# RAJNESH v. NEHA & ANR

- **Citation:** [2020] 13 S.C.R. 1093
- **Court:** Supreme Court of India
- **Decided:** 2020-11-04
- **Case number:** Criminal Appeal No. 730 of 2020
- **Bench:** Indu Malhotra, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajnesh-v-neha-anr-34549
- **Pages:** 82

## Headnote

Code of Criminal Procedure, 1973:
s. 125 - Interim maintenance - For wife and minor child -
Awarded by Family Court - Affirmed by High Court - Appeal to
Supreme Court - Held: Orders passed by Courts below affirmed -
Husband is directed to pay entire arrears of maintenance and to
continue to comply with the same, during the pendency of the
proceedings u/s. 125.
Family Laws:
Maintenance/ interim maintenance - Maintenance laws have
been enacted as a measure of social justice which fall within
constitutional sweep of Art. 15(3) reinforced by Art. 39 of the
Constitution - Guidelines framed in exercise of power u/Art. 142 -
On the issues of maintenance which would cover overlapping
jurisdictions under different enactments for payment of maintenance;
payment of interim maintenance; criteria for determining quantum
of maintenance; the date from which the maintenance is to be
awarded and enforcement of orders of maintenance - Constitution
of 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 Women
from Domestic Violence Act, 2005.
Disposing of the appeal and issuing general directions/
guidelines, the Court.
HELD: A. In the facts and circumstances of the present
case, the Judgment and order passed by the Family Court, affirmed
by 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
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pay the entire arrears of maintenance @ Rs.15,000/- p.m., within
a period of 12 weeks from the date of this Judgment, and continue
to comply with this order during the pendency of the proceedings
u/s. 125 Cr.P.C. before the Family Court. If the appellant-husband
fails to comply with the aforesaid directions, it would be open to
the respondents to have the order enforced u/s.128 Cr.P.C., and
take recourse to all other remedies which are available in
accordance with law. The proceedings for payment of interim
maintenance u/s. 125 Cr.P.C. have been pending between the
parties for a period of over 7 years. It would be appropriate that
the Family Court decides the substantive application u/s. 125
Cr.P.C., in the light of the general directions/ guidelines issued in
the present judgment, within a period of 6 months' from the date
of the judgment. [Part A (x)][1111-F-H; 1112-A-C]
B. Guidelines / Directions on Maintenance
1.1. 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. Article 15(3) reinforced by Article 39 of
the Constitution of India, which envisages a positive role for the
State in fostering change towards the empowerment of women,
led to the enactment of various legislations from time to time.
[Part B][1112-G-H; 1113-B]
Captain Ramesh Chander Kaushal v Mrs. Veena
Kaushal & Ors. (1978) 4 SCC 70 : [1978] 3 SCR 782 -
relied on.
1.2 There are different statutes providing for making an
application for grant of maintenance / interim maintenance, if any
person having sufficient means neglects, or refuses to maintain
his wife, children, parents. The different enactments provide an
independent and distinct remedy framed with a specific object
and purpose. Inspite of time frames being prescribed by various
statutes for disposal of interim applications, in a vast majority of
cases, the applications are not disposed of within the time frame
prescribed. To address various issues which arise for
consideration in applications for grant of maintenance / interim
maintenance, it is necessary to frame guidelines to ensure that
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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 fra

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1093
RAJNESH
v.
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 to
Supreme Court - Held: Orders passed by Courts below affirmed -
Husband is directed to pay entire arrears of maintenance and to
continue to comply with the same, during the pendency of the
proceedings u/s. 125.
Family Laws:
Maintenance/ interim maintenance - Maintenance laws have
been enacted as a measure of social justice which fall within
constitutional sweep of Art. 15(3) reinforced by Art. 39 of the
Constitution - Guidelines framed in exercise of power u/Art. 142 -
On the issues of maintenance which would cover overlapping
jurisdictions under different enactments for payment of maintenance;
payment of interim maintenance; criteria for determining quantum
of maintenance; the date from which the maintenance is to be
awarded and enforcement of orders of maintenance - Constitution
of 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 Women
from Domestic Violence Act, 2005.
Disposing of the appeal and issuing general directions/
guidelines, the Court.
HELD: A. In the facts and circumstances of the present
case, the Judgment and order passed by the Family Court, affirmed
by 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
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pay the entire arrears of maintenance @ Rs.15,000/- p.m., within
a period of 12 weeks from the date of this Judgment, and continue
to comply with this order during the pendency of the proceedings
u/s. 125 Cr.P.C. before the Family Court. If the appellant-husband
fails to comply with the aforesaid directions, it would be open to
the respondents to have the order enforced u/s.128 Cr.P.C., and
take recourse to all other remedies which are available in
accordance with law. The proceedings for payment of interim
maintenance u/s. 125 Cr.P.C. have been pending between the
parties for a period of over 7 years. It would be appropriate that
the Family Court decides the substantive application u/s. 125
Cr.P.C., in the light of the general directions/ guidelines issued in
the present judgment, within a period of 6 months' from the date
of the judgment. [Part A (x)][1111-F-H; 1112-A-C]
B. Guidelines / Directions on Maintenance
1.1. 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. Article 15(3) reinforced by Article 39 of
the Constitution of India, which envisages a positive role for the
State in fostering change towards the empowerment of women,
led to the enactment of various legislations from time to time.
[Part B][1112-G-H; 1113-B]
Captain Ramesh Chander Kaushal v Mrs. Veena
Kaushal & Ors. (1978) 4 SCC 70 : [1978] 3 SCR 782 -
relied on.
1.2 There are different statutes providing for making an
application for grant of maintenance / interim maintenance, if any
person having sufficient means neglects, or refuses to maintain
his wife, children, parents. The different enactments provide an
independent and distinct remedy framed with a specific object
and purpose. Inspite of time frames being prescribed by various
statutes for disposal of interim applications, in a vast majority of
cases, the applications are not disposed of within the time frame
prescribed. To address various issues which arise for
consideration in applications for grant of maintenance / interim
maintenance, it is necessary to frame guidelines to ensure that
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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 issue
of maintenance are the Special Marriage Act 1954 ("SMA"),
Section 125 of the Cr.P.C. 1973; and the Protection of Women
from Domestic Violence Act, 2005 ("D.V. Act") which provide a
statutory remedy to women, irrespective of the religious
community to which they belong, apart from the personal laws
applicable to various religious communities. [Part B][1113-E-F]
1.4 It would be appropriate to frame guidelines on the issue
of maintenance, which would 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. [Part B][1112-F-G]
Issue of Overlapping Jurisdiction:
2.1 Maintenance may be claimed under one or more of the
afore-mentioned 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 the Court under one or more enactments, since
the nature and purpose of the relief under each Act is distinct
and independent, it is equally true that the simultaneous operation
of these Acts, would lead to multiplicity of proceedings and
conflicting orders. This would have the inevitable effect of
overlapping jurisdiction. This process requires to be streamlined,
so that the respondent / husband is not obligated to comply with
successive orders of maintenance passed under different
enactments. [Part B 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, and
avoid conflicting orders being passed in different proceedings, it is
directed that: (i) where successive claims for maintenance are
made by a party under different statutes, the Court would consider
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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. [Part B Para VI (a)][1162-E-H; 1163-A]
Chand Dhawan v. Jawaharlal Dhawan (1993) 3 SCC
406 : [1993] 3 SCR 954; Sudeep Chaudhary v. Radha
Chaudhary (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;
Mohan Swaroop Chauhan v. Mohini (2016) 2 MP LJ
179; Sujit Adhikari v. Tulika Adhikari (2017) SCC
OnLine Cal 15484; Chandra Mohan Das v. Tapati Das
2015 SCC OnLine Cal 9554 - not approved.
Panditrao Chimaji Kalure v. Gayabai (2002) 2 Mah
LJ 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.
(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 Kusum
Narottamdas Harsora & Ors. (2016) 10 SCC 165 :
[2016] 9 SCR 515; D. Velusamy v. D. Patchaiammal
(2010) 10 SCC 469 : [2010] 13 SCR 706; Indra Sarma
v. V.K.V. Sarma (2013) 15 SCC 755 : [2013] 14 SCR
1019; Satish Chander Ahuja v Sneha Ahuja C.A. No.
2483/2020; S.R.Batra v. Taruna Batra (2007) 3 SCC
169 : [2006] 10 Suppl. SCR 1206; Rakesh Malhotra v.
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Krishna Malhotra (2020) SCC OnLine SC 239;
Nagendrappa Natikar v. Neelamma (2014) 14 SCC 452 :
[2013] 2 SCR 426 - referred to.
Payment of Interim Maintenance:
3.1 The proviso to Section 24 of the HMA (inserted vide Act
49 of 2001 w.e.f. 24.09.2001), and the third proviso to Section
125 Cr.P.C. (inserted vide Act 50 of 2001 w.e.f. 24.09.2001)
provide that the proceedings for interim maintenance, shall as far
as possible, be disposed of within 60 days' from the date of service
of notice on the contesting spouse. Despite the statutory
provisions granting a time-bound period for disposal of
proceedings for interim maintenance, applications remain pending
for several years in most of the cases. The delays are caused by
various factors, such as tremendous docket pressure on the
Family Courts, repetitive adjournments sought by parties,
enormous time taken for completion of pleadings at the interim
stage itself, etc. Pendency of applications for maintenance at the
interim stage for several years defeats the very object of the
legislation. [Part B Para II (i)][1138-G-H; 1139-A-B]
3.2 The issue of interim maintenance is decided on the basis
of pleadings, where some amount of guess-work or rough
estimation takes place, so as to make a 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 vital information, which makes it difficult for the Family
Courts to make an objective assessment for grant of interim
maintenance. While there is a tendency on the part of the wife to
exaggerate her needs, there is a corresponding tendency by the
husband to conceal his actual income. [Part B Para II (ii)][1139C-D]
3.3. In the first instance, the Family Court in compliance
with 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 consultation
with the High Court, make provision for counsellors to assist a
Family Court in the discharge of its functions. Given the large
and growing percentage of matrimonial litigation, it has become
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necessary that the provisions of Section 5 and 6 of the Family
Courts Act are given effect to, by providing for the appointment
of marriage counsellors in every Family Court, 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. [Part B Para II (iii)][1139-F-H; 1140-A]
3.4 The 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 the concerned court,
as a mandatory requirement. On the basis of the pleadings filed
by both parties and the Affidavits of Disclosure, the Court would
be in a position to make an objective assessment of the
approximate amount to be awarded towards maintenance at the
interim stage. [Part B Para II (iv) (v)][1140-B-D]
Puneet Kaur v. Inderjit Singh Sawhney ILR (2012) I
Delhi 73; Kusum Sharma v. Mahinder Kumar Sharma
(2014) 214 DLT 493; Kusum Sharma III MANU/DE/
2406/2017; Kusum Sharma IV 2017 - (2018) 246 DLT
1; Kusum Sharma V Decided by Delhi High Court vide
judgment 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 to
rural areas, or tribal areas. For this purpose, a comprehensive
Affidavit of Disclosure of Assets and Liabilities is attached as
Enclosure I and II to this judgment. The Meghalaya State Legal
Services Authority that the State of Meghalaya has a predominantly
tribal population, which follows a matrilineal system of society. The
declaration in Meghalaya be made in the format enclosed with this
judgment as Enclosure III. [Part B Para II (ix & x)][1141-G-H; 1142C-D]
3.6 Keeping in mind the need for a uniform format of
Affidavit of Disclosure of Assets and Liabilities to be filed in
maintenance proceedings, in exercise of powers under Article
136 read with Article 142 of the Constitution of India, guidelines
are framed as: (a) The Affidavit of Disclosure of Assets and
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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 the
concerned Family Court / District Court / Magistrate's Court, as
the case may be, throughout the country; (b) The applicant making
the claim for maintenance will be required to file a concise
application accompanied with the Affidavit of Disclosure of Assets;
(c) The respondent must submit the reply alongwith 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 the application for maintenance on basis of the
Affidavit filed by the applicant and the pleadings on record.
[Part B Para II (xi)][1142-D-H; 1143-A-C]
3.7 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. If apart from the information
contained in the Affidavits of Disclosure, any further information
is required, the concerned Court may pass appropriate orders in
respect thereof. If there is any dispute with respect to the
declaration made in the Affidavit of Disclosure, the 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, if it considers it necessary to do
so. The income of one party is often not within the knowledge of
the other spouse. The Court may invoke Section 106 of the
Evidence Act, 1872, if necessary, since the income, assets and
liabilities of the spouse are within the personal knowledge of the
party concerned. [Part B Para II (xi)][1143-C-H]
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3.8 If during the course of proceedings, there is a change in
the financial status of any party, or there is a change of any relevant
circumstances, or if some new information comes to light, the
party may submit an amended/ supplementary affidavit, which
would be considered by the court at the time of final determination.
[Part B Para II (xi)][1144-A-B]
3.9 The pleadings made in the applications for maintenance
and replies filed should be responsible pleadings; if false
statements and misrepresentations are made, the Court may
consider initiation of proceeding u/s. 340 Cr.P.C., and for contempt
of Court. [Part B Para II (xi)][1144-B-C]
3.10 In case the parties belong to the Economically Weaker
Sections ("EWS"), or are living Below the Poverty Line ("BPL"),
or are casual labourers, the requirement of filing the Affidavit
would be dispensed with. The concerned Family Court / District
Court / Magistrate's Court must make an endeavour to decide
the application for Interim Maintenance by a reasoned order, within
a period of four to six months at the latest, after the Affidavits of
Disclosure have been filed before the court. A professional
Marriage Counsellor must be made available in every Family
Court. [Part B Para II (xi)][1144-C-E]
Payment of Permanent alimony
4.1 Parties may lead oral and documentary evidence with
respect to income, expenditure, standard of living, etc. before
the concerned Court, for fixing the 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 the contesting spouse to pay permanent alimony to the
applicant for the rest of her life. The duration of the marriage
would be a relevant factor to be taken into consideration for
determining the permanent alimony to be paid. Provision for grant
of reasonable expenses for the marriage of children must be made
at the time of determining permanent alimony, where the custody
is with the wife. The expenses would be determined by taking
into account the financial position of the husband and the customs
of the family. If there are any trust funds / investments created
by any spouse / grandparents in favour of the children, this
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would also be taken into consideration while deciding the final
child support. [Part B Para II (xi)][1144-F-H]
4.2 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. [Part B Para VI (b)][1163-B-C]
Criteria for determining quantum of maintenance:
5.1 The factors which would weigh with the Court inter alia
are the status of the parties; reasonable needs of the wife and
dependant children; whether the applicant is educated and
professionally qualified; whether the applicant has any independent
source of income; whether the income is sufficient to enable her to
maintain the same standard of living 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
the marriage; whether the wife was required to sacrifice her
employment opportunities for nurturing the family, child rearing, and
looking after adult members of the family; reasonable costs of
litigation for a non-working wife. Maintenance is dependent upon
factual situations; the Court should mould the claim for maintenance
based on various factors brought before it. [Part B Para III (i)][1145D-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; Vinny
Paramvir parmar v. Paramvir Parmar (2011) 13 SCC
112 : [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 family
members whom he is obliged to maintain under the law, liabilities if
any, would also be required to be taken into consideration, to arrive
at the appropriate quantum of maintenance to be paid. A careful and
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just balance must be drawn between all relevant factors. [Part B
Para III (i & ii)][1146-C, E-F]
Reema Salkan v. Sumer Singh Salkan (2019) 12 SCC
303 : [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 with
respect to the criteria for determining the quantum of maintenance.
Section 20(2) of the D.V. Act provides that the monetary relief
granted to the aggrieved woman and / or the children must be
adequate, fair, reasonable, and consistent with the standard of
living to which the aggrieved woman was accustomed to, in
her matrimonial home. [Part B Para III (iii & iv)][1147-A, C-D]
5.4 Apart from the aforesaid factors, certain additional factors
would also be relevant for determining the quantum of maintenance
payable, such as age and employment of parties, right to residence,
where wife is earning some income, Maintenance of minor children
and serious disability or ill heath of the spouse, child / children from
the marriage / dependant relative who require constant care and
recurrent expenditure. 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. [Part B 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; Sunita
Kachwaha & Ors. v. Anil Kachwaha (2014) 16 SCC 715;
Shamima 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] 12
SCR 577; Sanjay Damodar Kale v. Kalyani Sanjay Kale
(2020) SCC Online Bom 694; Chander Prakash
Bodhraj v. Shila Rani Chander Prakash AIR 1968 Delhi
174 - referred to.
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Date from which Maintenance to be awarded:
6.1 There is no provision in the HMA with respect to the
date from which an Order of maintenance may be made effective.
Section 125(2) Cr.P.C. is the only statutory provision which
provides that the Magistrate may award maintenance either from
the date of the order, or from the date of application. [Part B Para
IV][1151-D-E]
6.2 In the absence of a uniform regime, there is a vast variance
in the practice adopted by the Family Courts, with respect to the
date from which maintenance must be awarded. The divergent views
taken by the Family Courts are : first, from the date on which the
application for maintenance was filed; second, the date of the order
granting maintenance; third, the date on which the summons was
served upon the respondent. [Part B Para IV][1151-E-F]
6.3 Even though a judicial discretion is conferred upon the
Court to grant maintenance either from the date of application or
from the date of the order in s. 125(2) Cr.P.C., it would be appropriate
to grant maintenance from the date of application in all cases, including
Section 125 Cr.P.C. In the practical working of the provisions relating
to maintenance, there is significant delay in disposal of the
applications for interim maintenance for years on end. It would
therefore be in the interests of justice and fair play that maintenance
is awarded from the date of the application. [Part B Para IV][1155-GH; 1156-A-B]
6.4 The rationale of granting maintenance from the date of
application finds its roots in the object of enacting maintenance
legislations, so as to enable the wife to overcome the financial crunch
which occurs on separation from the husband. Financial constraints
of a dependant spouse hampers their capacity to be effectively
represented before the Court. In order to prevent a dependant from
being reduced to destitution, it is necessary that maintenance is
awarded from the date on which the application for maintenance is
filed before the concerned Court. [Part B Para IV][1156-D-F]
6.5. It has therefore become necessary to issue directions to
bring about uniformity and consistency in the orders passed by all
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Courts, by directing that maintenance be awarded from the date on
which the application was made before the concerned Court. The
right to claim maintenance must date back to the date of filing the
application, since the period during which the maintenance
proceedings remained pending is not within the control of the
applicant. [Part B Para IV][1157-C-D]
Shail Kumari Devi and Ors. v. Krishnan Bhagwan Pathak
(2008) 9 SCC 632 : [2008] 11 SCR 386; Bhuwan Mohan
Singh 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.
Susmita Mohanty v. Rabindra Nath Sahu 1996 (I) OLR
361; Kanhu Charan Jena v. Smt. Nirmala Jena 2001 Cri
LJ 879; Arun Kumar Nayak v. Urmila Jena (2010) 93
AIC 726 (Ori); Ganga Prasad Srivastava v. Additional
District Judge, Gonda & Ors. 2019 (6) ADJ 850; Bina
Devi v State of U.P (2010) 69 ACC 19; Amit Verma v.
Sangeeta Verma & Ors. CRR No. 3542/2019, decided by
the Madhya Pradesh High Court vide Order dated
08.01.2020; S. Radhakumari v. K.M.K. Nair AIR 1983
Ker 139; Samir Banerjee v. Sujata Banerjee 70 CWN
633; Gouri Das v. Pradyumna Kumar Das 1986 (II) OLR
44; Kalpana Das v. Sarat Kumar Das AIR 2009 Ori 133
- referred to.
Enforcement of orders of maintenance:
7.1 Enforcement of the order of maintenance is the most
challenging issue, which is encountered by the applicants. If
maintenance is not paid in a timely manner, it defeats the very
object of the social welfare legislation. Execution petitions usually
remain pending for months, if not years, which completely nullifies
the object of the law. [Part B Para V][1157-E]
7.2 An application for execution of an Order of Maintenance
can be filed under (a) Section 28 A of the Hindu Marriage Act,
1956 r.w. Section 18 of the Family Courts Act, 1984 and Order
XXI Rule 94 of the CPC for executing an Order passed under
Section 24 of the Hindu Marriage Act (before the Family Court);
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(b) Section 20(6) of the DV Act (before the Judicial Magistrate);
Section 128 of Cr.P.C. before the Magistrate's Court. [Part B Para
V (i)][1157-G-H; 1158-A]
7.3 Section 18 of the Family Courts Act, 1984 provides that
orders passed by the Family Court shall be executable in accordance
with the CPC / Cr.P.C. Section 125(3) of the Cr.P.C provides that if
the party against whom the order of maintenance is passed fails to
comply with the order of maintenance, the same shall be recovered
in the manner as provided for fines, and the Magistrate may award
sentence of imprisonment for a term which may extend to one month,
or until payment, whichever is earlier. Some Family Courts have
passed orders for striking off the defence of the respondent in case
of non-payment of maintenance, so as to facilitate speedy disposal of
the maintenance petition. [Part B Para V (ii & iii)][1158-B-D]
7.4 It is directed that the order or decree of maintenance may
be enforced like a decree of a civil court, through the provisions
which are available for enforcing a money decree, including civil
detention, attachment of property, etc. as provided by various
provisions of the CPC, more particularly Sections 51, 55, 58, 60
read with Order XXI. Striking off the defence of the respondent is
an order which ought to be passed in the last resort, if the Courts
find default to be wilful and contumacious, particularly to a dependant
unemployed wife, and minor children. Contempt proceedings for
wilful disobedience may be initiated before the appropriate Court.
[Part B Para V][1162-A-D]
Sushila Viresh Chhawda v. Viresh Nagsi Chhawda AIR
1996 Bom 94; Kaushalya v. Mukesh JainCriminal Appeal
Nos. 1129-1130 / 2019 decided vide Judgment dated
24.07.2019; Bani v. Parkash Singh AIR 1996 P&H 175;
Mohinder Verma v. Sapna MANU/PH/3684/2014; Satish
Kumar v. Meena 2001 (60) DRJ 246; Smt. Santosh Sehgal
v. Shri Murari Lal Sehgal AIR 2007 Delhi 210; Gurvinder
Singh v Murti & Ors. (1990) DMC 559; Venkateshwar
Dwivedi v. Ruchi Dwivedi (2009) SCC OnLine Kar 481 -
referred to.
RAJNESH v. NEHA & ANR.
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Case Law Reference
[1978] 3 SCR 782
relied on
Part B
[1970] 1 SCR 565
relied on
Part B Para I (i)
[1993] 3 SCR 954
relied on
Part B Para I (c)
2020 AIR 4355
referred to
Part B Para I (c)
[1975] 2 SCR 483
referred to
Part B Para I (d)
[2007] 12 SCR 577
referred to
Part B Para I (d)
[2014] 8 SCR 858
referred to
Part B Para I (d)
[2010] 12 SCR 223
referred to
Part B Para I (d)
[2018] 13 SCR 505
referred to
Part B Para I (d)
[2016] 9 SCR 515
referred to
Part B Para I (e)
[2010] 13 SCR 706
referred to
Part B Para I (e)
[2013] 14 SCR 1019
referred to
Part B Para I (e)
[2006] 10 Suppl. SCR 1206 referred to
Part B Para I (e)
[2013] 2 SCR 426
referred to
Part B Para I (e) (iii)
(1997) 11 SCC 286
relied on
Part B Para I (e) (iv)
[1997] 3 Suppl. SCR 529
referred to
Part B Para III (i)
[2011] 9 SCR 371
referred to
Part B Para III (i)
[2017] 3 SCR 702
relied on
Part B Para III (i)
[2018] 12 SCR 350
relied on
Part B Para III (i)
[2007] 12 SCR 577
relied on
Part B Para III (ii)
(2018) 12 SCC 199
relied on
Part B Para III
[vi (c)]
[2007] 12 SCR 577
referred to
Part B Para III
[vi (c)]
(2014) 16 SCC 715
relied on
Part B Para III
[vi (c)]
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[2015] 4 SCR 137
relied on
Part B Para III
[vi (c)]
[2008] 11 SCR 386
relied on
Part B Para IV
[2014] 8 SCR 858
relied on
Part B Para IV
[2013] 10 SCR 259
relied on
Part B Para IV
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
730 of 2020.
From the Judgment and Order dated 14.08.2018 of the High Court
of Judicature at Bombay Nagpur Bench, Nagpur in Criminal Writ Petition
No. 875 of 2015.
Anurag Gharote, Ms. Pragya Baghel, Satyajit A. Desai, Satya
Kam Sharma, Ms. Anagha S. Desai, Advs. for the appearing parties.
JUDGMENT
INDEX
PART A
Order passed in Criminal Appeal No.730 of 2020
PART B
General Guidelines and Directions
I.
Issue of Overlapping Jurisdictions
II.
Payment of interim maintenance
III.
Criteria for determining quantum of maintenance
IV.
Date from which Maintenance to be awarded
V.
Enforcement of orders of maintenance
VI.
Final Directions
INDU MALHOTRA, J.
Leave granted.
PART A
(i)
The 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,
RAJNESH v. NEHA & ANR.
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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.
(ii)
The 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.
(iii)
The present appeal has been filed to impugn the Order
dated 14.08.2018. This Court issued notice to the wife and
directed the Appellant-husband to file his Income Tax Returns
and Assessment Orders for the period from 2005-2006 till
date. He was also directed to place a photocopy of his
passport on record. By a further Order dated 11.09.2019,
the Appellant-husband was directed to make payment of
the arrears of Rs.2,00,000 towards interim maintenance to
the wife; and a further amount of Rs.3,00,000, which was
due and payable to the wife towards arrears of maintenance,
as per his own admission. By a subsequent Order dated
14.10.2019, it was recorded that only a part of the arrears
had been paid. A final opportunity was granted to the Appellanthusband to make payment of the balance amount by
30.11.2019, failing which, the Court would proceed under
the Contempt of Courts Act for wilful disobedience with the
Orders passed by this Court.
In the backdrop of the facts of this case, we considered
it fit to frame guidelines on certain aspects pertaining to the
payment of maintenance in matrimonial matters. There are
different statutes providing for making an application for grant
of maintenance / interim maintenance, if any person having
sufficient means neglects, or refuses to maintain his wife,
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children, parents. The different enactments provide an
independent and distinct remedy framed with a specific object
and purpose. Inspite of time frames being prescribed by
various statutes for disposal of interim applications, we have
noticed, in practice that in a vast majority of cases, the
applications are not disposed of within the time frame
prescribed. To address various issues which arise for
consideration in applications for grant of maintenance /
interim maintenance, it is necessary to frame guidelines to
ensure that there is uniformity and consistency in deciding
the same. To seek assistance on these issues, we have
appointed Ms. Anitha Shenoy and Mr. Gopal
Sankaranaryanan, Senior Advocates as Amici Curiae, who
have graciously accepted to assist this Court.
(iv)
By a further Order dated 17.12.2019, the Appellant was
directed to pay an amount of Rs.1,45,000 to the Respondent
no.1-wife within a period of 45 days.
On the issue of framing guidelines, the National Legal
Services Authority was directed to elicit responses from the
State Legal Services Authorities of various States.
(v)
By a subsequent Order dated 05.08.2020, it was
recorded that an Affidavit of Compliance had been filed on
04.08.2020 by the Appellant-husband, wherein it was stated
that arrears of Rs.1,45,000 till 11.09.2019 had been paid by
him in January, 2020. However, he had made no further
payment to the wife thereafter. With respect to the amount
of Rs.10,000 p.m. payable for the minor son, the Order had
been complied with till July 2020. A statement was made by
the Counsel for the Appellant that he was not disputing the
payment of maintenance for his son, and would continue to
pay the same. A direction was issued by this Court to pay
the entire arrears of maintenance to the wife @
Rs.15,000 p.m. as fixed by the Family Court, and continue
to pay the said amount during the pendency of proceedings.
(vi)
By the Order dated 25.08.2020, it was noted that the
Appellant had filed an Affidavit dated 23.08.2020 wherein
he had admitted and acknowledged that an amount of
RAJNESH v. NEHA & ANR.
[INDU MALHOTRA, J.]
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Rs.5,00,000 was pending towards arrears of maintenance
to the Respondent No.1-wife. The Appellant was directed
to pay 50% of the arrears within a period of 4 weeks to the
Respondent No.1, failing which, he was directed to remain
present before the Court on the next date of hearing. The
Counsel for the husband placed on record a chart of various
proceedings pending between the parties. Taking note of the
aforesaid facts, we considered it appropriate to refer the
matter for mediation by Mr. Shridhar Purohit, Advocate, a
well-known Mediator in Nagpur, to resolve all disputes
pending between the parties, and arrive at an overall
settlement.
(vii)
On 08.10.2020, we were informed that the mediation
had failed. The husband appeared before the Court, and
made an oral statement that he did not have the financial
means to comply with the Order of maintenance payable to
the Respondent No.1-wife, and had to borrow loans from
his father to pay the same. He however stated that he had
paid the maintenance awarded to the son, and would continue
to do so without demur. Both parties addressed arguments
and filed their written submissions.
(viii)
We have heard the Counsel for the parties, and perused
the written submissions filed on their behalf.
The husband has inter alia submitted that he was
presently unemployed, and was not in a position to pay
maintenance to the Respondent No.1-wife. He stated that
he did not own any immovable property, and had only one
operational bank account. The husband declined to pay any
further amount towards the maintenance of his wife. It was
further submitted that the Family Court had erroneously
relied upon the Income Tax Returns of 2006, while
determining the maintenance payable in 2013. He further
submitted that he was exploring new business projects, which
would enable him to be in a better position to sustain his
family.
The wife has inter alia submitted that the amount of
Rs.10,000 awarded for the son was granted when he was 2
1⁄2 years old in 2015. The said amount was now highly
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inadequate to meet the expenses of a growing child, who is
7 1⁄2 years old, and is a school-going boy. It was further
submitted that the admission fee for the current academic
year 2020-2021 had not yet been paid. If the fee was not
paid within time, the school would discontinue sending the
link for online classes. She submitted that she was being
over-burdened by the growing expenses, with no support
from the husband.
With respect to the contention of the husband that he
had no income, she submitted that the husband had made
investments in real estate projects, and other businesses,
which he was concealing from the Court, and diverting the
income to his parents. It has also been alleged that the
Appellant had retained illegal possession of her Streedhan,
which he was refusing to return. Despite orders being passed
by this Court, and in the proceedings under the D.V. Act, he
was deliberately not complying with the same. In these
circumstances, it was submitted that there was a major trust
deficit, and there was no prospect for reconciliation.
(ix)
With respect to the issue of enhancement of maintenance
for the son, the Respondent is at liberty to move the Family
Court for the said relief. We cannot grant this relief in the
present appeal, as it has been filed by the husband.
(x)
In the facts and circumstances of the case, we order
and direct that :
(a)
The Judgment and order dated 24.08.2015 passed
by the Family Court, Nagpur, affirmed by the Bombay
High Court, Nagpur Bench vide Order dated
14.08.2018 for payment of interim maintenance @
Rs.15,000 p.m. to the Respondent No.1-wife, and
Rs.10,000 p.m. to the Respondent No.2-son, is hereby
affirmed by this Court;
(b)
The husband is directed to pay the entire arrears of
maintenance @ Rs.15,000 p.m., within a period of 12
weeks' from the date of this Judgment, and continue to
comply with this Order during the pendency of the
proceedings u/S. 125 Cr.P.C. before the Family Court;
RAJNESH v. NEHA & ANR.
[INDU MALHOTRA, J.]
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(c)
If the Appellant-husband fails to comply with the
aforesaid directions of this Court, it would be open to
the respondents to have the Order enforced u/S.128
Cr.P.C., and take recourse to all other remedies which
are available in accordance with law;
(d)
The proceedings for payment of interim maintenance
u/S. 125 Cr.P.C. have been pending between the parties
for a period of over 7 years now. We deem it appropriate
that the Family Court decides the substantive application
u/S. 125 Cr.P.C. in Petition No.