On November 4, 2020, the Supreme Court of India laid down detailed guidelines to ensure uniformity in payment of maintenance to estranged wife in judgement titled Rajesh vs Neha. The verdict was pronounced by a bench of justices Indu Malhotra and R. Subhash Reddy.
As per the Supreme Court’s ruling, an estranged wife will be entitled to receive alimony maintenance from the date on which she applies to a court of law for grant of the same. Financial constraints of a dependant spouse hamper their capacity to be effectively represented before the court. The maintenance cases are to be settled by the family courts, in the span of 60 days, but it takes years to reach the outcome and settlement of such cases. 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 court concerned.
The new guidlines will apply to all the lower courts, such as family courts, district courts, and magistrate’s courts. The idea behind the order is to bring uniformity in judgments in different cases. This judgement would clarify the ambiguity in many matters, such as the payment of interim maintenance, basis of deciding maintenance amount avoiding overlapping jurisdiction, and other important issues.
Criteria to Ascertain Maintenance
As per the verdict of the apex court, the various factors must be taken into account by the court concerned in determining the amount of alimony. These include the status of the parties, the reasonable needs of wife and dependent 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 that she was accustomed to in her matrimonial home, etc.
The highlights of the order are as follows:
- The maintenance amount awarded must be reasonable and realistic. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort, and at the same time it must be ensured that the amount does not become unbearable for the respondent.
- It is to be seen if the wife is educated and professionally qualified, but had to give up her job to take care of the needs of the family. If she has remained as the primary caretaker of the minor children and the elder members of the family, then this factor has to be considered while calculating the maintenance. It becomes difficult for the educated dependent wife to get an easy entry into the job market after a break of several years. She will need to undergo fresh training to acquire skills to secure a job among paid workforce to rehabilitate herself.
- Education expenses of the children must be normally borne by the father. But in case the wife is working and earning sufficiently to meet the education expenses of the children then it may be proportionately divided between both the parties. But, it should not act as a bar from being awarded maintenance by the husband.
- Recurrent expenditure, such as illness of spouse, child/children, dependent relative, etc., would also be a relevant consideration while quantifying maintenance.
- The court may exercise its discretion to consider any other factor/factors which may be necessary or of relevance in the facts and circumstances of a case.
- Maintenance has to be awarded from the date on which the application for maintenance is filed before the court concerned.
Issues of Concern Overlapping Jurisdiation The apex court noted that due to the absence of uniformity with regard to the date from which the maintenance had to be calculated and awarded, there existed a vast variance in the practice adopted by various courts of the country.
Both the Hindu Marriage Act and the Domestic Violence Act do not provide the date from which the maintenance is to be awarded. Section 125(2) Cr.PC. 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. This led to the exercise of discretion by family courts on the issue of grant of maintenance.
A wife can make a claim for maintenance under different statutes. For instance, she can claim maintenance under Domestic Violence Act or under Section 125 of the CrPC or under the Hindu Marriage Act. In such a case, it would be incorrect to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding.
To avoid this overlapping, the Supreme Court has directed that in a subsequent maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein. Then 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 wife would be required to move the court concerned in the previous proceeding.
Payment of Interim Maintenance Currently, the issue of interim maintenance is decided on the basis of the pleadings. It is mainly based on the guess-work or rough estimation to make a prima facie assessment of the amount to be awarded. It is observed by the apex court that the correct details are not submitted to the courts by both the parties. This makes it difficult for the family courts to make an objective assessment for grant of interim maintenance.
The Supreme Court has hence directed that the affidavit of disclosure of assets and liabilities shall be filed by both the parties in all maintenance proceedings. This include pending proceedings before the family court/district court/magistrates court, as the case may be, throughout the country.
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. 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. This would help in the process of settlement. If the proceedings for settlement are unsuccessful, the family court would proceed with the matter on merits.
Enforcement of the Order
The Supreme Court has directed that the order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the Civil Procedure Code.
The non-payment of maintenance could lead to arrest and detention of the delinquent husband. There could even be to confiscation of the assets of the husband and their auction for the payment of maintenance dues to the estranged wife.