In our blog post titled "Maintenance and Women1", we had inter alia discussed various statutory provisions under which women in India can claim maintenance. This blog post is in furtherance to the said post.
Recognising the dire need to have uniformity, consistency, procedural fairness and time efficiency in disposal of maintenance applications, the Supreme Court has recently, in the matter of Rajnesh v. Neha & Anr.2 inter alia, framed guidelines on certain aspects pertaining to payment of maintenance in matrimonial disputes ("Guidelines"). Further, the Court has also set out a comprehensive format in which the Affidavit of Disclosure of Assets and Liabilities ("Affidavit of Disclosure") is to be filed by parties to matrimonial disputes of such nature.
The Guidelines as laid down by the Supreme Court inter alia pertain to (1) the issue of overlapping jurisdiction under different enactments for payment of maintenance; (2) payment of interim maintenance; (3) criteria for determining quantum of maintenance; (4) date from which maintenance is to be awarded; and (5) enforcement of orders of maintenance.
1. Issue of Overlapping Jurisdiction
The Supreme Court observed that different High Courts across the country had passed various conflicting judgments on the issue of overlapping jurisdiction (caused due to simultaneous operation of various statutes under which maintenance may be claimed). In this regard, it was noted that some High Courts such as the Madhya Pradesh High Court and the Calcutta High Court had taken the view that since each proceeding filed by the parties was distinct and independent of the other, maintenance granted in one proceeding could not be adjusted or set-off in the other. On the other hand, the Bombay High Court and Delhi High Court had held that adjustment or set-off must take place in case of parallel maintenance proceedings.
Accordingly, in order to settle the law on overlapping jurisdiction, and to avoid conflicting orders being passed in different proceedings, the Supreme Court has passed the following directions:
- where successive claims for maintenance are made by a party under different statutes, the relevant Court could 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;
- the applicants have to mandatorily disclose all the previous proceedings and the orders passed therein, in any subsequent proceeding;
- if the order passed in the previous proceeding/s requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.
2. Payment of Interim Maintenance:
While framing the Guidelines, the Hon'ble Court found that despite the statutory provisions inter alia requiring that proceedings for interim maintenance be disposed of in a time bound manner, the said applications remained pending for several years inter alia on account of multiple adjournments sought by parties, enormous time taken for completion of pleadings at the interim stage itself, etc.
It was observed that such delays defeated the very object of the legislation. Further, the quantum of interim maintenance was being decided by Courts on the basis of pleadings and rough estimations made therein. Additionally, parties would submit insufficient material, disclose the incorrect/ ambiguous details, and suppress vital information. These factors made it difficult for the Courts to make an objective assessment for grant of interim maintenance. Accordingly, the Court inter-alia laid down the following directions:
- Endeavor must be made for settling the disputes. Only when the proceedings for settlement are unsuccessful should the Court proceed with the matter on merits.
- A professional marriage counsellor must be made available in every Court.
- Both parties have to mandatorily file an Affidavit of Disclosure in all maintenance proceedings, including pending proceedings before the concerned Court.
- The party claiming maintenance should mandatorily file a concise application for interim maintenance with limited pleadings, along with the Affidavit of Disclosure before the concerned Court.
- The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The Court ought not to grant the respondent more than two opportunities for submission of his/her Affidavit of Disclosure.
- The Court may consider exercising its power to strike off the defence of the respondent, if the respondent seeks more than two adjournments for filing his/her pleadings and if the Court finds that such conduct of the respondent has been willful and contumacious in delaying the proceedings.
- On the respondent's failure to file the Affidavit of Disclosure within the prescribed time, the Court may proceed to decide the application for maintenance on the basis of the Affidavit of Disclosure filed by the applicant and the pleadings on record.
- On the basis of the pleadings filed by both the parties and the Affidavits of Disclosure, the Courts should make an objective assessment of the approximate amount to be awarded towards maintenance in the interim stage.
- If any further information is required, apart from the information contained in the Affidavits of Disclosure, the concerned Court may pass appropriate orders in respect thereof.
- If during the course of proceedings there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended/ supplementary affidavit, which would be considered by the Court at the time of final determination.
- The concerned Court must make an endeavor to decide the Interim Application for Interim Maintenance by a reasoned order, within a period of maximum four to six months, after the Affidavits of Disclosure have been filed before the Court.
- These directions may be modified by the concerned Court, if exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court to issue necessary directions in this regard.
In addition to the above, the Supreme Court made the following observations with respect to Permanent Maintenance:
- Parties could lead oral and documentary evidence with respect to income, expenditure, standard of living, etc., before the concerned Court, for fixing the permanent maintenance payable to the spouse.
- The duration of the marriage should be taken into consideration for determining the permanent maintenance to be paid.
- Provision in relation to grant of reasonable expenses for the marriage of children must be made at the time of determining permanent maintenance (in cases where the custody is with the wife). The expenses ought to be determined by taking into account the financial position of the husband and the customs of the family.
- If there are any trust funds/ investments created by any spouse/ grandparents in favour of the children, the same ought to be taken into consideration while deciding the quantum of final child support.
3. Criteria for determining the quantum of maintenance
Whilst setting out the criteria for determining the quantum of maintenance, the Hon'ble Court recognised that there can be no straitjacket formula for fixing such a quantum. Stressing upon the importance of maintaining a careful and just balance between all relevant factors, the Court held that the maintenance amount awarded must be reasonable and realistic. It directed the Courts to take cognizance of the fact that maintenance awarded to the applicant should neither be so extravagant that it becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the applicant to penury.
In addition to the statutory guidance, the Court inter alia laid down the following indicative factors to be considered before determining the quantum of maintenance (a) the status of the parties; (b) reasonable needs of the wife and dependent children; (c) whether the applicant is educated and professionally qualified; (d) whether the applicant has any independent source of income; (e) whether the income is sufficient to enable the applicant to maintain the same standard of living as she was accustomed to in her matrimonial home; (f) whether the applicant was employed prior to her marriage; (g) whether she was working during the subsistence of the marriage; (h) whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; (i) reasonable costs of litigation for a non-working wife.
Apart from the aforesaid factors set out hereinabove, the Court laid down certain additional factors for determining the quantum of maintenance payable. These are inter alia as follows:
- Age and employment of parties;
- Duration of marriage;
- Maintenance of minor children; and
- Serious disability or ill health of a spouse, child /children from the marriage or dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance.
The aforesaid factors are not exhaustive, and the concerned Court can exercise its discretion to consider any other factor/s, which may be necessary or relevant in the facts and circumstances of a particular case.
4. Date from which maintenance is to be awarded:
Whilst deciding the date from which maintenance is to be awarded, the Court found that most of the statutes containing provisions for maintenance (except Section 125(2) CrPC) were silent on the said issue. Absence of a uniform regime has resulted in inconsistencies in the practice adopted by various Courts with respect to the date from which maintenance was to be awarded. While some Courts held that payment of maintenance was to be made from the date on which the application for maintenance was filed, others held that such payment should be made from the date of the order granting maintenance. Further, some other Courts were also of the view that such payments ought to be made from the date on which the summons were served upon the respondent.
With a view to settle the law in this regard, the Supreme Court has held that maintenance in all cases (including Section 125 CrPC) is to be awarded from the date on which the application was made before the concerned Court. This was done with a view to prevent a dependent spouse from being reduced to destitution.
5. Enforcement/ Execution of orders of maintenance
The Court observed that execution petitions following an order granting maintenance usually remained pending for a long period of time. It recognised that if maintenance was not paid in a timely manner, it would defeat the very object of the social welfare legislation.
Accordingly, the Court directed that an order or decree granting maintenance may be enforced under Section 28A3 of the Hindu Marriage Act, 1955; Section 20(6)4 of the Protection of Women from Domestic Violence Act, 2012; Section 1285 of CrPC; or under the CPC6 as may be applicable. It was further held that the order of maintenance may be enforced as a money decree of a civil court as provided by various provisions of the CPC, including provisions for civil detention, attachment of property, etc., more particularly provided in relevant provisions therein.
The Apex Court also took note of the practice of striking off the defence of the respondent in the case of non-payment of maintenance, adopted by certain Courts in India. In this regard, it cautioned the Courts that the option of striking off the defence of the respondent should be exercised as a last resort and in cases where the conduct of the defaulting party was found to be willful and contumacious. It further provided that contempt proceedings for willful disobedience could also be initiated before the appropriate Court.
Affidavit of Disclosure:
Taking assistance of a few Senior Advocates and the National Legal Services Authority, the Supreme Court formulated a comprehensive format in which the affidavit of disclosures ought to be filed by the parties. Recognising India's vastly divergent demographic profile (comprising metropolitan cities, urban, rural, tribal areas, etc.), the Court observed and acknowledged that the Affidavit of Disclosure to be filed by parties residing in urban areas would be entirely different from the one filed by parties residing in rural or tribal areas.
Accordingly, different formats of Affidavit of Disclosure have been attached to the said judgment as Enclosure I, II and III. The said Affidavit of Disclosure inter alia requires the parties to disclose their assets, liabilities, income and other personal information, as the case may be. An Affidavit of Disclosure is to be mandatorily filed by both the parties in all maintenance proceedings, including in proceedings currently pending before the concerned Family Court/ District Court/ Magistrate's Court. This requirement of filing the Affidavit of Disclosure can be dispensed with for parties belonging to the economically weaker sections, or those who are living below the poverty line, or are casual labourers.
The issuance of the aforesaid Guidelines and the framing of Affidavit of Disclosure by the Supreme Court shall ensure that the entire process of granting maintenance to a spouse is carried out in a streamlined manner. The Court's sensitivity towards the economic landscape of the country whilst framing the Affidavit of Disclosure is particularly praiseworthy. The Court has sought to strike a balance between the rights, obligations and interests of the parties involved in such matrimonial disputes. The Guidelines and other recommendations made by the Court seek to ensure that the social welfare objective of statutes on maintenance is duly fulfilled and is not diluted by time lags and procedural irregularities.
2. Criminal Appeal No. 730 of 2020 arising out of SLP (Cri) No. 9503 of 2018). The said case arose out of an application for interim maintenance filed in a petition under section 125 of the Code of Criminal Procedure ("CrPC")
3. 28A. Enforcement of decrees and orders.-All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being in force
4. 20(6): Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
5. 128. Enforcement of order of maintenance.-A copy of the order of maintenance or interim maintenance and expenses of proceedings, as the case may be, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance, or as the case may be, expenses, due.
6. Sections 51, 55, 58, 60 read with Order XXI of the CPC
November 30, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.