The division bench of Hon’ble Supreme Court, consisting of Hon’ble Justices Indu Malhotra and R. Subhash Reddy, laid down guidelines for making payment of maintenance in a matrimonial matters, in the case of Rajnesh v. Neha.
FACTUAL BACKGROUND
The present Criminal Appeal emanated from an application for Interim Maintenance filed in a petition u/S. 125 Cr.P.C. by the Respondent-wife and minor son. The Respondent No.1-wife left the matrimonial home in January 2013, shortly after the birth of the son-Respondent No.2. In 2013 the wife filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf of herself and the minor son. The Family Court Ordered payment of interim maintenance of Rs.15,000 per month to wife from; and Rs. 5,000 per month to son; and @ Rs. 10,000 per month from 01.09.2015 onwards till further orders were passed in the main petition.
The husband challenged the order before Bombay High Court, Nagpur Bench. The High Court dismissed the Writ Petition and affirmed the Judgment passed by the Family Court.
The present appeal was filed to impugn the High Court Order. The Supreme Court, appointed Ms. Anitha Shenoy and Mr. Gopal Sankaranaryanan, Senior Advocates as Amici Curiae to assist Court.
GUIDELINES ISSUED BY THE COURT
The Court issued guidelines on the following aspects:
- Issue of Overlapping Jurisdictions
- Payment of interim maintenance
- Criteria for determining quantum of maintenance
- Date from which Maintenance to be awarded
- Enforcement of orders of maintenance
1. ISSUE OF OVERLAPPING JURISDICTION
The Court noted that it well settled that a wife can make a claim for maintenance under different statutes, namely: (a) u/s 28 A of the Hindu Marriage Act; (b) Sec. 20(6) of the D. V. Act; (c) Sec. 128 of the Cr. P.C.; & (d) enforcement of maintenance decree as a money decree under relevant provisions of CPC, particularly Secs. 51, 55, 58, 60 r.w. Order XXI.
Thus, in order to avoid multiplicity of maintenance order and burden on the spouse directed to pay such amount, the Court laid down the following guidelines:
“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:
1. where successive claims for maintenance are made by a party under different statutes, the Court would consider 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;
2. it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
3. 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.”
2. PAYMENT OF INTERIM MAINTENANCE
1. “ The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before lower Courts,throughout the country;
2. The applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;
3. The respondent must submit the reply along with the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide.
4. The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.
5. In case of dispute w.r.t.declaration made in Affidavit of Disclosure, aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the CPC; On filing of the Affidavit, the Court may invoke the provisions of Order X of the C.P.C or Section 165 of the Evidence Act 1872; Section 106 of the Evidence Act, 1872 since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.
6. If there is a change in the financial status of any part or change in any relevant circumstances/ new information comes to light, the party may submit an amended / supplementary affidavit- to be considered by court while final determination.
7. The pleadings in maintenance applications and replies filed should be responsible pleadings; if false statements and misrepresentations are made, initiation of proceeding u/S. 340 Cr.P.C., and contempt may be considered.
8. In case parties belong to EWS/ BPL, or are casual labourers, requirement of filing the Affidavit would be dispensed with.
9. The Family / District / Magistrates Court to decide I.A. for Interim Maintenance by a reasoned order, within four to six months at the latest, after filing of Affidavits of Disclosure before it.
10. A professional Marriage Counsellor to be available in Family Courts”
3. 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.”
4. 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.”
5. 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.”
Case Details
Name: Rajnesh v. Neha
Bench: Hon’ble Justices Indu Malhotra and R. Subhash Reddy
Case No. CRIMINAL APPEAL NO. 730 OF 2020 (Arising out of SLP (Crl.) No. 9503 of 2018)
Date of Decision: 04/11/12
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