Maintenance Laws in India

Situation of Maintenance laws in India

Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy.

Article 15 (3) which provides that “Nothing in this article shall prevent the State from making any special provision for women and children”, when read with Article 39 of the Constitution of India lays down a positive role for the State in fostering change towards the empowerment of women.

Despite women who have suffered very long by the hands of patriarchy continue to suffer by the hands of courts of laws as it has failed to provide justice to women, who are separated from their husbands and facing mental, physical, emotional and/or monetary abuse, justice which they rightfully deserve in the form of maintenance.

There are various reasons for the undue injustice caused like multiplicity of laws resulting in overlapping jurisdictions, delay in deciding and payment of interim maintenance, inconsistency in factors being followed while deciding the quantum of maintenance, uncertainty concerning date from which maintenance to be issued and enforcement mechanism etc.

But the Hon’ble Supreme Court in an order in Rajnesh v. Neha & Ors.[1] (hereinafter referred to as The Case) discussed these issues, contradicting high court judgements on the same and gave directions finally settling the dispute exercising its power under Article 142 of the Indian Constitution, which might bring some consistency and speedy justice to women and their minor children.

 

The following paragraphs take a deep look into every issue concerning maintenance and provides for the directions given in The Court.  

1. Overlapping jurisdiction

A woman (or any other person like children or parents and in some cases even husband) can claim maintenance under one or more of the below-mentioned statutes, and each of these enactments provides an independent and distinct remedy framed with a specific object and purpose.[2]

Statutory provisions under various enactments are as follows:

• The Special Marriage Act, 1954 (“SMA”): Under this Act, a marriage between any two persons who are citizens of India may be solemnised under this Act. This Act contains Sec. 36 which provides pendente lite maintenance to support her and for legal expenses, Sec. 37 provides for grant of permanent alimony[3] at the time of passing of the decree, or subsequent thereto.
• The Hindu Marriage Act, 1955 (“HMA”) contains Sec. 24 which provides for maintenance pendente lite, Section 25 provides for grant of permanent alimony (Sections 24 and 25 is a gender-neutral provision, where either the wife or the husband may claim maintenance.), Section 26 provides that the Court may from time-to-time pass interim orders with respect to the custody, maintenance and education of the minor children.

Hindu Adoptions & Maintenance Act, 1956 (“HAMA”) has Sec. 18 which provides that a Hindu wife shall be entitled to be maintained by her husband during her lifetime. She is entitled to make a claim for a separate residence, without forfeiting her right to maintenance [Note: The distinction between maintenance under HMA and HAMA is that the right Under Section 18 of HAMA is available during the subsistence of a marriage, without any matrimonial proceeding pending between the parties. Once there is a divorce, the wife has to seek relief Under Section 25 of HMA. Under Section 18 of HAMA, only a wife may seek maintenance.[4]];

Section 19 provides that a widowed daughter-in-law may claim maintenance from her father-in-law if she meets certain conditions, Section 20 provides for maintenance of children and aged parents. Section 20 casts a statutory obligation on a Hindu male to maintain an unmarried daughter, who is unable to maintain herself out of her own earnings, or other property [Note: The Court noted the distinction between the award of maintenance to children Under Section 125 Code of Criminal Procedure, which limits the claim of maintenance to a child, until he or she attains majority. However, if an unmarried daughter is by reason of any physical or mental abnormality or injury, unable to maintain herself, Under Section 125(1)(c), the father would be obligated to maintain her even after she has attained majority. The maintenance contemplated under HAMA is a wider concept. Section 3(b) contains an inclusive definition of maintenance including marriage expenses. The purpose and object of Section 125 Code of Criminal Procedure is to provide immediate relief to the wife and children in a summary proceeding, whereas Under Section 20 read with Section 3(b) of HAMA, a much larger right is contemplated, which requires determination by a civil court.[5]];

 

Sec. 22 provides for maintenance of dependants and Sec. 23 provides that while awarding maintenance, the Court shall have due regard to therein mentioned criteria.

• Section 125 of the Code of Criminal Procedure 1973 provides for maintenance of wife, children and parents in a summary proceeding. The purpose and object of Section 125 Code of Criminal Procedure is to provide immediate relief to an applicant provided that the applicant fulfils therein mentioned criteria.

 

In Chaturbhuj v. Sitabai[6] Apex Court held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy.

• Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”). This Act provides relief to an aggrieved woman who is subjected to “domestic violence.”

This Act provides in Section 17 that every woman in a domestic relationship shall have the right to reside in the “shared household”, irrespective of whether she has any right, title or beneficial interest in the same, Section 19 deals with residence orders, grant of injunctive reliefs, or for alternate accommodation/payment of rent by the Respondent, Section 20 provides for monetary relief to the aggrieved woman [Section 20(1)(d) provides that maintenance granted under the D.V. Act to an aggrieved woman and children, would be given effect to, in addition to an order of maintenance awarded Under Section 125 of the Code of Criminal Procedure, or any other law in force.], Section 22 that the Magistrate may pass an order directing the Respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence perpetrated by the Respondent.

Mainly Section 36 of the Act provides that the D.V. Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force.

As shown above there exist multiplicity of statutes that deals with the maintenance especially for women/wife which leads to a certain conclusion that this would lead to multiplicity of proceedings and conflicting orders thus having the inevitable effect of overlapping jurisdiction.

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Contradicting Judgments of High court on overlapping:

Some High Courts have taken 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.[7] On the other hand, the Bombay and Delhi High Courts, have held that in case of parallel proceedings, adjustment or set-off must take place.[8]

Directions given in The Case

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 set-off, 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.

 

Payment of interim maintenance

The proviso to Section 24 of the HMA and the third proviso to Section 125 Code of Criminal Procedure provide that the proceedings for interim maintenance, shall as far as possible, be disposed of within 60 days’ from the date of service of notice on the contesting spouse but still long delays are caused due to numerous reasons. The Hon’ble Supreme Court gave following directions in The Case regarding this issue:

1. In the first instance, the Family Court in compliance with the mandate of Section 9 of the Family Courts Act 1984, must make an endeavour for settlement of the disputes. If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.
2. The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before the concerned court, as a mandatory requirement.
3. On the basis of the pleadings filed by both parties and the Affidavits of Disclosure, the Court would be in a position to make an objective assessment of the approximate amount to be awarded towards maintenance at the interim stage.
4. The Hon’ble bench elicited responses from the various State Legal Services Authorities (“SLSAs”) for framing guidelines on the Affidavit of Disclosure of the Assets and Liabilities to be filed by the parties. The National Legal Services Authority (“NALSA”) submitted a comprehensive report of the suggestions received from the SLSAs. On basis of that a comprehensive Affidavit of Disclosure of Assets and Liabilities as attached as Enclosure I and II to the judgment of The Case (but for State of Meghalaya—Enclosure III).
5. Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, the Court framed following guidelines in exercise of powers Under Article 136 read with Article 142 of the Constitution of India:
6. The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III, 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.
7. The Respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks.
8. 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.
9. 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.
10. 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.
11. 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 Under Section 340 Code of Criminal Procedure, and for contempt of Court.

 

Permanent alimony

• 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.
• 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.
• 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

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.

1. The factors which would weigh with the Court inter alia are the
2. status of the parties;
3. reasonable needs of the wife and dependant children;
4. whether the Applicant is educated and professionally qualified; has any independent source of income; whether it is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home;
5. 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;
6. reasonable costs of litigation for a non-working wife.

The claim that the wife is educated and could support herself is not a relevant reply to the claim of maintenance of wife. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support.

 

Further,

• The financial capacity of the husband and actual income,
• reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law,
• liabilities if any,
• the standard of living of the husband, as well as the spiralling inflation rates and high costs of living

would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. 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.

1. A careful and just balance must be drawn between all relevant factors. +The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
2. Section 23(2) of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance.
3. The amount awarded Under Section 125 Code of Criminal Procedure is adjustable against the amount awarded Under Section 24 of the Act.

 

In addition to these, court laid down the following factors:

1. Age and employment of parties: duration of marriage, if the wife was educated and professionally qualified but had to give up the occupation for fulfilling family needs and age of wife at time of separation.
2. Right to residence: The Sec. 17 of DV Act provides women a right to reside in a “shared household” defined Under Section 2(s) irrespective of her having any legal interest in the same. The intention of the parties, nature of living, and nature of the household, is significant to determine whether the premises is a “shared household”.
3. 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 various judgments[9].
4. 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.
5. 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.
6. Date from which Maintenance to be awarded

Section 125(2) Code of Criminal Procedure 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.

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.

The Supreme Court in The Case directed that it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Code of Criminal Procedure. The Court further provided that rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.

 

Enforcement of orders of maintenance

Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law.

The Court directed in The Case that for enforcement/execution of orders of maintenance, an order or decree of maintenance may be enforced Under Section 28A of the Hindu Marriage Act, 1956 (sic1955); Section 20(6) of the D.V. Act; and Section 128 of Code of Criminal Procedure, 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 Code of Civil Procedure, more particularly Sections 51, 55, 58, 60 r.w. Order XXI. Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be executable in accordance with the Code of Civil Procedure/Code of Criminal Procedure. 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. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.

The above-mentioned directions settle the material issues concerning the quantum of maintenance, its payments as well as execution of the maintenance orders. This provides for guidelines which the lower courts should follow in the matters concerning the maintenance at the same time leaving enough scope for the judges to exercise discretion as per the facts and circumstances of the case.

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[1] 2020 SCC OnLine SC 903

[2] In Nanak Chand v. Chandra Kishore Aggarwal and Ors. (1969) 3 SCC 802, the Supreme Court held that there was no inconsistency between the Code of Criminal Procedure and HAMA. Section 4(b) of HAMA would not repeal or affect the provisions of Section 488 of the old Code of Criminal Procedure.

[3] Permanent alimony is the consolidated payment made by the husband to the wife towards her maintenance for life.

[4] Chand Dhawan v. Jawaharlal Dhawan (1993) 3 SCC 406

[5] Abhilasha v. Parkash and Ors. decided on 15.10.2020 in Criminal Appeal No. 615/2020

[6] (2008) 2 SCC 316

[7] Ashok Singh Pal v. Manjulata AIR 2008 MP 139, Sujit Adhikari v. Tulika Adhikari 2017 SCC OnLine Cal 15484.

[8] Vishal v. Aparna and Anr 2018 SCC OnLine Bom 1207, RD v. BD 2019 VII AD (Delhi) 466, Tanushree and Ors. v. A.S. Moorthy 2018 SCC OnLine Del 7074.

[9] Shailja and Anr. v. Khobbanna (2018) 12 SCC 199, Sunita Kachwaha and Ors. v. Anil Kachwaha (2014) 16 SCC 715, Sanjay Damodar Kale v. Kalyani Sanjay Kale 2020 SCC OnLine Bom 694, Chander Prakash Bodhraj v. Shila Rani Chander Prakash AIR 1968 Delhi 174, Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705.

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