Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., while setting aside the orders pronounced by the Courts below observed that,

“the law already gives a remedy to claim maintenance to a daughter under the provisions of Hindu Adoption and Maintenance Act even if she is a major by age and unmarried and dependent on her father.”

The instant application was moved by the applicant–father under the provision of Section 482 of the Code of Criminal Procedure, 1973 questioning the Judicial Magistrate’s Order allowing interim maintenance under Section 125 CrPC.

Applicant’s Counsel, Runwal invited the Court’s attention to Section 125 of CrPC, particularly clause (b) & (c) of sub-section 1.

According to the counsel, the father has an obligation to maintain the daughter who is not married, however, the said provision does not confer any right in major daughter to claim an interim after such daughter attains majority and if she is physically or mentally not suffering from any abnormality or injury.

Court’s attention to the provisions of Section 20 of the Hindu Adoption and Maintenance Act was also invited. Further, he relied on the decision of Supreme Court in Abhilasha v. Prakash, 2020 SCC OnLine SC 736.

Respondent — Daughter urged that the act of trial court of not deciding the application for maintenance for years together cannot be viewed or come to the help of the applicant particularly when Statute contemplates an obligation on the applicant-father to pay maintenance to a minor daughter pursuant to the provisions of Section 125(1) of CrPC.

Analysis and Decision

If the scheme of clause (c) of sub-section (1) of Section 125 of CrPC is considered, what is appreciated is, legitimate or illegitimate child (not being a married daughter) who has attained majority who by reason of any physical or mental abnormality or injury, if unable to maintain herself, can claim maintenance from father or a person who has sufficient means and who has neglected or refused to maintain.

What is required to be appreciated in the instant case is that even if the respondent — daughter who has attained majority and she is already getting expenses as was ordered in proceedings under the Hindu Marriage Act and interim maintenance.

In accordance with the Supreme Court decision in Abhilasha v. Prakash, 2020 SCC OnLine SC 736, it was made clear that under Section 20 of the Hindu Adoption and Maintenance Act, right of an unmarried daughter to claim maintenance from her father when she is unable to maintain herself is absolute. Such right is granted under the personal law which such daughter has every right in law to enforce against her father. As such, right under Sub-section 3 of Section 20 of the said provisions is recognized to be existing to claim maintenance after she attains majority till her marriage, from her father.

“Unmarried daughter is entitled to claim maintenance from her father till she is married even though she has become major which right is recognized under Section 20 (3) of the Hindu Adoption and Maintenance Act.”

Court stated that a daughter can claim maintenance under the Hindu Adoption and Maintenance Act even if she is major by age and unmarried and dependent on her father.

Magistrate failed to appreciate the above-stated intricacies of the provisions of Section 125(1)(c) of CrPC and right of a daughter under Section 20(3) of the Hindu Adoption and Maintenance Act.

Further, the Bench observed that the Courts below committed an error in awarding interim maintenance to major daughter in the exercise of powers under Section 125 CrPC.

Hence, in view of the above, the present application needs to be allowed.[Sanjay J Phagnekar v. State of Maharashtra, Criminal Application No. 50 of 2020 with Interim Application No. 1322 of 2020, decided on 23-11-2020]

Case BriefsHigh Courts

Delhi High Court: Anu Malhotra, J., addressed a matter wherein the husband and wife reach a settlement and the wife agrees to a clause wherein her minor daughter would also not be liable to claim anything against the petitioners.

In the instant application, petitioners have been stated to be under judicial custody, Vaibhav Jaiswal was alleged under Section 376 of Penal Code, 1860 and under POCSO Act, 2012.

Other petitioners were alleged to have committed offences under Sections 498 A, 406 and 34 of IPC.

The above-stated FIR was sought to be quashed in light of a settlement arrived between the petitioners and respondent 2 and that the marriage between the petitioner 1 and respondent 2 has been dissolved.

Respondent 2 affirmed the factum of the settlement arrived between her and petitioner 1.

Bench stated that in view of the above there appears no reason to disbelieve that the statement made by respondent 2 that she has arrived at a settlement with petitioners was made of her own accord.

Hence, all the proceedings against the petitioners are quashed.

However, in regard to the settlement deed, it was observed that under clause 7 states as follows:

“It is agreed between the parties that the above settlement is with respect to all claims of wife past, present, future, alimony, stridhan, maintenance, executions, articles property etc. and neither she nor her relatives shall claim anything from husband or from his family members in future for herself or on behalf of Child/children.”

Court stated that it is essential to observe that respondent 2 gave up all the rights of the minor child Vaishanvi qua the petitioners.

But the above could not have been done so in light of the Supreme court decision in Ganesh v. Sudhi Kumar Shrivastava, Civil Appeal Nos. 4031-4032/2019 arising out of SLP (C)  Nos. 32868-32869/2018, a verdict dated 22.4.2019 adhered to by this Court in Rakesh Jain  v. State, Crl. MC No. 2935 of 2019.

Hence, the minor child would be entitled to seek her claims against the petitioners and respondent 2 qua maintenance or otherwise in accordance with the law. [Vashno Jaishwal v. State (NCT of Delhi), Crl MC No. 2254 of 2020, decided on 20-11-2020]

Case BriefsHigh Courts

Karnataka High Court: Jyoti Mulmani J., allowed the revision petition on grounds of failure to ascertain and understand the material propositions involved in the case.

The facts of the case are that the petitioner is a legally wedded wife of respondent and their marriage was solemnized on 28-02-2007 at Gayathri Mangalya Mandira, B.H. Road, Shimoga as per the Hindu Rites and Customs. They lived blissfully for some time however was constrained to leave apart from respondent after some time. Thereafter she filed a petition under Sections 18, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 which was thereby allowed and compensation granted. Aggrieved by which, appeal was preferred by both parties which was clubbed and the impugned order upheld. Later, a petition as filed under Section 125 of Criminal Procedure Code, 1973 which was dismissed as non-maintainable. Aggrieved by this order, present revision petition has been filed challenging the impugned order.

Counsel for the petitioners submitted that the order suffers from serious infirmities and is liable to be set aside as the ground for rejection of the petition that the petitioner had filed petition under provisions of Protection of Women from Domestic Violence act, 2005 and thus petitioners cannot file another petition under Section 125 CrPC is wholly unsuitable in law.

Counsel for the respondents submitted that the impugned order has reached finality as petitioners have not preferred a further appeal before any other courts.

The Court observed that the petitioner filed a petition under Section 125 Cr.PC and not under Section 127 of the Code. There has been an error in the impugned order in not appreciating the distinction between the provisions of the Domestic Violence Act and Cr. PC as the petitioner is not seeking enhancement of maintenance.

The Court before disposing off the petition remanded the matter to reconsider the application filed by petitioner under Section 125 CrPC.

In view of the above, the impugned order was set aside.[D.A. Divya v. M. Yashwanth, R.P.F.C. No. 63 of 2016, decided on 02-11-2020]


 Arunima Bose, Editorial  Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: A Division Bench of A.M. Shaffique and Mary Joseph, JJ., upheld the Family Court’s decision wherein the wife obtained the consent of husband by fraud.

Husband in the original petition sought a perpetual injunction restraining respondents and their men from trespassing into the petition schedule property and general damages for loss suffered.

Marriage | Null & Void

Another petition by the husband was filed seeking to declare the marriage between himself and respondent null and void for the reason that it was not consummated due to the heart ailment of the wife, suppressing which factum the consent for marriage was obtained

Another petition was filed by the wife seeking to get back money and gold ornaments given to her at the time of marriage, taken custody of and misappropriated by her husband.

Wife had also sought monthly maintenance under Section 125 of Criminal Procedure Code, 1973.

Husband’s petitions were allowed and marriage was declared null and void with a direction to pay damages, whereas the petitions filed by the wife seeking maintenance and return of gold were dismissed.

Aggrieved by the orders issued, the wife preferred the appeals as stated above.

Analysis and Decision

Suppressing Material Factum | Foul Play and Fraud

Bench stated that it is constrained to take a view that without revealing the cardiac ailments the wife had, the consent of the husband for marriage was obtained and suppressing of a material factum is undoubtedly a foul play and nothing short of fraud.

Consent of the husband for the marriage was obtained by playing fraud on him.

Hence Court found no fault in the family court’s decision in granting a decree declaring the marriage as null and void on the strength of the evidence already discussed with.

With regard to the damages being allowed to the husband, Court stated that as discussed above, husband had every reason for the claim made to succeed.

Family Court declined the wife for getting back the money and gold ornaments given to the husband at the time of marriage.

Bench stated that after scrutiny of Ext.A6 it was of a view that all articles belonging to the wife were already received by her from the husband.

With regard to the maintenance being denied by the Family Court, the bench observed that since the marriage was declared as null and void, the lady cannot claim the status of a wife so as to be entitled to raise a claim for maintenance.

The arguments advanced by the wife to get a reversal of the impugned common order being untenable ones, bench discarded those. [Ajitha v. Harshan, Mat. Appeal No. 734 of 2012, decided on 25-09-2020]

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

Himachal Pradesh High Court: Ajay Mohan Goel J., while rejecting the present criminal revision sought against the compensation and maintenance allowed by the lower court, clarified the legal position on simultaneous remedy under the Domestic Violence Act and the Criminal Procedure Code.

 Brief Facts

Facts of the case are enumerated herewith;

  1. That a petition filed by the respondent herein, under Section 12 of the Protection of Women from Domestic Violence Act, 2005, stood allowed by the Court of Judicial Magistrate, titled as Palbi Sharma v. Sachin Sharma, vide order dated 23-12-2016, directing the present petitioner to pay monthly maintenance to the tune of Rs 3000 per month to the present respondent/wife from the date of the order.
  2. That, in addition Rs 20000 was also ordered by way of compensation by the Court against the proven acts of cruelty committed by the present petitioner.
  3. That the petitioner was also directed to provide accommodation to the wife, on rent comprising of one room, kitchen bathroom and toilet or in the alternative to provide said accommodation in his own house if he was in a position to do so.
  4. That the petitioner filed an appeal against the abovementioned decision which was dismissed by the Court of Sessions Judge vide judgment dated 29-09-2018.
  5. That the wife also filed an appeal against the order passed by the Court of Judicial Magistrate, which was also dismissed by the Appellate Court vide the same order.
  6. That the wife has not preferred any further petition against the adjudication made in her appeal by the Appellate Court, therefore, this Court is not making any observation qua rejection of the said appeal but, feeling aggrieved by the dismissal of the appeal preferred by the petitioner, the present Court herein addresses this case as filed under Section 397 read with Section 401 of the Criminal Procedure Code.

 Issue

Whether the present criminal revision filed by the petitioner maintainable?

 Decision

While rejecting the present criminal revision, the Court concurred with the findings of the lower court and said that both, the amount granted under Section 125 CrPC, amounting Rs 3500 and an amount of Rs 3000, ordered under Section 12 of the Domestic Violence Act, in addition to the compensation of Rs 20000, awarded against the proven charges of cruelty, stand justified and “by no stretch of imagination, can be said to be on the higher side”. The Court further clarified that, “The provisions of Section 125 of the Criminal Procedure Code and Section 12 of the Protection of Women from Domestic Violence Act, 2005 are distinct and different. Law does not prohibit the wife to proceed under both of the said statutory provisions simultaneously or otherwise.”[Sachin Sharma v. Palvi Sharma,  2020 SCC OnLine HP 2109, decided on 26-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Pradeep Kumar Srivastava, J., while addressing the present matter, observed that:

… right of maintenance available to wife from husband is an absolute right and even divorce cannot affect this right unless the wife is disqualified on account of remarriage or her sufficient earning.

It was also observed:

Gender justice is a constitutional promise and the provision of maintenance provided under Section 125 of the Code is one of the tools to translate the constitutional promise into social reality. Moreover, Article 21 of the Constitution guarantees every person a right to live with dignity and a dignified life is not possible unless a fair and reasonable provision is made by the husband towards the maintenance of his divorced wife. Therefore, while interpreting and applying this beneficial legislation, the Constitutional vision of equality, liberty and justice, more particularly social justice to the women and marginalized sections of society, must be present when the courts are dealing with an application of destitute wife or helpless children and aged and infirm parents. Social justice adjudication or social context adjudication requires application of equality jurisprudence where the parties to a litigation are unequally situated in terms of socio-economic structure and dilution of the technical procedure often followed in adversarial system.

Instant criminal revision was preferred against the impugned judgment passed by Family Court under Section 125 of the Criminal Procedure Code, 1973 by which OP 2 – Divorced Wife was awarded Rs 3,000 as maintenance.

Before the Court below, the wife gave an application under Section 125 CrPC stating that she was married to revisionist according to the Muslim Personal Law and later during the course of her marriage, her husband and his family demanded motorcycle, refrigerator and dowry and on non-fulfilment of the same, she was beaten up and expelled along with her daughter. On being expelled she along with her daughter started living with her parents.

The wife was totally dependent on her father, later after the death of her father she was facing financial trouble and was not able to maintain herself, hence she claimed maintenance.

Present revision was filed by the husband challenging the impugned judgment on the ground that earlier a case under Section 125 CrPC for maintenance which was filed by wife was decided wherein the maintenance claim of the wife was rejected on the ground that being Muslim she was not entitled for maintenance after divorce beyond period of iddat and by this impugned judgment, the said judgment has been reviewed, which is contrary to law.

Revisionist’s Counsel contended that divorced Muslim wife is not entitled to maintenance under the law applicable to parties and the subsequent application is barred by the principle of res judicata.

In Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, the issue before the court was that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation to pay maintenance under the provisions of Section 125 CrPC. A five-Judge Constitution Bench of the Supreme Court held that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties and in case of conflict between the terms of the Code and the rights and obligations of the individuals under personal law, the Code would prevail.

In the above-cited case, the important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life and remarriage was an impossibility in that case. The husband, a successful Advocate, with an approximate income of Rs 5,000 per month provided Rs 200 per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

Supreme Court interpreted the provisions of the Act and Section 125 CrPC in such a way as to give recognition to the right of divorced Muslim wife to claim maintenance under Section 125 even for the period beyond iddat period and for the whole life unless she is disqualified for the reasons such as entering into marriage with someone else.

Hence, in view of the above Court found no force in the argument that a divorced Muslim wife is not entitled to maintenance beyond the iddat period.

Section 125 of the Code of Criminal Procedure has been enacted to achieve a social object and the object is to prevent vagrancy and destitution and to provide speedy remedy to deserted or divorced wife, minor children and infirm parents in terms of food, clothing and shelter and minimum needs of one’s life.

 Bench held that when the Supreme Court has interpreted and clarified the law and has laid down that the Muslim divorced wife can still claim maintenance under Section 125 CrPC despite the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, her claim cannot be defeated on the basis of an earlier decision of the court below and the earlier judgment cannot operate as res judicata.

Court while concluding its decision held that:

Section 125 of the Criminal Procedure Code has been enacted with a specific purpose to protect women and children and to prevent vagrancy and destitution among them. This law is not community-centric or religion centric and perhaps, one of the most secular enactment ever made in the country. It is an instrument of social justice and aims to render justice on the basis of equality to wife, in particular, may be divorced including a divorced Muslim wife.

In view of the above, the revision petition was dismissed and the Family Court’s decision was upheld. [Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., disposed off the petition without any interference with impugned orders.

The facts of the case are such that the petitioner is the legally wedded wife of defendant having solemnized a marriage with him in the year 1994 and has a son out of the wedlock. Due to marital discord, plaintiff started residing with her father since the year 1998 along with the son.  An application for grant of maintenance under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by petitioner before the Court of learned Judicial Magistrate 1st Class, Manali. Apprehending defeat of her maintenance claim by the defendant by selling the suit land an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure (CPC) was filed for restraining the defendant from alienating, transferring and for creating charge over the suit land which stands dismissed by the trial Court. The order was later upheld by the Appellate Court. Aggrieved by the same, instant petition was filed under Article 227 of the Constitution of India.

Counsel for the petitioner relied on the judgment titled  V. Tulasamma v. Sesha Reddy, (1997) 3 SCC 99 and submitted that both the Courts have misdirected themselves in treating the civil suit as one filed by a coparcener i.e the wife to restrain and injunct Karta i.e. the husband from alienating the suit land, whereas the civil suit was a case instituted by the wife for creation of charge over the property of her husband in lieu of maintenance and, therefore, permanent prohibitory injunction for restraining the defendant was sought for.

Counsel for the respondent relied on a judgment titled Sunil Kumar v. Ram Prakash (1998) 2 SCC 77 and submitted that a coparcener has no right to get an injunction against Karta. He further submitted that respondent being Karta has legal right to alienate ancestral property in case of legal necessity and the petitioner has no right to pray for injunction restraining the defendant from alienating the suit land.

Courts observation on maintenance claim of wife vis-à-vis creation of charge over husband’s property

The Court relied on a judgment titled Kannan v. Maragathammal, 2012 SCC Online Mad 2285 and observed

“The Hindu Law Texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether joint or self-acquired. They recognise the subordinate interest of the wife in her husband’s property arising out of her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependants of their maintenance…”

“…..The decisions of the various High Courts tow the same line, recognise her subordinate interest in her husband’s property and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore is entitled to be maintained out of the profits of her husband’s property and, if so, under the express terms of S.39 she can enforce her right against the properties in the hands of the alienee with notice of her claim. Though the right of the wife to separate maintenance does not form a charge upon her husband’s property, ancestral or self-acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it can be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperiled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Such a charge can be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance.”

 In view of the observations above, the Court held that in the instant case only relief under Order 39, Rules 1 & 2, Code of Civil Procedure is sought and claim for maintenance has been submitted without presenting any Court order for the same. In light of the submission made by the petitioner herself that respondent has right to alienate property only in case of legal necessity, the Court further held that property being an ancestral property petitioner’s ‘son’ has not been made a party. In the said course of things a charge has not been created over the suit land towards maintenance of the plaintiff but the plaintiff i.e. the petitioner has right to take legal recourse in case of alienation of property.

In view of the above, the instant petition is disposed off without any interference in impugned orders.[Kubja Devi v. Chhape Ram,  2020 SCC OnLine HP 1829, decided on 05-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while addressing an issue observed and reiterated the established position of the Supreme Court that, under Section 125 of Criminal Procedure Code, 1973 an illegitimate child is entitled to maintenance.

Present criminal revision case was filed against the Judicial Magistrate’s order.

Petitioner’s second wife i.e. respondent 2 states that she got married to the petitioner as per the Hindu Customs and with the consent of his first wife Jeyalakshi and the family members.

Further, she added that she gave birth to a female child i.e. respondent 1.

After some time, the petitioner started harassing the respondent-wife and respondents which resulted in the respondent-wife leaving the house.

On filing a complaint before the All Women Police Station wherein the petitioner agreed to pay maintenance to the respondents but later he denied to pay the same.

In view of the above, the respondent-wife sought maintenance before the Magistrate.

Aggrieved with the magistrate’s decision, the petitioner/husband filed the revision case.

Petitioner raised the ground that the respondent-wife did not elicit through any evidence that the petitioner had sufficient means to pay the maintenance to respondents.

Not Entitled to Maintenance | Magistrate

Trial Court held that the second respondent was not entitled to any maintenance as she was not the legally wedded wife as per the provisions of the Hindu Marriage Act, 1955 when the first marriage of the petitioner was still in force.

Avoidance to maintain the child

It appeared that the revision petitioner used to run the shop in his first wife’s name, however, he claimed that he was working as an employee for a salary of Rs 3,500. Thus the respondent took such a plea only to avoid the payment of maintenance of the child.

For the petitioner’s plea that he had no means to pay the maintenance, Supreme Court’s decision in Sumitra Devi v. Bhikan Choudhary, (1985) 1 SCC 637 was referred, wherein following was held:

“…under Section 125 of the CrPC even an illegitimate minor child is entitled to maintenance. Even if the fact of marriage is discarded, the minor child being found to be an illegitimate daughter of the respondent would be entitled to maintenance.”

Even in Supreme Court’s decision of Bakulbhai v. Gangaram, (1988) 1 SCC 537, it was held that,

“…even an illegitimate child is entitled for maintenance.”

Bench also referred to Section 125 of CrPC which provides that an illegitimate child is entitled to maintenance and the same has been reiterated by the Supreme Court in a number of cases.

Hence,

Husband is duty bound to maintain his dependendants, regardless of his job and income.

Adding to the above, Court held that as a father of the child, it is the petitioner’s responsibility and moral duty to take care of his own daughter by paying the maintenance.[Pachaimuthu v. Minor Vishanthini, 2020 SCC OnLine Mad 2677, decided on 01-10-2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and P. Rajamanickam, JJ., addressed an appeal with regard to seeking interim maintenance when permanent maintenance was already granted.

Petitioners have filed the present appeal challenging the Family Court’s Order.

Husband sought divorce against the first appellant(wife) on the ground of cruelty.

During the pendency of the above petition, appellants filed an application under Section 7(1) of the Family Courts Act read with Section 25 of the Hindu Marriage Act, 1955 and Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the husband to pay a sum of Rs 10,000 to appellant 1 and Rs 5,000 to appellant 2 towards monthly maintenance.

Another application under Section 24 of the Hindu Marriage Act, 1055 read with Sections 20 and 26 of the Protection of Women from Domestic Violence Act, 2005 to direct the respondent to pay a sum of Rs 7,500 to appellant 1 and Rs 5, 000, was also filed.

Counsel for the appellants, M.P. Senthil and Counsel S. Jeyavel, for the respondent.

Issues to be considered:

  • Whether the petitioners are precluded from seeking interim maintenance by invoking the provisions of Section 24 of the Hindu Marriage Act r/w Sections 20 and 26 of the Protection of Women from Domestic Violence Act on the ground that they already got an order for payment of maintenance in D.V proceedings?

Analysis & Decision

Bench referred to Section 25 of the Hindu Marriage Act, 1955, which is in regard to the permanent Alimony and Maintenance.

Section 25(1) of HMA empowers the Court, while passing any decree to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband and by way of permanent alimony, an order granting maintenance can also be passed by the Court.

“…at any time, subsequent to the passing of decree also, the Court can order for granting maintenance on application made to it by either wife or the husband.”

Bench noted that the appellants cannot ask for interim relief, when permanent relief has already been granted to them.

In view of the above, court relied on the decision of Rakesh Malhotra v. Krishna Malhotra, 2020 SCC OnLine SC 239 wherein the following was dealt with:

After grant of permanent alimony under Section 25 of the 1955 Act, prayer made by wife before Magistrate under Section 125 of Code for maintenance over and above what has been granted by Court under Section 25 of Act. Impugned order allowing prayer was set aside with direction that application preferred under Section 125 of Code shall be treated and considered as one preferred under Section 25(2) of Act.

What the appellants should have done in the present matter?

Since, the appellants had already received maintenance in the DV proceedings under Section 20 of the DV Act which is permanent in nature, yet if due to a change in the circumstances the said order required modification or alteration, they can approach the same Court seeking the relief by invoking Section 25(2) of the DV Act or the Family Court can also be approached to exercise the power under Section 25(1) of the HMA.

But the resort of filing another application before another forum that too in the nature of interim relief should not be adopted.

Section 26 of the DV Act shows that the aggrieved person may seek any relief under Sections 18 to 22 of DV Act in any legal proceedings before a Civil Court/Family Court or Criminal Court as additional reliefs.

In the present case, the petitioner had already received an order in the petition properly filed under Section 12 of the DV Act before the Additional Mahila Court, Tiruchirappalli and that being so, they were not entitled to file a petition before the Family Court by invoking the provision under Section 26(1) of the DV Act, seeking interim relief.

Therefore, in the High Court’s opinion, the  Family Court Judge had rightly dismissed the application. [Gomathi v. Sacraties,  2020 SCC OnLine Mad 2754, decided on 15-09-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan. R. Subhash Reddy and MR shah, JJ has held that an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Hindu Adoptions & Maintenance Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act, 1956.

BACKGROUND OF THE CASE

The Court was hearing a case wherein a woman had filed an application under Section 125 CrPC against her husband, claiming maintenance for herself and her 3 children. While the Judicial Magistrate dismissed the application under Section 125 Cr.P.C. of the applicant and 2 of her children, the daughter’s application was allowed for grant of maintenance till she attains majority. The High Court dismissed the application filed under Section 482 Cr.P.C. of the appellant on the ground that since appellant has attained majority and is not suffering from any physical or mental abnormality, she is not entitled for any maintenance.

Senior Advocate Vibha Datta Makhija, appearing for the appellant submitted that even though the appellant had attained majority in 2005 but since she is unmarried, she is entitled to claim maintenance from her father. It was further contended that High Court committed error in dismissing the application filed under Section 482 Cr.P.C. of the appellant on wrong premise that since appellant has attained majority and is not suffering from any physical or mental abnormality, she is not entitled for any maintenance.

According to the respondents, as per Section 125 Cr.P.C., entitlement to claim maintenance by daughter, who has attained majority is confined to case where the person by reason of any physical or mental abnormality or injury unable to maintain herself and hence, High Court has rightly dismissed the application filed under Section 482 Cr.P.C. of the appellant since no case was made out to interfere in orders passed by the Judicial Magistrate and learned Revisional Court in exercise of jurisdiction under Section 482 Cr.P.C.

DISCUSSION ON SECTION 125 CRPC vis-à-vis SECTION 20 OF HAMA, 1956

“The maintenance as contemplated under Act, 1956 is a larger concept as compared to concept of maintenance under Section 125 Cr.P.C..”

On scope of Section 20(3) of HAMA, 1956

Hindu Law prior to enactment of HAMA, 1956 always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by her against her father, if she is unable to maintain herself by enforcing her right under Section 20 of HAMA, 1956. Hence, Section 20(3) of HAMA, 1956 is nothing but recognition of principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3) makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property.

“The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against her father.”

On scope of Section 125 CrPC

By virtue of Section 125(1)(c), an unmarried daughter even though she has attained majority is entitled for maintenance, where such unmarried daughter is by reason of any physical or mental abnormality or injury is unable to maintain itself.

“The Scheme under Section 125(1) Cr.P.C., thus, contemplate that claim of maintenance by a daughter, who has attained majority is admissible only when by reason of any physical or mental abnormality or injury, she is unable to maintain herself.”

The purpose and object of Section 125 Cr.P.C. as noted above is to provide immediate relief to applicant in a summary proceedings, whereas right under Section 20 read with Section 3(b) of HAMA, 1956 contains larger right, which needs determination by a Civil Court, hence for the larger claims as enshrined under Section 20, the proceedings need to be initiated under Section 20 of the Act and the legislature never contemplated to burden the Magistrate while exercising jurisdiction under 34 Section 125 Cr.P.C. to determine the claims contemplated by Act, 1956.

CONCLUSION

On facts, the Court noticed that since the application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class, the Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956. Hence, there is no infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major.

The Court, however, gave liberty to the appellant to take recourse to Section 20(3) of the Act, 1956 for claiming any maintenance against her father.

[Abhilasha v. Prakash,  2020 SCC OnLine SC 736 , decided on 15.09.2020]

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., while addressing a petition with regard to grant of maintenance held that under Section 19 of the Hindu Adoption and Maintenance Act, 1956 wife has every right to claim the maintenance after the death of the husband from the estate inherited by her father-in-law.

Facts

Late Bhupinder was married to respondent 1. Respondent 2 was born out of the said marriage.

Mother of Respondent 1 died in the year 2016 and her father died in 2017. She submitted that she has no independent source of earning and she and her son are completely dependent on the earnings of the petitioner.

In view of the above, respondent 1 preferred the proceedings under Section 19 and 22 of the Hindu Adoption and Maintenance Act, 1956 for grant of maintenance of Rs 1,50,000 per month to petitioner 1 and Rs 50,000 to petitioner 2.

Family Court had allowed granted maintenance of Rs 40,000 per month to respondent 1, whereas Rs 30,000 per month to respondent 2.

Hence the present petition was filed.

Analysis and Decision

Section 19 of the Hindu Adoption and Maintenance Act, 1956 contemplates that the wife has every right to claim the maintenance after the death of the husband from the estate inherited by her father-in-law, ie. the present petitioner.

Proviso to Sub-Section (1) of Section 19 contemplates that the respondent has to demonstrate that she on her own is unable to maintain herself.

Thus, it is in the above-stated eventuality that she can claim maintenance from the estate of her husband, still, fact remains that the said burden can be discharged by respondent1 at an appropriate stage.

Further, the court stated that the maintenance awarded to the respondent 1 to the tune of Rs 40,000 and to respondent  2, grandson of Rs 30,000 appears to be justified, considering the income drawn by the petitioner.

High Court stated that it cannot see any material illegalities to infer that the impugned order runs contrary to the scheme of Section 19 of the Act. Hence no case for interference will be made out in the present petition. [Sardool Singh Sucha Singh Mathroo v. Harneet Kaur, 2020 SCC OnLine Bom 927, decided on 07-09-2020]

Case BriefsHigh Courts

Gujarat High Court: A.P. Thaker, J., dismissed an application that was filed on being aggrieved and dissatisfied with the order of maintenance passed by the Family Court whereby the petitioner was ordered to pay maintenance of Rs 4, 000 per month to his wife.

The Counsel for the applicant, Jatin Yadav had contended that the respondent had filed an application before the Family Court, Ahmedabad, on the ground that she was deserted by the husband and the husband had not paid any maintenance to her. He further contended that marriage between the parties was solemnized on the false statement of the wife that she was unmarried therefore, he had also filed a criminal complaint against the wife for cheating and the same was pending. He further contended that the wife was serving in a company and was getting Rs.9, 000/as income from that job and, therefore, she was not entitled to get any maintenance from him and that the applicant was earlier working as RTO agent and since the system of online was introduced, he had no such income as has been alleged by the wife.

The Court while dismissing the revision petition stated that after appreciating all the evidence in proper perspective it is clear that the Family Court has not committed any serious error of law and facts. It is incumbent upon the husband to lead evidence with regard to his income. In the present case, wife has fairly admitted that she was working in a private company and was getting Rs 5, 000 per month. As against this, the husband had merely stated that he was working as RTO agent and now due to coming into operation of the online system, he was not getting that much income as has been alleged by the wife. At the same time, the husband has not led any evidence regarding his actual income thus; it was the liability of the husband to pay maintenance to his wife.[Ajitbhai Mohanbhai Parghi v. State of Gujarat, 2020 SCC OnLine Guj 1228, decided on 03-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Jharkhand High Court: Shree Chandrashekhar, J., addressed an issue with regard to maintenance under Section 125 of the Code of Criminal Procedure Code.

In the present revision petition, maintenance order under Section 125 of the Code of Criminal Procedure has been challenged.

Petitioner-Husband’s wife stated that her husband was irresponsible towards the conjugal relationship and neglected to maintain her. The matrimonial suit which was instituted by the husband seeking a divorce decree was disposed of on a compromise between the parties.

Petitioner’s counsel, Sanjay Prasad contended that the above-stated matrimonial suit was decreed “as per terms of the compromise” under which the wife had relinquished all her claims against the petitioner, hence petitioner’s wife was not entitled to maintenance under Section 125 of CrPC.

In the Supreme Court decision of Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452, Court dealt with the issue of whether a wife who has agreed for permanent alimony and given up future claim for maintenance is entitled to maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 after the divorce?

To the above, the Supreme Court responded that

“The proceeding under Section 125 CrPC is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 CrPC by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act.”

In the present matter, Family Court Judge had observed that permanent alimony or maintenance was not given by the petitioner and the wife was unable to maintain herself. Hence, the Court awarded Rs 5000 monthly maintenance to the wife.

Object of Section 125 CrPC is to ensure that a wife, minor children or helpless parents do not suffer in penury.

High Court declined to interfere in the present matter keeping in mind the limitation under revisional jurisdiction and therefore dismissed the criminal revision.[Umesh Prasad Mahto v. Puspa Devi, 2020 SCC OnLine Jhar 645, decided on 06-07-2020]

Case BriefsHigh Courts

Tripura High Court: S. Talapatra, J., while addressing a matter with regard to provision of maintenance, observed that,

When one statute ensures maintenance for the person to be in the relationship in the nature of marriage, the other statute cannot be interpreted to abrogate the provision relating to grant of maintenance.

Petitioner has questioned the legality of Judgment passed by the Family Court, West Tripura Agartala on 17-06-2019, wherein the petitioner was asked to pay maintenance of Rs 4000 to the respondent.

Crux of the challenge

Marriage of a woman with a man while his spouse is alive and their marital relation has not come to an end, the marriage is a complete nullity.

Thus, any court invoking its jurisdiction under Section 125 of the CrPC cannot pass two different maintenance orders against the person considering two women as his spouse. Thus, it has been contended that the respondent is not entitled to maintenance.

Facts

Petitioner was married to Sabitri Das at the time of the alleged marriage with respondent, the marriage with respondent in this situation is not even legal.

Even though the petitioner had a spouse living at the relevant point of time, but the fact was grossly suppressed from the respondent at the time of the marriage.

Purpose of Section 125 of the CrPC is well noted in K. Vimal v. K. Veeraswammy, (1991) 2 SCC 375 in the following words:

“Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.”

Benjamin N. Cardozo in The Nature of Judicial Process observed that,

“…The social context judging had also been recognized in the legal maxim ut res magis valeat quam pereat. Where alternative constructions are possible, the court must give effect to that which will be responsible for smooth-working of the system for which purpose the statute has been enacted rather than one which will put a road block in its way.”

A woman who lived like a wife and in the perception she was treated as the wife cannot be deprived of the maintenance. For this purpose a co-terminus provision for granting maintenance may be looked into and a uniformity in the definition may be brought in.

In the present matter, respondent was not aware of the fact that the petitioner was already married, but they both have lived for 10 years as husband and wife.

Petitioner failed to disprove the above-stated and in view of the said no infirmity was found in the Family Court’s decision.

High Court has added to its decision that,

Failure in making payment shall be dealt with sternly.[Sri Bibhuti Ranjan Das v. Gouri Das, 2020 SCC OnLine Tri 280 , decided on 07-07-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of S. Manikumar ,CJ and Shaji P. Chaly, J. dismissed a writ petition on account of maintenance expenditure incurred by school even during lockdown.

The petitioners in the present case are students of Sree Buddha Central School who filed the instant petition seeking to direct the State Government to issue directions to the School for providing quality online/virtual class using modern video conferencing techniques along with charging only monthly tuition fees and to ensure that no student is denied the same on the reason of failure to pay fees.

The counsel of the petitioners Manu Ramchandran and Sameer M. Nair submitted while referring to Rule 29 of the Kerala Education Rules, 1959 that respondent school is a recognized school and, therefore, cannot charge fees more than the prescribed as schools can only charge fees to the extent of the expenses for running it and the levy of fees is to be without any profit motive.  He further submitted that during the lockdown from March to May, 2020, schools were closed and online classes commenced only from June 2020. Students have been asked to pay tuition fees for the above said period also wherein such digital classes were in the form of poor quality education as it was given through voice notes on whatsapp instead of proper and quality based online classes.

The counsels for the respondents were Surin George IPE, S. Nirmal, R.T. Pradeep, M. Bindudas and K.C. Harish. It was submitted by the respondent school that the school is only levying the fees charged on the former year without enhancing a single pie. It was further submitted that teaching, non teaching staff and IT professionals who were engaged in training teachers about online classes have to be paid their monthly salary, no matter whether there was lock down or not.

The Court, on hearing both sides observed that no separate annual fee was demanded by the respondent school whereas the fees charged for the previous year and the current year is same and there is no change in the same. Hence, the Court further accepting the argument that monthly salaries for the teaching and non-teaching staff has to be paid, found no irregularity or illegality in the actions of the respondents.

In view of the above facts and arguments, the petition was dismissed. [Sreelekshmi S. v. State of Kerala, 2020 SCC OnLine Ker 2494 , decided on 30-06-2020]

Case BriefsSupreme Court

Supreme Court: The bench of R Banumathi and Indira Banerjee, JJ has given a split verdict on the issue whether a Family Court can convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The matter has, hence, been referred to a larger bench.

Background of the case

  • A Muslim woman filed a petition under Section 125 Cr.P.C. alleging that she was subjected to cruelty and harassment for additional dowry and that she was thrown out of matrimonial home.
  • Family Court held that as the appellant is a Muslim divorced woman, her petition for maintenance under Section 125 Cr.P.C. is not maintainable.
  • Treating the application under Section 125 Cr.P.C. as application under Section 3 of the Muslim Women’s Protection Act in the light of the judgment in Iqbal Bano v. State of Uttar Pradesh, (2007) 6 SCC 785, the Family Court directed the husband to pay rupees three lakh in lump sum to appellant towards her maintenance and future livelihood.
  • Rajasthan High Court held that the order of the Family Court converting the application under Section 125 Cr.P.C. into an application under Section 3 of the Act is without jurisdiction and on those findings, set aside the order of the Family 3 Court to that extent.

Banumathi, J’s opinion

Holding that the Family Court cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986, Banumathi , J said

“the application under Section 3(2) of the Act of 1986 by the divorced wife has to be filed before the competent Magistrate having jurisdiction if she claims maintenance beyond the iddat period. Even if the Family Court has been established in that area, the Family Court not having been conferred the jurisdiction under Section 7 of the Family Courts Act, 1984 to entertain an application filed under Section 3 of the Muslim Women Protection Act, the Family Court shall have no jurisdiction to entertain an application under Section 3(2) of the Act of 1986.

On Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986

Section 3 of 1986 Act opens with the words “notwithstanding anything contained in any other law for the time being in force,” a divorced woman shall be entitled to rights enumerated in clauses (a) to (d) of Section 3(1) of 1986 Act. Muslim Women Protection Act may have conferred more rights but the Act confers these rights notwithstanding anything contained in Section 125 Cr.P.C. The nonobstante clause has to be understood fairly and reasonably. The non-obstante clause cannot be lightly assumed to bring in the effect of supersession. It should not be allowed to demolish or extinguish the existing right unless the legislative intention is clear, manifest and unambiguous.

On Section 7 of the Family Courts Act, 1984

The expression “conferred on it” occurring in sub-clause (b) of Section 7(2) speaks of conferment of the jurisdiction on the Family Court by an enactment. Thus, under Section 7(2)(b), the jurisdiction must be specifically conferred and cannot be assumed or deemed to have been conferred. The provisions of the Muslim Women’s Protection Act do not confer any jurisdiction on the Family Court.

Conclusion

Section 3(2) of the Muslim Women’s Protection Act provides that the application may be made to a Magistrate; but not to the Family Court. Also, the Muslim Women’s Protection Act was enacted in 1986 subsequent to the Family Courts Act, 1984. Hence, the Family Court has no jurisdiction to entertain the petition under Sections 3 and 4 of the Act of 1986 and that the Family Court cannot convert the petition for maintenance under Section 125 Cr.P.C. to one under Section 3 or Section 4 of the Act of 1986.

Banerjee, J’s opinion

Disagreeing with Justice Banumathi’s opinion, Banerjee, J said

“Family Courts Act is a secular statute, which applies to matters contemplated therein, irrespective of the religion of the litigating parties.”

On Family Court’s scope of power to lay down procedure

Notwithstanding sub-section (1) and sub-section (2) of Section 10 of the Family Courts Act, which makes the provisions of the CPC applicable to suits and proceedings before the Family Court, other than those under Chapter IX of the Cr.P.C., and the provisions of the Cr.P.C. applicable to all the proceedings under Chapter IX of that Code, it is open to the Family Court to lay down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceeding.

On Territorial Jurisdiction of Family Courts

Where a Family Court has been established for any area, Section 8 of the Family Courts Act denudes the District Court or any Subordinate Civil Court referred to in sub-section (1) of Section 7 of jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section. Section 8(b) of the Family Courts Act prohibits any Magistrate from exercising jurisdiction or powers under Chapter IX of the CR.P.C. in relation to any area for which a Family Court has been established.

On Overriding effect of Family Courts Act

It is important to note that Section 20 of the Family Courts Act, with its non-obstante clause gives the provisions of the Family Courts Act overriding effect, over any other law, which would include the 1986 Act for Muslim Women. The Family Courts Act is to have effect, notwithstanding anything inconsistent therewith, contained in any other law, for the time being in force, or in any instrument having effect, by virtue of any law other than the Family Courts Act.

“the expression “in any other law, for the time being in force”, cannot be construed narrowly to mean a law which was in force on the date of enactment and/or enforcement of the Family Courts Act”

There is no conflict between Section 3(2) of the 1986 Act for Muslim women and the Family Courts Act. On the other hand, Section 20 of the Family Courts Act, 1984 gives overriding effect to the Family Courts Act notwithstanding anything therewith contained in any other law in force. The Family Court is to exercise all the jurisdiction exercisable by any District Court or any other subordinate Civil court in respect of a proceeding for maintenance.

Conclusion

Banerjee, J, hence, concluded that there can be no dispute that the Family Court alone has jurisdiction in respect of personal and family matters relating to women and men, irrespective of their religion. Family matters of Muslim women pertaining inter alia to marriage, divorce etc. are decided by Family Courts, as also claims of Muslim wives to maintenance under Section 125 of the Cr.P.C.

“There could be no reason to single out divorced Muslim wives to deny them access to the Family Courts, and that in my view, was never the legislative intent of the 1986 Act for Muslim Women.”

[Rana Nahid v. Sahisul Haq Chisti, 2020 SCC OnLine SC 522 , decided on 18.06.2020]

Case BriefsCOVID 19High Courts

Jammu and Kashmir High Court: While reviewing the measures taken by the J&K State Legal Services Authority and paralegal volunteers in collecting information regarding the status of petitioners in whose favour the Court had passed orders of maintenance, the Division Bench of Gita Mittal, CJ., and Vinod Chatterji Koul, J., directed the Union Territory Government to examine the possibility of providing assistance to such petitioners in order to enable their survival and sustenance. The Court also clarified that payment of any amount by the Government is only a temporary measure and, the same shall not create any rights in favour of the petitioners.

On perusing the list of petitioners in whose favour, maintenance orders were passed, the Court observed that either due to Covid-19 restrictions or loss of employment because of the pandemic, the respondents were unable to comply with the maintenance order. The Court also noted that the Union Territory Government already has been furnished with the list containing complete details of the petitioners.

The Court further directed that a copy of the list should also be provided to Aseem Sawhney, AAG who shall ensure that the matter is immediately addressed in right earnest. The Court also directed the JKSLSA to file a report regarding all those petitions where maintenance has been sought under any law, within one week. [Court on its Motion v. Union Territory of J&K and Ladakh, 2020 SCC OnLine J&K 290 , decided on 16-06-2020]

Case BriefsHigh Courts

Bombay High Court: N.J. Jamdar, J., while addressing a revision application with regard to maintenance under Section 125 of Code of Criminal Procedure, 1973 held that,

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance.

Wife cannot be denied maintenance on the ground of having a source of income.

Family Court’s Judgment was challenged in the present revision application whereby, Order for payment of Rs 15,000 per month to wife under Section 125 of Code of Criminal Procedure, 1973, was passed.

Applicant claimed that since inception of marital life applicant faced extreme cruelty and was subjected to harassment.

Respondent after leaving the applicant to her parental home at Satara did not come to fetch back the applicant due to which police intervention was allowed, after which applicant started reside separately.

To avoid harassment from respondent, applicant signed the documents for presenting a petition for obtaining divorce by mutual consent, accordingly a decree of divorce was obtained. Despite the same, respondent continued to visit applicant’s apartment and had marital relations as well.

Respondent had not made ay provision for the maintenance and livelihood of the applicant and applicant also had no source of income.

Hence, applicant was constrained to prefer application for award of maintenance under Section 125 CrPC.

Family Court had held that

“Applicant being a wife, despite being a divorcee, within the meaning of Explanation (b) to Section 125(1) of the Code, the agreement to reside separately from the Respondent does not disentitle her from claiming maintenance.”

Bench while addressing the present application observed that,

“There is no material on record to indicate at any point of time till the filing of the instant Petition for award of maintenance the Applicant had ever raised any grievance about the decree of divorce having been obtained by fraud.”

Supreme Court in the case — Rohtash Singh v. Ramendri, (2000) 3 SCC 180, considered the question whether a wife against whom a decree of divorce has been passed on account of her deserting the husband can claim maintenance allowance under Section 125 of Code of Criminal Procedure?

To the above, Supreme Court held that,

woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.

Statutory right of wife of maintenance cannot be permitted to be bartered away or infringed by setting up an agreement not to claim maintenance. Such a clause in the agreement would be void under Section 23 of the Indian Contract Act, being opposed the public policy.

Further the Court observed that,

The decree of divorce by mutual consent was passed in the year 2007. The application for award of maintenance came to be preferred in the year 2016. The Applicant was indubitably running a business under the name and style of “Kalyani Beauty Parlor and Training Institute” when the decree of divorce was passed in the year 2007.

Time lag of almost 9 years in approaching the Court with a claim that the Applicant was unable to maintain herself assumes critical significance in this context.

Family Court was of the view that the claim of the Applicant that she had no source of income was reliable and trustworthy and though the Applicant had the necessary qualification and experience, there was nothing to show that the Applicant was running the business of beauty parlor, in praesenti.

In High Court’s opinion in the backdrop of the material on record, the claim of the Applicant that she had no source of income ought to have been accepted by the Judge, Family Court with a pinch of salt.

High Court observes that,

the fact that the wife carries on some business and earns some money is not the end of the matter. Neither the mere potential to earn nor the actual earning, howsoever meager it may be, is sufficient to deny the claim of maintenance.

Supreme Court in the case of Sunita Kachwa v. Anil Kachwa, III 2014 (DMC) 878 S.C., held that: 

“In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance.”

Thus the Applicant is entitled to maintenance from the Respondent even if the Applicant still carries on the business of Kalyani Beauty Parlor and Training Centre and earns some income out of the said business.

In this era of inflationary economy, where the prices of commodities and services are increasing day by day, the income from the business of beauty parlor, which has an element of seasonality, may not be sufficient to support the livelihood of the Applicant.

Impugned order is required to be interfered with to the extent of the quantum of maintenance. The Revision Application, thus, deserves to be partly allowed to this extent.

Hence, Respondent-husband shall pay maintenance to the Applicant at the rate of Rs 12,000/- per month from the date of the Petition i.e. 17th June, 2016.[Sanjay Damodar Kale v. Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, decided on 26-05-2020]