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November 10, 2020

The Supreme Court issues a slew of directions on determining quantum of Maintenance in Matrimonial cases

by CA Shivam Jaiswal in Legal Court Judgement

The Supreme Court issues a slew of directions on determining quantum of Maintenance in Matrimonial cases

The Supreme Court in a significant judgment in the case of Rajnesh vs Neha issued a slew of directions for payment of interim maintenance and the criteria to be followed in determining the quantum of maintenance in matrimonial cases.

It also issued guidelines to be adhered to by family courts, district courts and magistrate courts across the country to overcome the issue of overlapping jurisdiction and avoid conflicting orders being passed in different proceedings.

Facts of the Case:

  • The Respondent (wife) left the matrimonial home, shortly after the birth of the son.
  • The wife then filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf of herself and the minor son.
  • The Family Court vide a detailed Order awarded interim maintenance of Rs.15,000 per month to the wife and Rs.5,000 per month as interim maintenance for the son from 01.09.2013 to 31.08.2015 and Rs. 10,000 per month from 01.09.2015 onwards till further orders were passed in the main petition
  • The Appellant (husband) challenged the Order of the Family Court vide Criminal Writ Petition filed before the Bombay High Court. The High Court dismissed the Writ Petition and affirmed the Judgment passed by the Family Court
  • Aggrieved with the order of the Hight Court, the husband appealed before the Supreme Court.

Submissions by both the parties to the Supreme Court (SC)

  • The husband has submitted that he was presently unemployed, and was not in a position to pay maintenance to the wife.
  • He stated that he did not own any immovable property, and had only one operational bank account.
  • The husband declined to pay any further amount towards the maintenance of his wife. It was further submitted that the Family Court had erroneously relied upon the Income Tax Returns of 2006, while determining the maintenance payable in 2013. He further submitted that he was exploring new business projects, which would enable him to be in a better position to sustain his family
  • The wife has inter alia submitted that the amount of Rs.10,000 awarded for the son was granted when he was 2 ½ years old in 2015.
  • The said amount was now highly inadequate to meet the expenses of a growing child, who is 7 ½ years old, and is a school-going boy.
  • It was further submitted that the admission fee for the current academic year 2020-2021 had not yet been paid. If the fee was not paid within time, the school would discontinue sending the link for online classes.
  • She submitted that she was being over-burdened by the growing expenses, with no support from the husband.
  • With respect to the contention of the husband that he had no income, she submitted that the husband had made investments in real estate projects, and other businesses, which he was concealing from the Court, and diverting the income to his parents.
  • It was also alleged that the Appellant had retained illegal possession of her Streedhan, which he was refusing to return.
  • Despite orders being passed by this Court, and in the proceedings under the D.V. Act, he was deliberately not complying with the same. In these circumstances, it was submitted that there was a major trust deficit, and there was no prospect for reconciliation

Order of the Supreme Court (SC):

With respect to the issue of enhancement of maintenance for the son, the SC stated that Respondent was at liberty to move the Family Court for the said relief. SC could not grant this relief in the present appeal, as it was filed by the husband.

In the facts and circumstances of the case, SC ordered and directed that:

  • SC affirmed the Judgment and order passed by the Family Court, affirmed by the Bombay High Court, for payment of interim maintenance @ Rs.15,000 p.m. to the wife, and Rs.10,000 p.m. to the son
  • The husband was directed to pay the entire arrears of maintenance @ Rs.15,000 p.m., within 12 weeks from the date of this Judgment, and continue to comply with this Order during the pendency of the proceedings u/S. 125 Cr.P.C. before the Family Court
  • If the husband failed to comply with the aforesaid directions of this Court, it would be open to the respondents to have the Order enforced u/S.128 Cr.P.C., and take recourse to all other remedies which are available in accordance with law

Directions issued by the Supreme Court (SC)

Given the backdrop of the facts of the present case, which revealed that the application for interim maintenance had remained pending before the Courts for 7 years, and the 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, SC deemed it appropriate to frame guidelines on the issue of maintenance, which would cover 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.

SC passed the following directions for:

Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, SC provided the following directions, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country:

  • 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
  • it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding
  • 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.

Payment of Interim Maintenance

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

Criteria for determining the quantum of maintenance

For determining the quantum of maintenance payable to an applicant, the Court shall take into account the following factors:

  • the status of the parties
  • reasonable needs of the wife and dependent children
  • Age and employment of the parties
  • Right to residence
  • Serious disability or ill health
  • 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 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

Date from which maintenance is to be awarded

SC made it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance

Enforcement / Execution of orders of maintenance

For enforcement / execution of orders of maintenance, it was 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. Actand
  • 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 read with Order XXI

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