MAINTENANCE & AFFIDAVIT OF INCOME

Maintenance is a key component in a matrimonial proceedings. Affidavit of Income as per the recent judgement of the Supreme Court is mandatory to be filed. Maintenance in India is claimed in either of the following law:

      • Section 125 Cr.P.C.
      • Domestic Violence Case
      • Section 24 of the Hindu Marriage
      • Section 18 of the Hindu Adoption and Maintenance Act

Let us analyse the judgement and the background in which the law was laid down.

Overview of Rajnesh Vs. Neha & Anr

Affidavit of Disclosure of Assets and Liabilities in Maintenance Proceedings as provided by the Supreme Court of India in the case  of ‘Rajnesh Vs. Neha & Anr.’ in Criminal Appeal No. 730 of 2020 (SC).

The Supreme Court of India has recently pronounced the Judgment in ‘Rajneesh Vs. Neha & Anr.’ which unified the divergent view of the Supreme Court and different High Courts across India to deal with maintenance proceedings under various laws.

You can say the judgment is guide for the High Courts and Trial court to pass verdict especially in case of maintenance proceedings under various laws and made a unified view to deliver maintenance order. The Supreme Court frame guidelines on the issue of maintenance, which would cover overlapping jurisdiction under different enactments (like 125 CrPC, D.V. Act, HMA, SMA, and HAMA) 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.

The genesis of ‘affidavit’ in maintenance proceeding was laid down by Hon’ble High Court of Delhi in with ‘Puneet Kaur v Inderjit Singh Sawhney’ ILR (2012) I Delhi and followed in Kusum Sharma v Mahinder Kumar Sharma (2014) 214 DLT 493 directed that applications for maintenance under the HMA, HAMA, D.V. Act, and the Cr.P.C. be accompanied with an Affidavit of assets, income and expenditure as prescribed and thereafter series of guideline and format of the affidavit. Later on, Hon’ble Punjab and Haryana High Court also formulated the similar affidavit in Jaspreet Singh Vs. Gurleen Kaurn [CRM-M-36522 – 2019 (O & M)]. The both the affidavits helped judges of Trial Court and Appellate Court in deciding the maintenance however, the flaw of the affidavit was that our country is having vastly divergent demographic profile which comprises of metropolitan cities, urban areas, rural areas, tribal areas, etc., and the above affidavit more particularly dealt with metropolitan cities and urban area and the affidavit of Delhi High Court and P&H are more complex. The Hon’ble Supreme Court formulated short and crispy affidavit for Non-Agrarian (Urban), Agrarian (Rural) /(dependent krishi) and separate Affidavit for the State of Meghalaya because they follow matrilineal system of society (where female is the head of the family).

The purpose of the aforesaid disclosure of Assets and Liabilities in Maintenance in affidavit format so that party cannot hide the information and that a simplified Affidavit of Disclosure may be framed to expedite the process of determining the quantum of maintenance. That 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. The consequences of non – disclosure and disclosing wrong information would be considered as offence and court have power to punish the wrong doer for sharing for wrong information or concealing material fact regarding income and expenditure.

GUIDELINES  ON LAW OF MAINTENANCE

Issue of Overlapping Jurisdiction

That wife and minor child(ren) can claimed maintenance under one and more laws. Since each of these enactments provides an independent and distinct remedy framed with a specific object and purpose. The Applicant can claimed maintenance under Hindu Marriage Act (Section 24 (any spouse/gender neutral), Section 25 Permanent Alimony and 26 for child(ren). The Hindu Adoption and maintenance Act (Section 18 and 20). This HMA and HAMA governs Hindu’s. Section 36 & Section 37 of The Special Marriage Act (in Short SMA).  The SMA is applicable on those parties whose marriage was registered or solemnized under The SMA. The legislations which have been framed on the issue of maintenance 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.

The conflict came when applicant claimed maintenance more than one enactment from two different court. There are numerous pronouncement of High Court of some states says that “remedies available to an aggrieved person under S. 24 of the HMA is independent of S. 125 of the Cr.P.C and the maintenance awarded cannot be adjusted and it is matter of judicial discretion Ashok Singh Pal v Manjulata (AIR 2008 MP 139). Second View of Bombay and Delhi High Court was have held that in case of parallel proceedings, adjustment or set-off must take place.

Situation:  if one court awarded maintenance under section 125 of CrPC as Rs. 5000/- per month and in another proceeding under The D.V Act between the similar parties court awarded maintenance @ Rs. 3000/-.

According to View I, the applicant is entitled for the sum of both the case i.e. Rs. 8000/- per month and whereas the view II, then applicant is only entitled for the highest awarded maintenance i.e. Rs. 5000/- per month.

Directions on overlapping jurisdictions

Wife can make a claim for maintenance under different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the proceedings, independent of the relief granted in a previous proceeding. If maintenance is awarded to the 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 the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.

In short, held that if two different maintenance awarded than highest awarded maintenance to wife/ applicant would be payable and disclosure of previous awarded maintenance should be disclosed to the court.

Payment of Interim Maintenance 

At present, the issue of interim maintenance is decided on the basis of pleadings, affidavit of income and some 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 do not disclose the correct details, and suppress vital information, which makes it difficult for the Courts to make an objective assessment for grant of interim maintenance and in order to curb above situation the Apex Court formulated the short affidavit of disclosure of income, assets and liabilities for three different category of people (Urban, Rural/ dependent on agriculture and lastly tribes of Meghalaya). Court fixed the time of filing of the affidavit of disclosure with the other guidelines and guidelines.

Criteria for determining quantum of maintenance

The objective of granting interim maintenance is to ensure that spouse or dependent should not lead a life of destitute. There is no straitjacket formula for fixing the quantum of maintenance to be awarded. That factors are the status of the parties; reasonable needs of the wife and dependent 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.

A careful and just balance must be drawn between all relevant factors. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury.

  1. Age and employment of parties
  2. Right to residence
  3. Where wife is earning some income
  4. Maintenance of minor children
  5. Serious disability or ill health

The above factor should be considered apart from income and liabilities of the parties while deciding interim maintenance.

Date from which Maintenance to be awarded

All the statutes as discussed above does not provide date from which interim maintenance awarded. 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. However, he have to record the reason in its judgment/order if awarding maintenance from the date of order or date of application and the said provision gave discretion to the judges and sometime injustice can be done with the parties. So there is need to streamline the conflicting issue. The divergent views taken by the 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.

The Apex Court in the present judgment and 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.

Enforcement of orders of maintenance

The enforcement of the order of maintenance or recovery of maintenance is one of toughest problem which applicant have to face and delay in the payment of maintenance would basically defeat the object of provision of maintenance as the above provision is prevent applicant from living a life of destitute. The apex court discussed the various provision as provided under The Hindu Marriage Act, The DV Act, CrPC, CPC, The Family Court and the above provision provided that for the recovery / satisfaction of money decree passed and the court is empowered to attach the property (movable and immovable property) and arrest of defaulter. Striking of Defense of the defaulter means the court would not read the evidence of the defaulter in deciding the case and so as to facilitate speedy disposal of the maintenance petition.

The Apex Court held 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.

Striking off the defense 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 dependent unemployed wife, and minor children.

Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.

Affidavit of Income has now become mandatory in entire India. Affidavit of Income will help the court to ascertain the true and actual income of spouse involved in a matrimonial proceedings  to decide the maintenance.

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