In a landmark judgment, the Supreme Court has issued guidelines on payment of maintenance in matrimonial matters.
The bench comprising Justices Indu Malhotra and R. Subhash Reddy ruled that payment of maintenance in matrimonial matters will be awarded from the date of filing the application for maintenance.
The judgment was marked in a matrimonial case, in which the issue of maintenance of a wife and son under Section 125 of the Code of Criminal Procedure (CrPC) was raised.
The bench was hearing an appeal against a judgment of Delhi High Court. In September, last year, the court had appointed Senior Advocates Gopal Sankaranarayanan and Anitha Shenoy as Amicus Curiae to assist it, it in framing guidelines on payment of maintenance in matrimonial matters. They had also submitted a report.
“For enforcement / execution of orders of maintenance, it is 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“, the bench noted.
Observation made by the Court
- The Bench dealt with following facet:
Criteria for determining quantum of maintenance
The Supreme Court clearly spell out that there can be no straitjacket formula for fixing the quantum of maintenance to be awarded. However, it set down the factors to be considered while fixing the quantum of maintenance.
The Court held that the factors laid down by it are not exhaustive and that judicial discretion is vested in the family courts to consider any other factor which may arise in the facts and circumstances of the case for payment of maintenance in matrimonial matters.
The Court set down the following factors on payment of maintenance in matrimonial matters:
(a) Age and employment of parties: The court ruled that in a marriage of long duration, where parties have endured the relationship for several years, this would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. With the advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years.
(b) Right to residence: It was observed that Section 17 of the Domestic Violence Act grants an aggrieved woman the right to live in the “shared household”. The right of a woman to residing in a “shared household” defined under Section 2(s) of the DV Act entitles the aggrieved woman for the right of residence in the 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,” the judgment said.
(c) Where the wife is earning some income: The Court observed that Courts have consistently pronounced that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband.
(d) Maintenance of minor children: The living expenses of the child, the Court ruled that it would include expenses for food, clothing, residence, medical expenses, and education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be also 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,” it noted.
(e) Serious disability or ill health: The Court added that serious disability or ill health of a spouse, child/children from the marriage/dependant relative who requires constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance,
The Court referred the verdict of Jasbir Kaur Sehgal v District Judge, Dehradun & Ors., and held that following factors should, inter alia, be considered:
(a) the status of the parties; (b) reasonable needs of the wife and dependant children; (c) whether the applicant is educated and professionally qualified; (d) whether the applicant has any independent source of income; (e) whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; (f) whether the applicant was employed prior to her marriage and whether she was working during the subsistence of the marriage; (g) reasonable costs of litigation for a non-working wife.
- Issue of overlapping jurisdiction
The Court held that it has become necessary to issue directions to overcome the issue of overlapping jurisdiction and to avoid conflicting orders being passed in different proceedings. Such directions are necessary so that there is uniformity in the practices on payment of maintenance in matrimonial matters followed by family courts, district courts and magistrate courts throughout the country.
The issued the following directions on the Issue of overlapping jurisdiction
1. Where successive claims for maintenance are made under different statutes, the court would consider adjustment or set-off of the amount awarded in a previous proceeding while determining whether any further amount is to be awarded in the subsequent proceedings.
2. It is mandatory for the applicant to disclose during the subsequent proceedings, details of the previous proceeding and the orders passed in such previous proceedings.
3. If the order passed in the previous proceedings requires any modification or variation, the party would be required to move the concerned court in the same proceeding.
- Enforcement of orders of maintenance
The Court on this issue ruled that an order of maintenance may be enforced/ executed under Section 28A of the Hindu Marriage Act, Section 20(6) of the Domestic Violence Act or Section 128 of CrPC. Further, an order for maintenance may be enforced as a money decree under the Code of Civil Procedure.
- Date from which maintenance is to be awarded
The court ruled that for payment of Interim Maintenance, the Affidavit of Disclosure of Assets and Liabilities 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. The model affidavit is annexed as Enclosures I, II and III of this judgment.
“It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.” the Court noted.
“Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., 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, we find that there is a 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”, observed the Court
The court noted that the rationale of granting maintenance from the date of application is to enable the wife to overcome the financial crunch which occurs on separation from the husband.
“Financial constraints of a dependant spouse hamper their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.” It observed
Case Name: RAJNESH vs. NEHA
Citation: Cr. A No. 730 OF 2020
Coram: Justices Indu Malhotra and R. Subhash Reddy