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07 January 2021
Recognising the need for uniformity, consistency, procedural fairness and timeliness in the disposal of maintenance applications, the Supreme Court recently issued guidelines on the payment of maintenance in matrimonial disputes (Rajnesh v Neha).(1) The court also provided comprehensive templates of the affidavit of disclosure of assets and liabilities (affidavit of disclosure) to be filed by parties to such matrimonial disputes.(2)
The guidelines concern, among other things:
The Supreme Court observed that different high courts have passed conflicting judgments on the issue of overlapping jurisdiction (due to the simultaneous application of various statutes under which maintenance may be claimed). In this regard, it noted that some high courts (eg, the Madhya Pradesh High Court and the Calcutta High Court) have held that since each proceeding filed by the parties in question was distinct and independent, maintenance granted in one proceeding could not be adjusted or set off in another. Conversely, the Bombay High Court and the Delhi High Court have held that adjustment or set off must take place in case of parallel maintenance proceedings.
Accordingly, in order to settle the law on overlapping jurisdiction and avoid conflicting orders being passed in different proceedings, the Supreme Court passed the following directions:
While framing the guidelines, the Supreme Court found that despite the statutory provisions requiring proceedings for interim maintenance to be disposed of in a time-bound manner, said applications often remain pending for several years due to, among other things:
It was observed that such delays defeat the object of the legislation. Further, the courts often decide the amount of interim maintenance on the basis of pleadings and rough estimations made therein. In addition, parties often:
These factors make it difficult for the courts to make an objective assessment for a grant of interim maintenance. Accordingly, the Supreme Court passed the following directions:
In addition to the above, the Supreme Court made the following observations with respect to permanent maintenance:
While setting out the criteria for determining the amount of maintenance to be paid, the Supreme Court recognised that there is no one-size-fits-all formula for doing so. Stressing the importance of maintaining a careful and just balance between all relevant factors, the court held that the amount of maintenance awarded must be reasonable and realistic. It directed the courts to observe the fact that maintenance awarded to an applicant should be neither so extravagant that it becomes oppressive and unbearable for the respondent nor so meagre that it drives the applicant to penury.
In addition to the statutory guidance, the Supreme Court provided a number of indicative factors to be considered when determining the amount of maintenance to be paid, including:
Further to the above, the court set out additional factors for determining the amount of maintenance to be paid, including:
These factors are not exhaustive and the concerned court can exercise its discretion to consider any other factors which may be necessary or relevant in the facts of a particular case.
When deciding the date from which maintenance is to be awarded, the court found that most of the statutes which contain provisions for maintenance (except Section 125(2) of the Code of Criminal Procedure) are silent on this issue. The lack of a uniform regime has resulted in inconsistencies in the practice adopted by various courts. While some courts have held that payment of maintenance must be made from the date on which the application for maintenance is filed, others have held that such payment should be made from the date of the order of maintenance. Others still have held that such payments should be made from the date on which the summons is served on the respondent.
With a view to settling the law in this regard, the Supreme Court held that maintenance in all cases (including under Section 125 of the Code of Criminal Procedure) must be awarded from the date on which the application was made before the concerned court. This was done with a view to prevent a dependant spouse from being reduced to destitution.
The Supreme Court observed that execution petitions following an order of maintenance usually remain pending for a long time. It recognised that if maintenance is not paid in a timely manner, this defeats the object of the social welfare legislation.
Accordingly, the court directed that an order or decree of maintenance may be enforced under:
It was further held that an order of maintenance may be enforced as a monetary decree of a civil court as provided by various provisions of the Code of Civil Procedure (eg, the provisions on civil detention or the attachment of property).
The Supreme Court also noted the practice of striking off a respondent's defence in the case of non-payment of maintenance, which has been adopted by certain courts. In this regard, it cautioned the courts that striking off a respondent's defence should be a last resort in cases where the defaulting party's conduct is found to be wilful and contumacious. It further provided that contempt proceedings for wilful disobedience can be initiated before the appropriate court.
With the assistance of senior advocates and the National Legal Services Authority, the Supreme Court formulated comprehensive templates for affidavits of disclosure. Recognising India's vastly divergent demographic profile (comprising metropolitan cities and urban, rural and tribal areas), the court acknowledged that an affidavit filed by parties residing in urban areas will differ from one filed by parties residing in rural or tribal areas.
Accordingly, different templates were attached to the judgment (Enclosures I, II and III). Parties must disclose their assets, liabilities, income and other personal information, as the case may be. An affidavit must be filed by both parties to maintenance proceedings, including in proceedings currently pending before a family, district or magistrate's court. The requirement to file an affidavit can be dispensed with by parties who belong to an 'economically weaker section' or live below the poverty line, as well as casual labourers.
The Supreme Court's guidelines and template affidavits of disclosure should ensure that the process for granting maintenance to a spouse is carried out in a streamlined manner. The court's sensitivity towards the economic landscape while developing the templates is particularly praiseworthy. The court has sought to strike a balance between the rights, obligations and interests of the parties involved in such matrimonial disputes. The guidelines and the other recommendations made by the court seek to ensure that the social welfare objective of statutes on maintenance is duly fulfilled and not diluted by time lags and procedural irregularities.
For further information on this topic please contact Aditya Mehta, Manasvi Nandu or Tanya Singh at Cyril Amarchand Mangaldas by telephone (+91 22 2496 4455) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Cyril Amarchand Mangaldas website can be accessed atwww.cyrilshroff.com.
(1) Criminal Appeal 730/2020 arising out of SLP (Cri) 9503/2018). This case arose out of an application for interim maintenance filed in a petition under Section 125 of the Code of Criminal Procedure.
(2) Further information on maintenance is available here.
All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being in force
Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
A copy of the order of maintenance or interim maintenance and expenses of proceedings, as the case may be, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance, or as the case may be, expenses, due.
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