2020 Supreme(SC) 648

SUPREME COURT OF INDIA
INDU MALHOTRA, R. SUBHASH REDDY, JJ.

RAJNESH – APPELLANT
Versus
NEHA & ANR. – RESPONDENTS
CRIMINAL APPEAL NO.730 OF 2020 (Arising out of SLP (Crl.) No. 9503 of 2018)
Decided on : 04-11-2020

IMPORTANT POINTS
(1) Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. Maintenance may be claimed under one or more statutes..
(2) Maintenance in all cases will be awarded from date of filing application for maintenance.
(3) If wife is earning, it cannot operate as a bar from being awarded maintenance by husband. If maintenance is awarded to wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance which may be filed under another enactment.
(4) Order of maintenance may be enforced as a money decree of a civil court as per provisions of CPC.
(5) Right to residence – Shared household may not necessarily be owned or tenanted by husband singly or jointly. Living of woman in a household must refer to a living which has some permanency. Mere fleeting or casual living at different places would not make it a shared household. There is no requirement of law that husband should be a member of the joint family, or that household must belong to joint family in which he or aggrieved woman has any right, title or interest.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 125 – Constitution of India – Article 15 (3) and 39 – Maintenance/Interim maintenance – Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy – Maintenance may be claimed under one or more statutes, since each of these enactments provides an independent and distinct remedy framed with a specific object and purpose – While it is true that a party is not precluded from approaching Court under one or more enactments, since nature and purpose of relief under each Act is distinct and independent, it is equally true that simultaneous operation of these Acts, would lead to multiplicity of proceedings and conflicting orders – This would have inevitable effect of overlapping jurisdiction – This process requires to be streamlined, so that respondent / husband is not obligated to comply with successive orders of maintenance passed under different enactments. (Part B-I)

(B) Criminal Procedure Code, 1973 – Section 125 – Maintenance/Interim maintenance – Purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant – Application under Section 125 Cr.P.C. is predicated on two conditions : (i) husband has sufficient means; and (ii) “neglects” to maintain his wife, who is unable to maintain herself – In such a case, husband may be directed by Magistrate to pay such monthly sum to wife as deemed fit – Maintenance is awarded on the basis of financial capacity of husband and other relevant factors – Remedy provided by Section 125 is summary in nature and substantive disputes with respect to dissolution of marriage can be determined by a civil court / family court in an appropriate proceeding, such as Hindu Marriage Act, 1956 – Since it is sacrosanct duty of husband to provide financial support to wife and minor children, husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in statute – A man should not be allowed to benefit from legal loopholes, by enjoying advantages of a de facto marriage, without undertaking duties and obligations of such marriage – A broad and expansive interpretation must be given to term “wife,” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time – Strict proof of marriage should not be a pre-condition for grant of maintenance under Section 125 Cr.P.C. – Law presumes in favour of marriage and against concubinage when a man and woman cohabit continuously for a number of years – Unlike matrimonial proceedings where strict proof of marriage is essential, in proceedings under Section 125 Cr.P.C. such strict standard of proof is not necessary. (Part B-I)

(C) Protection of Women from Domestic Violence Act, 2005 – Section 2(s), 17 and 19 – Right to residence – Shared household may not necessarily be owned or tenanted by husband singly or jointly – Living of woman in a household must refer to a living which has some permanency – Mere fleeting or casual living at different places would not make it a shared household – Section 2(s) read with Sections 17 and 19 of D.V. Act entitles a woman to right of residence in a shared household, irrespective of her having any legal interest in the same – There is no requirement of law that husband should be a member of the joint family, or that household must belong to joint family in which he or aggrieved woman has any right, title or interest – Intention of parties and nature of living, including nature of household, must be considered, to determine as to whether parties intended to treat premises as a shared household or not – Household may belong to a joint family of which respondent is a member, irrespective of whether respondent or aggrieved person has any right, title, or interest in shared household – Right to residence under Section 19 is not an indefeasible right, especially when a daughter-in-law is claiming a right against aged parents-in-law – While granting relief under Section 12 of D.V. Act, or in any civil proceeding, court has to balance rights between aggrieved woman and parents-in-law. (Part B-I and B-III)

(D) Protection of Women from Domestic Violence Act, 2005 – Section 20(1)(d) – Grant of maintenance – Overlapping jurisdictions – Maintenance granted to an aggrieved person under D.V. Act, would be in addition to an order of maintenance under Section 125 Cr.P.C., or under HMA – Legislative mandate envisages grant of maintenance to wife under various statutes – It was not the intention of legislature that once an order is passed in either of maintenance proceedings, order would debar re-adjudication of issue of maintenance in any other proceeding – Mere fact that two proceedings were initiated by a party, would not imply that one would have to be adjourned sine die – There is distinction in scope and power exercised by Magistrate under Section 125, Cr.P.C. and D.V. Act – Maintenance awarded under Section 125 Cr.P.C. must be adjusted against amount awarded in matrimonial proceedings under HMA and was not to be given over and above the same. (Part B-I)

(E) Hindu Marriage Act, 1955 – Section 25 – Hindu Adoptions and Maintenance Act, 1956 – Section 18 – Criminal Procedure Code, 1973 – Section 125 – Protection of Women from Domestic Violence Act, 2005 – Section 17 and 19 – Claim for maintenance – Overlapping Jurisdictions – Wife can make claim for maintenance under different statutes – There is no bar to seek maintenance both under D.V. Act and Section 125 of Cr.P.C., or under H.M.A. – However, it would be inequitable to direct husband to pay maintenance under each of proceedings, independent of relief granted in a previous proceeding – If maintenance is awarded to wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance which may be filed under another enactment – While deciding quantum of maintenance in subsequent proceeding, civil court/family court shall take into account maintenance awarded in any previously instituted proceeding, and determine maintenance payable to claimant – To overcome issue of overlapping jurisdiction and avoid conflicting orders being passed in different proceedings, in a subsequent maintenance proceeding, applicant shall disclose previous maintenance proceeding and orders passed therein so that Court would take into consideration maintenance already awarded in previous proceeding, and grant adjustment or set-off of said amount – If order passed in previous proceeding requires any modification or variation, party would be required to move concerned court in previous proceeding. (Part B-I)

(F) Maintenance – Application for Maintenance – Disposal of – Pendency of applications for maintenance at interim stage for several years defeats very object of legislation – It is often seen that both parties submit scanty material, do not disclose correct details, and suppress vital information, which makes it difficult for Family Courts to make an objective assessment for grant of interim maintenance – Despite statutory provisions granting a time-bound period for disposal of proceedings for interim maintenance, applications remain pending for several years in most of cases – Delays are caused by various factors, such as tremendous docket pressure on Family Courts, repetitive adjournments sought by parties, enormous time taken for completion of pleadings at interim stage itself, etc. – While there is tendency on part of wife to exaggerate her needs, there is corresponding tendency by husband to conceal his actual income – It has become necessary to lay down a procedure to streamline proceedings, since a dependant wife who has no other source of income, has to take recourse to borrowings from her parents / relatives during interregnum to sustain herself and minor children, till she begins receiving interim maintenance. (Part B-II)

(G) Maintenance – Grant of – On the basis of pleadings filed by both parties and Affidavits of Disclosure, Court would be in a position to make an objective assessment of approximate amount to be awarded towards maintenance at interim stage – Party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before concerned court, as a mandatory requirement – Affidavit must be filed simultaneously by both parties – Simplified Affidavit of Disclosure may be framed to expedite process of determining quantum of maintenance – Affidavit to be filed by parties residing in urban areas would require to be entirely different from one applicable to rural areas or tribal areas. (Part B-II)

(H) Permanent alimony – Grant of – Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before concerned Court, for fixing permanent alimony payable to the spouse – In contemporary society, where several marriages do not last for a reasonable length of time, it may be inequitable to direct contesting spouse to pay permanent alimony to applicant for rest of her life – Duration of marriage would be a relevant factor to be taken into consideration for determining permanent alimony to be paid – Provision for grant of reasonable expenses for marriage of children must be made at the time of determining permanent alimony where custody is with wife – Expenses would be determined by taking into account financial position of husband and customs of family – If there are any trust funds / investments created by any spouse / grandparents in favour of children, this would also be taken into consideration while deciding final child support. (Part B-II)

(I) Maintenance – Quantum of maintenance – There is no strait-jacket formula for fixing quantum of maintenance to be awarded – Maintenance awarded to wife should neither be so extravagant which becomes oppressive and unbearable for respondent, nor should it be so meagre that it drives wife to penury – Sufficiency of quantum has to be adjudged so that wife is able to maintain herself with reasonable comfort – Objective of granting interim / permanent alimony is to ensure that dependant spouse is not reduced to destitution or vagrancy on account of failure of marriage and not as a punishment to other spouse – Financial position of parents of applicant-wife, would not be material while determining quantum of maintenance – An order of interim maintenance is conditional on circumstance that wife or husband who makes a claim has no independent income, sufficient for her or his support – It is no answer to a claim of maintenance that wife is educated and could support herself – Court must take into consideration status of parties and capacity of spouse to pay for her or his support – Maintenance is dependent upon factual situations – Court should mould claim for maintenance based on various factors brought before it – Court must have due regard to standard of living o husband, as well as spiralling inflation rates and high costs of living – Plea of husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications. (Part B-III)

(J) Maintenance – Determination of – Relevant factors – If wife is earning, it cannot operate as a bar from being awarded maintenance by husband – In a marriage of long duration, where parties have endured relationship for several years, it would be a relevant factor to be taken into consideration – On termination of relationship, if wife is educated and professionally qualified, but had to give up her employment opportunities to look after needs of family being primary caregiver to minor children and elder members of family, this factor would be required to be given due importance – With advancement of age, it would be difficult for a dependant wife to get an easy entry into work-force after a break of several years – Living expenses of child would include expenses for food, clothing, residence, medical expenses, education of children – Serious disability or ill health of a spouse, child / children from marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance. (Part B-III)

(K) Criminal Procedure Code, 1973 – Section 125 – Maintenance in all cases will be awarded from date of filing application for maintenance – Rationale of granting maintenance from date of application finds its roots in object of enacting maintenance legislations, so as to enable wife to overcome financial crunch which occurs on separation from husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before Court – In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from date on which application for maintenance is filed before concerned Court – Where successive claims for maintenance are made by a party under different statutes, Court would consider an adjustment or set-off, of amount awarded in previous proceeding/s, while determining whether any further amount is to be awarded in subsequent proceeding – Delay in adjudication was not only against human rights, but also against basic embodiment of dignity of an individual – Delay in conduct of proceedings would require grant of maintenance to date back to date of application – For enforcement / execution of orders of maintenance, order or decree of maintenance may be enforced under Section 28A of Hindu Marriage Act, 1956; Section 20(6) of D.V. Act; and Section 128 of Cr.P.C., as may be applicable – Order of maintenance may be enforced as a money decree of a civil court as per provisions of CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI – Striking off defence of respondent is an order which ought to be passed in last resort, if Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children – Direction and Guideline issued. (Part B-III)

Facts of the case:

Present Criminal Appeal arises out of 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. On 02.09.2013, 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 vide a detailed Order dated 24.08.2015 awarded interim maintenance of Rs.15,000 per month to the Respondent No.1-wife from 01.09.2013; and Rs.5,000 per month as interim maintenance for the Respondent No.2-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. Appellant-husband challenged the Order of the Family Court vide Criminal Writ Petition No.875/2015 filed before the Bombay High Court, Nagpur Bench. The High Court dismissed the Writ Petition vide Order dated 14.08.2018, and affirmed the Judgment passed by the Family Court.

Findings of Court:

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. A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts / Family Courts / Courts of Judicial Magistrates for awareness and implementation.