The Supreme Court bench in the case of Rajnesh vs Neha[1] has framed 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.
The present legislations dealing with the issue of maintenance are Section 125 of the Cr.P.C, 1973; Hindu Marriage Act, 1955; Special Marriage Act, 1954; Hindu Adoption and Maintenance Act, 1956; and the Protection of Women from Domestic Violence Act, 2005.
Section 125 of the Cr.P.C. provides that if the husband has sufficient means and refuses or neglects to maintain his wife who is unable to maintain herself then the magistrate may order the husband to make a monthly allowance for the maintenance of his wife. [2]
Section 20(1)(d) of the D.V. Act provides that maintenance granted under D.V. Act to an aggrieved women, would be given effect to, in addition to an order of maintenance awarded under Section 125 of Cr.P.C, or any other law in force.[3]
Sections 24 and 25 of the Hindu Marriage Act, 1955 make provision for maintenance to a party who has no independent income sufficient for his or her support, and necessary expenses. The prerequisite is that the applicant does not have independent income which is sufficient for her or his support, during the pendency of the lis.[4]
Section 36 and 37 of the Special Marriage Act,1954 provides pendent lite maintenance and grant of permanent alimony respectively.[5]
Section 18 of the Hindu Adoption and Maintenance Act, 1956 provides that a Hindu wife shall be entitled to be maintained by her husband during her lifetime.[6]
On the issue of overlapping jurisdiction of the above mentioned legislations the Supreme Court directed that, in subsequent maintenance proceeding, the applicant should disclose the previous maintenance proceedings and the orders passed in them, so that the court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount.
The Supreme Court on the issue of payment of interim maintenance directed the following:
- The affidavits of Disclosure of Assets and Liabilities shall be filed by both the parties in all maintenance proceedings before the concerned Court as the case may be, throughout the country.
- If any further information is required, the concerned court may pass appropriate orders in respect thereof.
- The income of one party is often not within the knowledge of the other spouse. Hence, 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.
- 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.
- 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.
- 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.
- The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned 37 order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.
The Supreme Court on the issue of permanent alimony gave the following directions:
- 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.
- 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.
- 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.
- 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.
The Supreme Court further directed in the judgment the criteria for determining the quantum of maintenance and provided the following factors to be considered by the court:
- Status of the parties
- Reasonable needs of the wife and dependent 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
- The financial capacity of the husband
- His actual income
- The spiraling inflation rates and high costs of living
- Reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, his liabilities if any.
Further the Supreme Court held that maintenance in all cases will be awarded from the date of filing the application for the maintenance before the concerned court. For enforcement/ execution of the orders of maintenance, 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.
[1] Rajnesh v. Neha, 2020 SCC OnLine SC 903
[2] Section 125 of the Code of Criminal Procedure, 1973
[3] Section 20(1)(d) of the Protection of Women from Domestic Violence Act, 2005
[4] Hindu Marriage Act, 1955
[5] Special Marriage Act, 1954
[6] Hindu Adoption and Maintenance Act,1956
