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Rajnesh Vs Neha On 4 November 2020
Rajnesh Vs Neha On 4 November 2020
REP
RAJNESH …APP
Versus
INDEX
PART A Order passed in Criminal Appeal No.730 of 202
PART B General Guidelines and Directions
I. Issue of Overlapping Jurisdictions
II. Payment of interim maintenance
III. Criteria for determining quantum of maintenan
IV. Date from which Maintenance to be awarded
V. Enforcement of orders of maintenance
VI. Final Directions
Digitally signed by
Jatinder Kaur
Date: 2020.11.04
13:33:16 IST
Reason:
1
INDU MALHOTRA, J.
(i) The present Criminal Appeal arises out of an application for Interim Maintenance filed in a
petition u/S. 125 Cr.P.C. by the Respondent-wife and minor son. The Respondent No.1-wife left the
matrimonial home in January 2013, shortly after the birth of the son-Respondent No.2. On
02.09.2013, the wife 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 dated 24.08.2015 awarded
interim maintenance of Rs.15,000 per month to the Respondent No.1- wife from 01.09.2013; and
Rs.5,000 per month as interim maintenance for the Respondent No.2-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.
(ii) The Appellant-husband challenged the Order of the Family Court vide Criminal Writ Petition
No.875/2015 filed before the Bombay High Court, Nagpur Bench. The High Court dismissed the
Writ Petition vide Order dated 14.08.2018, and affirmed the Judgment passed by the Family Court.
(iii) The present appeal has been filed to impugn the Order dated 14.08.2018.
This Court issued notice to the wife and directed the Appellant-husband to file his Income Tax
Returns and Assessment Orders for the period from 2005-2006 till date. He was also directed to
place a photocopy of his passport on record. By a further Order dated 11.09.2019, the
Appellant-husband was directed to make payment of the arrears of Rs.2,00,000 towards interim
maintenance to the wife; and a further amount of Rs.3,00,000, which was due and payable to the
wife towards arrears of maintenance, as per his own admission. By a subsequent Order dated
14.10.2019, it was recorded that only a part of the arrears had been paid. A final opportunity was
granted to the Appellant-husband to make payment of the balance amount by 30.11.2019, failing
which, the Court would proceed under the Contempt of Courts Act for wilful disobedience with the
Orders passed by this Court.
In the backdrop of the facts of this case, we considered it fit to frame guidelines on certain aspects
pertaining to the payment of maintenance in matrimonial matters. There are different statutes
providing for making an application for grant of maintenance / interim maintenance, if any person
having sufficient means neglects, or refuses to maintain his wife, children, parents. The different
enactments provide an independent and distinct remedy framed with a specific object and purpose.
Inspite of time frames being prescribed by various statutes for disposal of interim applications, we
have noticed, in practice that in a vast majority of cases, the applications are not disposed of within
the time frame prescribed. To address various issues which arise for consideration in applications
for grant of maintenance / interim maintenance, it is necessary to frame guidelines to ensure that
there is uniformity and consistency in deciding the same. To seek assistance on these issues, we have
appointed Ms. Anitha Shenoy and Mr. Gopal Sankaranaryanan, Senior Advocates as Amici Curiae,
who have graciously accepted to assist this Court.
(iv) By a further Order dated 17.12.2019, the Appellant was directed to pay an amount of
Rs.1,45,000 to the Respondent no.1-wife within a period of 45 days.
On the issue of framing guidelines, the National Legal Services Authority was directed to elicit
responses from the State Legal Services Authorities of various States.
(v) By a subsequent Order dated 05.08.2020, it was recorded that an Affidavit of Compliance had
been filed on 04.08.2020 by the Appellant-husband, wherein it was stated that arrears of
Rs.1,45,000 till 11.09.2019 had been paid by him in January, 2020. However, he had made no
further payment to the wife thereafter. With respect to the amount of Rs.10,000 p.m. payable for the
minor son, the Order had been complied with till July 2020. A statement was made by the Counsel
for the Appellant that he was not disputing the payment of maintenance for his son, and would
continue to pay the same. A direction was issued by this Court to pay the entire arrears of
maintenance to the wife @ Rs.15,000 p.m. as fixed by the Family Court, and continue to pay the said
amount during the pendency of proceedings.
(vi) By the Order dated 25.08.2020, it was noted that the Appellant had filed an Affidavit dated
23.08.2020 wherein he had admitted and acknowledged that an amount of Rs.5,00,000 was
pending towards arrears of maintenance to the Respondent No.1-wife. The Appellant was directed
to pay 50% of the arrears within a period of 4 weeks to the Respondent No.1, failing which, he was
directed to remain present before the Court on the next date of hearing. The Counsel for the
husband placed on record a chart of various proceedings pending between the parties. Taking note
of the aforesaid facts, we considered it appropriate to refer the matter for mediation by Mr. Shridhar
Purohit, Advocate, a well-known Mediator in Nagpur, to resolve all disputes pending between the
parties, and arrive at an overall settlement.
(vii) On 08.10.2020, we were 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 Respondent No.1-wife, and had to borrow loans from his father
to pay the same. He however 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.
(viii) We have heard the Counsel for the parties, and perused the written submissions filed on their
behalf.
The husband has inter alia submitted that he was presently unemployed, and was not in a position
to pay maintenance to the Respondent No.1-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 has also been 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.
(ix) With respect to the issue of enhancement of maintenance for the son, the Respondent is at
liberty to move the Family Court for the said relief. We cannot grant this relief in the present appeal,
as it has been filed by the husband.
(x) In the facts and circumstances of the case, we order and direct that :
(a) The Judgment and order dated 24.08.2015 passed by the Family Court, Nagpur,
affirmed by the Bombay High Court, Nagpur Bench vide Order dated 14.08.2018 for
payment of interim maintenance @ Rs.15,000 p.m. to the Respondent No.1-wife, and
Rs.10,000 p.m. to the Respondent No.2-son, is hereby affirmed by this Court;
(b) The husband is directed to pay the entire arrears of maintenance @ Rs.15,000
p.m., within a period of 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;
(c) If the Appellant-husband fails 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;
(d) The proceedings for payment of interim maintenance u/S. 125 Cr.P.C.
have been pending between the parties for a period of over 7 years now. We deem it appropriate that
the Family Court decides the substantive application u/S. 125 Cr.P.C. in Petition No. E-443/ 2013
finally, in light of the directions / guidelines issued in the present judgment, within a period of 6
months’ from the date of this judgment.
The Registry is directed to forward a complete copy of the pleadings, alongwith the written
submissions filed by the parties, and the record of the proceedings in the present Criminal Appeal,
to the Family Court, Nagpur. The present Criminal Appeal is disposed of accordingly.
PART B Given the backdrop of the facts of the present case, which reveal that the application for
interim maintenance under Section 125 Cr.P.C. has remained pending before the Courts for seven
years now, 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, we deem 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.
Guidelines / Directions on Maintenance Maintenance laws have been enacted as a measure of social
justice to provide recourse to dependant wives and children for their financial support, so as to
prevent them from falling into destitution and vagrancy.
“Nothing in this article shall prevent the State from making any special provision for
women and children.” Article 15 (3) reinforced by Article 39 of the Constitution of
India, which envisages a positive role for the State in fostering change towards the
empowerment of women, led to the enactment of various legislations from time to
time.
Justice Krishna Iyer in his judgment in Captain Ramesh Chander Kaushal v Mrs.
Veena Kaushal & Ors.1 held that the object of maintenance laws is :
“9. This provision is a measure of social justice and specially enacted to protect
women and children and falls within the constitutional sweep of Article 15(3)
reinforced by Article 39. We have no doubt that sections of statutes calling for
construction by courts are not petrified print but vibrant words with social functions
to fulfil. The brooding presence of the constitutional empathy for the weaker sections
like women and children must inform interpretation if it has to have social relevance.
So viewed, it is (1978) 4 SCC 70.
possible to be selective in picking out that interpretation out of two alternatives which advances the
cause — the cause of the derelicts.” The legislations which have been framed on the issue of
maintenance are the Special Marriage Act 1954 (“SMA”), Section 125 of the Cr.P.C. 1973; and the
Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”) which provide a statutory
remedy to women, irrespective of the religious community to which they belong, apart from the
personal laws applicable to various religious communities.
I Issue of Overlapping Jurisdiction Maintenance may be claimed under one or more of the
afore-mentioned statutes, since each of these enactments provides an independent and distinct
remedy framed with a specific object and purpose. For instance, a Hindu wife may claim
maintenance under the Hindu Adoptions and Maintenance Act 1956 (“HAMA”), and also in a
substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under
the Hindu Marriage Act, 1955 (“HMA”) by invoking Sections 24 and 25 of the said Act.
(i) In Nanak Chand v Chandra Kishore Aggarwal & Ors. 2 , the Supreme Court held that there was
no inconsistency between the Cr.P.C. and HAMA. Section 4(b) of HAMA would not repeal or affect
the provisions of Section 488 of the old Cr.P.C. It was held that :
“4. Both can stand together. The Maintenance Act is an act to amend and codify the
law relating to adoptions and maintenance among Hindus. The law was substantially
similar before and nobody ever suggested that Hindu Law, as in force immediately
before the commencement of this Act, insofar as it dealt with the maintenance of
children, was in any way inconsistent with Section 488, Cr.P.C. The scope of the two
laws is different. Section 488 provides a summary remedy and is applicable to all
persons belonging to all religions and has no relationship with the personal law of the
parties. Recently the question came before the Allahabad High Court in Ram Singh v.
State: AIR1963All355, before the Calcutta High Court in Mahabir Agarwalla v. Gita
Roy [1962] 2 Cr. L.J.528 and before the Patna High Court in Nalini Ranjan v. Kiran
Rani: AIR1965Pat442. The three High Courts have, in our view, correctly come to the
conclusion that Section 4(b) of the Maintenance Act does not repeal or affect in any
manner the provisions contained in Section 488, Cr.P.C.” (emphasis supplied) (1969)
3 SCC 802.
While it is true that a party is not precluded from approaching the Court under one or more
enactments, since the nature and purpose of the relief under each Act is distinct and independent, it
is equally true that the simultaneous operation of these Acts, would lead to multiplicity of
proceedings and conflicting orders. This would have the inevitable effect of overlapping jurisdiction.
This process requires to be streamlined, so that the respondent / husband is not obligated to comply
with successive orders of maintenance passed under different enactments.
For instance, if in a previous proceeding under Section 125 Cr.P.C., an amount is awarded towards
maintenance, in the subsequent proceeding filed for dissolution of marriage under the Hindu
Marriage Act, where an application for maintenance pendente lite is filed under Section 24 of that
Act, or for maintenance under Section 25, the payment awarded in the earlier proceeding must be
taken note of, while deciding the amount awarded under HMA.
(a) The Special Marriage Act, 1954 (“SMA”) Section 4 of the Special Marriage Act, 1954 provides that
a marriage between any two persons who are citizens of India may be solemnised under this Act,
notwithstanding anything contained in any other law for the time being in force. It is a secular
Section 36 of the Special Marriage Act provides that a wife is entitled to claim pendente lite
maintenance, if she does not have sufficient independent income to support her and for legal
expenses. The maintenance may be granted on a weekly or monthly basis during the pendency of the
matrimonial proceedings. The Court would determine the quantum of maintenance depending on
the income of the husband, and award such amount as may seem reasonable. Section 36 reads as:
Provided that the application for the payment of the expenses of the proceeding and
such weekly or monthly sum during the proceeding under Chapter V or Chapter VI,
shall, as far as possible, be disposed of within sixty days from the date of service of
notice on the husband.” Section 37 provides for grant of permanent alimony at the
time of passing of the decree, or subsequent thereto. Permanent alimony is the
consolidated payment made by the husband to the wife towards her maintenance for
life. Section 37 reads as:
“S. 37. Permanent alimony and maintenance.—(1) Any court exercising jurisdiction
under Chapter V or Chapter VI may, at the time of passing any decree or at any time
subsequent to the decree, on application made to it for the purpose, order that the
husband shall secure to the wife for her maintenance and support if necessary, by a
charge on the husband’s property such gross sum or such monthly or periodical
payment of money for a term not exceeding her life, as, having regard to her own
property, if any, her husband’s property and ability, the conduct of the parties and
other circumstances of the case, as it may seem to the court to be just. (2) If the
district court is satisfied that there is a change in the circumstances of either party at
any time after it has made an order under sub-Section (1), it may, at the instance of
either party, vary, modify or rescind any such order in such manner as it may seem to
the court to be just.
(3) If the district court is satisfied that the wife in whose favour an order has been
made under this Section has remarried or is not leading a chaste life, it may, at the
instance of the husband, vary, modify or rescind any such order and in such manner
as the court may deem just.”
(b) The Hindu Marriage Act, 1955 (“HMA”) The HMA is a complete code which
provides for the rights, liabilities and obligations arising from a marriage between
two Hindus. Sections 24 and 25 make provision for maintenance to a party who has
no independent income sufficient for his or her support, and necessary expenses.
This is a gender-neutral provision, where either the wife or the husband may claim
maintenance. The pre-
requisite is that the applicant does not have independent income which is sufficient for her or his
support, during the pendency of the lis.
Section 24 of the HMA provides for maintenance pendente lite, where the Court may direct the
respondent to pay the expenses of the proceeding, and pay such reasonable monthly amount, which
is considered to be reasonable, having regard to the income of both the parties.
Provided that the application for the payment of the expenses of the proceeding and
such monthly sum during the proceeding, shall, as far as possible, be disposed of
within sixty days from the date of service of notice on the wife or the husband, as the
case may be.” (emphasis supplied) The proviso to Section 24 providing a time line of
60 days for disposal of the application was inserted vide Act 49 of 2001 w.e.f.
24.09.2001.
“25. Permanent alimony and maintenance — (1) Any court exercising jurisdiction
under this Act may, at the time of passing any decree or at any time subsequent
thereto, on application made to it for the purpose by either the wife or the husband,
as the case may be, order that the respondent shall pay to the applicant for her or his
maintenance and support such gross sum or such monthly or periodical sum for a
term not exceeding the life of the applicant as, having regard to the respondent's own
income and other property, if any, the income and other property of the applicant,
the conduct of the parties and other circumstances of the case, it may seem to the
court to be just, and any such payment may be secured, if necessary, by a charge on
the immovable property of the respondent.
(2) If the court is satisfied that there is, a change in the circumstances of either party
at any time after it has made an order under sub-section (1), it may at the instance of
either party, vary, modify or rescind any such order in such manner as the court may
deem just.
(3) If the court is satisfied that the party in whose favour an order has been made
under this section has remarried or, if such party is the wife, that she has not
remained chaste, or, if such party is the husband, that he has had sexual intercourse
with any woman outside wedlock, it may at the instance of the other party vary,
modify or rescind any such order in such manner as the court may deem just.”
(emphasis supplied) Section 26 of the HMA provides that the Court may from time to
time pass interim orders with respect to the custody, maintenance and education of
the minor children.
(c) Hindu Adoptions & Maintenance Act, 1956 (“HAMA”) HAMA is a special
legislation which was enacted to amend and codify the laws relating to adoption and
maintenance amongst Hindus, during the subsistence of the marriage. Section 18
provides that a Hindu wife shall be entitled to be maintained by her husband during
her lifetime. She is entitled to make a claim for a separate residence, without
forfeiting her right to maintenance. Section 18 read in conjunction with Section 23
states the factors required to be considered for deciding the quantum of maintenance
to be paid.
Under sub-section (2) of Section 18, the husband has the obligation to maintain his wife, even
though she may be living separately. The right of separate residence and maintenance would
however not be available if the wife has been unchaste, or has converted to another religion.
“18. Maintenance of wife.— (1) Subject to the provisions of this section, a Hindu wife,
whether married before or after the commencement of this Act, shall be entitled to be
maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance—
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in
her mind that it will be harmful or injurious to live with her husband;
(c) [****]
(e) if he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere;
(g) if there is any other cause justifying living separately. (3) A Hindu wife shall not
be entitled to separate residency and maintenance from her husband if she is
unchaste or ceases to be a Hindu by conversion to another religion.” The distinction
between maintenance under HMA and HAMA is that the right under Section 18 of
HAMA is available during the subsistence of a marriage, without any matrimonial
proceeding pending between the parties.
Once there is a divorce, the wife has to seek relief under Section 25 of HMA. 3 Under HMA, either
the wife, or the husband, may move for judicial separation, restitution of conjugal rights, dissolution
of marriage, payment of interim maintenance under Section 24, and permanent alimony under
Section 25 of the Act, whereas under Section 18 of HAMA, only a wife may seek maintenance.
The interplay between the claim for maintenance under HMA and HAMA came up for consideration
by the Supreme Court in Chand Dhawan v Jawaharlal Dhawan.4 The Supreme Court, while
considering the various laws relating to marriage amongst Hindus, discussed the scope of
applications under the HMA and HAMA in the following words :
“23. …Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a
Hindu wife to claim maintenance from her husband during her life-time. Sub-section
(2) of Section 18 grants her the right to live separately, without forfeiting her claim to
maintenance, if he is guilty of any of the misbehaviors enumerated therein or on
account of his being in one of objectionable conditions as mentioned therein. So
while sustaining her marriage and preserving her marital status, the wife is entitled
to claim maintenance from her husband. On the other hand, under the Hindu
Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the
pendency of a litigation of the kind envisaged under Sections 9 to 14 of the Hindu
Marriage Act, and her claim to permanent maintenance or alimony is based on the
supposition that either her marital status has been strained or affected by passing a
decree for restitution of conjugal rights or judicial separation in favour or against her,
or her marriage stands dissolved by a decree of nullity or divorce, with or without her
Panditrao Chimaji Kalure v Gayabai (2002) 2 Mah LJ 53.
consent. Thus when her marital status is to be affected or disrupted the court does so by passing a
decree for or against her. On or at the time of the happening of that event, the court being seized of
the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the
court retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation
when moved by an application on that behalf by a party entitled to relief. The court further retains
the power to change" or alter the order in view of the changed circumstances. Thus the whole
exercise is within the gammit of a diseased or a broken marriage. And in order to avoid conflict of
perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent
maintenance in favour of the husband or the wife, as the case may be, dependent on the court
passing a decree of the kind as envisaged under Sections 9 to 14 of the Act. In other words without
the marital status being affected or; disputed by the matrimonial court under the Hindu Marriage
Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affectation
or disruption. The wife's claim to maintenance necessarily has then to be agitated under the Hindu
Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the
Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law
applicable to Hindus….” (emphasis supplied) Section 19 of the HAMA provides that a widowed
daughter-in-law may claim maintenance from her father-in-law if (i) she is unable to maintain
herself out of her own earnings or other property; or, (ii) where she has no property of her own, is
unable to obtain maintenance; (a) from the estate of her husband, or her father or mother, or (b)
from her son or daughter, if any, or his or her estate.
Section 20 of HAMA provides for maintenance of children and aged parents. Section 20 casts a
statutory obligation on a Hindu male to maintain an unmarried daughter, who is unable to maintain
herself out of her own earnings, or other property. In Abhilasha v Parkash & Ors.,5 a three-judge
bench of this Court held that Section 20(3) is a recognition of the principles of Hindu law,
particularly the obligation of the father to maintain an unmarried daughter. The right is absolute
under personal law, which has been given statutory recognition by this Act. The Court noted the
distinction between the award of maintenance to children u/S. 125 Cr.P.C., which limits the claim of
maintenance to a child, until he or she attains majority. However, if an unmarried daughter is by
reason Decided on 15.10.2020 in Criminal Appeal No.615/2020.
of any physical or mental abnormality or injury, unable to maintain herself, under Section 125(1)(c),
the father would be obligated to maintain her even after she has attained majority. The maintenance
contemplated under HAMA is a wider concept. Section 3(b) contains an inclusive definition of
maintenance including marriage expenses. The purpose and object of Section 125 Cr.P.C. is to
provide immediate relief to the wife and children in a summary proceeding, whereas under Section
20 read with Section 3(b) of HAMA, a much larger right is contemplated, which requires
determination by a civil court.
Section 22 provides for maintenance of dependants. Section 23 provides that while awarding
maintenance, the Court shall have due regard to the criteria mentioned therein :
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant's property and any income derived from such property,
or from the claimant's own earning or from any other source;
(a) the net value of the estate of the deceased after providing for the payment of his
debts;
(b) the provision, if any, made under a will of the deceased in respect, of the
dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from such
property, or from his or her earnings or from any other course;
Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and
parents in a summary proceeding. Maintenance under Section 125 of the Cr.P.C. may be claimed by
a person irrespective of the religious community to which they belong. The purpose and object of
Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125
Cr.P.C. is predicated on two conditions : (i) the husband has sufficient means; and (ii) “neglects” to
maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by
the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the
basis of the financial capacity of the husband and other relevant factors.
The remedy provided by Section 125 is summary in nature, and the substantive disputes with
respect to dissolution of marriage can be determined by a civil court / family court in an appropriate
proceeding, such as the Hindu Marriage Act, 1956.
In Bhagwan Dutt v Kamla Devi 6 the Supreme Court held that under Section 125(1) Cr.P.C. only a
wife who is “unable to maintain herself” is entitled to seek maintenance. The Court held :
“19. The object of these provisions being to prevent vagrancy and destitution, the
Magistrate has to find out as to what is required by the wife to maintain a standard of
living which is neither luxurious nor penurious, but is modestly consistent with the
status of the family. The needs and requirements of the wife for such moderate living
can be fairly determined, only if her separate income, also, is taken into account
together with the earnings of the husband and his commitments.” (emphasis
supplied) Prior to the amendment of Section 125 in 2001, there was a ceiling on the
amount which could be awarded as maintenance, being Rs. 500 “in the whole”. In
view of the rising costs of living and inflation rates, the ceiling of Rs. 500 was (1975) 2
SCC 386.
done away by the 2001 Amendment Act. The Statement of Objects and Reasons of the Amendment
Act states that the wife had to wait for several years before being granted maintenance.
Consequently, the Amendment Act introduced an express provision for grant of “interim
maintenance”. The Magistrate was vested with the power to order the respondent to make a
monthly allowance towards interim maintenance during the pendency of the petition.
Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of
maintenance either from the date of the order, or from the date of the application.
Under the third proviso to the amended Section 125, the application for grant of interim
maintenance must be disposed of as far as possible within sixty days’ from the date of service of
notice on the respondent.
(b) his legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical or mental
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the
first class may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, father or mother, at
such monthly rate as such Magistrate thinks fit, and to pay the same to such person
as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to
in clause (b) to make such allowance, until she attains her majority, if the Magistrate
is satisfied that the husband of such minor female child, if married, is not possessed
of sufficient means :
Provided further that the Magistrate may, during the pendency of the proceeding
regarding monthly allowance for the maintenance under this sub-section, order such
person to make a monthly allow for the interim maintenance of his wife or such child,
father or mother, and the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person as the Magistrate may from
time to time direct :
Provided also that an application for the monthly allowance for the interim
maintenance and expenses of proceeding under the second proviso shall, as far as
possible, be disposed of within sixty days from the date of the service of notice of the
application to such person.
(a) "minor" means a person who, under the provisions of the Indian Majority Act,
1875 (9 of 1875); is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce
from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of
proceeding shall be payable from the date of the order, or, if so ordered, from the
date of the application for maintenance or interim maintenance and expenses of
proceeding, as the case may be. (3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate may, for every breach of the
order, issue a warrant for levying the amount due in the manner provided for levying
fines, and may sentence such person, for the whole, or any part of each month's
allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be, remaining unpaid after the execution of the warrant,
to imprisonment for a term which may extend to one month or until payment if
sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under
this section unless application be made to the Court to levy such amount within a
period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her
living with him, and she refuses to live with him, such Magistrate may consider any
grounds of refusal stated by her, and may make an order under this section
notwithstanding such offer, if he is satisfied that there is just ground for so doing.
(4) No wife shall be entitled to receive an allowance for the maintenance or interim
maintenance and expenses of proceeding, as the case may be, from her husband
under this section if she is living in adultery, or if, without any sufficient reason, she
refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section
is living in adultery, or that without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual consent, the Magistrate shall
cancel the order.” (emphasis supplied) In Chaturbhuj v Sitabai7 this Court held that
the object of maintenance proceedings is not to punish a person for his past neglect,
but to prevent vagrancy and destitution of a deserted wife by providing her food,
clothing and shelter by a speedy remedy. Section 125 of the Cr.P.C. is a measure of
social justice especially enacted to protect women and children, and falls within the
constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution.
Proceedings under Section 125 of the Cr.P.C. are summary in nature. In Bhuwan Mohan Singh v
Meena & Ors.8 this Court held that Section 125 of the Cr.P.C. was conceived to ameliorate the agony,
anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable
arrangements could be made to enable her to sustain herself and the children. Since it is the
sacrosanct duty of the husband to provide financial support to the wife and minor children, the
husband was required to earn money even by physical labour, if he is able-bodied, and could not
avoid his obligation, except on any legally permissible ground mentioned in the statute.
The issue whether presumption of marriage arises when parties are in a live-in relationship for a
long period of time, which would give rise to a claim u/S. 125 Cr.P.C. came up for consideration in
Chanmuniya v Virendra Kumar Singh Kushwaha & Anr. 9 before the Supreme Court. It was held
that where a man and a woman have cohabited for a long period of time, in the absence of legal
necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not
be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage,
without undertaking the duties and obligations of such marriage. A broad and expansive
interpretation must be given to the term “wife,” to include even those cases where a man and woman
have been living together as husband and wife for a reasonably long period of time. Strict proof of
marriage should not be a pre-condition for grant of (2008) 2 SCC 316.
maintenance u/S. 125 Cr.P.C. The Court relied on the Malimath Committee Report on Reforms of
Criminal Justice System published in 2003, which recommended that evidence regarding a man and
woman living together for a reasonably long period, should be sufficient to draw the presumption of
marriage.
The law presumes in favour of marriage, and against concubinage, when a man and woman cohabit
continuously for a number of years. Unlike matrimonial proceedings where strict proof of marriage
is essential, in proceedings u/S. 125 Cr.P.C. such strict standard of proof is not necessary.10
(e) Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”) The D.V. Act stands on a
separate footing from the laws discussed hereinabove. The D.V. Act provides relief to an aggrieved
woman who is subjected to “domestic violence.” The “aggrieved person” has been defined by Section
2(a) to mean any woman who is, or has been, in a domestic relationship with the respondent, and
alleges to have been subjected to any act of domestic violence. Section 2(f) defines “domestic
relationship” to include a relationship between two persons who live, or have at any point of time
lived together in a shared household, when they are related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption, or are family members living together as a joint
family.
Section 2(q) of the Act defined “respondent” to mean an “adult male person” who is, or has been, in
a domestic relationship with the aggrieved woman. In Hiral P. Harsora & Ors. v Kusum
Narottamdas Harsora & Ors.11 this Court held that the “respondent” could also be a female in a
domestic relationship with the aggrieved person. Section 3 of the D.V. Act gives a gender- neutral
definition to “domestic violence”. Physical abuse, verbal abuse, emotional abuse and economic
abuse can also be inflicted by women against other women. Even sexual abuse may, in a given fact
circumstance, be by one woman on another. Section 17(2) provides that the aggrieved person cannot
be Kamala & Ors. v. M.R. Mohan Kumar (2019) 11 SCC 491.
evicted or excluded from a “shared household”, or any part of it by the “respondent”, save in
accordance with the procedure established by law. If “respondent” is to be read as only an adult
male person, women who evict or exclude the aggrieved person would then not be covered by the
ambit of the Act, and defeat the very object, by putting forward female persons who can evict or
exclude the aggrieved woman from the shared household. The Court struck down the words “adult
male” before the word “person” in Section 2(q) of the 2005 Act, and deleted the proviso to Section
2(q), as being contrary to the object of the Act.
The expression “relationship in the nature of marriage” as being akin to a common law or a de facto
marriage, came up for consideration in D. Velusamy v D. Patchaiammal.12 It was opined that a
common law marriage is one which requires that although a couple may not be formally married :
(a) the couple hold themselves out to society as being akin to spouses; (b) the parties must be of
legal age to marry; (c) the parties must be otherwise qualified to enter into a legal marriage,
including being unmarried; and (d) the parties must have voluntarily cohabited, and held
themselves out to the world as being akin to spouses for a significant period of time. However, not
all live-in relationships would amount to a relationship in the nature of marriage to avail the benefit
of D.V. Act. Merely spending week-ends together, or a one-night stand, would not make it a
“domestic relationship”.
For a live-in relationship to fall within the expression “relationship in the nature of marriage”, this
Court in Indra Sarma v. V.K.V. Sarma13 laid down the following guidelines : (a) duration of period
of relationship; (b) shared household; (c) domestic arrangements; (d) pooling of resources and
financial arrangements; (e) sexual relationship; (f) children; (g) socialisation in public and
(h) intention and conduct of the parties. The Court held that these guidelines were only indicative,
and not exhaustive.
“Domestic violence” has been defined in Section 3 of the Act, which includes economic abuse as
defined in Explanation 1 (iv) to Section 3, as :
“Economic abuse which means deprivation of all or any economic or financial resources, to which
the aggrieved person is entitled under any law or custom, whether payable under an order of a Court
or otherwise, or which the aggrieved person requires out of necessity, including but not limited to
household necessities for the aggrieved person, or her children.” Section 17 by a non-obstante clause
provides that notwithstanding anything contained in any other law for the time being in force, every
woman in a domestic relationship shall have the right to reside in the “shared household”,
irrespective of whether she has any right, title or beneficial interest in the same. Section 17 reads as :
(1) Notwithstanding anything contained household: in any other law for the time
being in force, every woman in a domestic relationship shall have the right to reside
in the shared household, whether or not she has any right, title or beneficial interest
in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household
or any part of it by the respondent save in accordance with the procedure established
by law.” Section 19 deals with residence orders, grant of injunctive reliefs, or for
alternate accommodation / payment of rent by the respondent.
A three-judge bench of this Court in Satish Chander Ahuja v Sneha Ahuja14 has overruled the
judgment in S.R.Batra v Taruna Batra,15 wherein a two judge bench held that the wife is entitled to
claim a right of residence in a “shared household” u/S.17 (1), which would only mean the house
belonging to, or taken on rent by the husband, or the house which belongs to the joint family of
which the husband is a member. In Satish Chander Ahuja (supra), the Court has held that although
the judgment in S.R. Batra (supra) noticed the definition of shared household under Section 2(s), it
did not advert to different parts of the definition, which makes it clear that there was no
requirement for the shared household to be owned singly or jointly by the husband, or taken on rent
by the husband. If Decided on 15.10.2020 in C.A. No. 2483/2020 by a bench comprising of Hon’ble
Justices Ashok Bhushan, R. Subhash Reddy and M.R.Shah.
the interpretation given in S.R. Batra is accepted, it would frustrate the object of the Act. The Court
has taken the view that the definition of “shared household” in Section 2(s) is an exhaustive
definition. The “shared household” is the household which is the dwelling place of the aggrieved
person in present time. If the definition of “shared household” in Section 2(s) is read to mean all the
houses where the aggrieved person has lived in a domestic relationship alongwith the relatives of the
husband, there will be a number of shared households, which was never contemplated by the
legislative scheme. The entire scheme of the legislation is to provide immediate relief to the
aggrieved person with respect to the shared household where the aggrieved woman lives or has
lived. The use of the expression “at any stage has lived”, is with the intent of not denying protection
to an aggrieved woman merely on the ground that she was not living there on the date of the
application, or on the date when the Magistrate passed the order u/S. 19. The words “lives, or at any
stage has lived in a domestic relationship” has to be given its normal and purposeful meaning.
Living of the woman in a household must refer to a living which has some permanency. Mere
fleeting or casual living at different places would not make it a shared household. The intention of
the parties and the nature of living, including the nature of the household, must be considered, to
determine as to whether the parties intended to treat the premises as a “shared household” or not.
Section 2(s) r.w. Sections 17 and 19 grant an entitlement in favour of an aggrieved woman to the
right of residence in a “shared household”, irrespective of her having any legal interest in the same
or not. From the definition of “aggrieved person” and “respondent”, it was clear that :
(i) it is not the requirement of law that the aggrieved person may either own the
premises jointly or singly, or by tenanting it jointly or singly;
(ii) the household may belong to a joint family of which the respondent is a member,
irrespective of whether the respondent or the aggrieved person has any right, title, or
interest in the shared household;
(iii) the shared household may either be owned, or tenanted by the respondent singly
or jointly.
The right to residence u/S. 19 is, however, not an indefeasible right, especially when a
daughter-in-law is claiming a right against aged parents-in- law. While granting relief u/S. 12 of the
D.V. Act, or in any civil proceeding, the court has to balance the rights between the aggrieved
woman and the parents- in-law.
(1) While disposing of an application under sub-section (1) of section 12, the
Magistrate may direct the respondent to pay monetary relief to meet the expenses
incurred and losses suffered by the aggrieved person and any child of the aggrieved
person as a result of domestic violence and such relief may include, but is not limited
to,-
(c)the loss caused due to destruction, damage or removal of any property from the
control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including
an order under or in addition to an order of maintenance under section 125 of the
Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in
force.
(2) The monetary relief granted under this section shall be adequate, fair and
reasonable and consistent with the standard of living to which the aggrieved person is
accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment
or monthly payments of maintenance, as the nature and circumstances of the case
may require.” (emphasis supplied) Section 20(1)(d) provides that maintenance
granted under the D.V. Act to an aggrieved woman and children, would be given
effect to, in addition to an order of maintenance awarded under Section 125 of the
Cr.P.C., or any other law in force.
Under sub-section (6) of Section 20, the Magistrate may direct the employer or debtor of the
respondent, to directly pay the aggrieved person, or 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
Section 22 provides that the Magistrate may pass an order directing the respondent to pay
compensation and damages for the injuries, including mental torture and emotional distress, caused
by the acts of domestic violence perpetrated by the respondent.
Section 23 provides that the Magistrate may grant an ex parte order, including an order under
Section 20 for monetary relief. The Magistrate must be satisfied that the application filed by the
aggrieved woman discloses that the respondent is committing, or has committed an act of domestic
violence, or that there is a likelihood that the respondent may commit an act of domestic violence.
In such a case, the Magistrate is empowered to pass an ex parte order on the basis of the affidavit of
the aggrieved woman.
Section 26 of the D.V. Act provides that any relief available under Sections 18, 19, 20, 21 and 22 may
also be sought in any legal proceeding before a Civil Court, Family Court or Criminal Court.
Sub-section (2) of Section 26 provides that the relief mentioned in sub-section (1) may be sought in
addition to, and alongwith any other relief that the aggrieved person may seek in a suit or legal
proceeding before a civil or criminal court. Section 26 (3) provides that in case any relief has been
obtained by the aggrieved person in any proceeding other than proceedings under this Act, the
aggrieved woman would be bound to inform the Magistrate of the grant of such relief.
Section 36 provides that the D.V. Act shall be in addition to, and not in derogation of the provisions
of any other law for the time being in force.
(i) Some High Courts have taken the view that since each proceeding is distinct and independent of
the other, maintenance granted in one proceeding cannot be adjusted or set-off in the other. For
instance, in Ashok Singh Pal v Manjulata,16 the Madhya Pradesh High Court held that the remedies
available to an aggrieved person under S. 24 of the HMA is independent of S. 125 of the Cr.P.C. In an
AIR 2008 MP 139.
application filed by the husband for adjustment of the amounts awarded in the two proceedings, it
was held that the question as to whether adjustment is to be granted, is a matter of judicial
discretion to be exercised by the Court. There is nothing to suggest as a thumb rule which lays down
as a mandatory requirement that adjustment or deduction of maintenance awarded u/S. 125 Cr.P.C.
must be off-set from the amount awarded under S.24 of the HMA, or vice versa.
A similar view was taken by another single judge of the Madhya Pradesh High Court in Mohan
Swaroop Chauhan v Mohini.17 Similarly, the Calcutta High Court in Sujit Adhikari v Tulika
Adhikari18 held that adjustment is not a rule. It was held that the quantum of maintenance
determined by the Court under HMA is required to be added to the quantum of maintenance u/S.
125 Cr.P.C.
A similar view has been taken in Chandra Mohan Das v Tapati Das19, wherein a challenge was made
on the point that the Court ought to have adjusted the amount awarded in a proceeding under S.125
Cr.P.C., while determining the maintenance to be awarded under S.24 of the HMA, 1955. It was held
that the quantum of maintenance determined under S.24 of HMA was to be paid in addition to the
maintenance awarded in a proceeding under S.125 Cr.P.C.
(ii) On the other hand, the Bombay and Delhi High Courts, have held that in case of parallel
proceedings, adjustment or set-off must take place.
The Bombay High Court in a well-reasoned judgment delivered in Vishal v Aparna & Anr.,20 has
taken the correct view. The Court was considering the issue whether interim monthly maintenance
awarded under Section 23 r.w. Section 20 (1)(d) of the D.V. Act could be adjusted against the
maintenance awarded under Section 125 Cr.P.C. The Family Court held that the order passed under
the D.V. Act and the Cr.P.C. were both independent proceedings, and adjustment was not
permissible. The Bombay High Court set aside the judgment of the Family Court, and held that
Section 20(1)(d) of the D.V. Act makes it clear (2016) 2 MP LJ 179.
that the maintenance granted under this Act, would be in addition to an order of maintenance under
Section 125 Cr.P.C., and any other law for the time being in force. Sub-section (3) of Section 26 of
the D.V. Act enjoins upon the aggrieved person to inform the Magistrate, if she has obtained any
relief available under Sections 18, 19, 20, 21 and 22, in any other legal proceeding filed by her,
whether before a Civil Court, Family Court, or Criminal Court. The object being that while granting
relief under the D.V. Act, the Magistrate shall take into account and consider if any similar relief has
been obtained by the aggrieved person. Even though proceedings under the D.V. Act may be an
independent proceeding, the Magistrate cannot ignore the maintenance awarded in any other legal
proceedings, while determining whether over and above the maintenance already awarded, any
further amount was required to be granted for reasons to be recorded in writing.
“18. What I intend to emphasize is the fact that the adjustment is permissible and the
adjustment can be allowed of the lower amount against the higher amount. Though
the wife can simultaneously claim maintenance under the different enactments, it
does not in any way mean that the husband can be made liable to pay the
maintenance awarded in each of the said proceedings.” (emphasis supplied) It was
held that while determining the quantum of maintenance awarded u/S.125 Cr.P.C.,
the Magistrate would take into consideration the interim maintenance awarded to the
aggrieved woman under the D.V. Act.
The issue of overlapping jurisdictions under the HMA and D.V. Act or Cr.P.C. came
up for consideration before a division bench of the Delhi High Court in RD v BD 21
wherein the Court held that maintenance granted to an aggrieved person under the
D.V. Act, would be in addition to an order of maintenance u/S. 125 Cr.P.C., or under
the HMA. The legislative mandate envisages grant of maintenance to the wife under
various statutes. It was not the intention of the legislature that once an order is
passed in either of the 2019 VII AD (Delhi) 466.
“16. A conjoint reading of the aforesaid Sections 20, 26 and 36 of DV Act would
clearly establish that the provisions of DV Act dealing with maintenance are
supplementary to the provisions of other laws and therefore maintenance can be
granted to the aggrieved person (s) under the DV Act which would also be in addition
to any order of maintenance arising out of Section 125 of Cr.P.C.
17. On the converse, if any order is passed by the Family Court under Section 24 of
HMA, the same would not debar the Court in the proceedings arising out of DV Act or
proceedings under Section 125 of Cr.P.C. instituted by the wife/aggrieved person
claiming maintenance. However, it cannot be laid down as a proposition of law that
once an order of maintenance has been passed by any Court then the same cannot be
re-adjudicated upon by any other Court. The legislative mandate envisages grant of
maintenance to the wife under various statutes such as HMA, Hindu Adoption and
Maintenance Act, 1956 (hereinafter referred to as 'HAMA'), Section 125 of Cr.P.C. as
well as Section 20 of DV Act. As such various statutes have been enacted to provide
for the maintenance to the wife and it is nowhere the intention of the legislature that
once any order is passed in either of the proceedings, the said order would debar re
adjudication of the issue of maintenance in any other Court.” (emphasis supplied)
The Court held that u/S. 20(1)(d) of the D.V. Act, maintenance awarded to the
aggrieved woman under the D.V. is in addition to an order of maintenance provided
u/S. 125 Cr.P.C. The grant of maintenance under the D.V. Act would not be a bar to
seek maintenance u/S. 24 of HMA.
Similarly, in Tanushree & Ors. v A.S.Moorthy,22 the Delhi High Court was considering a case where
the Magistrate’s Court had sine die adjourned the proceedings u/S. 125 Cr.P.C. on the ground that
parallel proceedings for maintenance under the D.V. Act were pending. In an appeal filed by the wife
before the High Court, it was held that a reading of Section 20(1)(d) of the D.V. Act indicates that
while considering an application u/S. 12 of the D.V. Act, the 2018 SCC OnLine Del 7074.
Court would take into account an order of maintenance passed u/S. 125 Cr.P.C., or any other law for
the time being in force. The mere fact that two proceedings were initiated by a party, would not
imply that one would have to be adjourned sine die. There is a distinction in the scope and power
exercised by the Magistrate under S.125, Cr.P.C. and the D.V. Act. With respect to the overlap in
both statutes, the Court held :
“5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two
proceedings are independent of each other and have different scope, though there is
an overlap. Insofar as the overlap is concerned, law has catered for that eventuality
and laid down that at the time of consideration of an application for grant of
maintenance under Section 12 of the D.V. Act, the maintenance fixed under Section
125 Cr.P.C. shall be taken into account.” (emphasis supplied) The issue whether
maintenance u/S. 125 Cr.P.C. could be awarded by the Magistrate, after permanent
alimony was granted to the wife in the divorce proceedings, came up for
consideration before the Supreme Court in Rakesh Malhotra v Krishna Malhotra.23
The Court held that once an order for permanent alimony was passed, the same could
be modified by the same court by exercising its power u/S. 25(2) of HMA. The Court
held that :
“16. Since the Parliament has empowered the Court Under Section 25(2) of the Act
and kept a remedy intact and made available to the concerned party seeking
modification, the logical sequitur would be that the remedy so prescribed ought to be
exercised rather than creating multiple channels of remedy seeking maintenance.
One can understand the situation where considering the exigencies of the situation
and urgency in the matter, a wife initially prefers an application Under Section 125 of
the Code to secure maintenance in order to sustain herself. In such matters the wife
would certainly be entitled to have a full-fledged adjudication in the form of any
challenge raised before a Competent Court either under the Act Or similar such
enactments. But the reverse cannot be the accepted norm.” The Court directed that
the application u/S. 125 Cr.P.C. be treated as an application u/S. 25(2) of HMA and
be disposed of accordingly.
(iii) In Nagendrappa Natikar v Neelamma24 this Court considered a case where the
wife instituted a suit under Section 18 of HAMA, after signing a consent letter in
proceedings u/S. 125 Cr.P.C., stating that she would not make any further claims for
maintenance against the husband. It was held that the proceedings u/S. 125 Cr.P.C.
were summary in nature, and were intended to provide a speedy remedy to the wife.
Any order passed u/S. 125 Cr.P.C. by compromise or otherwise would not foreclose
the remedy u/S. 18 of HAMA.
proceedings. The Supreme Court held that the maintenance awarded under Section
125 Cr.P.C. must be adjusted against the amount awarded in the matrimonial
proceedings under HMA, and was not to be given over and above the same.
Directions on overlapping jurisdictions It is well settled that a wife can make a claim for
maintenance under different statutes. For instance, there is no bar to seek maintenance both under
the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to
direct the husband to pay maintenance under each of the proceedings, independent of the relief
granted in a previous proceeding. If maintenance is awarded to the wife in a previously instituted
proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for
maintenance, which may be filed under another enactment. While deciding the quantum of
maintenance in the subsequent proceeding, the civil court/family court shall take into account the
maintenance awarded in any previously instituted proceeding, and determine the maintenance
payable to the claimant.
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in
different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall
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.
24.09.2001), and the third proviso to Section 125 Cr.P.C. (inserted vide Act 50 of 2001 w.e.f.
24.09.2001) provide that the proceedings for interim maintenance, shall as far as possible, be
disposed of within 60 days’ from the date of service of notice on the contesting spouse. Despite the
statutory provisions granting a time-bound period for disposal of proceedings for interim
maintenance, we find that applications remain pending for several years in most of the cases. The
delays are caused by various 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. Pendency of applications for maintenance at the interim stage for several
years defeats the very object of the legislation.
(ii) 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
Indian Kanoon - http://indiankanoon.org/doc/117541087/ 24
Rajnesh vs Neha on 4 November, 2020
part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to
conceal his actual income.
It has therefore become 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 / relatives during the interregnum to sustain herself and the minor children, till she begins
receiving interim maintenance.
(iii) In the first instance, 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 a Family Court in the discharge of its functions. Given the large and growing
percentage of matrimonial litigation, it has become necessary that the provisions of Section 5 and 6
of the Family Courts Act are given effect to, by providing for the appointment of marriage
counsellors 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.
(iv) 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.
(v) 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.
(vi) The Delhi High Court in a series of judgments beginning with Puneet Kaur v Inderjit Singh
Sawhney26 and followed in Kusum Sharma v Mahinder Kumar Sharma27 (“Kusum Sharma I”)
directed that applications for maintenance under the HMA, HAMA, D.V. Act, and the Cr.P.C. be
accompanied with an Affidavit of assets, income and expenditure as prescribed. In Kusum Sharma
II,28 the Court framed a format of Affidavit of assets, income and expenditure to be filed by both
parties at the threshold of a matrimonial litigation. This procedure was extended to maintenance
proceedings under the Special Marriage Act and the Indian Divorce Act, 1869. In Kusum Sharma
III, 29 the Delhi High Court modified the format of the Affidavit, and extended it to maintenance
proceedings under the Guardians & Wards Act, 1890 and the Hindu Minority & Guardianship Act,
1956. In Kusum Sharma IV 30 the Court took notice that the filing of Affidavits alongwith pleadings
gave an unfair advantage to the party who files ILR (2012) I Delhi 73.
MANU/DE/2406/2017.
the affidavit subsequently. In this judgment, it was clarified that the Affidavit must be filed
simultaneously by both parties. In Kusum Sharma V31 the Court consolidated the format of the
Affidavits in the previous judgments, and directed that the same be filed in maintenance
proceedings.
(vii) Given the vastly divergent demographic profile of our country, which comprises of metropolitan
cities, urban areas, rural areas, tribal areas, etc., it was considered appropriate to elicit responses
from the various State Legal Services Authorities (“SLSAs”).
This Court vide its Order dated 17.12.2019 requested the National Legal Services Authority
(“NALSA”) to submit a report of the suggestions received from the SLSAs for framing guidelines on
the Affidavit of Disclosure of the Assets and Liabilities to be filed by the parties.
(viii) The NALSA submitted a comprehensive report dated 17.02.2020 containing suggestions from
all the State Legal Service Authorities throughout the country. We find the various suggestions made
by the SLSAs to be of great assistance in finalizing the Affidavit of Disclosure which can be used by
the Family Courts for determining the quantum of maintenance to be paid.
(ix) Keeping in mind the varied landscape of the country, and the recommendations made by the
SLSAs, it was submitted that a simplified Affidavit of Disclosure may be framed to expedite the
process of determining the quantum of maintenance.
We feel that the Affidavit to be filed by parties residing in urban areas, would require to be entirely
different from the one applicable to rural areas, or tribal areas.
For this purpose, a comprehensive Affidavit of Disclosure of Assets and Liabilities is being attached
as Enclosure I and II to this judgment.
(x) We have been informed by the Meghalaya State Legal Services Authority that the State of
Meghalaya has a predominantly tribal population, which follows a matrilineal system of society. The
population is comprised of three tribes viz. the Khasis, Jaintia and Garo tribes. In Meghalaya, the
youngest daughter is the Decided by the Delhi High Court vide Judgment dated 06.08.2020.
custodian of the property, and takes important decisions relating to family property in consultation
with her maternal uncle. The majority of the population is employed in the unorganized sector, such
as agriculture. Under Section 10(26) of the Income Tax Act 1961, the tribals residing in this State are
exempted from payment of income tax.
The Meghalaya State Legal Services Authority has suggested that the declaration in Meghalaya be
made in the format enclosed with this judgment as Enclosure III.
(xi) Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and
Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame
guidelines in exercise of our powers under Article 136 read with Article 142 of the Constitution of
India :
(b) The applicant making the claim for maintenance will be required to file a concise
application accompanied with the Affidavit of Disclosure of Assets;
(c) The respondent must submit the reply alongwith the Affidavit of Disclosure
within a maximum period of four weeks. The Courts may not grant more than two
opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to
the respondent.
If the respondent delays in filing the reply with the Affidavit, and seeks more than two
adjournments for this purpose, the Court may consider exercising the power to strike off the defence
of the respondent, if the conduct is found to be wilful and contumacious in delaying the
proceedings.32 On the failure to file the Affidavit within the prescribed time, the Family Court may
proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and
the pleadings on record;
Kaushalya v Mukesh Jain, Criminal Appeal Nos. 1129-1130 / 2019 decided vide Judgment
24.07.2019.
(d) The above format may be modified by the concerned Court, if the 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.
(e) If apart from the information contained in the Affidavits of Disclosure, any further information is
required, the concerned Court may pass appropriate orders in respect thereof.
(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the
aggrieved party may seek permission of the Court to serve interrogatories, and seek production of
relevant documents from the opposite party under Order XI of the CPC;
On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165
of the Evidence Act 1872, if it considers it necessary to do so;
The income of one party is often not within the knowledge of the other spouse. The Court may
invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of
the spouse are within the personal knowledge of the party concerned.
(g) 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.
(h) The pleadings made in the applications for maintenance and replies filed should be responsible
pleadings; if false statements and misrepresentations are made, the Court may consider initiation of
proceeding u/S. 340 Cr.P.C., and for contempt of Court.
(i) In case the parties belong to the Economically Weaker Sections (“EWS”), or are living Below the
Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be
dispensed with.
(j) The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to
decide the I.A. for Interim Maintenance by a reasoned order, within a period of four to six months at
the latest, after the Affidavits of Disclosure have been filed before the court.
(k) A professional Marriage Counsellor must be made available in every Family Court.
Permanent alimony
(i) Parties may lead oral and documentary evidence with respect to income, expenditure, standard of
living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.
(ii) In contemporary society, where several marriages do not last for a reasonable length of time, it
may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the
rest of her life. The duration of the marriage would be a relevant factor to be taken into
consideration for determining the permanent alimony to be paid.
(iii) Provision for grant of reasonable expenses for the marriage of children must be made at the
time of determining permanent alimony, where the custody is with the wife. The expenses would be
determined by taking into account the financial position of the husband and the customs of the
family.
(iv) If there are any trust funds / investments created by any spouse / grandparents in favour of the
children, this would also be taken into consideration while deciding the final child support.
(i) The objective of granting interim / permanent alimony is to ensure that the dependant 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 inter alia are 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.33 In Manish Jain v Akanksha
Jain 34 this Court held that the financial position of the parents of the applicant-wife, would not be
material while determining the quantum of maintenance. An order of interim maintenance is
conditional on the circumstance that the wife or husband who makes a claim has no independent
income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is
educated and could support herself. The court must take into consideration the status of the parties
and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual
situations; the Court should mould the claim for maintenance based on various factors brought
before it.
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for
his own maintenance, and dependant family members whom he is obliged to maintain under the
law, liabilities if any, would Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7
SCC 7. Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.
(ii) A careful and just balance must be drawn between all relevant factors.
The test for determination of maintenance in matrimonial disputes depends on the financial status
of the respondent, and the standard of living that the applicant was accustomed to in her
matrimonial home.36 The maintenance amount awarded must be reasonable and realistic, and
avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so
extravagant which becomes oppressive and unbearable for the respondent, nor should it be so
meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that
the wife is able to maintain herself with reasonable comfort.
(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the
quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors
which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants
of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv)
value of the claimant’s property and any income derived from such property, (v) income from
claimant’s own earning or from any other source.
(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman
and / or the children must be adequate, fair, reasonable, and consistent with the standard of living
to which the aggrieved woman was accustomed to in her matrimonial home.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde37 laid down the following factors to
be considered for determining maintenance :
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed
in the matrimonial home.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment
etc. of the 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.
11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/
24 of the Act. 17.”
(vi) Apart from the aforesaid factors enumerated hereinabove, certain additional
factors would also be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties In a marriage of long duration, where parties have endured the
relationship for several years, it would be a relevant factor to be taken into consideration. On
termination of the relationship, if the wife is educated and professionally qualified, but had to give
up her employment opportunities to look after the needs of the family being the primary caregiver to
the minor children, and the elder members of the family, this factor would be required to be given
due importance. This is of particular relevance in contemporary society, given the highly
competitive industry standards, the separated wife would be required to undergo fresh training to
acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate
herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into
the work-force after a break of several years.
(b) Right to residence Section 17 of the D.V. Act grants an aggrieved woman the right to live in the
“shared household”. Section 2(s) defines “shared household” to include the household where the
aggrieved woman lived at any stage of the domestic relationship; or the household owned and
rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which
the respondent is a member.
The right of a woman to reside in a “shared household” defined under Section 2(s) entitles the
aggrieved woman for right of residence in the shared household, irrespective of her having any legal
interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja 38 (supra) held that “shared
household” referred to in Section 2(s) is the shared household of the aggrieved person where she
was living at the time when the application was filed, or at any stage lived in a domestic relationship.
The living of the aggrieved woman in the shared household must have a degree of permanence. A
mere fleeting or casual living at different places would not constitute a “shared household”. It is
important to consider the intention of the parties, nature of living, and nature of the household, to
determine whether the premises is a “shared household”. Section 2(s) read with Sections 17 and 19
of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her
having any legal interest in the same. There is no requirement of law that the husband should be a
member of the joint family, or that the household must belong to the joint family, in which he or the
aggrieved woman has any right, title or interest. The shared household may not necessarily be
owned or tenanted by the husband singly or jointly. Section 19 (1)(f) of the D.V. Act provides that the
Magistrate may pass a residence order inter alia directing the respondent to secure the same level of
alternate accommodation for the aggrieved woman as enjoyed by her in the shared household.
While passing such an order, the Magistrate may direct the Civil Appeal No. 2483 / 2020 decided
vide Judgment dated 15.10.2020.
respondent to pay the rent and other payments, having regard to the financial needs and resources
of the parties.
(c) Where wife is earning some income The Courts have held that if the wife is earning, it cannot
operate as a bar from being awarded maintenance by the husband. The Courts have provided
guidance on this issue in the following judgments.
In Shailja & Anr. v Khobbanna,39 this Court held that merely because the wife is capable of earning,
it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The
Court has to determine whether the income of the wife is sufficient to enable her to maintain herself,
in accordance with the lifestyle of her husband in the matrimonial home.40 Sustenance does not
mean, and cannot be allowed to mean mere survival.41 In Sunita Kachwaha & Ors. v Anil Kachwaha
42 the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband
raised a contention that since the wife had sufficient income, she would not require financial
assistance from the husband. The Supreme Court repelled this contention, and held that merely
because the wife was earning some income, it could not be a ground to reject her claim for
maintenance. The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay Kale43 while
relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn,
nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.
An able-bodied husband must be presumed to be capable of earning sufficient money to maintain
his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain
his family, as held by the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander (2018)
12 SCC 199.
See also Decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016 Cri LJ 4794.
Prakash.44 The onus is on the husband to establish with necessary material that there are sufficient
grounds to show that he is unable to maintain the family, and discharge his legal obligations for
reasons beyond his control. If the husband does not disclose the exact amount of his income, an
adverse inference may be drawn by the Court.
This Court in Shamima Farooqui v Shahid Khan45 cited the judgment in Chander Prakash (supra)
with approval, and held that the obligation of the husband to provide maintenance stands on a
higher pedestal than the wife.
(d) Maintenance of minor children The living expenses of the child would include expenses for food,
clothing, residence, medical expenses, education of children. Extra coaching classes or any other
vocational training courses to complement the basic education must be factored in, while awarding
child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular / coaching
classes, and not an overly extravagant amount which may be claimed. Education expenses of the
children must be normally borne by the father. If the wife is working and earning sufficiently, the
expenses may be shared proportionately between the parties.
(e) Serious disability or ill health Serious disability or ill health of a spouse, child / children from the
marriage / dependant relative who require constant care and recurrent expenditure, would also be a
relevant consideration while quantifying maintenance.
IV 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. 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. 46 In the absence of a
uniform regime, there is a vast variance in the practice adopted by the Family Courts in the country,
with respect to the date from which maintenance must be awarded. The divergent views taken by
the Family Courts are : first, from the date on which the application for maintenance was filed;
second, the date of the order granting maintenance; third, the date on which the summons was
served upon the respondent.
(a) From date of application The view that maintenance ought to 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 dependant 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.
The Orissa High Court in Susmita Mohanty v Rabindra Nath Sahu47 held that the legislature
intended to provide a summary, quick and comparatively inexpensive remedy to the neglected
person. Where a litigation is prolonged, either on account of the conduct of the opposite party, or
due to the heavy docket in Courts, or for unavoidable reasons, it would be unjust and contrary to the
object of the provision, to provide maintenance from the date of the order.
In Kanhu Charan Jena v. Smt. Nirmala Jena48 , the Orissa High Court was considering an
application u/S. 125 Cr.P.C., wherein it was held that even though K. Sivaram v K. Mangalamba &
Ors.1989 (1) APLJ (HC) 604.
the decision to award maintenance either from the date of application, or from the date of order,
was within the discretion of the Court, it would be appropriate to grant maintenance from the date
of application. This was followed in Arun Kumar Nayak v Urmila Jena,49 wherein it was reiterated
that dependents were entitled to receive maintenance from the date of application.
The Madhya Pradesh High Court in Krishna Jain v Dharam Raj Jain50 held that a wife may set up a
claim for maintenance to be granted from the date of application, and the husband may deny it. In
such cases, the Court may frame an issue, and decide the same based on evidence led by parties. The
view that the “normal rule” was to grant maintenance from the date of order, and the exception was
to grant maintenance from the date of application, would be to insert something more in Section
125(2) Cr.P.C., which the Legislature did not intend. Reasons must be recorded in both cases. i.e.
when maintenance is awarded from the date of application, or when it is awarded from the date of
order.
The law governing payment of maintenance u/S. 125 Cr.P.C. from the date of application, was
extended to HAMA by the Allahabad High Court in Ganga Prasad Srivastava v Additional District
Judge, Gonda & Ors.51 The Court held that the date of application should always be regarded as the
starting point for payment of maintenance. The Court was considering a suit for maintenance u/S.
18 of HAMA, wherein the Civil Judge directed that maintenance be paid from the date of judgment.
The High Court held that the normal inference should be that the order of maintenance would be
effective from the date of application. A party seeking maintenance would otherwise be deprived of
maintenance due to the delay in disposal of the application, which may arise due to paucity of time
of the Court, or on account of the conduct of one of the parties. In this case, there was a delay of
seven years in disposing of the suit, and the wife could not be (2010) 93 AIC 726 (Ori).
made to starve till such time. The wife was held to be entitled to maintenance from the date of
application / suit.
The Delhi High Court in Lavlesh Shukla v Rukmani52 held that where the wife is unemployed and is
incurring expenses towards maintaining herself and the minor child / children, she is entitled to
receive maintenance from the date of application. Maintenance is awarded to a wife to overcome the
financial crunch, which occurs on account of her separation from her husband. It is neither a matter
of favour to the wife, nor any charity done by the husband.
(b) From the date of order The second view that maintenance ought to be awarded from the date of
order is based on the premise that the general rule is to award maintenance from the date of order,
and grant of maintenance from the date of application must be the exception. The foundation of this
view is based on the interpretation of Section 125(2) Cr.P.C. which provides :
“(2) Any such allowance for the maintenance or interim maintenance and expenses
for proceeding shall be payable from the date of the order, or, if so ordered, from the
date of the application for maintenance or interim maintenance and expenses of
proceeding, as the case may be.” (emphasis supplied) The words “or, if so ordered” in
Section 125 has been interpreted to mean that where the court is awarding
maintenance from the date of application, special reasons ought to be recorded.53 In
Bina Devi v State of U.P., 54 the Allahabad High Court on an interpretation of
S.125(2) of the Cr.P.C. held that when maintenance is directed to be paid from the
date of application, the Court must record reasons. If the order is silent, it will be
effective from the date of the order, for which reasons need not be recorded. The
Court held that Section 125(2) Cr.P.C. is prima facie clear that maintenance shall be
payable from the date of the order.
Crl.Rev.P. 851/2019 decided by the Delhi High Court vide Order dated 28.11.2019.
Bina Devi & Ors. v State of Uttar Pradesh & Ors. (2010) 69 ACC 19.
The Madhya Pradesh High Court in Amit Verma v Sangeeta Verma & Ors.55 directed that
maintenance ought to be granted from the date of the order.
(c) From the date of service of summons The third view followed by some Courts is that
maintenance ought to be granted from the date of service of summons upon the respondent.
The Kerala High Court in S. Radhakumari v K.M.K. Nair 56 was considering an application for
interim maintenance preferred by the wife in divorce proceedings filed by the husband. The High
Court held that maintenance must be awarded to the wife from the date on which summons were
served in the main divorce petition. The Court relied upon the judgment of the Calcutta High Court
in Samir Banerjee v Sujata Banerjee,57 and held that Section 24 of the HMA does not contain any
provision that maintenance must be awarded from a specific date. The Court may, in exercise of its
discretion, award maintenance from the date of service of summons.
The Orissa High Court in Gouri Das v Pradyumna Kumar Das58 was considering an application for
interim maintenance filed u/S. 24 HMA by the wife, in a divorce petition instituted by the husband.
The Court held that the ordinary rule is to award maintenance from the date of service of summons.
It was held that in cases where the applicant in the maintenance petition is also the petitioner in the
divorce petition, maintenance becomes payable from the date when summons is served upon the
respondent in the main proceeding.
In Kalpana Das v Sarat Kumar Das,59 the Orissa High Court held that the wife was entitled to
maintenance from the date when the husband entered appearance. The Court was considering an
application for interim maintenance u/S. 24 HMA in a petition for restitution of conjugal rights filed
by the wife. The Family Court awarded interim maintenance to the wife and minor child from the
date of the order. In an appeal filed by the wife and minor child seeking CRR No. 3542/2019,
decided by the Madhya Pradesh High Court vide Order dated 08.01.2020.
70 CWN 633.
maintenance from the date of application, the High Court held that the Family Court had failed to
assign any reasons in support of its order, and directed :
“9. …Learned Judge. Family Court has not assigned any reason as to why he passed
the order of interim maintenance w.e.f. the date of order. When admittedly the
parties are living separately and prima facie it appears that the Petitioners have no
independent source of income, therefore, in our view order should have been passed
for payment of interim maintenance from the date of appearance of the Opposite
Party-husband…” (emphasis supplied) Discussion and Directions The judgments
hereinabove reveal the divergent views of different High Courts on the date from
which maintenance must be awarded.
Even though a judicial discretion is conferred upon the Court to grant maintenance
either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it
would be appropriate to grant maintenance from the date of application in all cases,
including Section 125 Cr.P.C. In the practical working of the provisions relating to
maintenance, we find that there is significant delay in disposal of the applications for
interim maintenance for years on end. It would therefore be in the interests of justice
and fair play that maintenance is awarded from the date of the application.
In Shail Kumari Devi and Ors. v Krishnan Bhagwan Pathak60, this Court held that
the entitlement of maintenance should not be left to the uncertain date of disposal of
the case. The enormous delay in disposal of proceedings justifies the award of
maintenance from the date of application. In Bhuwan Mohan Singh v Meena61, this
Court held that repetitive adjournments sought by the husband in that case resulted
in delay of 9 years in the adjudication of the case. The delay in adjudication was not
only against human rights, but also against the basic embodiment of dignity of an
individual. The delay in the conduct of the proceedings would require grant of
maintenance to date back to the date of application.
The rationale of granting maintenance from the date of application finds its roots in
the object of enacting maintenance legislations, so as to enable the wife to overcome
the financial crunch which occurs on separation from the husband. Financial
constraints of a dependant spouse hampers their capacity to be effectively
represented before the Court. In order to prevent a dependant from being reduced to
destitution, it is necessary that maintenance is awarded from the date on which the
application for maintenance is filed before the concerned Court.
In Badshah v Urmila Badshah Godse 62 , the Supreme Court was considering the
interpretation of Section 125 Cr.P.C. The Court held :
“The direction of interim alimony and expenses of litigation under Section 24 is one
of urgency and it must be decided as soon as it is raised and the law takes care that
nobody is disabled from prosecuting or defending the matrimonial case by starvation
or lack of funds.”
(i) An application for execution of an Order of Maintenance can be filed under the
following provisions :
(a) Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family Courts
Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under
Section 24 of the Hindu Marriage Act (before the Family Court);
(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and
(ii) Section 18 of the Family Courts Act, 1984 provides that orders passed by the
Family Court shall be executable in accordance with the CPC / Cr.P.C.
(iii) Section 125(3) of the Cr.P.C provides that if the party against whom the order of
maintenance is passed fails to comply with the order of maintenance, the same shall
be recovered in the manner as provided for fines, and the Magistrate may award
sentence of imprisonment for a term which may extend to one month, or until
payment, whichever is earlier. Striking off the Defence
(i) Some Family Courts have passed orders for striking off the defence of the
respondent in case of non-payment of maintenance, so as to facilitate speedy disposal
of the maintenance petition.
In Kaushalya v Mukesh Jain 64 , the Supreme Court allowed a Family Court to strike off the defence
of the respondent, in case of non-payment of maintenance in accordance with the interim order
passed.
(ii) The Punjab & Haryana High Court in Bani v. Parkash Singh 65 was considering a case where the
husband failed to comply with the maintenance order, despite several notices, for a period of over
two years. The Court taking note of the power to strike off the defence of the respondent, held that :
"Law is not that powerless as not to bring the husband to book. If the husband has
failed to make the payment of maintenance and litigation expenses to wife, his
defence be struck out."
(iii) The Punjab & Haryana High Court in Mohinder Verma v Sapna, 66 discussed the issue of
striking off the defence in the following words :
“8. Section 24 of the Act empowers the matrimonial court to award maintenance
pendente lite and also litigation expenses to a needy and indigent spouse so that the
proceedings can be conducted without any hardship on his or her part. The
proceedings under this Section are summary in nature and confers a substantial right
on the applicant during the pendency of the proceedings. Where this amount is not
paid to the applicant, then the very object and purpose of this provision stands
defeated. No doubt, remedy of execution of decree or order passed by the
matrimonial court is available under Section 28A of the Act, but the same would not
be a bar to striking off the defence of the spouse who violates the interim order of
maintenance and litigation expenses passed by the said Court. In other words, the
striking off the defence of the spouse not honouring the court's interim order is the
instant relief to the needy one instead of waiting endlessly till its execution under
Section 28A of the Act. Where the spouse who is to pay maintenance fails to
discharge the liability, the other spouse cannot be forced to adopt time consuming
execution proceedings for realising the amount. Court cannot be a mute spectator
watching flagrant disobedience of the interim orders passed by it showing its
helplessness in its instant implementation. It would, thus, be appropriate even in the
absence of any specific provision to that effect in the Act, to strike off the defence of
the erring spouse in exercise of its inherent power under Section 151 of the Code of
Civil Procedure read with Section 21 of the Act rather than to leave the aggrieved
party to seek its enforcement through execution as execution is a long and arduous
procedure. Needless to say, the remedy under Section 28A of the Act regarding
execution of decree or interim order does not stand obliterated or extinguished by
striking off the defence of the defaulting spouse. Thus, where the spouse who is
directed to pay the maintenance and litigation Criminal Appeal Nos. 1129-1130 /
2019 decided vide Judgment dated 24.07.2019.
MANU/PH/3684/2014.
expenses, the legal consequences for its non-payment are that the defence of the said
spouse is liable to be struck off.” (emphasis supplied)
(iv) The Delhi High Court in Satish Kumar v Meena67 held that the Family Court had
inherent powers to strike off the defence of the respondent, to ensure that no abuse of
process of the court takes place.
The Delhi High Court in Smt. Santosh Sehgal v Shri Murari Lal Sehgal,68 framed the following issue
for consideration : “Whether the appeal against the decree of divorce filed by the appellant-wife can
be allowed straightway without hearing the respondent-husband in the event of his failing to pay
interim maintenance and litigation expenses granted to the wife during the pendency of the appeal.”
The reference was answered as follows :
“5.The reference to the portion of the judgment in Bani's case extracted here-
in-above would show that the Punjab and Haryana High Court and Orissa Page 2216
High Court have taken an unanimous view that in case the husband commits default
in payment of interim maintenance to his wife and children then he is not entitled to
any matrimonial relief in proceedings by or against him. The view taken by Punjab
and Haryana High Court in Bani's case has been followed by a Single Judge of this
Court in Satish Kumar v. Meena . We tend to agree with this view as it is in
consonance with the first principle of law. We are of the view that when a husband is
negligent and does not pay maintenance to his wife as awarded by the Court, then
how such a person is entitled to the relief claimed by him in the matrimonial
proceedings. We have no hesitation in holding that in case the husband fails to pay
maintenance and litigation expenses to his wife granted by the Court during the
pendency of the appeal, then the appeal filed by the wife against the decree of divorce
granted by the trial court in favor of the husband has to be allowed. Hence the
question referred to us for decision is answered in the affirmative.” The Court
concluded that if there was non-payment of interim maintenance, the defence of the
respondent is liable to be struck off, and the appeal filed by the appellant-wife can be
allowed, without hearing the respondent.
(v) The Punjab and Haryana High Court in Gurvinder Singh v Murti & Ors.69 was
considering a case where the trial court stuck off the defence of the husband for
non-payment of ad-interim maintenance. The High Court set aside the order of the
trial court, and held that instead of following the correct procedure for recovery of
interim maintenance as provided u/S. 125 (3) or Section 421 of the Cr.P.C., the trial
court erred in striking off the defence of the husband. The error of the court did not
assist in recovery of interim maintenance, but rather prolonged the litigation between
the parties.
(vi) The issue whether defence can be struck off in proceedings under Section 125
Cr.P.C. came up before the Madhya Pradesh High Court in Venkateshwar Dwivedi v
Ruchi Dwivedi.70 The Court held that neither Section 125(3) of the Cr.P.C, nor
Section 10 of the Family Courts Act either expressly or by necessary implication
empower the Magistrate or Family Court to strike off the defence. A statutory remedy
for recovery of maintenance was available, and the power to strike off defence does
not exist in a proceeding u/S. 125 Cr.P.C. Such power cannot be presumed to exist as
an inherent or implied power. The Court placed reliance on the judgment of the
Kerala High Court in Davis v Thomas,71 and held that the Magistrate does not
possess the power to strike off the defence for failure to pay interim maintenance.
XXI.
Karnataka High Court affirmed this view in Ravindra Kumar v Renuka & Anr. 2009 SCC OnLine
Kar
See also Sakeer Hussain T.P. v Naseera & Ors., 2016 (4) ILR (Kerala) 917.
Striking off the defence of the respondent is an order which ought to be passed in the last resort, if
the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife,
and minor children.
Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.
(i) where successive claims for maintenance are made by a party under different
statutes, the Court would 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;
(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed
therein, in the subsequent proceeding;
(iii) 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.
(b) Payment of Interim Maintenance The Affidavit of Disclosure of Assets and Liabilities annexed as
Enclosures I, II and III of this judgment, as may be applicable, 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.
(c) Criteria for determining the quantum of maintenance For determining the quantum of
maintenance payable to an applicant, the Court shall take into account the criteria enumerated in
Part B – III of the judgment.
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.
(d) Date from which maintenance is to be awarded We make it clear that maintenance in all cases
will be awarded from the date of filing the application for maintenance, as held in Part B – IV above.
Before we part with this judgment, we note our appreciation of the valuable assistance provided by
the Ld. Amici Curiae Ms. Anitha Shenoy and Mr. Gopal Sankaranarayanan, Senior Advocates in this
case.
A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of
all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be
displayed on the website of all District Courts / Family Courts / Courts of Judicial Magistrates for
awareness and implementation.
.……………………….
Enclosure I
Affidavit of Assets and Liabilities for Non-Agrarian Deponents I _________, d/o _______ or s/o
, aged about ______years, resident of , do hereby solemnly affirm and declare as under:
A. Personal Information
1. Name:
2. Age/Sex:
5. Date of marriage:
6. Date of separation:
2. Whether any maintenance has been awarded in any proceeding arising under the
D.V.Act, Cr.P.C., HMA, HAMA, etc.? If yes, provide details of the quantum of
maintenance awarded in the proceedings.
5. Whether any voluntary contribution towards maintenance has been made/ will be
made in the future? If yes, provide details of the same.
1. Whether either party or child /children is suffering from any physical / mental disability, or any
other serious ailment. If yes, produce medical records.
2. Whether any dependant family member has serious disability, requiring continuous medical
expenditure. If yes, produce disability certificate and approximate medical expenditure incurred on
such medical treatment.
3. Whether either party or child/children or any other dependent family member is suffering from
life-threatening diseases, which would entail expensive and regular medical expenditure? If yes,
provide details of the same along with summary of previous details of hospitalisation/medical
expenses incurred.
1. Number of children from the existing marriage / marital relationship/ previous marriage
a. Towards food, clothing and medical expenses b. Towards expenses for education, and a summary
of general expenses c. Towards expenses, if any, of any extra educational, vocational or professional
/ educational course, specialised training or special skills programme of dependent children.
d. Details of any loan, mortgage, charge incurred or instalment plan (being paid or payable), if any,
on account of any educational expenses of children.
5. Whether any voluntary contribution by either of the parties is being made towards these
educational expenses. If yes, provide details of the same. Also provide an estimate of any additional
contribution that may be required.
6. Whether any financial support is being provided by a third party for the educational expenses of
the children?
1. Name of employer:
2. Designation:
3. Monthly income:
4. If engaged in Government Service, furnish latest Salary Certificates or current Pay Slips or proof
of deposit in bank account, if being remitted directly by employer.
5. If engaged in the private sector, furnish a certificate provided by the employer stating the
designation and gross monthly income of such person, and Form 16 for the relevant period of
current employment.
6. If any perquisites, benefits, house rent allowance, travel allowance, dearness allowance or any
other service benefit is being provided by the employer during the course of current employment.
If yes, submit copies of the Income Tax Returns for the periods given below :
8. Income from other sources, such as rent, interest, shares, dividends, capital gains, FDRs, Post
office deposits, mutual funds, stocks, debentures, agriculture, or business, if any, alongwith TDS in
respect of any such income.
9. Furnish copies of Bank Statement of all accounts for the last 3 years.
4. Other joint properties of the parties (accounts/ investments/ FDR/ mutual funds, stocks,
debentures etc.), their value and status of possession:
7. Brief description of jewellery and ornaments of parties acquired during /after marriage
4. Actual amount borrowed, if any, and the amount paid upto date of filing the Affidavit:
5. Any other information which would be relevant to describe current liabilities of the Deponent.
5. In case of business of company, provide brief details of last audited balance sheet to indicate
profit and loss of the company in which such party is in business in the company.
6. In case of a partnership firm, provide details of the filings of the last Income Tax Return of
partnership.
7. In case of self-employed individual, provide the filings of the last Income Tax Return from any
such professional/business/vocational activity.
J. Information provided by the Deponent with respect to the income, assets and liabilities of the
other Spouse
2. Whether spouse is earning? If so, give particulars of the occupation and income of the spouse.
4. Particulars of assets and liabilities of spouse as known to the deponent, alongwith any supporting
documents.
K. Details of Applicant or the other Spouse, in case parties are Non-Resident Indians, Overseas
Citizens of India, Foreign Nationals or Persons living abroad outside India.
1. Details of Citizenship, Nationality and current place of residence, if the Applicant or other spouse
is residing abroad outside India, temporarily or permanently.
2. Details of current employment and latest income in foreign currency of such applicant/spouse,
duly supported by relevant documentation of employment and income from such foreign employer
or overseas institution by way of employment letter or testimonial from foreign employer or
overseas institution or latest relevant bank statement.
7. Any other relevant detail of expenses or liabilities, not covered under any of the above headings
and any other liabilities to any other dependant family members in India or abroad.
Declaration
1. I declare that I have made a full and accurate disclosure of my income, expenditure, assets and
liabilities from all sources. I further declare that I have no assets, income, expenditure and liabilities
other than as stated in this affidavit.
2. I undertake to inform this Court immediately with respect to any material change in my
employment, assets, income, expenses or any other information included in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt of Court, may
also constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code
punishable with imprisonment upto seven years and fine, and Section 209 of Indian Penal Code
punishable with imprisonment upto two years and fine. I have read and understood Sections 191,
193, 199 and 209 of the Indian Penal Code, 1860.
DEPONENT Verification Verified at ___on this _____day of _____ that the contents of the above
affidavit are true to my personal knowledge, no part of it is false and nothing material has been
concealed therefrom, whereas the contents of the above affidavit relating to the assets, income and
expenditure of my spouse are based on information believed to be true on the basis of record. I
further verify that the copies of the documents filed along with the affidavit are the copies of the
originals.
1. Total extent of the rural land/s owned, or the specific share holding in the same land:
8. If rural land is not cultivable, whether the same is being used for business, leasing or other
activity :
10. Whether any land is taken on lease /battai (or any other term used for a lease in the local area of
the concerned jurisdiction where rural /agricultural land is located.)
11. (a) Whether owner of any livestock, such as buffaloes, cows, goats, cattle, poultry, fishery, bee
keeping, piggery etc., the number thereof and Income generated therefrom?
(b) Whether engaged in dairy farming, poultry, fish farming or any other livestock activity.
12. Loans, if any obtained against the land. Furnish details of such loans.
Declaration
2. I undertake to inform this Court immediately with respect to any material change
in my employment, assets, income, expenses or any other information included in
this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt
of Court, may constitute an offence under Section 199 read with Sections 191 and 193
of the Indian Penal Code punishable with imprisonment upto seven years and fine,
and Section 209 of Indian Penal Code punishable with imprisonment upto two years
and fine. I have read and understood Sections 191, 193, 199, and 209 of the Indian
Penal Code,1860.
DEPONENT Verification Verified at ___on this ___day of_____that the contents of the above
affidavit are true to my personal knowledge, no part of it is false and nothing material has been
concealed therefrom. I further verify that the copies of the documents filed along with the affidavit
are the copies of the originals.
2. Whether the woman is staying with her husband in her family property.
3. Whether she has any maternal uncle, who plays a very important role in their family matters,
which includes settlement of matrimonial disputes. The woman should also disclose her clan and
her lineage.
4. The woman should disclose if her children have adopted the surname of her mother, in as much
as Khasi has been defined as “a person who adopts the surname of his or her mother”.
5. The woman should disclose if she gets any financial assistance from her clan or family member.
6. The woman should disclose if her parents are alive more specifically, her mother, and how many
siblings she has.
7. In event of a woman not being the youngest daughter, she has to disclose who the youngest
daughter is.
8. The woman should disclose if she has any movable or any immovable property, self-acquired or
inherited from her clan.
9. The woman should disclose if she is married to tribal or non-tribal The above format may be
modified or adapted by the concerned Court, as may be considered appropriate.
Declaration
1. I declare that I have made a full and accurate disclosure of my income, expenditure, assets and
liabilities from all sources. I further declare that I have no assets, income, expenditure and liabilities
other than as stated in this affidavit.
2. I undertake to inform this Court immediately with respect to any material change in my
employment, assets, income, expenses or any other information included in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt of Court, may
also constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code
punishable with imprisonment upto seven years and fine, and Section 209 of Indian Penal Code
punishable with imprisonment upto two years and fine. I have read and understood Sections 191,
193, 199, and 209 of the Indian Penal Code, 1860.
DEPONENT Verification Verified at ___on this _____day of _____ that the contents of the above
affidavit are true to my personal knowledge, no part of it is false and nothing material has been
concealed therefrom, whereas the contents of the above affidavit relating to the assets, income and
expenditure of my spouse are based on information believed to be true on the basis of record. I
further verify that the copies of the documents filed along with the affidavit are the copies of the
originals.
DEPONENT