Landmark Judgments of 2017 on
Maintenance
In this article we bring for you a conspectus of important
judgments which aid in contouring and determining cases
pertaining to claim of maintenance including interim
maintenance in India.
It is no answer to a claim of maintenance that the wife
is educated and could support herself
Manish Jain v. Akansha Jain[1]–
In this recent case, decided by the Supreme Court the Court was
confronted with the issue of grant of maintenance pendent
lite under Section 24 of Hindu Marriage Act, 1955 which
provides for maintenance pendent lite and expenses of
proceedings.
In context of award of maintenance under Section 24, the Bench
made some noteworthy observations in the case which are
enumerated below:
That the Court exercises a wide discretion in the matter of
granting alimony pendentelite but the discretion is judicial and
neither arbitrary nor capricious.
That the Court is to be guided, on sound principles of
matrimonial law and to be exercised within the ambit of the
provisions of the Act and having regard to the object of the Act.
That the Court would not be in a position to judge the merits of
the rival contentions of the parties when deciding an
application for interim alimony and would not allow its
discretion to be fettered by the nature of the allegations made
by them and would not examine the merits of the case.
That Section 24 of the HM Act lays down that in arriving at the
quantum of interim maintenance to be paid by one spouse to
another, the Court must have regard to the appellant’s own
income and the income of the respondent.
That an order for maintenance pendent lite or for costs of the
proceedings is conditional on the circumstance that the wife or
husband who makes a claim for the same has no independent
income sufficient for her or his support or to meet the
necessary expenses of the proceeding.
That it is no answer to a claim of maintenance that the
wife is educated and could support herself. Likewise, the
financial position of the wife’s parents is also immaterial.
That the Court must take into consideration the status of the
parties and the capacity of the spouse to pay maintenance and
whether the applicant has any independent income sufficient
for her or his support.
That Maintenance is always dependent upon factual situation;
the Court should, therefore, mould the claim for maintenance
determining the quantum based on various factors brought
before the Court.
Merely because the wife is capable of
earning it is not a reason to reduce the
maintenance awarded to her
Shailja & Anr. v. Khobanna [2]–
In this case, the Supreme Court made a remarkable observation
by stating that merely because the wife is capable of earning it is
not a reason to reduce the maintenance awarded to her and said
that whether a wife is capable of earning and is actually earning
are two different factors.
In the case, the Family Court had awarded the Appellant-wife an
amount of Rs.25,000/-. However, the High Court reduced the
amount to Rs.12,000/-.
In appeal, the Supreme Court restored the Family Court’s order
by opining that whether the appellant is capable of earning or
whether she is actually earning are two different requirements.
Merely because the appellant is capable of earning is not, in our
opinion, sufficient reason to reduce the maintenance awarded by
the Family Court.
25% of the husband’s net salary would be just and
proper as maintenance to wife
Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee
Nandy[3]– In this case, the Supreme Court seminally
delved into the issue of enhancement of maintenance
under Section 25 (2) of the Hindu Marriage Act, 1955.
This provision confers discretion on the Court to vary,
modify or rescind maintenance order in such manner as
the court deems fit.
With reference to this provision, the Supreme Court
remarked that it confers ample power on the Court to
vary, modify or discharge any order for permanent
alimony or permanent maintenance that may have been
made in any proceeding having regard to the “change in
the circumstances of the parties”. There must be some
change in the circumstances of either party which may
have to be taken into account when an application is
made under Sub-section (2) of Section 25 for variation,
modification or rescission of the order as the Court may
deem just.
In the case, the Respondent- wife filed review petition. In
the earlier order the Court had awarded a maintenance
of Rs. 16,000/- to the respondent-wife as well as to her
minor son. However, later on the husband’s net salary
increased to Rs. 95,527/-. The Supreme Court while
deciding the review petition made reference to the case
of Dr. Kulbhushan v. Raj Kumari & Anr.[4], wherein
it was held that 25% of the husband’s net salary
would be just and proper to be awarded as
maintenance to the respondent-wife.
Other remarkable observations made by the Court in the
case were:
That the amount of permanent alimony awarded to the
wife must be befitting the status of the parties and the
capacity of the spouse to pay maintenance.
That maintenance is always dependant on the factual
situation of the case and the Court would be justified in
moulding the claim for maintenance passed on various
factors. That since in February, 2016, the net salary of
the husband was Rs. 95,000/- per month, the High
Court was justified in enhancing the maintenance
amount.
Judicially Separated Wife is also entitled to
Maintenance
Sanju Devi v. State of Bihar[5]–
In this recent case taken up by the Supreme Court, the Court
rejected High Court’s order whereby the Petitioner was
disentitled from maintenance under Section 125 of the Code of
Criminal Procedure, 1973 on the ground that the husband and
wife had already judicially separated. The Court also remarked
that that if a divorced wife is entitled for maintenance then
there is no reason why a wife who is judicially separated is
not entitled for maintenance.
Read more here.
Also read Judicial Separation and Divorce in India
Both Parents Have Moral Duty to Maintain
the Child
Sukhjinder Singh Saini vs Harvinder Kaur[6]–
In this case, the Delhi High Court while deciding the issue of
maintenance of child made the following observations:
That it is a settled principle of law that both the parents have
a legal, moral and social duty to provide to their child the
best education and standard of living within their means.
That the mere fact that the spouse with whom the child is
living is having a source of income, even if sufficient,
would in no way absolve the other spouse of his
obligation to make his contribution towards the
maintenance and welfare of the child.
That monetary relief can be granted to meet the expenses
incurred and losses suffered by the aggrieved person and the
child of the aggrieved person as a result of the domestic
violence.
Read more here.
Maintenance order under Domestic Violence
Act cannot be substituted by Maintenance
under Section 125 CrPC
Prakash Babulal Dangi v. The State of
Maharashtra[7]–
In this case, the wife had initially claimed maintenance under
Section 125 CrPC and the Court had awarded maintenance of Rs.
6000 to the wife and Rs. 4000 to her minor daughter. While the
case under Section 125 of CrPC was pending, a case was filed
and an interim maintenance was sought by the wife
under Domestic Violence Act, whereby the husband was directed
to pay maintenance of Rs. 8000 and Rs. 5000 to wife and
daughter respectively.
In view of the aforesaid context, the Bombay High Court made
reference to Section 36 of Domestic Violence Act, 2015 which
entails that the provisions of the Act shall be in addition to, and
not in derogation of the provisions of any other law and held that
that the amount of maintenance awarded under the Domestic
Violence Act cannot be substituted to the order of maintenance
under Section 125 of CrPC.
Maintenance to be paid to husband only if he
is incapable or handicap
Nivya V.M. v. Shivaprasad N.K.[8]–
In this case, the Kerala High Court dismissed husband’s
claim for maintenance from his wife holding that
maintenance under Section 24 of Hindu Marriage Act,
1955 is to be paid to the husband only when he is able to
prove any incapability or handicap.
The Court also observed that in absence of such
circumstances as enumerated above, endowing
maintenance on the husband would only promote
idleness.
The Court also remarked that a husband seeking
maintenance from the wife can be treated only as
exceptional case as normally he has got the liability or
obligation to maintain the wife and vice versa is only
exceptional.
Maintenance under Section 125 Cr PC cannot
be denied to a Divorced Wife
Manoj Kumar v. Champa Devi[9]–
In this case, the Supreme Court in appeal upheld the
order passed by the High Court of Himachal Pradesh,
whereby the Court had ordered the husband in the case
to grant maintenance to his deserted and divorced wife.
In the case, the husband had contended that as the
decree of divorce had been passed he was under no
obligation to pay maintenance to the wife as
contemplated under Section 125(4) of Cr PC. However,
the High Court held that a divorced woman continues to
enjoy the status of ‘wife’ for claiming maintenance under
Section 125 of Cr PC.
Wife living separately from Husband without any
reason cannot claim maintenance under Section
125 Cr PC
Anil v. Mrs. Sunita[10]– In this case, the wife left her
husband’s home and resided at her matrimonial home. In the
case, the husband also claimed that he went to bring her wife
back but she refused. The wife in the case had claimed
maintenance from her husband of Rs. 5000.
The husband in the case claimed that the wife without any
sufficient reason was refusing to stay with him and also that she
was an advocate and capable of earning and still was demanding
maintenance.
In view of the aforesaid facts, the Madhya Pradesh High Court
denied maintenance to the wife and observed that in view of the
facts of the case, wife resided in her matrimonial home for the
first time for 7 days and second time for 12 days and it is alleged
that in these 12 days she was harassed. It is practically
impossible that she could have been so harassed that it is
impossible for her to live in her matrimonial home. After 12 days
she had voluntarily gone with her brother with a view to select a
girl for marriage of her brother. Thus, it cannot be held that she
was thrown with force from her matrimonial home or she was
forced to leave her matrimonial home.
[1] III (2017) SLT 397
[2] CRIMINAL APPEAL NOs. 125-126 of 2017
[3] III (2017) SLT 535
[4] (1970) 3 SCC 129
[5] Special Leave to Appeal (Crl.) No(s).4057/2015, decided on December 06, 2017
[6] CRL.REV.P. 494/2015 and Crl.M.A.No. 11437/15, decided on November 10, 2017
[7] Criminal Application No. 296 of 2017, decided on October 10, 2017
[8] OP (FC).No. 26 of 2015 (R), decided on February 14, 2017
[9] Special Leave to Appeal (Crl.) No(s).10137/2015, decided on April 06, 2017
[10] Criminal Revision No.829 of 2014
