This article is written by Yash Kapadia. Through this article, we shall ascertain the set of guidelines framed by the Hon’ble Supreme Court on certain aspects pertaining to the payment of maintenance in matrimonial matters.

Introduction

The Hon’ble Supreme Court of India in the case of Rajnesh vs Neha and Anr., 2020 laid down the set of guidelines relating to maintenance in cases of matrimonial disputes.

This case particularly arose out of an application for interim maintenance filed under Section 125 of the Criminal Procedure Code, 1973 (CrPC) by the Respondents i.e. wife and minor son. 

In this article, we shall provide a brief overview of the facts of this case and shall enlist the guidelines put forth by the Hon’ble Apex Court. 

Facts of the case

• Respondent No.1 i.e. the wife left her matrimonial home in January 2013, soon after the birth of Respondent No. 2 i.e. her son. 
• On an application being filed for interim maintenance, the Family Court awarded both Respondents Rs. 15,000/- and Rs. 5,000/- per month respectively from 01.09.2013 to 31.08.2015 and Rs. 10,000 per month from 01.09.2015 onwards till further orders were passed in the main petition. 
• The Appellant herein challenged the order of the Family Court by way of a criminal writ petition filed before the Nagpur bench of Bombay High Court. The Hon’ble High Court dismissed the Petition by an Order dated 14th August 2018 and thereby affirmed and concurred with the order passed by the Family Court. 
• Aggrieved by this decision, the husband i.e. Appellant filed an appeal before the Hon’ble Supreme Court of India. 
• The Court, based on the facts and circumstances of both parties decided to take the route of mediation and appointed Mr. Sridhar Purohit as mediator. However, on 8th October 2020, it was informed to the Apex Court by the Mediator that the process of mediation failed and the dispute could not be resolved.
• Both parties to the present appeal then filed their written submissions before the Apex Court.

Arguments on behalf of the Appellants

The counsel for the Appellant argued that: 

• The husband was unemployed with no source of income and was in no position to pay maintenance to Respondent No.1. 
• He was not an owner of any real estate or immovable property and had a single operational bank account. 
• The husband declined to pay any further amount towards the maintenance of his wife as he was facing a financial crisis personally.
• The Family Court was wrong to rely upon the Income Tax Returns of 2006 whilst it determined the maintenance payable in 2013 by the Appellant. 
• The Appellant was also exploring new business projects which would enable him to be in a better position to sustain his family in the future. 

Arguments on behalf of Respondents 

The counsel for the Respondents, particularly Respondent No. 1 submitted that: 

• The amount of Rs.10,000 per month as maintenance awarded for Respondent No. 2 was granted when he was 2 and half years old in 2015 and that the said amount was, in the year 2020 highly inadequate to meet the expenses of a growing child who was then 7 and half years old and who went to school to be educated. 
• The admission fee for the academic year of 2020-2021 had yet not been paid and if the fees were not paid within the stipulated time, the school would have to stop sending the link for Respondent No. 2’s online classes (considering the outbreak of COVID-19). 
• Respondent No. 2 was already being overburdened by the growing expenses of herself and that of her child with no adequate support from the Appellant being the husband and father. 
• With regards to the rebuttal to the Appellant’s submission that he had no income, Respondent No. 1 put forth on record that the Appellant had already made several investments in real estate projects and various other businesses which was concealed from the Hon’ble Court. The Appellant was successful in doing so as he diverted all the income to his parents who were in no way related to this case. 
• It was alleged that the Appellant retained illegal possession of Respondent No.1’s Streedhan, which he was refusing to return. 

Judgment 

The Supreme Court gave the following order:

• The Judgment of the Family Court which was later affirmed by the Bombay High Court for payment of interim maintenance of Rs.15,000 and Rs. 10,000 per month to Respondent No.1 and Respondent No.2 respectively, was affirmed by the Supreme Court.
• The Appellant was directed to pay arrears of maintenance in full of Rs.15,000 per month within a period of 12 weeks from the date of the Judgment and further comply with the  Order during the pendency of the proceedings u/S. 125 Cr.P.C. before the Family Court. In case of noncompliance, Respondent has the right and liberty to enforce proceedings under Section 128 of CrPC and other relevant laws in force.

Considering the backdrop of this case is pending since over a period 7 years under Section 125 of CrPC, difficulties faced while enforcing orders of the Court and successive applications filed by Respondent No. 1, the Apex Court deemed it necessary that a set of guidelines be framed 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.

Guidelines

The Hon’ble Supreme Court in this case decided to frame the following guidelines pertaining to the issues mentioned below: 

Issue of overlapping jurisdiction

The Apex Court has in detail, enlisted the legislations pertaining to maintenance and has also further provided judicial precedents pertaining to each one.¹

It was also observed how different courts had conflicting opinions in terms of the issue of jurisdiction. Some High Courts took the view that since each proceeding is distinct and independent of the other, maintenance granted in one proceeding cannot be adjusted or set off in the other. For example, the Madhya Pradesh High Court in Ashok Singh Pal v Manjdecidingulata, 2008, held that the remedies available to a person aggrieved under Section 24 of the Hindu Marriage Act, 1955 (HMA) are independent of Section 125 of the Cr.P.C.

On the flip side, the Bombay High Court in Vishal v Aparna & Anr., 2018, held that in a case of parallel proceedings, any sort of adjustment or a set-off must take place. For example, even though proceedings under the Protection of Women from Domestic Violence Act, 2005 (DV Act) is an independent proceeding, the Magistrate must not disregard the maintenance awarded in any other legal proceedings, while determining whether over and above the maintenance already awarded, any further amount was required to be granted for reasons to be recorded in writing. Therefore, there is no bar wherein one cannot seek maintenance under two statutes. 

The following are the directions issued by the Court: 

• If maintenance has been awarded to the wife in a previous legal proceeding then she is under a legal obligation to disclose about it in a subsequent proceeding for maintenance, which is/may have been filed under another statute or law. 
• Whilst determining the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previous legal proceeding and then go on to decide the maintenance payable to the claimant.

Payment of interim maintenance

The Apex Court acknowledged how this case has been pending for a period of 7 long years due to multiple adjournments sought by parties that too at the stage of interim maintenance. Despite Section 24 of HMA and Section 125 CrPC through its provisos state that such interim proceedings must be completed within a period of 60 days, courts still keep it pending for years. 

The following were the directions passed by the Court:

• Parties must make an endeavour to resolve the dispute amicably.
• The party that claims maintenance as a spouse or as a partner, live-in relationship, common law marriage, will have to file an application for interim maintenance with limited pleadings with a mandatory requirement of submission of an Affidavit of Disclosure of Assets and Liabilities before the concerned court of law so that the court can make an objective assessment of the legitimate amount that needs to awarded towards maintenance to the applicant, with her child (if any) at the interim stage.
• An applicant who is claiming maintenance must file a concise application along with the affidavit of disclosure of assets and the respondent must submit a reply to it within a period of 4 weeks. A format of the same has been enclosed in the judgement itself. 
• If there is any dispute with respect to contents mentioned in the Affidavit of Disclosure, the aggrieved party may seek the permission of the Court to serve interrogatories and seek production of relevant documents from the opposite party under Order XI of the Code of Civil Procedure, 1908.
• If there is any change in the financial status of either party during the course of the legal proceedings or change in circumstances or new facts then a supplementary affidavit must be filed which must be considered by the court.
• All concerned courts must make an endeavour to decide on interim applications for maintenance within a period of 4 to 6 months after an affidavit of disclosures has been filed. 
• A professional marriage counsellor must be ready and available in all family courts for the parties in dispute. 

In case of permanent alimony: 

• Oral and documentary evidence about one’s income, expenditure, standard of living, etc. before the concerned Court can be submitted by parties to fix the permanent alimony payable to the spouse.
• The duration of the marriage must be factored in to determine the permanent alimony to be paid. 
• If custody is with the wife, reasonable expenses for the marriage of children must be granted by the court at the time of determining permanent alimony.
• Any trust/ fund in the name of a child would be taken into account when determining child support. 

Readers must glance through Enclosure I, II, III from the judgment in order to understand the format of Affidavit of Disclosure of Assets and Liabilities which is supposed to be filed by the parties in the concerned courts. 

Criteria for determining the quantum of maintenance

The Apex Court stated the following criteria to be considered while determining the quantum of maintenance payable to an applicant: 

• The needs of the wife and her child amounted in reasonable capacity; 
• The level of education received by the applicant and how professionally qualified the applicant is; 
• If there is any subsisting/ current individual source of income of the applicant; 
• If the aforementioned income is enough for her to live the same standard of life as she was previously living in her matrimonial house; 
• If the applicant already had some kind of employment or was engaged in a business at the time of her marriage; 
• If the wife had to sacrifice and leave her employment/ job opportunities to take care and build her family, child and look after the adult members of the husband’s family; 
• Reasonable costs of litigation must be considered if the wife is non-working. 

Certain additional factors were also enumerated which were deemed to be relevant by the Court in determining the quantum of maintenance:

• Age and employment of parties;
• Right to residence;
• If the wife is having a source of income;
• Maintenance for food, clothing, education, residence, and medical expenses of the minor child and a reasonable amount for extra-curricular classes;
• Serious illness or disability of a spouse, child.

Date from which maintenance must be awarded

The Apex Court stated that there is no law in force under the HMA with respect to the date from which an order of maintenance may be made effective. Similarly, Section 12 of the DV Act too is silent on the date from which the maintenance is to be awarded. 

However, Section 125 of CrPC states that a Magistrate may award maintenance either from the date of the order or from the date of application. 

The Apex Court stated how different and divergent views were adopted by different courts for this guideline similar to the guideline on the issue of overlapping jurisdiction. Some courts held that payment of maintenance has to be done from the date on which the application for maintenance was filed while some others held that payment must be made from the date of the order granting maintenance. Further, some other Courts were also of the view that such payments ought to be made from the date on which the summons were served upon the respondent.²

In the absence of a uniform law in force to tackle this issue, the Supreme Court, with a stern view to put this to rest, stated that in all cases, maintenance must be awarded from the date on which an application was made to the concerned court. 

Enforcement of orders of maintenance

Well, this issue is the most challenging issue encountered by any applicant. If the maintenance is not paid and execution proceedings are filed, sometimes it takes months and even years which completely defeats the object of the law in force. 

The following directions were passed in this regard:

• As provided under Section 51, 55, 58, 60 read with Order XXI, an 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.
• In cases of the last resort, the court can strike off the defence of the respondent if the default is found to be wilful and contumacious to an unemployed wife who is taking care of a minor child.
• Additionally, contempt proceedings too can be initiated against the respondent. 

Conclusion

The Supreme Court has taken brilliant efforts to formulate these guidelines so that no court is under the confusion of what is to be done in cases of maintenance. Also, as per the Order, a copy of this judgment was to be circulated by the Secretary-General of this Court to the Registrars of all High Courts, who would, in turn, circulate it to all the District Courts in the States. This is a landmark judgment in the domain maintenance disputes and must be read in its entirety for awareness and implementation. 

References

1. https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf
2. https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf 

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