CASE TITLE

 RAJESH V. NEHA AND ANR.

[Criminal Appeal No. 730 OF 2020]

FACTS OF THE CASE

The respondent left the home of the appellant, shortly after the birth of respondent no.2, minor son in January 2013.  On 2nd September 2013, the respondent filed a maintenance application under Section 125 Code of Criminal Procedure on behalf of herself and son. The Family Court awarded interim maintenance of Rs. 15,000 per month to the respondent and Rs. 5000 per month for respondent no.2, i.e., minor son. The order was challenged before the High Court of Bombay. The High Court of Bombay through an order dated 11th September 2019, asked the petitioner to pay the arrears of maintenance towards the wife. After part of arrears were paid, an order was passed on 14th October 2019 to make the remaining payment of maintenance as well, otherwise, orders under the Contempt of Courts Act for willful disobedience, will be passed against the petitioner. In respect of the claim made by the husband that he stated he had no income, the respondent stated that her husband had made investments in various real estate projects and businesses. Further, he has retained the streedhan of the respondent. 

CONSTITUTIONALITY OF MAINTENANCE PROVISIONS 

Article 15(3) of the Constitutional of India, provides authority to states for making any special provisions for women and children. Maintenance laws are enacted to provide social protection for women and children in the patriarchal Indian society. For wives and children, who are dependent for financial support, such provisions are necessary to provide them with basic survival needs and prevent them from falling into destitution and vagrancy. These laws enforced by stated through Article 39 of the Constitution of India.

 Justice Krishna Iyer, in Captain Ramesh Chander Kaushal V. Mrs. Veena Kaushal & Ors. (1978) 4 SCC 70, in reference to objection against maintenance laws held:

“39. Provision of maintenance enacted to protect women and children within Article 15(3) reinforced by Article 39.

40. The presence of empathy for weaker sections in the Constitution provide protection to women and children, hence the provisions shall be interpreted in manner of social relevance”.

PROVISIONS FOR COMPENSATION UNDER VARIOUS LAWS

 Following are the provisions, which provide compensation to women and children under various laws: 

A. The Special Marriage Act, 1954

 The Special Marriage Act governs all the marriages that are solemnized under this Act. When cross religion marriages take place under this Act, such an Act overrules the personal laws of both the spouses. It is secular legislation applicable to all persons who solemnize their marriage in India. Following provisions of the Special Marriage Act provides maintenance: 

1. Section 36- Alimony pendente lite

The following section states:

“Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as, having regard to the husband’s income, it may seem to the court to be reasonable.

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.” 

2. Section 37- Permanent alimony and maintenance

The following section states:

“(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 an 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

The HMA is a complete code that 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. Following provisions of The Hindu Marriage Act provides for maintenance: 

1. Section 24- Maintenance pendente lite and expenses of proceedings

The following section states:

“Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.

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.” 

2. Section 25- Permanent alimony and maintenance

The following section provides:

“(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on an 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.” 

3. Section 26- Custody of children

The following section provides:

“In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made:

Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.” 

C. The Hindu Adoptions and Maintenance Act, 1956

The Act is special legislation, which was enacted to amend and codify the laws relating to adoption and maintenance amongst Hindus, during the subsistence of the marriage. Following provisions of the Act deal with maintenance: 

1. Section 18- Maintenance of wife

The following section states:

“(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,-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;

(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) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.”

 2. Section 19- Maintenance of the widowed daughter in law

The following section states:

“(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.

Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, 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.

(2) Any obligation under sub-section (1) shall not be enforceable if the father in- law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.”

3. Section 20- Maintenance of children and aged parents

The following section states:

“(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parent or daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property”

4. Section 22- Maintenance of Dependents

The following section states:

“(1) Subject to the provisions of sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased.

(2) Where a dependent has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependent shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.

(3) The liability of each of the persons who take the estate shall be in proportion to the value of the share or part of the estate taken by him or her.

(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependent shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part, the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.”

5. Section 23- Amount of maintenance

The following section states:

“(1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the court shall have due regard to the consideration set out in sub-section (2) or sub-section (3), as the case maybe, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to-

(a) The position and status of the parties;

(b) The reasonable wants of the claimant;

(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;

(e) The number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenance, if any, to be awarded to a dependent under this Act, regard shall be had to-

(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 dependent;

(c) The degree of relationship between the two;

(d) The reasonable wants of the dependent;

(e) The past relations between the dependent and the deceased;

(f) The value of the property of the dependent and any income derived from such property, or from his or her earnings or from any other course;

(g) The number of dependents entitled to maintenance under this Act.”

  6. Section 25- Amount of maintenance may be altered on change of circumstances

The following section states:

“The amount of maintenance, whether fixed by a decree of court or by agreement either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.” 

E. The Code of Criminal Procedure, 1973

Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. A person irrespective of the religious community to which they belong may claim maintenance under Section 125 of the Cr. P.C. To claim the maintenance under this section, two preconditions should be satisfied that the husband has sufficient means and he had neglected to maintain his wife, who is unable to maintain herself. The application can be filed before a magistrate and should be dealt with expeditiously within sixty days from the date of service of notice on the respondent. 

Section 125- Order for maintenance of wives, children and parents

The following section states: 

“(1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or
(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 abnormality or injury unable to maintain itself, or
(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.

Explanation. – For the purposes of this Chapter,-
(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.
Explanation. – If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife’ s refusal to live with him.
(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.” 

F. The Protection of Women from Domestic Violence Act, 2005

The 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.
Following sections of the Act provides relief to women: 

1.  Section 17- Right to reside in a shared household

The following section states: 

“(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.” 

  2. Section 20- Monetary reliefs

The following section states: 

“
(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,-


(a) the loss of earnings;


(b) the medical expenses;


(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.” 

3. Section 22- Compensation orders

The following section states: 

“In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, 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 committed by that respondent.” 

OBSERVATION AND JUDGMENT OF THE HON’BLE SUPREME COURT

1. The delay in disposal of maintenance applications are contributed 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.
2. The interim maintenance is decided on basis of pleadings, rough estimation for assessment of the amount to be awarded.
3. Parties to the proceedings suppress vital information, which makes it difficult for Family Courts to estimate the award accurately.
4. Due to the staggering increase in matrimonial cases, the State government in consultation shall appoint marriage counsellors in every Family Court.
5. Since there is a significant delay in disposal of maintenance applications for years, therefore, in the interest of justice, the maintenance should be awarded from the date of application.
6. The pendency of proceedings are not within control and fault of the applicant, hence they should not suffer the financial crunch.
7. An application for maintenance can be filed before any Family Court. Orders of the Family court are executable in accordance with the provisions of CPC and Cr.P.C. under Section 18 of the Family Courts Act, 1984.
8. An application for execution of an Order of Maintenance can be filed under the following provisions:

9. Section 28 A of the Hindu Marriage Act, 1956 read with Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under Section 24 of the Hindu Marriage Act (before the Family Court);
10. Where an order of maintenance is passed under Section 125(3) of Cr.P.C., if any person willfully defaults or neglect to pay, then the Magistrate shall order recovery of such amount in form of fines and award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier.
11. Contempt proceedings may be initiated against the respondent if he willfully disobeys the order given by the court, towards the dependent unemployed wife and minor children.
12. The defence of the respondent may be struck off by the Court, but such a measure should be passed as last resort where he has willfully and contumaciously defied the orders of the Court.
13. The respondent must submit the detailed affidavit within a maximum period of four weeks. If the respondent delays in filing the reply with the detailed 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 it is done willfully to frustrate proceedings.
14. The concerned court may modify, alter or amend the contents of the affidavit. If any additional information is required, the concerned court may pass appropriate orders in respect thereof.
15. If there is any change in the financial status of any party or relevant circumstances or new information comes into light or dispute regarding the declared information, the party must submit the amended supplementary affidavit or production of relevant documents can be ordered from opposite party under Order IX of Civil Procedure Code.
16. If an application for maintenance or replies filed is based on false statement or misrepresentation, then Court can initiate proceedings for contempt of Court.
17. In case of an indigent person or casual labourers, the requirement of filing the affidavit can be dispensed.
18. In contemporary society, where marriage does not last long, the order granting permanent alimony would be inadequate. Hence, the duration of maintenance shall be decided depending upon the duration of the marriage.
19. If any trust funds or investments or anything were created in favour of children, then it will also be taken into consideration for deciding the child support and maintenance.
20. The criteria for determining the quantum of maintenance depends on various factors such as- Status of the Parties; Reasonable needs of the wife and dependent children;

Educational and professional qualification of the applicant;

1.  Sources of income of the applicant, if yes, then is it sufficient to maintain herself as per the standards of matrimonial home;
2.  Employment status prior to marriage;
3.  Whether the wife was required to sacrifice her employment opportunities for nurturing the family, child and looking after adult members of the family;

 Reasonable costs of litigation for a non-working wife.

1. Where the spouses are married over a long period of time, if 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, then such shall be taken into consideration.
2. The living expenses of a child include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any vocational training courses to complement basic education can be considered while awarding child support.
3. If the child or spouse suffers from any disability or ill health and requires constant care and expenditure, then shall be relevant consideration while quantifying maintenance.
4. The Hon’ble Court order and directed that:
5.     The judgment and order of Family Court, Nagpur and Bombay High Court, Nagpur Bench, upheld, for payment of maintenance Rs. 15,000 per month to Respondent No.1- wife and Rs. 10,000 per month to Respondent No.2- son.
6.     If the appellant fails to comply with the directions and order, the respondent can enforce it under Section 128 of the Code of Criminal Procedure and take all other remedies available to them.

The husband shall pay all the arrears within 12 weeks from the date of this judgment.

The Court drafted affidavit formats that parties have to fill out while disclosing their financial status.  It further fixed time periods to overcome delay: the respondent is required to file their disclosure within four weeks, and the concerned court must adjudicate the issue of interim maintenance within four to six months.

FINAL DIRECTIONS GIVEN BY THE HON’BLE SUPREME COURT

In view of the discussions and observation of court, the Hon’ble Supreme Court under powers authorized by Article 142 of the Constitution, issued the following directions:

 1. Where the question of overlapping jurisdiction arises when orders are passed under numerous proceedings, uniform practice must take place by taking the following points under consideration:

• •  Where claims are made under various provisions, the court shall adjust or set off the amount awarded in previous proceedings;
  • The applicant shall disclose the previous proceedings before initiating claim under subsequent proceedings;

 2. If the court deems fit that an award passed under the previous proceeding is subject to alteration, then it can alter the award in the same proceeding.

3. Both the parties in the proceedings pending before the Family Court/ District Court/ Magistrates shall file an affidavit containing all assets and liabilities.

4. Date of filing the maintenance application will be the date from which maintenance will be counted when awarded by the Court.

5. For enforcement/execution of orders of maintenance, it is directed that order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the Domestic Violence Act; and Section 128 of The Code of Criminal Procedure, as may be applicable. The order of maintenance may be enforced as a money decree, including civil detention, attachment of property, etc. of a civil court as per the provisions of the Civil Procedure Code, more particularly Sections 51, 55, 58, 60 read with Order XXI.

AUTHOR OF THE ARTICLE

SUYASH GAUR
Junior Legal Research Associate 
Indian Law Watch
Passed his LLB in the year 2020. He has done Intellectual Property Rights.Suyash has been a bright student of law who has won several competition during his career in law.