Wednesday, February 1, 2023

Maintenance and alimony: New guidelines will help women, children

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The Court has framed guidelines for maintenance and it includes payment, criteria for determining the quantum and date from when it has to be awarded. It also covers overlapping jurisdiction on the issue.

By Srishti Ojha

In November 2020, the Supreme Court framed guidelines pertaining to payment of maintenance in matrimonial matters and ensured uniformity in taking the decision. The Constitution guarantees protection to women and children and empowers the State to make special provisions for their betterment. Article 15 (3), reinforced by Article 39, envisages a positive role for the State in fostering a change towards the empowerment of women. This led to the enactment of various legislations from time to time. One issue regarding women which has required framing of statutory legislation has been that of maintenance.

Justice Krishna Iyer in an important judgment had held that maintenance laws are a measure of social justice and specially enacted to protect women and children and they fall within the constitutional sweep of Article 15(3) reinforced by Article 39. The Sections of statutes calling for construction by courts are vibrant words with social functions to fulfil. “The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause—the cause of the derelicts,” he said. 

The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954, Section 125 of the CrPC, 1973, and the Protection of Women from Domestic Violence Act, 2005, which provide a statutory remedy to women, irrespective of the religious community they belong to and apart from the personal laws applicable to various religions.

The recent guidelines were issued by the Court in Indu vs Rajnesh and Anr., where proceedings for payment of interim maintenance under Section 125 CrPC were pending between the parties for over seven years. The husband had moved the Supreme Court challenging the High Court’s decision to uphold the trial court’s order awarding interim maintenance to his wife and minor son.

A division bench of the top court comprising Justices Indu Malhotra and Subhash Reddy considered it appropriate to refer the matter for mediation and arrive at a settlement. On October 8, 2020, the Court was 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 his wife and he had to borrow from his father to do so. He stated that he had paid the maintenance awarded to his son, and would continue to do so. Both parties filed their written submissions.

Considering that the proceedings for payment of interim maintenance had been pending for over seven years, the Court directed the family court to decide the substantive application under Section 125 CrPC.

The Court noted that the wife was constrained to move successive applications for enforcement. There are different statutes and enactments that provide an independent and distinct remedy framed with a specific object and purpose. In spite of timeframes being prescribed by various statutes for disposal of interim applications, in a vast majority of cases, they are not disposed of within the timeframe prescribed.

The Court, therefore, felt the need to frame guidelines on the issue which would 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. It also appointed Anitha Shenoy and Gopal Sankaranaryanan, senior advocates, as amicus curiae, to seek assistance on these issues. The issues include:

Direction on overlapping jurisdiction: To avoid conflicting orders being passed in different proceedings, the Court directed that in a subsequent maintenance proceeding, the applicant will disclose the previous maintenance proceeding, and the orders passed therein. This will allow the Court to take into consideration the maintenance already awarded and grant an adjustment of the said amount. If the order passed in the previous proceeding requires any modification, the party would be required to move the concerned court in the previous proceeding.

Guidelines regarding payment of interim maintenance: At present, this issue is decided on the basis of pleadings, where some guesswork or rough estimation takes place about 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. This 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 one by the husband to conceal his actual income. The Court, therefore, finds it necessary to lay down a procedure to stream­line the proceedings, since a dependent wife, who has no other source of income, has to take recourse to borrowing from her parents or relatives during the interim period to sustain herself and her minor children till she begins receiving interim maintenance.

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 dispute. For this, Section 6 provides that the state government shall, in consultation with the High Court, make a provision for counsellors to assist a family court in the discharge of its functions. Marriage counsellors need to be appointed in every family court to help in the process of settlement. If the proceedings for settlement are unsuccessful, the family court will proceed with the matter on merit. The party claiming maintenance, either as a spouse or as a partner in a civil union, live-in relationship or common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, along with an Affidavit of Disclosure of Assets and Liabilities before the concerned court. 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.

Criteria for determining quantum of maintenance: The objective of granting interim or permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. The factors which would weigh with the Court are as follows:

  • 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: There is no provision in the Hindu Marriage Act with respect to the date from which an order of maintenance may be made effective. Similarly, Section 12 of the Domestic Violence Act does not provide the date from which the maintenance is to be awarded. Section 125(2) CrPC 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. The view that maintenance should be granted from the date when the application is made is based on the rationale that the primary object of maintenance laws is to protect a deserted wife and dependent children from destitution and vagrancy. If maintenance is not paid from the date of application, the party seeking it would be deprived of sustenance owing to the time taken for disposal of the application, which often runs into several years.

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