SUBJECT: The following judgement deals with the SC issuing guidelines for overlapping jurisdiction for payment of maintenance, interim maintenance, criteria for determining the quantum of maintenance and the date from which maintenance is awarded and enforcement of maintenance orders.
In the given case, the respondent had left her matrimonial house in the year 2013 after the birth of her son. She further filed a petition u/s 125 Cr. PC thereby asking for interim maintenance for herself and her minor son. The maintenance was awarded to her by the Family Court upon which the husband, Rajesh, filed an appeal to HC of Bombay. The current case acts like a SLP filed by husband that questions the validity of the previous orders. Furthermore, the Court had granted the leave and asked the husband to file his ITR and make interim maintenance and other payments to his wife. The failure to make such payments would result in Contempt of Court for not obeying the orders of the Court.
After declaring the decision, the court found it necessary “to frame guidelines to ensure that there is uniformity and consistency in deciding the same” (such cases).
(a) Section 28 A of the Hindu Marriage Act, 1956 r.w. Section 18 of the Family Courts Act, 1984 and Order XXI Rule 94 of the CPC for executing an Order passed under Section 24 of the Hindu Marriage Act (before the Family Court);
(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and
(c) Section 128 of Cr.P.C. before the Magistrate’s Court.
Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be executable in accordance with the CPC / Cr.P.C.
Section 125(3) of the Cr.P.C provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier
I) Issue of Overlapping Jurisdiction
II) Payment of Interim Maintenance
III) Date from which maintenance is to be awarded
IV) Enforcement/Execution of orders of maintenance
V) Criteria for determining quantum of maintenance
I) Issue of Overlapping Jurisdiction
(a) Issue of overlapping jurisdiction
The Court held that a party is not precluded from approaching Court as the nature and purpose of the relief under each Act is distinct and independent and is equally true that simultaneous operations of these Acts would lead to multiple proceedings and conflicts in the orders. Hence the process has to be streamlined, so that the husband is not obligated to comply with successive orders of maintenance passed under different enactments.o:p>
The relevant paragraph here;
““It is well settled that a wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding.”
Furthermore, the court directed for a subsequent maintenance proceeding where the applicant shall disclose previous maintenance proceeding and orders passed therein, so that Court can take into consideration the maintenance awarded in previous proceeding. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.o:p>
(b) Payment of Interim Maintenance
In the given case, the issue of interim maintenance is decided on the basis of pleadings where there has to be some amount of guess-work or rough estimation that takes place as to a prima facie assessment takes place for the amount to be awarded. Furthermore, it is observed people usually suppress information and do not present the clear picture which makes it difficult for Family Courts to make a correct assessment for grant of the maintenance.
“While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.”
It was therefore directed that the Affidavit of Disclosure of Assets and Liabilities shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, as the case may be, throughout the country.
Apart from this the Court also directed that 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.
For this, Section 6 provides that the State Government shall, in consultation with the High Court, make provision for counsellors to assist a Family Court in the discharge of its functions. 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, which would help in the process of settlement. If the proceedings for settlement are unsuccessful, the Family Court would proceed with the matter on merits.
((c) Criteria for determining quantum of maintenance
The aim behind granting of an interim or permamnet alimony is to further ensure that the dependent spouse on failure of marriage is not reduced to destitution. However, there is no straitjacket formula for fixing the quantum of maintenance. The relevant paragraph here are: “The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.”o:p>
“Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.”
These are the mentioned factors that will be looked upon was held by the Court.
((d) Date from which maintenance is to be awarded
A judicial discretion is conferred by the Court to grant maintenance from the date of application or date of order in S. 125(2) Cr. P.C that it is appropriate to grant maintenance from date of application in all cases, including Section 125 Cr. P.C. There has been a significant delay in the disposal of applicants for interim maintenance for years on end. Therefore, it shall be in the interests of justice and fair play that maintenance is given from the date application is awarded. o:p>
The rationale behind maintenance being given from date of application tends to find its roots in object of maintaining legislations. The financial constraints that are suffered by a spouse that is dependent tends to hamper with the capacity to be effectively represented. Furthermore, it is necessary that maintenance is awarded from the date on which application is filed.
((e) Enforcement of orders of maintenance
It has been observed that a lot of applicants have encounter problems in case of enforcement of orders. When the maintenance is not paid on time, the very object of social welfare legislation gets defeated. The execution petition tends to remain pending for months eventually tending to nullify the object of the law.
In the decision, it was decided by the Court of law that the order of enforcement can be enforced by the respondent like a decree of a civil court. This can be made possible through the provisions that are present for enforcing a money decree. This is provided by various provisions of CPC, particularly Sections 51, 55, 58, 60 read with Order XXI.