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)

Guidelines

The guidelines concern, among other things:

  • the issue of overlapping jurisdiction under the different statutes on the payment of maintenance;
  • the payment of interim maintenance;
  • the criteria for determining the amount of maintenance to be paid;
  • the date from which maintenance is to be awarded; and
  • the enforcement of maintenance orders.

Overlapping jurisdiction

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:

  • where successive maintenance claims are made by a party under different statutes, the relevant court could consider an adjustment or set off of the amount awarded in the previous proceedings while determining whether any further amount is to be awarded in the subsequent proceedings;
  • applicants must disclose all of the previous proceedings and the orders passed therein in any subsequent proceedings; and
  • if an order passed in previous proceedings requires modification or variation, the party must file a motion with the concerned court to do so.

Payment of interim maintenance

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:

  • the parties seeking multiple adjournments; and
  • the significant time that it takes to complete pleadings at the interim stage.

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:

  • submit insufficient material;
  • disclose incorrect or ambiguous details; or
  • suppress vital information.

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:

  • Parties must endeavour to settle their disputes, and the courts should proceed with a matter on the merits only once settlement proceedings are unsuccessful.
  • A professional marriage counsellor must be made available in every court.
  • Both parties must file an affidavit of disclosure in maintenance proceedings, including proceedings pending before the concerned court.
  • The party claiming maintenance should mandatorily file a concise application for interim maintenance with limited pleadings, along with the affidavit of disclosure, before the concerned court.
  • The respondent must submit the reply, along with the affidavit of disclosure, within four weeks. The courts should not grant the respondent more than two opportunities to submit their affidavit.
  • The courts may consider exercising their power to strike off the respondent's defence if the latter seeks more than two adjournments to file their pleadings and the court finds that such conduct was a wilful and contumacious attempt to delay the proceedings.
  • On a respondent's failure to file an affidavit of disclosure within the prescribed time, the court may proceed to decide the application for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record.
  • On the basis of the pleadings filed by both parties and their affidavits, the courts should make an objective assessment of the approximate amount to be awarded for maintenance at the interim stage.
  • If any further information is required, apart from the information contained in the affidavits, the concerned court may pass appropriate orders in respect thereof.
  • If during the course of proceedings there is a change in the financial status of either party or in any relevant circumstances or new information comes to light, the party may submit an amended or supplementary affidavit of disclosure, which the court will consider at the time of final determination.
  • The concerned court must endeavour to decide the interim application for interim maintenance by a reasoned order within four to six months of the affidavits of disclosure being filed before the court.
  • These directions may be modified by the concerned court if the case so requires. The concerned court has discretion to issue necessary directions in this regard.

In addition to the above, the Supreme Court made the following observations with respect to permanent maintenance:

  • Parties can present oral and documentary evidence of income, expenditure and living standards (among other things) before for the court to consider when fixing the permanent maintenance payable to their spouse.
  • The duration of the marriage should be taken into consideration for determining the permanent maintenance to be paid.
  • Provision as to the granting of reasonable expenses for the marriage of children must be made when determining permanent maintenance (in cases where the wife has custody). The expenses should be determined by taking into account the husband's financial position and the family's customs.
  • If there are any trust funds or investments created by any spouse or grandparents in favour of the children, these should be taken into consideration when deciding the amount of child support to be paid.

Criteria for determining amount of maintenance to be paid

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:

  • the status of the parties;
  • the 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 the applicant to maintain the same standard of living to which she was accustomed in her matrimonial home;
  • whether the applicant was employed prior to marriage;
  • whether the applicant worked during the subsistence of the marriage;
  • whether the applicant had to sacrifice her employment opportunities to care for the couple's family and children; and
  • the reasonable costs of litigation for a non-working wife.

Further to the above, the court set out additional factors for determining the amount of maintenance to be paid, including:

  • the age and employment status of the parties;
  • the duration of the marriage;
  • the maintenance of any minor children; and
  • any serious disability or ill health of a spouse, child from the marriage or dependent relative who requires constant care and recurrent expenditure.

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.

Date from which maintenance is to be awarded

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.

Enforcement and execution of maintenance orders

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:

  • Section 28A(3) of the Hindu Marriage Act 1955;
  • Section 20(6)(4) of the Protection of Women from Domestic Violence Act 2012;
  • Section 128(5) of the Code of Criminal Procedure; or
  • the Code of Civil Procedure,(6) as may be applicable.

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.

Affidavits of disclosure

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.

Comment

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.

Endnotes

(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.

(3) Section 28A of the Hindu Marriage Act 1955 (Enforcement of decrees and orders) reads as follows:

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

(4) Section 20(6) of the Protection of Women from Domestic Violence Act 2012 reads as follows:

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.

(5) Section 128 of the Code of Criminal Procedure (Enforcement of order of maintenance) reads as follows:

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.

(6) Sections 51, 55, 58 and 60 read with Order XXI of the Code of Civil Procedure.