FAQ’s On Maintenance In Matrimonial Cases
The Hon’ble Supeme Court in the case titled RAJNESH versus NEHA & Anr ( CRIMINAL APPEAL NO. 730 OF 2020 ) has passed detailed directions to be followed in all maintenance proceedings. After going through the aforesaid judgment, we have prepared the following FAQ’s:-
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What are the various laws under which maintenance can be claimed?
| S. No | Section | Act | Who can claim | Additional Considerations |
|---|---|---|---|---|
|
|
36, 37 | The Special Marriage Act 1954 | Wife | Marriage should have been solemnized under this Act. It is a secular legislation and applies to persons of all religions. |
| 2 | 24, 25 | The Hindu Marriage Act 1955 | Gender Neutral, Either Spouse can claim | Applies to Marriage between two Hindus. Only Applies if other proceeding like dissolution of marriage etc. is pending before the same Court. |
| 3.1 | 18, | Hindu Adoptions & Maintenance Act 1956 | Wife | It is available during the subsistence of marriage. Once the marriage is dissolved by Divorce, then wife has to seek relief under section 25 of HMA above. |
| 3.2 | 19 | Hindu Adoptions & Maintenance Act 1956 | Widowed daughter in law | |
| 3.3 | 20 | Hindu Adoptions & Maintenance Act 1956 | Children and aged parents | |
| 4 | 125 | The Code Of Criminal Procedure, 1973 | Wife, children, parents | It can be invoked by persons belonging to any religion. |
| 5 | 12,20,22 | The Protection Of Women From Domestic Violence Act, 2005 | Woman who has been in a domestic relationship with the respondent (other side). | Maintenance can be claimed by a woman for herself and her children under section 20(1)(d) and compensation for injuries, mental torture can be claimed under section 22. Woman in live in relationship may also be eligible depending upon the facts of the case. |
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Whether maintenance awarded in previous proceedings has to be set off / taken into consideration in claim for maintenance in subsequent proceedings?
Answer: (1) Where successive claims for maintenance are made by a party under different laws / proceedings, the adjudicating Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;
(2) It is made mandatory for the applicant (claimant) to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;
(3) If the order passed in the previous proceedings requires any modification or variation, it would be required to be done in the same proceeding (previous proceedings).
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Whether maintenance has to be awarded from the date of application for maintenance or from the date of decision / order?
Answer: Maintenance has to be awarded from the date of application i.e. date on which the application for maintenance was filed in the Court.
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What is the prescribed time period for deciding the application for interim maintenance?
Answer: The application for interim maintenance ought to be decided in 4-6 months after the affidavits of disclosure / income have been filed before the Court.
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What factors are considered by the Courts for deciding the amount / quantum of maintenance:
Answer: Some of the common factors that are taken into consideration by the Courts while deciding the amount / quantum of maintenance are:-
1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as
he/she enjoyed in the matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance
and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guess work is not ruled out while estimating the income of the
non-applicant when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. Age and employment of the parties
12. Right to residence
13. Whether wife is earning some income
14. Maintenance of minor children
15. Serious disabilty or ill health
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What are the provisions for enforcing / execution of maintenance orders?
Answer: According to the directions passed by the Hon’ble Supreme Court, an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.
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What is the format of affidavit of income / disclosure required to be filed in maintenance proceedings.
Answer: The format of affidavits are provided in Enclosure 1 and Enclosure 2 of the aforesaid judgment.
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