In Rajnesh v. Neha, a division bench of Justice Indu Malhotra and Justice R. Subhash Reddy framed guidelines on certain aspects pertaining to the payment of maintenance in matrimonial matters. These guidelines came into being to address various issues which arose in regard to applications for grant of maintenance. The Hon’ble Court felt that it was necessary to frame guidelines to ensure that there was uniformity in deciding matters relating to maintenance.
The wife filed an application for Interim Maintenance in a petition u/s. 125 of Code of Criminal Procedure. The Family Court awarded interim maintenance to the wife and son. The husband challenged the order of the Family Court before the Bombay High Court by way of a Writ Petition. The High Court dismissed the Writ Petition and affirmed the Judgment passed by the Family Court. The present Criminal Appeal was filed in the Hon’ble Supreme Court to impugn the order of the 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.
Directions/Guidelines on Maintenance
The Supreme Court considering the backdrop of the case, wherein the application for interim maintenance remained pending before multiple Courts for seven years, decided to issue guidelines on the issue of maintenance, which would cover overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded and enforcement of orders of maintenance.
- Issue of Overlapping Jurisdiction
With regard to the issue of overlapping jurisdiction the Court laid down three guidelines-
- In a maintenance proceeding, where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding(s).
- It is mandatory for the applicant to disclose the previous proceeding and the orders passed in that 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 Court observed that, applications for Interim Maintenance remain pending for several years in most of the cases. Pendency of applications for maintenance at the interim stage for several years defeats the very object of the legislations.
Hence, the Court held that-
- The Family Court must make an attempt for settlement of the disputes. Given the large percentage of matrimonial litigation, the Family Courts should provide for the appointment of marriage counsellors in every Family Court. This appointment would help in the process of settlement of matrimonial dispute(s).
- 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, along with an Affidavit of Disclosure of Assets and Liabilities before the concerned court, as a mandatory requirement. This Affidavit would then be used to make an objective assessment of the approximate amount to be awarded towards maintenance at the interim stage by the appropriate Court.
- 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.
- Criteria for determining quantum of maintenance
The Court held that there is no straitjacket formula for fixing the quantum of maintenance to be awarded. The maintenance amount awarded must be reasonable and realistic. The sufficiency of the amount has to be determined such that the wife is able to maintain herself with reasonable comfort.
The Court also laid down certain criteria for determining the quantum of maintenance payable.
- Age and employment of parties: On termination of the marriage, 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.
- Right to residence: Section 2(s) of the Protection of Women from Domestic Violence Act, 2005, gives the definition for Shared Household. The Court held that the living of the aggrieved woman in the shared household must have a degree of permanence. A mere fleeting or casual living at different places would not constitute a shared household. It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises are a shared household.
- Where wife is earning some income: The Court took into consideration several judgments of different High Courts to conclude that merely because the wife is earning, it could not be a ground to reject her claim for maintenance. 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.
- Maintenance of minor children: The living expenses of the child would include expenses for food, clothing, residence, medical expenses, and education. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. 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.
- 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.
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.
- Date from which Maintenance is to be awarded
The court held that maintenance must 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.
- Enforcement of orders of maintenance
The Court observed that execution petitions usually remain pending for months which completely nullifies the object of the law.
Hence, the Court held that an application for execution of an Order/decree of Maintenance can be filed under the following provisions –
- Section 28A of the Hindu Marriage Act (Read with Section 18 of the Family Courts Act and Order XXI Rule 94 of the Code of Civil Procedure for executing an Order passed under Section 24 of the Hindu Marriage Act)
- Section 20(6) of the Protection of Women from Domestic Violence Act, 2005
- Section 128 of Code of Criminal Procedure
The order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. Striking off the defence of the respondent is an order which ought to be passed as a last resort, if the Courts find the default in payment of the maintenance to be wilful. Contempt proceedings for wilful disobedience can also be initiated before the appropriate Court.
In this judgment the Hon’ble Supreme Court of India issued guidelines with respect to certain aspects of maintenance such as overlapping jurisdiction and factors for determining amount of interim maintenance. The Court also issued guidelines regarding enforcement of interim maintenance orders and cleared the doubts about the date from which it should be awarded. These guidelines are passed with an intention to streamline the maintenance proceedings.