interim maintenance

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., dismissed an application filed under Section 24 of the Hindu Marriage Act on finding no interest in the same by the wife.

Petitioner filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking divorce from his wife. To which Family Court granted a decree of divorce to dissolve the marriage. However, on the same date, a notice was issued in the application under Section 24 of the Hindu Marriage Act, Family Court called for the detailed affidavits to be filed as to the expenditure, assets and liabilities of both the Petitioner and Respondent.

The above-said application has been challenged.

Bench noted from the Family Court’s decision that the respondent did not contest the divorce petition at all. Respondent’s defence was struck off and cross-examination of the petitioner was also of a limited nature.

Further, the Court added that since the respondent did not set out any substantial defence and the decree of divorce was granted without contest, respondent didn’t seem to be interested in pressing the application under Section 24 of the Act, which is meant for interim maintenance pendente lite.

 While concluding with the decision, Court expressed that the legal position is that a Section 24 application under the Act can survive beyond the dismissal of the main proceeding for grant of divorce, in respect of the period till the dismissal of the said petition.

Adding to the above, bench stated that the decision in Rita Mago v. V.P. Mago, 20(1981) DLT 103 may no longer be good law.

Hence, Bench concluded that in view of the above facts and circumstances the respondent doesn’t seem to be interested in pursuing the application under Section 24 for interim maintenance, therefore the said application was dismissed. [Apurva Anand v. Chanchal Niranjan, CM (M) 426 of 2020 and CM Appl. 20237 of 2020, decided on 29-01-2021]

Advocates for the parties:

Petitioner: Dr Aman Hingorani and Himanshu Yadav, Advocates

 Respondent: None

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J., expressed while deciding the present application that:

“Proceeding for interim maintenance, shall as far as possible, be disposed of within 60 days from the date of service of notice on the husband.”

Instant application was filed under Section 482 CrPC, seeking quashing of order in proceedings in a case filed under Section 125 of CrPC.

Additional Advocate General appearing for the State respondents raised an objection with regard to the maintainability of the present petition on the ground that the order sought to be quashed, related to grant of interim maintenance, is subject to a final adjudication on the main petition filed under Section 125 CrPC It is submitted that it is open to the applicant to raise all his objections before the Family Court.

Section 125 CrPC falls under Chapter IX of the Code of Criminal Procedure, 1973 and it contains provisions whereunder, an order for maintenance of wives, children and parents can be made. The object of the provisions contained under Chapter IX is to provide a speedy and effective remedy against persons, who neglect or refuse to maintain their dependent wives, children and parents.

It was observed that the proceedings for maintenance under Section 125 CrPC are of a summary nature and the purpose and object of the same is to provide immediate relief to the applicant.

An application under Section 125 CrPC can be moved by the wife on fulfilment of two conditions :-

a) the husband has sufficient means and;

(b) he neglects or refuses to maintain his wife, who is unable to maintain herself. The Magistrate, in such a case, may direct the husband to pay such monthly sum of the money, as deemed fit taking into consideration the financial capacity of the husband and other relevant factors.

Bench observed that Section 125 CrPC is in the nature of a benevolent provision having a social purpose with the primary objective to ensure social justice to the wife, child and parents, who are unable to support themselves so as to prevent destitution and vagrancy.

With regard to the third proviso of Section 125 CrPC, Court expressed that it gives a timeline by providing that the proceeding for interim maintenance, shall as far as possible, be disposed of within 60 days from the date of service of notice on the husband.

Hence, an order granting interim maintenance is subject to a final adjudication on the main petition and the interim maintenance granted during the pendency of the proceedings is only provisional maintenance subject to final determination to be made on the conclusion of the proceedings.

In light of the above discussion, the Court exercised its inherent jurisdiction in respect of the reliefs prayed for.

Counsel for the applicant at this stage made a prayer that he may be permitted to withdraw the present application and stated that the applicant would contest the proceedings before the court below.

The present application filed under Section 482 CrPC stood, accordingly, dismissed. [Mithilesh Maurya v. State of U.P., Application u/s 482 no. – 19612 of 2020, decided on 08-01-2021]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., addressed a matter wherein the question was considered whether an application under Section 125 Criminal Procedure Code, 1973 after having secured interim maintenance by an order passed in proceedings under the Domestic Violence Act is maintainable?

The instant petition impugned Family Court’s order whereby the petitioner’s application for interim maintenance under Section 125 of the Criminal Procedure Code, 1973 was rejected.

The said impugned order by the Family Court indicated that the petitioner’s application was rejected on the ground that the petitioners had been granted interim maintenance of Rs 4,000 per month in proceedings filed under Section 12 of the Domestic Violence Act, 2005. Court held that since the petitioners had been awarded interim maintenance for the same period and no appeal had been preferred against the said interim order, an application under Section 125 CrPC for seeking interim maintenance for the same period was not maintainable.

Family Court also added that it was not open for the petitioners to claim maintenance from two different courts in different proceedings for the same period. And, in the event the petitioners were of the view that the amount of interim maintenance granted was insufficient, the appropriate remedy would be to approach the concerned court for modification or enhancement of the interim maintenance.

Petitioner counsel, Dr Amit George contended that the family court’s reasoning was erroneous.

In view of the above-said position, the question to be considered by the bench is as follows:

Whether it is open for the petitioners to maintain an application under Section 125 CrPC after having secured interim maintenance by an order passed in proceedings under the DV Act?

Bench found merit in petitioner counsel’s contention with regard to the Family Court’s order being erroneous.

The question whether an application for interim maintenance under Section 125 CrPC could be maintained for the same period for which interim maintenance has been awarded under the DV Act, is no longer res integra.

In Delhi High Court’s decision of R.D. v. B.D., 2019 SCC OnLine Del 9526 it was held that an order for interim maintenance granted under the DV Act does not preclude an applicant to claim maintenance for the same period in separate proceedings.

Court observed that although a separate application seeking interim maintenance for the same period is maintainable, the Court would of necessarily bear in mind the interim maintenance awarded in the other proceedings while considering the merits of the application.

The above-stated similar view was expressed in the Judgment of Niharika Yadav v. Manish Kumar Yadav, Crl. Rev. P. 755 of 2018, decided on 18-12-2019.

Therefore, the impugned order was set aside and the matter was remanded to the family court to consider the petitioner’s application for interim maintenance under Section 125 CrPC.[Rani v. Dinesh, Crl. Rev. P. 1091 of 2019 and Crl. M.A 13677 of 2020, decided on 02-12-2020]

Advocates who appeared in the matter:

Petitioners: Dr Amit George, Anmol Acharya, Piyo Hardo Jaimon, Rayadurgam, Bharat, Advocates.

Case BriefsSupreme Court

[Note: This report is a detailed analysis of Supreme Court’s judgment in Rajnesh v. Neha*. To read the guidelines and directions issued by the Court, click here.]

Supreme Court: The bench of Indu Malhotra** and R. Subhash Reddy, JJ has framed guidelines on the issue of maintenance of wife, covering 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 directions came in a case which revealed that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and there have been difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.

Legislations dealing with the issue of maintenance

The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954, Section 125 of the Cr.P.C. ,1973; and the Protection of Women from Domestic Violence Act, 2005 which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities. Further, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 1956 , and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 by invoking Sections 24 and 25 of the said Act.

The different enactments provide an independent and distinct remedy framed with a specific object and purpose. In spite of time frames being prescribed by various statutes for disposal of interim applications, in practice that in a vast majority of cases, the applications are not disposed of within the time frame prescribed.

Special Marriage Act, 1954

  • Section 36 of this secular legislation, applicable to all persons who solemnize their marriage in India, provides that a wife is entitled to claim pendente lite maintenance, if she does not have sufficient independent income to support her and for legal expenses. The maintenance may be granted on a weekly or monthly basis during the pendency of the matrimonial proceedings. The Court would determine the quantum of maintenance depending on the income of the husband, and award such amount as may seem reasonable.
  • Section 37 provides for grant of permanent alimony at the time of passing of the decree, or subsequent thereto. Permanent alimony is the consolidated payment made by the husband to the wife towards her maintenance for life.

Hindu Marriage Act, 1955

  • Sections 24 and 25 make provision for maintenance to a party who has no independent income sufficient for his or her support, and necessary expenses. This is a gender-neutral provision, where either the wife or the husband may claim maintenance. 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.
  • Section 24 of the HMA provides for maintenance pendente lite, where the Court may direct the respondent to pay the expenses of the proceeding, and pay such reasonable monthly amount, which is considered to be reasonable, having regard to the income of both the parties. The proviso to Section 24 providing a time line of 60 days for disposal of the application was inserted vide Act 49 of 2001 w.e.f. 24.09.2001.
  • Section 26 of the HMA 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 is a special legislation which was enacted to amend and codify the laws relating to adoption and maintenance amongst Hindus, during the subsistence of the marriage.

Section 18 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. Section 18 read in conjunction with Section 23 states the factors required to be considered for deciding the quantum of maintenance to be paid. Under sub-section (2) of Section 18, the husband has the obligation to maintain his wife, even though she may be living separately. The right of separate residence and maintenance would however not be available if the wife has been unchaste, or has converted to another religion.

Distinction between maintenance under HMA and HAMA

  • 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 HMA, either the wife, or the husband, may move for judicial separation, restitution of conjugal rights, dissolution of marriage, payment of interim maintenance under Section 24, and permanent alimony under Section 25 of the Act, whereas under Section 18 of HAMA, only a wife may seek maintenance.

Section 125 of the Cr.P.C

The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions :

  • the husband has sufficient means; and
  • “neglects” to maintain his wife, who is unable to maintain herself.

In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors.

Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application.

Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days’ from the date of service of notice on the respondent.

Protection of Women from Domestic Violence Act, 2005

The D.V. Act provides relief to an aggrieved woman who is subjected to “domestic violence.”

1.Sections 17 and 19 grant an entitlement in favour of an aggrieved woman to the right of residence in a “shared household”, irrespective of her having any legal interest in the same or not. From the definition of “aggrieved person” and “respondent”, it is clear that :

(a) it is not the requirement of law that the aggrieved person may either own the premises jointly or singly, or by tenanting it jointly or singly;

(b) the household may belong to a joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title, or interest in the shared household; 24

(c) the shared household may either be owned, or tenanted by the respondent singly or jointly.

2. The right to residence u/S. 19 is, however, not an indefeasible right, especially when a daughter-in-law is claiming a right against aged parents-in-law. While granting relief u/S. 12 of the D.V. Act, or in any civil proceeding, the court has to balance the rights between the aggrieved woman and the parents-in-law.

3. 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 Cr.P.C., or any other law in force.

4. Under sub-section (6) of Section 20, the Magistrate may direct the employer or debtor of the respondent, to directly pay the aggrieved person, or deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

5. Section 22 provides 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.

6. Section 26 of the D.V. Act provides that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil Court, Family Court or Criminal Court.

7. Section 36 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.

Analysis of the issues

(a)Issue of overlapping jurisdiction

The Court noticed that while it is true that a party is not precluded from approaching the Court under one or more enactments, since the nature and purpose of the relief under each Act is distinct and independent, it is equally true that the simultaneous operation of these Acts, would lead to multiplicity of proceedings and conflicting orders. This process requires to be streamlined, so that the respondent/husband is not obligated to comply with successive orders of maintenance passed under different enactments.

“It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding.”

The Court, hence, directed that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, 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. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.

[Read detailed guidelines and directions here]

(b) Payment of Interim Maintenance

At present, the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of 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.”

It was hence directed that the Affidavit of Disclosure of Assets and Liabilities 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.

Apart from this the Court also directed that 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.

For this, Section 6 provides that the State Government shall, in consultation with the High Court, make provision for counsellors to assist a Family Court in the discharge of its functions. Given the large and growing percentage of matrimonial litigation, it has become necessary that the provisions of Section 5 and 6 of the Family Courts Act are given effect to, by providing for the appointment of marriage counsellors in every Family Court, which would help in the process of settlement. If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.

[Read detailed guidelines and directions here]

(c) 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.

“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.”

For determining the quantum of maintenance payable to an applicant, 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; etc.
  • 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.
  • 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. 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 as she would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job.
  • In case where the wife is working, it cannot operate as a bar from being awarded maintenance by the husband. 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.
  • 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.”

  • 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.

[Read detailed guidelines and directions here]

(d) Date from which maintenance is to be awarded

Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.

The 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.

[Read detailed guidelines and directions here]

(e) 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.

An application for execution of an Order of Maintenance can be filed under the following provisions :

(a) Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under Section 24 of the Hindu Marriage Act (before the Family Court);

(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and

(c) Section 128 of Cr.P.C. before the Magistrate’s Court.

Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be executable in accordance with the CPC / Cr.P.C.

Section 125(3) of the Cr.P.C provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier

Some Family Courts, however, have passed orders for striking off the defence of the respondent in case of non-payment of maintenance, so as to facilitate speedy disposal of the maintenance petition.

The Court, however, was of the opinion that 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.

Hence, it was directed that the 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, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.

[Read detailed guidelines and directions here]

[Rajnesh v. Neha,  2020 SCC OnLine SC 903, decided on 04.11.2020]

*CRIMINAL APPEAL NO. 730 OF 2020

**Justice Indu Malhotra has penned this judgment

Case BriefsSupreme Court

Supreme Court: The bench of Indu Malhotra* and R. Subhash Reddy, JJ has framed guidelines on the issue of maintenance of wife, covering 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 directions came in a case which revealed that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and there have been difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.

Legislations dealing with the issue of maintenance

The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954, Section 125 of the Cr.P.C. ,1973; and the Protection of Women from Domestic Violence Act, 2005 which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities. Further, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 1956 , and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 by invoking Sections 24 and 25 of the said Act.

The different enactments provide an independent and distinct remedy framed with a specific object and purpose. In spite of time frames being prescribed by various statutes for disposal of interim applications, in practice that in a vast majority of cases, the applications are not disposed of within the time frame prescribed.

Guidelines and Directions 

(a)Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, the Court issued the following directions in order to ensure uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country:

(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 Maintenance

Interim Maintenance

(a) the Affidavit of Disclosure of Assets and Liabilities 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.

[Note: The judgment has the Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III.]

(b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;

(c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks.

  • The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.
  • If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.
  • 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;

(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.

(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.

(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC. On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it necessary to do so.

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.

(g) 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.

(h) 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.

(i) 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.

(j) 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.

(k) A professional Marriage Counsellor must be made available in every Family Court

Permanent alimony

(i)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.

(ii) 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.

(iii) 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.

(iv) 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.

(c) Criteria for determining the quantum of maintenance

For determining the quantum of maintenance payable to an applicant, 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.

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.

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

Maintenance in all cases will be awarded from the date of filing the application for maintenance before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

(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.

[Rajnesh v. Neha, 2020 SCC OnLine SC 903, decided on 04.11.2020]

*Justice Indu Malhotra has penned this judgment

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J. while deciding the petition enhanced the interim maintenance amount to be paid to the wife and directed the trial court that while deciding the DV Act petition finally, it shall take into consideration all the facts and circumstances and the fact that how much the petitioner is earning from all sources.

Petitioner in the present petition sought the setting aside of impugned judgment and order passed by Special Judge – NDPS/learned Addl. Sessions Judge and the order passed by Metropolitan Magistrate.

The petitioner is earning an amount of Rs 10,000 and the Trial Court directed the petitioner to pay Rs 10,000 in favour of the respondent which was not possible for the petitioner and the Appellate Court failed to consider this fact. Counsel for petitioner relied upon the case of Manish Jain v. Akanksha Jain, (2017) 15 SCC 801, wherein it was held that,

“The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum-based on various factors brought before the Court.”

Respondent had filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the Metropolitan Magistrate alleging cruelty and torture towards the respondent along with the payment of dowry against the petitioner and his family members.

It is further stated that, petitioner is a known businessman in Lucknow and usually deals with his business in cash and he is also one of the biggest suppliers in Lucknow who earns around Rs 2 lacs/day. The petitioner and his family, who are co-accused in the present case, have also invested Rs 5 crores with local builders and the same is dealt under the name of ‘Nirman Traders and Engineers’.

Adding to the above, it is stated that it is further stated that the petitioner has produced a fake rent agreement showing as if he was living in rental accommodation on 2nd Floor of House No. 2, Shriram Puram Maharishi Tiraha, IIM Road, Lucknow, however, the truth is that there is no 2nd Floor in the said building at all.

In view of the above, Court stated that, Petitioner has committed perjury by stating the said fact before the Trial Court whereas he is not residing there and the address is fake. Thus, the court directed the Trial Court to issue proceedings against the petitioner under Section 340 CrPC.

Court noted that If a person is in business and dealing in cash, it will be difficult to establish how much earning such a person has. However, the Court can assess the income by taking into consideration the standard of living and what he was earning before separation from the wife. It seems the petitioner is in the car trading business. In addition, he is looking after the family business. Thus, on the conservative side, he is earning at least Rs 50,000 to Rs 1,00,000 per month.

Hence the Court held that, the respondent is legally wedded wife of the petitioner and is duty-bound to maintain her as per his status. In the present day, Rs 10,000 is a meager amount awarded by the Trial Court, to maintain as per standard of the husband.

Thus, while dismissing the present petition, High Court enhanced an amount of Rs 20,000 per month, as interim, to be paid from the date of filing of the DV Act petition. [Abhishek Dubey v. Archana Tiwari, CRL.REV.P. 944/2019 & CRL.M.A. 35385/2019-delay, decided on 15-10-2019]

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Delhi High Court: Manoj Kumar Ohri, J. dismissed a revision petition filed by the petitioner challenging the order passed by the Family Court whereby it had allowed the application under Section 125 CrPC (order for maintenance of wife, children and parents) filed by the respondent and directed the petitioner to pay her Rs 7500 per month as interim maintenance.

The petitioner, represented by Satish Chand, Advocate, contended that he was never married to the respondent, though he used to visit the tea stall owned by her. It was submitted that the respondent has taken undue advantage of friendly relations with the petitioner.

Per contra, the respondent, represented by A. Banerjee, Advocate, submitted that the petitioner was married to the respondent, but neglected to maintain her. The respondent opposed the instant petition.

Perusing the record, the High Court was of the opinion that the fact of the marriage of the petitioner with the respondent is a matter of trial. Reference was made to Lalita Toppo v. State of Jharkhand, 2018 SCC Online SC 2301 and Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188, wherein the Supreme Court has held that even an estranged wife or live-in-partner would be entitled to maintenance under Section 125 CrPC.

In such view of the matter, the Court did not find any infirmity or illegality in the impugned order passed by the Family Court. Consequently, the present revision petition was dismissed.[Vijay Pal v. Shobha Devi, 2019 SCC OnLine Del 10224, decided on 20-09-2019]

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Delhi High Court: Sanjeev Sachdeva, J. allowed a criminal revision petition filed by the petitioner-wife against the order of the Appellate Court whereby her appeal against the trial court order rejecting the application for grant of interim maintenance was dismissed.

The petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with it filed another application under Section 23 seeking interim maintenance. The application was rejected by the trial court on the sole ground that the petitioner and the respondent-husband were equally qualified. That she was previously employed and had not disclosed any cogent explanation so as to disable her to earn her living. The appeal filed by the petitioner against this order was dismissed by the Appellate Court. Aggrieved thereby, the petitioner filed the present revision.

Arvind Kumar with Vaibhav Kumar, Advocates represented the petitioner. Per contra, Sofia Bhambri, Advocate appeared for the respondent.

The High Court was of the view that both the courts below erred in not appreciating the decisions wherein it had been specifically held: “capacity to earn and actually earning are two different things.” Reference was made to the recent decisions in Kanupriya Sharma v. State, 2019 SCC OnLine Del 8816 and Bisht v. Dharmender Singh Bisht, 2019 SCC OnLine Del 8775.

In the present case, the Court noted that it was not the case of the respondent that petitioner was actually employed or earning. The only ground taken was that she is qualified and capable of earning. Reliance was placed on the Supreme Court decision in Shailja v. Khobbanna, (2018) 12 SCC 199, wherein it was held that whether the wife is capable of earning or whether she is actually earning two different things. The High Court observed: “Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependent and does not have any source of income.”

In such view of the matter, it was held that the impugned orders of the trial court as well as the Appellate court could not be sustained and were, therefore, set aside. Accordingly, the petition was allowed and the matter was remitted to the trial court with a direction to pass appropriate order assessing interim maintenance after taking into consideration the income of the respondent as well as his dependant family members within 3 months.[Binita Dass v. Uttam Kumar, 2019 SCC OnLine Del 9666, decided on 09-08-2019]

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Delhi High Court: Sanjeev Sachdeva, J. allowed a criminal revision petition filed by the petitioner-wife against the order of the trial court listing the matter for evidence.

It was an admitted fact that the trial court had earlier heard the arguments on interim maintenance application filed by the petitioner and then listen the matter for orders. The parties were directed to file income affidavits. On a subsequent date, the matter was referred to mediation which was unsuccessful. Thereafter, the trial court listen to the matter for evidence.

Ankit Mutreja, Advocate representing the petitioner, challenged the order of listing the matter for evidence since no order on interim maintenance application was yet passed by the trial court. Per contra, Sheenu Chauhan, Advocate for the respondent-husband, contended that the petitioner was not entitled to grant of any maintenance.

In view of the High Court, it was incumbent upon the trial court to consider the application for grant of interim maintenance, and it should not delay or refuse to decide the application. It was said: “Final adjudication of the maintenance application is dependent upon parties leading evidence and may take some time. If the trial court declines or delays disposal of the application for grant of interim maintenance, it would defeat the very purpose of the enactment.” The Court reiterated that maintenance is granted to a wife/dependant who is unable to maintain herself and if there is delay in disposing of the application for grant of interim maintenance, the wife/dependant would be without any support and would not be able to survive and as such it is necessary that such an application is disposed of at the earliest.

On facts of the present case, the Court held: “The order sheet reveals that arguments had been heard by the trial court on interim maintenance application but the main case was listed for evidence without disposing of the application for interim maintenance. The trial court, as noticed above, should have decided on the plea of grant of interim maintenance with promptitude.” It was also noted that the objections raised by the respondent were pleas on merits of the matter, which were yet to be adjudicated upon by the trial court, and were not relevant for disposal of the present petition.

In such view of the matter, the petition was allowed and the trial court was directed to decide the application seeking interim maintenance within a period of one month from the next date of hearing. [Anu Rani v. Vishwantra Dhama, 2019 SCC OnLine Del 9139, decided on 15-07-2019]

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Delhi High Court: Sanjeev Sachdeva, J. dismissed a revision petition filed by the petitioner-husband against the order of the Appellate Court whereby his appeal challenging the order of interim maintenance passed by the trial court was dismissed.

The petitioner — a Muslim, and the respondent — a Christian, were married under Special Marriage Act. The petitioner had two daughters from his previous marriage. Two more daughters were born to the parties from their marriage to each other. However, subsequently, the respondent-wife alleged domestic violence and filed a petition under the Domestic Violence Act, 2005. In the petition filed by her under Section 23, the trial court awarded interim maintenance of Rs 60,000 per month to be payable by the petitioner. Claiming that he was a pauper, the petitioner appealed to the Appellate Court but his appeal was dismissed. Aggrieved thereby, the petitioner filed the present petition.

The petitioner, who was represented by Adab Singh Kapoor and Shefali Menezes, Advocates submitted that the respondent had taken over his business and he had no means to pay the amount of maintenance awarded. Per contra, the respondent, who was represented by Mrinal Madhav, Tarunesh Kumar and Kaushikesh Kumar, Advocates, supported the impugned order.

The High Court noted that that three of the minor daughters, who were dependent on the petitioner and respondent, were being taken care of solely by the respondent. The petitioner was running a business of travel agency and bank account showed that he was earning a substantial sum of money. It was observed by the Court: “Mere fact that the respondent wife is earning does not absolve the petitioner of his responsibility to maintain his three minor daughters.” It was further said:

“A child for her upbringing does not only require money. A lot of time and effort goes in upbringing of a child. It would be incorrect to hold that both the parents are equally responsible for the expenses of the child. A mother who has custody of a child not only spends money on the upbringing of the child but also spent substantial time and effort in bringing up the child. One cannot put value to the time and effort put in by the mother in upbringing of the child. No doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two.”

It was found by the Court that expenditure incurred by the respondent on the three minor daughters was far more in excess of Rs 60,000 per month. In such circumstances, and further relying on Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, the Court held that the award made by the trial court was justified. The revision petition was, therefore, dismissed. [Farooq Ahmed Shala v. Marie Chanel Gillier, 2019 SCC OnLine Del 8972, decided on 01-07-2019]

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Delhi High Court: The Bench of R.K. Gauba, J. dismissed a husband’s petition filed against the order of Metropolitan Magistrate as confirmed by Additional Sessions Judge whereby he was directed to pay interim maintenance allowance of Rs 3500 to his wife and Rs 2000 for his minor daughter.

The parties were married to each other and a daughter was born to them from the wedlock. On account of certain circumstances, the wife left the matrimonial home along with the daughter. Subsequently, she filed a petition under Section 12 of the Protection of Women and Domestic Violence Act, 2005. On her application, the Metropolitan Magistrate directed the husband to pay the interim maintenance allowance as mentioned above. The husband challenged the order in an appeal which was dismissed by Additional Sessions Judge, Aggrieved thereby, he filed the present petition under Section 482 CrPC.

S.C. Singhal, Advocate for the husband submitted that he was unemployed and therefore unable to pay the allowance. It was also submitted that the wife was gainfully employed in a beauty parlour for the proof of which certain photographs were produced.

The High Court held that mere photographs showing the wife’s presence in a parlour were not sufficient to prove that she had a regular income sufficient to maintain herself and the minor daughter, Furthermore, the husband made a cursory statement that he was unemployed, but did not disclose as to how he had been surviving all along. The Court was of the view that he was concealing facts and intentionally withholding information about his income. In such a situation, the Court approved the course adopted by Metropolitan Magistrate as per which he assumed husband’s income notionally on the basis of minimum wages and passed the order of interim maintenance. Resultantly the petition was dismissed. [Khem Chand v. Bhagwati, 2019 SCC OnLine Del 6776, Order dated 22-01-2019]

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Delhi High Court: The Bench of Sanjeev Sachdeva, J. disposed of a petition holding that the petitioner (wife) was not entitled to maintenance under Section 125 CrPC for a period prior to the grant of divorce.

The petitioner and the respondent (husband) were married. They were living separately since 2004. Divorce was granted in 2015 on an application filed by the respondent on the ground of mental cruelty and desertion by the wife. The decree of divorce was upheld by the Supreme Court. Prior to that in 2007, the petitioner had applied under Section 125 CrPC for interim maintenance. By the impugned judgment, the trial court dismissed the application for maintenance on petitioner’s failure to show that she had sufficient cause to live separately.

S.K. Srivastava and Gurjeet Singh, Advocates for the petitioner assailed the impugned judgment while Senior Advocate Kirti Uppal with Sidharth Chopra and Shaini Bharadwaj, Advocates representing the respondent supported it.

The High Court referred to Section 125(4)which states that wife is not entitled to receive maintenance is not entitled to receive maintenance if without any sufficient reason she refuses to live with her husband. Relying on Rohtash Singh v. Ramendri, (2000) 3 SCC 180, the Court held that as the divorce decree was passed on ground of desertion which was upheld by Supreme Court, the petitioner was clearly disentitled to maintenance under Section 125. However, it was cleared that she could still file application for maintenance provided she is able to satisfy the condition of Section 125(1)(a) that she is unable to maintain herself. [Archita v. Sunil Seth, 2019 SCC OnLine Del 6484, Order dated 11-01-2019]

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Jammu and Kashmir High Court: A Single Bench of Sanjay Kumar Gupta, J., dismissed a petition filed to challenge the order of Sessions Judge who modified the order of the Chief Judicial Magistrate reducing the interim maintenance payable to the respondents from Rs 4000 per month to Rs 2700 per month. 

The facts of the case were that the petitioner was legally married to the respondent and from the wedlock, a child was born. Thereafter respondents filed a petition under Section 488 CrPC for grant of interim maintenance on the grounds of demand of dowry and cruelty. An application for interim maintenance was also filed, the quantum of which is the moot question here. 

The main contention forwarded by the counsel for the petitioner, Mr C.M. Gupta, was that the petitioner had only a salary of Rs 7500 per month, so he was unable to pay the interim maintenance which was on higher side. Also, the respondent was already getting maintenance under Section 30 of the Hindu Marriage Act. 

The Court while dismissing the petition held that the purpose of granting interim maintenance was to save claimant from vagrancy and destitution. Further, the argument that the petitioner was already getting maintenance under Section 30 of the Hindu Marriage Act, was not tenable as the petitioner had statutory right to get maintenance. Also, petitioner had not annexed any evidence in this regard. [Krishan Singh v. Jyoti Jamwal, 2018 SCC OnLine J&K 991, decided on 18-12-2018]

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Karnataka High Court: A Single Judge Bench comprising of Ravi Malimath, J. allowed a writ petition filed under Article 227 of the Constitution of India against an interim maintenance order on account of it being arbitrary against the husband.

The respondent filed an application under Section 24 of the Hindu Marriage Act in order to seek interim maintenance for which the petitioner was directed to pay Rs 5000 per month against which this writ petition was filed.

The petitioner contended that his only source of earning was a photostat machine shop and thus the amount awarded was too excessive for him. He brought into consideration the financial position of the respondent which comprises of her owning various landed properties in the State as well as she had a four-wheeler to her possession along with the fact that she was a practicing advocate.

The Court agreed with the petitioner that taking into account the low income of the petitioner against a considerably higher income of the respondent, the maintenance awarded was far too excessive. Accordingly, the amount was reduced to Rs 3000 per month.[Rachayya v. Bhagyalaxmi,2018 SCC OnLine Kar 1821, order dated 05-06-2018]

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Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. affirmed the order of Family Court striking off defence of the erring husband but set aside the part of order staying proceedings in a divorce petition instituted by the wife, holding the same to be counter-productive in achieving real and substantial justice.

Facts of the case were that the respondent-wife filed a petition for divorce in the Family Court inter alia claiming interim maintenance from the petitioner-husband. The court granted her decree for interim maintenance but the petitioner deliberately disobeyed the court’s order and did not pay maintenance. The Family Court directed petitioner’s defence in the divorce petition to be struck off and to withhold trial till payment of arrears of maintenance. The said order was challenged by the petitioner in the present appeal.

At the outset, the Bench noted that the petitioner had not offered any explanation whatsoever for non-payment of the interim monthly maintenance. Having gone through judgments of various High Courts on the said issue, it was observed that when a party flouts a court order directing payment of interim alimony, thereby putting the other party at a disadvantage, the court is not helpless and it can exercise its power under Section 151 of the Code of Civil Procedure, 1908 to do real and substantial justice. On the said reasoning, it was opined that the Family Court was right in its approach of striking off the defence of petitioner and in staying of the proceedings. However, the court noted that in the instant case, divorce petition had been filed by the wife and as such, staying of proceedings in that case on the ground of non-payment of maintenance by the petitioner-husband would only cause delay in the disposal of the case thereby further adding to the wife’s grievances.

The High Court held that staying of proceedings only in a divorce case instituted by the defaulting party would achieve the object and staying of proceedings in a case instituted by the party to whom the amount is due, would be counter-productive. On the aforesaid reasoning, the order of Family Court striking off defence of petitioner was upheld and the part of order staying the proceedings was set aside. [Maximus Fernandez v. Olga Fernandez, 2018 SCC OnLine Ker 3479, decided on 24-09-2018]

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Delhi High Court: A Division Bench comprising of Vipin Sanghi and P.S. Teji, JJ. dismissed the petition filed by the wife against the order of Additional Sessions Judge rejecting her challenge to the maintainability of the appeal filed by the husband under Section 29 of Protection of Women from Domestic Violence Act.

Interim maintenance was awarded to the wife by the trial court under Section 23, DV Act. The husband preferred an appeal against the order under Section 29. The wife challenged the maintainability of the appeal on the ground that the appellant was required to deposit the complete amount of compensation awarded before he could file an appeal. However, the Additional Sessions Judge rejected the challenge. Matter reached the High Court, and the learned Single Judge referred the same to be considered by a larger bench, as there were two conflicting judgments of coordinate benches. The question before the Court was whether statutory remedy of appeal under Section 29 could be made subject to pre-deposit of entire amount of interim maintenance fixed by Magistrate under Section 23?

The Court, after perusing the concerned sections, was of the view that neither the language used by the legislature in Section 399 read with Section 401 CrPC nor in Section 29 of DV Act even remotely suggest that the legislature intended to impose preconditions to the available remedies. Further, any such precondition will fall foul of Article 14 of the Constitution. It was held that there cannot be an absolute rider that the entire maintenance amount, as granted by the trial Court, should be deposited prior to the entertainment of the statutory remedy, because it would leave the remedy of statutory revision/appeal illusory. The reference was answered in above terms and the matter was directed to be listed before the Single Judge for further proceedings. [Sabina Sahdev v. Vidur Sahdev, 2018 SCC OnLine Del 9747, dated 09-07-2018]

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Himachal Pradesh High Court: A Single Judge Bench comprising of Dharam Chand Chaudhary, J. dismissed a criminal revision petition that was filed against the order of the Sessions Judge wherein he reversed the order of Chief Judicial Magistrate granting maintenance to the petitioner under Domestic Violence Act, 2005.

The petitioner was married to the respondent and they had school going children. She alleged that the respondent and his mother treated her and the minor children with cruelty. She submitted that the children were studying in a public school and their expenses were high. The respondent was a government doctor earning Rs 1.5 lakhs per month. Taking note of such factual details,  the Chief Judicial Magistrate directed the respondent to pay Rs 30,000 per month to the petitioner by way of interim allowance. On appeal, the said order was reversed by the Sessions Judge vide the order under challenge herein.

The High Court perused the record and observed that the Chief Judicial Magistrate passed the order without recording any prima facie finding qua alleged instances of maltreatment to the petitioner and the children, by the respondent and his mother. The Court held that in a case of domestic violence, in order to seek the relief of interim maintenance under Section 23 of the Act, a prima facie case qua maltreatment and existence of instances of domestic violence was required to be made out which was not done in this case. Moreover, the Sessions Court did not close the right of the petitioner to claim interim maintenance rather remanded the matter to the trial court for disposal under the law. The High Court did not find any fault with the order impugned. Consequently, the petition was dismissed. [Ashmin Kashmiri v. Pushkar Kashmiri,2018 SCC OnLine HP 841, dated 04-07-2018]

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Madras High Court: The Single Judge Bench comprising of M.V. Muralidaran J., held that “If the husband is healthy, able-bodied and in a position to support himself, he is under the obligation to support his wife under Section 125 CrPC, for wife’s right to receive maintenance under the Section, unless disqualified, is an absolute right.”

The petition for divorce was first filed by the husband/petitioner subsequently followed by a petition by the wife seeking restitution of conjugal rights and while these petitions were still pending, the wife of the petitioner filed another petition seeking interim maintenance for which the petitioner was asked to pay Rs. 16,000/- per month to the respondent/wife.

The petitioner in his submission stated that he was unemployed and was living under the shadow of his father which makes him incapable of providing such huge amount of interim maintenance. But for the same stated issue the respondent/wife contended that it was the husband’s duty to maintain his wife/child with the provision of all the basic needs, and also the contention of the petitioner is incorrect as he runs his own business.

The Hon’ble High Court, on noting all the facts and circumstances stated that it is the obligation of the husband to maintain his wife and he cannot be permitted to plead that he is unable to maintain his wife due to financial constraints as long as he is capable of earning. Therefore, the Criminal Revision was partly allowed by reducing the sum of interim maintenance to Rs. 10,000/- per month by directing the Family Court judge to dispose of the petition without giving any further adjournment. [Vishnuprasad v. Vishnupriya,  2018 SCC OnLine Mad 1306, dated 11-04-2018]

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Delhi High Court: Hearing an appeal against the Family Court’s order declining to award interim maintenance to the  appellant wife as she is a qualified chartered accountant having sufficient means to maintain herself, the Court observed that Section 24 of the Hindu Marriage Act makes a provision for award of interim maintenance to a spouse who has no independent income sufficient to support her and fight the legal battle. The appellant wife being  well qualified and in profession for the past 13 years need not be granted interim maintenance.

The appellant is a CA while her husband is an Electrical Engineer running his own business. The husband had filed a petition for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act. The wife under Section 24, sought interim maintenance for a sum of Rs 3 lakh per month for herself and the two children besides Rs 1.13 lakh towards litigation expenses.  While denying maintenance to the wife, the Family Court refused to believe her claim that she was getting only Rs 7,000 per month despite the fact that she had been practicing as a Chartered  Accountant since the year 2003. Her claim that she has no sufficient means to support herself and children was dealt with by the  Family Court noting that the parties had been indulging in jugglery of accounts making the things complex. The Family Court, however, awarded a sum of Rs 22,900 per month towards the maintenance of her two children.

Concurring with the finding of the Family Court, the Court observed that the High Court of Madras in Manokaran v. M. Devaki, 2003 SCC Online Mad 135,  while construing the provision of Section 24 of the Hindu Marriage Act and relying on its earlier decision in  Kumaresan v. Aswathi, 2002 SCC Online Mad 377 held that for grant of maintenance pendent lite, the party should not have sufficient independent income for her/his support. The Court also noted that in the  context of award of interim maintenance under Section 24 to a well-qualified spouse having the earning capacity but desirous of remaining idle has been deprecated in the decision in Mamta Jaiswal v. Rajesh Jaiswal, 2000 (3) MPLJ 100.

Dismissing the appeal, the Bench of Pratibha Rani and Pradeep Nandrajog, JJ observed that the appellant wife who is a qualified Chartered Accountant and in profession since the year 2003 need not be granted interim maintenance under Section 24 of the Act. [Rupali Gupta v. Rajat Gupta, 2016 SCC OnLine Del 5009, decided on September 5, 2016]

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Delhi High Court: Reiterating the factors to be considered while considering the merits of an application for grant of interim maintenance under Section 24 of the Hindu Marriage Act, 1955 the Court held that the object behind Section 24  is to provide for maintenance, pendente lite, to a spouse in matrimonial proceedings so that during the pendency of the proceedings the spouse can maintain herself/himself and also have sufficient funds to carry on the litigation and  not unduly suffer in the conduct of the case for want of funds. A spouse unable to maintain himself/herself is entitled to maintenance on the principle of equistatus and respect that the spouse would have enjoyed if he/she continued to live with other spouse.

The Court reiterated the factors to be considered while determining the amount of maintenance as laid down in Bharat Hegde v. Saroj Hegde,  2007 SCC Online Del 622 : (2007) 140 DLT 16:

  • Status of the parties.
  • Reasonable wants of the claimant.
  • 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 life style 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 under Section 125 of the Criminal Procedure Code is adjustable against the amount awarded under Section 24 of the Act.

The Division Bench of Pradeep Nandrajog and Pratibha Rani, JJ. held that the court has to necessarily arrive at prima facie determination about the earning capacity of the rival claimants. The determination cannot be made with exactitude; it is essentially interim in nature. Capacity of the other party to earn cannot be taken into consideration – it is only the actual earning of the opposite party on the basis of which relief can be granted. Permanent income and not casual income is relevant. Where there was sufficient means in the husband’s family on the strength of which the husband got married he has to share the burden of supporting his wife during the course of annulment of such marriage

The Court  further observed that “the provisions of Section 24 are beneficent in nature and the power is exercised by the court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse. The legislature, in its discretion, has not fixed any guideline regarding ceiling limit of maintenance, pendente lite, as in the case of the Divorce Act or the Parsi Marriage Act. The word “support” in Section 24 is not to be narrowly interpreted. It does not mean bare existence. It means that the claimant spouse should have the same comfort as the other. Of course, the section is not intended to bring about arithmetical equality between the two.” [Sujit Kumar v. Vandana, 2016 SCC OnLine Del 4397, decided on August 8, 2016]