Recent Guidelines of Supreme Court on Maintenance Law
Written by: Ms Devshree Dangi
The term “Maintenance” is an amount payable to wife by his husband in a situation wherein the wife is unable to Maintain herself either during the subsistence of marriage or upon separation or divorce.
In India, there are various laws which deal with maintenance such as Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956; Muslim Women (Protection of Rights on Divorce) Act, 1986; Criminal Procedure Code, 1973; Special Marriage Act,1954 and some other personal laws.
Maintenance under various laws
Hindu Marriage Act, 1955
Section 24 and 25 of the Hindu Marriage Act 1955 deals with temporary and permanent maintenance. Section 24 of Hindu Marriage Act, 1955 provides that either of the spouse’s husband or wife can be granted relief if the court is satisfied that the applicant has no independent income sufficient for his or her support and necessary expenses of the proceedings pending under the Act. And section 25 of Hindu Marriage Act, 1955 provides that the applicant, either wife or husband is entitled to receive from the spouse for his/her maintenance and support a gross sum or monthly or periodical sum for a term not exceeding the applicant’s lifetime or until he/she remarries or remains chaste.
Muslim Women (Protection of Rights on Divorce) Act, 1986
Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 provides that a divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children; an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and all the properties were given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
Hindu Adoption and Maintenance Act, 1956
Section 18 of Hindu Adoption and Maintenance Act, 1956 provides that subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.
Special Marriage Act, 1954
Section 37 of Special Marriage Act, 1954 provides that Maintenance can be claimed by the wife only in a case from a court exercising jurisdiction under Chapters V or VI of the Act. The order made under this Section can be modified or rescinded by the District Court at the instance of the husband if the court is satisfied that the wife has remarried or is not leading a chaste life.
Criminal Procedure Code, 1973
Section 125 of Criminal Procedure Code, 1973 deals with Maintenance not only to the wife but also to the child and parents. It is provided in this Section that if a husband who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself then the court may order to the husband to provide monthly maintenance to his wife.
These were the various laws pertaining to the Maintenance.
Recently, the Supreme Court has framed certain guidelines for the maintenance that will help women and children. The guidelines framed by the Supreme Court include the criteria for determining the quantum and date from when the maintenance has to be provided.
The guidelines were issued by the Supreme Court in Indu vs Rajnesh and Anr. In this case, the procedure for payment of interim maintenance under Section 125 of the Criminal Procedure Code was pending between the parties for over seven years.
The husband approached the Supreme Court challenging the High Court’s decision to uphold the trial Court’s order in which interim maintenance has awarded to his wife and minor son.
A division bench in Supreme Court comprising Justice Indu Malhotra and Justice Subhash Reddy considered it appropriate to refer the matter for mediation and arrive at a settlement. The court was informed on October 8, 2020, that the mediation had failed. The husband made an oral statement before the Supreme Court that he did not have sufficient financial means to comply with the order of maintenance payable to his wife and for the payment of maintenance he had to borrow from his father. He has further stated that he had paid the maintenance awarded to his son and he will continue paying it.
As the payment of interim had been pending for over seven years, the Supreme Court directed the family court to decide the substantive application under section 125 of the Criminal Procedure Code.
Supreme Court in the above-mentioned case felt the need to frame guidelines on the issue which will also 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 the orders of maintenance. The Supreme Court also appointed Anitha Shenoy and Gopal Sankaranaryanan, senior advocates, as amicus curiae, to seek assistance on these issues. The issues include:
Directions on overlapping jurisdiction
In order to avoid conflict on orders being passed in different proceedings of the courts, the supreme court directed that in a subsequent maintenance proceeding, the applicant will be disclosing the previous maintenance proceeding and the order passed. The courts will then be allowed to take into consideration the maintenance that has already been awarded in Grant in an adjustment of the said amount. If any modification required in the order passed in the previous proceeding, the party would be required to move the concerned court in the previous proceeding.
Guidelines regarding payment of interim maintenance:
Affidavit formats have drafted by the court that the parties have to fill out at the time of disclosing their financial status. Further, it fixes the time periods to overcome delay. Respondent is given four weeks to fill their disclosure and the concerned Court should adjudicate the issue of interim maintenance within the period of four to six months.
Criteria for determining quantum of maintenance:
There is not an specific formula to determine the quantum of maintenance but there are several grounds on the basis of which it can be determined;
- The status of the parties, reasonable needs of the wife and dependent children
- Whether the applicant is educated and professionally qualified
- Whether the applicant has any independent source of income
- Whether the income is sufficient to enable her to maintain the same standard of living 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 the adult members of the family
- Reasonable costs of litigation for a non-working wife.
Guidelines regarding date from which maintenance to be awarded:
In India there is the only statutory provision which provides that the magistrate can award maintenance either from the date of the order or from the date of application is Section 125(2) of Criminal Procedure Code. Maintenance should be granted from the date when the application is made p is the primary object of maintenance laws is to protect a deserted why and dependent children from destitution and vagrancy.