The Supreme Court in November 2020 framed guidelines on certain aspects pertaining to payment of maintenance in matrimonial matters, finding it necessary to address various issues that arise for consideration in applications for grant of maintenance and ensuring uniformity and consistency in taking the decision.
The guidelines were issued by the Court while deciding a matter (Indu vs Rajnesh and Anr.) where proceedings for payment of interim maintenance under Section 125 of Code of Criminal Procedure (CrPC) had been pending between the parties for a period of over 7 years. The husband had moved the Supreme Court challenging the High Court’s decision to uphold the Trial Court’s order awarding interim maintenance to the wife and minor son.
A division bench of the Apex Court comprising Justices Indu Malhotra and B. Subhash Reddy considered it appropriate to refer the matter for mediation to resolve all disputes pending between the parties and arrive at an overall settlement. On October 8, 2020, the Court was informed that the mediation had failed.
The husband appeared before the Court and made an oral statement that he did not have the financial means to comply with the order of maintenance payable to the wife, and had to borrow loans from his father to pay the same. He stated that he had paid the maintenance awarded to the son, and would continue to do so without demur. Both parties addressed arguments and filed their written submissions. Considering that the proceedings for payment of interim maintenance u/S. 125 Cr.P.C. had been pending between the parties for a period of over 7 years now, the Court directed the Family Court decides the substantive application u/S. 125 Cr.P.C finally, in light of the directions and guidelines issued by Supreme Court in the present judgment, within a period of 6 months’ from the date of the judgment.
Need for framing guidelines for maintenance disputes: The Court took note of the backdrop of the case where the application for interim maintenance under Section 125 of Cr.P.C. had remained pending before the Courts for seven years, and the difficulties encountered in the enforcement of orders passed by the Courts. The Court noted that the wife was constrained to move successive applications for enforcement from time to time. There are different statutes and enactments that 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 a vast majority of cases, the applications are not disposed of within the time frame prescribed.
The Court, therefore, felt the need 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.
The Court had also appointed Anitha Shenoy and Gopal Sankaranaryanan, Senior Advocates as Amicus Curiae, to seek assistance on these issues.
Direction on Overlapping jurisdiction: To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, the Court had directed that in a subsequent maintenance proceeding, the applicant will 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.
Guidelines regarding 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. The Court has therefore found it necessary to lay down a procedure to streamline the proceedings, since a dependant wife, who has no other source of income, has to take recourse to borrowings from her parents or relatives during the interregnum to sustain herself and the minor children, till she begins receiving interim maintenance.
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 Family Court in the discharge of its functions. Marriage counsellors need to be appointed 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. The party claiming maintenance either as a spouse or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before the concerned court, as a mandatory requirement. On the basis of the pleadings filed by both parties and the affidavits of disclosure, the Court would be in a position to make an objective assessment of the approximate amount to be awarded towards maintenance at the interim stage.
Criteria for determining quantum of maintenance: The objective of granting interim or permanent alimony is to ensure that the dependent 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 factors which would weigh with the Court are as follows:
- 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.
Guidelines regarding Date from which Maintenance to be awarded: There is no provision in the HMA with respect to the date from which an Order of maintenance may be made effective. Similarly, Section 12 of the D.V. The Act does not provide the date from which the maintenance is to be awarded. Section 125(2) Cr.P.C. is the only statutory provision which provides that the Magistrate may award maintenance either from the date of the order, or from the date of application. The view that maintenance should be granted from the date when the application was made, is based on the rationale that the primary object of maintenance laws is to protect a deserted wife and dependent children from destitution and vagrancy. If maintenance is not paid from the date of application, the party seeking maintenance would be deprived of sustenance, owing to the time taken for disposal of the application, which often runs into several years.