- JUDEGMENT SUMMARY: Rajnesh v. Neha
- DATE OF JUDGEMENT: 4th November 2020
- JUDGES: Justices Indu Malhotra and R. Subhash Reddy
- REFERENCE: Cr. A No. 730 OF 2020
- PARTIES: Rajnesh (Appellant)
- Neha & Anr. (Respondents)
SUBJECT
The following judgment is delivered in a Criminal Appeal arising out of an application for Interim Maintenance filed in a petition under Section 125 of the Code of Criminal Procedure (Cr.P.C.), 1973 by the Respondent-wife and minor son and deals with the award of maintenance. The question before the Supreme Court for consideration was whether it is necessary to frame guidelines to ensure that there is uniformity and consistency in deciding the appropriate quantum of maintenance to be paid. The issue of enhancement of maintenance for the son was also considered by the Court. Section 125 of the Cr.P.C. provides for the maintenance order passed in favour of wives, children and parents.
AN OVERVIEW
1. The Supreme Court bench comprising of Justices Indu Malhotra and R. Subhash Reddy has observed that the basic principle of granting interim or permanent alimony/maintenance is to ensure that the spouse who is dependent on the other spouse is not reduced to destitution or vagrancy due to the failure of the marriage. The order of maintenance or alimony should not be imposed as a punishment on the other spouse.
2. The apex court further observed that the award of maintenance should be reasonable as well as realistic and the two extremes should be avoided. On one hand, the maintenance granted to the wife should neither be so extravagant which is unbearable and oppressive for the other spouse i.e., the respondent, nor the maintenance should be so meager that the wife is driven to penury.
IMPORTANT PROVISIONS
Section 125 of the Code of Criminal Procedure (Cr.P.C.) ,1973, the Special Marriage Act, 1954, the Protection of Women from Domestic Violence Act, 2005, the Hindu Marriage Act, 1955 and the Hindu Adoptions & Maintenance Act, 1956 are the legislations dealing with the issue of maintenance and these laws provide a legal remedy to women. Section 125 of the Code of Criminal Procedure (Cr.P.C.),1973, the Special Marriage Act, 1954 and the Protection of Women from Domestic Violence Act, 2005 grant the said remedy to the women without any discrimination based on their religious communities. In addition to these statutory remedies under the above-mentioned three Acts, there are personal laws which are applicable to a certain class or group of people or a specific individual on the basic of their inclination to specific religions, faith, and culture. A Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 1956 and she is also entitled to claim maintenance in a substantive legal proceeding for dissolution of marriage, or restitution of conjugal rights, etc. by invoking the provisions contained in Sections 24 and 25 of the Hindu Marriage Act, 1955.
Special Marriage Act, 1954
• Section 36- A wife is can claim alimony pendente lite, if she has no adequate independent income for her support and for the necessary legal expenses. The Court may order the husband to pay maintenance on a weekly or monthly basis during the pendency of the suit and shall determine such quantum of maintenance which the Court deems reasonable depending upon the husband’s income.
• Section 37- A wife is entitled to claim permanent alimony and maintenance at the time of passing any decree, or at any time subsequent thereto. The Court may order the husband to pay for the permanent alimony for the maintenance and support of the wife during her lifetime.
Hindu Marriage Act, 1955
• Both Sections 24 and 25 provide for maintenance to a party (husband or wife), if he/she has no sufficient independent income for his/her support, and other necessary expenses.
• These two are gender-neutral provisions.
• Section 24 of the Hindu Marriage Act provides for maintenance pendent lite and necessary expenses of proceedings where the Court may direct the respondent to pay such reasonable monthly expenses and the expenses of the proceeding to an aggrieved party which the Court deems fit, having regard to the and income of both the parties. The proviso attached to Section 24 provides a time limit of 60 days for the disposal of the application under this section.
• Under Section 25 of the said Act, either the husband or the wife is entitled to obtain from the other spouse for his/her support and maintenance a gross sum or a monthly or periodical payment for a term not exceeding the lifetime of the applicant or till the time he/she marries again or remains unchaste.
• Section 26 of the Hindu Marriage Act lays down the provision that the Court may from time to time pass interim orders regarding the custody, maintenance and education of the minor children.
Hindu Adoptions & Maintenance Act, 1956
• Section 18 of the Hindu Adoptions & Maintenance Act, 1956 lays down the provision that a Hindu wife, whether she is married before or after the commencement of the Act, shall be entitled for maintenance by her husband during her life time. She is also entitled to be maintained separately by her husband without waiving her right to claim maintenance.
• Section 18 is to be read with section 23 of the Act which states that the Court may award the maintenance after considering certain factors. These are the position and status of both the parties, the reasonable demands of the applicant, the assets of the claimant and any income source of the claimant and also the number of persons depending upon the claimant for their living. Section 18(2) casts an obligation upon the husband to maintain his own wife though she is living separately. The wife would be debarred from claiming a right of separate residence as well as maintenance if she has been unchaste or has changed to a different religion.
Section 125 of the Code of Criminal Procedure (Cr.P.C.)
The objective behind the enactment of Section 125 Cr.P.C is to grant instant remedy to the claimant. An application under Section 125 is allowed on two pre-conditions namely, the husband has sufficient means for maintenance and yet he neglects or refuses to maintain his wife who is not able to maintain herself. If such conditions exist, the Magistrate can order the husband to pay a monthly allowance to the wife, as the Magistrate thinks fit. The maintenance is awarded after taking into consideration the financial status of the husband along with other important factors. Section 125(2) gives discretion to the Court to award the payment of such maintenance or interim maintenance either from the date of application for maintenance and costs of proceedings or from the date on which the Court passes the order.
Protection of Women from Domestic Violence Act, 2005
The Domestic Violence Act was enacted with the purpose of providing relief to an aggrieved woman who has faced “domestic violence.”
• Section 17(2) of the Act provides protection to an aggrieved woman against eviction or exclusion from a “shared household”, or any portion thereof by the “respondent” except according to the procedure established by law. Every woman residing in a domestic relationship has the right to reside in the “shared household”. This provision operates irrespective of whether she has any right, title or beneficial interest in the same.
• Section 19 deals with residence orders, grant of injunctive reliefs, or for alternate accommodation / payment of rent by the respondent. The right to claim residence under Section 19 is not a right that is indefeasible, especially when the claim of a daughter-in-law is against aged parents-in-law. The Court has to balance the respective rights between the aggrieved woman and the parents-in-law while granting remedy under the provisions of Section 12 of the Domestic Violence Act or in any civil case.
• Section 20(1)(d) of the Act says about the monetary reliefs awarded to an aggrieved person including her children, if any. It would be given effect to in addition to an order passed under Section 125 of the Cr.P.C. granting maintenance or under any other law in force.
• As per Section 20(6), the Magistrate may give direction to the employer or the respondent’s debtor, to directly make the payment to the aggrieved woman or deposit at the court a part of the earnings or income or debt due to or accrued to the respondent’s credit. This payment may be adjusted with the payment to be made by the respondent.
• Section 22 of the Act states that the Magistrate may on an application as made by the aggrieved party, pronounce an order directing the respondent to pay compensation and damages for the injuries, which includes the mental and emotional torture caused by the acts resulting in domestic violence by the respondent.
• Section 26 of the Act lays down that any remedy existing under Sections 18, 19, 20, 21 and 22 may also be availed in any legal proceeding before a Civil Court, Family Court or Criminal Court. The relief under Section 26 may be claimed in addition to, and also simultaneously with any other relief that may be sought by the aggrieved person in a legal suit or proceeding before a Civil Court, Family Court or Criminal Court.
• As per the provision of Section 26 (3) of the Act, the claimant is obliged to inform the Magistrate of the grant of any relief in a proceeding other than proceedings under the Act.
• Section 36 of the Domestic Violence Act states that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.
ISSUES :
The following are the major issues framed by the Supreme Court-
- Whether the wife can claim maintenance under different enactments?
- Is there a time limit for the disposal of proceedings relating to interim maintenance?
- What are the criteria for determining the quantum of maintenance?
- Whether the payment of maintenance will be awarded from the date of the order or the date of filing of the application?
- Whether there are any procedures for enforcement of orders of maintenance or not?
ANALYSIS OF THE JUDGEMENT
• Issue of Overlapping Jurisdictions
The wife may claim maintenance as per the provisions contained in one or more than one of the above-cited statutes because each law is framed with a specific purpose and objective and lays down an independent and separate remedy. The Court observed that though there is no bar to seek maintenance under various enactments, it would be unreasonable as per law to direct the husband to pay maintenance under each of the legal proceedings without taking into consideration the relief granted in a previous proceeding and in case of parallel proceedings, adjustment or set-off must take place. The simultaneous operation of these Acts would frustrate the nature and purpose of the statute and would lead to multiplicity of proceedings and contradictory orders. This would inevitably cause the issue of overlapping jurisdiction. Therefore, this procedure should be reasonably laid down so that the other party/husband is not compelled to abide by the successive orders directing upon him to pay maintenance under varying statutes. The Court directed that if in a previous proceeding for maintenance, an order is passed for payment of maintenance, then the applicant must disclose the filing of such maintenance proceeding and the orders passed therein in the latter proceeding seeking maintenance so that the Court can take into consideration such an amount of maintenance already awarded in a previous case while deciding the amount to be awarded in the subsequent proceeding. If the order awarding maintenance in an earlier proceeding requires any alteration or adjustment, then the party can apply before the concerned court in the earlier proceeding.
• Payment of Interim Maintenance
The proviso attached to the provision of Section 24 of the Hindu Marriage Act and the third proviso attached to the provision of Section 125 Cr.P.C. mention that the proceedings for payment of interim maintenance, shall as much as possible, be disposed of within a time period of 60 days’ from the date on which the notice is served on the contesting spouse. Despite the statutory provisions granting a time-bound period for disposal of proceedings for interim maintenance, there are delays in disposing of the proceedings due to several factors, such as tremendous docket pressure on the Family Courts, repetitive adjournments sought by parties, enormous time taken for completion of pleadings at the interim stage itself, etc.
Presently, the issue of payment of interim maintenance is determined based on the pleadings which involve some guess-work or approx evaluation so as to prima facie determine the sum to be awarded. Sometimes it is problematic for the Family Courts to formulate an objective estimation for granting the payment of interim maintenance due to the lack of submission of vital information, material records and exact details on the part of both the parties. The Court went on to say that while the wife has a tendency to overstate her wants, there is a similar tendency by the husband to hide his exact income. The claimant who may be either a spouse or a live-in partner or a civil union partner or partner of marriage under the common law, is required to move a definite application for the grant of interim maintenance with restricted number of pleadings. This is to be done by following the compulsory requirement of filing an Affidavit for disclosing assets and liabilities, if any before the Court.
The Court also observed that the Family Court must in the first instance try to settle the claims of the parties in accordance with Section 9 of the Family Courts Act 1984. Section 5 and 6 of the Family Courts Act provide for the appointment of marriage counselors in every Family Court, who would help in the process of settlement. The matter would be proceeded on merits if the Family Court is unable to settle the dispute between the parties.
• The Criteria for Determining the Quantum of Maintenance
The fundamental objective of awarding interim or permanent alimony/maintenance is to ensure that the spouse who is dependent on the other spouse is not reduced to destitution or vagrancy due to the failure of the marriage. The common factors that the court must recognize are the status of the parties, reasonable demands of the wife and dependent children, whether the claimant is educationally well qualified and professionally established, whether the claimant has any independent income source, whether the applicant out of her income can maintain her same standard of living as she is used to in her matrimonial home, whether the wife has sacrificed her career for looking after the needs of her family, reasonable legal expenses for a non-employed wife, etc.
The apex court directed that the concerned courts shall consider the following criteria while determining the quantum of maintenance to be paid to the applicant:
1. In a long duration of marriage, where the parties have stayed in the marital relationship for several years together, it would be a determining factor. On ending the marital relationship, if the wife is educated and professionally well qualified, but had to give up her career for the purpose of looking after the needs of her family being the main caregiver to her minor children and the elder members of the house, this factor would be given the required value. This factor is of particular significance in contemporary society considering the extremely competitive industry standards, the estranged wife would be required to do some fresh training to learn profitable skills that are high on demand in the market and re-train her to get a paying job that would help her to reintegrate herself. Due to technological advancement, it would be difficult for the dependent wife to re-enter into the workforce after several years of gap.
2. The Magistrate, while passing a residence order under Domestic Violence Act, may give a direction to the respondent to pay the rent as well as other payments after taking into consideration the financial demands and resources available to the parties.
3. The wife’s independent income cannot operate as a bar while awarding the order of maintenance by her husband. An able-bodied man is presumed to be able to earn sufficiently to maintain his wife and children and cannot defend himself that he is not in a position to have a sufficient earning for maintaining his family.
4. The living expenses of the child mean the expenses for food, clothing, education, residence, medical facilities, coaching classes and vocational training costs etc. The costs for coaching classes and/or extra-curricular activities are reasonable costs and not an excessive extravagant amount that may be claimed. The father in ordinary circumstances bears these costs for education of his child/children. The expenses may be proportionately shared between the two estranged spouses if the wife is earning sufficiently out of her independent income.
5. The husband has to proof with material records that there are adequate grounds for showing that he is not able to discharge his legal obligations of maintaining the family for reasons out of his control. An adverse inference may be drawn by the Court if the husband fails to disclose his accurate income before the Court.
6. Another relevant factor for determining the quantum of maintenance would be the serious disability or illness of a spouse, child / children from the marriage / dependant relative who require regular care and recurrent expenditure.
The list is not exhaustive and the concerned Court shall have the power to decide any other criteria which may be crucial depending upon the facts and circumstances of each case.
• Date from which the Maintenance is to be Paid
Section 125(2) gives discretion to the Court to award the payment of such maintenance or interim maintenance either from the date of application for maintenance and costs of proceedings or from the date on which the Court passes the order. However, it would be suitable to grant the maintenance under Section 125(2) Cr.P.C. from the date of filing of the application in all cases. In some cases, a delay is observed in disposing the applications for seeking interim maintenance for several years together. Therefore, in the interests of fair play and justice, it is admissible to grant maintenance from the day of the original application before the Court. This is so done in order to sustain the dependant wife who is unable to maintain herself due to financial constraints during the legal proceedings. The object of maintenance proceedings is not to reduce the dependant spouse to destitution or vagrancy due to the failure of the marriage.
· Enforcement of the Orders on Maintenance
The most difficult part faced by the claimants is while enforcing the maintenance orders. The purpose of the provision of maintenance is frustrated if the maintenance is not disbursed in a time bound manner. An application for the purpose of executing an Order of Maintenance can be moved under the provisions mentioned below.
(a) The provision under Section 28 A of the Hindu Marriage Act, 1956 read with Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the Code of Civil Procedure for the purpose of execution of an order of maintenance issued by the Family Court under Section 24 of the Hindu Marriage Act;
(b) The provision under Section 20(6) of the Domestic Violence Act (before the Judicial Magistrate); and
(c) The provision under Section 128 of Code of Criminal Procedure (before the Court of Magistrate).
As per Section 18 of the Family Courts Act, 1984, the orders that are passed by the Family Court are to be executed according to the procedures under the Code of Civil Procedure (CPC) or the Code of Criminal Procedure (Cr.P.C.)
Section 125(3) of Cr.P.C. states that if a party fails to comply with the order of maintenance, then the maintenance amount is to be recovered as fines, and the Magistrate may sentence him to imprisonment for a term extending to one month or until payment of the amount, whichever is sooner. If the court finds that the default on the part of the respondent is intentional, then the Court may strike off the respondent’s defense for failure to comply with the order of maintenance of dependant wife and minor children who are unable to maintain themselves. The Court also stated that such willful disobedience may attract Contempt proceedings before the concerned Court. The Court further directed that the maintenance order or decree is to be enforced like a decree passed by a civil court by applying the procedures laid down under Sections 51, 55, 58, 60 read with Order XXI of the CPC.
CONCLUSION
In this case, the court reasonably laid down all the criteria/factors to be taken into consideration for determining matrimonial allowances, covering overlapping jurisdiction provided under various laws for payment of maintenance and interim maintenance as well as the standard for deciding the quantum of maintenance, the date from which the maintenance will be awarded and the enforcement of maintenance orders. The Court held that the right to maintenance under all the major enactments must date back to the date on which the application for maintenance is filed. Since there is a common tendency to hide the actual income on the part of both the parties, the Bench ordered that both the parties must compulsorily disclose their assets and liabilities in the form of an Affidavit in all proceedings of maintenance inclusive of pending proceedings before the concerned Family Court / District Court / Magistrates Court.
