MAINTENANCE APPLICATION – IMPORTANT FACTORS:
Maintenance application can be filed under various laws in matrimonial cases. It may be under Section 125 Cr.P.C. and Section 20(d) under Domestic Violence Act available for all religious denominations, Section 24 (interim) and Section 25 (permanent alimony) available only for Hindus, Section 18 of the Hindu Adoption and Maintenance Act available only for Hindu wives and Section 19 of the Hindu Adoption and Maintenance Act available only for Hindu widow from father-in-law and finally Section 36 (interim) and Section 37 (permanent alimony) of Special Marriage Act for the wives only (not for husbands) married under the provisions of that Act.
Most important, most confusing and most repeatedly asked question is that what are the factors the court will take into consideration while fixing the amount of maintenance. It is very important to know because once applicant comes to know about it, one can draft the application to one’s advantage. Justice Pradeep Nadrajog in his judgment in Bharat Hegde Vs. Saroj Hegde (I) 2007 DMC 815 listed the following factors succinctly for the benefit of the applicants:
1. Status of the Parties
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar life style as he / she engaged in the matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded under Section 125 Cr.P.C. is adjustable against the amount awarded under Section 24 of the Hindu Marriage Act.
The maintenance application has to be drafted keeping in view of the above factors into consideration so that adjudication can be done by the court easily as all the required information is available to the court to come to quick decision. Now, comes the question of documents required to be filed along with the application. Always attach the original documents available with the applicant even at the interim stage itself. If the original documents are not available attach the photo copies of the documents. Salary certificates of the applicant and non-applicant, the documents pertaining to other sources of income of the non-applicant, documents pertaining to the movable and immovable properties of the non-applicant have to be attached. If the documents are not available, at least brief descripttion of the movable and immovable properties are to be given. For example, the non-applicant has got three cars and documents are not available, at least car numbers have to be mentioned in the application. Similarly, if the non-applicant has got three shops, which have been let out and if documents are not available at least the geographical identification of those shops and the rent prevailing in such markets has to be explained in the application. If any private detective is engaged to find out the details of the income, his original report has to be attached with the application. He can be called as witness at a later stage. In the most cases, Income Tax department is not parting with annual returns even under Right to Information Act. Then, income tax authority’s refusal letter can be attached with the application, so that at future date, the department personnel can be called for through court procedure to find out the income-tax of the non-applicant. After this, the turn comes to expenses. The monthly provisions, educational expenses of the children, medical expenses, travelling expenses have to be given in great detail. If all these details are available, it becomes easy to the court to decide the quantum of interim relief. Remember, the quantum of final relief also mostly based on the quantum of interim relief with exceptions.
