Evolution of Law Regarding Spousal Maintenance Jurisprudence in India Vis-a-Vis Rajnesh Vs. Neha, A Much Awaited Ruling By the Apex Court.
There has been a jurisprudential growth in the area of law pertaining to spousal maintenance in India. It can be observed that the cases filed for maintenance are generally done by the females, hence, giving the law pertaining to maintenance a shade of gender biased law, which is not the case. Time and again the Courts have endevoured to lay down guidelines, framework etc to aid spouses with respect to their maintenance rights and so far they have succeeded too, however, due to the fact of, different High Courts laying different guidelines, resulted in ambiguity in implementation of the existing law. Maintenance also known as Spousal support, child support can be interim or permanent meaning thereby, that the amount of maintenance is adjudicated after taking into consideration the merits of the case in its entirety. Several Enactments are already in existence which provide distinct remedies as far as maintenance goes.
An Overview of Existing Laws Pertaining To Maintenance
Maintenance Application Under Section 125 of Cr.P.C,1973
Code of Criminal Procedure, has a specific provision pertaining to maintenance that is encompassed under section 125 which is predicated on two following 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. The remedy given under section 125 Cr. P. C is statutory in nature which can be availed by woman who is a wife practising any religion whatsoever.
In Bhagwan Dutt vs. Kamla Devi, the Hon’ble 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 that “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.”
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 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.
It is pertinent to mention that 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 day’ s from the date of service of notice on the respondent. To have a better clarity of law the amended provision has been reproduced.
The amended Section 125 reads as, “Order for maintenance of wives, children and parents.
(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.
Woman living in Live In Relation can also claim Maintenance under Section 125 Cr.P.C,1973.
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 under Section 125, Cr. P.C. came up for consideration in Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr., 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 maintenance under Section 125, Cr. P. C.
Maintenance under Section 23 of the Protection of Women From Domestic Violence Act, 2005.
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.
Hence, under section 23 of the Act has categorically dealt with the grant of interim maintenance, which is sort of a ancillary relief provided to a woman or a child who has been subjected to acts of domestic violence prima facie. Such acts can be of physical abuse, economical abuse, psychological abuse and verbal abuse.
Maintenance Under Section 36 of the Special Marriage Act, 1954
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 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.
The abovementioned reliefs are secular statutory provisions, which are not religiously coloured, any person who fits the criteria laid down in these provisions can claim maintenance accordingly. It is vital to discuss the other enactments too which are based on one’s religion and provide maintenance.
Maintenance Laws Applicable to Hindus
Application Under Section 24 and 25 of the Hindu Marriage Act, 1955
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 prerequisite 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 Hindu Marriage Act, 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.
Section 25 provides for grant of permanent alimony, which reads as:
“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.”
Section 26 of the Hindu Marriage Act, provides that the Court may from time to time pass interim orders with respect to the custody, maintenance and education of the minor children.
Maintenance under section 18 of Hindu Adoptions & Maintenance Act, 1956.
Hindu Adoptions & Maintenance Act, 1956 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.
Section 18 reads as follows:
“18. Maintenance of wife—
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.
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 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;
(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 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 Hindu Marriage Act and Hindu Adoption & Marriage Act is that the right under Section 18 of Hindu Adoption & Maintenance Act 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 Hindu Marriage Act.
Under Hindu Marriage Act, 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 Hindu Adoption & Maintenance Act, only a wife may seek maintenance.
The interplay between the claim for maintenance under Hindu Marriage Act and Hindu Adoption & Maintenance Act, came up for consideration by the Supreme Court in Chand Dhawan vs. Jawaharlal Dhawan, The Supreme Court, while considering the various laws relating to marriage amongst Hindus, discussed the scope of applications under the Hindu Marriage Act and Hindu Adoption & Maintenance Act, in the following words:
“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. Subsection (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 misbehaviours 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 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 fulfil 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.
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 Hindu Adoption & Marriage Act, 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 vs. Parkash & Ors., a three-Judge Bench of Supreme 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 under Section 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 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 Hindu Adoption & Maintenance Act, is a wider concept.
Ambiguous Issues Clarified in Rajnesh Vs. Neha, by Apex Court pertaining to Award of Maintenance and Other Ancillary Surrounding Issues.
The Issue of Overlapping Jurisdiction
Hon’ble Supreme Court has very categorically, clarified ambiguity in case of overlapping of jurisdiction in various maintenance cases. It is the known fact that a aggrieved party seeking maintenance approaches more than one forum, for seeking maintenance for herself and for her children if any. It is a trend wherein, the wife approaches the Court under section 125 Cr. P. C as well as under section 23 of the Domestic Violence Act for grant of interim maintenance, and final adjudication of her maintenance claim too. In such a case the party seeking maintenance has to declare to the Court whether, she has been granted interim or permanent maintenance in her favour so as to ensure that equity prevails and not one spouse is burdened with monetary maintenance. Hon’ble Supreme Court has observed that if one Court has already granted interim or permanent maintenance then another Court which is considering maintenance application needs to fix the amount of maintenance in such a way that it can be adjusted or set off accordingly. Hence, the amount of maintenance cannot be such, so as to burden the opposite party unequitably. This clarification was much needed as various High Courts had come up with different findings which had caused a ruckus of ambiguities in interpretation of the same.
Date from which the Maintenance needs to be Awarded
It is to be seen that only, section 125 of Cr. P. C is apparent as to the date from which the maintenance granted will be realised, that is the date on which the application for maintenance was filed, hence giving it a retrospective effect. However, neighter the Domestic Violence Act, 2005 nor the Hindu Marriage Act, 1955 is clear on this issue. The Hon’ble Supreme Court has laid down a uniform rule stating that the date from which the maintenance amount needs to be awarded or realised is the date on which application claiming maintenance under any available statutory provision is filed.
Uniform Affidavit of Income to Ascertain Interim Maintenance
It was seen that in many states, the Courts were not following any pattern of Affidavit of Income, moreover, those which followed were not fool proof, and had various ambiguities resulting in delay as well as skewed grant of maintenance. Delhi High Court in Kusum Sharma Series Judgment kept on modifying the income affidavit, which was to be filed by both the parties for prima facie adjudication of interim maintenance at an initial stage and final maintenance at the final adjudication. Hon’ble Apex Court has come with three forms of Affidavits of Assets and Liabilities, which are to be filed by both the parties. The Court has categorised it for the people of Mizoram State, parties who are having agricultural land (Krishi Category) and the general one. Moreover, the said affidavit needs to be filed simultaneously by both the parties so as to prevent the chance of improving the case by other party. The Court has furthermore, stated that only two oppurtunities, shall be given to the opposite party to file its affidavit so as to prevent delay in adjudicating the interim maintenance, as it has become sort of a norm whereby the opposite party seeks continuous adjournments on one pretext or the other so as to delay the proceedings and defeat the whole purpose of the law. However, Hon’ble Court has clarified that if there is a genuine cause then more than two oppurtunities can be granted, which is solely discretion of the adjudicating Court and if still the opposite party does not file its affidavit then its defence will be struck off, hence giving an edge to the claimant.
Execution of the Maintenance Award or Order
The Hon’ble Supreme Court observed that or enforcement or execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr. P. C., as may be applicable. The order of maintenance may be enforced as a money decree of a Civil Court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order 21.
Sofia Bhambri (Managing partner, S.Bhambri & Associates (Advocates)