Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Bharati H. Dangre, J., has held that the Muslim Personal Law can in no way curtail the protection granted under the Protection of Women from Domestic Violence Act 2005, from being available to a Muslim woman.

Brief facts of the case were that the respondent-wife had filed a petition for divorce against the husband under Section 2(viii)(a) and (d) of the Dissolution of Muslim Marriages Act, 1939, on grounds of cruelty. She also filed an application under the Domestic Violence Act for maintenance. The petitioner-husband filed objection to the application contending that he had already given talaq to the respondent after she filed the petition for divorce. He contended that the talaq was given by him in pursuance of the desire of the petitioner to get a divorce, as was evident by the petition filed by her; the said talaq should be considered as ‘khula’ (divorce by consent) and therefore according to the Muslim Personal Law that govern the parties, the respondent was not entitled to any maintenance as asked for by her.

The High Court observed that in the present case, the pronouncement of talaq was disputed by the wife and the husband will have to prove the said factum of talaq. As till the time the talaq was not proved, the respondent continued to be legally wedded wife of the petitioner and in that contingency, the question was whether the wife who was in a domestic relationship with the petitioner was entitled to seek relief under the DV Act.

After extensively considering various provisions of the DV Act as well as Acts concerning the rights of women under Muslim Personal Law, Hon’ble Court held that

“perusal of the provisions of the Protection of Women from Domestic Violence Act, 2005 would reveal that it is an enactment to provide for more effective protection for rights of women, guaranteed under the Indian Constitution, who are the victims of the violence … The definition and connotation of “Domestic Violence” under Section 3 of the enactment do not indicate any intention either express or implied to exclude Muslim women. Section 36 of the said enactment provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

The Court held that the provisions of the Muslim Personal Law can in no way curtail the protection provided under Domestic Violence Act. As a result, the impugned order of the Family Court whereby the petitioner was ordered to pay maintenance under the provisions of the DV Act was upheld and the petition dismissed. [Ali Abbas Daruwala v. Shehnaz Daruwala, WP No. 114 of 2018, dated 04.05.2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of K.N. Phaneendra, J., dismissed a petition preferred against the Order passed by the Family Judge whereby the petitioner (the husband) was directed to pay a sum of Rs. 10,000 p.m. to Respondent 1 (the daughter) and Rs. 5000 p.m. to Respondent 2 (the wife), towards maintenance under Section 125 CrPC.

The wife and the daughter of the petitioner filed an application under Section 125 for claiming maintenance from him on the grounds that the petitioner had neglected and refused to maintain them; in spite of repeated requests he did not make any arrangements for their welfare. Learned trial Court allowed the application and ordered the petitioner herein, to pay maintenance as mentioned hereinabove. The petitioner challenged the said Order of the trial Court in the instant petition.

The High Court perused the record and found that the husband and the wife had abandoned their conjugal company and they were not living together; and the wife and the daughter were living separately. It was also noted that the petitioner did not make any arrangements before the wife going to the Court for maintenance. The Court observed that under Section 125 CrPC, it is only to be seen that whether the husband has neglected the wife and refused to maintain her and the child; which was abundantly clear in the case at hand. Looking at the income of the petitioner and the admitted position regarding the expenditure required for proper living of the child and the wife, the Court held that the amount of maintenance as provided by the learned trial court did not call for any interference. Consequently, the Order impugned was upheld and the petition was dismissed. [Rahul v. Kaveri, RPFC No. 100109 of 2016, order dated April 12, 2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Bharati H. Dangre, J., decided a writ petition filed by the petitioner-mother, wherein maintenance was allowed to the unmarried adult daughter holding that such a child was entitled to maintenance from her father under Section 125 CrPC.

The petitioner and husband were married to each other but were living separately. The petitioner-mother filed the present petition on behalf of their unmarried major daughter (19 years of age), claiming maintenance for her. The question before the Court, inter alia, was whether an unmarried major daughter was entitled to maintenance under Section 125 of CrPC?

The High Court perused the section as well as decisions of the Supreme Court and High Courts. The Court observed that under Section 125 of the CrPC it is only the minor child who is entitled to claim maintenance if such child is not able to maintain itself. A child who has attained majority is held entitled for claiming maintenance, if on account of physical or mental abnormality or injury he is unable to maintain himself. There is not any specific provision contained in Section 125 for grant of maintenance to a daughter who is major. However, considering decisions of the Supreme Court, the High Court held that the father cannot be extricated from his liability to maintain his unmarried daughter who is staying with his wife and he would be bound not only to maintain his unmarried daughter until her marriage. It was held that an unmarried daughter, though attained majority, is entitled to claim maintenance from the father under S. 125 of CrPC.

Accordingly, the petition was allowed and the application preferred by the petitioner was remanded to the family court for proper adjudication. [Agnes Lily Irudaya v.Irudaya Kani Arsan, 2018 SCC OnLine Bom 617, order dated 6.4.2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Vineet Kothari, J., decided a writ petition filed by the petitioner-wife under Article 227 of the Constitution, wherein the order of the trial court allowing her Rs. 17,000/- per month as maintenance under Section 24 of the Hindu Marriage Act, was upheld.

The parties were before the Family Court in a divorce petition. The abovesaid order allowing pendent lite maintenance was passed under Section 24 of HMA. The petitioner-wife submitted that she was not a working lady, whereas the respondent-husband was a software engineer and was earning Rs. 1,00,000 per month. She contended that the amount of maintenance granted by the court below was very low and needs to be increased.

On perusal of the record, the High Court found that even the petitioner was a highly qualified lady being a software engineer. And this fact was properly considered by the court below while appreciating the evidence and passing the impugned order. After considering this fact the trial court passed the order of maintenance for the wife as well as their son. The High Court was of the view that a highly qualified wife is capable of maintaining herself as well as the child. Therefore, the High Court did not find any error with the order passed by the trial court and accordingly, the petition was dismissed. [Sandhya K. v. A. Manohar, WP No. 8216 of 2018 (GM-FC), decided on 8.3.2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of the Delhi High Court comprising of Siddharth Mridul and Deepa Sharma, JJ., dismissed a Letters Patents Appeal before it. The matter before the Court was related to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Hereinafter ‘act’) and the issue before the Court for adjudication was whether the Maintenance Tribunal has the jurisdiction to pass an order of eviction?

It was urged before the Court that a Maintenance Tribunal inherently lacks jurisdiction to pass an order of eviction and that the same is beyond the scope of proceedings for maintenance, instituted on behalf of a senior citizen. The facts leading up to the case were, that Respondent 3, a 68 year old man and father of the appellants, ran a printing press in a building occupied by him along with his ailing wife and his sons with their respective families in separate accommodations. Respondent 3 instituted a petition under the Act that despite having spent considerable amount on renovating the subject property, and providing separate residential accommodation to his sons, the latter backed out from their responsibility to pay a monthly sum of Rs. 20,000 collectively for his maintenance and for the requirements of his ailing wife. The Maintenance Tribunal had originally passed an order in Respondent 3’s favour, according to which, Appellant 2 and 3 were to vacate their respective residential portions and were also to refrain from indulging in arguing, making comments or other similar behaviour with the rest of the parties, including a son of Respondent 3 not implicated in the complaint. Instead of complying, the appellants instituted the present writ petition before the Court.

The Court referred to Section 32 of the Act r/w clause (i) of Section 2 along with the Rules promulgated under to adjudge that a senior citizen is entitled to institute an application seeking eviction of his son, daughter or other legal heir from his self-acquired property on grounds of ill-treatment and non-maintenance. Applications disposed of. [Shadab Khairi v. State,  2018 SCC OnLine Del 7626, decided on 22.02.2018]

Case BriefsHigh Courts

Delhi High Court: The Single Judge Bench comprising of I.S. Mehta J., decided upon a case related to the Protection of Women against Domestic Violence Act, 2005 (DV Act). The present appeal is from the petitioner husband, aggrieved by the decision of the Metropoliton Magistrate, who ordered him to pay the maintenance to the respondent wife, for maintaining her as well as their child. The same appeal, earlier has been dismissed by the learned Special Judge of the Sessions Court.

The counsel for the petitioner argued that after deducting all the necessary expenditure, a very meagre amount is left, which is much less than the maintenance amount. The counsel also stated that the respondent earlier had a job, which she had intentionally left. The counsel for the respondent on the other hand said that she was unable to maintain herself and her minor child.

The Court observed that the petitioner cannot shy away from his duty to maintain his wife as well as the child, except in the case of denial of existence of marriage and denial of paternity of his minor child. Also the Court said that it is the responsibility of the parents to look towards the education of the child and his status of living within their means. The fact that the spouse, with whom the child is living, has sufficient source of income does not absolve the other spouse from his responsibility to maintain the child. The question whether the respondent, on the day of filing of the application under Section 12 of DV Act, was in domestic relationship is irrelevant and has no affect on granting of monetary reliefs. The Court also said that the decree of divorce does not free the husband from his duty to maintain the wife and the child.

Thus, the Court  held that the instant revision petition by the petitioner is dismissed and the order passed by the Special Judge was upheld. Also, it directed the trial court to dispose off the application under Section 12 of DV Act as soon as possible, preferably within a period of 6 months from the date of this judgement. [Sukhjinder Singh v. Harvinder Kaur,  2017 SCC OnLine Del 11621, decided on 10.11.2017]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of I.S Mehta, J, dismissed a revision petition before it against the interim maintenance awarded under Section 397 read with Section 482 to set aside/reduce the interim maintenance awarded to Respondents 2 and 3 under Section 125 CrPC.

The petitioner and Respondent 1 were married and had 2 issues during the wedlock, Respondents 2 and 3. The petitioner and his family members chased away Respondent 1 along with Respondents 2 and 3 from her matrimonial home. Subsequently, a complaint was filed against the petitioner. However, the parties settled their disputes through mediation and Respondent 1 returned to her matrimonial home with Respondents 2 and 3. Months later, the petitioner beat the respondents and expelled them from the house. The respondents then started living in Respondent 1’s parental house.

Consequently, after hearing the counsel for the parties and after perusal of the documents placed on record the learned Principal Judge, Family Courts, North-East District, Vishwas Nagar, Delhi vide impugned order dated 09.03.2015 in MT No. 24/14 directed the petitioner to pay an interim maintenance of Rs. 3,000 per month each to his children, i.e. Respondents 2 and 3 from the date of filing of application, i.e. 15.10.2013, and every month thereafter regularly till the disposal of main petition. The revision petition was filed against this interim measure.

The learned counsel for the petitioner submitted that the learned trial court failed to appreciate the documents on record filed by the petitioner and the trial court has itself presumed the salary of the petitioner as Rs. 15,000 per month, whereas the petitioner had mentioned his salary as Rs. 8,200 per month on record and the petitioner is not capable to provide the said awarded amount to the respondents.

The Court held that the object of Section 125 CrPC is to provide speedy remedy to women and children who are unable to support themselves and are in distress. It is intended to achieve a social purpose and maintenance cannot be denied to the children on the premise that their mother is employed or has enough means to maintain them or that they are in the custody of their mother and also that it is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means. The mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child, even if, the means/income/salary of that spouse may be less than the means/income/salary of the other spouse.

In view of the circumstances, the Court found no infirmity in the impugned order. Revision petition dismissed.[Jetender Kumar v. Kamlesh,  2017 SCC OnLine Del 11622, decided on 10.11.2017]

Case BriefsHigh Courts

Punjab and Haryana High Court: In a recent case before the Court, a wife (appellant) filed an application under Section 24 of the Hindu Marriage Act for grant of maintenance pendente lite and maintenance to her two minor children. The husband and wife both are independently working and earning.

The wife was taking care of the upbringing of both the minor children alone and no help was being rendered by the respondent-husband. Considering these facts and circumstances, the Court observed that up bringing of two minor children is joint responsibility of both the parents irrespective of the fact whether they are earning or not.

As the minor children have already been granted compensation of Rs. 2500  under Section 125 CrPC by the lower court, the High Court did not express any opinion on the matter. However, M.M.S. Bedi, J. took note of the fact that it was only the appellant who was forced to look after the children and on account of this, she would be entitled to nominal maintenance pendente lite on account of additional responsibilities shouldered by her. Consequently, the Court ordered a sum of Rs. 10,000 per month for the said additional responsibilities with effect from the date of application and besides this, ordered Rs. 50,000 to be paid as litigation expenses.

The Court further emphasized on the amicable settlement between the parties if possible and referred the matter to the Mediation and Conciliation Centre of Punjab and Haryana High Court, Chandigarh. [Parveen Lata v. Shiv Kumar, 2017 SCC OnLine P&H 2901, decided on 05.09.2017]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Dr. Shalini Phansalkar-Joshi, J. heard a case involving counter-petitions filed by both the parties to the matrimonial proceedings. The issue before the Court was “whether the order of maintenance passed in the proceedings filed under Section 125 of CrPC is to be followed, or, whether the order passed in the proceedings filed under Domestic Violence Act, is to be followed?”

The wife had filed a petition for maintenance under Section 125 of the Code of Criminal Procedure in 2010, under which the husband had been directed to pay Rs 6000 to wife and Rs. 4000 to the minor daughter from the date of the order dated 2016. The wife had also subsequently filed a petition under the Protection of Women from Domestic Violence Act, 2005, under which the husband had been directed to pay an interim maintenance of Rs. 8000 to the wife and Rs. 5000 to the daughter. Taking into account this interim maintenance, the Family Court, Mumbai had awarded maintenance of Rs. 6000 to the wife and Rs. 4000 to the daughter in 2016 without making it clear whether the amount of Rs 10,000 had to be paid in addition to the interim maintenance amount or instead of the interim amount.

Relying upon Section 20(1)(d) of the Domestic Violence Act, the Court came to the conclusion that “the power to award maintenance under DV Act is in addition to an order of maintenance under Section 125 of CrPC or any other law for the time being in force”. Also, Section 36 of the aforementioned Act clarifies that the provisions of the Domestic Violence Act are to be in addition to and not in derogation of provisions of any other existing law. Therefore, it was held that since both the orders had been passed by two different forums in two different proceedings, both the orders were binding on the husband and on the wife. [Prakash Babulal Dangi v. State of Maharashtra,  2017 SCC OnLine Bom 8897, order dated 10.10.2017]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court ruled that proceedings under Sections 498-A, 406 read with 34 of the Penal Code, 1860 can be quashed by the High Court upon request of the parties after reaching a settlement agreement  to obtain divorce by mutual consent.

Appellant 1 and Respondent  2 were married but had no issue out of the wedlock. Disputes arose between them, resulting in the FIR bearing No. 0615/2014 alleging offences under Sections 498-A, 406 read with 34  IPC. A petition under Section 12 of the Domestic Violence Act, 2005 was also filed. The parties later reached an amicable solution. The petitioner agreed to pay 1 lakh to Respondent 2 for the settlement of all her claims including maintenance. The said petition was withdrawn by Respondent  2.

Respondent 2 stated that she willingly settled the matter and not under any pressure or coercion. The Court was of the view that now that the parties have settled the matter, no further purpose is served in pursuing the matter further. Hence, the petition was disposed of. [Vijay v. State NCT of Delhi, 2017 SCC OnLine Del 9902, decided on 10.08.2017]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a criminal revision petition, a Single Judge Bench comprising of Rathnakala, J. held that the obligation of the husband to maintain the wife continues throughout the matrimonial life and the husband cannot get away with an excuse that for many years no request was made by the wife for the maintenance amount.

In the present case, the wife filed a petition under S. 12 of the Act for various relief. The learned Magistrate ordered maintenance and compensation in favor of the wife which was modified by the lower appellate court. The husband-revision petitioner, challenged the maintainability of the petition filed by the wife under S. 12 of the Act for maintenance and compensation. Learned counsel for the petitioner submitted that there was no cause to file the petition since there was no harassment/ill treatment or domestic violence as defined under S. 3 of the Act.

The Court, rejecting the contention of the petitioner held that domestic violence under S. 3 of the Act, includes economic abuse also. The omission of the husband in neglecting to maintain the aggrieved wife falls within the description of S. 3 of the Act. The husband was living with another woman, which was another form of domestic violence, emotional. It was held that the petitioner was guilty of offence of domestic violence under the Act and could not escape liability. [Kasturi v. Subhas, Criminal Revision Petition No. 539/2017, dated August 3, 2017]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a writ petition filed under Articles 226 and 227 of the Constitution, a Single Judge Bench comprising of Aravind Kumar, J. held that the contention of the respondent that the present application for maintenance was not maintainable on account of the petitioner having already filed an application under S. 125 CrPC could not be accepted.

The marriage was solemnized between the petitioner wife and the respondent husband in 2001. The petitioner filed a petition under S. 13(1 (ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage. During the pendency of proceedings, the petitioner filed an interlocutory application under S. 24 of the Act claiming interim maintenance. The respondent contended that he was already paying Rs. 10,000 p.m. to the petitioner as maintenance under S. 125 CrPC.

The Court held that there cannot be any bar for claiming maintenance under S. 24 HMA, even in the event of application under S. 125 CrPC having been filed. The Court further held that a reading of S. 24 HMA, would disclose that while awarding maintenance, court has to take into consideration the income of parties before deciding the quantum of maintenance. During the pendency of divorce proceedings, at any point of time, if wife establishes that she has no sufficient independent income for her support, it would always be open for her to claim maintenance pendent lite. In case respondent-husband attempts to stove off the claim for maintenance sought for by the wife, it is trite law that husband will have to satisfy the court that either due to physical or mental disability, he is handicapped to earn and thereby, he is unable to pay maintenance to his wife and offspring.

The Court allowed the petition in part and affirmed the order of the lower court awarding maintenance at Rs. 20,000 p.m. to the petitioner. [Smt Sunita Motwani v. Amitabh Sinha, W.P. No. 15406/2017 C/with W.P. No. 20884/2017 (GM-FC), order dated July 27, 2017]

 

Case BriefsHigh Courts

High Court of Himachal Pradesh: A Bench comprising of  Sandeep Sharma, J. has set aside the judgment passed by Fast Track Court and restored the judgment passed by the trail court, in which the complaint filed by the wife of the petitioner under Section 12 of the Domestic Violence Act was dismissed.

The complainant wife initially filed a complaint under Section 12 of the Domestic Violence Act alleging domestic violence against her husband and in-laws. This complaint was rejected by the trial court for want of merit in the application. An appeal was filed to the Fast Track Court, in which even though the court found no proof of domestic violence, it granted the complainant a maintenance allowance after observing that she had no independent source of income. Against this judgment, the petition was filed by the husband of the complainant.

The petitioner argued that since no evidence was led by the complainant which proved violence against him, the maintenance allowance was not tenable in law. The court agreed with the arguments of the petitioner and observed that even the appellate court was not convinced of evidence led by the complainant. Perusal of the complaint by the court nowhere suggested that maltreatment and violence was ever meted out to her. Further, neither any specific instance was reported with regard to the violence, nor any independent witness from the locality was associated by the complainant to prove the allegations. Further, the Court found evidence that the complainant left the house on her own after being caught red handed with a person, with whom she had illicit relations. In view of these findings, the Court concluded that the appellate court got swayed by emotions and ignored overwhelming evidence while granting maintenance. Consequently, the judgment of the appellate court was set aside and judgment of the trial court was upheld. [Anil Kumar v. Shashi Bala, 2017 SCC OnLine HP 626, decided on 2-5-2017]

Case BriefsHigh Courts

High Court of Madhya Pradesh: While examining the revision petition filed by the applicant against the order passed by the Principal Judge, Family Court, Ratlam whereby it directed the applicant/husband to pay maintenance of Rs. 4000 per month to the non-applicant/wife from the date of order, the Bench comprising of Jarat Kumar Jain, J., held that the finding of the trial court that the non-applicant/wife has sufficient reason to live separately is not sustainable in law and since she is residing separately from applicant husband without any reason hence, she is not entitled for maintenance under Section 125 of CrPC .

The applicant husband moved the court submitting that the non-applicant/wife is not entitled for maintenance and the erroneous order passed by the trial court is liable to be set aside as the court gave a finding that applicant/husband earns Rs.50,000 per year and to pay Rs. 4000 per month to the non-applicant/wife, is against the evidence on record. The counsel for the husband submitted that the wife had left the matrimonial home voluntarily and is living in her parental home without any reason even though the applicant went to Ratlam to bring her back with him; however, she refused to come with him further, the non-applicant/wife being an advocate, had sufficient income to maintain herself and was not entitled to maintenance.

The Court on examining the findings of trial court as to whether non-applicant/wife has sufficient reason to live separately and whether she is unable to maintain herself observed, that since the non-applicant left matrimonial home voluntarily with her brother with a view to select a girl for his marriage and without lodging any report at the  Police Station or making any complaint to anybody even though she had a mobile phone and used to talk with her brother, but never made any complaint about her harassment to her brother therefore, it is practically impossible to believe that the non-applicant/wife could have been so harassed in 12 days and that it was impossible for her to live in her matrimonial home.

The Court relying on Savita Bai v. Prahlad , 2013 (3) MPWN 77, held that since the  non-applicant wife is unable to prove the prove the charge of harassment it cannot be held that she was forced to leave her matrimonial home. Therefore, as the non-applicant/wife is residing separately without any reason,  she is not entitled to maintenance under Section 125 CrPC. Thus, the Court set aside the order of the trial court and allowed the revision petition. [Anil v. Sunita, 2016 SCC OnLine MP 6368, decided on 11.11. 2016]

 

Case BriefsHigh Courts

High Court of Kerala: Deciding the question on whether subsistence of matrimonial relationship is a sine-qua-non for seeking reliefs under Sections 18 and 20 of the Protection of Women from Domestic Violence, 2005 (D.V. Act), the Bench of Sunil Thomas, J. ruled that even a divorced wife is entitled to initiate proceedings under Sections 18, 19, 20, 21 and 22 of the D.V. Act to seek appropriate reliefs. It was held that the scope of the DV Act is not confined within the limits of time and space and even after the dissolution such obligations continue.

The Court said that though it may appear to be paradoxical to argue that protection orders can be sought even after separation of spouses, such a cause of action may not be rare, which arises subsequent to the divorce, but relatable to the earlier matrimonial relationship. It is not unusual that even after divorce, certain obligations arising from past matrimonial relationship continue, like, maintenance, custody of children, liability to pay amounts or assets received, operation of bank accounts and personal safety of divorced wife and children born in the wedlock. It will be illogical and absurd to hold that the moment of divorce is granted, scope of protection order also ceases.

In the present case, the petitioner’s wife and child sought maintenance under Sections 18 and 20, after their divorce in May 2015, invoking Section 13-B of the Hindu Marriage Act. The reliefs sought were a protection order against domestic violence, return of gold ornaments and passport of the respondent. The petitioner sought to quash the above proceedings in lieu of the specific, categoric agreement that they had entered into that the wife will not claim ornaments, money or maintenance against the husband in future and also that the reliefs can be sought only during the subsistence of the marriage and that the marriage had been brought to an end legally and factually.

The Court rejecting the petitioner’s contention, held that contracting out of the statutory rights conferred on the wife under Sections 19 to 22 of D.V. Act is against public policy and hence cannot be recognized, unless it is proved that there was a mutually satisfactory settlement of all claims. The Court, hence rejected the contention of the petitioner and held that the reliefs sought is not maintainable and that the legally divorced wife has a locus standi during her entire life-time. [Bipin v. Meera D.S., 2016 SCC OnLine Ker 19559, decided on 13.10.2016]

Case BriefsHigh Courts

Delhi High Court: Reiterating the factors to be considered while considering the merits of an application for grant of interim maintenance under Section 24 of the Hindu Marriage Act, 1955 the Court held that the object behind Section 24  is to provide for maintenance, pendente lite, to a spouse in matrimonial proceedings so that during the pendency of the proceedings the spouse can maintain herself/himself and also have sufficient funds to carry on the litigation and  not unduly suffer in the conduct of the case for want of funds. A spouse unable to maintain himself/herself is entitled to maintenance on the principle of equistatus and respect that the spouse would have enjoyed if he/she continued to live with other spouse.

The Court reiterated the factors to be considered while determining the amount of maintenance as laid down in Bharat Hegde v. Saroj Hegde,  2007 SCC Online Del 622 : (2007) 140 DLT 16:

  • Status of the parties.
  • Reasonable wants of the claimant.
  • The independent income and property of the claimant
  • The number of persons, the non applicant has to maintain.
  • The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
  • Non-applicant’s liabilities, if any.
  • Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
  • Payment capacity of the non-applicant.
  • 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.
  • The non-applicant to defray the cost of litigation.
  • The amount awarded under Section 125 of the Criminal Procedure Code is adjustable against the amount awarded under Section 24 of the Act.

The Division Bench of Pradeep Nandrajog and Pratibha Rani, JJ. held that the court has to necessarily arrive at prima facie determination about the earning capacity of the rival claimants. The determination cannot be made with exactitude; it is essentially interim in nature. Capacity of the other party to earn cannot be taken into consideration – it is only the actual earning of the opposite party on the basis of which relief can be granted. Permanent income and not casual income is relevant. Where there was sufficient means in the husband’s family on the strength of which the husband got married he has to share the burden of supporting his wife during the course of annulment of such marriage

The Court  further observed that “the provisions of Section 24 are beneficent in nature and the power is exercised by the court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse. The legislature, in its discretion, has not fixed any guideline regarding ceiling limit of maintenance, pendente lite, as in the case of the Divorce Act or the Parsi Marriage Act. The word “support” in Section 24 is not to be narrowly interpreted. It does not mean bare existence. It means that the claimant spouse should have the same comfort as the other. Of course, the section is not intended to bring about arithmetical equality between the two.” [Sujit Kumar v. Vandana, 2016 SCC OnLine Del 4397, decided on August 8, 2016]

Case BriefsSupreme Court

Supreme Court: Deciding a petition relating to the ownership of elephants in possession of the owners, the bench of Dipak Misra and Shiva Kirti Singh, J.J., directed the State of Kerala to refrain from issuing any ownership certificate to any of the persons in possession of the animals.

In the case where application was made to quash a notification dated 26.02.2016 and cancellation of ownership certificates in pursuance of the said notification, the petitioners contended that the State Government has no authority to issue such a notification however, an affidavit to the contrary was filed by the UOI to show that state government can issue notification subject to certain conditions as per Section 40 (4) of the Wildlife Protection Act, 1972.

  • The Court also took note of the order dated 29.03.2016, where the belowmentioned 3 fundamental issues were framed by this Court: Whether any person can keep elephant in his custody like the owner, after the act has come into force?
  • Assuming no prohibition for keeping an elephant, what rule should govern the maintenance of the animal?
  • Who are the authorities for the maintenance and treatment of animals?

Considering that the interlocutory applications were inherently connected with the aforesaid issue, the Court said that the said applications shall be dealt with while dealing with the above-mentioned fundamental issues. The court, hence,held that until the final hearing of the case the persons in possession of animals shall not transfer the animals outside the State nor shall they part with the elephants by way of transfer in any manner. Also, if, in the meanwhile, any ownership certificate is issued, the same shall be withdrawn. [Wildlife Rescue And Rehabilitation Center v Union of India, 2016 SCC OnLine SC 499, decided on May 4, 2016]

Case BriefsHigh Courts

Bombay High Court: While deciding the appeal preferred against the judgement of the Sessions Court, which denied the maintenance granted by the Judicial Magistrate First Class, Karad,  M.S. Sonak J. modified the order of the Judicial Magistrate First Class and directed the respondent to pay  maintenance on monthly basis to the applicant with effect from 1 January 2015 thereby setting aside the order of the Sessions Court.

In the present case Mr. Sawant, learned counsel for the petitioner contended that the evidence on record does establish that the applicant was harassed and therefore compelled to live away from the respondent and the Additional Sessions Judge exceeded the bounds of revisional jurisdiction in interfering with the well reasoned decision of the Judicial Magistrate First Class. On the contrary counsel for the respondent Ms. Bhosale submitted that the Additional Sessions Judge, upon proper appreciation of the material on record has rightly held that the Applicant has abandoned the respondent and his children without reasonable cause.

The Court accepting the contentions of the applicant that the Additional Sessions Judge exceeded his jurisdiction and virtually reassessed the material on record purporting to exercise the appellate jurisdiction, when in fact, revisional jurisdiction was invoked and substituted its own findings in place of those recorded by the JMFC directed the respondent to pay maintenance amount of Rs. 600/- per month to the applicant along with a lump-sum amount of 50,000/- towards maintenance from the date of application till 1 January 2015, and to clear the arrears between 1 January 2015 to the date of this judgement within a month. [ Sou. Vaishali A. Waghmare v. Anil P. Waghmare, decided on December 10, 2015]

High Courts

Madras High Court: While considering an interesting issue that whether a woman, against whom a decree of divorce had been passed on ground of adultery, is entitled to claim maintenance under Section 125 of CrPC, the bench of S. Nagamuthu, J., held that a divorced wife, who lives in adultery is disqualified from claiming maintenance under Section 125 of CrPC. Further elaborating the Court observed that, if a wife during the subsistence of her marriage and after divorce continues to live in adultery, she loses her right to claim maintenance.

The present criminal revision challenged the Order of the Principal District and Sessions Judge who directed the petitioner to pay a sum of Rs.1,000 per month towards the respondent’s maintenance. The counsel for the petitioner, G.R. Swaminathan contended that, once the Civil Court has granted decree for divorce on the ground that the wife was living in adultery, then as per Section 125 (4) CrPC, she loses her right to claim maintenance from her former husband. Opposing the petition, G.P Rajadurai contended that the term ‘adultery’ as existing in Section 125 (4) of CrPC refers to commission of the deed while the marriage is still subsisting, whereas a divorced wife is perfectly at liberty to choose her way of sexual life. 

The Court on perusing the contentions and the concerned statutory provisions, observed that for the purposes of Chapter IX and Section 125 of CrPC, the meaning of the term ‘wife’ cannot be confined only to the wife whose marriage is in subsistence. The Court further observed that after divorce, if a wife wants to retain her right to claim maintenance, then she has to maintain the same standards of discipline that she was supposed to maintain when her marriage was in existence. The Court further stated that as much as a husband is duty bound  to provide maintenance to his wife after divorce, a wife has an equivalent duty to not to have an illicit relationship with another man. A breach of this obligation by a wife tends to disqualify her from claiming maintenance. Analyzing the issue, the Court stated that a wife suffering from the disqualification to claim maintenance on ground of adultery continues to remain disqualified for the same even after a divorce decree has been passed. M. Chinna Karuppasamy v. Kanimozhi, 2015 SCC OnLine Mad 6845decided on 16.07.2015 

Case BriefsHigh Courts

Bombay High Court: Upholding the constitutional validity of  Section 20 (3) of the Hindu Adoption and Maintenance Act, 1956, a bench comprising of A.S. Oka and A.P. Bhangale, JJ held that an unmarried daughter of a Hindu father is entitled to receive maintenance from her estranged father, even if she is not an Indian citizen and is residing in a foreign country. In the present case, the respondent daughter had filed a petition in the Family Court for monthly maintenance and a place of residence from her father. The Family Court had ruled in her favour and the father had challenged the Family Court order in the High Court.
The petitioner father had challenged the family court order on the ground that his estranged daughter had attained majority and was neither a citizen of India and nor was domiciled in India. The Court rejected the contention and held that the applicability of Hindu Adoption and Maintenance Act, 1956 does not depend upon the nationality of the child or the domicile of the child. If both the parents of the child are either Hindu or Buddhist or Jain or Sikh by religion, the said Act becomes applicable to such children.

The petitioner also challenged the constitutional validity of Section 20(3) under Articles 14 and 15, arguing that if a father is under no obligation to maintain his major son then there is no reason why he should be compelled to maintain his unmarried daughter, even after she attains majority. Dismissing the petitioner’s arguments, the Court rejected the contention that two equals were being treated unequally, and observed that unmarried sons and unmarried daughters form two completely different classes, in view of the peculiar position of the daughter, particularly unmarried daughter, in the Hindu society. Ramesh Gajanan Rege vs. Gauri Ramesh Rege, 2015 SCC OnLine Bom 2436 decided on 18-03-2015