The Supreme Court in November 2020 laid down new guidelines (RAJNESH Vs NEHA – READ FULL JUDGEMENT IN THE ARTICLE AT THE END) with regards to awarding interim maintenance/maintenance/permanent alimony. While the judgement is a detailed one, the top court particularly observed:
- Dependant spouse (mostly wife) is not reduced to destitution or vagrancy on account of the failure of the marriage
- Quantum should not be a punishment to the other spouse (mostly husband)
The bench comprising Justices Indu Malhotra and R. Subhash Reddy said that 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 Court noted that there is a tendency on the part of the wife to exaggerate her needs, and there is a corresponding tendency by the husband to conceal his actual income. To make an objective assessment for grant of interim maintenance, the bench has also directed that Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court.
The court noted that 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
For husband, the court also added that below pointers must be taken into account while arriving at the appropriate quantum of maintenance:
- The financial capacity of the husband
- His actual income
- Reasonable expenses for his own maintenance
- Dependant family members whom he is obliged to maintain under the law
- Liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid
Other Factors –
The court said that the concerned courts shall take into account the following criteria for determining the quantum of maintenance payable to an applicant:
- 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
- While passing a residence order under Domestic Violence Act, the Magistrate may direct the respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties
- If the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. 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. 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
- 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
- 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
- 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
No Bar To Seek Maintenance Under DV Act & Section 125 Cr.P.C.
The Court observed that, though there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C, it would be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. 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, it said. The Court has also held that the right to claim maintenance under all enactments must date back to the date of filing the application.
READ FULL GUIDELINES ALONG WITH MAIN ORDER
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