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Interim maintenance under the Domestic Violence Act, 2005

August 24, 2021
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This article is written by Anurag Singh from ILS Law College, Pune. This is a comprehensive article on interim maintenance under the Domestic Violence Act, 2005.

Introduction 

Marriages in India are very sacred and are meant to last a lifetime. However, not all marriages are perfect, and in some cases where domestic violence becomes an issue in a household, it’s better to leave than stay in that marriage. Therefore, after filing for a divorce and the divorce is granted, the main issue becomes the ‘maintenance’. After the marriage is dissolved, a wife can ask for maintenance from her husband under Section 125 of the Code of Criminal Procedure,1980 (CrPC), special marriage laws of the parties, the Special Marriage Act, 1954, and The Protection of Women from Domestic violence Act, 2005. Herein in this article, we are going to discuss the intricacies of maintenance through the lenses of the Domestic violence Act, 2005.   

Domestic violence : a rising  issue in the recent times

The central government declared a lockdown for the first time in March for just 21 days but eventually, it went on till May, which included four phases. When the whole world was dealing with the pandemic, there was a different story in the Indian households. A record number of 1,477 cases were reported between the 1st phase and 4th phase of the lockdown. This number is claimed to be the highest in the past 10 years by the National Commission for Women (NCW). 

However, it will not be out of place to state here that this is not a pandemic problem, 86% of the women don’t resort to legal solutions and 77% don’t even mention the incident of domestic violence to anyone. Therefore, it is evident the major part of the problem is not talking about the same. Let’s discuss the issue of interim maintenance through this article.   

Difference between interim and final maintenance

For the sake of understanding, we can say that the maintenance amount is given during the time of court proceedings. The second type is given after the legal separation. The former is called interim alimony and maintenance and the latter is called permanent alimony and maintenance,’ while differentiating interim and final maintenance, Mumbai-based lawyer Mrunalini Deshmukh had this to say.

Interim maintenance is granted to the applicant while the proceeding is still going on in the court, this continues till the court has reached its final verdict. The concept of interim maintenance was formulated so the applicant does not suffer until the court’s verdict is reached. However, the respondent doesn’t have to necessarily need to give the interim maintenance, it’s upon the discretion of the courts.

This is because maintenance is covered under Section 20 of the Act, in the limited sense that it is mandated despite any payments already being made under Section 125 of the IPC. This means that there is no special power or relief under the Domestic Violence Act that covers women that face domestic abuse and need protection under the law.  

Final maintenance is the maintenance given by the courts as a final verdict of the court, it can be in the form of alimony or it can be in the form of maintenance. The former is a lump sum payment of an amount and the latter is a timely monthly payment. Moreover, the interim maintenance comes to an end once the final verdict is delivered.  

Information that needs to be acknowledged

The two Sections talk about interim relief under the Domestic Violence Act. Section 12 allows the filing before a magistrate for any of the reliefs provided in this Act, including interim relief. Section 23, on the other hand, allows the magistrate to provide interim, or ex-parte orders. 

Under Section 20(1)(d) of the Domestic Violence Act, 2005 the aggrieved women and children can claim maintenance under Section 125 of CrPC.  Moreover, under Section 125 CrPC, maintenance has a very wide scope. However, this Act was formulated for the protection against domestic violence. Therefore, only the aggrieved women and children fall within the ambits of the Act. 

Furthermore, under Section 20(6) of the Act, the magistrate can direct the employer or the debtor of the respondent to directly pay the aggrieved person from the salary or the debt of the respondent.   

Under the Domestic Violence Act, there are other monetary reliefs for the aggrieved women but the maintenance is altogether a different issue. She can claim damages for the harm done to her in the marriage, it could be physical, emotional, or sexual abuse. However, these damages do not come under the ambit of maintenance.  

Important judgments on interim maintenance 

Interim maintenance under Hindu Marriage Act 

When we talk about interim maintenance in particular it is a concept from the Hindu Marriage Act, 1955 called maintenance pendente lite, it is stated under Section 24 of the Act. Moreover, in Pradeep Kumar Saini Vs. Seema & Ors (2009). The Supreme Court held that while deciding the issue of interim maintenance, the court has the power to reject such appeal, but they have to state the reason for rejecting it. However, if granted, the magistrate also has the discretion to grant interim maintenance from the date of order or date of application, interestingly, without any special reason because no such requirement has been enshrined in Section 125(1) of CrPC.    

Ad interim maintenance was developed to protect the victim because it was seen that many women across the country were dependent on their husbands for their maintenance in their married life, however, when the parties parted their ways the wife always found it hard to sustain the legal proceedings along with their daily life until the final verdict. Therefore, the Court in the case of Smt. Sushila Viresh Chhadva vs Viresh Nagshi Chhadva (1995) held that the purpose of interim maintenance will be deferred if the expense for the conduct of the proceeding itself is delivered in the final proceeding. Therefore, the court was of the view that the application for ad interim maintenance should be expedited within eight weeks of the first hearing.   

It is crystalline that courts can refuse to grant on certain grounds out which one is if the wife has a source of income. However, it was held by the Supreme Court in the case of Smt. Shailaja W/O Khobbanna Patil vs Sri. Khobbanna S/O Siddappa Patil (2013) that having a source of income and being eligible to generate income are two different things and shouldn’t be confused with one another. Moreover, it was further corroborated in the case of Kanupriya Sharma vs State & Anr (2019) and Babita Bisht vs Dharmender Singh Bisht (2019) where the Delhi High Court came to a similar conclusion.  

Interim maintenance for live-in relationships under Domestic Violence Act 

Interim maintenance under the Domestic Violence Act, 2005, provides interim remedies to women that have been suffering through domestic violence. However, being married is not quintessential for women to claim interim maintenance under the Act. The Supreme Court in the case of D.Velusamy vs D.Patchaiammal (2010)  held that a ‘relationship in the nature of marriage’ is akin to a common-law marriage. Common law marriages require that although not being formally married:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

However, the Court also stated that merely staying together on weekends and “whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage would not amount. ” It must also fulfill the above requirements, and in addition, the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act.  This was a landmark Judgment because it added live-in relationships under the ambits of the domestic violence Act and later on in the case of Parveen Tandon vs Tanika Tandon(2021) the Delhi High Court upheld the order of interim maintenance to ‘live-in partner’ of married man under the Act. 

Rajnesh v. Neha 2020 : a landmark judgment  

Rajnesh vs Neha (2020) is a landmark in more than one way because it streamlined the process of maintenance and dealt with various issues and also laid down some guidelines for other courts to follow, let’s discuss the various issues dealt with in the case:

Determination of quantum of maintenance       

The main objective of the concept of maintenance is not to burden or trouble the husband but, see to it that the women after their divorce lives with dignity and is not left out in the cold. Therefore in the instant case, the court was of the view that there should be some factors to determine the interim or final maintenance, they are:

Status of the spouse: The court will look into the wife’s background to determine whether the wife would on her own be able to maintain the standard of living she is accustomed to from the household of her husband. For example, the court will look into whether the wife is educated and professionally qualified, whether she was employed before the marriage and left, and whether she has any source of income. 

Interim maintenance         

While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.”   

This remark was made by the honorable Supreme Court with regards to the situation in the courts while contesting the interim maintenance because interim maintenance is mostly based on guesswork and prima facie understanding of the facts. Therefore, more often than not, the court either awarded interim maintenance which was too burdensome on the husband or awarded interim maintenance which was too low for the wife to survive. 

Therefore, to resolve this issue the Supreme Court in the instant case directed that an affidavit of all the assets and liability owned by the parties should be made available by the parties to courts so that the courts do not award unfair interim maintenance. Importantly, if either of the parties tries to lie in the affidavit they would have to serve consequences for their action under Sections 195 and 340 CrPC. 

In addition to the aforementioned point, there has always been a tussle that should interim maintenance be awarded after the application or after the order, herein the Supreme court made it crystal clear that in case of interim maintenance should be awarded from the date of application.  

Overlapping jurisdictions         

It has been observed in family law-related cases the wife tends to file cases under various cases under a different law, which is fine because every law has its remedy and relief, however, the husband has to suffer because he has to pay the maintenance under different enactments which are not fair for the respondent in such cases. Therefore, the Supreme Court in the instant case believed that if the wife obtains an order of maintenance in one of the cases then the other court hearing the matter for the same parties should be made aware of the fact that she has already been awarded a verdict of maintenance. Moreover, the courts hearing the subsequent matter should also keep in mind that fact and grant an adjustment or set-off of that amount.

Maintenance Orders

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

The Court, however, believed that striking off the defense 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. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.  

This judgment has taken most of the issues related to maintenance and tried devising a mechanism that can suit all parts of the country. Moreover, it has paved the way for many cases yet to come. 

Conclusion 

The Domestic Violence Act, 2005 was formulated to deal with the intricacies of domestic violence because it was not specifically defined anywhere. Interim maintenance was always an issue under the Act in some cases the wife would get more than what she should get and in some cases, she would not receive enough. Moreover, the problems were not only for women but men as well, just because women are protected under the Act even though they are capable of earning they would take hefty maintenance from the husband. However, with the recent judgment, we can be optimistic about the future of the Act.   

References 


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