The Supreme Court on Wednesday laid down certain guidelines for determining the payment of interim compensation and quantum of maintenance to be paid in matrimonial cases. The final order of the judgement is attached at the end of this article.
A Bench of Justices Indu Malhotra and R Subhash Reddy have laid down directions to be followed by family courts, district courts and magistrate courts across the country to address the issue of
- Overlapping jurisdiction and
- To avoid conflicting orders being passed in different proceedings in the same matter
The apex court was hearing a matrimonial case from Maharashtra in which the question of maintenance of a wife and son under Section 125 of the Code of Criminal Procedure (CrPC) had been raised. 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.
In the said matter, the court had, on September 1 last year, appointed Senior Advocates Gopal Sankaranarayanan and Anitha Shenoy as amicus curiae to assist it in framing guidelines on payment of interim maintenance.
Details of Judgement
- Payment of Interim Maintenance
The Court ruled that an affidavit of disclosure of assets and liabilities annexed to the judgment should be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned family courts, district courts or magistrate courts throughout the country.
2. Criteria for Determining Quantum of Maintenance
For determining the quantum of interim and permanent maintenance/ alimony payable to an applicant, the concerned court shall consider the criteria enumerated in the judgment. The apex court made it clear that there can be no straitjacket formula for fixing the quantum of maintenance to be awarded.
The court, however, laid down the following factors to be taken into account while fixing the quantum of maintenance.
(a) Age and employment of parties: The court ruled that in a marriage of long duration, where parties have endured the relationship for several years, this 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. 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, the court noted.
(b) Right to residence: It was observed that Section 17 of the Domestic Violence Act grants an aggrieved woman the right to live in the “shared household”. The right of a woman to reside in a “shared household” defined under Section 2(s) of the DV Act entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same, the court ruled.
“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,” the judgment said.
(c) Where wife is earning some income: The Bench noted that courts have consistently held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The court ruled,
In Shailja & Anr. v Khobbanna, 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.
(d) Maintenance of minor children: The living expenses of the child, it was ruled, 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 also factored in, while awarding child support. The order read:
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: The court further held that 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,
Besides, placing reliance on the judgment in Jasbir Kaur Sehgal v District Judge, Dehradun & Ors., the court held that following factors should, inter alia, be considered:
- 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 and whether she was working during the subsistence of the marriage
- reasonable costs of litigation for a non-working wife
The Court, however, made it clear that the above factors laid down by it are not exhaustive and that judicial discretion is vested in the family courts to consider any other factor which may arise in the facts and circumstances of the case.
The Court said that it has become necessary to issue directions to overcome the issue of overlapping jurisdiction and to avoid conflicting orders being passed in different proceedings. Such directions are necessary so that there is uniformity in the practices followed by family courts, district courts and magistrate courts throughout the country, the Bench noted.
The following directions were issued by the Court towards that end:
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.
Date From Which Maintenance Is To Be Awarded
Taking note of the divergent views taken by courts while granting maintenance, the Supreme Court ruled that it has become necessary to issue directions to bring about uniformity and consistency in the orders passed by all courts. It, therefore, directed that maintenance be awarded from the date on which the application for maintenance was made before the concerned court. The judgement said,
The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.
Enforcement Of Maintenance Orders
It held that an order of maintenance may be enforced/ executed under Section 28A of the Hindu Marriage Act, Section 20(6) of the Domestic Violence Act or Section 128 of CrPC. Further, an order for maintenance may be enforced as a money decree under the Code of Civil Procedure, it held.
The court while ordering all of the above, have not mentioned anywhere to cap the timeline of maintenance amounts to wives. In practicality, whenever the amounts get awarded by family court, often women stop coming to court for final arguments in the matter. The same results into husbands paying maintenance for years and decades without getting any solution for ending their dead marriage.