Rajnesh vs Neha & Anr.

HELD: A. In the facts and circumstances of the present case, the Judgment and order passed by the Family Court, affirmed by High Court, for payment of interim maintenance @ Rs. 15,000/- p.m. to respondent No.1-wife, and Rs.10,000 p.m. to respondent No.2-son, is affirmed. 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. If the appellant-husband fails to comply with the aforesaid directions, it would be open to the respondents to have the order enforced u/s.128 Cr.P.C., and take recourse to all other remedies which are available in accordance with law. The proceedings for payment of interim maintenance u/s. 125 Cr.P.C. have been pending between the parties for a period of over 7 years. It would be appropriate that the Family Court decides the substantive application u/s. 125 Cr.P.C., in the light of the general directions/ guidelines issued in the present judgment, within a period of 6 months’ from the date of the judgment. [Part A (x)][1111-F-H; 1112-A-C] B. Guidelines / Directions on Maintenance

1.1. 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) reinforced by Article 39 of the Constitution of India, which envisages a positive role for the State in fostering change towards the empowerment of women, led to the enactment of various legislations from time to time. [Part B][1112-G-H; 1113-B]

Captain Ramesh Chander Kaushal v Mrs. Veena

Kaushal & Ors. (1978) 4 SCC 70 : [1978] 3 SCR 782 relied on.

1.2 There are different statutes providing for making an application for grant of maintenance / interim maintenance, if any person having sufficient means neglects, or refuses to maintain his wife, children, parents. The different enactments provide an independent and distinct remedy framed with a specific object and purpose. Inspite of time frames being prescribed by various statutes for disposal of interim applications, in a vast majority of cases, the applications are not disposed of within the time frame prescribed. To address various issues which arise for consideration in applications for grant of maintenance / interim maintenance, it is necessary to frame guidelines to ensure that there is uniformity and consistency in deciding the same. [Part A (iii)][1108-G-H; 1109-A-C]

1.3 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. [Part B][1113-E-F]

1.4 It would be 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. [Part B][1112-F-G] Issue of Overlapping Jurisdiction:

2.1 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. 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. [Part B Para I][1113-G; 1114-F-G]

Nanak Chand v Chandra Kishore Aggarwal & Ors. (1969) 3 SCC 802 : [1970] 1 SCR 565 - relied on.

2.2 To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it is directed 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. [Part B Para VI (a)][1162-E-H; 1163-A] Chand Dhawan v. Jawaharlal Dhawan (1993) 3 SCC

406 : [1993] 3 SCR 954; Sudeep Chaudhary v. Radha Chaudhary (1997) 11 SCC 286 – relied on.

RD v. BD 2019 VII AD (Delhi) 466; Tanushree & Ors. v. A.S.Moorthy 2018 SCC OnLine Del 7074 approved.

Ashok Singh Pal v. Manjulata AIR 2008 MP 139; Mohan Swaroop Chauhan v. Mohini (2016) 2 MP LJ 179; Sujit Adhikari v. Tulika Adhikari (2017) SCC OnLine Cal 15484; Chandra Mohan Das v. Tapati Das 2015 SCC OnLine Cal 9554 – not approved.

Panditrao Chimaji Kalure v. Gayabai (2002) 2 Mah LJ 53; Abhilasha v. Parkash & Ors. 2020 AIR 4355; Bhagwan Dutt v. Kamla Devi (1975) 2 SCC 386 : [1975]

2 SCR 483; Chaturbhuj v. Sitabai (2008) 2 SCC 316 : [2007] 12 SCR 577; Bhuwan Mohan Singh v. Meena & Ors. (2015) 6 SCC 353 : [2014] 8 SCR 858;

Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr. (2011) 1 SCC 141 : [2010] 12 SCR 223; Kamala & Ors. v. M.R. Mohan Kumar (2019) 11 SCC 491 : [2018]

13 SCR 505; Hiral P. Harsora & Ors. v Kusum

Narottamdas Harsora & Ors. (2016) 10 SCC 165 : [2016] 9 SCR 515; D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469 : [2010] 13 SCR 706; Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 : [2013] 14 SCR 1019; Satish Chander Ahuja v Sneha Ahuja C.A. No. 2483/2020; S.R.Batra v. Taruna Batra (2007) 3 SCC

169 : [2006] 10 Suppl. SCR 1206; Rakesh Malhotra v. Krishna Malhotra (2020) SCC OnLine SC 239;

Nagendrappa Natikar v. Neelamma (2014) 14 SCC 452 : [2013] 2 SCR 426 – referred to.

Payment of Interim Maintenance:

3.1 The proviso to Section 24 of the HMA (inserted vide Act

49 of 2001 w.e.f. 24.09.2001), and the third proviso to Section

125 Cr.P.C. (inserted vide Act 50 of 2001 w.e.f. 24.09.2001) provide that the proceedings for interim maintenance, shall as far as possible, be disposed of within 60 days’ from the date of service of notice on the contesting spouse. Despite the statutory provisions granting a time-bound period for disposal of proceedings for interim maintenance, applications remain pending for several years in most of the cases. The delays are caused by various factors, such as tremendous docket pressure on the Family Courts, repetitive adjournments sought by parties, enormous time taken for completion of pleadings at the interim stage itself, etc. Pendency of applications for maintenance at the interim stage for several years defeats the very object of the legislation. [Part B Para II (i)][1138-G-H; 1139-A-B]

3.2 The issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of interim 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. [Part B Para II (ii)][1139C-D]

3.3. 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. [Part B Para II (iii)][1139-F-H; 1140-A]

3.4 The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before the concerned court, as a mandatory requirement. On the basis of the pleadings filed by both parties and the Affidavits of Disclosure, the Court would be in a position to make an objective assessment of the approximate amount to be awarded towards maintenance at the interim stage. [Part B Para II (iv) (v)][1140-B-D] Puneet Kaur v. Inderjit Singh Sawhney ILR (2012) I Delhi 73; Kusum Sharma v. Mahinder Kumar Sharma (2014) 214 DLT 493; Kusum Sharma III MANU/DE/2406/2017; Kusum Sharma IV 2017 – (2018) 246 DLT 1; Kusum Sharma V Decided by Delhi High Court vide judgment dated 06.08.2020 – referred to.

3.5 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 attached as Enclosure I and II to this judgment. The Meghalaya State Legal Services Authority that the State of Meghalaya has a predominantly tribal population, which follows a matrilineal system of society. The declaration in Meghalaya be made in the format enclosed with this judgment as Enclosure III. [Part B Para II (ix & x)][1141-G-H; 1142C-D]

3.6 Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, in exercise of powers under Article

136 read with Article 142 of the Constitution of India, guidelines are framed as: (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrate’s Court, as the case may be, throughout the country; (b) The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;

(c) The respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings. On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the applicant and the pleadings on record. [Part B Para II (xi)][1142-D-H; 1143-A-C]

3.7 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. 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. 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. [Part B Para II (xi)][1143-C-H]

3.8 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. [Part B Para II (xi)][1144-A-B]

3.9 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. [Part B Para II (xi)][1144-B-C]

3.10 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. The concerned Family Court / District Court / Magistrate’s Court must make an endeavour to decide the application for Interim Maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court. A professional Marriage Counsellor must be made available in every Family Court. [Part B Para II (xi)][1144-C-E]

Payment of Permanent alimony

4.1 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. 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. 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. 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. [Part B Para II (xi)][1144-F-H]

4.2 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. [Part B Para VI (b)][1163-B-C]

Criteria for determining quantum of maintenance:

5.1 The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it. [Part B Para III (i)][1145D-F; 1146-B]

Manish Jain v. Akanksha Jain (2017) 15 SCC 801 : [2017]

3 SCR 702 – relied on.

Jasbir Kaur Sehgal v. District Judge, Dehradun & Ors. (1997) 7 SCC 7 : [1997] 3 Suppl. SCR 529; Vinny Paramvir parmar v. Paramvir Parmar (2011) 13 SCC

112 : [2011] 9 SCR 371 – referred to.

5.2 The financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would also be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. A careful and just balance must be drawn between all relevant factors. [Part B Para III (i & ii)][1146-C, E-F]

Reema Salkan v. Sumer Singh Salkan (2019) 12 SCC

303 : [2018] 12 SCR 350; Chaturbhuj v. Sita Bai (2008)

2 SCC 316 : [2007] 12 SCR 577– relied on.

5.3 Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to, in her matrimonial home. [Part B Para III (iii & iv)][1147-A, C-D]

5.4 Apart from the aforesaid factors, certain additional factors would also be relevant for determining the quantum of maintenance payable, such as age and employment of parties, right to residence, where wife is earning some income, Maintenance of minor children and serious disability or ill heath of the spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure. 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. [Part B Para III (vi) and VI (c)][1148-B; 1163-D]

Bharat Hedge v. Smt. Saroj Hegde 140 (2007) DLT 16; Shailja & Anr. v. Khobbanna (2018) 12 SCC 199; Sunita Kachwaha & Ors. v. Anil Kachwaha (2014) 16 SCC 715; Shamima Farooqui v. Shahid Khan (2015) 5 SCC 705 : [2015] 4 SCR 137 - relied on.

Satish Chander Ahuja v Sneha Ahuja Civil Appeal No. 2483/2020 decided vide Judgment dated 15.10.2020; Chaturbhuj v. Sita Bai (2008) 2 SCC 316 : [2007] 12 SCR 577; Sanjay Damodar Kale v. Kalyani Sanjay Kale (2020) SCC Online Bom 694; Chander Prakash

Bodhraj v. Shila Rani Chander Prakash AIR 1968 Delhi

174 – referred to.

Date from which Maintenance to be awarded:

6.1 There is no provision in the HMA with respect to the date from which an Order of maintenance may be made effective. Section 125(2) Cr.P.C. 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. [Part B Para IV][1151-D-E]

6.2 In the absence of a uniform regime, there is a vast variance in the practice adopted by the Family Courts, with respect to the date from which maintenance must be awarded. The divergent views taken by the Family Courts are : first, from the date on which the application for maintenance was filed; second, the date of the order granting maintenance; third, the date on which the summons was served upon the respondent. [Part B Para IV][1151-E-F]

6.3 Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in s. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application. [Part B Para IV][1155-GH; 1156-A-B]

6.4 The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. 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 concerned Court. [Part B Para IV][1156-D-F]

6.5. It has therefore become necessary to issue directions to bring about uniformity and consistency in the orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant. [Part B Para IV][1157-C-D]

Shail Kumari Devi and Ors. v. Krishnan Bhagwan Pathak (2008) 9 SCC 632 : [2008] 11 SCR 386; Bhuwan Mohan Singh v. Meena (2015) 6 SCC 353 : [2014] 8 SCR 858; Badshah v. Urmila Badshah Godse (2014) 1 SCC 188 : [2013] 10 SCR 259 – relied on.

Susmita Mohanty v. Rabindra Nath Sahu 1996 (I) OLR 361; Kanhu Charan Jena v. Smt. Nirmala Jena 2001 Cri LJ 879; Arun Kumar Nayak v. Urmila Jena (2010) 93 AIC 726 (Ori); Ganga Prasad Srivastava v. Additional District Judge, Gonda & Ors. 2019 (6) ADJ 850; Bina Devi v State of U.P (2010) 69 ACC 19; Amit Verma v. Sangeeta Verma & Ors. CRR No. 3542/2019, decided by the Madhya Pradesh High Court vide Order dated 08.01.2020; S. Radhakumari v. K.M.K. Nair AIR 1983 Ker 139; Samir Banerjee v. Sujata Banerjee 70 CWN 633; Gouri Das v. Pradyumna Kumar Das 1986 (II) OLR 44; Kalpana Das v. Sarat Kumar Das AIR 2009 Ori 133 – referred to.

Enforcement of orders of maintenance:

7.1 Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law. [Part B Para V][1157-E]

7.2 An application for execution of an Order of Maintenance can be filed under (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); Section 128 of Cr.P.C. before the Magistrate’s Court. [Part B Para V (i)][1157-G-H; 1158-A]

7.3 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. Some Family Courts have passed orders for striking off the defence of the respondent in case of non-payment of maintenance, so as to facilitate speedy disposal of the maintenance petition. [Part B Para V (ii & iii)][1158-B-D]

7.4 It is 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 CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI. Striking off the defence of the respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court. [Part B Para V][1162-A-D]

Sushila Viresh Chhawda v. Viresh Nagsi Chhawda AIR 1996 Bom 94; Kaushalya v. Mukesh Jain Criminal Appeal Nos. 1129-1130 / 2019 decided vide Judgment dated 24.07.2019; Bani v. Parkash Singh AIR 1996 P&H 175; Mohinder Verma v. Sapna MANU/PH/3684/2014; Satish Kumar v. Meena 2001 (60) DRJ 246; Smt. Santosh Sehgal v. Shri Murari Lal Sehgal AIR 2007 Delhi 210; Gurvinder Singh v Murti & Ors. (1990) DMC 559; Venkateshwar Dwivedi v. Ruchi Dwivedi (2009) SCC OnLine Kar 481 – referred to.