Section 125 CrPC

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

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]

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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

Kerala High Court: While deciding an application for transfer of two cases from one jurisdiction to another, R. Narayana Pisharadi, J., disposed of the same finding no reason to pass an order to that effect.

The factual matrix in the present case is that the respondent has filed O.P. No. 460 of 2019 against the first petitioner in the family court, Muvattupuzha for restitution of conjugal rights. The respondent has filed another O.P. No. 662 of 2019 against the petitioners in the same court seeking guardianship and permanent custody of the two minor children.

The present application has been filed by the petitioners to transfer the above mentioned two cases from the family court, Muvattupuzha to the family court, Thrissur.

The following grounds have been set forth by the petitioner for transfer of the cases: (1) The family court, Muvattupuzha has got no jurisdiction to entertain

and try the case O.P. No. 662 of 2019 and it should’ve been filed before the Family Court, Thrissur. (2) The first petitioner has filed a case as M.C.No.639 of 2019 against the respondent under Section 125 CrPC in the family court, Thrissur claiming maintenance for the two minor children. Consolidation of the two cases pending in the family court, Muvattupuzha and the case M.C.No. 639 of 2019 pending in the family court, Thrissur is necessary. (3) The first petitioner and her parents are residing at Thrissur. The convenience of the wife and the children has to be given preference in matrimonial matters.

With reference to the contention that family court, Muvattupuzha lacks jurisdiction, the Court observed that the said contention is irrelevant as it should have been raised before that family court itself. It requires consideration of disputed facts which can be done by the family court and not this Court.

The Court also observed that just because of the fact that first petitioner has instituted a case as M.C.No.639 of 2019 in the family court, Thrissur is also not a sufficient ground to transfer the other two cases pending in the family court, Muvattupuzha to the family court, Thrissur.

While deliberating over the principle generally followed that in applications for transfer of cases relating to matrimonial matters, the convenience of the wife has to be given preference; the Court observed that in the present matter preference has to be given to the convenience and welfare of the children.

Counsel for the respondent, Biju Abraham has submitted that currently children are in the custody of the respondent and they are living with him and his parents at his house which is within the jurisdiction of the family court, Muvattupuzha. The petitioner has failed to provide any evidence which could show otherwise. The respondent is a practicing doctor while the first petitioner is pursuing her post-graduate studies. Transfer of the cases from the family court, Muvattupuzha to the family court, Thrissur would cause considerable hardship to the respondent and also to the children.

The Court also noted that the respondent had filed O.P.(FC) Nos. 309 of 2020 and 323 of 2020 before this Court for speedy disposal of the cases O.P. No. 460 of 2019 and O.P. No. 662 of 2019 pending before the family court, Muvattupuzha in which this Court allowed the prayer issuing a direction that family court, Muvattupuzha has to dispose of the aforesaid two cases within a period of six months. If the cases are transferred now, then the same would result in an unnecessary delay thus defeating the purpose of expeditious disposal in return.

In view of the above, the Court has dismissed the present application finding no merit in the arguments raised by the petitioner.[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]

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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 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

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

Delhi High Court: J.R. Midha, J. laid modified directions and affidavit of assets, income and expenditure to be filed by both the parties at the very threshold of a matrimonial litigation. The Court has modified the directions and the format of affidavit already issued in earlier judgments of the Delhi High Court.

These modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 CrPC; Hindu Adoption and Maintenance Act, 1956; Special Marriage Act, 1954; Indian Divorce Act, 1869; Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.

Earlier directions and affidavit

The directions to be followed while dealing with matrimonial cases were first issued in Kusum Sharma (1) v. Mahinder Kumar Sharma, 2014 SCC OnLine Del 7672. Further, in exercise of the powers under Section 10(3) of the Family Courts Act, 1984 read with Sections 106 and 165 of the Evidence Act and Article 227 of the Constitution of India, the format of affidavit of assets, income and expenditure was formulated by the Court in Kusum Sharma (2) v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793 and the directions were modified. By its judgment in Kusum Sharma (3) v. Mahinder Kumar Sharma, 2017 SCC OnLine Del 11796, the Court modified the affidavit formulated in Kusum Sharma (2). Finally, in Kusum Sharma (4) v. Mahinder Kumar Sharma, 2017 SCC OnLine Del 12534, the directions and the affidavit were further modified. The modified directions in Kusum Sharma (4) have been in effect since 1st January 2018.

Need for modification

The High Court has now modified the earlier affidavit in Kusum Sharma (4) to make it more comprehensive. In the earlier judgments, the High Court considered International Best Practices including 10 affidavits of assets, income and expenditure used in 5 countries. 50 more formats of affidavits of assets, income and expenditure of various countries namely USA, UK, Ireland, Singapore, Canada, Australia and South Africa had now come to the notice of the Court. Thus, the Court was of the view that its judgment in Kusum Sharma (4) warrants modification.

The Bhandari Engineers case connection

In Bhandari Engineers & Builders( P) Ltd. (1) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-12-2019), the Delhi High Court had formulated an affidavit of assets, income and expenditure to be filed by the judgment-debtor in execution cases. By its decision in Bhandari Engineers & Builders( P) Ltd. (2) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-8-2020), the Court modified and improved the format of the affidavit to make it more comprehensive and further directions were passed so that the execution cases are decided within a period of 1 year from the date of their institution. In the Court’s opinion, the affidavits formulated in Bhandari Engineers (2) are far more comprehensive than the affidavit formulated by the Court for matrimonial cases. Therefore, the Court considered it appropriate to incorporate the benevolent features of Bhandari Engineers (2) in the format of the affidavits of assets, income and expenditure in matrimonial cases.

Affidavit of Assets, Income and Expenditure in matrimonial cases

The modified affidavit of assets, income and expenditure (“Annexure A2” in the present Judgment) is very comprehensive and is useful to determine the maintenance in matrimonial litigation.

Salaried person

A salaried person is required to disclose the particulars of his employment including salary, DA, commissions, incentives, bonus, perks, perquisites, other benefits, Income tax, etc.

Self-employed person

A self-employed person is required to disclose the nature of business/profession, share in the business, net worth of the business, number of employees, annual turnover/gross receipts, gross profit, Income Tax, net income and regular monthly withdrawal/drawings from the business.

Income from other sources

The parties are further required to disclose income from other sources, namely, agricultural income, rent, interest on bank deposits and other investments, dividends, mutual funds, annuities, profit on sale of movable/immovable assets, etc.

Assets

With respect to the assets, the parties are required to disclose the particulars of the immovable properties, financial assets including bank accounts, DEMAT accounts, safety deposit lockers; investments including FDRs, stocks, shares, insurance policies, loans, foreign investments; movable assets including motor vehicles, mobiles, computer, laptop, electronic gadgets, gold, silver and diamond jewellery, etc.; intangible assets; garnishee(s)/trade receivables; corporate/business interests; disposal and parting away of properties; properties acquired by the family members, inheritance.

Standard of living and lifestyle

The affidavit requires the parties to disclose their standard of living and lifestyle, namely, credit/debit cards, membership of clubs and other associations, loyalty programmes, social media accounts, domestic helps and their wages, mode of travel in city and outside city, category of hotels, category of hospitals for medical treatment, frequency of foreign travel, frequent flyer cards, brand of mobile, wrist watch, pen, expenditure ordinarily incurred on family functions, festivals and marriage of family members, etc.

Household expenditure, etc.

The affidavit further requires the disclosure of expenditure on housing, household expenditure, maintenance of dependents, transport, medical expenditure, insurance, entertainment, holiday and vacations, litigation expenses, discharge of liabilities, etc.

 Modified Directions

The modified directions laid down by the Court in the present decision in Kusum Sharma (5) are delineated below:

(1) The Court has to ascertain the financial capacity/status of the parties for determining the maintenance and permanent alimony. A comprehensive affidavit of assets, income and expenditure of both the parties is necessary to determine their financial capacity/status.

 (2) Upon completion of the pleadings in the maintenance application, the Court shall fix the date for reconciliation and direct the parties to simultaneously file the affidavits of their assets, income and expenditure. The Court shall also direct the party seeking maintenance to produce the passbook of his/her savings bank account in which maintenance can be directly deposited/transferred by the opposite party.

(3) The Court shall simultaneously take on record the affidavit of assets, income and expenditure of both the parties. The simultaneous filing of the affidavit by the parties is very important and should be strictly adhered to. The simultaneous filing of the affidavit by the parties would avoid any undue advantage to the party who files his/her affidavit later. It is clarified that the affidavit of assets, income and expenditure is not to be filed along with the petition/application or written statement/reply.

(4) If a party is carrying on the business as proprietor of proprietorship concern/partner of a partnership concern/director of a company/member of a HUF/trustee of a trust/ member of a society or in any other form/entity, the Court may consider directing the party to file an additional affidavit with respect to the assets of the proprietorship concern/partnership concern/ company/society/HUF/Trust, as the case may be, in the format of Annexure B1 attached to Bhandari Engineers (2).

(5) In pending maintenance cases, if the parties have not already filed the affidavit of their assets, income and expenditure, the Court shall direct the parties to file their affidavit in the format of Annexure A2.

(6) If the reconciliation fails, the Court shall grant an opportunity to the parties to respond to the affidavit of the opposite party and list the maintenance application for hearing.

(7) The Courts shall ensure that the filing of the affidavits by the parties is not reduced to a mere ritual or formality. If the affidavit of the party is not in the prescribed format or is not accompanied with all the relevant documents, the Court may take the affidavit on record and grant reasonable time to the party to remove the defects/deficiencies.

(8) In appropriate cases, the Court may direct a party to file an additional affidavit relating to his assets, income and expenditure at the time of marriage and/or one year before separation and/or at the time of separation.

(9) If the party does not truly disclose all his assets and income, the opposite party is at liberty to serve the interrogatories under Order 11 CPC and/or seek production of relevant documents from the party filing the affidavit.

(10) In appropriate cases, Court may order interrogatories, discovery, inspection, production of any document and/or order any fact to be proved by affidavit under Section 30 CPC.

(11) The Court shall, thereafter, consider whether the oral examination of the party is necessary under Section 165 of the Evidence Act. If so, the Court shall proceed to examine the party to elicit the truth. The principles relating to the scope and powers of the Court under Section 165 of the Evidence Act have been summarised in Ved Parkash Kharbanda v. Vimal Bindal, 2013 SCC OnLine Del 994, which may be referred to.

(12) If the admitted income of the parties is on record, such as, in the case of a salaried employee whose salary slip is on record, the Court may fix ad-interim maintenance on the basis of the admitted documents pending filing of the affidavit of the assets, income and expenditure by both the parties. The Court may record the statement of the parties, if considered necessary for fixing the ad-interim maintenance.

(13) If any party delays in filing of the affidavit of assets, income and expenditure or the affidavit filed by a party is not in terms of these directions or a party delays the disclosure of further information/documents and the delay is causing hardship, the Court is at liberty to fix ad-interim maintenance after hearing the parties.

(14) If the statements made in affidavit of assets, income and expenditure are found to be incorrect, the Court shall consider its effect by drawing an adverse inference or imposing additional cost, while fixing the maintenance. However, an action under Section 340 CrPC is ordinarily not warranted in matrimonial litigation till the decision of the main petition unless the Court, for the reasons to be recorded, considers it expedient in the interest of justice, to deal with it earlier.

(15) At the time of issuing notice on the petition for dissolution of marriage, the Court shall consider directing the petitioner to deposit such sum, as the Court may consider appropriate for payment to the respondent towards interim litigation/part litigation expenses; except in cases, such as, divorce petition by the wife who is unable to support herself and is claiming maintenance from the respondent husband.

(16) The interim litigation expenses directed by the Court at the stage of issuing notice, does not preclude the respondent from seeking further litigation expenses incurred by the respondent at a later stage. The Court shall consider the respondent‘s claim for litigation expenses and pass an appropriate order on the merits of each case.

(17) At the time of passing a decree of divorce, the Court shall bring to the notice of the party concerned, as the case may be, that he/she can claim permanent alimony without prejudice to his/her right to challenge the decree of divorce and if the party seeks permanent alimony, at that stage, for which an oral prayer/application is sufficient, the Court shall fix the permanent alimony on the basis of the affidavits of assets, income and expenditure, after hearing both the parties. However, if the affidavits have not been filed at the stage of fixing the permanent alimony, the Court shall direct the parties to file the same before fixing the permanent alimony.

(18) In Bhandari Engineers & Builders( P) Ltd. (2) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-8-2020) the Delhi High Court has laid down comprehensive guidelines and has formulated affidavit of assets, income and expenditure to be filed by the judgment-debtor in execution proceedings, which may be considered in execution cases of the maintenance order apart from following the specific statutory provisions such as Sections 125 to 127 CrPC.

(19) The affidavit of assets, income and expenditure is to be treated as guidelines to determine the true financial capacity/status of the parties. The Courts are at liberty to determine the nature and extent of information/documents necessary and to direct the parties to disclose relevant information and documents to determine their financial capacity/status. The Courts are at liberty to pass appropriate directions as may be considered necessary to do complete justice between the parties and in appropriate cases, such as, the cases belonging to the lowest strata of the society or case of a litigant who is a permanently disabled/paralytic, the Court may, for reasons to be recorded, dispense with the requirement of filing of the affidavit or modify the information required.

(20) These modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 CrPC; Hindu Adoption and Maintenance Act, 1956; Special Marriage Act, 1954; Indian Divorce Act, 1869; Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.

(21) Matrimonial jurisdiction deserves a special attention and the maintenance applications should be decided expeditiously.

(22) The Courts below shall expedite the maintenance proceedings and shall make an endeavour to decide them within the prescribed time. The Family Courts shall send the list of all pending maintenance cases which are more than one year old, through the Principal Judge, Family Court. The list shall contain the name of the case; date of institution; number of hearings that have taken place; and the reasons for such delay. List be prepared according to the seniority, i.e. the oldest case shall be mentioned first. The Principal Judge, Family Court shall compile the lists of all Family Courts and shall send them to the Registrar General of the Delhi High Court by 31st December 2020 for being placed before the High Court.

Ancillary directions and suggestions

(a) The amici curiae submitted that the matter be kept pending for seeking feedback/comments of the Family Courts after implementation of the modified directions/guidelines. The matter is to be listed on 18th December 2020.

(b) The Court was of the view that the mandatory filing of the affidavit of assets, income and expenditure by the parties in a detailed prescribed form should be incorporated in the statutes, as in the developed countries. The Court was of the view that this suggestion be considered by the Central Government. Copy of the present judgment along with Annexure A2 is directed to be sent to Chetan Sharma, ASG, for taking up the matter with Ministry of Law and Justice.

(c) The modified directions and format of affidavit of assets, income and expenditure (Annexure A2) is directed to be uploaded on the website of the District Court (in .pdf format) to enable the lawyers/litigants to download the same.

(d) Copy of the present judgment and modified format of the affidavit of assets, income and expenditure (Annexure A2) is directed to be sent to the Registrar General of this Court who shall circulate it to the District Judge (Headquarters) and Principal Judge, Family Courts (Headquarters) for being circulated to all the concerned courts.

(e) Copy of the judgment along with the modified format of the affidavit of assets, income and expenditure (Annexures A2) is directed to be sent to the Delhi Judicial Academy to sensitise the judges about the modified directions laid down by the High Court.

(f) National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of various High Courts. Copy of the present judgment along with Annexure A2 is directed to be sent to National Judicial Academy.

Note of appreciation

The Court appreciated the assistance rendered by Sunil Mittal, Senior Advocate and Anu Narula, Advocate as amici curiae. The Court also appreciated the extensive research on corresponding law in other countries by Akshay Chowdhary, Law Researcher, attached to the Delhi High Court. [Kusum Sharma (5) v. Mahinder Kumar Sharma, 2020 SCC OnLine Del 931, decided on 6-8-2020]

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

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]

Case BriefsHigh Courts

Punjab and Haryana High Court: Jaishree Thakur, J., allowed a petition filed under Section 482 CrPC and held that,

“Disgruntled wives use the provisions of Section 498- A IPC as a weapon rather than shield.”

Petitioners have been summoned to face trial under Sections 498-A, 506, 120-B Penal Code, 1860 an order declaring petitioners as proclaimed offenders.

Complainant got married to Jaswant Singh. The complaint was made against Jaswant Singh, Amarjit Kaur was alleged to be his second wife.

Soon after the marriage, accused persons had started harassing the complainant. Husband of the complainant at the instance of other accused gave the complainant beatings and stated that she would have no place in the house if the demands are not fulfilled.

Even during the birth of complainant’s child her delivery expenses were borne by her parents. Husband and petitioners herein along with mother-in-law taunted the complainant for not giving birth to a male child. 

Complainant was threatened of dire consequences on making a complaint against the husband.

Husband without taking divorce from the complainant had also solemnized a second marriage. Thus she filed a petition under Section 125 CrPC and also an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005.

Bench observed that no direct and specific allegations against the petitioners were made out with regard to beating to the complainant or demand of dowry or misappropriation of stridhan.

Petitioner 1 is the sister-in-law of the complainant, who after marriage and had been residing in her matrimonial home, there is not even a remotest possibility that husband of the complainant was used to give beatings to her at the instance of petitioner 1. Petitioner 2 was 11 years old when the complainant alleged that she was given beatings by her husband at the instance of petitioner 2. Moreover, he had left for Canada in and was residing there since then. Similarly, petitioner 3 had also left for Canada in 1996 and was residing there since then with petitioner 2. In such an eventuality, it is hard to believe that petitioners had harassed the complainant as alleged in the complaint.

Thus, in view of the above, Court stated that,

It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives.

Simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades.

In the present case also, complainant failed to make out a prima facie case against the petitioners regarding allegation of inflicting physical and mental torture.

Therefore, Court opined that the present case is a sheer abuse of process of law. [Amarjit Kaur v. Jaswinder Kaur, 2020 SCC OnLine P&H 577 , decided on 15-05-2020]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., while addressing the present petition against the order of family Court wherein the petitioner’s maintenance petition under Section 125 CrPC was dismissed, held that,

“Merely because the wife is ‘capable of earning’ is not a sufficient reason to deny her the maintenance.”

Petitioner’s counsel contended that Family Court wrongly came to the conclusion that petitioner’s testimony in absence of any documentary evidence was unreliable. It erred in not recording a finding with respect to the income of the respondent and the maintenance sought by petitioner.

Respondent’s counsel submitted that petitioner had passed the Central Teacher Eligibility Test (CTET) exam and was capable of earning. Further, it stated that the petitioner was more qualified than the respondent and could maintain herself.

High Court’s Decision

Court noted that in the maintenance petition it was mentioned that respondent used to demand a Santro car despite the fact that one motorcycle was given in dowry.  During the petitioner’s pregnancy, she was physically assaulted by the respondent and his family members that resulted in her miscarriage.

On one occasion she was physically assaulted and thrown out of the matrimonial home, hence she had to live separately as the respondent was deserted and she had no other source of income.

Family Court had disbelieved petitioner’s testimony on the ground that no documentary evidence was placed in support of her allegations.

“It is well settled by catena of judicial precedents that the provisions of Section 125 CrPC are for the welfare of the neglected wives, children and parents and that provisions should construed liberally.”

Court stated that family court failed to take into account the petitioner’s claim that she was forced to leave the matrimonial home on account of dowry demands and physical assault. And petitioner’s testimony was supported by her complaint to the CAW Cell which was proved on record.

Bench also found the averment in her petition that specifically averred that she had no source of income and was totally dependent on her father. The respondent being employed had sufficient means to maintain her.

Expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 of CrPC.

For the above, Court referred to the Supreme Court decision in, Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112. Along with this, Court also observed the decision of the Supreme Court in Sunita Kachwaha. v. Anil Kachwaha, (2014) 16 SCC 715.

Thus, in view of the above, the High Court held that impugned order is to be set aside and matter to be remanded back to the family court for fresh consideration. [Anita v. Amit, 2020 SCC OnLine Del 468, decided on 24-02-2020]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., allowed a criminal revision petition filed by the complainant-wife challenging the order of the family court whereby the maintenance of Rs 20,000 under Section 125 CrPC was awarded to her only from the date of the order.

The wife represented by Amitabh Kumar Verma, Advocate, contended that the family court ought to have granted the maintenance from the date of the application filed under Section 125. Per contra, Charu Bharadwaj, Advocate appearing for the respondent-husband supported the order passed by the family court.

After considering the facts of the case, the High Court reiterated: “the maintenance to a wife is not a bounty but is the award so that she can survive, it is normally to be awarded from the date of the application. In the present case, the family court, while passing the final order, has not given any reasons as to why the maintenance was awarded only from the date of the passing of the order and not from the date of filing of the petition.” It was noted that Section 354(6) CrPC requires that every final order under Section 125, should contain the pints for determination, the decision thereon and the reasons for the decision. One of the points to be determined while awarding maintenance is the time from which such maintenance is to be granted. Since the final order passed by the family court did not mention any reason or justification for the award of the maintenance from the date of the order, it was set aside only to the aforesaid limited extent.

Furthermore, placing reliance on Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandra Vyas, (2015) 2 SCC 385; Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353; Nisha Saifi v. Mohd. Shahid, 2019 SCC OnLine Del 7902; and Bimla Devi v. Shamsher Singh, 2015 SCC OnLine Del 11553, the High Court observed: “Once the court comes to a conclusion that the wife is entitled to an award of maintenance, the assessment relates back to the date of the application and as such there have to be compelling reasons for the family court to restrict the award of maintenance from the date of the order and not from the date of the application.”

In such view of the matter, the final order passed by the family court was modified to the extent that the husband will pay the maintenance to the wife amounting to Rs 20,000 from the date of the filing of the application. The husband was further directed to clear the entire amount of arrears within a period of six months. [Asha Karki v. Rajesh Karki, 2020 SCC OnLine Del 444, decided on 29-01-2020]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J. dismissed a revision petition filed against the order of the Family Court whereby the petitioner-husband was directed to pay interim maintenance of Rs 33,005 per month to the respondent-wife and their minor child.

The above order was made by the Magistrate while deciding the application under Section 125 CrPC filed by the respondent wherein she alleged that she was thrown out of the matrimonial home and was living at her paternal home along with the minor child. She had stated that had no source of income and claimed Rs 80,000 per month as maintenance. The petitioner submitted that he was an Executive Chef in a hotel in Goa and his monthly salary was Rs 88,000. He stated that he was looking after his old-aged parents and had other liabilities towards loan and rent.

S.C. Vats, Advocate for the petitioner, referred to the bio data of the wife and submitted that she was professionally qualified, an LL.B graduate, and was earning well. Per contra, Rajesh Sharma, Advocate for the respondent, opposed the instant review petition.

The High Court noted that besides placing on record the bio data of the wife, which was disputed, the husband did not produce any document to prove that the wife was actually earning. Reliance was placed on Shailja v. Khobbana, (2018) 12 SCC 199, wherein the Supreme Court held that “capable earning” and “actual earning” are two different requirements. Merely because the wife is capable of earning was held not to be a sufficient reason to reduce the maintenance awarded by the Family Court.

It was noted that the petitioner’s contention, in absence of any supporting document, remains a disputed question to be tested in the trial. In the impugned order, the Family Court had recorded that any amount paid as maintenance in favour of the respondent would be liable to be adjusted.

In such view of the matter, the High Court found no illegality in the order passed by the Family Court. Resultantly, the instant revision petition was dismissed. [Arun Vats v. Pallavi Sharma, 2019 SCC OnLine Del 11817, decided on 06-12-2019]

Case BriefsHigh Courts

Sikkim High Court: Arup Kumar Goswami, CJ., dismissed the petition against the refusal to pay maintenance to the wife because she allegedly committed adultery.

The parties were married to each other but had three daughters out of wedlock. The husband with the help of the second daughter threw out the wife alleging that she had an extramarital affair. The wife alleged that she was mentally and physically tortured by the husband and had to live with her brother. The second daughter stated that she witnessed her mother commit adultery as she was in a room with another man. The petitioner moved the High Court when the Family Court allowed the wife’s claim of maintenance.

Advocate Gita Bista on behalf of the petitioner argued that the daughter saw her mother with another man inside a room and there is no reason as to why a daughter would depose falsely against her own mother, implying that wife left her husband on her own volition and hence is not entitled to any maintenance.

Legal Aid Counsel, Tashi Norbu Basi on behalf of the respondent contended that there is no conclusive proof that the wife committed adultery; they might be in the same room for some other purpose. He further submits maintenance can be denied if she is living in adultery, which is not the same thing as a single lapse from virtue.

The Court concluded that the wife hadn’t eloped but rather was forced out of her matrimonial home and that the allegations made by the husband of his wife having extramarital affairs were false as he did it with a number of people including her brother too. Further, the court stated that if the wife leaves the house of the husband because of torture and constant allegations, it cannot be said that there is no sufficient reason for the wife to leave her husband.

In the case of M.P. Subramaniyam v. T.T. Ponnakshiamal 1957 SCC Online Kar 18, Karnatka High Court considered the term “living in adultery” appearing in Section 488(4) of the Code of Criminal Procedure, 1898   which is also used in Section 125(4) of the CrPC. The Court concluded that it is not a stray act or two of Adultery that disentitles the wife from claiming maintenance from her husband, but it is a course of continuous conduct on her part it can be said that she is living an adulterous life that takes away her right to claim maintenance. There was no evidence of a continuous course of conduct demonstrating that the wife was living in adultery, hence, she can claim maintenance. [Suk Bir Chettri v. Jamuna Chettri, 2019 SCC OnLine Sikk 185, decided on 08-11-2019]

Case BriefsHigh Courts

Gauhati High Court: Hitesh Kumar Sarma, J., while disposing of a criminal revision petition filed against the order of the Additional Sessions Judge, modified the date from which the amount of maintenance was to be paid by the petitioner-husband to the respondent-wife on an application filed by her under Section 125 CrPC.

The parties were married to each other. After about 3-4 months of the marriage, the respondent left the matrimonial home on the pretext of visiting her ailing brother, and never returned. She has been living separately ever since. Subsequently, she filed an application under Section 125 CrPC, claiming maintenance from the petitioner. the case of the respondent was that starting from the very first night of marriage, she was subjected to torture by her husband and in-laws for not bringing a dowry of Rs 10,000 and other property.

The Sub-Divisional Judicial Magistrate held that the respondent was not able to prove her case and therefore, rejected her application. The Additional Sessions Judge, however, reversed that decision and directed the petitioner to pay Rs 1000 per month to the respondent. Aggrieved thereby, the petitioner filed the instant revision petition.

On perusal of the record, the High Court noted: “While there is an allegation of torture on the wife/respondent by the petitioner/husband, the fact remains that she was not driven out by her husband and she left on her own. This fact is not denied by the petitioner/husband and as such remained intact. This Court is also mindful of the fact that the respondent/wife left the company of the petitioner/husband within 2/3 months of their marriage and in the back of her mind, the fact that she was subjected to torture was always playing and the fact of torture evidently is not denied by the petitioner in his evidence.”

On such facts, the Court observed: “Although the respondent/wife left the house tangibly on her own yet the circumstances, as appears from the evidence, are such that the wife/respondent had to leave the house of the petitioner/husband under compelling reasons due to the torture meted out to her although such fact was not disclosed in so many words in her petition. No attempt by the petitioner/husband to take her back and also not providing maintenance during her separate stay for a long time is indicative of lack of persuasion on his part although an effort to persuade would have been the course usually adopted by any husband.”

In the circumstances aforesaid, the High Court was of the opinion that the finding in the impugned order that the respondent was entitled to maintenance was correct. It was, however, held that the petitioner would pay the amount of maintenance as directed, not from the date of application before the Sub-Divisional Judicial Magistrate; but only from the date of order passed by the Additional Sessions Judge. Order was made accordingly. [Pradip Das Sarkar v. Uma Sarkar, 2019 SCC OnLine Gau 5017, decided on 07-11-2019]