RAJNESH versus NEHA & ANR.

[2020] 13 S.C.R. 1093

RAJNESH

NEHA & ANR.

(Criminal Appeal No. 730 of 2020)

NOVEMBER 04, 2020

[INDU MALHOTRA AND R. SUBHASH REDDY, JJ.]

Code of Criminal Procedure, 1973:

s. 125 – Interim maintenance – For wife and minor child –Awarded by Family Court – Affirmed by High Court – Appeal toCSupreme Court – Held: Orders passed by Courts below affirmed –Husband is directed to pay entire arrears of maintenance and tocontinue to comply with the same, during the pendency of theproceedings u/s. 125.

Family Laws:

Maintenance/ interim maintenance – Maintenance laws havebeen enacted as measure of social justice which fall withinconstitutional sweep of Art. 15(3) reinforced by Art. 39 of theConstitution – Guidelines framed in exercise of power u/Art. 142 –On the issues of maintenance which would cover overlappingjurisdictions under different enactments for payment of maintenance;payment of interim maintenance; criteria for determining quantumof maintenance; the date from which the maintenance is to beawarded and enforcement of orders of maintenance – Constitutionof India – Arts. 15(3), 39 and 142 – Code of Criminal Procedure,1973 – Special Marriage Act, 1954 – Hindu Marriage Act, 1955 –Hindu Adoptions and Maintenance Act, 1956 – Protection of Womenfrom Domestic Violence Act, 2005.

Disposing of the appeal and issuing general directions/guidelines, the Court.

HELD: A. In the facts and circumstances of the presentcase, the Judgment and order passed by the Family Court, affirmedby 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

Apay the entire arrears of maintenance @ Rs.15,000/- p.m., withina period of 12 weeks from the date of this Judgment, and continueto comply with this order during the pendency of the proceedingsu/s. 125 Cr.P.C. before the Family Court. If the appellant-husbandfails to comply with the aforesaid directions, it would be open tothe respondents to have the order enforced u/s.128 Cr.P.C., andBtake recourse to all other remedies which are available inaccordance with law. The proceedings for payment of interimmaintenance u/s. 125 Cr.P.C. have been pending between theparties for period of over 7 years. It would be appropriate thatthe Family Court decides the substantive application u/s. 125CCr.P.C., in the light of the general directions/ guidelines issued inthe present judgment, within period of 6 months’ from the dateof the judgment. [Part (x)][1111-F-H; 1112-A-C]

B. Guidelines/DirectionsonMaintenance

1.1. Maintenance laws have been enacted as measure ofDsocial justice to provide recourse to dependant wives and childrenfor their financial support, so as to prevent them from falling intodestitution and vagrancy. Article 15(3) reinforced by Article 39 ofthe Constitution of India, which envisages positive role for theState in fostering change towards the empowerment of women,Eled to the enactment of various legislations from time to time.[Part B][1112-G-H; 1113-B]

Captain Ramesh Chander Kaushal v Mrs. VeenaKaushal & Ors. (1978) 4 SCC 70 : [1978] 3 SCR 782 -relied on.F1.2 There are different statutes providing for making anapplication for grant of maintenance / interim maintenance, if anyperson having sufficient means neglects, or refuses to maintainhis wife, children, parents. The different enactments provide anindependent and distinct remedy framed with specific objectGand purpose. Inspite of time frames being prescribed by variousstatutes for disposal of interim applications, in vast majority ofcases, the applications are not disposed of within the time frameprescribed. To address various issues which arise forconsideration in applications for grant of maintenance / interimmaintenance, it is necessary to frame guidelines to ensure thatH

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 issueof maintenance are the Special Marriage Act 1954 (“SMA”),Section 125 of the Cr.P.C. 1973; and the Protection of Womenfrom Domestic Violence Act, 2005 (“D.V. Act”) which provide astatutory remedy to women, irrespective of the religiouscommunity to which they belong, apart from the personal lawsapplicable to various religious communities. [Part B][1113-E-F]

1.4 It would be appropriate to frame guidelines on the issueof maintenance, which would cover overlapping jurisdiction underdifferent enactments for payment of maintenance, payment ofInterim Maintenance, the criteria for determining the quantumof 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 theafore-mentioned statutes, since each of these enactmentsprovides an independent and distinct remedy framed with specificobject and purpose. While it is true that party is not precludedfrom approaching the Court under one or more enactments, sincethe nature and purpose of the relief under each Act is distinctand independent, it is equally true that the simultaneous operationof these Acts, would lead to multiplicity of proceedings andconflicting orders. This would have the inevitable effect ofoverlapping jurisdiction. This process requires to be streamlined,so that the respondent / husband is not obligated to comply withsuccessive orders of maintenance passed under differentenactments. [Part 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, andavoid conflicting orders being passed in different proceedings, it isdirected that: (i) where successive claims for maintenance aremade by party under different statutes, the Court would consider

Aan adjustment or set- off, of the amount awarded in the previousproceeding/s, while determining whether any further amount isto be awarded in the subsequent proceeding; (ii) it is mademandatory for the applicant to disclose the previous proceedingand the orders passed therein, in the subsequent proceeding;(iii) if the order passed in the previous proceeding/s requires anyBmodification or variation, it would be required to be done in thesame proceeding. [Part Para VI (a)][1162-E-H; 1163-A]

Chand Dhawan v. Jawaharlal Dhawan (1993) 3 SCC406 : [1993] 3 SCR 954; Sudeep Chaudhary v. RadhaChaudhary (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;DMohan Swaroop Chauhan v. Mohini (2016) 2 MP LJ179; Sujit Adhikari v. Tulika Adhikari (2017) SCCOnLine Cal 15484; Chandra Mohan Das v. Tapati Das2015 SCC OnLine Cal 9554 – not approved.

Panditrao Chimaji Kalure v. Gayabai (2002) 2 MahELJ 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.F(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 KusumNarottamdas Harsora & Ors. (2016) 10 SCC 165 :[2016] 9 SCR 515; D. Velusamy v. D. PatchaiammalG(2010) 10 SCC 469 : [2010] 13 SCR 706; Indra Sarmav. V.K.V. Sarma (2013) 15 SCC 755 : [2013] 14 SCR1019; Satish Chander Ahuja v Sneha Ahuja C.A. No.2483/2020; S.R.Batra v. Taruna Batra (2007) 3 SCC169 : [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.

PaymentofInterimMaintenance:

3.1 The proviso to Section 24 of the HMA (inserted vide Act49 of 2001 w.e.f. 24.09.2001), and the third proviso to Section125 Cr.P.C. (inserted vide Act 50 of 2001 w.e.f. 24.09.2001)provide that the proceedings for interim maintenance, shall as faras possible, be disposed of within 60 days’ from the date of serviceof notice on the contesting spouse. Despite the statutoryprovisions granting time-bound period for disposal ofproceedings for interim maintenance, applications remain pendingfor several years in most of the cases. The delays are caused byvarious factors, such as tremendous docket pressure on theFamily Courts, repetitive adjournments sought by parties,enormous time taken for completion of pleadings at the interimstage itself, etc. Pendency of applications for maintenance at theinterim stage for several years defeats the very object of thelegislation. [Part Para II (i)][1138-G-H; 1139-A-B]

3.2 The issue of interim maintenance is decided on the basisof pleadings, where some amount of guess-work or roughestimation takes place, so as to make prima facie assessmentof the amount to be awarded. It is often seen that both partiessubmit scanty material, do not disclose the correct details, andsuppress vital information, which makes it difficult for the FamilyCourts to make an objective assessment for grant of interimmaintenance. While there is tendency on the part of the wife toexaggerate her needs, there is corresponding tendency by thehusband to conceal his actual income. [Part Para II (ii)][1139-C-D]

3.3. In the first instance, the Family Court in compliancewith 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 consultationwith the High Court, make provision for counsellors to assist aFamily Court in the discharge of its functions. Given the largeand growing percentage of matrimonial litigation, it has become

BCD

Anecessary that the provisions of Section 5 and 6 of the FamilyCourts Act are given effect to, by providing for the appointmentof marriage counsellors in every Family Court, which would helpin the process of settlement. If the proceedings for settlementare unsuccessful, the Family Court would proceed with the matteron merits. [Part Para II (iii)][1139-F-H; 1140-A]B

3.4 The party claiming maintenance either as spouse, oras partner in civil union, live-in relationship, common lawmarriage, should be required to file concise application forinterim maintenance with limited pleadings, alongwith an Affidavitof Disclosure of Assets and Liabilities before the concerned court,Cas mandatory requirement. On the basis of the pleadings filedby both parties and the Affidavits of Disclosure, the Court wouldbe in position to make an objective assessment of theapproximate amount to be awarded towards maintenance at theinterim stage. [Part Para II (iv) (v)][1140-B-D]DPuneet Kaur v. Inderjit Singh Sawhney ILR (2012) IDelhi 73; Kusum Sharma v. Mahinder Kumar Sharma(2014) 214 DLT 493; Kusum Sharma III MANU/DE/2406/2017; Kusum Sharma IV 2017 – (2018) 246 DLT1; Kusum Sharma V Decided by Delhi High Court videEjudgment 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 torural areas, or tribal areas. For this purpose, comprehensiveAffidavit of Disclosure of Assets and Liabilities is attached asFEnclosure I and II to this judgment. The Meghalaya State LegalServices Authority that the State of Meghalaya has predominantlytribal population, which follows matrilineal system of society. Thedeclaration in Meghalaya be made in the format enclosed with thisjudgment as Enclosure III. [Part Para II (ix & x)][1141-G-H; 1142-C-D]G3.6 Keeping in mind the need for uniform format ofAffidavit of Disclosure of Assets and Liabilities to be filed inmaintenance proceedings, in exercise of powers under Article136 read with Article 142 of the Constitution of India, guidelinesare framed as: (a) The Affidavit of Disclosure of Assets andH

Liabilities annexed at Enclosures I, II and III of this judgment,as may be applicable, shall be filed by the parties in all maintenanceproceedings, including pending proceedings before theconcerned Family Court / District Court / Magistrate’s Court, asthe case may be, throughout the country; (b) The applicant makingthe claim for maintenance will be required to file conciseapplication accompanied with the Affidavit of Disclosure of Assets;(c) The respondent must submit the reply alongwith the Affidavitof Disclosure within maximum period of four weeks. The Courtsmay not grant more than two opportunities for submission of theAffidavit of Disclosure of Assets and Liabilities to the respondent.If the respondent delays in filing the reply with the Affidavit, andseeks more than two adjournments for this purpose, the Courtmay consider exercising the power to strike off the defence ofthe respondent, if the conduct is found to be wilful andcontumacious in delaying the proceedings. On the failure to filethe Affidavit within the prescribed time, the Family Court mayproceed to decide the application for maintenance on basis of theAffidavit filed by the applicant and the pleadings on record.[Part Para II (xi)][1142-D-H; 1143-A-C]

3.7 The above format may be modified by the concernedCourt, if the exigencies of case require the same. It would beleft to the judicial discretion of the concerned Court, to issuenecessary directions in this regard. If apart from the informationcontained in the Affidavits of Disclosure, any further informationis required, the concerned Court may pass appropriate orders inrespect thereof. If there is any dispute with respect to thedeclaration made in the Affidavit of Disclosure, the aggrieved partymay seek permission of the Court to serve interrogatories, andseek production of relevant documents from the opposite partyunder Order XI of the CPC. On filing of the Affidavit, the Courtmay invoke the provisions of Order X of the C.P.C or Section165 of the Evidence Act 1872, if it considers it necessary to doso. The income of one party is often not within the knowledge ofthe other spouse. The Court may invoke Section 106 of theEvidence Act, 1872, if necessary, since the income, assets andliabilities of the spouse are within the personal knowledge of theparty concerned. [Part Para II (xi)][1143-C-H]

ABC

3.8 If during the course of proceedings, there is change inthe financial status of any party, or there is change of any relevantcircumstances, or if some new information comes to light, theparty may submit an amended/ supplementary affidavit, whichwould be considered by the court at the time of final determination.[Part Para II (xi)][1144-A-B]

3.9 The pleadings made in the applications for maintenanceand replies filed should be responsible pleadings; if falsestatements and misrepresentations are made, the Court mayconsider initiation of proceeding u/s. 340 Cr.P.C., and for contemptof Court. [Part Para II (xi)][1144-B-C]C

3.10 In case the parties belong to the Economically WeakerSections (“EWS”), or are living Below the Poverty Line (“BPL”),or are casual labourers, the requirement of filing the Affidavitwould be dispensed with. The concerned Family Court / DistrictCourt / Magistrate’s Court must make an endeavour to decideDthe application for Interim Maintenance by reasoned order, withina period of four to six months at the latest, after the Affidavits ofDisclosure have been filed before the court. professionalMarriage Counsellor must be made available in every FamilyCourt. [Part Para II (xi)][1144-C-E]

EPayment of Permanentalimony

4.1 Parties may lead oral and documentary evidence withrespect to income, expenditure, standard of living, etc. beforethe concerned Court, for fixing the permanent alimony payableto the spouse. In contemporary society, where several marriagesFdo not last for reasonable length of time, it may be inequitableto direct the contesting spouse to pay permanent alimony to theapplicant for the rest of her life. The duration of the marriagewould be relevant factor to be taken into consideration fordetermining the permanent alimony to be paid. Provision for grantGof reasonable expenses for the marriage of children must be madeat the time of determining permanent alimony, where the custodyis with the wife. The expenses would be determined by takinginto account the financial position of the husband and the customsof the family. If there are any trust funds / investments createdby any spouse / grandparents in favour of the children, thisH

would also be taken into consideration while deciding the finalchild support. [Part Para II (xi)][1144-F-H]

4.2 The Affidavit of Disclosure of Assets and Liabilitiesannexed as Enclosures I, II and III of this judgment, as may beapplicable, shall be filed by both parties in all maintenanceproceedings, including pending proceedings before the concernedFamily Court/ District Court / Magistrates Court, as the case maybe, throughout the country. [Part Para VI (b)][1163-B-C]

Criteria for determining quantumof maintenance:

5.1 The factors which would weigh with the Court inter aliaare the status of the parties; reasonable needs of the wife anddependant children; whether the applicant is educated andprofessionally qualified; whether the applicant has any independentsource of income; whether the income is sufficient to enable her tomaintain the same standard of living as she was accustomed to inher matrimonial home; whether the applicant was employed prior toher marriage; whether she was working during the subsistence ofthe marriage; whether the wife was required to sacrifice heremployment opportunities for nurturing the family, child rearing, andlooking after adult members of the family; reasonable costs oflitigation for non-working wife. Maintenance is dependent uponfactual situations; the Court should mould the claim for maintenancebased on various factors brought before it. [Part Para III (i)][1145-

D-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; VinnyParamvir parmar v. Paramvir Parmar (2011) 13 SCC112 : [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 familymembers whom he is obliged to maintain under the law, liabilities ifany, would also be required to be taken into consideration, to arriveat the appropriate quantum of maintenance to be paid. careful and

Ajust balance must be drawn between all relevant factors. [Part BPara III (i & ii)][1146-C, E-F]

Reema Salkan v. Sumer Singh Salkan (2019) 12 SCC303 : [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 withrespect to the criteria for determining the quantum of maintenance.Section 20(2) of the D.V. Act provides that the monetary reliefgranted to the aggrieved woman and / or the children must beadequate, fair, reasonable, and consistent with the standard ofCliving to which the aggrieved woman was accustomed to, inher matrimonial home. [Part Para III (iii & iv)][1147-A, C-D]

5.4 Apart from the aforesaid factors, certain additional factorswould also be relevant for determining the quantum of maintenancepayable, such as age and employment of parties, right to residence,Dwhere wife is earning some income, Maintenance of minor childrenand serious disability or ill heath of the spouse, child / children fromthe marriage / dependant relative who require constant care andrecurrent expenditure. The aforesaid factors are however notexhaustive, and the concerned Court may exercise its discretion toconsider any other factor/s which may be necessary or of relevanceEin the facts and circumstances of case. [Part 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; SunitaKachwaha & Ors. v. Anil Kachwaha (2014) 16 SCC 715;FShamima 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] 12GSCR 577; Sanjay Damodar Kale v. Kalyani Sanjay Kale(2020) SCC Online Bom 694; Chander PrakashBodhraj v. Shila Rani Chander Prakash AIR 1968 Delhi174 – referred to.

DatefromwhichMaintenance tobeawarded:

6.1 There is no provision in the HMA with respect to thedate from which an Order of maintenance may be made effective.Section 125(2) Cr.P.C. is the only statutory provision whichprovides that the Magistrate may award maintenance either fromthe date of the order, or from the date of application. [Part ParaIV][1151-D-E]

6.2 In the absence of uniform regime, there is vast variancein the practice adopted by the Family Courts, with respect to thedate from which maintenance must be awarded. The divergent viewstaken by the Family Courts are : first, from the date on which theapplication for maintenance was filed; second, the date of the ordergranting maintenance; third, the date on which the summons wasserved upon the respondent. [Part Para IV][1151-E-F]

6.3 Even though judicial discretion is conferred upon theCourt to grant maintenance either from the date of application orfrom the date of the order in s. 125(2) Cr.P.C., it would be appropriateto grant maintenance from the date of application in all cases, includingSection 125 Cr.P.C. In the practical working of the provisions relatingto maintenance, there is significant delay in disposal of theapplications for interim maintenance for years on end. It wouldtherefore be in the interests of justice and fair play that maintenanceis awarded from the date of the application. [Part Para IV][1155-G-H; 1156-A-B]

6.4 The rationale of granting maintenance from the date ofapplication finds its roots in the object of enacting maintenancelegislations, so as to enable the wife to overcome the financial crunchwhich occurs on separation from the husband. Financial constraintsof dependant spouse hampers their capacity to be effectivelyrepresented before the Court. In order to prevent dependant frombeing reduced to destitution, it is necessary that maintenance isawarded from the date on which the application for maintenance isfiled before the concerned Court. [Part Para IV][1156-D-F]

6.5. It has therefore become necessary to issue directions tobring about uniformity and consistency in the orders passed by all

ACourts, by directing that maintenance be awarded from the date onwhich the application was made before the concerned Court. Theright to claim maintenance must date back to the date of filing theapplication, since the period during which the maintenanceproceedings remained pending is not within the control of theapplicant. [Part Para IV][1157-C-D]B

Shail Kumari Devi and Ors. v. Krishnan Bhagwan Pathak(2008) 9 SCC 632 : [2008] 11 SCR 386; Bhuwan MohanSingh 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.C

Susmita Mohanty v. Rabindra Nath Sahu 1996 (I) OLR361; Kanhu Charan Jena v. Smt. Nirmala Jena 2001 CriLJ 879; Arun Kumar Nayak v. Urmila Jena (2010) 93AIC 726 (Ori); Ganga Prasad Srivastava v. AdditionalDistrict Judge, Gonda & Ors. 2019 (6) ADJ 850; BinaDDevi v State of U.P (2010) 69 ACC 19; Amit Verma v.Sangeeta Verma & Ors. CRR No. 3542/2019, decided bythe Madhya Pradesh High Court vide Order dated08.01.2020; S. Radhakumari v. K.M.K. Nair AIR 1983Ker 139; Samir Banerjee v. Sujata Banerjee 70 CWNE633; Gouri Das v. Pradyumna Kumar Das 1986 (II) OLR44; Kalpana Das v. Sarat Kumar Das AIR 2009 Ori 133– referred to.

Enforcementofordersofmaintenance:

7.1 Enforcement of the order of maintenance is the mostFchallenging issue, which is encountered by the applicants. Ifmaintenance is not paid in timely manner, it defeats the veryobject of the social welfare legislation. Execution petitions usuallyremain pending for months, if not years, which completely nullifiesthe object of the law. [Part Para V][1157-E]

G7.2 An application for execution of an Order of Maintenancecan be filed under (a) Section 28 of the Hindu Marriage Act,1956 r.w. Section 18 of the Family Courts Act, 1984 and OrderXXI Rule 94 of the CPC for executing an Order passed underSection 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 ParaV (i)][1157-G-H; 1158-A]

7.3 Section 18 of the Family Courts Act, 1984 provides thatorders passed by the Family Court shall be executable in accordancewith the CPC / Cr.P.C. Section 125(3) of the Cr.P.C provides that ifthe party against whom the order of maintenance is passed fails tocomply with the order of maintenance, the same shall be recoveredin the manner as provided for fines, and the Magistrate may awardsentence of imprisonment for term which may extend to one month,or until payment, whichever is earlier. Some Family Courts havepassed orders for striking off the defence of the respondent in caseof non-payment of maintenance, so as to facilitate speedy disposal ofthe maintenance petition. [Part Para V (ii & iii)][1158-B-D]

7.4 It is directed that the order or decree of maintenance maybe enforced like decree of civil court, through the provisionswhich are available for enforcing money decree, including civildetention, attachment of property, etc. as provided by variousprovisions of the CPC, more particularly Sections 51, 55, 58, 60read with Order XXI. Striking off the defence of the respondent isan order which ought to be passed in the last resort, if the Courtsfind default to be wilful and contumacious, particularly to dependantunemployed wife, and minor children. Contempt proceedings forwilful disobedience may be initiated before the appropriate Court.[Part Para V][1162-A-D]Sushila Viresh Chhawda v. Viresh Nagsi Chhawda AIR1996 Bom 94; Kaushalya v. Mukesh JainCriminal AppealNos. 1129-1130 / 2019 decided vide Judgment dated24.07.2019; Bani v. Parkash Singh AIR 1996 P&H 175;Mohinder Verma v. Sapna MANU/PH/3684/2014; SatishKumar v. Meena 2001 (60) DRJ 246; Smt. Santosh Sehgalv. Shri Murari Lal Sehgal AIR 2007 Delhi 210; GurvinderSingh v Murti & Ors. (1990) DMC 559; VenkateshwarDwivedi v. Ruchi Dwivedi (2009) SCC OnLine Kar 481 –referred to.

1106SUPREME COURT REPORTS

[2020] 13 S.C.R.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.730 of 2020.

From the Judgment and Order dated 14.08.2018 of the High Courtof Judicature at Bombay Nagpur Bench, Nagpur in Criminal Writ PetitionNo. 875 of 2015.

Anurag Gharote, Ms. Pragya Baghel, Satyajit A. Desai, SatyaKam Sharma, Ms. Anagha S. Desai, Advs. for the appearing parties.

JUDGMENT

INDU MALHOTRA, J.

Leave granted.

PART A(i)The present Criminal Appeal arises out of an applicationfor Interim Maintenance filed in petition u/S. 125 Cr.P.C.by the Respondent-wife and minor son. The RespondentNo.1-wife left the matrimonial home in January 2013, shortlyafter the birth of the son-Respondent No.2. On 02.09.2013,

(iii)

the wife filed an application for interim maintenance u/S.125 Cr.P.C. on behalf of herself and the minor son. TheFamily Court vide detailed Order dated 24.08.2015awarded interim maintenance of Rs.15,000 per month tothe Respondent No.1- wife from 01.09.2013; and Rs.5,000per month as interim maintenance for the Respondent No.2-son from 01.09.2013 to 31.08.2015; and @ Rs. 10,000per month from 01.09.2015 onwards till further orders werepassed in the main petition.

The Appellant-husband challenged the Order of theFamily Court vide Criminal Writ Petition No.875/2015 filedbefore the Bombay High Court, Nagpur Bench. The HighCourt dismissed the Writ Petition vide Order dated14.08.2018, and affirmed the Judgment passed by the FamilyCourt.

The present appeal has been filed to impugn the Orderdated 14.08.2018. This Court issued notice to the wife anddirected the Appellant-husband to file his Income Tax Returnsand Assessment Orders for the period from 2005-2006 tilldate. He was also directed to place photocopy of hispassport on record. By further Order dated 11.09.2019,the Appellant-husband was directed to make payment ofthe arrears of Rs.2,00,000 towards interim maintenance tothe wife; and further amount of Rs.3,00,000, which wasdue and payable to the wife towards arrears of maintenance,as per his own admission. By subsequent Order dated14.10.2019, it was recorded that only part of the arrearshad been paid. final opportunity was granted to the Appellant-husband to make payment of the balance amount by30.11.2019, failing which, the Court would proceed underthe Contempt of Courts Act for wilful disobedience with theOrders passed by this Court.

In the backdrop of the facts of this case, we consideredit fit to frame guidelines on certain aspects pertaining to thepayment of maintenance in matrimonial matters. There aredifferent statutes providing for making an application for grantof maintenance / interim maintenance, if any person havingsufficient means neglects, or refuses to maintain his wife,

children, parents. The different enactments provide anindependent and distinct remedy framed with specific objectand purpose. Inspite of time frames being prescribed byvarious statutes for disposal of interim applications, we havenoticed, in practice that in vast majority of cases, theapplications are not disposed of within the time frameprescribed. To address various issues which arise forconsideration in applications for grant of maintenance /interim maintenance, it is necessary to frame guidelines toensure that there is uniformity and consistency in decidingthe same. To seek assistance on these issues, we haveappointed Ms. Anitha Shenoy and Mr. GopalSankaranaryanan, Senior Advocates as Amici Curiae, whohave graciously accepted to assist this Court.

By further Order dated 17.12.2019, the Appellant wasdirected to pay an amount of Rs.1,45,000 to the Respondentno.1-wife within period of 45 days.

On the issue of framing guidelines, the National LegalServices Authority was directed to elicit responses from theState Legal Services Authorities of various States.

By subsequent Order dated 05.08.2020, it wasrecorded that an Affidavit of Compliance had been filed on04.08.2020 by the Appellant-husband, wherein it was statedthat arrears of Rs.1,45,000 till 11.09.2019 had been paid byhim in January, 2020. However, he had made no furtherpayment to the wife thereafter. With respect to the amountof Rs.10,000 p.m. payable for the minor son, the Order hadbeen complied with till July 2020. statement was made bythe Counsel for the Appellant that he was not disputing thepayment of maintenance for his son, and would continue topay the same. direction was issued by this Court to paythe entire arrears of maintenance to the wife @Rs.15,000 p.m. as fixed by the Family Court, and continueto pay the said amount during the pendency of proceedings.

By the Order dated 25.08.2020, it was noted that theAppellant had filed an Affidavit dated 23.08.2020 whereinhe had admitted and acknowledged that an amount of

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(viii)

Rs.5,00,000 was pending towards arrears of maintenanceto the Respondent No.1-wife. The Appellant was directedto pay 50% of the arrears within period of 4 weeks to theRespondent No.1, failing which, he was directed to remainpresent before the Court on the next date of hearing. TheCounsel for the husband placed on record chart of variousproceedings pending between the parties. Taking note of theaforesaid facts, we considered it appropriate to refer thematter for mediation by Mr. Shridhar Purohit, Advocate, awell-known Mediator in Nagpur, to resolve all disputespending between the parties, and arrive at an overallsettlement.

On 08.10.2020, we were informed that the mediationhad failed. The husband appeared before the Court, andmade an oral statement that he did not have the financialmeans to comply with the Order of maintenance payable tothe Respondent No.1-wife, and had to borrow loans fromhis father to pay the same. He however stated that he hadpaid the maintenance awarded to the son, and would continueto do so without demur. Both parties addressed argumentsand filed their written submissions.

We have heard the Counsel for the parties, and perusedthe written submissions filed on their behalf.

The husband has inter alia submitted that he waspresently unemployed, and was not in position to paymaintenance to the Respondent No.1-wife. He stated thathe did not own any immovable property, and had only oneoperational bank account. The husband declined to pay anyfurther amount towards the maintenance of his wife. It wasfurther submitted that the Family Court had erroneouslyrelied upon the Income Tax Returns of 2006, whiledetermining the maintenance payable in 2013. He furthersubmitted that he was exploring new business projects, whichwould enable him to be in better position to sustain hisfamily.

The wife has inter alia submitted that the amount ofRs.10,000 awarded for the son was granted when he was 2½ years old in 2015. The said amount was now highly

inadequate to meet the expenses of growing child, who is7 ½ years old, and is school-going boy. It was furthersubmitted that the admission fee for the current academicyear 2020-2021 had not yet been paid. If the fee was notpaid within time, the school would discontinue sending thelink for online classes. She submitted that she was beingover-burdened by the growing expenses, with no supportfrom the husband.

With respect to the contention of the husband that hehad no income, she submitted that the husband had madeinvestments in real estate projects, and other businesses,which he was concealing from the Court, and diverting theincome to his parents. It has also been alleged that theAppellant had retained illegal possession of her Streedhan,which he was refusing to return. Despite orders being passedby this Court, and in the proceedings under the D.V. Act, hewas deliberately not complying with the same. In thesecircumstances, it was submitted that there was major trustdeficit, and there was no prospect for reconciliation.

(ix)With respect to the issue of enhancement of maintenancefor the son, the Respondent is at liberty to move the FamilyCourt for the said relief. We cannot grant this relief in thepresent appeal, as it has been filed by the husband.

In the facts and circumstances of the case, we orderand direct that :

(a)The Judgment and order dated 24.08.2015 passedby the Family Court, Nagpur, affirmed by the BombayHigh Court, Nagpur Bench vide Order dated14.08.2018 for payment of interim maintenance @Rs.15,000 p.m. to the Respondent No.1-wife, andRs.10,000 p.m. to the Respondent No.2-son, is herebyaffirmed by this Court;

(b)The husband is directed to pay the entire arrears ofmaintenance @ Rs.15,000 p.m., within period of 12weeks’ from the date of this Judgment, and continue tocomply with this Order during the pendency of theproceedings u/S. 125 Cr.P.C. before the Family Court;

1112SUPREME COURT REPORTS

A(c)If the Appellant-husband fails to comply with theaforesaid directions of this Court, it would be open tothe respondents to have the Order enforced u/S.128Cr.P.C., and take recourse to all other remedies whichare available in accordance with law;

B(d)The proceedings for payment of interim maintenanceu/S. 125 Cr.P.C. have been pending between the partiesfor period of over 7 years now. We deem it appropriatethat the Family Court decides the substantive applicationu/S. 125 Cr.P.C. in Petition No. E-443/ 2013 finally, inlight of the directions/guidelines issued in the presentCjudgment, within period of 6 months’ from the date ofthis judgment.

The Registry is directed to forward complete copyof the pleadings, alongwith the written submissions filedby the parties, and the record of the proceedings in thepresent Criminal Appeal, to the Family Court, Nagpur.

The present Criminal Appeal is disposed of accordingly.

PART

Given the backdrop of the facts of the present case, which revealEthat the application for interim maintenance under Section 125 Cr.P.C.has remained pending before the Courts for seven years now, and thedifficulties encountered in the enforcement of orders passed by the Courts,as the wife was constrained to move successive applications forenforcement from time to time, we deem it appropriate to frame guidelinesFon the issue of maintenance, which would cover overlapping jurisdictionunder different enactments for payment of maintenance, payment ofInterim Maintenance, the criteria for determining the quantum ofmaintenance, the date from which maintenance is to be awarded, andenforcement of orders of maintenance.

Guidelines / Directions on MaintenanceG

Maintenance laws have been enacted as measure of socialjustice to provide recourse to dependant wives and children for theirfinancial support, so as to prevent them from falling into destitution andvagrancy.

Article 15(3) of the Constitution of India provides that :

“Nothing in this article shall prevent the State from makingany special provision for women and children.”

Article 15 (3) reinforced by Article 39 of the Constitution of India,which envisages positive role for the State in fostering change towardsthe empowerment of women, led to the enactment of various legislationsfrom time to time.

Justice Krishna Iyer in his judgment in Captain Ramesh ChanderKaushal v Mrs. Veena Kaushal & Ors.[1] held that the object ofmaintenance laws is :

“9. This provision is measure of social justice and speciallyenacted to protect women and children and falls within theconstitutional sweep of Article 15(3) reinforced by Article 39.We have no doubt that sections of statutes calling forconstruction by courts are not petrified print but vibrant wordswith social functions to fulfil. The brooding presence of theconstitutional empathy for the weaker sections like womenand children must inform interpretation if it has to have socialrelevance. So viewed, it is possible to be selective in pickingout that interpretation out of two alternatives which advancesthe cause — the cause of the derelicts.”

The legislations which have been framed on the issue ofmaintenance are the Special Marriage Act 1954 (“SMA”), Section 125of the Cr.P.C. 1973; and the Protection of Women from Domestic ViolenceAct, 2005 (“D.V. Act”) which provide statutory remedy to women,irrespective of the religious community to which they belong, apart fromthe personal laws applicable to various religious communities.

IIssue of Overlapping Jurisdiction

Maintenance may be claimed under one or more of the afore-mentioned statutes, since each of these enactments provides anindependent and distinct remedy framed with specific object andpurpose. For instance, Hindu wife may claim maintenance under theHindu Adoptions and Maintenance Act 1956 (“HAMA”), and also in asubstantive proceeding for either dissolution of marriage, or restitution of

1 (1978) 4 SCC 70.

Aconjugal rights, etc. under the Hindu Marriage Act, 1955 (“HMA”) byinvoking Sections 24 and 25 of the said Act.

(i) In Nanak Chand v Chandra Kishore Aggarwal & Ors.[2],the Supreme Court held that there was no inconsistency between theCr.P.C. and HAMA. Section 4(b) of HAMA would not repeal or affectBthe provisions of Section 488 of the old Cr.P.C. It was held that :

“4. Both can stand together.The Maintenance Act is an act toamend and codify the law relating to adoptions andmaintenance among Hindus. The lawwassubstantiallysimilarbeforeandnobodyeversuggestedthatHinduLaw, as in forceCimmediately before the commencement of this Act, insofar asit dealt with the maintenance of children, was in any wayinconsistent withSection488,Cr.P.C.Thescopeofthetwolawsisdifferent.Section488 provides summary remedy andis applicable to all persons belonging to all religions and hasno relationship with the personal law of the parties. RecentlyDthe question came before the Allahabad High Court in RamSingh v. State: AIR1963All355, before the Calcutta High Courtin Mahabir Agarwalla v. Gita Roy [1962] 2 Cr. L.J.528 andbefore the Patna High Court in Nalini Ranjan v. Kiran Rani:AIR1965Pat442. The three High Courts have, in our view,Ecorrectly come to the conclusion that Section4(b) oftheMaintenanceActdoesnotrepealoraffectinanymannertheprovisions containedin Section488, Cr.P.C.”

(emphasis supplied)

While it is true that party is not precluded from approaching theFCourt under one or more enactments, since the nature and purpose ofthe relief under each Act is distinct and independent, it is equally truethat the simultaneous operation of these Acts, would lead to multiplicity ofproceedings and conflicting orders. This would have the inevitable effectof overlapping jurisdiction. This process requires to be streamlined, soGthat the respondent / husband is not obligated to comply with successiveorders of maintenance passed under different enactments.For instance, if in previous proceeding under Section 125 Cr.P.C.,an amount is awarded towards maintenance, in the subsequent proceeding

filed for dissolution of marriage under the Hindu Marriage Act, where anapplication for maintenance pendente lite is filed under Section 24 ofthat Act, or for maintenance under Section 25, the payment awarded inthe earlier proceeding must be taken note of, while deciding the amountawarded under HMA.

Statutory provisions under various enactments

(a) The Special Marriage Act, 1954 (“SMA”)

Section 4 of the Special Marriage Act, 1954 provides that amarriage between any two persons who are citizens of India may besolemnised under this Act, notwithstanding anything contained in anyother law for the time being in force. It is secular legislation applicableto all persons who solemnize their marriage in India.

Section 36 of the Special Marriage Act provides that wife isentitled to claim pendente lite maintenance, if she does not have sufficientindependent income to support her and for legal expenses. Themaintenance may be granted on weekly or monthly basis during thependency of the matrimonial proceedings. The Court would determinethe quantum of maintenance depending on the income of the husband,and award such amount as may seem reasonable.

Section 36 reads as:

“S.36. Alimony pendente lite.—Where in any proceedingunder Chapter V or Chapter VI it appears to the districtcourt that the wife has no independent income sufficientfor her support and the necessary expenses of theproceeding, it may, on the application of the wife, orderthe husband to pay her the expenses of the proceeding,and weekly or monthly during the proceeding such sumas, having regard to the husband’s income, it may seem tothe court to be reasonable.

Provided that the application for the payment of the expensesof the proceeding and such weekly or monthly sum duringthe proceeding under Chapter V or Chapter VI, shall, asfar as possible, be disposed of within sixty days from thedate of service of notice on the husband.”

Section 37 provides for grant of permanent alimony at the time ofpassing of the decree, or subsequent thereto. Permanent alimony is the

Aconsolidated payment made by the husband to the wife towards hermaintenance for life.

Section 37 reads as:

“S. 37. Permanent alimony and maintenance.—(1) Any courtexercising jurisdiction under Chapter V or Chapter VI may,Bat the time of passing any decree or at any time subsequent tothe decree, on application made to it for the purpose, orderthat the husband shall secure to the wife for her maintenanceand support if necessary, by charge on the husband’sproperty such gross sum or such monthly or periodical paymentCof money for term not exceeding her life, as, having regardto her own property, if any, her husband’s property and ability,the conduct of the parties and other circumstances of the case,as it may seem to the court to be just.

(2) If the district court is satisfied that there is change in theDcircumstances of either party at any time after it has made anorder under sub-Section (1), it may, at the instance of eitherparty, vary, modify or rescind any such order in such manneras it may seem to the court to be just.

(3) If the district court is satisfied that the wife in whose favouran order has been made under this Section has remarried orEis not leading chaste life, it may, at the instance of thehusband, vary, modify or rescind any such order and in suchmanner as the court may deem just.”

(b) The Hindu Marriage Act, 1955 (“HMA”)

FThe HMA is complete code which provides for the rights, liabilitiesand obligations arising from marriage between two Hindus. Sections24 and 25 make provision for maintenance to party who has noindependent income sufficient for his or her support, and necessaryexpenses. This is gender-neutral provision, where either the wife or thehusband may claim maintenance. The pre- requisite is that the applicantGdoes not have independent income which is sufficient for her or his support,during the pendency of the lis.

Section 24 of the HMA provides for maintenance pendente lite,where the Court may direct the respondent to pay the expenses of the

proceeding, and pay such reasonable monthly amount, which is consideredto be reasonable, having regard to the income of both the parties.

Section 24 reads as:

“24. Maintenance pendente lite and expenses ofproceedings.—

Where in any proceeding under this Act it appears to the courtthat either the wife or the husband, as the case may be, hasno independent income sufficientforherorhissupportandthenecessaryexpenses of the proceeding, it may, on theapplication of the wife or the husband, order the respondentto pay to the petitioner the expenses of the proceeding, andmonthlyduringtheproceedingsuchsumas,havingregardtothe petitioner’s own incomeand the income of the respondent,it may seem to the court to be reasonable.

Providedthattheapplicationforthepaymentoftheexpensesoftheproceeding and such monthly sum during theproceeding, shall, as far as possible, be disposed of withinsixty days from the date of service of notice on thewifeorthe”husband, asthecasemaybe.

(emphasis supplied)

The proviso to Section 24 providing time line of 60 days fordisposal of the application was inserted vide Act 49 of 2001 w.e.f.24.09.2001.

Section 25 provides for grant of permanent alimony, which readsas :

“25. Permanent alimony and maintenance —

(1) Any court exercising jurisdiction under this Act may, atthe time of passing any decree or at any time subsequentthereto, on application made to it for the purpose by eitherthe wife or the husband, as the case may be, order that therespondentshallpaytotheapplicant for her or his maintenanceandsupportsuchgrosssumorsuchmonthlyorperiodicalsum for term not exceeding the life of the applicant as, havingregard to the respondent’s own income and other property, ifany, the income and other propertyoftheapplicant,the

conductofthepartiesandothercircumstances of the case, itmay seem to the court to be just, and any such payment maybe secured, if necessary, by charge on the immovablepropertyoftherespondent.

(2) If the court is satisfied that there is, change in theBcircumstances of either party at any time after it has made anorder under sub-section (1), it may at the instance of eitherparty, vary, modify or rescind any such order in such manneras the court may deem just.

(3) If the court is satisfied that the party in whose favour anCorder has been made under this section has remarried or, ifsuch party is the wife, that she has not remained chaste, or, ifsuch party is the husband, that he has had sexual intercoursewith any woman outside wedlock, it may at the instance of theother party vary, modify or rescind any such order in suchmanner as the court may deem just.”D

(emphasis supplied)

Section 26 of the HMA provides that the Court may from time totime pass interim orders with respect to the custody, maintenance andeducation of the minor children.

E(c) Hindu Adoptions & Maintenance Act, 1956 (“HAMA”)

HAMA is special legislation which was enacted to amend andcodify the laws relating to adoption and maintenance amongst Hindus,during the subsistence of the marriage. Section 18 provides that Hinduwife shall be entitled to be maintained by her husband during her lifetime.FShe is entitled to make claim for separate residence, without forfeitingher right to maintenance. Section 18 read in conjunction with Section 23states the factors required to be considered for deciding the quantum ofmaintenance to be paid. Under sub-section (2) of Section 18, the husbandhas the obligation to maintain his wife, even though she may be livingseparately. The right of separate residence and maintenance wouldGhowever not be available if the wife has been unchaste, or has convertedto another religion.

Section 18 reads as follows :

“18. Maintenance of wife.—

(1) Subject to the provisions of this section, Hindu wife,whether married before or after the commencement of thisAct, shall be entitled to be maintained by her husband duringher lifetime.

(2) Hindu wife shall be entitled to live separately from herhusband without forfeiting her claim to maintenance—

(a) if he is guilty of desertion, that is to say, of abandoningher without reasonable cause and without her consent oragainst her wish or willfully neglecting her;

(b) if he has treated her with such cruelty as to cause areasonable apprehension in her mind that it will be harmfulor injurious to live with her husband;

(c) [****]

(d) if he has any other wife living;

(e) if he keeps concubine in the same house in which hiswife is living or habitually resides with concubine elsewhere;

(f) if he has ceased to be Hindu by conversion to anotherreligion;

(g) if there is any other cause justifying living separately.

(3) Hindu wife shall not be entitled to separate residencyand maintenance from her husband if she is unchaste or ceasesto be Hindu by conversion to another religion.”

The distinction between maintenance under HMA and HAMA isthat the right under Section 18 of HAMA is available during the subsistenceof marriage, without any matrimonial proceeding pending between theparties. Once there is divorce, the wife has to seek relief under Section25 of HMA.[3]

Under HMA, either the wife, or the husband, may move for judicialseparation, restitution of conjugal rights, dissolution of marriage, paymentof interim maintenance under Section 24, and permanent alimony underSection 25 of the Act, whereas under Section 18 of HAMA, only wifemay seek maintenance.

3 Panditrao Chimaji Kalure v Gayabai (2002) 2 Mah LJ 53.

AThe interplay between the claim for maintenance under HMA andHAMA came up for consideration by the Supreme Court in ChandDhawan v Jawaharlal Dhawan.[4] The Supreme Court, whileconsidering the various laws relating to marriage amongst Hindus,discussed the scope of applications under the HMA and HAMA in thefollowing words :B

“23. …Section 18(1) of the Hindu Adoptions and MaintenanceAct, 1956 entitles Hindu wife to claim maintenance fromher husband during her life-time.Sub-section(2)ofSection18grantshertherighttolive separately,withoutforfeitingherclaimtomaintenance, if he is guilty of any of theCmisbehaviors enumerated therein or on account of his beingin one of objectionable conditions as mentioned therein. Sowhile sustaining her marriage and preserving her maritalstatus, the wife is entitled to claim maintenance from herhusband. Ontheotherhand,undertheHindu Marriage Act,Dincontrast,her claimfor maintenance pendente lite is duratedonthependencyofalitigationofthekindenvisagedunderSections 9to14oftheHinduMarriageAct,andherclaimtopermanentmaintenance or alimony is based on the suppositionthat either her marital status has been strained or affected bypassing decree for restitution of conjugal rights or judicialEseparation in favour or against her, or her marriagestandsdissolvedbyadecreeofnullityordivorce,withorwithouther consent.Thus when her marital status is to be affected ordisrupted the court does so by passing decree for or againsther. On or at the time of the happening of that event, theFcourt being seized of the matter, invokes its ancillary orincidental power to grant permanent alimony. Not only that,the court retains the jurisdiction at subsequent stages to fulfillthis incidental or ancillary obligation when moved by anapplication on that behalf by party entitled to relief. Thecourt further retains the power to change” or alter the orderGin view of the changed circumstances. Thus the whole exerciseis within the gammit of diseased or broken marriage. Andinordertoavoidconflictofperceptionsthelegislaturewhilecodifying the Hindu Marriage Act preserved the right of

permanent maintenance in favour of the husband or the wife,as the case may be, dependent on the court passing decreeof the kind as envisaged under Sections 9 to 14 ofthe Act. Inother words withoutthemaritalstatusbeingaffectedor;disputed by thematrimonial courtunder the Hindu MarriageAct theclaim of permanent alimony was not to be valid asancillary or incidental to such affectation or disruption. Thewife’s claim to maintenance necessarily has then to be agitatedunder the Hindu Adoptions and Maintenance Act, 1956whichisalegislativemeasurelaterinpointoftimethantheHinduMarriageAct,1955,thoughpartofthesamesocio-legalscheme revolutionizingthelaw applicableto Hindus….”

(emphasis supplied)

Section 19 of the HAMA provides that widowed daughter-in-law may claim maintenance from her father-in-law if (i) she is unable tomaintain herself out of her own earnings or other property; or, (ii) whereshe has no property of her own, is unable to obtain maintenance; (a)from the estate of her husband, or her father or mother, or (b) from herson or daughter, if any, or his or her estate. Section 20 of HAMA providesfor maintenance of children and aged parents. Section 20 casts statutoryobligation on Hindu male to maintain an unmarried daughter, who isunable to maintain herself out of her own earnings, or other property. InAbhilasha v Parkash & Ors.,[5] three-judge bench of this Court heldthat Section 20(3) is recognition of the principles of Hindu law,particularly the obligation of the father to maintain an unmarried daughter.The right is absolute under personal law, which has been given statutoryrecognition by this Act. The Court noted the distinction between the awardof maintenance to children u/S. 125 Cr.P.C., which limits the claim ofmaintenance to child, until he or she attains majority. However, if anunmarried daughter is by reason of any physical or mental abnormality orinjury, unable to maintain herself, under Section 125(1)(c), the fatherwould be obligated to maintain her even after she has attained majority.The maintenance contemplated under HAMA is wider concept. Section3(b) contains an inclusive definition of maintenance including marriageexpenses. The purpose and object of Section 125 Cr.P.C. is to provideimmediate relief to the wife and children in summary proceeding,

5 Decided on 15.10.2020 in Criminal Appeal No.615/2020.

Awhereas under Section 20 read with Section 3(b) of HAMA, muchlarger right is contemplated, which requires determination by civil court.

Section 22 provides for maintenance of dependants. Section 23provides that while awarding maintenance, the Court shall have dueregard to the criteria mentioned therein :B“23. Amount of maintenance. –

(1) It shall be in the discretion of the court to determine whetherany, and if so what, maintenance shall be awarded under theprovisions of this Act, and in doing so, the court shall havedue regard to the consideration set out in sub-section (2) orCsub-section (3), as the case may be, so far as they areapplicable.

(2) In determining the amount of maintenance, if any, to beawarded to wife, children or aged or infirm parents underthis Act, regard shall be had to—

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether the claimant isjustified in doing so;

E(d) the value of the claimant’s property and any income derivedfrom such property, or from the claimant’s own earning orfrom any other source;

(e) the number of persons entitled to maintenance under thisAct.

F(3) In determining the amount of maintenance, if any, to beawarded to dependant under this Act, regard shall be hadto—

(a) the net value of the estate of the deceased after providingGfor the payment of his debts;(b) the provision, if any, made under will of the deceased inrespect, of the dependant;

(c) the degree of relationship between the two;

(d) the reasonable wants of the dependant;

(e) the past relations between the dependant and the deceased;

(f) the value of the property of the dependant and any incomederived from such property, or from his or her earnings orfrom any other course;

(g) the number of dependants entitled to maintenance underthis Act.”

(d) Section 125 of the Cr.P.C.

Chapter IX of Code of Criminal Procedure, 1973 provides formaintenance of wife, children and parents in summary proceeding.Maintenance under Section 125 of the Cr.P.C. may be claimed by aperson irrespective of the religious community to which they belong.The purpose and object of Section 125 Cr.P.C. is to provide immediaterelief to an applicant. An application under Section 125 Cr.P.C. ispredicated on two conditions : (i) the husband has sufficient means; and(ii) “neglects” to maintain his wife, who is unable to maintain herself. Insuch case, the husband may be directed by the Magistrate to pay suchmonthly sum to the wife, as deemed fit. Maintenance is awarded on thebasis of the financial capacity of the husband and other relevant factors.

The remedy provided by Section 125 is summary in nature, andthe substantive disputes with respect to dissolution of marriage can bedetermined by civil court / family court in an appropriate proceeding,such as the Hindu Marriage Act, 1956.

In Bhagwan Dutt v Kamla Devi[6]the Supreme Court held thatunder Section 125(1) Cr.P.C. only wife who is “unable to maintainherself” is entitled to seek maintenance. The Court held :

“19. Theobjectoftheseprovisionsbeingtopreventvagrancyand destitution,theMagistratehastofindoutastowhatisrequiredbythewife to maintain standard of living which isneither luxurious nor penurious, but is modestly consistentwith the status of the family. The needs and requirements ofthe wife for such moderate living can be fairly determined,only if her separate income, also, is taken into accounttogether with the earnings of the husband and hiscommitments.”

(emphasis supplied)

6 (1975) 2 SCC 386.

APrior to the amendment of Section 125 in 2001, there was ceilingon the amount which could be awarded as maintenance, being Rs. 500“in the whole”. In view of the rising costs of living and inflation rates, theceiling of Rs. 500 was done away by the 2001 Amendment Act. TheStatement of Objects and Reasons of the Amendment Act states thatthe wife had to wait for several years before being granted maintenance.BConsequently, the Amendment Act introduced an express provision forgrant of “interim maintenance”. The Magistrate was vested with thepower to order the respondent to make monthly allowance towardsinterim maintenance during the pendency of the petition.

Under sub-section (2) of Section 125, the Court is conferred withCthe discretion to award payment of maintenance either from the date ofthe order, or from the date of the application.

Under the third proviso to the amended Section 125, the applicationfor grant of interim maintenance must be disposed of as far as possiblewithin sixty days’ from the date of service of notice on the respondent.D

The amended Section 125 reads as under :

“125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refusesto maintain- (a)hiswife,unabletomaintain herself, or

E(b) hislegitimateorillegitimateminorchild,whethermarriedornot,unableto maintain itself,or

(c) his legitimate or illegitimate child(not being marrieddaughter) who has attained majority, where such child is, byreason of any physical or mental abnormality or injury unableFto maintain itself, or

(d) his father or mother, unable to maintain himself or herself,a Magistrate of the first class may, upon proof of such neglector refusal, order such person to make monthly allowancefor the maintenance of his wife or such child, fatherormother,GatsuchmonthlyrateassuchMagistrate thinks fit, and to paythe same to such person as the Magistrate may from timetotimedirect:

Provided that the Magistrate may order the father of minorfemale child referred to in clause (b) to make such allowance,H

until she attains her majority, if the Magistrate issatisfiedthatthehusbandofsuchminorfemalechild,ifmarried, is notpossessed ofsufficientmeans:

Provided further thatthe Magistrate may, duringthe pendencyof the proceeding regarding monthly allowance for themaintenance under this sub-section, order such person tomake monthly allow for the interim maintenanceofhiswifeorsuchchild,fatherormother,andtheexpensesof suchproceedingwhichtheMagistrateconsidersreasonable,andtopaythesameto suchperson as theMagistratemayfromtimetotimedirect:

Provided also that an application for the monthly allowancefor the interim maintenanceandexpensesof proceeding underthesecondprovisoshall,as faraspossible,bedisposedofwithinsixtydaysfromthedateoftheserviceofnoticeoftheapplicationto suchperson.

Explanation. – For the purposes of this Chapter,-

(a) “minor” means person who, under the provisions of theIndian Majority Act, 1875 (9 of 1875); is deemed not to haveattained his majority;

(b) “wife” includes woman who has been divorced by, orhas obtained divorce from, her husband and has notremarried.

(2) Any such allowance for the maintenance or interimmaintenance and expenses of proceeding shall be payablefrom the date of the order, or, if so ordered, from the date ofthe application for maintenance or interim maintenance andexpenses of proceeding, as the case may be.

(3) If any person so ordered fails without sufficient cause tocomply with the order, any such Magistrate may, for everybreach of the order, issue warrant for levying the amountdue in the manner provided for levying fines, and may sentencesuch person, for the whole, or any part of each month’sallowance for the maintenance or the interim maintenanceand expenses of proceeding, as the case may be, remainingunpaid after the execution of the warrant, to imprisonment

[2020] 13 S.C.R.

Afor term which may extend to one month or until payment ifsooner made:

Provided that no warrant shall be issued for the recovery ofany amount due under this section unless application be madeto the Court to levy such amount within period of one yearBfrom the date on which it became due: Provided further thatif such person offers to maintain his wife on condition of herliving with him, and she refuses to live with him, suchMagistrate may consider any grounds of refusal stated by her,and may make an order under this section notwithstandingsuch offer, if he is satisfied that there is just ground for soCdoing.

Explanation. – If husband has contracted marriage withanother woman or keeps mistress, it shall be considered tobe just ground for his wife’ s refusal to live with him.

D(4) No wife shall be entitled to receive an allowance for themaintenance or interim maintenance and expenses ofproceeding, as the case may be, from her husband under thissection if she is living in adultery, or if, without any sufficientreason, she refuses to live with her husband, or if they areliving separately by mutual consent.

(5) On proof that any wife in whose favour an order has beenmade under this section is living in adultery, or that withoutsufficient reason she refuses to live with her husband, or thatthey are living separately by mutual consent, the Magistrateshall cancel the order.”F

(emphasis supplied)

In Chaturbhuj v Sitabai[7]this Court held that the object ofmaintenance proceedings is not to punish person for his past neglect, butto prevent vagrancy and destitution of deserted wife by providing herfood, clothing and shelter by speedy remedy. Section 125 of the Cr.P.C.Gis measure of social justice especially enacted to protect women andchildren, and falls within the constitutional sweep of Article 15(3),reinforced by Article 39 of the Constitution.

Proceedings under Section 125 of the Cr.P.C. are summary innature. In Bhuwan Mohan Singh v Meena & Ors.[8] this Court heldthat Section 125 of the Cr.P.C. was conceived to ameliorate the agony,anguish, financial suffering of woman who had left her matrimonialhome, so that some suitable arrangements could be made to enable herto sustain herself and the children. Since it is the sacrosanct duty of thehusband to provide financial support to the wife and minor children, thehusband was required to earn money even by physical labour, if he isable-bodied, and could not avoid his obligation, except on any legallypermissible ground mentioned in the statute.

The issue whether presumption of marriage arises when partiesare in live-in relationship for long period of time, which would giverise to claim u/S. 125 Cr.P.C. came up for consideration in Chanmuniyav Virendra Kumar Singh Kushwaha & Anr.[9] before the Supreme Court.It was held that where man and woman have cohabited for longperiod of time, in the absence of legal necessities of valid marriage,such woman would be entitled to maintenance. man should not beallowed to benefit from legal loopholes, by enjoying the advantages of ade facto marriage, without undertaking the duties and obligations ofsuch marriage. broad and expansive interpretation must be given tothe term “wife,” to include even those cases where man and womanhave been living together as husband and wife for reasonably longperiod of time. Strict proof of marriage should not be pre-condition forgrant of maintenance u/S. 125 Cr.P.C. The Court relied on the MalimathCommittee Report on Reforms of Criminal Justice System published in2003, which recommended that evidence regarding man and womanliving together for reasonably long period, should be sufficient to drawthe presumption of marriage.

The law presumes in favour of marriage, and against concubinage,when man and woman cohabit continuously for number of years.Unlike matrimonial proceedings where strict proof of marriage is essential,in proceedings u/S. 125 Cr.P.C. such strict standard of proof is notnecessary.[10]

8 (2015) 6 SCC 353.

9 (2011) 1 SCC 141.This judgment was referred to larger bench.10 Kamala & Ors. v. M.R. Mohan Kumar (2019) 11 SCC 491.

A(e) Protection of Women from Domestic Violence Act, 2005(“D.V. Act”)

The D.V. Act stands on separate footing from the laws discussedhereinabove. The D.V. Act provides relief to an aggrieved woman whois subjected to “domestic violence.” The “aggrieved person” has beenBdefined by Section 2(a) to mean any woman who is, or has been, in adomestic relationship with the respondent, and alleges to have beensubjected to any act of domestic violence. Section 2(f) defines “domesticrelationship” to include relationship between two persons who live, orhave at any point of time lived together in shared household, whenthey are related by consanguinity, marriage, or through relationship inCthe nature of marriage, adoption, or are family members living togetheras joint family.Section 2(q) of the Act defined “respondent” to mean an “adultmale person” who is, or has been, in domestic relationship with theaggrieved woman. In Hiral P. Harsora & Ors. v Kusum NarottamdasDHarsora & Ors.[11] this Court held that the “respondent” could also be afemale in domestic relationship with the aggrieved person. Section 3 ofthe D.V. Act gives gender- neutral definition to “domestic violence”.Physical abuse, verbal abuse, emotional abuse and economic abuse canalso be inflicted by women against other women. Even sexual abuseEmay, in given fact circumstance, be by one woman on another. Section17(2) provides that the aggrieved person cannot be evicted or excludedfrom “shared household”, or any part of it by the “respondent”, save inaccordance with the procedure established by law. If “respondent” isto be read as only an adult male person, women who evict or excludethe aggrieved person would then not be covered by the ambit of the Act,Fand defeat the very object, by putting forward female persons who canevict or exclude the aggrieved woman from the shared household. TheCourt struck down the words “adult male” before the word “person” inSection 2(q) of the 2005 Act, and deleted the proviso to Section 2(q), asbeing contrary to the object of the Act.G

The expression “relationship in the nature of marriage” as beingakin to common law or de facto marriage, came up for considerationin D. Velusamy v D. Patchaiammal.[12] It was opined that common lawmarriage is one which requires that although couple may not be formally

11 (2016) 10 SCC 165.H12 (2010) 10 SCC 469.

married : (a) the couple hold themselves out to society as being akin tospouses; (b) the parties must be of legal age to marry; (c) the partiesmust be otherwise qualified to enter into legal marriage, including beingunmarried; and (d) the parties must have voluntarily cohabited, and heldthemselves out to the world as being akin to spouses for significantperiod of time. However, not all live-in relationships would amount to arelationship in the nature of marriage to avail the benefit of D.V. Act.Merely spending week-ends together, or one-night stand, would notmake it “domestic relationship”.

For live-in relationship to fall within the expression “relationshipin the nature of marriage”, this Court in Indra Sarma v. V.K.V. Sarma[13]laid down the following guidelines : (a) duration of period of relationship;(b) shared household; (c) domestic arrangements; (d) pooling of resourcesand financial arrangements; (e) sexual relationship; (f) children; (g)socialisation in public and (h) intention and conduct of the parties. TheCourt held that these guidelines were only indicative, and not exhaustive.

“Domestic violence” has been defined in Section 3 of the Act,which includes economic abuse as defined in Explanation 1 (iv) to Section3, as :

“Economic abuse which means deprivation of all or anyeconomic or financial resources, to which the aggrieved personis entitled under any law or custom, whether payable underan order of Court or otherwise, or which the aggrievedperson requires out of necessity, including but not limited tohousehold necessities for the aggrieved person, or herchildren.”

Section 17 by non-obstante clause provides that notwithstandinganything contained in any other law for the time being in force, every womanin domestic relationship shall have the right to reside in the “sharedhousehold”, irrespective of whether she has any right, title or beneficialinterest in the same. Section 17 reads as :

“17. Right to reside in shared household:

(1) Notwithstanding anything contained household: in anyother law for the time being in force, every woman in domesticrelationship shall have the right to reside in the shared household,

Awhether or not she has any right, title or beneficial interest inthe same.

(2) The aggrieved person shall not be evicted or excludedfrom the shared household or any part of it by the respondentsave in accordance with the procedure established by law.”

BSection 19 deals with residence orders, grant of injunctive reliefs,or for alternate accommodation / payment of rent by the respondent.

three-judge bench of this Court in Satish Chander Ahuja vSneha Ahuja[14] has overruled the judgment in S.R.Batra v TarunaBatra,[15] wherein two judge bench held that the wife is entitled to claimCa right of residence in “shared household” u/S.17 (1), which wouldonly mean the house belonging to, or taken on rent by the husband, or thehouse which belongs to the joint family of which the husband is member.In Satish Chander Ahuja (supra), the Court has held that although thejudgment in S.R. Batra (supra) noticed the definition of shared householdDunder Section 2(s), it did not advert to different parts of the definition,which makes it clear that there was no requirement for the sharedhousehold to be owned singly or jointly by the husband, or taken on rentby the husband. If the interpretation given in S.R. Batra is accepted, itwould frustrate the object of the Act. The Court has taken the view thatthe definition of “shared household” in Section 2(s) is an exhaustiveEdefinition. The “shared household” is the household which is the dwellingplace of the aggrieved person in present time. If the definition of “sharedhousehold” in Section 2(s) is read to mean all the houses where theaggrieved person has lived in domestic relationship alongwith the relativesof the husband, there will be number of shared households, which wasFnever contemplated by the legislative scheme. The entire scheme of thelegislation is to provide immediate relief to the aggrieved person withrespect to the shared household where the aggrieved woman lives orhas lived. The use of the expression “at any stage has lived”, is with theintent of not denying protection to an aggrieved woman merely on theground that she was not living there on the date of the application, or onGthe date when the Magistrate passed the order u/S. 19. The words “lives,or at any stage has lived in domestic relationship” has to be given itsnormal and purposeful meaning. Living of the woman in household

14 Decided on 15.10.2020 in C.A. No. 2483/2020 by bench comprising of Hon’bleJustices Ashok Bhushan, R. Subhash Reddy and M.R.Shah.H15 (2007) 3 SCC 169.

must refer to living which has some permanency. Mere fleeting orcasual living at different places would not make it shared household.The intention of the parties and the nature of living, including the natureof the household, must be considered, to determine as to whether theparties intended to treat the premises as “shared household” or not.Section 2(s) r.w. Sections 17 and 19 grant an entitlement in favour of anaggrieved woman to the right of residence in “shared household”,irrespective of her having any legal interest in the same or not. From thedefinition of “aggrieved person” and “respondent”, it was clear that :

(i)it is not the requirement of law that the aggrieved person mayeither own the premises jointly or singly, or by tenanting itCjointly or singly;

(ii) the household may belong to joint family of which therespondent is member, irrespective of whether therespondent or the aggrieved person has any right, title, orinterest in the shared household;

(iii) the shared household may either be owned, or tenanted by therespondent singly or jointly.

The right to residence u/S. 19 is, however, not an indefeasibleright, especially when daughter-in-law is claiming right against agedparents-in- law. While granting relief u/S. 12 of the D.V. Act, or in anycivil proceeding, the court has to balance the rights between the aggrievedwoman and the parents- in-law.

Section 20 provides for monetary relief to the aggrieved woman :

“20. Monetary reliefs.-

(1) While disposing of an application under sub-section (1)of section 12, theMagistratemaydirecttherespondenttopaymonetaryrelieftomeetthe expenses incurred and lossessuffered by the aggrieved person and any child oftheaggrievedpersonasaresultofdomesticviolence and suchrelief mayinclude, but is notlimitedto,-

(a) theloss ofearnings;

(b) themedicalexpenses;

(c) the loss caused due to destruction, damage or removal ofany property from thecontroloftheaggrievedperson; and

(d) themaintenancefortheaggrievedpersonaswellasherchildren,ifany, including an order under or in addition to anorder of maintenance under section 125 of the Code ofCriminal Procedure, 1973 (2 of 1974) or anyother law forthetimebeing in force.

(2) The monetary relief granted under this section shall beadequate, fair and reasonable and consistent with the standardof living to which the aggrievedperson isaccustomed.

(3) The Magistrate shall have the power to order anappropriate lump sum payment or monthly payments ofCmaintenance, as the nature and circumstances of the case mayrequire.”

(emphasis supplied)

Section 20(1)(d) provides that maintenance granted under the D.V.Act to an aggrieved woman and children, would be given effect to, inDaddition to an order of maintenance awarded under Section 125 of theCr.P.C., or any other law in force.

Under sub-section (6) of Section 20, the Magistrate may direct theemployer or debtor of the respondent, to directly pay the aggrieved person,or deposit with the court portion of the wages or salaries or debt due toEor accrued to the credit of the respondent, which amount may be adjustedtowards the monetary relief payable by the respondent.

Section 22 provides that the Magistrate may pass an order directingthe respondent to pay compensation and damages for the injuries, includingmental torture and emotional distress, caused by the acts of domesticFviolence perpetrated by the respondent.

Section 23 provides that the Magistrate may grant an ex parteorder, including an order under Section 20 for monetary relief. TheMagistrate must be satisfied that the application filed by the aggrievedwoman discloses that the respondent is committing, or has committed anGact of domestic violence, or that there is likelihood that the respondentmay commit an act of domestic violence. In such case, the Magistrateis empowered to pass an ex parte order on the basis of the affidavit ofthe aggrieved woman.

Section 26 of the D.V. Act provides that any relief available underHSections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding

before Civil Court, Family Court or Criminal Court. Sub-section (2) ofSection 26 provides that the relief mentioned in sub-section (1) may besought in addition to, and alongwith any other relief that the aggrievedperson may seek in suit or legal proceeding before civil or criminalcourt. Section 26 (3) provides that in case any relief has been obtainedby the aggrieved person in any proceeding other than proceedings underthis Act, the aggrieved woman would be bound to inform the Magistrateof the grant of such relief.Section 36 provides that the D.V. Act shall be in addition to, andnot in derogation of the provisions of any other law for the time being inforce.

Conflicting judgments on overlapping jurisdiction

(i) Some High Courts have taken the view that since each proceedingis distinct and independent of the other, maintenance granted in oneproceeding cannot be adjusted or set-off in the other. For instance, inAshok Singh Pal v Manjulata,[16] the Madhya Pradesh High Court heldthat the remedies available to an aggrieved person under S. 24 of theHMA is independent of S. 125 of the Cr.P.C. In an application filed bythe husband for adjustment of the amounts awarded in the twoproceedings, it was held that the question as to whether adjustment is tobe granted, is matter of judicial discretion to be exercised by the Court.There is nothing to suggest as thumb rule which lays down as amandatory requirement that adjustment or deduction of maintenanceawarded u/S. 125 Cr.P.C. must be off-set from the amount awardedunder S.24 of the HMA, or vice versa.

similar view was taken by another single judge of the MadhyaPradesh High Court in Mohan Swaroop Chauhan v Mohini.[17]

Similarly, the Calcutta High Court in Sujit Adhikari v TulikaAdhikari[18] held that adjustment is not rule. It was held that the quantumof maintenance determined by the Court under HMA is required to beadded to the quantum of maintenance u/S. 125 Cr.P.C.

similar view has been taken in Chandra Mohan Das v TapatiDas[19], wherein challenge was made on the point that the Court ought

16 AIR 2008 MP 139.

17 (2016) 2 MP LJ 179.

18 (2017) SCC OnLine Cal 15484.

19 2015 SCC OnLine Cal 9554.

Ato have adjusted the amount awarded in proceeding under S.125 Cr.P.C.,while determining the maintenance to be awarded under S.24 of theHMA, 1955. It was held that the quantum of maintenance determinedunder S.24 of HMA was to be paid in addition to the maintenance awardedin proceeding under S.125 Cr.P.C.

B(ii) On the other hand, the Bombay and Delhi High Courts, haveheld that in case of parallel proceedings, adjustment or set-off must takeplace.

The Bombay High Court in well-reasoned judgment delivered inVishal v Aparna & Anr.,[20] has taken the correct view. The Court wasCconsidering the issue whether interim monthly maintenance awardedunder Section 23 r.w. Section 20 (1)(d) of the D.V. Act could be adjustedagainst the maintenance awarded under Section 125 Cr.P.C. The FamilyCourt held that the order passed under the D.V. Act and the Cr.P.C.were both independent proceedings, and adjustment was not permissible.The Bombay High Court set aside the judgment of the Family Court, andDheld that Section 20(1)(d) of the D.V. Act makes it clear that themaintenance granted under this Act, would be in addition to an order ofmaintenance under Section 125 Cr.P.C., and any other law for the timebeing in force. Sub-section (3) of Section 26 of the D.V. Act enjoinsupon the aggrieved person to inform the Magistrate, if she has obtainedEany relief available under Sections 18, 19, 20, 21 and 22, in any other legalproceeding filed by her, whether before Civil Court, Family Court, orCriminal Court. The object being that while granting relief under theD.V. Act, the Magistrate shall take into account and consider if anysimilar relief has been obtained by the aggrieved person. Even thoughproceedings under the D.V. Act may be an independent proceeding, theFMagistrate cannot ignore the maintenance awarded in any other legalproceedings, while determining whether over and above the maintenancealready awarded, any further amount was required to be granted forreasons to be recorded in writing.

The Court observed :G

“18. What I intend to emphasize is the fact that the adjustmentis permissible and the adjustment can be allowed of the loweramount against the higher amount. Though the wife cansimultaneously claim maintenance under the different

enactments, it does not in any way mean that the husbandcan bemadeliabletopaythemaintenanceawardedineach”ofthesaidproceedings.

(emphasis supplied)

It was held that while determining the quantum of maintenanceawarded u/S.125 Cr.P.C., the Magistrate would take into considerationthe interim maintenance awarded to the aggrieved woman under theD.V. Act.

The issue of overlapping jurisdictions under the HMA and D.V.Act or Cr.P.C. came up for consideration before division bench of theDelhi High Court in RD v BD[21] wherein the Court held that maintenancegranted to an aggrieved person under the D.V. Act, would be in additionto an order of maintenance u/S. 125 Cr.P.C., or under the HMA. Thelegislative mandate envisages grant of maintenance to the wife undervarious statutes. It was not the intention of the legislature that once anorder is passed in either of the maintenance proceedings, the order woulddebar re-adjudication of the issue of maintenance in any other proceeding.In paragraphs 16 and 17 of the judgment, it was observed that :

“16. conjoint reading of the aforesaid Sections 20, 26 and36 of DV Act wouldclearlyestablishthattheprovisionsofDVActdealingwith maintenancearesupplementarytotheprovisionsofotherlawsand thereforemaintenancecanbegrantedtotheaggrievedperson(s)underthe DVActwhichwouldalsobeinadditiontoanyorderofmaintenancearisingoutofSection 125 ofCr.P.C.

17. On the converse, if any order is passed by the FamilyCourt under Section 24 of HMA, the same would not debarthe Court in the proceedings arising out of DV Act orproceedings under Section 125 of Cr.P.C. instituted by the wife/aggrieved person claiming maintenance. However, it cannotbe laid down as proposition of law that once an order ofmaintenance has been passed by any Court then the samecannot be re-adjudicated upon by any other Court. Thelegislative mandate envisages grant of maintenanceto thewife under various statutes such as HMA, Hindu Adoption

Aand Maintenance Act, 1956 (hereinafter referred to as‘HAMA’), Section 125 of Cr.P.C.aswellasSection20ofDVAct.Assuchvariousstatuteshavebeen enacted to providefor the maintenance to the wife and it is nowhere the intentionof the legislature that once any order is passed in either oftheproceedings, the said order would debar re adjudicationBof the issue ofmaintenancein anyotherCourt.”

(emphasis supplied)

The Court held that u/S. 20(1)(d) of the D.V. Act, maintenanceawarded to the aggrieved woman under the D.V. is in addition to anCorder of maintenance provided u/S. 125 Cr.P.C. The grant of maintenanceunder the D.V. Act would not be bar to seek maintenance u/S. 24 ofHMA.

Similarly, in Tanushree & Ors. v A.S.Moorthy,[22] the Delhi HighCourt was considering case where the Magistrate’s Court had sineDdie adjourned the proceedings u/S. 125 Cr.P.C. on the ground that parallelproceedings for maintenance under the D.V. Act were pending. In anappeal filed by the wife before the High Court, it was held that readingof Section 20(1)(d) of the D.V. Act indicates that while considering anapplication u/S. 12 of the D.V. Act, the

ECourt would take into account an order of maintenance passed u/S. 125 Cr.P.C., or any other law for the time being in force. The merefact that two proceedings were initiated by party, would not imply thatone would have to be adjourned sine die. There is distinction in thescope and power exercised by the Magistrate under S.125, Cr.P.C. andthe D.V. Act. With respect to the overlap in both statutes, the CourtFheld :

“5. Reading of Section 20(1)(d) of the D.V. Act further showsthat the two proceedings are independent of each other andhave different scope, though there is an overlap.Insofarastheoverlapisconcerned,lawhascateredfor that eventualityGand laid down that at the time of consideration of anapplication for grant of maintenance under Section 12 of theD.V. Act, the maintenance fixedunderSection125Cr.P.C.shallbetakenintoaccount.”

(emphasis supplied)

The issue whether maintenance u/S. 125 Cr.P.C. could be awardedby the Magistrate, after permanent alimony was granted to the wife inthe divorce proceedings, came up for consideration before the SupremeCourt in Rakesh Malhotra v Krishna Malhotra.[23] The Court held thatonce an order for permanent alimony was passed, the same could bemodified by the same court by exercising its power u/S. 25(2) of HMA.The Court held that :

“16. Since the Parliament has empowered the Court UnderSection 25(2) of the Act and kept remedy intact and madeavailable to the concerned party seeking modification, thelogical sequitur would be that the remedy so prescribed oughtto be exercised rather than creating multiple channels ofremedy seeking maintenance. One can understand thesituation where considering the exigencies of the situationand urgency in the matter, wife initially prefers an applicationUnder Section 125 of the Code to secure maintenance in orderto sustain herself. In such matters the wife would certainly beentitled to have full-fledged adjudication in the form ofany challenge raised before Competent Court either underthe Act Or similar such enactments. But the reverse cannot bethe accepted norm.”

The Court directed that the application u/S. 125 Cr.P.C. be treatedas an application u/S. 25(2) of HMA and be disposed of accordingly.

(iii) In Nagendrappa Natikar v Neelamma[24] this Court considereda case where the wife instituted suit under Section 18 of HAMA,after signing consent letter in proceedings u/S. 125 Cr.P.C., statingthat she would not make any further claims for maintenance against thehusband. It was held that the proceedings u/S. 125 Cr.P.C. were summaryin nature, and were intended to provide speedy remedy to the wife.Any order passed u/S. 125 Cr.P.C. by compromise or otherwise wouldnot foreclose the remedy u/S. 18 of HAMA.

(iv) In Sudeep Chaudhary v Radha Chaudhary[25] the SupremeCourt directed adjustment in case where the wife had filed an applicationunder Section 125 of the Cr.P.C., and under HMA. In the S. 125

23 2020 SCC OnLine SC 239.24 (2014) 14 SCC 452.25 (1997) 11 SCC 286.

Aproceedings, she had obtained an order of maintenance. Subsequently,in proceedings under the HMA, the wife sought alimony. Since thehusband failed to pay maintenance awarded, the wife initiated recoveryproceedings. The Supreme Court held that the maintenance awardedunder Section 125 Cr.P.C. must be adjusted against the amount awardedin the matrimonial proceedings under HMA, and was not to be givenBover and above the same.

Directions on overlapping jurisdictions

It is well settled that wife can make claim for maintenanceunder different statutes. For instance, there is no bar to seek maintenanceCboth under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A.It would, however, be inequitable to direct the husband to pay maintenanceunder each of the proceedings, independent of the relief granted in aprevious proceeding. If maintenance is awarded to the wife in previouslyinstituted proceeding, she is under legal obligation to disclose the samein subsequent proceeding for maintenance, which may be filed underDanother enactment. While deciding the quantum of maintenance in thesubsequent proceeding, the civil court/family court shall take into accountthe maintenance awarded in any previously instituted proceeding, anddetermine the maintenance payable to the claimant.

To overcome the issue of overlapping jurisdiction, and avoidEconflicting orders being passed in different proceedings, we direct thatin subsequent maintenance proceeding, the applicant shall disclose theprevious maintenance proceeding, and the orders passed therein, so thatthe Court would take into consideration the maintenance already awardedin the previous proceeding, and grant an adjustment or set-off of the saidFamount. If the order passed in the previous proceeding requires anymodification or variation, the party would be required to move theconcerned court in the previous proceeding.

II Payment of Interim Maintenance

(i)The proviso to Section 24 of the HMA (insertedGvide Act 49 of 2001 w.e.f. 24.09.2001), and the thirdproviso to Section 125 Cr.P.C. (inserted vide Act 50 of2001 w.e.f. 24.09.2001) provide that the proceedings forinterim maintenance, shall as far as possible, be disposedof within 60 days’ from the date of service of notice onthe contesting spouse. Despite the statutory provisions

(iii)

granting time-bound period for disposal of proceedingsfor interim maintenance, we find that applications remainpending for several years in most of the cases. The delaysare caused by various factors, such as tremendous docketpressure on the Family Courts, repetitive adjournmentssought by parties, enormous time taken for completion ofpleadings at the interim stage itself, etc. Pendency ofapplications for maintenance at the interim stage forseveral years defeats the very object of the legislation.

At present, the issue of interim maintenance isdecided on the basis of pleadings, where some amount ofguess-work or rough estimation takes place, so as to makea 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 vitalinformation, which makes it difficult for the Family Courtsto make an objective assessment for grant of interimmaintenance. While there is tendency on the part of thewife to exaggerate her needs, there is correspondingtendency by the husband to conceal his actual income.

It has therefore become necessary to lay down aprocedure to streamline the proceedings, since adependant wife, who has no other source of income, hasto take recourse to borrowings from her parents / relativesduring the interregnum to sustain herself and the minorchildren, till she begins receiving interim maintenance.

In the first instance, the Family Court incompliance with the mandate of Section 9 of the FamilyCourts Act 1984, must make an endeavour for settlementof the disputes. For this, Section 6 provides that the StateGovernment shall, in consultation with the High Court,make provision for counsellors to assist Family Courtin the discharge of its functions. Given the large andgrowing percentage of matrimonial litigation, it has becomenecessary that the provisions of Section 5 and 6 of theFamily Courts Act are given effect to, by providing forthe appointment of marriage counsellors in every FamilyCourt, 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.

The party claiming maintenance either as spouse,or as partner in civil union, live-in relationship, commonlaw marriage, should be required to file conciseapplication for interim maintenance with limited pleadings,alongwith an Affidavit of Disclosure of Assets andLiabilities before the concerned court, as mandatoryrequirement.

On the basis of the pleadings filed by both partiesand the Affidavits of Disclosure, the Court would be in aposition to make an objective assessment of theapproximate amount to be awarded towards maintenanceat the interim stage.

(vi)The Delhi High Court in series of judgmentsDbeginning with Puneet Kaur v Inderjit Singh Sawhney[26]and followed in Kusum Sharma v Mahinder KumarSharma[27] (“Kusum Sharma I”) directed that applicationsfor maintenance under the HMA, HAMA, D.V. Act, andthe Cr.P.C. be accompanied with an Affidavit of assets,income and expenditure as prescribed. In Kusum SharmaEII,[28] the Court framed format of Affidavit of assets,income and expenditure to be filed by both parties at thethreshold of matrimonial litigation. This procedure wasextended to maintenance proceedings under the SpecialMarriage Act and the Indian Divorce Act, 1869. In KusumFSharma III,[29] the Delhi High Court modified the format ofthe Affidavit, and extended it to maintenance proceedingsunder the Guardians & Wards Act, 1890 and the HinduMinority & Guardianship Act, 1956. In Kusum SharmaIV[30] the Court took notice that the filing of Affidavitsalongwith pleadings gave an unfair advantage to the partyGwho files the affidavit subsequently. In this judgment, it

26 ILR (2012) I Delhi 73.27 (2014) 214 DLT 493.28 (2015) 217 DLT 706.29 MANU/DE/2406/2017.H30 2017 – (2018) 246 DLT 1.

was clarified that the Affidavit must be filed simultaneouslyby both parties. In Kusum Sharma V[31]the Courtconsolidated the format of the Affidavits in the previousjudgments, and directed that the same be filed inmaintenance proceedings.

(vii)

Given the vastly divergent demographic profile ofour country, which comprises of metropolitan cities, urbanareas, rural areas, tribal areas, etc., it was consideredappropriate to elicit responses from the various State LegalServices Authorities (“SLSAs”).

This Court vide its Order dated 17.12.2019requested the National Legal Services Authority(“NALSA”) to submit report of the suggestions receivedfrom the SLSAs for framing guidelines on the Affidavitof Disclosure of the Assets and Liabilities to be filed bythe parties.

(viii)

The NALSA submitted comprehensive reportdated 17.02.2020 containing suggestions from all the StateLegal Service Authorities throughout the country. We findthe various suggestions made by the SLSAs to be of greatassistance in finalizing the Affidavit of Disclosure whichcan be used by the Family Courts for determining thequantum of maintenance to be paid.

Keeping in mind the varied landscape of thecountry, and the recommendations made by the SLSAs,it was submitted that simplified Affidavit of Disclosuremay be framed to expedite the process of determiningthe quantum of maintenance.

We feel that the Affidavit to be filed by partiesresiding in urban areas, would require to be entirelydifferent from the one applicable to rural areas, or tribalareas.

For this purpose, comprehensive Affidavit ofDisclosure of Assets and Liabilities is being attached asEnclosure I and II to this judgment.

31 Decided by the Delhi High Court vide Judgment dated 06.08.2020.

A(x)We have been informed by the Meghalaya StateLegal Services Authority that the State of Meghalaya hasa predominantly tribal population, which follows amatrilineal system of society. The population is comprisedof three tribes viz. the Khasis, Jaintia and Garo tribes. InMeghalaya, the youngest daughter is the custodian of theBproperty, and takes important decisions relating to familyproperty in consultation with her maternal uncle. Themajority of the population is employed in the unorganizedsector, such as agriculture. Under Section 10(26) of theIncome Tax Act 1961, the tribals residing in this State areCexempted from payment of income tax.

The Meghalaya State Legal Services Authorityhas suggested that the declaration in Meghalaya be madein the format enclosed with this judgment as EnclosureIII.

(xi)Keeping in mind the need for uniform format ofAffidavit of Disclosure of Assets and Liabilities to be filedin maintenance proceedings, this Court considers itnecessary to frame guidelines in exercise of our powersunder Article 136 read with Article 142 of the ConstitutionEof India :

(a)The Affidavit of Disclosure of Assets and Liabilitiesannexed at Enclosures I, II and III of this judgment, asmay be applicable, shall be filed by the parties in allmaintenance proceedings, including pending proceedingsFbefore the concerned Family Court/District Court/Magistrate’s Court, as the case may be, throughout thecountry;

(b)The applicant making the claim for maintenancewill be required to file concise application accompaniedGwith the Affidavit of Disclosure of Assets;

(c)The respondent must submit the reply alongwiththe Affidavit of Disclosure within maximum period offour weeks. The Courts may not grant more than twoopportunities for submission of the Affidavit of Disclosureof Assets and Liabilities to the respondent.

[INDU MALHOTRA, J.]

If the respondent delays in filing the reply with theAffidavit, and seeks more than two adjournments for thispurpose, the Court may consider exercising the power tostrike off the defence of the respondent, if the conduct isfound to be wilful and contumacious in delaying theproceedings.[32]

On the failure to file the Affidavit within theprescribed time, the Family Court may proceed to decidethe application for maintenance on basis of the Affidavitfiled by the applicant and the pleadings on record;

(d)The above format may be modified by theconcerned Court, if the exigencies of case require thesame. It would be left to the judicial discretion of theconcerned Court, to issue necessary directions in thisregard.

(e)If apart from the information contained in theAffidavits of Disclosure, any further information isrequired, the concerned Court may pass appropriate ordersin respect thereof.

(f)If there is any dispute with respect to thedeclaration made in the Affidavit of Disclosure, theaggrieved party may seek permission of the Court to serveinterrogatories, and seek production of relevant documentsfrom the opposite party under Order XI of the CPC;On filing of the Affidavit, the Court may invokethe provisions of Order X of the C.P.C or Section 165 ofthe Evidence Act 1872, if it considers it necessary to doso;

The income of one party is often not within theknowledge of the other spouse. The Court may invokeSection 106 of the Evidence Act, 1872 if necessary, sinceGthe income, assets and liabilities of the spouse are withinthe personal knowledge of the party concerned.

32 Kaushalya v Mukesh Jain, Criminal Appeal Nos. 1129-1130 / 2019 decided videJudgment 24.07.2019.

(g)If during the course of proceedings, there is changein the financial status of any party, or there is change ofany relevant circumstances, or if some new informationcomes to light, the party may submit an amended /supplementary affidavit, which would be considered bythe court at the time of final determination.

(h)The pleadings made in the applications formaintenance and replies filed should be responsiblepleadings; if false statements and misrepresentations aremade, the Court may consider initiation of proceedingu/S. 340 Cr.P.C., and for contempt of Court.

(i)In case the parties belong to the EconomicallyWeaker Sections (“EWS”), or are living Below the PovertyLine (“BPL”), or are casual labourers, the requirement offiling the Affidavit would be dispensed with.

(j)The concerned Family Court / District Court /Magistrate’s Court must make an endeavour to decidethe I.A. for Interim Maintenance by reasoned order,within period of four to six months at the latest, afterthe Affidavits of Disclosure have been filed before thecourt.

(k)A professional Marriage Counsellor must be madeavailable in every Family Court.

Permanent alimony

(i)Parties may lead oral and documentary evidencewith respect to income, expenditure, standard of living,etc. before the concerned Court, for fixing the permanentalimony payable to the spouse.

In contemporary society, where several marriagesdo not last for reasonable length of time, it may beinequitable to direct the contesting spouse to paypermanent alimony to the applicant for the rest of her life.The duration of the marriage would be relevant factorto be taken into consideration for determining thepermanent alimony to be paid.

(iii)

Provision for grant of reasonable expenses for themarriage of children must be made at the time ofdetermining permanent alimony, where the custody is withthe wife. The expenses would be determined by takinginto account the financial position of the husband and thecustoms of the family.

If there are any trust funds / investments createdby any spouse / grandparents in favour of the children,this would also be taken into consideration while decidingthe final child support.

III Criteria for determining quantum of maintenance

The objective of granting interim / permanent alimonyis to ensure that the dependant spouse is not reduced todestitution or vagrancy on account of the failure of themarriage, and not as punishment to the other spouse. Thereis no straitjacket formula for fixing the quantum ofmaintenance to be awarded.

The factors which would weigh with the Court interalia are the status of the parties; reasonable needs of thewife and dependant children; whether the applicant iseducated and professionally qualified; whether the applicanthas any independent source of income; whether the incomeis sufficient to enable her to maintain the same standard ofliving 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 themarriage; whether the wife was required to sacrifice heremployment opportunities for nurturing the family, child rearing,and looking after adult members of the family; reasonablecosts of litigation for non-working wife.[33]

In Manish Jain v Akanksha Jain[34] this Court held thatthe financial position of the parents of the applicant-wife,would not be material while determining the quantum ofmaintenance. An order of interim maintenance is conditional

33 Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7.Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.34 (2017) 15 SCC 801.

DEF

on the circumstance that the wife or husband who makes aclaim has no independent income, sufficient for her or hissupport. It is no answer to claim of maintenance that thewife is educated and could support herself. The court musttake into consideration the status of the parties and the capacityof the spouse to pay for her or his support. Maintenance isdependent upon factual situations; the Court should mouldthe claim for maintenance based on various factors broughtbefore it.

On the other hand, the financial capacity of thehusband, his actual income, reasonable expenses for hisown maintenance, and dependant family members whomhe is obliged to maintain under the law, liabilities if any,would be required to be taken into consideration, to arriveat the appropriate quantum of maintenance to be paid.The Court must have due regard to the standard of livingof the husband, as well as the spiralling inflation ratesand high costs of living. The plea of the husband that hedoes not possess any source of income ipso facto doesnot absolve him of his moral duty to maintain his wife ifhe is able bodied and has educational qualifications.[35]

careful and just balance must be drawn betweenall relevant factors. The test for determination ofmaintenance in matrimonial disputes depends on thefinancial status of the respondent, and the standard ofliving that the applicant was accustomed to in hermatrimonial home.[36]

The maintenance amount awarded must bereasonable and realistic, and avoid either of the twoextremes i.e. maintenance awarded to the wife shouldneither be so extravagant which becomes oppressive andunbearable for the respondent, nor should it be so meagrethat it drives the wife to penury. The sufficiency of thequantum has to be adjudged so that the wife is able tomaintain herself with reasonable comfort.

35 Reema Salkan v Sumer Singh Salkan (2019) 12 SCC 303.

H36 Chaturbhuj v Sita Bai (2008) 2 SCC 316.

(iii)Section 23 of HAMA provides statutory guidancewith respect to the criteria for determining the quantumof maintenance. Sub-section (2) of Section 23 of HAMAprovides the following factors which may be taken intoconsideration : (i) position and status of the parties, (ii)reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same,(iv) value of the claimant’s property and any income derivedfrom such property, (v) income from claimant’s ownearning or from any other source.

(iv)Section 20(2) of the D.V. Act provides that themonetary relief granted to the aggrieved woman and / orthe children must be adequate, fair, reasonable, andconsistent with the standard of living to which theaggrieved woman was accustomed to in her matrimonialhome.

(v)The Delhi High Court in Bharat Hedge v Smt.Saroj Hegde[37] laid down the following factors to beconsidered for determining maintenance :

“1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.4. The number of persons, the non-applicant has tomaintain.

5. The amount should aid the applicant to live in similarlifestyle as he/she enjoyed in the matrimonial home.

6. Non-applicant’s liabilities, if any.

7. Provisions for food, clothing, shelter, education,medical attendance and treatment etc. of the applicant.

8. Payment capacity of the non-applicant.

9. Some guess work is not ruled out while estimatingthe income of the non-applicant when all the sources orcorrect sources are not disclosed.

37 140 (2007) DLT 16.

10. The non-applicant to defray the cost of litigation.11. The amount awarded u/s 125 Cr.PC is adjustableagainst the amount awarded u/ 24 of the Act. 17.”

Apart from the aforesaid factors enumeratedhereinabove, certain additional factors would also berelevant for determining the quantum of maintenancepayable.

(a) Age and employment of parties

In marriage of long duration, where parties have enduredthe relationship for several years, it would be relevant factor tobe taken into consideration. On termination of the relationship, ifthe wife is educated and professionally qualified, but had to giveup her employment opportunities to look after the needs of thefamily being the primary caregiver to the minor children, and theelder members of the family, this factor would be required to begiven due importance. This is of particular relevance incontemporary society, given the highly competitive industrystandards, the separated wife would be required to undergo freshtraining to acquire marketable skills and re-train herself to securea job in the paid workforce to rehabilitate herself. Withadvancement of age, it would be difficult for dependant wife toget an easy entry into the work-force after break of severalyears.

(b) Right to residence

Section 17 of the D.V. Act grants an aggrieved woman theright to live in the “shared household”. Section 2(s) defines “sharedhousehold” to include the household where the aggrieved womanlived at any stage of the domestic relationship; or the householdowned and rented jointly or singly by both, or singly by either ofthe spouses; or joint family house, of which the respondent is amember.

The right of woman to reside in “shared household”defined under Section 2(s) entitles the aggrieved woman for rightof residence in the shared household, irrespective of her havingany legal interest in the same. This Court in Satish Chander

Ahuja v Sneha Ahuja[38](supra) held that “shared household”referred to in Section 2(s) is the shared household of the aggrievedperson where she was living at the time when the application wasfiled, or at any stage lived in domestic relationship. The living ofthe aggrieved woman in the shared household must have degreeof permanence. mere fleeting or casual living at different placeswould not constitute “shared household”. It is important toconsider the intention of the parties, nature of living, and nature ofthe household, to determine whether the premises is “sharedhousehold”. Section 2(s) read with Sections 17 and 19 of the D.V.Act entitles woman to the right of residence in shared household,irrespective of her having any legal interest in the same. There isno requirement of law that the husband should be member ofthe joint family, or that the household must belong to the joint family,in which he or the aggrieved woman has any right, title or interest.The shared household may not necessarily be owned or tenantedby the husband singly or jointly.

Section 19 (1)(f) of the D.V. Act provides that theMagistrate may pass residence order inter alia directing therespondent to secure the same level of alternate accommodationfor the aggrieved woman as enjoyed by her in the shared household.While passing such an order, the Magistrate may direct therespondent to pay the rent and other payments, having regard tothe financial needs and resources of the parties.

(c) Where wife is earning some income

The Courts have held that if the wife is earning, it cannotoperate as bar from being awarded maintenance by the husband.The Courts have provided guidance on this issue in the followingjudgments.

In Shailja & Anr. v Khobbanna,[39] this Court held thatmerely because the wife is capable of earning, it would not be asufficient ground to reduce the maintenance awarded by theFamily Court. The Court has to determine whether the income ofthe wife is sufficient to enable her to maintain herself, in accordance

38 Civil Appeal No. 2483/2020 decided vide Judgment dated 15.10.2020.

39 (2018) 12 SCC 199.

See also Decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016 Cri LJ 4794.

with the lifestyle of her husband in the matrimonial home.[40]Sustenance does not mean, and cannot be allowed to mean meresurvival.[41]

In Sunita Kachwaha & Ors. v Anil Kachwaha [42] the wifehad postgraduate degree, and was employed as teacher inBJabalpur. The husband raised contention that since the wife hadsufficient income, she would not require financial assistance fromthe husband. The Supreme Court repelled this contention, andheld that merely because the wife was earning some income, itcould not be ground to reject her claim for maintenance.

The Bombay High Court in Sanjay Damodar Kale vKalyani Sanjay Kale[43] while relying upon the judgment in SunitaKachwaha (supra), held that neither the mere potential to earn,nor the actual earning of the wife, howsoever meagre, is sufficientto deny the claim of maintenance.

DAn able-bodied husband must be presumed to be capableof earning sufficient money to maintain his wife and children, andcannot contend that he is not in position to earn sufficiently tomaintain his family, as held by the Delhi High Court in ChanderPrakash Bodhraj v Shila Rani Chander Prakash.[44] The onusis on the husband to establish with necessary material that thereEare sufficient grounds to show that he is unable to maintain thefamily, and discharge his legal obligations for reasons beyond hiscontrol. If the husband does not disclose the exact amount of hisincome, an adverse inference may be drawn by the Court.

This Court in Shamima Farooqui v Shahid Khan[45] citedFthe judgment in Chander Prakash (supra) with approval, andheld that the obligation of the husband to provide maintenancestands on higher pedestal than the wife.

(d) Maintenance of minor children

The living expenses of the child would include expenses forGfood, clothing, residence, medical expenses, education of children.

40 Chaturbhuj v Sita Bai, (2008) 2 SCC 316.41 Vipul Lakhanpal v Smt. Pooja Sharma, 2015 SCC OnLine HP 1252.42 (2014) 16 SCC 715.43 2020 SCC OnLine Bom 694.44 AIR 1968 Delhi 174.H45 (2015) 5 SCC 705.

Extra coaching classes or any other vocational training courses tocomplement the basic education must be factored in, while awardingchild support. Albeit, it should be reasonable amount to beawarded for extra-curricular / coaching classes, and not an overlyextravagant amount which may be claimed.

Education expenses of the children must be normally borneby the father. If the wife is working and earning sufficiently, theexpenses may be shared proportionately between the parties.

(e) Serious disability or ill health

Serious disability or ill health of spouse, child / childrenfrom the marriage / dependant relative who require constant careand recurrent expenditure, would also be relevant considerationwhile quantifying maintenance.

IV Date from which Maintenance to be awarded

There is no provision in the HMA with respect to the datefrom which an Order of maintenance may be made effective.Similarly, Section 12 of the D.V. Act, does not provide the datefrom which the maintenance is to be awarded.

Section 125(2) Cr.P.C. is the only statutory provision whichprovides that the Magistrate may award maintenance either fromthe date of the order, or from the date of application.[46]

In the absence of uniform regime, there is vast variancein the practice adopted by the Family Courts in the country, withrespect to the date from which maintenance must be awarded.The divergent views taken by the Family Courts are : first, fromthe date on which the application for maintenance was filed;second, the date of the order granting maintenance; third, thedate on which the summons was served upon the respondent.

(a) From date of application

The view that maintenance ought to be granted from thedate when the application was made, is based on the rationalethat the primary object of maintenance laws is to protect desertedwife and dependant children from destitution and vagrancy. Ifmaintenance is not paid from the date of application, the party

seeking maintenance would be deprived of sustenance, owing tothe time taken for disposal of the application, which often runsinto several years.

The Orissa High Court in Susmita Mohanty v RabindraNath Sahu[47] held that the legislature intended to provide asummary, quick and comparatively inexpensive remedy to theneglected person. Where litigation is prolonged, either on accountof the conduct of the opposite party, or due to the heavy docket inCourts, or for unavoidable reasons, it would be unjust and contraryto the object of the provision, to provide maintenance from thedate of the order.

In Kanhu Charan Jena v. Smt. Nirmala Jena[48] , the OrissaHigh Court was considering an application u/S. 125 Cr.P.C., whereinit was held that even though the decision to award maintenanceeither from the date of application, or from the date of order, waswithin the discretion of the Court, it would be appropriate to grantmaintenance from the date of application. This was followed inArun Kumar Nayak v Urmila Jena,[49]wherein it was reiteratedthat dependents were entitled to receive maintenance from thedate of application.

The Madhya Pradesh High Court in Krishna Jain vEDharam Raj Jain[50] held that wife may set up claim formaintenance to be granted from the date of application, and thehusband may deny it. In such cases, the Court may frame an issue,and decide the same based on evidence led by parties. The viewthat the “normal rule” was to grant maintenance from the date ofForder, and the exception was to grant maintenance from the dateof application, would be to insert something more in Section 125(2)Cr.P.C., which the Legislature did not intend. Reasons must berecorded in both cases. i.e. when maintenance is awarded fromthe date of application, or when it is awarded from the date oforder.

The law governing payment of maintenance u/S. 125 Cr.P.C.from the date of application, was extended to HAMA by the

47 1996 (I) OLR 361.48 2001 Cri LJ 879.49 (2010) 93 AIC 726 (Orl).H50 1993 (2) MPJR 63.

Allahabad High Court in Ganga Prasad Srivastava v AdditionalDistrict Judge, Gonda & Ors.[51] The Court held that the date ofapplication should always be regarded as the starting point forpayment of maintenance. The Court was considering suit formaintenance u/S. 18 of HAMA, wherein the Civil Judge directedthat maintenance be paid from the date of judgment. The HighCourt held that the normal inference should be that the order ofmaintenance would be effective from the date of application. Aparty seeking maintenance would otherwise be deprived ofmaintenance due to the delay in disposal of the application, whichmay arise due to paucity of time of the Court, or on account of theconduct of one of the parties. In this case, there was delay ofseven years in disposing of the suit, and the wife could not bemade to starve till such time. The wife was held to be entitled tomaintenance from the date of application / suit.

The Delhi High Court in Lavlesh Shukla v Rukmani[52] heldthat where the wife is unemployed and is incurring expensestowards maintaining herself and the minor child / children, she isentitled to receive maintenance from the date of application.Maintenance is awarded to wife to overcome the financial crunch,which occurs on account of her separation from her husband. It isneither matter of favour to the wife, nor any charity done by thehusband.

(b) From the date of order

The second view that maintenance ought to be awardedfrom the date of order is based on the premise that the generalrule is to award maintenance from the date of order, and grant ofmaintenance from the date of application must be the exception.The foundation of this view is based on the interpretation of Section125(2) Cr.P.C. which provides :

“(2) Any such allowance for the maintenance or interimmaintenance and expenses for proceeding shall be payablefrom the date of the order, or, ifso ordered, from the date ofthe application for maintenance or interim maintenance andexpenses of proceeding, as the case may be.”

(emphasis supplied)

The words “or, if so ordered” in Section 125 has beeninterpreted to mean that where the court is awarding maintenancefrom the date of application, special reasons ought to be recorded.[53]

In Bina Devi v State of U.P.,[54] the Allahabad High Courton an interpretation of S.125(2) of the Cr.P.C. held that whenBmaintenance is directed to be paid from the date of application,the Court must record reasons. If the order is silent, it will beeffective from the date of the order, for which reasons need notbe recorded. The Court held that Section 125(2) Cr.P.C. is primafacie clear that maintenance shall be payable from the date of theorder.

The Madhya Pradesh High Court in Amit Verma v SangeetaVerma & Ors.[55] directed that maintenance ought to be grantedfrom the date of the order.

(c) From the date of service of summonsD

The third view followed by some Courts is that maintenanceought to be granted from the date of service of summons upon therespondent.

The Kerala High Court in S. Radhakumari v K.M.K. Nair[56]was considering an application for interim maintenance preferredEby the wife in divorce proceedings filed by the husband. The HighCourt held that maintenance must be awarded to the wife fromthe date on which summons were served in the main divorcepetition. The Court relied upon the judgment of the Calcutta HighCourt in Samir Banerjee v Sujata Banerjee,[57] and held thatFSection 24 of the HMA does not contain any provision thatmaintenance must be awarded from specific date. The Courtmay, in exercise of its discretion, award maintenance from thedate of service of summons.

53 Bina Devi & Ors. v State of Uttar Pradesh & Ors. (2010) 69 ACC 19.

54 (2010) 69 ACC 19.55 CRR No. 3542/2019, decided by the Madhya Pradesh High Court vide Order dated08.01.2020.

56 AIR 1983 Ker 139.H57 70 CWN 633.

The Orissa High Court in Gouri Das v Pradyumna KumarDas[58] was considering an application for interim maintenance filedu/S. 24 HMA by the wife, in divorce petition instituted by thehusband. The Court held that the ordinary rule is to awardmaintenance from the date of service of summons. It was heldthat in cases where the applicant in the maintenance petition isalso the petitioner in the divorce petition, maintenance becomespayable from the date when summons is served upon therespondent in the main proceeding.

In Kalpana Das v Sarat Kumar Das,[59] the Orissa HighCourt held that the wife was entitled to maintenance from thedate when the husband entered appearance. The Court wasconsidering an application for interim maintenance u/S. 24 HMAin petition for restitution of conjugal rights filed by the wife. TheFamily Court awarded interim maintenance to the wife and minorchild from the date of the order. In an appeal filed by the wifeand minor child seeking maintenance from the date of application,the High Court held that the Family Court had failed to assign anyreasons in support of its order, and directed :

“9. …Learned Judge. Family Court has not assigned anyreason as to why he passed the order of interimmaintenance w.e.f. the date of order. When admittedly theparties are living separately and prima facie it appearsthat the Petitioners have no independent source of income,therefore, inourvieworder should have been passed forpayment of interim maintenance from thedateofappearanceoftheOppositeParty-husband…”

(emphasis supplied)

Discussion and Directions

The judgments hereinabove reveal the divergent views of differentHigh Courts on the date from which maintenance must be awarded.

Even though judicial discretion is conferred upon the Court togrant maintenance either from the date of application or from the date ofthe order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance

58 1986 (II) OLR 44.59 AIR 2009 Orl 133.

Afrom the date of application in all cases, including Section 125 Cr.P.C. Inthe practical working of the provisions relating to maintenance, we findthat there is significant delay in disposal of the applications for interimmaintenance for years on end. It would therefore be in the interests ofjustice and fair play that maintenance is awarded from the date of theapplication.B

In Shail Kumari Devi and Ors. v Krishnan Bhagwan Pathak[60],this Court held that the entitlement of maintenance should not be left tothe uncertain date of disposal of the case. The enormous delay in disposalof proceedings justifies the award of maintenance from the date ofapplication. In Bhuwan Mohan Singh v Meena[61], this Court held thatCrepetitive adjournments sought by the husband in that case resulted indelay of 9 years in the adjudication of the case. The delay in adjudicationwas not only against human rights, but also against the basic embodimentof dignity of an individual. The delay in the conduct of the proceedingswould require grant of maintenance to date back to the date ofDapplication.

The rationale of granting maintenance from the date of applicationfinds its roots in the object of enacting maintenance legislations, so as toenable the wife to overcome the financial crunch which occurs onseparation from the husband. Financial constraints of dependant spouseEhampers their capacity to be effectively represented before the Court. Inorder to prevent dependant from being reduced to destitution, it isnecessary that maintenance is awarded from the date on which theapplication for maintenance is filed before the concerned Court.

In Badshah v Urmila Badshah Godse[62], the Supreme Court wasFconsidering the interpretation of Section 125 Cr.P.C. The Court held :

“13.3. …purposive interpretation needs to be given to theprovisions of Section 125 CrPC. Whiledealingwiththeapplicationofadestitutewifeor hapless children or parentsunder this provision, the Court is dealing with the marginalisedGsections of the society. The purpose is to achieve “socialjustice”whichistheconstitutionalvision,enshrinedinthePreambleoftheConstitution of India. The Preamble to the

60 2008 9 SCC 632.61 2015 6 SCC 353.H62 (2014) 1 SCC 188.

Constitution of India clearly signals that we have chosen thedemocratic path under the rule of law to achieve the goal ofsecuring for all its citizens, justice, liberty, equality and fraternity.It specifically highlights achieving their social justice.Therefore, itbecomestheboundendutyofthecourtstoadvancethecauseofthesocial justice. While givinginterpretation to particular provision, the court issupposed”to bridgethegap betweenthelaw and society.

(emphasis supplied)

It has therefore become necessary to issue directions to bringabout uniformity and consistency in the Orders passed by all Courts, bydirecting that maintenance be awarded from the date on which theapplication was made before the concerned Court. The right to claimmaintenance must date back to the date of filing the application, sincethe period during which the maintenance proceedings remained pendingis not within the control of the applicant.

V Enforcement of orders of maintenance

Enforcement of the order of maintenance is the most challengingissue, which is encountered by the applicants. If maintenance is not paidin timely manner, it defeats the very object of the social welfarelegislation. Execution petitions usually remain pending for months, if notyears, which completely nullifies the object of the law. The BombayHigh Court in Sushila Viresh Chhawda v Viresh Nagsi Chhawda[63]held that :

“The direction of interim alimony and expenses of litigationunder Section 24 is one of urgency and it must be decided assoon as it is raised and the law takes care that nobody isdisabled from prosecuting or defending the matrimonial caseby starvation or lack of funds.”

(i) An application for execution of an Order of Maintenancecan be filed under the following provisions :

(a) Section 28 of the Hindu Marriage Act, 1956 r.w. Section18 of the Family Courts Act, 1984 and Order XXI Rule 94of the CPC for executing an Order passed under Section24 of the Hindu Marriage Act (before the Family Court);

1158SUPREME COURT REPORTS

[2020] 13 S.C.R.

A(b) Section 20(6) of the DV Act (before the JudicialMagistrate); and

(c) Section 128 of Cr.P.C. before the Magistrate’s Court.

(ii) Section 18 of the Family Courts Act, 1984 provides thatorders passed by the Family Court shall be executable inBaccordance with the CPC / Cr.P.C.

(iii) Section 125(3) of the Cr.P.C provides that if the partyagainst whom the order of maintenance is passed fails tocomply with the order of maintenance, the same shall berecovered in the manner as provided for fines, and theCMagistrate may award sentence of imprisonment for termwhich may extend to one month, or until payment, whicheveris earlier.

Striking off the Defence

D(i) Some Family Courts have passed orders for striking off thedefence of the respondent in case of non-payment ofmaintenance, so as to facilitate speedy disposal of themaintenance petition.

In Kaushalya v Mukesh Jain[64], the Supreme Courtallowed Family Court to strike off the defence of theErespondent, in case of non-payment of maintenance inaccordance with the interim order passed.

(ii) The Punjab & Haryana High Court in Bani v. ParkashSingh[65]was considering case where the husband failed tocomply with the maintenance order, despite several notices,Ffor period of over two years. The Court taking note of thepower to strike off the defence of the respondent, held that :

“Law is not that powerless as not to bring the husband tobook. If the husband has failed to make the payment ofmaintenance and litigation expenses to wife, his defenceGbe struck out.”

64 Criminal Appeal Nos. 1129-1130 / 2019 decided vide Judgment dated 24.07.2019.65 AIR 1996 P&H 175.H

(iii) The Punjab & Haryana High Court in Mohinder Vermav Sapna,[66] discussed the issue of striking off the defence inthe following words :

“8. Section 24 of the Act empowers the matrimonial courtto award maintenance pendente lite and also litigationexpenses to needy and indigent spouse so that theproceedings can be conducted without any hardship onhis or her part. The proceedings under this Section aresummary in nature and confers substantial right on theapplicant during the pendency of the proceedings. Wherethis amount is not paid to the applicant,thenthevery objectand purpose ofthis provision standsdefeated.Nodoubt,remedyofexecutionofdecreeororderpassedbythematrimonialcourtisavailableunderSection28AoftheAct,butthesame would not be bar to striking off thedefence of the spouse who violates the interim order ofmaintenance and litigation expenses passed by the saidCourt.In other words, the striking off the defence of thespouse not honouring the court’s interim order is the instantrelief to the needy one instead of waiting endlessly till itsexecution under Section 28A of the Act. Where the spousewho is to pay maintenance fails to discharge the liability,the other spouse cannot be forced to adopt time consumingexecution proceedings for realising the amount. Courtcannot be mute spectator watching flagrant disobedienceof the interim orders passed by it showing its helplessnessin its instant implementation. It would, thus, be appropriateeven in the absence of any specific provision to that effectin the Act, to strike off the defence of the erring spouse inexercise of its inherent power under Section 151 of theCode of Civil Procedure read with Section 21 of the Actrather than to leave the aggrieved party to seek itsenforcement through execution as execution is long andarduous procedure. Needless to say, the remedy underSection 28A of the Act regarding execution of decree orinterim order does not stand obliterated or extinguishedby striking off the defence of the defaulting spouse. Thus,

where the spouse who is directed to pay the maintenanceand litigation expenses, the legal consequences for its non-payment are that the defence of the said spouse is liable tobe struck off.”

(emphasis supplied)

(iv) The Delhi High Court in Satish Kumar v Meena[67] heldthat the Family Court had inherent powers to strike off thedefence of the respondent, to ensure that no abuse of processof the court takes place.

The Delhi High Court in Smt. Santosh Sehgal v ShriMurari Lal Sehgal,[68] framed the following issue forconsideration : “Whether the appeal against the decree ofdivorce filed by the appellant-wife can be allowedstraightway without hearing the respondent-husband inthe event of his failing to pay interim maintenance andlitigation expenses granted to the wife during thependency of the appeal.”

The reference was answered as follows :

“5.The reference to the portion of the judgment in Bani’scase extracted here- in-above would show that the Punjaband Haryana High Court and Orissa Page 2216 High Courthave taken an unanimous view that in case the husbandcommits default in payment of interim maintenance to hiswife and children then he is not entitled to any matrimonialrelief in proceedings by or against him. The view taken byPunjab and Haryana High Court in Bani’s case has beenfollowed by Single Judge of this Court in Satish Kumarv. Meena. We tend to agree with this view as it is inconsonance with the first principle of law. We are of theview that when husband is negligent and does not paymaintenance to his wife as awarded by the Court, thenhow such person is entitled to the relief claimed by him inthe matrimonial proceedings. We have no hesitation inholding that in case the husband fails to pay maintenanceand litigation expenses to his wife granted by the Court

during the pendency of the appeal, then the appeal filedby the wife against the decree of divorce granted by thetrial court in favor of the husband has to be allowed. Hencethe question referred to us for decision is answered in theaffirmative.”

The Court concluded that if there was non-payment ofinterim maintenance, the defence of the respondent is liable

to be struck off, and the appeal filed by the appellant-wifecan be allowed, without hearing the respondent.

(v) The Punjab and Haryana High Court in GurvinderSingh v Murti & Ors.[69] was considering case where thetrial court stuck off the defence of the husband for non-paymentof ad-interim maintenance. The High Court set aside the orderof the trial court, and held that instead of following the correctprocedure for recovery of interim maintenance as providedu/S. 125 (3) or Section 421 of the Cr.P.C., the trial court erredin striking off the defence of the husband. The error of thecourt did not assist in recovery of interim maintenance, butrather prolonged the litigation between the parties.

(vi) The issue whether defence can be struck off in proceedingsunder Section 125 Cr.P.C. came up before the MadhyaPradesh High Court in Venkateshwar Dwivedi v RuchiDwivedi.[70] The Court held that neither Section 125(3) of theCr.P.C, nor Section 10 of the Family Courts Act either expresslyor by necessary implication empower the Magistrate or FamilyCourt to strike off the defence. statutory remedy for recoveryof maintenance was available, and the power to strike offdefence does not exist in proceeding u/S. 125 Cr.P.C. Suchpower cannot be presumed to exist as an inherent or impliedpower. The Court placed reliance on the judgment of the KeralaHigh Court in Davis v Thomas,[71] and held that the Magistratedoes not possess the power to strike off the defence for failureto pay interim maintenance.

69 Gurvinder Singh v Murti & Ors. I (1990) DMC 559.

70 II (2018) DMC 103 MP. Karnataka High Court affirmed this view in Ravindra Kumar v Renuka & Anr. 2009 SCC OnLine Kar 481.

71 2007(4) ILR (Kerala) 389.

See also Sakeer Hussain T.P. v Naseera & Ors., 2016 (4) ILR (Kerala) 917.

Discussion and Directions on Enforcement of Ordersof Maintenance

The order or decree of maintenance may be enforcedlike decree of civil court, through the provisions which areavailable for enforcing money decree, including civildetention, attachment of property, etc. as provided by variousprovisions of the CPC, more particularly Sections 51, 55, 58,60 read with Order XXI.

Striking off the defence of the respondent is an orderwhich ought to be passed in the last resort, if the Courts finddefault to be wilful and contumacious, particularly to adependant unemployed wife, and minor children.

Contempt proceedings for wilful disobedience may beinitiated before the appropriate Court.

VI FINAL DIRECTIONS

In view of the foregoing discussion as contained in PartB – I to V of this judgment, we deem it appropriate to passthe following directions in exercise of our powers under Article142 of the Constitution of India :

(a) Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, andavoid conflicting orders being passed in different proceedings, ithas become necessary to issue directions in this regard, sothat there is uniformity in the practice followed by the FamilyCourts/District Courts/Magistrate Courts throughout thecountry. We direct that:

(i) where successive claims for maintenance are made by aparty under different statutes, the Court would consider anadjustment or set- off, of the amount awarded in the previousproceeding/s, while determining whether any further amountis to be awarded in the subsequent proceeding;

(ii) it is made mandatory for the applicant to disclose theprevious proceeding and the orders passed therein, in thesubsequent proceeding;

(iii) if the order passed in the previous proceeding/s requiresany modification or variation, it would be required to be donein the same proceeding.

(b) Payment of Interim Maintenance

The Affidavit of Disclosure of Assets and Liabilitiesannexed as Enclosures I, II and III of this judgment, as maybe applicable, shall be filed by both parties in all maintenanceproceedings, including pending proceedings before theconcerned Family Court / District Court / Magistrates Court,as the case may be, throughout the country.

(c) Criteria for determining the quantum of maintenance

For determining the quantum of maintenance payableto an applicant, the Court shall take into account the criteriaenumerated in Part – III of the judgment.

The aforesaid factors are however not exhaustive, andthe concerned Court may exercise its discretion to considerany other factor/s which may be necessary or of relevance inthe facts and circumstances of case.

(d) Date from which maintenance is to be awarded

We make it clear that maintenance in all cases will beawarded from the date of filing the application for maintenance,as held in Part – IV above.

(e) Enforcement / Execution of orders of maintenance

For enforcement / execution of orders of maintenance,it is directed that an order or decree of maintenance may beenforced under Section 28A of the Hindu Marriage Act, 1956;Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., asmay be applicable. The order of maintenance may be enforcedas money decree of civil court as per the provisions of theCPC, more particularly Sections 51, 55, 58, 60 r.w. OrderXXI.

Before we part with this judgment, we note ourappreciation of the valuable assistance provided by the Ld.Amici Curiae Ms. Anitha Shenoy and Mr. GopalSankaranarayanan, Senior Advocates in this case.

copy of this judgment be communicated by theSecretary General of this Court, to the Registrars of all HighCourts, who would in turn circulate it to all the District Courtsin the States. It shall be displayed on the website of all DistrictCourts / Family Courts / Courts of Judicial Magistrates forawareness and implementation.

EnclosureI

AffidavitofAssets andLiabilitiesforNon-AgrarianDeponents

CI___________, d/o___________or

s/o___________,

aged___________about___________years, resident of__________,

do hereby solemnly affirm and declare as under:

A. Personal Information

1.Name:

2.Age/Sex:

3.Qualifications (Educational and Professional):

4.Whether the Applicant is staying in the matrimonial house /parental home / separate residence. Please provide the currentEresidential address of matrimonial home or place of residenceand details of ownership of residence, if owned by other familymember.

5.Date of marriage:

6.Date of separation:

7.General monthly expenses of the Applicant (rent, householdexpenses, medical bills, transportation, etc.):

B. Details of Legal Proceedings and Maintenance being

paidG1.Particulars of any ongoing or past legal proceedings withrespect to maintenance or child support between the Applicantand Non-Applicant.

2.Whether any maintenance has been awarded in anyproceeding arising under the D.V.Act, Cr.P.C., HMA, HAMA,H

etc.? If yes, provide details of the quantum of maintenanceawarded in the proceedings.

3. If so, provide particulars thereof, alongwith copy of theOrder/s passed.

4. Whether the Order of maintenance passed in earlier proceedingsBhas been complied with. If not, arrears of maintenance.

5. Whether any voluntary contribution towards maintenance hasbeen made/ will be made in the future? If yes, provide detailsof the same.

C. Details of dependant family members

1. Details of Dependant family members, if any.

a. Relationship with dependants:

b. Age and sex of dependant/s:

2. Disclose if any independent source/s of income of theDdependants, including interest income, assets, pension, taxliability on any such income and any other relevant details.

3. The approximate expenses incurred on account of thedependant.

D. Medical details if any, of the Deponent and/or dependantfamily members

1. Whether either party or child /children is suffering from anyphysical / mental disability, or any other serious ailment. Ifyes, produce medical records.

2. Whether any dependant family member has serious disability,requiring continuous medical expenditure. If yes, producedisability certificate and approximate medical expenditureincurred on such medical treatment.

3. Whether either party or child/children or any other dependentfamily member is suffering from life-threatening diseases,which would entail expensive and regular medical expenditure?If yes, provide details of the same along with summary ofprevious details of hospitalisation/medical expenses incurred.

AE. Details of Children of the parties

1.Number of children from the existing marriage / maritalrelationship/ previous marriage

2.Name and age of children

3.Details of the parent who has the custody of the children.

4.Expenditure for maintenance of dependant children.

a. Towards food, clothing and medical expenses

b. Towards expenses for education, and summary of generalexpensesC

c. Towards expenses, if any, of any extra educational,vocational or professional / educational course, specialisedtraining or special skills programme of dependent children.

d. Details of any loan, mortgage, charge incurred or instalmentDplan (being paid or payable), if any, on account of anyeducational expenses of children.

5.Whether any voluntary contribution by either of the parties isbeing made towards these educational expenses. If yes,provide details of the same. Also provide an estimate of anyEadditional contribution that may be required.

6.Whether any financial support is being provided by thirdparty for the educational expenses of the children?

F. Details of Income of the Deponent

1.Name of employer:

2.Designation:

3.Monthly income:

4.If engaged in Government Service, furnish latest SalaryCertificates or current Pay Slips or proof of deposit in bankGaccount, if being remitted directly by employer.

5.If engaged in the private sector, furnish certificate providedby the employer stating the designation and gross monthlyincome of such person, and Form 16 for the relevant period ofcurrent employment.H

6.If any perquisites, benefits, house rent allowance, travelallowance, dearness allowance or any other service benefit isbeing provided by the employer during the course of currentemployment.

7.Whether assessed to income tax?

If yes, submit copies of the Income Tax Returns for the periodsgiven below :

(i) One year prior to marriage

(ii) One year prior to separation

(iii) At the time when the Application for maintenance is filed

8.Income from other sources, such as rent, interest, shares,dividends, capital gains, FDRs, Post office deposits, mutualfunds, stocks, debentures, agriculture, or business, if any,alongwith TDS in respect of any such income.

9.Furnish copies of Bank Statement of all accounts for the last3 years.

G. Assets (movable and immovable) owned by the Deponent

1.Self-acquired property, if any:

2.Properties jointly owned by the parties after marriage:

3.Share in any ancestral property:

4.Other joint properties of the parties (accounts/ investments/FDR/ mutual funds, stocks, debentures etc.), their value andstatus of possession:

5.Status of possession of immovable property and details of rent,if leased:

6.Details of loans taken or given by the Deponent

7.Brief description of jewellery and ornaments of partiesacquired during /after marriage

8.Details of transfer deeds or transactions of alienation ofproperties previously owned by the applicant, executed duringthe subsistence of the marriage. Also provide brief reasonsfor such sale or transaction, if any.

AH. Details of Liabilities of the Deponent

1.Loans, liabilities, mortgage, or charge outstanding against theDeponent, if any.

2.Details of any EMIs being paid.

3.Date and purpose of taking loan or incurring any such liability:

4.Actual amount borrowed, if any, and the amount paid uptodate of filing the Affidavit:

5.Any other information which would be relevant to describecurrent liabilities of the Deponent.CI. Self-employed persons / Professionals / Business Persons/ Entrepreneur

1.Brief description of nature of business/profession/vocation/self-employed/work activity.

D2.Whether the business/profession/ self-employment is carriedon as an individual, sole proprietorship concern, partnershipconcern, LLP, company or association of persons, HUF, jointfamily business or any other form? Give particulars ofApplicant’s share in the partnership/business/ professionalassociation/self- employment. In case of partnership, specifyEthe share in the profit/losses of the partnership.

3.Net Income from the business/profession/ partnership/self-employment.

4.Business/partnership/self-employment liabilities, if any, in caseFof such activity.

5.In case of business of company, provide brief details of lastaudited balance sheet to indicate profit and loss of thecompany in which such party is in business in the company.

6.In case of partnership firm, provide details of the filings ofGthe last Income Tax Return of partnership.

7.In case of self-employed individual, provide the filings of thelast Income Tax Return from any such professional/business/vocational activity.

J. Information provided by the Deponent with respect tothe income, assets and liabilities of the other Spouse

1.Educational and professional qualifications of the other spouse:

2.Whether spouse is earning? If so, give particulars of theoccupation and income of the spouse.

3.If not, whether he/she is staying in his/her ownaccommodation, or in rented accommodation or inaccommodation provided by employer/business/partnership?

4.Particulars of assets and liabilities of spouse as known to thedeponent, alongwith any supporting documents.

K. Details of Applicant or the other Spouse, in case partiesare Non-Resident Indians, Overseas Citizens of India, ForeignNationals or Persons living abroad outside India.

1.Details of Citizenship, Nationality and current place ofresidence, if the Applicant or other spouse is residing abroadDoutside India, temporarily or permanently.

2.Details of current employment and latest income in foreigncurrency of such applicant/spouse, duly supported by relevantdocumentation of employment and income from such foreignemployer or overseas institution by way of employment letterEor testimonial from foreign employer or overseas institution orlatest relevant bank statement.

3.Details of household and other expenditure of such applicant/spouse in foreign jurisdiction.

4.Details of tax liability of applicant/other spouse in foreignjurisdiction.

5.Details of income of applicant/other spouse from other sourcesin India/foreign jurisdiction.

6.Details of expenses incurred or contribution made on accountof spousal maintenance, child support or any other educationalexpenses, medical treatment of spouse or children.

7.Any other relevant detail of expenses or liabilities, not coveredunder any of the above headings and any other liabilities toany other dependant family members in India or abroad.

1170SUPREME COURT REPORTS

ADeclaration

1.I declare that I have made full and accurate disclosure ofmy income, expenditure, assets and liabilities from all sources.I further declare that I have no assets, income, expenditureand liabilities other than as stated in this affidavit.

2.I undertake to inform this Court immediately with respect toany material change in my employment, assets, income,expenses or any other information included in this affidavit.

3.I understand that any false statement in this affidavit, apartfrom being contempt of Court, may also constitute an offenceCunder Section 199 read with Sections 191 and 193 of the IndianPenal Code punishable with imprisonment upto seven yearsand fine, and Section 209 of Indian Penal Code punishablewith imprisonment upto two years and fine. I have read andunderstood Sections 191, 193, 199 and 209 of the Indian PenalDCode, 1860.

DEPONENT

Verification

Verified aton thisday ofthat the contents of theabove affidavit are true to my personal knowledge, no part ofit is false and nothing material has been concealed therefrom,whereas the contents of the above affidavit relating to theFassets, income and expenditure of my spouse are based oninformation believed to be true on the basis of record. I furtherverify that the copies of the documents filed along with theaffidavit are the copies of the originals.

DEPONENT

EnclosureII

Details for Affidavit for Agrarian Deponents (Krishi)

1.Total extent of the rural land/s owned, or the specific shareHholding in the same land:

RAJNESH v. NEHA & ANR.

[INDU MALHOTRA, J.]

2.Jamabandis / Mutations to show ownership

3.Location of the land owned by the party.

4.Nature of land : whether wet land or dry land.

5.Whether such land is agricultural land or non-agricultural land:

6.Nature of agriculture / horticulture :

7.Nature of crops cultivated during the year :

8.If rural land is not cultivable, whether the same is being usedfor business, leasing or other activity :

9.Income generated during the past 3 years from the land.

10. Whether any land is taken on lease /battai (or any other termused for lease in the local area of the concerned jurisdictionwhere rural /agricultural land is located.)

11. (a) Whether owner of any livestock, such as buffaloes, cows,Dgoats, cattle, poultry, fishery, bee keeping, piggery etc., thenumber thereof and Income generated therefrom?

(b) Whether engaged in dairy farming, poultry, fish farming orany other livestock activity.

12. Loans, if any obtained against the land. Furnish details of suchloans.

13. Any other sources of income :

14. Liabilities, if any

15. Any other relevant information :

Declaration

1.I declare that I have made full and accurate disclosure ofmy income, expenditure, assets and liabilities from all sources.I further declare that I have no assets, income, expenditureand liabilities other than as stated in this affidavit.

2.I undertake to inform this Court immediately with respect toany material change in my employment, assets, income,expenses or any other information included in this affidavit.

3.I understand that any false statement in this affidavit, apartfrom being contempt of Court, may constitute an offence under

ASection 199 read with Sections 191 and 193 of the Indian PenalCode punishable with imprisonment upto seven years and fine,and Section 209 of Indian Penal Code punishable withimprisonment upto two years and fine. I have read andunderstood Sections 191, 193, 199, and 209 of the Indian PenalCode,1860.

Verification

DEPONENT

Verified aton thisday ofthat the contents of theabove affidavit are true to my personal knowledge, no part ofit is false and nothing material has been concealed therefrom.I further verify that the copies of the documents filed alongwith the affidavit are the copies of the originals.

DEPONENT

EnclosureIII

Affidavit for the State of Meghalaya

1.Whether the woman is the youngest daughter of the family.

2.Whether the woman is staying with her husband in her familyproperty.

3.Whether she has any maternal uncle, who plays very importantrole in their family matters, which includes settlement ofmatrimonial disputes. The woman should also disclose her clanand her lineage.

4.The woman should disclose if her children have adopted thesurname of her mother, in as much as Khasi has been definedGas “a person who adopts the surname of his or her mother”.

5.The woman should disclose if she gets any financial assistancefrom her clan or family member.

6.The woman should disclose if her parents are alive moreHspecifically, her mother, and how many siblings she has.

7.In event of woman not being the youngest daughter, sheAhas to disclose who the youngest daughter is.

8.The woman should disclose if she has any movable or anyimmovable property, self-acquired or inherited from her clan.

9.The woman should disclose if she is married to tribal or non-tribal

The above format may be modified or adapted by theconcerned Court, as may be considered appropriate.

Declaration

1.I declare that I have made full and accurate disclosure ofmy income, expenditure, assets and liabilities from all sources.I further declare that I have no assets, income, expenditureand liabilities other than as stated in this affidavit.

2.I undertake to inform this Court immediately with respect toany material change in my employment, assets, income,expenses or any other information included in this affidavit.

3.I understand that any false statement in this affidavit, apartfrom being contempt of Court, may also constitute an offenceEunder Section 199 read with Sections 191 and 193 of the IndianPenal Code punishable with imprisonment upto seven yearsand fine, and Section 209 of Indian Penal Code punishablewith imprisonment upto two years and fine. I have read andunderstood Sections 191, 193, 199, and 209 of the Indian PenalCode, 1860.F

DEPONENT

Verification

Verified aton thisday ofthat the contents of theabove affidavit are true to my personal knowledge, no part ofit is false and nothing material has been concealed therefrom,

Awhereas the contents of the above affidavit relating to theassets, income and expenditure of my spouse are based oninformation believed to be true on the basis of record. I furtherverify that the copies of the documents filed along with theaffidavit are the copies of the originals.

DEPONENT

Kalpana K. Tripathy

Appeals disposed of and Directions issued.