In the last of 2020, The judgment delivered by the supreme court regarding interim maintenance under the various provision of different laws relating to family law. In Rajneesh v/s NEHA SC/0833/2020, the supreme court set the guidelines relating to various issues faced by the family or magisterial court while ordering interim maintenance. However, guidelines issued by the supreme court is not so exhaustive in selective circumstances of the case where it appears before the court to dispense the order is must necessary. In this case the supreme court defined the scope or functions of provisions relating to maintenance. As well as summed up the dozens of previous case judgments to formulate guidelines.
Generally while granting interim maintenance or final maintenance these issues are faced by the family or magisterial courts like Payment of interim maintenance, Issue of Overlapping Jurisdictions under different maintenance provision under a different statute, Criteria for determining the quantum of maintenance, Date from which Maintenance to be awarded and Enforcement of orders of maintenance. The various opinion of the high court made the functioning of provisions critical.
Facts of the case...
Criminal appeal by the applicant husband Against the order of a magisterial court, the order of 2013 which granted interim maintenance order under section 125 crpc. To pay interim maintenance to his wife and minor son. Supreme court in this judgment stated ‘it is necessary to frame guidelines to ensure that there are uniformity and consistency in deciding the interim maintenance within time to procure the very intention of the legislation to assist the women in time.
The magisterial court took an income tax return of 2006 while ordering interim maintenance. This contention was raised by the appellant in court.
Abbreviations…
• Sc = supreme court
• HMA= HINDU MARRIAGE ACT
• HAMA= HINDU ADOPTION AND MAINTENANCE ACT
• SMA= SPECIAL MARRIAGE ACT
• CRPC=CRIMINAL PROCEDURE CODE
• CPC=CRIMINAL PROCEDURE CODE
• MAIN. = MAINTENANCE
• PENDENTE LITE= APPLICATION WHICH IS PENDING BEFORE COURT
• PERMANENT MAINTENANCE= FINAL ORDER OF MAINTENANCE
Supreme court guidelines……
1. issue of Overlapping Jurisdiction
• petitioner can seek maintenance under various laws including interim maintenance under Hindu marriage act, crpc, Hindu adoption and maintenance act. and compensation under the domestic violence act.
• However petitioner not precluded from claiming maintenance under various laws at a time. But have to disclose the various prior maintenance petition pending before courts with the details of the application in which there is a need to enhance the amount of maintenance.
• Section 37 of the Special Marriage Act provides for the grant of permanent alimony at the time of passing of the decree. This is also the same religion-neutral provision. But not applicable to the spouse having the same religion plus having right under marriage personnel laws. the spouses irrespective of their religion. However registration of marriage of two different religion person not mandatory to seek maintenance under this provision. The intent of the legislation to sum up the uniform maintenance law irrespective of their religion. Not gender-neutral, only wife entitled to claim maintenance.
• Section 24 of the Hindu marriage act 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. This provision is not religion-neutral. Only applicable to Hindu spouse belonging hindu, sikh, bodh, jain only. This provision is gender-neutral. In this even husband can claim maintenance if he not sufficient to maintain himself. This confers the right upon the wife as well as husband to claim interim maintenance. can claim right also in the proceedings of rights of conjugal rights or judicial separation.
• Section 18 of HAMA ‘’’a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance. This provision is not gender or religion-neutral. Also confers the right upon the wife to claim maintenance as similar to section 25 of Hindu marriage act. But the only difference between both the provision is that, to claim maintenance under section 18 of HAMA wife not need to live separate or to get a divorce decree. Wife can claim maintenance even sharing a household with her husband. On the other hand, the wife can claim maintenance only when she filed an application to get divorced under Hindu marriage act.
• Section 19 of the HAMA provides that a widowed daughter-in-law may claim maintenance from her father-in-law if (i) she is unable to maintain herself out of her own earnings or other property; or, (ii) where she has no property of her own, is unable to obtain maintenance; (a) from the estate of her husband, or her father or mother, or (b) from her son or daughter, if any, or his or her estate.
• The D.V. Act provides relief to an aggrieved woman who is subjected to "domestic violence." The "aggrieved person" has been defined by Section 2(a) to mean anywoman who is, or has been, in a domestic relationship with the Respondent, andalleges to have been subjected to any act of domestic violence. Section 2(f) defines"domestic relationship" to include a relationship between two persons who live, or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage,adoption, or are family members living together as a joint family. A three-judge bench of this Court in Satish Chander Ahuja v. Sneha Ahuja 2020. wherein a two judge bench held that the wife is entitled to claim a right of residence in a "shared household" Under Section 17 (1), which would only mean the house belonging to, or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. At any time taken on rent does not include continous shifting home. Wife can only claim right to residence irrespective of the ownership of the husband. But the important fact that the spouse lived together at such place for a much time. DV ACT is gender neutral act under which women can claim compensation for the domestic violence inflicted upon herself by the other women. However, not all live-in relationships would amount to a relationship in the nature of marriage to avail thebenefit of D.V. Act. Merely spending week-ends together, or a one-night stand, wouldnot make it a "domestic relationship".term ‘wife’ as to claim maintenance. But women can claim for ‘rape’ if the consummation by man happened only the decisive promise of marriage in future.
• The question here arise that, intention of the legislation is different before each provision. Whether to take consideration of pending maintenance applications ‘to set-off or club’ the maintenance order under these provisions while ordering the maintenance or not? Supreme court in this case held that court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding. it is made mandatory for the Applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding.
2. Payment of interim maintenance
=time limit set by the legislation in HMA, HAMA, 125 CRPC, DV ACT to pass the order of interim or permanent interim maintenance within Sixty days. But practically it is not possible to do so. Because of the adjournments and slow pleadings by parties and it takes time to consider the assets affidavit filed by the parties. There is also an issue regarding the time of issuance. Which time is set for passing an maintenance order. Whether from the date of application or while in the last. Different high courts opines different suggestions. In "Kusum Sharma I") supreme court directed that applications for maintenance under the HMA, HAMA, D.V. Act, and the Code of Criminal Procedure be accompanied with an Affidavit of assets,income and expenditure as prescribed. In Kusum Sharma II, /0155/2015 : (2015) 217 DLT 706 the Court framed a format of Affidavit of assets, income and expenditure to be filed by both parties at the threshold of a matrimonial litigation. This procedure was extended to maintenance proceedings under the Special Marriage Act and the Indian Divorce Act, 1869.
• Supreme court in this case held that for the fast disposal of interim maintenance applications. Both party have to submit the Affidavit of assets, income and expenditure. To avoid further delay in assessing the amount of maintenance it would lead to speedy disposable of applications.
• This is mandatory guidelines not directory. To fix the affidavit along with the application as annexure. In this judgment, supreme court sought three formats of affidavit. high courts of state have to select one of the format.
• This would also avoid the confusion of actual income while the consideration of granting the permanent alimony at the end.
• Guidelines in this case also mandate to file supplement affidavit in the case of change of property.
3. Criteria for determining the quantum of maintenance
• The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it. In Manish Jain v. Akanksha Jain SC/0355/2017 801 supreme Court held that the financial position of the parents of the applicant-wife,would not be material while determining the quantum of maintenance.
• These are the Following factors which the court must take into consideration while order maintenance order sought by the supreme court. Status of spouse before filing application, earning of husband, needs of children including schooling-fooding and training, future residence of wife whether she will leave seprate or with their parents, needs of husband, maintenance of husband family.
• Whether wife educated or can earn should be taken while consideration of quantum of maintenance. But this factor does not preclude wife from approaching the court for maintenance. At the same time, this factor would not effect the quantum of alimomy.
• Supreme court in this case observed that where parties have endured the relationship for several years, it would be a relevant factor to be taken into consideration. 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. 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.
4. Date from which maintenance to be awarded
• Supreme court observed that 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 Section 125(2) Code of Criminal Procedure, it would be appropriate to grant maintenance from the date of application in all cases.
5. Enforcement of orders of maintenance
• Court held that applicant can enforce the orders of maintenance as same as execution proceeding under CPC ORDER XXI in the applications under HMA, HAMA.
• Can enforce by writing application before judicial magistrate to enforce orders of section 125 by levying fines tax or imprisonment in lieu of that.
• Court can also pass orders for striking off the defence of respondent which disallow the respondent for further pleading in the cases of where respondent failed to pay the interim maintenance ordered by the family court. In Kaushalya v. Mukesh Jain 1129-1130/2019, the Supreme Court allowed a Family Court to strike off the defence of the Respondent, in case of non-payment of maintenance in accordance with the interim order passed.
Supreme court directions in this case
• Affidavit of disclosure of assets and liabilities shall be filed along with pleadings.
• Affidavit ahall be filed within four weeks and shall only two opportunity given to respondent to attach affidavit.
• where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding.
• Details of the maintenance applications pending before any court shall be mentioned in the subsequent application.
• 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.
• Maintenance in all cases will be awarded from the date of maintenance from the date of filling of an application.
Conclusion…
Supreme court in this case clears the ambiguous opinion of various high courts relating to the various factor of maintenance. It would lead to the speedy disposal of maintenance applications. Court also strengthen the intention of the legislation by this judgment. Applicant what do in this delay. Passing order of interim maintenance after several years defeat the soul of provisions.
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