“Those who say money can’t buy happiness, clearly have never paid for divorce.” – Anonymous
When it comes to divorce, the decision to part ways creeps up every time you think the limits of your tolerance has crossed and you cannot be a doormat anymore, yet it’s only after several failed attempts to reconcile that the actual steps to take a legal action begins. Though it’s desirable to end a dysfunctional marriage at the earliest to avoid complexity, many continue to suffer because of the of the social stigma, the challenges of giving up the belief you had in the union to be ever-lasting, effect on the children and most importantly the financial ramifications of divorce that deter standards of living or even the mere survival of the financially weak spouse.
The lack of awareness on the guidelines, entitlements and accountabilities under such circumstances had left many empty handed for years despite the plethora of maintenance laws that’s 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. The right to demand maintenance is statutory in India and it cannot be taken away by any agreement to the contrary and this right is available to the wife, children and parents and even husbands under specific personal laws. The party claiming maintenance can either be a spouse, or as a partner in a civil union, live-in relationship or common law marriage.
The absence of a uniform regime resulted in inconsistencies in the practice adopted by various Courts with respect to the date from which maintenance is to be awarded and even the Execution petitions remained pending for a long time which defeated the very object of the social welfare legislation. To address various issues which arose for consideration in grant of maintenance /interim maintenance, and to streamline the process, the Supreme Court Division Bench comprising of Justices Indu Malhotra and Subash Reddy on 4 November, 2020 in Rajnesh v. Neha & Anr. inter alia, framed general guidelines and directions in exercise of its powers under Article 142 of the Constitution of India on aspects pertaining to the payment of maintenance in matrimonial disputes and set out a comprehensive format in which the Affidavit of Disclosure of Assets and Liabilities is to be filed by parties to matrimonial disputes. The guidelines laid down by the Supreme Court inter alia pertain to (1.) Issue of overlapping jurisdiction under different enactments for payment of maintenance, (2.) Payment of interim maintenance, (3.) Criteria for determining quantum of maintenance, (4.) Date from which maintenance to be awarded and (5.) Enforcement of orders of maintenance.
The Hon’ble Supreme Court while addressing the conflict arising out of the overlapping jurisdiction stated that while there is no bar to seek maintenance under multiple laws, but it would be inequitable to direct the husband to pay maintenance under each proceedings, independent of the relief granted in the previous proceedings. So the spouse seeking it must mandatorily disclose to the Court the previous proceeding and the orders passed and 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.
Recognising the fact that India has a vastly divergent demographic profile the Supreme Court formulated a comprehensive format in which the Affidavit of Disclosure ought to be filed by the parties mandatorily in all maintenance proceedings within a maximum period of four weeks however where the parties are from 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 Court stated that endeavour will be made to decide the Interim Application for Interim Maintenance by a reasoned order, within a period of maximum four to six months after the Affidavits of Disclosure have been filed before the Court.
Regarding Permanent alimony, it is pertinent to note that it was stated by this Hon’ble Supreme Court that the 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. As is evident in a contemporary society, 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. Hence the duration of the marriage would be a relevant factor to be taken into consideration for determining the permanent alimony to be paid. It was also stated that the 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 would also be taken into consideration while deciding the final child support.
The Court stated that the objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage and not as a punishment to the other spouse.The Court also acknowledged that there is no straitjacket formula to calculate the quantum of maintenance to be awarded.The factors which would weigh with the Court inter alia are the status of the parties, reasonable needs of the wife and dependent children, applicant’s education and professional qualification; applicant’s independent source of income, whether the income is sufficient to enable the applicant 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 and reasonable costs of litigation for a non-working wife.
Stressing upon the importance of maintaining a careful and just balance between all relevant factors, the Court held that the maintenance amount awarded must be reasonable and realistic and a careful and just balance must be drawn between all relevant factors. It directed the Courts to take cognizance of the fact that maintenance awarded to the applicant should neither be so extravagant that it becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the applicant to penury. It was made clear that as maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the 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 but the test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent and the standard of living that the applicant was accustomed to in her matrimonial home.
Apart from the aforesaid factors set out hereinabove, the Court also laid down additional factors for determining the quantum of maintenance payable inter alia like age and employment of parties, duration of marriage, maintenance of minor children and serious disability or ill health of a spouse, child /children from the marriage or dependent relative who require constant care and recurrent expenditure. The aforesaid factors are not exhaustive, and the concerned Court can exercise its discretion to consider any other factor/s, which may be necessary or relevant in the facts and circumstances of a particular case.
The Court with a view to settle the law in this regard and in the interests of justice and fair play made it very clear that maintenance in all cases (including Section 125 CrPC) is to be awarded from the date on which the application was made before the concerned Court. This was done with a view to prevent a dependent spouse from being reduced to destitution.
Since there are challenges in implementing the maintenance orders the Supreme Court has given directions for the Enforcement / Execution of orders of maintenance to resolve it too. It was further held that the order of maintenance may be enforced as a money decree of a civil court as provided by various provisions of the CPC, including provisions for civil detention, attachment of property, etc., more particularly provided in relevant provisions therein. Apart from this, 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. Also, Contempt proceedings for wilful disobedience could be initiated before the appropriate Court.
The valuable years and money lost in the unpleasant cumbersome battle is very exhausting so the issuance of these new guidelines and directions and framing of the Affidavit of Disclosure by the Supreme Court ensured the entire process to be streamlined which is a great relief. It is to be highly appreciated that the Hon’ble Supreme Court has tried to strike a careful and just balance between the rights, obligations and interests of the parties involved in the matrimonial disputes and we now see the possibility of procedural fairness, uniformity, time efficiency and consistency in deciding the same. Undoubtedly, as of now this approach is far more realistic than it ever was.
Footnotes:
Criminal Appeal No. 730 of 2020 arising out of SLP (Cri) No. 9503 of 2018). The said case arose out of an application for interim maintenance filed in a petition under section 125 of the Code of Criminal Procedure (“CrPC“)
The content of this article is intended solely for information purposes only and to provide a general guide. It is advisable to seek professional advice for specific circumstances.
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