How maintenance cases will now be decided-New SC Judgement
With so many ambiguities in deciding maintenance cases the Hon’ble supreme court has decided to frame guidelines throughout the country to decide maintenance cases.
Basically to give uniformity to the procedure to be followed throughout the country here are the key points and various judgements
The Judgement is Rajnesh Vs. Neha
(a) Issue of overlapping jurisdiction
To overcome the issue of overlapping jurisdiction, and avoid conflicting
orders being passed in different proceedings, it has become necessary to issue
directions in this regard, so that there is uniformity in the practice followed
by the Family Courts/District Courts/Magistrate Courts throughout the
country. We direct that:
(i) 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, while
determining whether any further amount is to be awarded in the
subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous
proceeding and the orders passed therein, in the subsequent proceeding;
(iii) 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.
(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities annexed as
Enclosures I, II and III of this judgment, as may be applicable, 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.
(c) Criteria for determining the quantum of maintenance
For determining the quantum of maintenance payable to an applicant, the
Court shall take into account the criteria enumerated in Part B – III of the
judgment.
Criteria for determining quantum of maintenance
(i) The objective of granting interim / permanent alimony is to ensure that
the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
The factors which would weigh with the Court inter alia are the status of
the parties; reasonable needs of the wife and dependant children; whether the
applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.
In Manish Jain v Akanksha Jain this Court held that the financial
position of the parents of the applicant-wife, would not be material while
determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the
spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.
On the other hand, the financial capacity of the husband, his actual
income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum
of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of
living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.
(ii) A careful and just balance must be drawn between all relevant factors.
The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.
The maintenance amount awarded must be reasonable and realistic, and
avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
(iii) Section 23 of HAMA provides statutory guidance with respect to the
criteria for determining the quantum of maintenance. Sub-section (2) of Section
23 of HAMA provides the following factors which may be taken into
consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for
the same, (iv) value of the claimant’s property and any income derived from such property, (v) income from claimant’s own earning or from any other source.
(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to
the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde37 laid down
the following factors to be considered for determining maintenance :
“1. Status of the parties.
- Reasonable wants of the claimant.
3.The independent income and property of the claimant. - The number of persons, the non-applicant has to maintain.
- The amount should aid the applicant to live in a similar lifestyle as
he/she enjoyed in the matrimonial home. - Non-applicant’s liabilities, if any.
- Provisions for food, clothing, shelter, education, medical attendance
and treatment etc. of the applicant. - Payment capacity of the non-applicant.
- Some guess work is not ruled out while estimating the income of the
non-applicant when all the sources or correct sources are not disclosed. - The non-applicant to defray the cost of litigation.
- The amount awarded u/s 125 Cr.PC is adjustable against the
amount awarded u/ 24 of the Act. 17.”
(vi) Apart from the aforesaid factors enumerated hereinabove, certain
additional factors would also be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties
In a marriage of long duration, where parties have endured the
relationship for several years, it 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. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With 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.
37 140 (2007) DLT 16.
(b) Right to residence
Section 17 of the D.V. Act grants an aggrieved woman the right to live in
the “shared household”. Section 2(s) defines “shared household” to include
the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the
respondent is a member.
The right of a woman to reside in a “shared household” defined under
Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja38 (supra) held that “shared household” referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. 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 is a “shared household”. Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a 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. While passing such an order, the Magistrate may direct the
Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020 respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
(c) Where wife is earning some income
The Courts have held that if the wife is earning, it cannot operate as a bar
from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.
In Shailja & Anr. v Khobbanna,
39 this Court held that merely because the
wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to 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. Sustenance does not mean, and cannot be allowed to mean mere survival.
In Sunita Kachwaha & Ors. v Anil Kachwaha 42 the wife had a
postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay
Kale43 while relying upon the judgment in Sunita Kachwaha (supra), held
that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.
An able-bodied husband must be presumed to be capable of earning
sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by
the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander
39 (2018) 12 SCC 199.
See also Decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016 Cri LJ 4794.
The onus is on the husband to establish with necessary material
that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
This Court in Shamima Farooqui v Shahid Khan45 cited the judgment in
Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
(d) Maintenance of minor children
The living expenses of the child would include expenses for food,
clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be 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.
(e) Serious disability or ill health
Serious disability or ill health of a spouse, child / children from the
marriage / dependant relative who require constant care and recurrent
expenditure, would also be a relevant consideration while quantifying
maintenance.
The aforesaid factors are however not exhaustive, and the concerned
Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
We make it clear that maintenance in all cases will be awarded from the
date of filing the application for maintenance, as held in Part B – IV above.
(e) Enforcement / Execution of orders of maintenance
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.
Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997
