Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. allowed a revision petition and set aside the order of the Appellate Court whereby it had dismissed the appeal filed by the petitioner (husband) on the ground that he failed to deposit the entire arrears of maintenance despite several opportunities.

The husband was directed by the trial court to pay a monthly maintenance amount of Rs 35,000 to his wife. He, however, failed to pay the amount and coercive steps were taken by the trial court. Challenging the said order, the husband filed an appeal before the Appellate Court which was dismissed by the impugned order.

Mani Mittal and Pratush Mittal, Advocates, appeared for the husband before the High Court. Per contra, the wife was represented by Bharti Sharma and S.K. Sharma, Advocates.

The High Court noted that the difference of opinions on the subject — as was evident from the decisions rendered by Single Judges in Rajeev Preenja v. Sarika, 2009 SCC OnLine Del 458 — attained finality by a decision of the Division Bench in Sabina Sahdev v. Vidur Sahdev, 2018 SCC OnLine Del 9747. In Sabina Sahdev Case, it was held that “appeal or revision cannot be dismissed solely on the ground of failure to pre-deposit the maintenance amount and the same would have been decided on merits.” Accordingly, the Court held in the present case that the Appellate Court took a contrary view which was not sustainable. Therefore, the impugned order was set aside and the appeal was restored to its original number. [Sourav Sharma v. Neetu Sharma, Crl. Rev. P. 737 of 2015 & Crl. M.A. 16652 of 2015, decided on 14-05-2019]

Case BriefsHigh Courts

Gauhati High Court: Hitesh Kumar Sarma, J. dismissed a revision petition filed against the order of the family court whereby the petitioner was directed to pay a monthly sum of Rs 2000 each to his wife and child towards their maintenance under Section 125 CrPC.

The wife had left petitioner’s home due to alleged torture inflicted upon her and thereafter she filed an application under Section 125 claiming maintenance which was allowed by the family court in the terms above. The petitioner was a Government Servant earning a monthly salary of about Rs 22,000.

The High Court noted that while the wife was staying at her parental house, she was not provided maintenance which amounted to negligence in the sense that the petitioner was bound to maintain the wife and the child, which is a settled legal position. It was also noted that the allegation that the wife was working in a school and earning money could not be established by the petitioner and no specific evidence to that effect was laid by him. It was observed: “In the absence of any specific evidence, it cannot be held that the wife/respondent was earning sufficient amount to maintain herself. That being so, in the absence of any specific evidence as to the income of the respondent/wife, the petitioner/husband is bound to maintain his wife and the child fathered by him.”

In that view of the matter, the Court did not find any reason to interfere with the order of the family court. The revision petition was accordingly dismissed. [Jotirmoy Kalita v. Jonamoni Kalita, 2019 SCC OnLine Gau 2245, Order dated 07-05-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. was hearing an application under Section 482 of the Code of Criminal Procedure, 1973 which sought quashing of Family Court’s order whereby applicant-husband was directed to pay maintenance to his wife (2nd respondent herein).

At the outset, this Court called for a report from the Family Court, in the present matter. The said report stated that the applicant, till date had not complied with Family Court’s order to pay maintenance. At this juncture, learned counsel for the applicant Mr Dineshwar Prasad Singh submitted that he may be permitted to withdraw the application.

The Court opined that the applicant could not be allowed to simply withdraw the application, when his mala fide conduct stood exposed. It was observed that strict order was required to ensure payment of maintenance to the 2nd respondent, moreso, when there was a judicial order to that effect. The Court, under its inherent power under Section 482 CrPC is also required to pass an order for securing the ends of justice.

Accordingly, the application was disposed of as withdrawn, directing the Family Court to take all coercive measures against the applicant for ensuring compliance of its order directing payment of maintenance.[Sanjay Yadav v. State of Bihar, 2019 SCC OnLine Pat 601, Order dated 03-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. partly allowed a revision petition against the order of the trial court passed under Section 125 CrPC holding that the trial court erred in equalising the effort of both parents in the upbringing of their child.

The petitioner and the respondent got divorced in 2007. The petitioner filed an application under Section 125 CrPC claiming maintenance for herself and the minor child born from the wedlock. The trial court did not grant any maintenance to the petitioner holding that she was employed with an MNC and could maintain herself. It, however, directed the respondent to pay a sum of Rs 10,000 per month towards the maintenance of the child. Aggrieved thereby, the petitioner filed for the revision of the trial court’s order.

The High Court agreed with the finding of the trial court as far as the petitioner was concerned. It held that the petitioner could maintain herself. However, in regard to the maintenance of the child, it was held that the trial court’s approach of holding both parents equally liable to pay towards the maintenance of the child was not right. It was observed: “It would be incorrect to hold that both the parents are equally responsible for the expenses of the child. A mother who has custody of a child not only spends money on the upbringing of the child but also spent substantial time and effort in bringing up the child… No doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two.”

It was further held that the trial court should have awarded the maintenance from the date of filing of the application rather than the date of the order. Resultantly, the amount of maintenance to be paid by the respondent for maintenance of the child was increased to Rs 20,000 per month, payable from the date of filing of the application under Section 125 CrPC.[Lopamudra Bhuyan v. Surajit Singh, 2019 SCC OnLine Del 8267, dated 30-04-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of M.G. Giratkar, J., partly allowed a criminal revision application by modifying the maintenance amount being provided to the wife in respect of the husband’s pension.

In accordance, the present case, the learned counsel of applicant/husband, P.K. Mishra, submitted that before retirement, the husband was getting the salary of Rs 1, 53,000 per month and after retirement, his pension was Rs 72,000 per month. Further, it was stated that the husband was not in a position to pay Rs 30,000 per month as maintenance to his wife, the reason being an exorbitant amount. He added that “As per Section 11 of the Pensions Act, 1871, the pension cannot be attached.”

Hence, the High Court on considering the facts and circumstances of the case stated that maintenance amount at Rs 30,000 per month granted by learned Magistrate appears to be exorbitant. Pending disposal of domestic violence proceedings before learned Magistrate, at this stage amount of Rs 20,000 per month towards interim maintenance appears to be proper. “Maintenance allowance granted to wife cannot be considered as debt – She is not a creditor hence exemption under Section 11 cannot be granted to husband.” Also, pensions can be attached to recover the amount of maintenance.  Therefore,

  • The criminal revision application is partly allowed.
  • Order of interim maintenance is maintained. However, the amount at Rs 30,000 per month is modified.
  • Instead of Rs 30,000 per month, the applicant shall pay Rs 20,000 per month towards interim maintenance to his wife during the pendency of D.V. Act proceedings.
  • The order of attachment of pension is hereby quashed and set aside subject to the applicant/husband clears all arrears of maintenance within a period of one month.

In view of the above, the criminal revision application stands disposed of. [Bhagwant v. Radhika, 2019 SCC OnLine Bom 607, Order dated 05-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., reiterated that proceedings under the Protection of Women from Domestic Violence Act, 2005 and under Section 125 CrPC are independent of each other and have different scope.

The parties, though married, were living separately. The wife had filed an application under Section 125 CrPC wherein she was granted interim maintenance of Rs 1.20 lakhs per month. Subsequently, she filed an application under Section 23 of the DV Act seeking, inter alia, monetary relief under Section 20. However, her application was rejected by the trial court on the ground that she had already been granted maintenance under Section 125 CrPC and all her claims were considered by the family court while granting the same. The wife filed an appeal against the order of the trial court, which was allowed and the Appellate Court remanded the matter back to the trial court for fresh consideration. Aggrieved thereby, the husband filed the present petition.

Senior Advocate Geeta Luthra, appearing for the husband, submitted that the Appellate Court erred in passing the impugned order as maintenance was already granted to the wife. Per contra, it was submitted on behalf of the wife that she suffered domestic violence and was thus entitled to monetary relief. The wife was represented by Madhav Khurana and Trisha Mitta, Advocates.

Noting that the scope of Section 20 of the DV was much wider than that of Section 125 CrPC, the High Court observed: “While Section 125 CrPC talks only of maintenance, Section 20 DV Act stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of the domestic violence including but not limited to loss of earning, medical expenses, loss caused due to destruction, damage or removal of any property from the control of aggrieved person.”

It was categorically stated: “an order under Section 20 DV Act is not restricted by an order under Section 125 CrPC.” As such, the trial court was held to have erred in not appreciating the distinction between the two provisions. In such view of the matter, the High Court did not find infirmity in the order of the Appellate Court. Resultantly, the petition was dismissed. [Shome Nikhil Danani v. Tanya Banon Danani, 2019 SCC OnLine Del 8016, decided on 11-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J.dismissed a petition filed against the order of the trial court whereby it had recalled its earlier order and restored the petition for maintenance filed by the respondent-wife.

The wife had filed a petition for maintenance under Section 125 CrPC. The trial court had initially awarded interim maintenance of Rs 2000 per month. The proceedings pending from 2003-2012. On 08-10-2012, the wife was not present before the trial court, Her father prayed for exemption on the ground that she was an asthma patient and therefore couldn’t come to the court. However, the trial court rejected the prayer and closed her evidence. Since there was no evidence on record to prove the factum of marriage between the respondent and the petitioner, the trial court dismissed the wife’s petition. She filed an application seeking a recall of the said order which was allowed by the trial court and her petition was restored. Aggrieved thereby, the husband filed the present revision petition.

Abhimanyu Kampani and Samarth Teotia, Advocates appeared for the husband. Per contra, the wife was represented by Manika Tripathy Pandey, Ashutosh Kaushik and Brahm Kumar Pandey, Advocacies.

As per the High Court, the trial erred in not appreciating that there was no dispute about factum of marriage between the parties. Perusing the grounds mentioned in the present revision petition the Court observed: “The averments in the Revision Petition itself establishes that there is no dispute with regard to factum of marriage. Even if assuming there is no evidence on record, Trial Court can still pass an order of maintenance, if there are admissions on record. In the present case, Trial Court has dismissed the petition only on the ground that factum of marriage has not been proved.” 

In the Court’s opinion, to accept at this stage, the plea of the husband and the wife should have filed an appeal, would amount to gross harassment of the wife as the Judgment of the trial court would anyway be set aside for the asking. Also, referring to the wife’s medical records, the Court was of the view that she had sufficient cause for being not able to appear before the trial court. Therefore, the present revision petition was dismissed. [Surender Singh Arya v. Meenu Arya, 2019 SCC OnLine Del 7998, decided on 05-04-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., modified the trial court’s order awarding maintenance to the petitioner-wife and directed the respondent-husband to the pay the maintenance from the date of filing of the application under Section 125 CrPC.

The petitioner impugned the trial court’s order whereby maintenance of Rs 4,000 per month was awarded to her. It is pertinent to note that by the impugned order, the respondent was directed to pay maintenance from the date of the order. Nitin Rai Sharma and Sanjeet, Advocates for the petitioner submitted that the trial court erred in note awarding maintenance from the date of filing of the application.

After discussing the nature of maintenance awarded under Section 125 CrPC, the High Court relied on Shail Kumari Devi v. Krishan Bhagwan Pathak, (2008) 9 SCC 632 and Jaiminiben Hirenbhai Vyas v. Hirenbhai Ramesh Chandra Vyas, (2015) 2 SCC 385, and observed: “When the trial court comes to the conclusion that the wife is entitled to an award of maintenance, the assessment, in fact, relates back to the date of the application. When the assessment relates back to the date of the application then there have to be compelling circumstances for the trial court to restrict the award of maintenance to a period post the date of the application.” Noting that the trial court did not record any reason to award maintenance from the date of the order, the High Court modified the impugned order and directed the respondent to pay the maintenance from the date of the application filed by the petitioner. [Nisha Saifi v. Mohd. Shahid, 2019 SCC OnLine Del 7902, decided on 03-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise & Service Tax Appellate Tribunal (CESTAT): This appeal was filed before Sulekha Beevi, J. and Madhu Mohan Damodhar, Member (Technical).                                                                    

Facts of the case were that appellants were manufacturers of Camshaft Assembly Segments for Diesel Locomotives and were holding service tax registration. During verification of records of the appellant, it was found that they were providing work of reconditioning to Railways from June 2005 on agreements entered with railways.

The definition of Maintenance or Repair Service was amended according to which appellant was liable to pay service tax under the category of Maintenance or Repair Service. They failed to discharge the service tax on the services and appellant wrongly availed abatement which he was not eligible to avail. Show cause notice was issued invoking the extended period proposing to demand service tax along with interest and also for imposing penalties. The demand under Maintenance and Repair Services along with interest and imposed penalty was confirmed and was upheld by the Commissioner. Hence, this appeal was filed.

Ms S. Sridevi on behalf of appellant contended that they have provided reclamation and reconditioning of Camshaft Assembly Segments to the Railways based on work orders issued earlier. But as per the Railways, the same were not taxable since done before the specified date due to which appellant did not pay service tax for the taxable values received for the contract. For the period post the specified date, they paid service tax after availing the benefit of abatement. The same was denied by the department stating that the appellant has not fulfilled the condition of the notification barring the availment of CENVAT credit. Appellant further contended that mere non-disclosure of particulars cannot be concluded as willful suppression in order to invoke the extended period.

It was submitted by Shri B. Balamurugan that appellant had not discharged the service tax although they had provided services to the Railways. Further, they had availed the benefit after availing credit on inputs and input services.

Tribunal on finding no ingredients in the present case for invocation of the extended period set aside this impugned order. [Ceeyes Metal Reclamation (P) Ltd. v. Commissioner (GST), 2019 SCC OnLine CESTAT 31, Order dated 08-03-2019]

Case BriefsHigh Courts

Gauhati High Court: A Bench of A.S. Bopanna, CJ and Sanjay Kumar Medhi, J. dismissed an appeal filed by the appellant-husband against family court’s order granting alimony of Rs 2.5 lakhs to the respondent-wife.

Undisputed facts of the case are that the parties were formerly married to each other. Some marital disputes arose and the husband filed a petition seeking divorce which was granted by the family court. Subsequent to the divorce decree, the wife filed a petition under Section 25 of the Hindu Marriage Act, 1955 seeking permanent alimony of Rs 15 lakhs. Partly allowing the wife’s application, the family court awarded her alimony of Rs 2.5 lakhs. Aggrieved thereby, the husband filed the present appeal.

Dipika Kalita and Rumi Kalita, Advocates for the husband told the Court that during the pendency of the husband’s divorce petition, the parties entered into an agreement whereby the wife conceded to the prayer for divorce. Further, she also agreed that there would be no claim between the parties against each other. It was contended that the family court’s order was not justified.

Regarding the alleged agreement, the family court observed and the High Court noted that what was submitted in the divorce proceedings was a photocopy of the said agreement. The family court took note of the same and concluded that it was not enforceable. The High Court observed, “the law is well settled that the maintenance or the alimony to be granted is to enable the party who seeks the same subsequent to the dissolution of the marriage to maintain herself. At that stage, what would be relevant is as to whether the party seeking for such maintenance or alimony is able to maintain herself.” As such, the High Court was of the opinion that the family court rightly held that the wife was entitled to receive alimony. Also, no error was found with the quantum of alimony so granted. Holding it to be devoid of merits, the Court dismissed the appeal. [Utpal Das v. Rinki Sarkar, 2019 SCC OnLine Gau 1048, dated 08-03-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., while dismissing a criminal revision petition, held that the magistrate has a power to pass an order granting interim maintenance under Section 23 of the Protection of Women from Domestic Violence Act, 2005, with effect from the date of filing of the substantive petition under Section 12.

The wife filed a petition under Section 12 against the husband on 10-09-2014. Subsequently, on the wife’s petition under Section 23, by the impugned order the Magistrate awarded interim maintenance of Rs 15,000 for the wife and Rs 15,000 for the minor daughter payable monthly by the husband (appellant). The maintenance was ordered to paid from the date of filing of the substantive petition under Section 12.

Ranjan Bajaj, Advocate for the husband submitted that the trial court was in error in awarding maintenance from the date of filing of petition under Section 12. Per contra, Varun Chawla, Advocate appearing for the wife, supported the impugned order.

The High Court perused the entire record and held that the trial court passed the order of maintenance after proper analysis of all the relevant material. As for the submission of the husband mentioned above, the Court observed, “Section 23 of the DV Act does not provide a substantive right to parties but is a provision which empowers the trial court to pass an order granting interim maintenance in a petition filed under Section 12 of the DV Act. Merely because the trial court has not exercised the power under Section 23 of the DV Act, when a substantive petition under Section 12 of DV Act was filed and chose to pass an order only when a separate application under Section 23 of the DV Act was filed, does not mean that a Magistrate does not have the power to pass an order with effect from the date of filing of the substantive petition under Section 12.” In such view of the matter, the court did not find any merit in the petition which was thus dismissed. [Gaurav Manchanda v. Namrata Singh, 2019 SCC OnLine Del 7353, dated 27-02-2019]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J., dismissed a revision petition filed by a husband against the order of the family court whereby the monthly amount payable by him towards the maintenance of his son was increased from Rs 2,000 to Rs 5,000.

A petition between the parties was disposed of by the family court whereby the husband was directed to pay monthly maintenance of Rs 2,500 to his wife and Rs 2,000 to their minor son. Subsequently, the parties got divorced under Section 13 of the Hindu Marriage Act, 1955. The husband paid a permanent alimony of Rs 5 lakhs to the wife. After the divorce, the wife filed a petition under Section 127 CrPC for enhancement of maintenance allowance to the minor son which was allowed by the family court in the terms mentioned above. Aggrieved thereby, the husband filed the present petition.

K.M. Haloi, B. Das and R. Sarkar, Advocates for the husband submitted that the enhancement of 300% was on a higher side and he had other liabilities to discharge. Per contra, K. Bhattacharjee, S. Das, J.C. Barman, D. Banerjee and S. Dey, Advocates appearing for the wife contended that the objection raised by the husband was not maintainable.

After taking the husband’s salary into consideration, the High Court was of the view that the enhancement of the maintenance by the court below did not require interference. The observed, “in the context of liability, the maintenance always carries the meaning that it should be adequate to the needs of a person and according to the status and income of the person concerned. The child of the petitioner who was enrolled in an English Medium School cannot be stopped to carry on such education by showing inability by his parents. It is bounded duty of a father to upbringing the child in a befitting manner without hindering his mental health as well as physical one. If the father denies such required amount, it will be nothing but denial of such mandatory requirement of a child for proper upbringing.” In such view of the matter, the revision petition was dismissed and the husband was directed to pay Rs 5,000 per month maintenance for the minor son. [Rupak Chowdhury v. State of Assam, 2019 SCC OnLine Gau 933, dated 22-01-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. disposed of a petition filed in a matrimonial dispute by allowing the petitioner (wife) to prove additional documents in the matter of an application seeking maintenance from the respondent (husband) under Section 125 CrPC.

Earlier, the trial court had dismissed the wife’s application on the ground that she was not able to establish that she withdrew from the society of her husband for a reasonable cause. The trial court noticed that no evidence was placed on record to substantiate the allegations of cruelty against the husband made by the wife.

R.K. Narang, Advocate for the wife prayed to prove copies of several complaints made to various authorities and also medical records showing injuries caused by the husband. It was submitted that these documents, which were not available with the wife during the trial, had now been obtained from the authorities concerned. Per contra, Akhilesh Kr Singh, Advocate appearing for the husband submitted that the complaints were false and frivolous.

Keeping in view the entirety of the case, the High Court set aside the impugned judgment of the trial court. The wife was granted an opportunity to file and prove the additional documents before the trial court. She was also permitted to summon the record from the authorities where original of such documents may be available. As, consequently, trial court’s order fixing interim maintenance stood received. [Beena Kumari v. Manoj Kumar, 2019 SCC OnLine Del 7237, dated 21-02-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J. allowed a petition filed by petitioner (wife) for striking off respondent’s (husband) defence in proceedings pending under the Protection of Women from Domestic Violence Act, 2005.

Earlier, the trial court vide its order dated 2-3-2017 had dismissed the wife’s application for striking off husband’s defence observing that non-payment of maintenance/arrears of maintenance cannot be a ground to do so. Aggrieved thereby, the wife preferred the present petition.

Jatin Sehgal, Adhirath Singh and Raymon Singh, Advocates appeared for the wife. On the other hand, the husband was represented by Laksh Khanna, Advocate who supported the trial court’s order.

The High Court noted that the respondent was in arrears of Rs 9,00,000 towards payment of maintenance to the wife. Furthermore, the Appellate Court vide its order dated 14-7-2017 evolved an equitable solution whereby husband’s employer was to deduct Rs 50,000 from his salary every month and pay that sum directly to the wife. Out of this, Rs 25,000 was to be the current monthly maintenance amount, and remaining Rs 25,000 were to be adjusted against the arrears. However, this order was not complied with by the husband.

In view of such facts and circumstances, the Court found that the husband’s failure to clear arrears of maintenance in terms of the Appellate Court’s order justified striking off his defence. Consequently, the wife’s application was allowed. [Swati Kaushik v. Ashwani Sharma, 2019 SCC OnLine Del 7133, dated 11-2-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench comprising of V.K. Jadhav, J., while pronouncing an order stated that, “if the wife is not comfortable because of the approach and attitude of the parents of her husband and the treatment given to her by them, and if she resides with her parents because of the said reason, in my considered opinion, the wife has just cause to live separate and demand maintenance.”

As per the facts of the case, the applicant husband stated that the respondent-wife lived with him for 5 to 6 months since the time of marriage and left his house thereafter. She used to quarrel with the parents, the brother and the sister of the applicant-husband. Lastly, respondent-wife left his house and started residing with her parents. It has been further stated that applicant is young and needs her company and accordingly, he filed the application for restitution of conjugal rights.

Respondent-wife stated that applicant-husband’s mother used to ill-treat her and beat her, applicant also used to beat her on the say of his mother. She further stated that she was ready to join his company if he keeps her separate and executes an undertaking for giving good treatment to her as she apprehends danger to her life. Respondent-wife also filed an application for grant of maintenance under Section 125 CrPC.

Thus, the High Court on observing the given contentions by the parties and noting the situation prevailing in the present case stated that, “In the changing scenario of the lifestyle and considering the developing concept of nuclear family, importance is required to be given to the wishes of the wife.”

As in regard to the husband’s contention that wife had no just cause to live with her parents as the relationship between them was cordial, for the stated contention the Court stated that, If wife is not comfortable because of the parents of her husband and the treatment given to her by them, and if she resides with her parents because of the said reason, wife has just cause to live separate and demand maintenance.”

Therefore, the Court found no mistake in the judgment and order passed by the judge of the family court rejecting application filed by applicant-husband seeking restitution of conjugal rights and the maintenance of Rs 700 per month as decided by the learned Judge of the Family Court is rightly stated and there is no interference required. [Shaikh Basid v. State of Maharashtra, 2019 SCC OnLine Bom 220, Order dated 06-02-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. directed the parties to appear before the trial court for fresh consideration of an application under Section 125 CrPC filed by the wife, son and daughter of the respondent.

Earlier the application for grant of maintenance was rejected by the trial court. In regard to son and daughter, the rejection was on the ground that they were major. While in regard to the wife, rejection was on the ground that she was employed and earning. This finding was based on the report of one Bajaj Detective Agency employed by the respondent which stated that the wife was employed as a Lab Assistant in Safdarjung Hospital.

Umesh Sinha and Anil Kumar Singh, Advocates for petitioners contended that even daughters are entitled to maintenance till their marriage and thus challenged the rejection of the application by the trial court.

The High Court noted the admitted position that at the time filing the application, the son was a minor. The daughter was 23 years but the fact whether she was earning and able to maintain herself was not considered. Furthermore, in regard to the wife, perusal of the detective’s report showed that the above-mentioned finding was not based on any foundational document, fact or evidence. it was also noted that the parties had not filed their income affidavit before the Court. On such facts and circumstances, the Court held that the impugned order was not sustainable and the matter was remitted back to the trial court for fresh consideration. The parties were directed to file their affidavit of income and expenditure in the format laid down in Kusum Sharma v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793. [Kamlesh Sharma v. State, 2019 SCC OnLine Del 6529, decided on 16-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sunil Gaur, J. upheld the order of the trial court directing DNA testing of the petitioner.

DNA testing was ordered to ascertain paternity of minor child whose right to claim maintenance was disputed by petitioner on the ground that he was not the natural father of the child in question.

Shalini Sharma, Advocate for the petitioner submitted that he disputed that he was married to Respondent 1 and there was no proof that the child in question was born from their wedlock.

The High Court relied on Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 where Supreme Court reiterated that DNA is an accurate test. In the present case, the Court noted that occasion to pass the impugned order arose while considering an application under Section 125 CrPC which requires payment of maintenance even to an illegitimate minor child. It was held that in such situation, conclusive proof of marriage could not be made the basis to repel the impugned order. The impugned order did not suffer from any infirmity and thus, the petition was dismissed. [Vijay Kumar v. Renu, 2019 SCC OnLine Del 6458, Order dated 08-01-2019]

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

Introduction

In India, beneficial provisions for maintenance of children and parents are provided under various Acts. Objective of such provisions is to achieve a social purpose and to prevent vagrancy and destitution and to provide simple, inexpensive and speedy mechanism for providing support and maintenance to children and parents.

These provisions along with important cases are discussed below:

Statutory Provisions

Hindu Marriage Act, 1955, Section 26  – During the proceedings under the Act, the court may pass orders with respect to the custody, maintenance, and education of minor children. Under this Act, both parents (father as well as mother or either of them) are liable to maintain the children as ordered by the court. While making such orders, the court takes into account wishes of the children, as far as possible. Such orders and provisions may be altered from time to time. Any application in respect to maintenance and education of minor children during pendency of proceedings under the Act has to be decided within sixty days from the date of service of notice on the respondent, as far as possible.

Hindu Adoption and Maintenance Act, 1956, Section 20 A Hindu male or female is bound to maintain his or her legitimate/illegitimate minor children and aged/infirm parents. Aged or infirm parent (which includes childless stepmother) or unmarried daughter have to be maintained if they are unable to maintain themselves. Section 23 sub-section (2) states that while determining the amount of maintenance to be awarded to children or aged or infirm parents, the court shall consider the following:

(a) position and status of the parties; (b) reasonable wants of the claimants; (c) if the claimant is living separately, whether the claimant is justified in doing so; (d) claimants income and value of property held by him, if any; etc.

If a person ceases to be a Hindu (changes his religion), he/she cannot claim maintenance under this Act [Section 24]. The amount of maintenance may be modified if there is a change in circumstances warranting so [Section 25].

Under this Act, even the heirs of a deceased Hindu are bound to maintain his/her “dependants” out of his/her estate inherited by them [Section 22]. Dependents include deceased person’s minor son, unmarried daughter, widowed daughter, minor illegitimate son, minor illegitimate daughter [Section 21].

Criminal Procedure Code, 1973, Section 125 – Magistrate may order a person to make monthly allowance for maintenance in a case where any person who despite having sufficient means neglects or refuses to maintain – (i) his legitimate or illegitimate minor child who is unable to maintain itself; or  (ii) legitimate or illegitimate major child (not being a married daughter) unable to maintain itself due to any physical or mental abnormality/injury; or (iii) married daughter till she attains majority if her husband is not able to maintain her; or (iv) his/her father or mother who are unable to maintain themselves. This section also makes a provision for maintenance during the pendency of proceedings regarding monthly allowance for maintenance. Also, application for interim maintenance during pending proceedings is to be decided by the Magistrate, as far as possible, within sixty days of the date of service of notice of application to such person. A person who fails to comply with the order of the Magistrate without showing sufficient cause may also be sent to prison. The order of maintenance passed under this section may be altered by the Magistrate on proof of change in circumstances [Section 127].

Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 – A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance for children born to her for a period of two years from the respective dates of birth of such children. It does not matter if the children were born before or after the divorce, the former husband is liable to pay maintenance. If the former husband fails to comply with the order passed by Magistrate without showing sufficient reason, he may have to suffer imprisonment up to one year.

Maintenance and Welfare of Parents and Senior Citizens Act, 2007, Section 4 – Parent (father or mother whether biological, adoptive or step father or step mother, whether senior citizen or not) or grand-parent who is unable to maintain himself is entitled to claim maintenance from one or more of his adult children (son, daughter, grandson and grand-daughter but does not include a minor). Obligation of the children to maintain their parents extends to such needs of the parents which will allow them to lead a normal life. Additionally, this Act also makes provision for maintenance of childless senior citizens (who has attained the age of sixty years or above) by their relatives. The “relative” means any legal heir of childless senior citizen who is in possession of his property or would inherit it after his death, but it does not include a minor.

If the parents or senior citizens are incapable of applying for monthly allowance for maintenance themselves, in that case, an application can be made through any other person or organisation authorised by them. Such an application has to be decided by Maintenance Tribunal within a maximum period of 120 days from the date of service of notice to children/relative. If children/relative fails to comply with the orders of the Tribunal, this may result in imprisonment upto one month. [Section 5]. The Tribunal may order the children/relative to make a monthly allowance at a rate deemed fit by the Tribunal. However, the maximum amount of maintenance cannot exceed Rs 10,000 per month. [Section 9]. The order of maintenance may be altered by the Tribunal on proof of change in circumstances [Section 10].

Cases

Children of void marriage entitled to maintenance

A child born out of a void marriage between a woman and a man who already has a wife is to be treated as a legitimate child who is entitled to maintenance under Section 125 CrPC, Bakulabai v. Gangaram, (1988) 1 SCC 537.

Father to maintain the unmarried daughter

An unmarried daughter unable to maintain herself is entitled to claim maintenance under the Hindu Adoption and Maintenance Act, 1956. The father is obliged to maintain her unmarried daughters even if they are living separately with their mother, Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7.

Daughter to be maintained until she gets married even after attaining majority

Daughter is entitled to maintenance under CrPC when read with Hindu Adoption and Maintenance Act, 1956 even after attaining majority but till her marriage, Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422.

Hindu earning mother is also obliged to maintain children

Both, a Hindu divorcee father and a Hindu divorcee earning mother are obliged to contribute for maintenance of their children under the Hindu Adoption and Maintenance Act, 1956. Father is not exclusively responsible to maintain children regardless of mother being affluent, Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266.

CrPC applies only when there is neglect or refusal to maintain despite having sufficient means

A case for grant of maintenance under Section 125 CrPC arises only when a person despite having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor children who are unable to maintain themselves, Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359.

Maintenance under CrPC & 1986 Act runs parallel (Muslim children entitled to maintenance under CrPC)

The benefit under Section 125 CrPC is available to all children irrespective of religion. Right under Muslim Women (Protection of Rights on Divorce) Act, 1986 is that of the mother to claim maintenance for children for two years from their date of birth and is distinct and independent of the right to maintenance under CrPC to minor children unable to maintain themselves, Noor Saba Khatoon v. Mohd. Quasim, (1997) 6 SCC 233.

Daughter is also obliged to maintain parents

Along with a son, Section 125 CrPC imposes liability even on daughter whether married or unmarried, having sufficient means to pay maintenance to her parents who are unable to maintain themselves, Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278.

When can a stepmother claim maintenance from her stepson

A childless stepmother may claim maintenance from her stepson provided she is a widow or her husband, if living, is incapable of supporting and maintaining her, Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479.

Conditions for grant of maintenance to parents and senior citizens under 2007 Act

Senior citizens, including parents, will be entitled to maintenance under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 if only they are unable to maintain themselves from their own earnings or out of the income from the property owned by them, M. Venugopal v. DM, Kanyakumari, 2014 SCC OnLine Mad 5642.


Further Suggested Reading

1. Sumeet Malik – Adoption and Maintenance Laws Manual [Buy Here]

2. Surendra Malik and Sudeep Malik – Supreme Court on Marriage & Divorce, Cruelty/Dowry Death, Custody, Adoption & Maintenance (In 2 Volumes) [Buy Here]

3. Ramesh Chandra Nagpal – Modern Hindu Law [Buy Here]

4. Sumeet Malik – B.M. Gandhis Hindu Law

 

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

 Introduction

“Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. Various laws governing maintenance are as follows:

for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956

for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986

for Parsis – Parsi Marriage and Divorce Act, 1936

for Christians – Divorce Act, 1869

secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954

Temporary Maintenance (pendente lite)

Temporary maintenance is granted by the court during the pendency of proceeding for divorce or separation to meet the immediate needs of the petitioner.

Under Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife can be granted relief if the court is satisfied that the applicant has no independent income sufficient for his or her support and necessary expenses of the proceedings pending under the Act.

Interim maintenance may also be claimed under Section 125 CrPC by the wife during the pendency of proceeding for regarding monthly allowance for maintenance under Section 125(1) CrPC.

Furthermore, Section 36 of Special Marriage Act, 1954 also makes provision for the wife to seek expenses from the husband if it appears to the district court that she does not have independent income sufficient for her support and necessary expenses of proceedings under Chapters V or VI of that Act.

Still further, under Parsi Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to claim expenses where the proceeding is pending under the Act. Section 39 of the Act which is substantially the same as Section 36 of the Special Marriage Act makes a provision in this behalf.

Also, under Section 36 of Divorce Act, 1869 which applies to persons professing Christain religion, a wife is entitled to expenses of proceeding under the Act and maintenance while the suit is pending.

All these provisions specify that the application for interim maintenance has to be disposed of within sixty days of service of notice on the respondent.

Permanent Maintenance

It is the maintenance granted permanently after the disposal of the proceeding for divorce or separation.

Hindu Marriage Act, 1955, Section 25 – Applicant, either wife or husband is entitled to receive from the spouse for his/her maintenance and support a gross sum or monthly or periodical sum for a term not exceeding the applicant’s lifetime or until he/she remarries or remains chaste.

Hindu Adoption and Maintenance Act, 1956, Section 18 – Hindu wife is entitled to be maintained by her husband during her lifetime. Wife also has a right to separate residence and maintenance if any of the condition in Section 18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same house, conversion of religion or any other reasonable cause] is fulfilled until she remains chaste or does not convert to other religion. It may also be noted that Section 19 of this Act makes a provision for a widowed wife to be maintained by her father-in-law.

Criminal Procedure Code, 1973, Section 125 – This section provides for maintenance not only to the wife but also to child and parents. Court may order a husband who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself to provide monthly maintenance to her. However, wife shall not be entitled to receive maintenance if she is living in adultery, or refuses to live with husband without any sufficient reasons, or living separately with mutual consent.

Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 – A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be paid to her within the iddat period by her former husband; an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. If husband fails to provide her the above mentioned then Magistrate can order for payment of the same.

Parsi Marriage and Divorce Act, 1936, Section 40 – A Parsi husband or wife may apply to the Court under this section whereupon the Court at the time of passing any decree under the Act or anytime subsequent thereto order that the defendant pay the plaintiff a gross or monthly sum for his/her maintenance and support. Such order may also be modified subsequently if the Court is satisfied that change in circumstances warrants so. The order may also be rescinded or modified if the party in whose favour the order was made remarries; or in case of wife, she does not remain chaste; or in case of the husband, he has sexual intercourse with any woman outside the wedlock.

Special Marriage Act, 1954, Section 37 – This section is also similar to Section 40 of the Parsi Marriage and Divorce Act. The difference being that under this section maintenance may be claimed only by a wife against the husband from a court exercising jurisdiction under Chapters V or VI of the Act. An order made under this section may be modified or rescinded by the district court at the instance of the husband if it is shown that the wife has remarried or is not leading a chaste life.

Divorce Act, 1869, Section 37 – This section empowers the district court to order the husband to secure a reasonable gross sum to the wife or annual sum not exceeding her lifetime when a decree of dissolution or decree or judicial separation is obtained by the wife. While passing such order, the court may have regard to fortune of the wife, ability of the husband and conduct of the parties. The court may also order the husband to pay such monthly or weekly sum to the wife for her maintenance as the court may think reasonable. If subsequently, the husband becomes unable to make such payments, the court may discharge or modify such order.

Cases

Maintenance defined

Maintenance includes — (i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage, Section 3(b), Hindu Adoption and Maintenance Act, 1956.

Maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head, Mangat Mal v. Punni Devi, (1995) 6 SCC 88.

 Sustenance defined

Maintenance of wife for her ‘sustenance’ does not mean animal existence but signifies leading life in a similar manner as she would have lived in the house of her husband. Husband is duty bound to enable his wife to live life with dignity according to their social status and strata, Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.

Wife defined

“Wife” Includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried,  Section 125(1) Explanation (b), CrPC 1973.

“Wife” in Section 125 CrPC means a legally wedded wife and also includes a divorced wife, D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

Maintenance only to legally wedded wife

Only a legally wedded wife is entitled to maintenance. A Hindu woman marrying a Hindu male having a living wife, is not entitled to maintenance as this marriage is void, Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530.

Maintenance to ‘previous wife’

A Muslim husband contracting another marriage or taking a mistress is liable to pay maintenance to the previous wife who also has right to live separately which is payable from the date of the other marriage. Irrespective of religion, husband cannot absolve his liability by offering to take back the wife and maintain her, Begum Subanu v. A.M. Abdul Gafoor, (1987) 2 SCC 285.

 Maintenance to second wife

Husband who conceals subsistence of his earlier marriage while marrying the second wife is entitled to give maintenance to second wife. Second wife is to be treated as a legally wedded wife for the purpose of maintenance, Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188.

Wife ‘living separately with mutual consent’ does not include divorced wife

The meaning of ‘wife’ under Sections 125(1) and 125(4) CrPC is different. Section 125(4) contemplates a married woman. Wife living separately from husband with mutual consent does not mean wife who obtains divorce by mutual consent and lives separately and therefore cannot be denied maintenance on this ground, Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299.

Is an earning wife entitled to maintenance?

Wife having a school of her own and possessing wet lands is in a better financial position than husband who is not doing well in his profession and has no land. Hence, it is unnecessary to pay any maintenance to the wife, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.

Wife’s income to be accounted for determining maintenance

Wife’s income has to be taken into account while determining the amount of maintenance payable to her. It is not an absolute right of a neglected wife to get maintenance nor it is an absolute liability of husband to support her in all the circumstances, Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386.

Maintenance to woman in a live-in relationship

The Supreme Court expressed its opinion that a broad interpretation of “wife” should include cases where man and woman live together as husband and wife for a reasonably long period of time (live-in relationship/ presumed marriage/ de facto marriage/ cohabitation). A strict proof of marriage should not be a precondition for maintenance under S. 125 CrPC so as to fulfill the true spirit and essence of the beneficial provision of maintenance, Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141. (This judgment has however been referred to a larger bench)

Recently, it is held that a woman in a live-in relationship has an efficacious remedy to seek maintenance under Protection of Women from Domestic Violence Act, 2005 even if it is assumed that she is not entitled to the same under Section 125 CrPC. In fact, under the Domestic Violence Act, the victim would be entitled to more relief than what is contemplated under Section 125 CrPC, Lalita Toppo v. State of Jharkhand, 2018 SCC OnLine SC 2301.

Woman knowingly entering in a live-in relationship with a married man

All live-in relationships are not relationships in the nature of marriage. There has to be some inherent/ essential characteristic of marriage though not a marriage legally recognised. A live-in relationship between an unmarried woman knowingly entering into relationship with a married male cannot be termed as a relationship in the “nature of marriage” and her status would be that of a concubine or mistress and therefore is not entitled to maintenance, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.

 Muslim woman entitled to maintenance under CrPC

A divorced Muslim woman has right under Section 125 CrPC to claim maintenance even beyond the iddat period. If the woman is able to maintain herself then the liability of husband to maintain her ceases with the expiration of iddat period. However, on the inability of maintaining herself, she can take recourse of that section. Section 125 has an overriding effect on personal law in case of conflict between the two, Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.

Divorced Muslim woman can claim maintenance from State Wakf Board

A divorced Muslim woman unable to maintain herself can directly claim maintenance from the State Wakf Board in the first instance under Section 4 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and in the same proceeding can plead inability of her relatives to maintain her. Relatives can be added as parties to the litigation if they have enough means to pay maintenance, T.N. Wakf Board v. Syed Fatima Nachi, (1996) 4 SCC 616.

Husband to make fair provision and maintenance within iddat period for ex-wife’s whole life

Section 3(1)(a) of Muslim Women (Protection of Rights on Divorce) Act, 1986 makes husband liable to make a reasonable and fair provision and maintenance to divorced Muslim wife on or before the expiration of the iddat period. However, this maintenance is not limited only for the iddat period but extends to her whole life unless she remarries. Husband is obliged to provide a reasonable and fair provision in addition to maintenance to contemplate the future need of ex-wife, Danial Latifi v. Union of India, (2001) 7 SCC 740.

Maintenance not restricted to iddat period

A divorced Muslim wife is entitled to maintenance not merely until the completion of the iddat period, but for her entire life unless she remarries. Sabra Shamim v. Maqsood Ansari, (2004) 9 SCC 616.

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of M.S. Sonak, J. held in a petition by relying on several decisions that, “an agreement, in which wife gives up or relinquish her right to claim maintenance at any time in the future,is  opposed to public policy and therefore, such an agreement, even if voluntarily entered, is not enforceable.”

The facts in the present case are as follows, Learned Counsel Sandeep Koregave placed his submissions for the petitioner that, during the Lok Adalat proceedings, petitioner and respondent 1 filed a consent pursis, in which they not only agreed to dissolve their marriage but also agreed not to claim any maintenance from each other. Further, he stated that respondent-wife had made false allegations that her consent was obtained by fraud. The main contention placed by the learned counsel for the petitioner was that, in terms of agreement recorded in the consent decree, respondent having waived her right to receive maintenance, cannot now maintain an application under Section 125 CrPC.

Counsel for the respondent-wife Mr Nagesh Chavan stated that there can be no agreement in derogation of the provisions of Section 125 CrPC since such provisions have been designed as a matter of public policy to protect against destitution and vagrancy.

The High Court, relied on various decisions, such as Shahnaz Bano v. Babbu Khan ; 1985 SCC OnLine Bom 200, wherein it was observed: “even in a case covered by Clause (c) of Section 127 (3) of CrPC, where the wife has surrendered her rights voluntarily, in a given case, if after waiving her rights to maintenance, she becomes vagrant and destitute and is unable to maintain herself, then irrespective of her personal law, she would be entitled to avail statutory remedy for maintenance under Section 125 of CrPC.”

and Ranjit Kaur v. Pavittar Singh; 1991 SCC OnLine P&H 693 for the proposition that: “The statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision”

After so referring, the Court stated that there is no reason to interfere with the views taken by the two courts in the present matter. Therefore, application of respondent 1 under Section 125 CrPC is held as maintainable and there is no doubt that the Magistrate will dispose of the application under Section 125 CrPC, in accordance with law and on its own merits. Further, learned Judicial Magistrate in the present case is directed to dispose of application of respondent 1. [Ramachandra Laxman Kamble v. Shobha Ramachandra Kamble, 2018 SCC OnLine Bom 7039, dated 21-12-2018]