Maintenance

Decided on 09.10.1985, Supreme Court of India.

Coram:

2 Judge Bench of:

HON'BLE  MR JUSTICE E.S. VENKATARAMIAH

HON'BLE  MR JUSTICE R.B. MISRA

Issue:

Whether a magistrate, in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, has the authority to pass an interim order directing the person against whom the application is made to pay reasonable maintenance to the applicant pending disposal of the main application?

Fact:

The petitioner, Savitri, filed an application for maintenance under Section 125 of the CrP.C. against her husband and also filed a separate application seeking interim maintenance pending the outcome of the main case. However, the Magistrate declined to grant an interim order as there were no provisions in the Code allowing for it.

Held: 

(At Page 3, 3rd Para) The jurisdiction of a magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under that Chapter asking a person to pay maintenance to his wife, child or parent, as the case may be, the magistrate is not imposing any punishment on such person for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil court in a given case provided the Personal Law applicable to the person concerned authorises the enforcement of any such right to maintenance...

(At Page 4-5, 3rd Para)…Having regard to the nature of the jurisdiction exercised by a magistrate under section 125 of the Code, we feel that the said provision should be interpreted as conferring power by necessary implication on the magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to there pending final disposal of the application.

The Supreme Court held that while the CrP.C. does not explicitly provide for interim maintenance, the power to grant such relief can be impliedly vested in a Magistrate under Section 125. The Court noted that the primary objective of Section 125 is to provide immediate relief to the neglected or deserted spouse, child, or parent. Therefore, the power to grant interim maintenance would further this objective by providing immediate financial assistance to the aggrieved party until the final determination of the main application. However, the Court cautioned that such power should be exercised judiciously and only in deserving cases, taking into account the financial capacity of the person from whom maintenance is sought and the overall facts and circumstances of the case.

 

Decided on 04.12.2009 Supreme Court of India.

Coram: 

2 Judge Bench of:

HON'BLE MR. JUSTICE B. SUDERSHAN REDDY

HON'BLE MR. JUSTICE DEEPAK VERMA

Case No.:

Criminal Appeal No. 2309 of 2009 [Arising out of S.L.P.(Crl.) No.717 of 2009]

Issue:

Whether a divorced Muslim woman is entitled to claim maintenance under Section 125 of the CrPC?

Fact:

In this case, Shabana Bano, a Muslim woman, sought maintenance from her husband, Imran Khan, under Section 125 of the CrPC. The husband contended that since he had already divorced his wife through the process of talaq, he was not liable to pay maintenance.

Held:

1. 29. Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi (supra) and Iqbal Bano (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.
   30. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would  be entitled to claim maintenance from her husband under Section 125of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.

The Supreme Court held that a divorced Muslim woman is entitled to claim maintenance under Section 125 of the CrPC, and that the Muslim Women (Protection of Rights on Divorce) Act, 1986, does not bar such a claim. The Court observed that the right to claim maintenance is a fundamental right under Article 21 of the Constitution, and that the personal law of the parties cannot override this right. The Court also held that a divorced Muslim woman is entitled to claim maintenance from her former husband for the period of iddat, which is the period of time immediately after the divorce during which the husband is obligated to provide for the wife's maintenance.

Decided on 21.10.2010, Supreme Court of  India.

Coram: 

2 Judge Bench of:

HON'BLE MR. JUSTICE MARKANDEY KATJU  

HON'BLE MR. JUSTICE T.S THAKUR

Case No.:

Criminal Appeal Nos. 2028-2029 of 2010 [Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]

Issue:

Whether a woman who is living in live-in relationship and has not legally married the man would be entitled to maintenance or not? Also, what are the conditions which are mandatory to be fulfilled before such women become eligible for entitlement to maintenance?

Fact:

D Patchaiammal filed a petition in 2001 under Section 125 of Cr. P.C before the Family Court, alleging that she was married to the appellant in 1986 and lived together for two to three years. The appellant, who is a Secondary Grade Teacher, claimed that he was married to Lakshmi in 1980 and produced evidence such as a ration card, voter's identity card, and photographs of the wedding. The Family Court and the High Court held in favour of the respondent, confirming the marriage between the appellant and the respondent. The appellant has filed an appeal before the Supreme Court.

Held:

1. 1. 33. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(see ‘Common Law Marriage’ in Wikipedia on Google)

In our opinion a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

1. 1. 34. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’
      35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression relationship in the nature of marriage’ and not `live in relationship’. The Court in the grab of interpretation cannot change the language of the statute.
      36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel `Anna Karenina’, Gustave Flaubert’s novel `Madame Bovary’ and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.
      37. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.

Supreme Court held that since Lakshmi was not a party to the petition and had not been issued any notice about the case, any declaration about her marital status would violate the principles of natural justice as it would affect her rights. Therefore, no declaration could be given about the marital status of Lakshmi and the appellant. The Court further noted that if Lakshmi was the appellant's wife, then the appellant could not have validly married the respondent without divorcing her first.

Decided on 10.05.1985, Supreme Court of India.

Coram: 

2 Judge Bench of:

HON’BLE MR. JUSTICE R.B. MISRA

HON’BLE MR. JUSTICE O. CHINNAPPA REDDY

Fact:

The petitioner, a member of the Khasi tribe and a Presbyterian Christian, married a Sikh under the Indian Christian Marriage Act, 1872, on October 14, 1975. She filed a petition in 1980 seeking a declaration of nullity of marriage or judicial separation, alleging that her husband was impotent. She claimed that although her husband was able to achieve an erection and penetration, he ejaculated prematurely before she had an orgasm, leaving her unsatisfied and frustrated. The Single Judge of the High Court rejected her prayer for a declaration of nullity but granted a decree for judicial separation on the ground of cruelty. The Division Bench affirmed the judgment of the Single Judge on appeal. The wife has filed a special leave petition challenging the decision of the Division Bench, seeking a declaration of nullity of marriage. The real problem in this case is that the marriage appears to have broken down irretrievably. Yet, if the findings of the High Court stand, there is no way out for the couple, as neither mutual consent nor irretrievable breakdown of marriage is a ground for divorce under the Indian Divorce Act.

Issues:

Whether there is a need for a complete reform of the law of marriage and divorce to provide for a uniform code applicable to all people irrespective of religion or caste, including grounds such as irretrievable breakdown of marriage and mutual consent?

Held:

(At Page 9, 2nd Para) It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. Surely the time has now come for a complete reform of the law of marriage and makes a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable break down of marriage and mutual consent as grounds of divorce in all cases. The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in. We direct that a copy of this order be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take…

The case of Ms Jorden Diengdeh v S.S. Chopra, AIR 1985 SC 935 highlights the need for a Uniform Civil Code in India to ensure uniformity in personal laws related to marriage such as divorce, judicial separation, etc. The court emphasized the need for uniform provisions like an irretrievable breakdown of marriage and mutual consent for divorce to be applied in all cases irrespective of religion. The court directed a copy of its judgment to be sent to the Ministry of Law and Justice to consider the need for framing a Uniform Code for marriage and divorce. The conclusion drawn is that a UCC will ensure gender equality, provide equal status to all citizens irrespective of the community they belong to, and help in reducing vote bank politics. It is suggested that awareness and sensitization should be created among the public to clear misconceptions about UCC, and the best features from all religions and foreign countries should be compiled and adopted to create a UCC.

 

Decided on 28.09.2001, Supreme Court of India.

Coram: 

5 Judge Bench of:

HON’BLE MR. JUSTICE G.B PATTANAIK 

HON’BLE MR. JUSTICE S. RAJENDRA BABU 

HON’BLE MR. JUSTICE D.P. MOHAPATRA

HON’BLE MR. JUSTICE DORAISWAMY RAJU 

HON’BLE MR. JUSTICE SHIVRAJ V. PATIL

Case No.:

Writ Petition (civil) 868 of 1986

Fact:

Shah Bano, a divorced Muslim woman, filed for maintenance under Section 125 of the CrPC. The Supreme Court upheld her right to alimony, but the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, denying her further maintenance. Danial Latifi filed a Writ Petition challenging the Act's constitutional validity, arguing that it violated Articles 14, 15, and 21 of the Constitution.

Issues:

Whether a Muslim husband's liability to provide reasonable and fair provision, including maintenance, to his divorced wife extends beyond the iddat period under Section 3(1)(a) of the Act, the provisions for maintenance from relatives under Section 4 of the Act, and the constitutionality of the Act under Articles 14, 15, and 21 of the Constitution of India are legally valid?

Held:

(At Page 14-15, 2nd Para). While upholding the validity of the Act, we may sum up our conclusions:

1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.

2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of  India. 

In the Danial Latifi case, the Supreme Court upheld the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The court held that a Muslim husband is responsible for paying maintenance to his divorced wife beyond the iddat period and must make reasonable and fair provisions for her future. The obligation of the husband to maintain his wife extends for the rest of the divorced wife’s life unless she remarries. The Court's decision was a balanced interpretation of the Act that did not compromise personal law or individual rights and was progressive in determining women’s rights without interfering with the Muslim community’s personal laws. The rule in Danial Latifi v. Union of India case is followed in maintenance disputes involving Muslim personal law.

Decided on 19.11.2014, Supreme Court of India.

Case No:

Criminal Appeal No. 2435 of 2014 (Arising out of SLP (Crl.) No. 3345 of 2013)

Coram:

2 Judge  Bench of:

HON'BLE MR. JUSTICE J. CHELAMESWAR 

HON'BLE MR. JUSTICE S.A BOBDE 

Issue:

Whether the maintenance granted to the wife should be paid from the date of the order or from the date of the application for maintenance?

Fact:

The case involves an appeal made by a wife and a minor daughter for maintenance. The Family Court had initially directed payment of interim maintenance to the wife and minor daughter under Section 125 of the Code of Criminal Procedure and under Section 24 of the Hindu Marriage Act. Eventually, the Family Court granted maintenance only to the daughter, and the wife was denied maintenance on the ground that she had been working before her marriage and could earn her living even after separation. However, the High Court reversed this order and granted maintenance to the wife from the date of the order. The issue in the case is whether maintenance should be granted to the wife from the date of the order or from the date of the application.

Held: 

1. 1. 6. The provision expressly enables the Court to grant maintenance from the date the order or from the date of the application. However, Section 125 of the Cr.P.C. must be construed with sub-section (6) of Section 354 of the Cr.P.C. which read... Therefore, every final order under Section 125 of the Cr.P.C.[and other sections referred to in sub-section (c) of Section 354] must contain points for determination, the decision thereon and the reasons for such decision. In other words, Section 125 and Section 354 (6) must be read together.
      7. Section 125 of the Cr.P.C., therefore, impliedly requires the Court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts. For good reason, evident from its order, the Court may choose either date. It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per Section 354 (6) of the Cr.P.C.,the Court should record reasons in support of the order passed by it, in both eventualities. The purpose of the provision is to prevent vagrancy and destitution in society and the Court must apply its mind to the options having regard to the facts of the particular case.
      8. In Shail Kumari Devi v. Krishan Bhagwan Pathak, this Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. In Shail Kumar Devi, this Court considered a catena of decisions by the various High Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application. The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in support of such Order. Thus, such maintenance can be awarded from the date of the Order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary.

In this case, the Supreme Court of India considered an appeal against a High Court decision that had reversed an order of the Family Court granting maintenance to a wife under Section 125 of the Code of Criminal Procedure, 1973. The Family Court had denied maintenance to the wife on the ground that she was found to have been working before her marriage and could earn her living after separation. The High Court, however, noted that the wife had stopped working after her marriage and had been looking after the family. Therefore, the High Court granted maintenance to the wife from the date of its order.

The Supreme Court held that the High Court erred in not granting maintenance to the wife from the date of her application for maintenance, as provided for in Section 125(2) of the Cr.P.C. The Court noted that the provision expressly enables the Court to grant maintenance from the date of the order or from the date of the application. However, the Court also observed that the discretion to grant maintenance from the date of the order or from the date of the application must be exercised judiciously and on the facts and circumstances of each case. Therefore, the Supreme Court directed the husband to pay maintenance to the wife from the date of her application for maintenance.

Decided on 04.11.2020, Supreme Court of India.

Coram: 

2 Judge Bench of:

HON'BLE MS. JUSTICE INDU MALHOTRA, 

HON'BLE MR. JUSTICE R. SUBHASH REDDY 

Case No.:

Criminal Appeal No. 730 Of 2020 (Arising out of SLP (Crl.) No. 9503 of 2018)

Issue:

Issue 1: Whether directions should be issued to address overlapping jurisdiction in maintenance proceedings?

Issue 2: Whether disclosure of previous proceedings and orders should be made mandatory in subsequent maintenance proceedings?

Issue 3: Whether criteria for determining quantum of maintenance should be specified? 

Issue 4: Whether maintenance should be awarded from the date of filing the application? 

Issue 5: Whether enforcement/execution of maintenance orders should be guided by specific provisions of relevant laws?

Fact:

The case involves a wife who left the matrimonial home after the birth of her son and filed an application for interim maintenance under Section 125 of the Criminal Procedure Code (Cr.P.C.) on behalf of herself and her minor son. The Family Court awarded interim maintenance of Rs. 15,000 per month to the wife and Rs. 5,000 per month as interim maintenance for the son from 01.09.2013 to 31.08.2015 and Rs. 10,000 per month from 01.09.2015 onwards till further orders were passed in the main petition. The husband challenged this order before the Bombay High Court through a Criminal Writ Petition, which was dismissed, and the judgment passed by the Family Court was affirmed. The husband then appealed before the Supreme Court, which was his final legal recourse.

Held:

(At Page 56-57,  1st Para) In view of the foregoing discussion as contained in Part B – I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India :

(a) Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;

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

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

(b) Payment of Interim Maintenance

The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned 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 payable to an applicant, the Court shall take into account the criteria enumerated in Part B – III of the judgment.The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B – 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 be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.

The Supreme Court framed guidelines on the issue of maintenance in order to address the difficulties encountered in the enforcement of orders passed by the Courts, and to provide uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. The guidelines cover overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

The Court provided directions for dealing with overlapping jurisdiction, including considering an adjustment or setoff of the amount awarded in the previous proceeding/s while determining whether any further amount is to be awarded in the subsequent proceeding, making it mandatory for the applicant to disclose the previous proceeding and the orders passed therein in the subsequent proceeding, and requiring any modification or variation in the order passed in the previous proceeding/s to be done in the same proceeding.

The Court also directed the filing of an Affidavit of Disclosure of Assets and Liabilities by both parties in all maintenance proceedings, including pending proceedings before the concerned Family Court / District Court / Magistrates Court, throughout the country, and provided criteria for determining the quantum of maintenance payable to an applicant.

The Court made it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance and provided directions for the enforcement/execution of orders of maintenance under different enactments, including the Hindu Marriage Act, the D.V. Act, and the Cr.P.C.

Decided on 10.3.2005, Supreme Court of India.

Case No:

Appeal (Crl.) No. 399 of 2005 (Arising out of SLP (Crl.) No. 4688 of 2004)

Coram: 

2 Judge Bench of:

HON'BLE MR. JUSTICE ARIJIT PASAYAT 

HON'BLE MR. JUSTICE  S.H. KAPADIA

Issues:

Issue 1: Whether a woman who enters into a marriage with a person who has a living spouse is entitled to claim maintenance under this section?

Issue 2: Whether the quantum of maintenance awarded to the child can be enhanced and whether such enhancement is permissible.

Fact:

The appellant claims to have been married to respondent No.2 but was ill-treated and subjected to mental and physical torture due to respondent No.2's relationship with another woman. The appellant filed a maintenance claim under Section 125 of the Code, which was initially granted but later set aside and remanded by the Additional Sessions Judge, Sabarkatha. After the trial court awarded maintenance to both the appellant and the child, respondent No.2 filed a revision application which was dismissed by the Additional District Judge. The Gujarat High Court held that the appellant was not legally wedded wife of respondent No.2 and granted maintenance only to the child. The appellant's counsel argued that the High Court's view was too technical and that the law is intended to protect destitute and harassed women, while respondent No.2's counsel argued that there is no scope for giving an extended meaning to the term "wife" and that the law is well settled in this regard. The appellant's counsel also submitted that the quantum of maintenance should be enhanced for the child, taking into account the high cost of living, while respondent No.2's counsel opposed the claim.

Held:

(At Page 4-5, 2nd Para)…in the present case that the appellant was not informed about the respondent’s earlier marriage when she married him was held to be of no avail. The principle of estoppel cannot be pressed into service to defeat the provision of Section 125 of the Code.

(At Page 5, 1st Para)…the legislative intent is clearly reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include a woman not lawfully married in the expression ’wife’.

(At Page 5, 3rd Para) In the instant case, the evidence on record has been found sufficient by the Courts below by recording findings of fact that the earlier marriage of respondent was established.

(At Page 5, 4th Para) In that view of the matter, the application so far as the claim of maintenance of the wife is concerned stands dismissed.

(At Page 5, 5th Para)…That brings us to the other question relating to the adequacy of the quantum of maintenance awarded to the child. It is not in dispute that when the Claim Petition was filed, Rs.500/- was claimed as maintenance as that was the maximum amount which could have been granted because of the un-amended Section 125. But presently, there is no such limitation in view of the amendment as referred to above.

(At Page 5, 6th Para)… As a matter of fact, Section 127 of the Code permits increase in the quantum. The application for maintenance was filed on 1.9.1995. The order granting maintenance was passed by the learned JMFC on 31.7.1999. The High Court enhanced the quantum awarded to the child from Rs.350/- to Rs.500/- with effect from the order passed by learned JMFC. No dispute has been raised regarding enhancement and in fact there was a concession to the prayer for enhancement before the High Court as recorded in the impugned judgment. Considering the peculiar facts of the case, we feel that the amount of maintenance to the child can be enhanced to Rs.850/- with effect from today.

The Supreme Court held that a divorced wife could claim maintenance under Section 125 of the CrPC if she was unable to maintain herself. The Court observed that the purpose of Section 125 was to prevent destitution and vagrancy, and it was immaterial whether the claimant was a divorced wife or not. The Court further held that the right to claim maintenance was not restricted to the period during which the marriage subsisted, but it could be claimed even after divorce. The Court, therefore, set aside the orders of the Sessions Court and the High Court and directed the respondent-husband to pay maintenance to the appellant.

 

Decided on 06.08.2020, High Court of  Delhi.

Coram: 

1 Judge Bench of:

HON'BLE  MR. JUSTICE J.R. MIDHA

Case No.:

FAO 369/1996

Issue:

Is the affidavit asset income expenditure in Kusum Sharma II which was modifed in Kusum Sharma III & IV is required to be modified again to make it more comprehensive?

Fact:

The case being referred to involves a claim for maintenance under the Hindu Marriage Act, where the claimant, who has no independent income, is seeking support from the respondent. The court has observed that it is common for parties in such cases to not disclose their true income, and that the burden to prove their true income is on the parties themselves, as per Section 106 of the Indian Evidence Act.

Held 

1. 1. 64. The Court has to ascertain the financial capacity/ status of the parties determining the maintenance and permanent alimony. A comprehensive affidavit of assets, income and expenditure of both the parties is necessary to determine their financial capacity/status.

1. 1. 65. In exercise of the powers under Section 10(3) of the Family Courts Act, 1984 read with Sections 106 and 165 of the Indian Evidence Act and Article 227 of the Constitution of India, this Court formulated the affidavit of assets, income and expenditure in Kusum Sharma II [ judgment dated 14th January, 2015 – (2015) 217 DLT 706] which was modified in Kusum Sharma III [ judgment dated 29th May, 2017 – (2017) 241 DLT 252] and Kusum Sharma IV [ judgment dated 6th December, 2017 – (2018) 246 DLT1]. The format of the affidavit of Kusum Sharma IV is being modified by this judgment in order to make it more comprehensive. The modified affidavit of assets, income and expenditure is Annexure A2 to this judgment.

1. 1. 68. The Court shall simultaneously take on record the affidavit of assets, income and expenditure of both the parties. The simultaneous filing of the affidavit by the parties is very important and should be strictly adhered to. The simultaneous filing of the affidavit by the parties would avoid any undue advantage to the party who files his/her affidavit later. It is clarified that the affidavit of assets, income and expenditure is not to be filed along with the petition/application/ or written statement/reply.

1. 1. 74. If the party does not truly disclose all his assets and income, the opposite party is at liberty to serve the interrogatories under Order XI of the Code of Civil Procedure and/or seek the production of relevant documents from the party filing the affidavit.

1. 1. 75. In appropriate cases, the Court may order interrogatories, discovery, inspection, production of any document and/or order any fact to be proved by affidavit under Section 30 of the Code of Civil Procedure.
      76. The Court shall, thereafter, consider whether the oral examination of the party is necessary under Section 165 of the Evidence Act. If so, the Court shall proceed to examine the party to elicit the truth.

1. 1. 84. The affidavit of assets, income and expenditure is to be treated as guidelines to determine the true financial capacity/status of the parties. The Courts are at liberty to determine the nature and extent of information/documents necessary and to direct the parties to disclose relevant information and documents to determine the financial capacity/status. The Courts are at liberty to pass appropriate directions as may be considered necessary to do complete justice between the parties and in appropriate cases, such as, the cases belonging to the lowest strata of the society or case of a litigant who is a permanently disabled/paralytic, the Court may, for reasons to be recorded, dispense with the requirement of filing of the affidavit or modify the information required.

1. 1. 85. These modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 Cr.P.C; Hindu Adoption and Maintenance Act, 1956; Special Marriage Act, 1954; Indian Divorce Act, 1869; Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.

1. 1. 86. Matrimonial jurisdiction deserves a special attention and the maintenance applications should be decided expeditiously.

The Supreme Court held that the right to claim maintenance under Section 125 of the CrPC is not restricted to the wife only, but also extends to divorced wives, children, and parents. The Court observed that the purpose of Section 125 is to prevent vagrancy and destitution and to provide speedy and summary relief to the dependents who have no means to support themselves. The Court further observed that the provision should be interpreted liberally to achieve its object.

Decided on 27.11.2007, Supreme Court of India.

Coram: 

2 Judge Bench of:

HON'BLE MR. JUSTICE ARIJIT PASAYAT 

HON'BLE MR. JUSTICE AFTAB ALAM

Case No.:

Criminal Appeal No.1627 of 2007 (Arising out of SLP (Crl.) No.4379 of 2006)

Issue:

Whether the wife is entitled to maintenance under Section 125, given her personal income and ability to support herself?

Fact:

The appellant, Chaturbhuj, had divorced his wife, Sita Bai, in 1976. After the divorce, Sita Bai started living with her parents and filed an application under Section 125 of the CrPC claiming maintenance from her ex-husband. The application was rejected by the Magistrate on the ground that Sita Bai was no longer the wife of Chaturbhuj and therefore, not entitled to claim maintenance under Section 125, Sita Bai filed a revision petition before the Sessions Court, which was also dismissed. She then filed a petition before the High Court, which held that a divorced wife was entitled to claim maintenance under Section 125. The High Court directed Chaturbhuj to pay maintenance to Sita Bai, which he challenged before the Supreme Court.

Held:

1. 1. 5. ...The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs.Veena Kaushal and Ors.(AIR 1978 SC 1807) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (in short ‘Constitution ’). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v.State of Gujarat and Ors.(2005 (2) Supreme 503)...

1. 1. 7. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It is has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent-wife was earning some Income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself.
      8. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.PC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. KamlaDevi (AIR 1975 SC 83) it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family.The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C.

The Supreme Court held that the right to claim maintenance under Section 125 of the CrPC is not restricted to the wife only, but also extends to divorced wives, children, and parents. The Court observed that the purpose of Section 125 is to prevent vagrancy and destitution and to provide speedy and summary relief to the dependents who have no means to support themselves. The Court further observed that the provision should be interpreted liberally to achieve its object.

Decided on 08.01.2002, Supreme Court of India.

Coram: 

2 Judge Bench of:

HON’BLE MR. JUSTICE R.P. SETHI 

HON’BLE MR. JUSTICE Y.K. SABHARWAL

Issues:

Whether the need for a uniform code of marriage and divorce, applicable to all religions and castes, is imperative in order to address cases where marriages have completely broken down, and if a minimum period of 90 days should be prescribed for filing appeals against judgments and decrees, with marriages solemnised during this period being deemed as void?

Fact:

The case involves a marriage that took place on 6th May 1987, which the wife claims was never consummated. The wife alleges that her parents spent Rs. 80,000 on the marriage and gave several ornaments and valuables as per the respondent's demands. The respondent further demanded a TV, fridge, and Rs. 10,000 in cash, of which only Rs. 10,000 was paid by the wife's father. The wife filed a petition under Section 13 of the Act seeking dissolution of marriage, permanent alimony, and return of property. She alleged that the respondent was having an illicit relationship with another woman. The respondent denied all allegations and filed for divorce, which he later withdrew. The family court granted the wife a divorce on the grounds of desertion. However, the High Court held that there was no evidence of cruelty or desertion and denied the divorce.

Held:

(At Page 6, 3rd Para) Marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite the observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat v. Mrs D.Bhagat [AIR 1994 SC 710] held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it.

(At Page 6-7, 5th Para) ...We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.

In the case of Savitri Pandey vs. Prem Chand Pandey, the suggestions made by the court regarding the reform of the law of marriage to make it uniform and applicable to all religions and castes. It also suggests a minimum period of 90 days for filing an appeal against any judgment and decree under the Act and deeming any marriage solemnized during this period to be void. Without more information about the specific observations made by the Supreme Court in this case, it is not possible to provide a comprehensive answer.