Maintenance in All Cases To Be Awarded From The Date of Filing Application
Maintenance in All Cases To Be Awarded From The Date of Filing Application
Maintenance in All Cases To Be Awarded From The Date of Filing Application
IN
REPORTABLE
RAJNESH …APPELLANT
Versus
INDEX
PART A Order passed in Criminal Appeal No.730 of 2020
PART B General Guidelines and Directions
I. Issue of Overlapping Jurisdictions
II. Payment of interim maintenance
III. Criteria for determining quantum of maintenance
IV. Date from which Maintenance to be awarded
V. Enforcement of orders of maintenance
VI. Final Directions
Digitally signed by
Jatinder Kaur
Date: 2020.11.04
13:33:16 IST
Reason:
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INDU MALHOTRA, J.
PART A
Leave granted.
(i) The present Criminal Appeal arises out of an application for Interim
Maintenance filed in a petition u/S. 125 Cr.P.C. by the Respondent-wife and
minor son. The Respondent No.1-wife left the matrimonial home in January
2013, shortly after the birth of the son-Respondent No.2. On 02.09.2013, the wife
filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf of herself
and the minor son. 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.
(ii) The Appellant-husband challenged the Order of the Family Court vide
Criminal Writ Petition No.875/2015 filed before the Bombay High Court,
Nagpur Bench. The High Court dismissed the Writ Petition vide Order dated
14.08.2018, and affirmed the Judgment passed by the Family Court.
(iii) The present appeal has been filed to impugn the Order dated 14.08.2018.
This Court issued notice to the wife and directed the Appellant-husband to file
his Income Tax Returns and Assessment Orders for the period from 2005-2006
till date. He was also directed to place a photocopy of his passport on record. By
a further Order dated 11.09.2019, the Appellant-husband was directed to make
payment of the arrears of Rs.2,00,000 towards interim maintenance to the wife;
and a further amount of Rs.3,00,000, which was due and payable to the wife
towards arrears of maintenance, as per his own admission. By a subsequent
Order dated 14.10.2019, it was recorded that only a part of the arrears had been
paid. A final opportunity was granted to the Appellant-husband to make payment
of the balance amount by 30.11.2019, failing which, the Court would proceed
under the Contempt of Courts Act for wilful disobedience with the Orders passed
by this Court.
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fixed by the Family Court, and continue to pay the said amount during the
pendency of proceedings.
(vi) By the Order dated 25.08.2020, it was noted that the Appellant had filed
an Affidavit dated 23.08.2020 wherein he had admitted and acknowledged that
an amount of Rs.5,00,000 was pending towards arrears of maintenance to the
Respondent No.1-wife. The Appellant was directed to pay 50% of the arrears
within a period of 4 weeks to the Respondent No.1, failing which, he was
directed to remain present before the Court on the next date of hearing. The
Counsel for the husband placed on record a chart of various proceedings pending
between the parties. Taking note of the aforesaid facts, we considered it
appropriate to refer the matter for mediation by Mr. Shridhar Purohit, Advocate,
a well-known Mediator in Nagpur, to resolve all disputes pending between the
parties, and arrive at an overall settlement.
(vii) On 08.10.2020, we were informed that the mediation had failed. The
husband appeared before the Court, and made an oral statement that he did not
have the financial means to comply with the Order of maintenance payable to
the Respondent No.1-wife, and had to borrow loans from his father to pay the
same. He however stated that he had paid the maintenance awarded to the son,
and would continue to do so without demur. Both parties addressed arguments
and filed their written submissions.
(viii) We have heard the Counsel for the parties, and perused the written
submissions filed on their behalf.
The husband has inter alia submitted that he was presently unemployed,
and was not in a position to pay maintenance to the Respondent No.1-wife. He
stated that he did not own any immovable property, and had only one operational
bank account. The husband declined to pay any further amount towards the
maintenance of his wife. It was further submitted that the Family Court had
erroneously relied upon the Income Tax Returns of 2006, while determining the
maintenance payable in 2013. He further submitted that he was exploring new
business projects, which would enable him to be in a better position to sustain
his family.
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The wife has inter alia submitted that the amount of Rs.10,000 awarded
for the son was granted when he was 2 ½ years old in 2015. The said amount
was now highly inadequate to meet the expenses of a growing child, who is 7 ½
years old, and is a school-going boy. It was further submitted that the admission
fee for the current academic year 2020-2021 had not yet been paid. If the fee
was not paid within time, the school would discontinue sending the link for
online classes. She submitted that she was being over-burdened by the growing
expenses, with no support from the husband.
With respect to the contention of the husband that he had no income, she
submitted that the husband had made investments in real estate projects, and
other businesses, which he was concealing from the Court, and diverting the
income to his parents. It has also been alleged that the Appellant had retained
illegal possession of her Streedhan, which he was refusing to return. Despite
orders being passed by this Court, and in the proceedings under the D.V. Act, he
was deliberately not complying with the same. In these circumstances, it was
submitted that there was a major trust deficit, and there was no prospect for
reconciliation.
(ix) With respect to the issue of enhancement of maintenance for the son, the
Respondent is at liberty to move the Family Court for the said relief. We cannot
grant this relief in the present appeal, as it has been filed by the husband.
(x) In the facts and circumstances of the case, we order and direct that :
(a) The Judgment and order dated 24.08.2015 passed by the Family Court,
Nagpur, affirmed by the Bombay High Court, Nagpur Bench vide Order
dated 14.08.2018 for payment of interim maintenance @ Rs.15,000 p.m. to
the Respondent No.1-wife, and Rs.10,000 p.m. to the Respondent No.2-son,
is hereby affirmed by this Court;
(b) The husband is directed to pay the entire arrears of maintenance @
Rs.15,000 p.m., within a period of 12 weeks’ from the date of this Judgment,
and continue to comply with this Order during the pendency of the
proceedings u/S. 125 Cr.P.C. before the Family Court;
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PART B
Given the backdrop of the facts of the present case, which reveal that the
application for interim maintenance under Section 125 Cr.P.C. has remained
pending before the Courts for seven years now, and the difficulties encountered
in the enforcement of orders passed by the Courts, as the wife was constrained
to move successive applications for enforcement from time to time, we deem it
appropriate to frame guidelines on the issue of maintenance, which would cover
overlapping jurisdiction under different enactments for payment of maintenance,
payment of Interim Maintenance, the criteria for determining the quantum of
maintenance, the date from which maintenance is to be awarded, and
enforcement of orders of maintenance.
Guidelines / Directions on Maintenance
Maintenance laws have been enacted as a measure of social justice to
provide recourse to dependant wives and children for their financial support, so
as to prevent them from falling into destitution and vagrancy.
Article 15(3) of the Constitution of India provides that :
“Nothing in this article shall prevent the State from making any special
provision for women and children.”
1
(1978) 4 SCC 70.
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The legislations which have been framed on the issue of maintenance are
the Special Marriage Act 1954 (“SMA”), Section 125 of the Cr.P.C. 1973; and
the Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”) which
provide a statutory remedy to women, irrespective of the religious community
to which they belong, apart from the personal laws applicable to various religious
communities.
I Issue of Overlapping Jurisdiction
Maintenance may be claimed under one or more of the afore-mentioned
statutes, since each of these enactments provides an independent and distinct
remedy framed with a specific object and purpose. For instance, a Hindu wife
may claim maintenance under the Hindu Adoptions and Maintenance Act 1956
(“HAMA”), and also in a substantive proceeding for either dissolution of
marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act,
1955 (“HMA”) by invoking Sections 24 and 25 of the said Act.
(i) In Nanak Chand v Chandra Kishore Aggarwal & Ors. 2 , the Supreme
Court held that there was no inconsistency between the Cr.P.C. and HAMA.
Section 4(b) of HAMA would not repeal or affect the provisions of Section 488
of the old Cr.P.C. It was held that :
“4. Both can stand together. The Maintenance Act is an act to amend and
codify the law relating to adoptions and maintenance among Hindus. The
law was substantially similar before and nobody ever suggested that Hindu
Law, as in force immediately before the commencement of this Act, insofar
as it dealt with the maintenance of children, was in any way inconsistent
with Section 488, Cr.P.C. The scope of the two laws is different. Section 488
provides a summary remedy and is applicable to all persons belonging to
all religions and has no relationship with the personal law of the parties.
Recently the question came before the Allahabad High Court in Ram Singh
v. State: AIR1963All355, before the Calcutta High Court in Mahabir
Agarwalla v. Gita Roy [1962] 2 Cr. L.J.528 and before the Patna High
Court in Nalini Ranjan v. Kiran Rani: AIR1965Pat442. The three High
Courts have, in our view, correctly come to the conclusion that Section 4(b)
of the Maintenance Act does not repeal or affect in any manner the
provisions contained in Section 488, Cr.P.C.”
(emphasis supplied)
2
(1969) 3 SCC 802.
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While it is true that a party is not precluded from approaching the Court
under one or more enactments, since the nature and purpose of the relief under
each Act is distinct and independent, it is equally true that the simultaneous
operation of these Acts, would lead to multiplicity of proceedings and conflicting
orders. This would have the inevitable effect of overlapping jurisdiction. This
process requires to be streamlined, so that the respondent / husband is not
obligated to comply with successive orders of maintenance passed under
different enactments.
For instance, if in a previous proceeding under Section 125 Cr.P.C., an
amount is awarded towards maintenance, in the subsequent proceeding filed
for dissolution of marriage under the Hindu Marriage Act, where an application
for maintenance pendente lite is filed under Section 24 of that Act, or for
maintenance under Section 25, the payment awarded in the earlier proceeding
must be taken note of, while deciding the amount awarded under HMA.
Statutory provisions under various enactments
(a) The Special Marriage Act, 1954 (“SMA”)
Section 4 of the Special Marriage Act, 1954 provides that a marriage
between any two persons who are citizens of India may be solemnised under this
Act, notwithstanding anything contained in any other law for the time being in
force. It is a secular legislation applicable to all persons who solemnize their
marriage in India.
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 36 reads as:
“S.36. Alimony pendente lite.—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
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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.”
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Section 24 of the HMA 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 24 reads as:
“24. Maintenance pendente lite and expenses of proceedings.—
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.”
(emphasis supplied)
The proviso to Section 24 providing a time line of 60 days for disposal of
the application was inserted vide Act 49 of 2001 w.e.f. 24.09.2001.
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
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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.”
(emphasis supplied)
Section 26 of the HMA provides that the Court may from time to time pass
interim orders with respect to the custody, maintenance and education of the
minor children.
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(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 HMA and HAMA is that the
right under Section 18 of HAMA 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 HMA. 3
Under HMA, 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 HAMA, only a wife may seek
maintenance.
The interplay between the claim for maintenance under HMA and HAMA
came up for consideration by the Supreme Court in Chand Dhawan v Jawaharlal
Dhawan.4 The Supreme Court, while considering the various laws relating to
marriage amongst Hindus, discussed the scope of applications under the HMA
and HAMA in the following words :
“23. …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. Sub-section (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 misbehaviors 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
3
Panditrao Chimaji Kalure v Gayabai (2002) 2 Mah LJ 53.
4
(1993) 3 SCC 406.
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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 fulfill 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.
And in order to avoid conflict of perceptions the legislature while codifying
the Hindu Marriage Act preserved the right of permanent maintenance in
favour of the husband or the wife, as the case may be, dependent on the
court passing a decree of the kind as envisaged under Sections 9 to 14 of
the Act. In other words without the marital status being affected or; disputed
by the matrimonial court under the Hindu Marriage Act the claim of
permanent alimony was not to be valid as ancillary or incidental to such
affectation or disruption. The wife's claim to maintenance necessarily has
then to be agitated under the Hindu Adoptions and Maintenance Act, 1956
which is a legislative measure later in point of time than the Hindu
Marriage Act, 1955, though part of the same socio-legal scheme
revolutionizing the law applicable to Hindus….”
(emphasis supplied)
5
Decided on 15.10.2020 in Criminal Appeal No.615/2020.
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6
(1975) 2 SCC 386.
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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.
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
days’ from the date of service of notice on the respondent.
The amended Section 125 reads as under :
“125. 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 :
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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.”
(emphasis supplied)
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7
(2008) 2 SCC 316.
8
(2015) 6 SCC 353.
9
(2011) 1 SCC 141.
This judgment was referred to a larger bench.
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maintenance u/S. 125 Cr.P.C. The Court relied on the Malimath Committee
Report on Reforms of Criminal Justice System published in 2003, which
recommended that evidence regarding a man and woman living together for a
reasonably long period, should be sufficient to draw the presumption of
marriage.
The law presumes in favour of marriage, and against concubinage, when a
man and woman cohabit continuously for a number of years. Unlike matrimonial
proceedings where strict proof of marriage is essential, in proceedings u/S. 125
Cr.P.C. such strict standard of proof is not necessary.10
(e) Protection of Women from Domestic Violence Act, 2005 (“D.V. Act”)
The D.V. Act stands on a separate footing from the laws discussed
hereinabove. The D.V. 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.
Section 2(q) of the Act defined “respondent” to mean an “adult male
person” who is, or has been, in a domestic relationship with the aggrieved
woman. In Hiral P. Harsora & Ors. v Kusum Narottamdas Harsora & Ors.11
this Court held that the “respondent” could also be a female in a domestic
relationship with the aggrieved person. Section 3 of the D.V. Act gives a gender-
neutral definition to “domestic violence”. Physical abuse, verbal abuse,
emotional abuse and economic abuse can also be inflicted by women against
other women. Even sexual abuse may, in a given fact circumstance, be by one
woman on another. Section 17(2) provides that the aggrieved person cannot be
10
Kamala & Ors. v. M.R. Mohan Kumar (2019) 11 SCC 491.
11
(2016) 10 SCC 165.
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12
(2010) 10 SCC 469.
13
(2013) 15 SCC 755.
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14
Decided on 15.10.2020 in C.A. No. 2483/2020 by a bench comprising of Hon’ble Justices Ashok
Bhushan, R. Subhash Reddy and M.R.Shah.
15
(2007) 3 SCC 169.
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the interpretation given in S.R. Batra is accepted, it would frustrate the object of
the Act. The Court has taken the view that the definition of “shared household”
in Section 2(s) is an exhaustive definition. The “shared household” is the
household which is the dwelling place of the aggrieved person in present time.
If the definition of “shared household” in Section 2(s) is read to mean all the
houses where the aggrieved person has lived in a domestic relationship alongwith
the relatives of the husband, there will be a number of shared households, which
was never contemplated by the legislative scheme. The entire scheme of the
legislation is to provide immediate relief to the aggrieved person with respect to
the shared household where the aggrieved woman lives or has lived. The use of
the expression “at any stage has lived”, is with the intent of not denying
protection to an aggrieved woman merely on the ground that she was not living
there on the date of the application, or on the date when the Magistrate passed
the order u/S. 19. The words “lives, or at any stage has lived in a domestic
relationship” has to be given its normal and purposeful meaning. Living of the
woman in a household must refer to a living which has some permanency. Mere
fleeting or casual living at different places would not make it a shared household.
The intention of the parties and the nature of living, including the nature of the
household, must be considered, to determine as to whether the parties intended
to treat the premises as a “shared household” or not. Section 2(s) r.w. Sections
17 and 19 grant an entitlement in favour of an aggrieved woman to the right of
residence in a “shared household”, irrespective of her having any legal interest
in the same or not. From the definition of “aggrieved person” and “respondent”,
it was clear that :
(i) it is not the requirement of law that the aggrieved person may either
own the premises jointly or singly, or by tenanting it jointly or
singly;
(ii) the household may belong to a joint family of which the respondent
is a member, irrespective of whether the respondent or the aggrieved
person has any right, title, or interest in the shared household;
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of the respondent, which amount may be adjusted towards the monetary relief
payable by the respondent.
Section 22 provides that the Magistrate may 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
perpetrated by the respondent.
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.
Section 26 of the D.V. Act provides that any relief available under Sections
18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil
Court, Family Court or Criminal Court. Sub-section (2) of Section 26 provides
that the relief mentioned in sub-section (1) may be sought in addition to, and
alongwith any other relief that the aggrieved person may seek in a suit or legal
proceeding before a civil or criminal court. Section 26 (3) provides that in case
any relief has been obtained by the aggrieved person in any proceeding other
than proceedings under this Act, the aggrieved woman would be bound to inform
the Magistrate of the grant of such relief.
Section 36 provides that the D.V. Act shall be in addition to, and not in
derogation of the provisions of any other law for the time being in force.
Conflicting judgments on overlapping jurisdiction
(i) Some High Courts have taken the view that since each proceeding is distinct
and independent of the other, maintenance granted in one proceeding cannot be
adjusted or set-off in the other. For instance, in Ashok Singh Pal v Manjulata,16
the Madhya Pradesh High Court held that the remedies available to an aggrieved
person under S. 24 of the HMA is independent of S. 125 of the Cr.P.C. In an
16
AIR 2008 MP 139.
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application filed by the husband for adjustment of the amounts awarded in the
two proceedings, it was held that the question as to whether adjustment is to be
granted, is a matter of judicial discretion to be exercised by the Court. There is
nothing to suggest as a thumb rule which lays down as a mandatory requirement
that adjustment or deduction of maintenance awarded u/S. 125 Cr.P.C. must be
off-set from the amount awarded under S.24 of the HMA, or vice versa.
A similar view was taken by another single judge of the Madhya Pradesh
High Court in Mohan Swaroop Chauhan v Mohini.17
Similarly, the Calcutta High Court in Sujit Adhikari v Tulika Adhikari18
held that adjustment is not a rule. It was held that the quantum of maintenance
determined by the Court under HMA is required to be added to the quantum of
maintenance u/S. 125 Cr.P.C.
A similar view has been taken in Chandra Mohan Das v Tapati Das19,
wherein a challenge was made on the point that the Court ought to have adjusted
the amount awarded in a proceeding under S.125 Cr.P.C., while determining the
maintenance to be awarded under S.24 of the HMA, 1955. It was held that the
quantum of maintenance determined under S.24 of HMA was to be paid in
addition to the maintenance awarded in a proceeding under S.125 Cr.P.C.
(ii) On the other hand, the Bombay and Delhi High Courts, have held that in
case of parallel proceedings, adjustment or set-off must take place.
The Bombay High Court in a well-reasoned judgment delivered in Vishal
v Aparna & Anr.,20 has taken the correct view. The Court was considering the
issue whether interim monthly maintenance awarded under Section 23 r.w.
Section 20 (1)(d) of the D.V. Act could be adjusted against the maintenance
awarded under Section 125 Cr.P.C. The Family Court held that the order passed
under the D.V. Act and the Cr.P.C. were both independent proceedings, and
adjustment was not permissible. The Bombay High Court set aside the judgment
of the Family Court, and held that Section 20(1)(d) of the D.V. Act makes it clear
17
(2016) 2 MP LJ 179.
18
(2017) SCC OnLine Cal 15484.
19
2015 SCC OnLine Cal 9554.
20
2018 SCC OnLine Bom 1207.
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that the maintenance granted under this Act, would be in addition to an order of
maintenance under Section 125 Cr.P.C., and any other law for the time being in
force. Sub-section (3) of Section 26 of the D.V. Act enjoins upon the aggrieved
person to inform the Magistrate, if she has obtained any relief available under
Sections 18, 19, 20, 21 and 22, in any other legal proceeding filed by her, whether
before a Civil Court, Family Court, or Criminal Court. The object being that
while granting relief under the D.V. Act, the Magistrate shall take into account
and consider if any similar relief has been obtained by the aggrieved person.
Even though proceedings under the D.V. Act may be an independent proceeding,
the Magistrate cannot ignore the maintenance awarded in any other legal
proceedings, while determining whether over and above the maintenance already
awarded, any further amount was required to be granted for reasons to be
recorded in writing.
The Court observed :
“18. What I intend to emphasize is the fact that the adjustment is permissible
and the adjustment can be allowed of the lower amount against the higher
amount. Though the wife can simultaneously claim maintenance under the
different enactments, it does not in any way mean that the husband can be
made liable to pay the maintenance awarded in each of the said
proceedings.”
(emphasis supplied)
21
2019 VII AD (Delhi) 466.
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17. On the converse, if any order is passed by the Family Court under
Section 24 of HMA, the same would not debar the Court in the proceedings
arising out of DV Act or proceedings under Section 125 of Cr.P.C. instituted
by the wife/aggrieved person claiming maintenance. However, it cannot be
laid down as a proposition of law that once an order of maintenance has
been passed by any Court then the same cannot be re-adjudicated upon by
any other Court. The legislative mandate envisages grant of maintenance
to the wife under various statutes such as HMA, Hindu Adoption and
Maintenance Act, 1956 (hereinafter referred to as 'HAMA'), Section 125 of
Cr.P.C. as well as Section 20 of DV Act. As such various statutes have been
enacted to provide for the maintenance to the wife and it is nowhere the
intention of the legislature that once any order is passed in either of the
proceedings, the said order would debar re adjudication of the issue of
maintenance in any other Court.”
(emphasis supplied)
The Court held that u/S. 20(1)(d) of the D.V. Act, maintenance awarded
to the aggrieved woman under the D.V. is in addition to an order of maintenance
provided u/S. 125 Cr.P.C. The grant of maintenance under the D.V. Act would
not be a bar to seek maintenance u/S. 24 of HMA.
Similarly, in Tanushree & Ors. v A.S.Moorthy,22 the Delhi High Court
was considering a case where the Magistrate’s Court had sine die adjourned the
proceedings u/S. 125 Cr.P.C. on the ground that parallel proceedings for
maintenance under the D.V. Act were pending. In an appeal filed by the wife
before the High Court, it was held that a reading of Section 20(1)(d) of the D.V.
Act indicates that while considering an application u/S. 12 of the D.V. Act, the
22
2018 SCC OnLine Del 7074.
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Court would take into account an order of maintenance passed u/S. 125 Cr.P.C.,
or any other law for the time being in force. The mere fact that two proceedings
were initiated by a party, would not imply that one would have to be adjourned
sine die. There is a distinction in the scope and power exercised by the Magistrate
under S.125, Cr.P.C. and the D.V. Act. With respect to the overlap in both
statutes, the Court held :
“5. Reading of Section 20(1)(d) of the D.V. Act further shows that the two
proceedings are independent of each other and have different scope, though
there is an overlap. Insofar as the overlap is concerned, law has catered for
that eventuality and laid down that at the time of consideration of an
application for grant of maintenance under Section 12 of the D.V. Act, the
maintenance fixed under Section 125 Cr.P.C. shall be taken into account.”
(emphasis supplied)
The issue whether maintenance u/S. 125 Cr.P.C. could be awarded by the
Magistrate, after permanent alimony was granted to the wife in the divorce
proceedings, came up for consideration before the Supreme Court in Rakesh
Malhotra v Krishna Malhotra.23 The Court held that once an order for permanent
alimony was passed, the same could be modified by the same court by exercising
its power u/S. 25(2) of HMA. The Court held that :
“16. Since the Parliament has empowered the Court Under Section 25(2)
of the Act and kept a remedy intact and made available to the concerned
party seeking modification, the logical sequitur would be that the remedy
so prescribed ought to be exercised rather than creating multiple channels
of remedy seeking maintenance. One can understand the situation where
considering the exigencies of the situation and urgency in the matter, a wife
initially prefers an application Under Section 125 of the Code to secure
maintenance in order to sustain herself. In such matters the wife would
certainly be entitled to have a full-fledged adjudication in the form of any
challenge raised before a Competent Court either under the Act Or similar
such enactments. But the reverse cannot be the accepted norm.”
The Court directed that the application u/S. 125 Cr.P.C. be treated as an
application u/S. 25(2) of HMA and be disposed of accordingly.
23
2020 SCC OnLine SC 239.
29
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24
(2014) 14 SCC 452.
25
(1997) 11 SCC 286.
30
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31
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32
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26
ILR (2012) I Delhi 73.
27
(2014) 214 DLT 493.
28
(2015) 217 DLT 706.
29
MANU/DE/2406/2017.
30
2017 – (2018) 246 DLT 1.
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the affidavit subsequently. In this judgment, it was clarified that the Affidavit
must be filed simultaneously by both parties. In Kusum Sharma V31 the Court
consolidated the format of the Affidavits in the previous judgments, and directed
that the same be filed in maintenance proceedings.
(vii) Given the vastly divergent demographic profile of our country, which
comprises of metropolitan cities, urban areas, rural areas, tribal areas, etc., it was
considered appropriate to elicit responses from the various State Legal Services
Authorities (“SLSAs”).
This Court vide its Order dated 17.12.2019 requested the National Legal
Services Authority (“NALSA”) to submit a report of the suggestions received
from the SLSAs for framing guidelines on the Affidavit of Disclosure of the
Assets and Liabilities to be filed by the parties.
(viii) The NALSA submitted a comprehensive report dated 17.02.2020
containing suggestions from all the State Legal Service Authorities throughout
the country. We find the various suggestions made by the SLSAs to be of great
assistance in finalizing the Affidavit of Disclosure which can be used by the
Family Courts for determining the quantum of maintenance to be paid.
(ix) Keeping in mind the varied landscape of the country, and the
recommendations made by the SLSAs, it was submitted that a simplified
Affidavit of Disclosure may be framed to expedite the process of determining
the quantum of maintenance.
We feel that the Affidavit to be filed by parties residing in urban areas,
would require to be entirely different from the one applicable to rural areas, or
tribal areas.
For this purpose, a comprehensive Affidavit of Disclosure of Assets and
Liabilities is being attached as Enclosure I and II to this judgment.
(x) We have been informed by the Meghalaya State Legal Services Authority
that the State of Meghalaya has a predominantly tribal population, which follows
a matrilineal system of society. The population is comprised of three tribes viz.
the Khasis, Jaintia and Garo tribes. In Meghalaya, the youngest daughter is the
31
Decided by the Delhi High Court vide Judgment dated 06.08.2020.
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32
Kaushalya v Mukesh Jain, Criminal Appeal Nos. 1129-1130 / 2019 decided vide Judgment 24.07.2019.
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(d) The above format may be modified by the concerned Court, if the
exigencies of a case require the same. It would be left to the judicial discretion
of the concerned Court, to issue necessary directions in this regard.
(e) If apart from the information contained in the Affidavits of Disclosure,
any further information is required, the concerned Court may pass
appropriate orders in respect thereof.
(f) If there is any dispute with respect to the declaration made in the Affidavit
of Disclosure, the aggrieved party may seek permission of the Court to serve
interrogatories, and seek production of relevant documents from the opposite
party under Order XI of the CPC;
On filing of the Affidavit, the Court may invoke the provisions of Order
X of the C.P.C or Section 165 of the Evidence Act 1872, if it considers it
necessary to do so;
The income of one party is often not within the knowledge of the other
spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if
necessary, since the income, assets and liabilities of the spouse are within the
personal knowledge of the party concerned.
(g) If during the course of proceedings, there is a change in the financial status
of any party, or there is a change of any relevant circumstances, or if some
new information comes to light, the party may submit an amended /
supplementary affidavit, which would be considered by the court at the time
of final determination.
(h) The pleadings made in the applications for maintenance and replies filed
should be responsible pleadings; if false statements and misrepresentations
are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C.,
and for contempt of Court.
(i) In case the parties belong to the Economically Weaker Sections (“EWS”),
or are living Below the Poverty Line (“BPL”), or are casual labourers, the
requirement of filing the Affidavit would be dispensed with.
(j) The concerned Family Court / District Court / Magistrate’s Court must
make an endeavour to decide the I.A. for Interim Maintenance by a reasoned
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order, within a period of four to six months at the latest, after the Affidavits
of Disclosure have been filed before the court.
(k) A professional Marriage Counsellor must be made available in every
Family Court.
Permanent alimony
(i) Parties may lead oral and documentary evidence with respect to income,
expenditure, standard of living, etc. before the concerned Court, for fixing
the permanent alimony payable to the spouse.
(ii) In contemporary society, where several marriages do not last for a
reasonable length of time, it may be inequitable to direct the contesting
spouse to pay permanent alimony to the applicant for the rest of her life. The
duration of the marriage would be a relevant factor to be taken into
consideration for determining the permanent alimony to be paid.
(iii) Provision for grant of reasonable expenses for the marriage of children
must be made at the time of determining permanent alimony, where the
custody is with the wife. The expenses would be determined by taking into
account the financial position of the husband and the customs of the family.
(iv) If there are any trust funds / investments created by any spouse /
grandparents in favour of the children, this would also be taken into
consideration while deciding the final child support.
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33
Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7.
Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.
34
(2017) 15 SCC 801.
38
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35
Reema Salkan v Sumer Singh Salkan (2019) 12 SCC 303.
36
Chaturbhuj v Sita Bai (2008) 2 SCC 316.
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(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde37 laid down
the following factors to be considered for determining maintenance :
“1. Status of the parties.
2. Reasonable wants of the claimant.
3.The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as
he/she enjoyed in the matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance
and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the
non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the
amount awarded u/ 24 of the Act. 17.”
37
140 (2007) DLT 16.
40
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38
Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020.
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respondent to pay the rent and other payments, having regard to the financial
needs and resources of the parties.
(c) Where wife is earning some income
The Courts have held that if the wife is earning, it cannot operate as a bar
from being awarded maintenance by the husband. The Courts have provided
guidance on this issue in the following judgments.
In Shailja & Anr. v Khobbanna,39 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.40
Sustenance does not mean, and cannot be allowed to mean mere survival.41
In Sunita Kachwaha & Ors. v Anil Kachwaha 42 the wife had a
postgraduate degree, and was employed as a teacher in Jabalpur. The husband
raised a contention that since the wife had sufficient income, she would not
require financial assistance from the husband. The Supreme Court repelled
this contention, and held that merely because the wife was earning some
income, it could not be a ground to reject her claim for maintenance.
The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay
Kale43 while relying upon the judgment in Sunita Kachwaha (supra), held
that neither the mere potential to earn, nor the actual earning of the wife,
howsoever meagre, is sufficient to deny the claim of maintenance.
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, as held by
the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander
39
(2018) 12 SCC 199.
See also Decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016 Cri LJ 4794.
40
Chaturbhuj v Sita Bai, (2008) 2 SCC 316.
41
Vipul Lakhanpal v Smt. Pooja Sharma, 2015 SCC OnLine HP 1252.
42
(2014) 16 SCC 715.
43
2020 SCC OnLine Bom 694.
42
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44
AIR 1968 Delhi 174.
45
(2015) 5 SCC 705.
43
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46
K. Sivaram v K. Mangalamba & Ors.1989 (1) APLJ (HC) 604.
47
1996 (I) OLR 361.
48
2001 Cri LJ 879.
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the decision to award maintenance either from the date of application, or from
the date of order, was within the discretion of the Court, it would be appropriate
to grant maintenance from the date of application. This was followed in Arun
Kumar Nayak v Urmila Jena,49 wherein it was reiterated that dependents were
entitled to receive maintenance from the date of application.
The Madhya Pradesh High Court in Krishna Jain v Dharam Raj Jain50
held that a wife may set up a claim for maintenance to be granted from the date
of application, and the husband may deny it. In such cases, the Court may frame
an issue, and decide the same based on evidence led by parties. The view that
the “normal rule” was to grant maintenance from the date of order, and the
exception was to grant maintenance from the date of application, would be to
insert something more in Section 125(2) Cr.P.C., which the Legislature did not
intend. Reasons must be recorded in both cases. i.e. when maintenance is
awarded from the date of application, or when it is awarded from the date of
order.
The law governing payment of maintenance u/S. 125 Cr.P.C. from the date
of application, was extended to HAMA by the Allahabad High Court in Ganga
Prasad Srivastava v Additional District Judge, Gonda & Ors.51 The Court held
that the date of application should always be regarded as the starting point for
payment of maintenance. The Court was considering a suit for maintenance u/S.
18 of HAMA, wherein the Civil Judge directed that maintenance be paid from
the date of judgment. The High Court held that the normal inference should be
that the order of maintenance would be effective from the date of application. A
party seeking maintenance would otherwise be deprived of maintenance due to
the delay in disposal of the application, which may arise due to paucity of time
of the Court, or on account of the conduct of one of the parties. In this case, there
was a delay of seven years in disposing of the suit, and the wife could not be
49
(2010) 93 AIC 726 (Ori).
50
1993 (2) MPJR 63.
51
2019 (6) ADJ 850.
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made to starve till such time. The wife was held to be entitled to maintenance
from the date of application / suit.
The Delhi High Court in Lavlesh Shukla v Rukmani52 held that where the
wife is unemployed and is incurring expenses towards maintaining herself and
the minor child / children, she is entitled to receive maintenance from the date of
application. Maintenance is awarded to a wife to overcome the financial crunch,
which occurs on account of her separation from her husband. It is neither a matter
of favour to the wife, nor any charity done by the husband.
(b) From the date of order
The second view that maintenance ought to be awarded from the date of
order is based on the premise that the general rule is to award maintenance from
the date of order, and grant of maintenance from the date of application must be
the exception. The foundation of this view is based on the interpretation of
Section 125(2) Cr.P.C. which provides :
“(2) Any such allowance for the maintenance or interim maintenance and
expenses for 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.”
(emphasis supplied)
The words “or, if so ordered” in Section 125 has been interpreted to mean
that where the court is awarding maintenance from the date of application,
special reasons ought to be recorded.53
In Bina Devi v State of U.P., 54 the Allahabad High Court on an
interpretation of S.125(2) of the Cr.P.C. held that when maintenance is directed
to be paid from the date of application, the Court must record reasons. If the
order is silent, it will be effective from the date of the order, for which reasons
need not be recorded. The Court held that Section 125(2) Cr.P.C. is prima facie
clear that maintenance shall be payable from the date of the order.
52
Crl.Rev.P. 851/2019 decided by the Delhi High Court vide Order dated 28.11.2019.
53
Bina Devi & Ors. v State of Uttar Pradesh & Ors. (2010) 69 ACC 19.
54
(2010) 69 ACC 19.
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The Madhya Pradesh High Court in Amit Verma v Sangeeta Verma &
Ors.55 directed that maintenance ought to be granted from the date of the order.
(c) From the date of service of summons
The third view followed by some Courts is that maintenance ought to be
granted from the date of service of summons upon the respondent.
The Kerala High Court in S. Radhakumari v K.M.K. Nair 56 was
considering an application for interim maintenance preferred by the wife in
divorce proceedings filed by the husband. The High Court held that maintenance
must be awarded to the wife from the date on which summons were served in
the main divorce petition. The Court relied upon the judgment of the Calcutta
High Court in Samir Banerjee v Sujata Banerjee,57 and held that Section 24 of
the HMA does not contain any provision that maintenance must be awarded from
a specific date. The Court may, in exercise of its discretion, award maintenance
from the date of service of summons.
The Orissa High Court in Gouri Das v Pradyumna Kumar Das58 was
considering an application for interim maintenance filed u/S. 24 HMA by the
wife, in a divorce petition instituted by the husband. The Court held that the
ordinary rule is to award maintenance from the date of service of summons. It
was held that in cases where the applicant in the maintenance petition is also the
petitioner in the divorce petition, maintenance becomes payable from the date
when summons is served upon the respondent in the main proceeding.
In Kalpana Das v Sarat Kumar Das,59 the Orissa High Court held that the
wife was entitled to maintenance from the date when the husband entered
appearance. The Court was considering an application for interim maintenance
u/S. 24 HMA in a petition for restitution of conjugal rights filed by the wife. The
Family Court awarded interim maintenance to the wife and minor child from the
date of the order. In an appeal filed by the wife and minor child seeking
55
CRR No. 3542/2019, decided by the Madhya Pradesh High Court vide Order dated 08.01.2020.
56
AIR 1983 Ker 139.
57
70 CWN 633.
58
1986 (II) OLR 44.
59
AIR 2009 Ori 133.
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maintenance from the date of application, the High Court held that the Family
Court had failed to assign any reasons in support of its order, and directed :
“9. …Learned Judge. Family Court has not assigned any reason as to why
he passed the order of interim maintenance w.e.f. the date of order. When
admittedly the parties are living separately and prima facie it appears that
the Petitioners have no independent source of income, therefore, in our view
order should have been passed for payment of interim maintenance from
the date of appearance of the Opposite Party-husband…”
(emphasis supplied)
60
2008 9 SCC 632.
61
2015 6 SCC 353.
48
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62
(2014) 1 SCC 188.
49
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63
AIR 1996 Bom 94.
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(iii) The Punjab & Haryana High Court in Mohinder Verma v Sapna, 66
discussed the issue of striking off the defence in the following words :
“8. Section 24 of the Act empowers the matrimonial court to award
maintenance pendente lite and also litigation expenses to a needy and
indigent spouse so that the proceedings can be conducted without any
hardship on his or her part. The proceedings under this Section are
summary in nature and confers a substantial right on the applicant during
the pendency of the proceedings. Where this amount is not paid to the
applicant, then the very object and purpose of this provision stands
defeated. No doubt, remedy of execution of decree or order passed by the
matrimonial court is available under Section 28A of the Act, but the same
would not be a bar to striking off the defence of the spouse who violates
the interim order of maintenance and litigation expenses passed by the
said Court. In other words, the striking off the defence of the spouse not
honouring the court's interim order is the instant relief to the needy one
instead of waiting endlessly till its execution under Section 28A of the Act.
Where the spouse who is to pay maintenance fails to discharge the
liability, the other spouse cannot be forced to adopt time consuming
execution proceedings for realising the amount. Court cannot be a mute
spectator watching flagrant disobedience of the interim orders passed by
it showing its helplessness in its instant implementation. It would, thus, be
appropriate even in the absence of any specific provision to that effect in
the Act, to strike off the defence of the erring spouse in exercise of its
inherent power under Section 151 of the Code of Civil Procedure read
with Section 21 of the Act rather than to leave the aggrieved party to seek
its enforcement through execution as execution is a long and arduous
procedure. Needless to say, the remedy under Section 28A of the Act
regarding execution of decree or interim order does not stand obliterated
or extinguished by striking off the defence of the defaulting spouse. Thus,
where the spouse who is directed to pay the maintenance and litigation
64
Criminal Appeal Nos. 1129-1130 / 2019 decided vide Judgment dated 24.07.2019.
65
AIR 1996 P&H 175.
66
MANU/PH/3684/2014.
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expenses, the legal consequences for its non-payment are that the defence
of the said spouse is liable to be struck off.”
(emphasis supplied)
(iv) The Delhi High Court in Satish Kumar v Meena67 held that the Family
Court had inherent powers to strike off the defence of the respondent, to ensure
that no abuse of process of the court takes place.
The Delhi High Court in Smt. Santosh Sehgal v Shri Murari Lal Sehgal,68
framed the following issue for consideration : “Whether the appeal against the
decree of divorce filed by the appellant-wife can be allowed straightway without
hearing the respondent-husband in the event of his failing to pay interim
maintenance and litigation expenses granted to the wife during the pendency of
the appeal.”
The reference was answered as follows :
“5.The reference to the portion of the judgment in Bani's case extracted here-
in-above would show that the Punjab and Haryana High Court and Orissa
Page 2216 High Court have taken an unanimous view that in case the
husband commits default in payment of interim maintenance to his wife and
children then he is not entitled to any matrimonial relief in proceedings by
or against him. The view taken by Punjab and Haryana High Court in
Bani's case has been followed by a Single Judge of this Court in Satish
Kumar v. Meena . We tend to agree with this view as it is in consonance
with the first principle of law. We are of the view that when a husband is
negligent and does not pay maintenance to his wife as awarded by the
Court, then how such a person is entitled to the relief claimed by him in the
matrimonial proceedings. We have no hesitation in holding that in case the
husband fails to pay maintenance and litigation expenses to his wife granted
by the Court during the pendency of the appeal, then the appeal filed by the
wife against the decree of divorce granted by the trial court in favor of the
husband has to be allowed. Hence the question referred to us for decision
is answered in the affirmative.”
67
2001 (60) DRJ 246.
68
AIR 2007 Delhi 210.
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(v) The Punjab and Haryana High Court in Gurvinder Singh v Murti & Ors.69
was considering a case where the trial court stuck off the defence of the husband
for non-payment of ad-interim maintenance. The High Court set aside the order
of the trial court, and held that instead of following the correct procedure for
recovery of interim maintenance as provided u/S. 125 (3) or Section 421 of the
Cr.P.C., the trial court erred in striking off the defence of the husband. The error
of the court did not assist in recovery of interim maintenance, but rather
prolonged the litigation between the parties.
(vi) The issue whether defence can be struck off in proceedings under Section
125 Cr.P.C. came up before the Madhya Pradesh High Court in Venkateshwar
Dwivedi v Ruchi Dwivedi.70 The Court held that neither Section 125(3) of the
Cr.P.C, nor Section 10 of the Family Courts Act either expressly or by necessary
implication empower the Magistrate or Family Court to strike off the defence. A
statutory remedy for recovery of maintenance was available, and the power to
strike off defence does not exist in a proceeding u/S. 125 Cr.P.C. Such power
cannot be presumed to exist as an inherent or implied power. The Court placed
reliance on the judgment of the Kerala High Court in Davis v Thomas,71 and held
that the Magistrate does not possess the power to strike off the defence for failure
to pay interim maintenance.
Discussion and Directions on Enforcement of Orders of Maintenance
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 CPC, more particularly Sections 51, 55, 58, 60 read
with Order XXI.
69
Gurvinder Singh v Murti & Ors. I (1990) DMC 559.
70
II (2018) DMC 103 MP.
Karnataka High Court affirmed this view in Ravindra Kumar v Renuka & Anr. 2009 SCC OnLine Kar
481.
71
2007(4) ILR (Kerala) 389.
See also Sakeer Hussain T.P. v Naseera & Ors., 2016 (4) ILR (Kerala) 917.
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VI Final Directions
In view of the foregoing discussion as contained in Part B – I to V of this
judgment, we deem it appropriate to pass the following directions in exercise of
our powers under Article 142 of the Constitution of India :
(a) Issue of overlapping jurisdiction
To overcome the issue of overlapping jurisdiction, and avoid conflicting
orders being passed in different proceedings, it has become necessary to issue
directions in this regard, so that there is uniformity in the practice followed
by the Family Courts/District Courts/Magistrate Courts throughout the
country. We direct that:
(i) where successive claims for maintenance are made by a party
under different statutes, the Court would consider an adjustment or set-
off, of the amount awarded in the previous proceeding/s, while
determining whether any further amount is to be awarded in the
subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous
proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any
modification or variation, it would be required to be done in the same
proceeding.
(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities annexed as
Enclosures I, II and III of this judgment, as may be applicable, shall be filed
by both parties in all maintenance proceedings, including pending
proceedings before the concerned Family Court / District Court / Magistrates
Court, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
For determining the quantum of maintenance payable to an applicant, the
Court shall take into account the criteria enumerated in Part B – III of the
judgment.
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The aforesaid factors are however not exhaustive, and the concerned
Court may exercise its discretion to consider any other factor/s which may be
necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
We make it clear that maintenance in all cases will be awarded from the
date of filing the application for maintenance, as held in Part B – IV above.
(e) Enforcement / Execution of orders of maintenance
For enforcement / 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 r.w. Order XXI.
.……………………….
(INDU MALHOTRA, J.)
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Enclosure I
Affidavit of Assets and Liabilities for Non-Agrarian Deponents
A. Personal Information
1. Name:
2. Age/Sex:
3. Qualifications (Educational and Professional):
4. Whether the Applicant is staying in the matrimonial house / parental home /
separate residence. Please provide the current residential address of matrimonial
home or place of residence and details of ownership of residence, if owned by other
family member.
5. Date of marriage:
6. Date of separation:
7. General monthly expenses of the Applicant (rent, household expenses, medical
bills, transportation, etc.):
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1. Whether either party or child /children is suffering from any physical / mental
disability, or any other serious ailment. If yes, produce medical records.
2. Whether any dependant family member has serious disability, requiring continuous
medical expenditure. If yes, produce disability certificate and approximate medical
expenditure incurred on such medical treatment.
3. Whether either party or child/children or any other dependent family member is
suffering from life-threatening diseases, which would entail expensive and regular
medical expenditure? If yes, provide details of the same along with summary of
previous details of hospitalisation/medical expenses incurred.
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J. Information provided by the Deponent with respect to the income, assets and
liabilities of the other Spouse
1. Educational and professional qualifications of the other spouse:
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2. Whether spouse is earning? If so, give particulars of the occupation and income of
the spouse.
3. If not, whether he/she is staying in his/her own accommodation, or in a rented
accommodation or in accommodation provided by employer/business/partnership?
4. Particulars of assets and liabilities of spouse as known to the deponent, alongwith
any supporting documents.
K. Details of Applicant or the other Spouse, in case parties are Non-Resident Indians,
Overseas Citizens of India, Foreign Nationals or Persons living abroad outside
India.
1. Details of Citizenship, Nationality and current place of residence, if the Applicant
or other spouse is residing abroad outside India, temporarily or permanently.
2. Details of current employment and latest income in foreign currency of such
applicant/spouse, duly supported by relevant documentation of employment and
income from such foreign employer or overseas institution by way of employment
letter or testimonial from foreign employer or overseas institution or latest relevant
bank statement.
3. Details of household and other expenditure of such applicant/spouse in foreign
jurisdiction.
4. Details of tax liability of applicant/other spouse in foreign jurisdiction.
5. Details of income of applicant/other spouse from other sources in India/foreign
jurisdiction.
6. Details of expenses incurred or contribution made on account of spousal
maintenance, child support or any other educational expenses, medical treatment
of spouse or children.
7. Any other relevant detail of expenses or liabilities, not covered under any of the
above headings and any other liabilities to any other dependant family members in
India or abroad.
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Declaration
DEPONENT
Verification
Verified at ___on this _____day of _____ that the contents of the above affidavit
are true to my personal knowledge, no part of it is false and nothing material has
been concealed therefrom, whereas the contents of the above affidavit relating to
the assets, income and expenditure of my spouse are based on information
believed to be true on the basis of record. I further verify that the copies of the
documents filed along with the affidavit are the copies of the originals.
DEPONENT
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Enclosure II
Details for Affidavit for Agrarian Deponents (Krishi)
1. Total extent of the rural land/s owned, or the specific share holding in the same
land:
2. Jamabandis / Mutations to show ownership
3. Location of the land owned by the party.
4. Nature of land : whether wet land or dry land.
5. Whether such land is agricultural land or non-agricultural land:
6. Nature of agriculture / horticulture :
7. Nature of crops cultivated during the year :
8. If rural land is not cultivable, whether the same is being used for business, leasing
or other activity :
9. Income generated during the past 3 years from the land.
10. Whether any land is taken on lease /battai (or any other term used for a lease in the
local area of the concerned jurisdiction where rural /agricultural land is located.)
11. (a) Whether owner of any livestock, such as buffaloes, cows, goats, cattle, poultry,
fishery, bee keeping, piggery etc., the number thereof and Income generated
therefrom?
(b) Whether engaged in dairy farming, poultry, fish farming or any other livestock
activity.
12. Loans, if any obtained against the land. Furnish details of such loans.
13. Any other sources of income :
14. Liabilities, if any
15. Any other relevant information :
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Declaration
DEPONENT
Verification
Verified at ___on this ___day of_____that the contents of the above affidavit are
true to my personal knowledge, no part of it is false and nothing material has been
concealed therefrom. I further verify that the copies of the documents filed along
with the affidavit are the copies of the originals.
DEPONENT
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Enclosure III
Affidavit for the State of Meghalaya
1. Whether the woman is the youngest daughter of the family.
2. Whether the woman is staying with her husband in her family property.
3. Whether she has any maternal uncle, who plays a very important role in their family
matters, which includes settlement of matrimonial disputes. The woman should also
disclose her clan and her lineage.
4. The woman should disclose if her children have adopted the surname of her mother,
in as much as Khasi has been defined as “a person who adopts the surname of his
or her mother”.
5. The woman should disclose if she gets any financial assistance from her clan or
family member.
6. The woman should disclose if her parents are alive more specifically, her mother,
and how many siblings she has.
7. In event of a woman not being the youngest daughter, she has to disclose who the
youngest daughter is.
8. The woman should disclose if she has any movable or any immovable property,
self-acquired or inherited from her clan.
9. The woman should disclose if she is married to tribal or non-tribal
The above format may be modified or adapted by the concerned Court, as may
be considered appropriate.
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Declaration
DEPONENT
Verification
Verified at ___on this _____day of _____ that the contents of the above affidavit
are true to my personal knowledge, no part of it is false and nothing material has
been concealed therefrom, whereas the contents of the above affidavit relating to
the assets, income and expenditure of my spouse are based on information
believed to be true on the basis of record. I further verify that the copies of the
documents filed along with the affidavit are the copies of the originals.
DEPONENT
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