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family_law:guidelines_fixing_maintenance

Guidelines to deal with Maintenance in Matrimonial cases

Court Supreme Court
Parties RAJNESH vs. NEHA
Case Cr. A No. 730 OF 2020
Coram Justices Indu Malhotra and R. Subhash Reddy
Dated 04-11-2020

Background Of The Case

(1) The bench disposed an appeal against a judgment of Bombay High Court, Nagpur Bench.

(2) The said judgment was pronounced in a matrimonial case from Maharashtra in which the question of maintenance of a wife and son under Section 125 of the Code of Criminal Procedure (CrPC) had come to the fore.

(3) The appeal was against a Bombay High Court, Nagpur Bench order which had upheld the order of Family Court which had directed the husband to pay interim maintenance of Rs. 15,000/- per month from 01/09/2013 to the wife and Rs. 5000 per month to child from 01/09/2013 to 31/08/2015 and thereafter to pay to the child Rs. 10,000/- per month from 01/09/2015 till further orders.

(4) The Supreme Court had, on September 1 last year, appointed Senior Advocates Gopal Sankaranarayanan and Anitha Shenoy as amicus curiae to assist it in framing guidelines on payment of interim maintenance.They had also submitted a report.

The judgment dealt with the following aspects :-

(Directions have been give by exercising power under Article 142 of the Constitution)

NOTE: While passing illuminating directions the apex Court also discussed statutory provisions under various enactments. Viz,

(a) The Special Marriage Act, 1954 (“SMA”) [S.36 & S.37]

(b) The Hindu Marriage Act, 1955 (“HMA”) [S.24 & A.25]

(c) Hindu Adoptions & Maintenance Act, 1956 (“HAMA”) [S.18,19,20,22,23]

(d) Section 125 of the Cr.P.C.

(e) Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”) [S. 20,22,23]

Overlapping jurisdiction

(A) It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding.

(B) The Court said 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 followed by family courts, district courts and magistrate courts throughout the country, the Bench noted.

(C) The following directions were issued by the Court towards that end:

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.

Payment of interim maintenance and Permanent alimony

(A) The Supreme Court ruled that an affidavit of disclosure of assets and liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, should be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned family courts, district courts or magistrate courts throughout the country.

(B) Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, the SC considered it necessary to frame guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of India :

(a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate’s Court, as the case may be, throughout the country;

(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;

(c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.

If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.

On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record;

(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.

(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.

(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC;

On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so;

The income of one party is often not within the knowledge of the other spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.

(g) 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.

(h) 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.

(i) In case the parties belong to the Economically Weaker Sections (“EWS”), or are living Below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be dispensed with.

(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.

(k) A professional Marriage Counsellor must be made available in every Family Court.

(C) Permanent alimony

(i) Parties may 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.

(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of her life. The duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid.

(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the time of determining permanent alimony, where the custody is with the wife. The expenses would be determined by taking into account the financial position of the husband and the customs of the family.

(iv) If there are any trust funds / investments created by any spouse / grandparents in favour of the children, this would also be taken into consideration while deciding the final child support.

Criteria for determining quantum of maintenance

For determining the quantum of maintenance payable to an applicant, the concerned court shall consider the criteria enumerated in the judgment. The Court made it clear that the said 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.

Date from which maintenance is to be awarded

(A) SC observed that there is no provision in the HMA with respect to the date from which an Order of maintenance may be made effective. Similarly, Section 12 of the D.V. Act, does not provide the date from which the maintenance is to be awarded. Section 125(2) Cr.P.C. is the only statutory provision which provides that the Magistrate may award maintenance either from the date of the order, or from the date of application.

(B) In the absence of a uniform regime, there is a vast variance in the practice adopted by the Family Courts in the country, with respect to the date from which maintenance must be awarded. The divergent views taken by the Family Courts are : first, from the date on which the application for maintenance was filed; second, the date of the order granting maintenance; third, the date on which the summons was served upon the respondent.

(C) SC held that maintenance in all cases will be awarded from the date of filing the application for maintenance.

(D) In the practical working of the provisions relating to maintenance, we 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 / Execution of orders of maintenance

(A) The SC ruled that an order or decree 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.

(B) Further, 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.

(C) Striking off the defence of the respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children.

(D) Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.


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