disability or ill health: Serious disability or ill health of a spouse, children from the marriage/dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.

Change in circumstances:

 If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended / supplementary affidavit, which would be considered by the court at the time of final determination.

The Court, also  clarified  that If the district court is satisfied that there is a change in the circumstances of either party at any time after it has made an order, it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the court to be just.

The Court, however, clarified that the aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factors which may be necessary or of relevance in the facts and circumstances of a case.

False Affidavit:

Further, the pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C., and for contempt of Court. Any false statement in the affidavit, apart from being contempt of Court, may also constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code punishable with imprisonment upto seven years and fine, and Section 209 of Indian Penal Code punishable with imprisonment upto two years and fine.

Date from which Maintenance is to be awarded

There are basically three views on the date from which, maintenance ought to be granted to the applicant. First is from the date of application, second is from the date of order and third in from the date of service of summon.

After due considerations, the Hon’ble Court held that it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, The Hon’ble court find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.

Enforcement of orders of maintenance

Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation

The Court observed that execution petitions usually remain pending for months which completely nullifies the object of the law.

For enforcement / execution of orders of maintenance, Hon’ble Court directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.