Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. disposed of a petition filed in a matrimonial dispute by allowing the petitioner (wife) to prove additional documents in the matter of an application seeking maintenance from the respondent (husband) under Section 125 CrPC.

Earlier, the trial court had dismissed the wife’s application on the ground that she was not able to establish that she withdrew from the society of her husband for a reasonable cause. The trial court noticed that no evidence was placed on record to substantiate the allegations of cruelty against the husband made by the wife.

R.K. Narang, Advocate for the wife prayed to prove copies of several complaints made to various authorities and also medical records showing injuries caused by the husband. It was submitted that these documents, which were not available with the wife during the trial, had now been obtained from the authorities concerned. Per contra, Akhilesh Kr Singh, Advocate appearing for the husband submitted that the complaints were false and frivolous.

Keeping in view the entirety of the case, the High Court set aside the impugned judgment of the trial court. The wife was granted an opportunity to file and prove the additional documents before the trial court. She was also permitted to summon the record from the authorities where original of such documents may be available. As, consequently, trial court’s order fixing interim maintenance stood received. [Beena Kumari v. Manoj Kumar, 2019 SCC OnLine Del 7237, dated 21-02-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. dismissed a revision petition filed by the husband against the judgment of the trial court whereby his application under Order 7 Rule 11 CPC impugning the proceedings filed by the wife on the ground of territorial jurisdiction was rejected.

Sanjay S. Chhabra with Satish Chaudhary, Advocates for the petitioner argued that the present application by the wife under Section 125 CrPC was not maintainable at Delhi because in all proceedings except the present one she had mentioned her residential address at Aligarh, U.P. Per contra, it was submitted on behalf of the wife by Saurabh Soni with Mannat Singh, Advocates that she was residing in Delhi with her brother since 2008.

The High Court perused Section 126(1) CrPC which deals with the place of the institution of proceedings under Section 125. It was observed, “Section 126(1) does not contemplate permanent place of residence. Even a place where the wife is for the time being residing would confer jurisdiction on such a court, where she is residing. However, residence temporarily acquired solely for conferring jurisdiction would not satisfy the requirements of Section 126(1).”In view of the law that wife can maintain a petition under Section 125 at any place where she is residing and the fact that she placed on record proof that reflected her address at Delhi, it was held that the trial court did not commit any error in rejecting husband’s application. The petition was dismissed for being without merit.[Sachin Gupta v. Rachna Gupta, 2019 SCC OnLine Del 6632, dated 21-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. directed the parties to appear before the trial court for fresh consideration of an application under Section 125 CrPC filed by the wife, son and daughter of the respondent.

Earlier the application for grant of maintenance was rejected by the trial court. In regard to son and daughter, the rejection was on the ground that they were major. While in regard to the wife, rejection was on the ground that she was employed and earning. This finding was based on the report of one Bajaj Detective Agency employed by the respondent which stated that the wife was employed as a Lab Assistant in Safdarjung Hospital.

Umesh Sinha and Anil Kumar Singh, Advocates for petitioners contended that even daughters are entitled to maintenance till their marriage and thus challenged the rejection of the application by the trial court.

The High Court noted the admitted position that at the time filing the application, the son was a minor. The daughter was 23 years but the fact whether she was earning and able to maintain herself was not considered. Furthermore, in regard to the wife, perusal of the detective’s report showed that the above-mentioned finding was not based on any foundational document, fact or evidence. it was also noted that the parties had not filed their income affidavit before the Court. On such facts and circumstances, the Court held that the impugned order was not sustainable and the matter was remitted back to the trial court for fresh consideration. The parties were directed to file their affidavit of income and expenditure in the format laid down in Kusum Sharma v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793. [Kamlesh Sharma v. State, 2019 SCC OnLine Del 6529, decided on 16-01-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Bench of H.S. Madaan, J., allowed an application seeking transfer of Petition under Section 9 of the Hindu Marriage Act, 1955 to the Court of competent jurisdiction at Gurugram.

The facts of the case are there was a divorce proceeding going on between the parties. The petitioner contended that she was aged about 23 years and was to take care of infant child of four months and that she did not have any source of income and had filed an application under Section 125 CrPC against her husband-respondent seeking maintenance. Under such circumstances, she contended that it was difficult for her to travel from Gurugram where she was residing with her parents to Ferozepur Cantt to attend the dates of hearing in the Court there.

Respondent contended that the personal appearance of the petitioner was not required in the petition under Section 9 of the Hindu Marriage Act and she could be represented through counsel there, therefore, the application should be dismissed.

That Court, in view of the facts and circumstances of the case, allowed the application. [Ekta Nagpal v. Yashveen Kumar, 2019 SCC OnLine P&H 17, decided on 08-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. disposed of a petition holding that the petitioner (wife) was not entitled to maintenance under Section 125 CrPC for a period prior to the grant of divorce.

The petitioner and the respondent (husband) were married. They were living separately since 2004. Divorce was granted in 2015 on an application filed by the respondent on the ground of mental cruelty and desertion by the wife. The decree of divorce was upheld by the Supreme Court. Prior to that in 2007, the petitioner had applied under Section 125 CrPC for interim maintenance. By the impugned judgment, the trial court dismissed the application for maintenance on petitioner’s failure to show that she had sufficient cause to live separately.

S.K. Srivastava and Gurjeet Singh, Advocates for the petitioner assailed the impugned judgment while Senior Advocate Kirti Uppal with Sidharth Chopra and Shaini Bharadwaj, Advocates representing the respondent supported it.

The High Court referred to Section 125(4)which states that wife is not entitled to receive maintenance is not entitled to receive maintenance if without any sufficient reason she refuses to live with her husband. Relying on Rohtash Singh v. Ramendri, (2000) 3 SCC 180, the Court held that as the divorce decree was passed on ground of desertion which was upheld by Supreme Court, the petitioner was clearly disentitled to maintenance under Section 125. However, it was cleared that she could still file application for maintenance provided she is able to satisfy the condition of Section 125(1)(a) that she is unable to maintain herself. [Archita v. Sunil Seth, 2019 SCC OnLine Del 6484, Order dated 11-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sunil Gaur, J. upheld the order of the trial court directing DNA testing of the petitioner.

DNA testing was ordered to ascertain paternity of minor child whose right to claim maintenance was disputed by petitioner on the ground that he was not the natural father of the child in question.

Shalini Sharma, Advocate for the petitioner submitted that he disputed that he was married to Respondent 1 and there was no proof that the child in question was born from their wedlock.

The High Court relied on Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 where Supreme Court reiterated that DNA is an accurate test. In the present case, the Court noted that occasion to pass the impugned order arose while considering an application under Section 125 CrPC which requires payment of maintenance even to an illegitimate minor child. It was held that in such situation, conclusive proof of marriage could not be made the basis to repel the impugned order. The impugned order did not suffer from any infirmity and thus, the petition was dismissed. [Vijay Kumar v. Renu, 2019 SCC OnLine Del 6458, Order dated 08-01-2019]

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

Introduction

In India, beneficial provisions for maintenance of children and parents are provided under various Acts. Objective of such provisions is to achieve a social purpose and to prevent vagrancy and destitution and to provide simple, inexpensive and speedy mechanism for providing support and maintenance to children and parents.

These provisions along with important cases are discussed below:

Statutory Provisions

Hindu Marriage Act, 1955, Section 26  – During the proceedings under the Act, the court may pass orders with respect to the custody, maintenance, and education of minor children. Under this Act, both parents (father as well as mother or either of them) are liable to maintain the children as ordered by the court. While making such orders, the court takes into account wishes of the children, as far as possible. Such orders and provisions may be altered from time to time. Any application in respect to maintenance and education of minor children during pendency of proceedings under the Act has to be decided within sixty days from the date of service of notice on the respondent, as far as possible.

Hindu Adoption and Maintenance Act, 1956, Section 20 A Hindu male or female is bound to maintain his or her legitimate/illegitimate minor children and aged/infirm parents. Aged or infirm parent (which includes childless stepmother) or unmarried daughter have to be maintained if they are unable to maintain themselves. Section 23 sub-section (2) states that while determining the amount of maintenance to be awarded to children or aged or infirm parents, the court shall consider the following:

(a) position and status of the parties; (b) reasonable wants of the claimants; (c) if the claimant is living separately, whether the claimant is justified in doing so; (d) claimants income and value of property held by him, if any; etc.

If a person ceases to be a Hindu (changes his religion), he/she cannot claim maintenance under this Act [Section 24]. The amount of maintenance may be modified if there is a change in circumstances warranting so [Section 25].

Under this Act, even the heirs of a deceased Hindu are bound to maintain his/her “dependants” out of his/her estate inherited by them [Section 22]. Dependents include deceased person’s minor son, unmarried daughter, widowed daughter, minor illegitimate son, minor illegitimate daughter [Section 21].

Criminal Procedure Code, 1973, Section 125 – Magistrate may order a person to make monthly allowance for maintenance in a case where any person who despite having sufficient means neglects or refuses to maintain – (i) his legitimate or illegitimate minor child who is unable to maintain itself; or  (ii) legitimate or illegitimate major child (not being a married daughter) unable to maintain itself due to any physical or mental abnormality/injury; or (iii) married daughter till she attains majority if her husband is not able to maintain her; or (iv) his/her father or mother who are unable to maintain themselves. This section also makes a provision for maintenance during the pendency of proceedings regarding monthly allowance for maintenance. Also, application for interim maintenance during pending proceedings is to be decided by the Magistrate, as far as possible, within sixty days of the date of service of notice of application to such person. A person who fails to comply with the order of the Magistrate without showing sufficient cause may also be sent to prison. The order of maintenance passed under this section may be altered by the Magistrate on proof of change in circumstances [Section 127].

Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 – A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance for children born to her for a period of two years from the respective dates of birth of such children. It does not matter if the children were born before or after the divorce, the former husband is liable to pay maintenance. If the former husband fails to comply with the order passed by Magistrate without showing sufficient reason, he may have to suffer imprisonment up to one year.

Maintenance and Welfare of Parents and Senior Citizens Act, 2007, Section 4 – Parent (father or mother whether biological, adoptive or step father or step mother, whether senior citizen or not) or grand-parent who is unable to maintain himself is entitled to claim maintenance from one or more of his adult children (son, daughter, grandson and grand-daughter but does not include a minor). Obligation of the children to maintain their parents extends to such needs of the parents which will allow them to lead a normal life. Additionally, this Act also makes provision for maintenance of childless senior citizens (who has attained the age of sixty years or above) by their relatives. The “relative” means any legal heir of childless senior citizen who is in possession of his property or would inherit it after his death, but it does not include a minor.

If the parents or senior citizens are incapable of applying for monthly allowance for maintenance themselves, in that case, an application can be made through any other person or organisation authorised by them. Such an application has to be decided by Maintenance Tribunal within a maximum period of 120 days from the date of service of notice to children/relative. If children/relative fails to comply with the orders of the Tribunal, this may result in imprisonment upto one month. [Section 5]. The Tribunal may order the children/relative to make a monthly allowance at a rate deemed fit by the Tribunal. However, the maximum amount of maintenance cannot exceed Rs 10,000 per month. [Section 9]. The order of maintenance may be altered by the Tribunal on proof of change in circumstances [Section 10].

Cases

Children of void marriage entitled to maintenance

A child born out of a void marriage between a woman and a man who already has a wife is to be treated as a legitimate child who is entitled to maintenance under Section 125 CrPC, Bakulabai v. Gangaram, (1988) 1 SCC 537.

Father to maintain the unmarried daughter

An unmarried daughter unable to maintain herself is entitled to claim maintenance under the Hindu Adoption and Maintenance Act, 1956. The father is obliged to maintain her unmarried daughters even if they are living separately with their mother, Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7.

Daughter to be maintained until she gets married even after attaining majority

Daughter is entitled to maintenance under CrPC when read with Hindu Adoption and Maintenance Act, 1956 even after attaining majority but till her marriage, Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422.

Hindu earning mother is also obliged to maintain children

Both, a Hindu divorcee father and a Hindu divorcee earning mother are obliged to contribute for maintenance of their children under the Hindu Adoption and Maintenance Act, 1956. Father is not exclusively responsible to maintain children regardless of mother being affluent, Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266.

CrPC applies only when there is neglect or refusal to maintain despite having sufficient means

A case for grant of maintenance under Section 125 CrPC arises only when a person despite having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor children who are unable to maintain themselves, Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359.

Maintenance under CrPC & 1986 Act runs parallel (Muslim children entitled to maintenance under CrPC)

The benefit under Section 125 CrPC is available to all children irrespective of religion. Right under Muslim Women (Protection of Rights on Divorce) Act, 1986 is that of the mother to claim maintenance for children for two years from their date of birth and is distinct and independent of the right to maintenance under CrPC to minor children unable to maintain themselves, Noor Saba Khatoon v. Mohd. Quasim, (1997) 6 SCC 233.

Daughter is also obliged to maintain parents

Along with a son, Section 125 CrPC imposes liability even on daughter whether married or unmarried, having sufficient means to pay maintenance to her parents who are unable to maintain themselves, Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278.

When can a stepmother claim maintenance from her stepson

A childless stepmother may claim maintenance from her stepson provided she is a widow or her husband, if living, is incapable of supporting and maintaining her, Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479.

Conditions for grant of maintenance to parents and senior citizens under 2007 Act

Senior citizens, including parents, will be entitled to maintenance under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 if only they are unable to maintain themselves from their own earnings or out of the income from the property owned by them, M. Venugopal v. DM, Kanyakumari, 2014 SCC OnLine Mad 5642.

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

 Introduction

“Maintenance” is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. Various laws governing maintenance are as follows:

for Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956

for Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986

for Parsis – Parsi Marriage and Divorce Act, 1936

for Christians – Divorce Act, 1869

secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954

Temporary Maintenance (pendente lite)

Temporary maintenance is granted by the court during the pendency of proceeding for divorce or separation to meet the immediate needs of the petitioner.

Under Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife can be granted relief if the court is satisfied that the applicant has no independent income sufficient for his or her support and necessary expenses of the proceedings pending under the Act.

Interim maintenance may also be claimed under Section 125 CrPC by the wife during the pendency of proceeding for regarding monthly allowance for maintenance under Section 125(1) CrPC.

Furthermore, Section 36 of Special Marriage Act, 1954 also makes provision for the wife to seek expenses from the husband if it appears to the district court that she does not have independent income sufficient for her support and necessary expenses of proceedings under Chapters V or VI of that Act.

Still further, under Parsi Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to claim expenses where the proceeding is pending under the Act. Section 39 of the Act which is substantially the same as Section 36 of the Special Marriage Act makes a provision in this behalf.

Also, under Section 36 of Divorce Act, 1869 which applies to persons professing Christain religion, a wife is entitled to expenses of proceeding under the Act and maintenance while the suit is pending.

All these provisions specify that the application for interim maintenance has to be disposed of within sixty days of service of notice on the respondent.

Permanent Maintenance

It is the maintenance granted permanently after the disposal of the proceeding for divorce or separation.

Hindu Marriage Act, 1955, Section 25 – Applicant, either wife or husband is entitled to receive from the spouse for his/her maintenance and support a gross sum or monthly or periodical sum for a term not exceeding the applicant’s lifetime or until he/she remarries or remains chaste.

Hindu Adoption and Maintenance Act, 1956, Section 18 – Hindu wife is entitled to be maintained by her husband during her lifetime. Wife also has a right to separate residence and maintenance if any of the condition in Section 18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same house, conversion of religion or any other reasonable cause] is fulfilled until she remains chaste or does not convert to other religion. It may also be noted that Section 19 of this Act makes a provision for a widowed wife to be maintained by her father-in-law.

Criminal Procedure Code, 1973, Section 125 – This section provides for maintenance not only to the wife but also to child and parents. Court may order a husband who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself to provide monthly maintenance to her. However, wife shall not be entitled to receive maintenance if she is living in adultery, or refuses to live with husband without any sufficient reasons, or living separately with mutual consent.

Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 – A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be paid to her within the iddat period by her former husband; an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. If husband fails to provide her the above mentioned then Magistrate can order for payment of the same.

Parsi Marriage and Divorce Act, 1936, Section 40 – A Parsi husband or wife may apply to the Court under this section whereupon the Court at the time of passing any decree under the Act or anytime subsequent thereto order that the defendant pay the plaintiff a gross or monthly sum for his/her maintenance and support. Such order may also be modified subsequently if the Court is satisfied that change in circumstances warrants so. The order may also be rescinded or modified if the party in whose favour the order was made remarries; or in case of wife, she does not remain chaste; or in case of the husband, he has sexual intercourse with any woman outside the wedlock.

Special Marriage Act, 1954, Section 37 – This section is also similar to Section 40 of the Parsi Marriage and Divorce Act. The difference being that under this section maintenance may be claimed only by a wife against the husband from a court exercising jurisdiction under Chapters V or VI of the Act. An order made under this section may be modified or rescinded by the district court at the instance of the husband if it is shown that the wife has remarried or is not leading a chaste life.

Divorce Act, 1869, Section 37 – This section empowers the district court to order the husband to secure a reasonable gross sum to the wife or annual sum not exceeding her lifetime when a decree of dissolution or decree or judicial separation is obtained by the wife. While passing such order, the court may have regard to fortune of the wife, ability of the husband and conduct of the parties. The court may also order the husband to pay such monthly or weekly sum to the wife for her maintenance as the court may think reasonable. If subsequently, the husband becomes unable to make such payments, the court may discharge or modify such order.

Cases

Maintenance defined

Maintenance includes — (i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage, Section 3(b), Hindu Adoption and Maintenance Act, 1956.

Maintenance necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head, Mangat Mal v. Punni Devi, (1995) 6 SCC 88.

 Sustenance defined

Maintenance of wife for her ‘sustenance’ does not mean animal existence but signifies leading life in a similar manner as she would have lived in the house of her husband. Husband is duty bound to enable his wife to live life with dignity according to their social status and strata, Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353.

Wife defined

“Wife” Includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried,  Section 125(1) Explanation (b), CrPC 1973.

“Wife” in Section 125 CrPC means a legally wedded wife and also includes a divorced wife, D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

Maintenance only to legally wedded wife

Only a legally wedded wife is entitled to maintenance. A Hindu woman marrying a Hindu male having a living wife, is not entitled to maintenance as this marriage is void, Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530.

Maintenance to ‘previous wife’

A Muslim husband contracting another marriage or taking a mistress is liable to pay maintenance to the previous wife who also has right to live separately which is payable from the date of the other marriage. Irrespective of religion, husband cannot absolve his liability by offering to take back the wife and maintain her, Begum Subanu v. A.M. Abdul Gafoor, (1987) 2 SCC 285.

 Maintenance to second wife

Husband who conceals subsistence of his earlier marriage while marrying the second wife is entitled to give maintenance to second wife. Second wife is to be treated as a legally wedded wife for the purpose of maintenance, Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188.

Wife ‘living separately with mutual consent’ does not include divorced wife

The meaning of ‘wife’ under Sections 125(1) and 125(4) CrPC is different. Section 125(4) contemplates a married woman. Wife living separately from husband with mutual consent does not mean wife who obtains divorce by mutual consent and lives separately and therefore cannot be denied maintenance on this ground, Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299.

Is an earning wife entitled to maintenance?

Wife having a school of her own and possessing wet lands is in a better financial position than husband who is not doing well in his profession and has no land. Hence, it is unnecessary to pay any maintenance to the wife, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.

Wife’s income to be accounted for determining maintenance

Wife’s income has to be taken into account while determining the amount of maintenance payable to her. It is not an absolute right of a neglected wife to get maintenance nor it is an absolute liability of husband to support her in all the circumstances, Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386.

Maintenance to woman in a live-in relationship

The Supreme Court expressed its opinion that a broad interpretation of “wife” should include cases where man and woman live together as husband and wife for a reasonably long period of time (live-in relationship/ presumed marriage/ de facto marriage/ cohabitation). A strict proof of marriage should not be a precondition for maintenance under S. 125 CrPC so as to fulfill the true spirit and essence of the beneficial provision of maintenance, Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141. (This judgment has however been referred to a larger bench)

Recently, it is held that a woman in a live-in relationship has an efficacious remedy to seek maintenance under Protection of Women from Domestic Violence Act, 2005 even if it is assumed that she is not entitled to the same under Section 125 CrPC. In fact, under the Domestic Violence Act, the victim would be entitled to more relief than what is contemplated under Section 125 CrPC, Lalita Toppo v. State of Jharkhand, 2018 SCC OnLine SC 2301.

Woman knowingly entering in a live-in relationship with a married man

All live-in relationships are not relationships in the nature of marriage. There has to be some inherent/ essential characteristic of marriage though not a marriage legally recognised. A live-in relationship between an unmarried woman knowingly entering into relationship with a married male cannot be termed as a relationship in the “nature of marriage” and her status would be that of a concubine or mistress and therefore is not entitled to maintenance, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.

 Muslim woman entitled to maintenance under CrPC

A divorced Muslim woman has right under Section 125 CrPC to claim maintenance even beyond the iddat period. If the woman is able to maintain herself then the liability of husband to maintain her ceases with the expiration of iddat period. However, on the inability of maintaining herself, she can take recourse of that section. Section 125 has an overriding effect on personal law in case of conflict between the two, Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.

Divorced Muslim woman can claim maintenance from State Wakf Board

A divorced Muslim woman unable to maintain herself can directly claim maintenance from the State Wakf Board in the first instance under Section 4 of Muslim Women (Protection of Rights on Divorce) Act, 1986 and in the same proceeding can plead inability of her relatives to maintain her. Relatives can be added as parties to the litigation if they have enough means to pay maintenance, T.N. Wakf Board v. Syed Fatima Nachi, (1996) 4 SCC 616.

Husband to make fair provision and maintenance within iddat period for ex-wife’s whole life

Section 3(1)(a) of Muslim Women (Protection of Rights on Divorce) Act, 1986 makes husband liable to make a reasonable and fair provision and maintenance to divorced Muslim wife on or before the expiration of the iddat period. However, this maintenance is not limited only for the iddat period but extends to her whole life unless she remarries. Husband is obliged to provide a reasonable and fair provision in addition to maintenance to contemplate the future need of ex-wife, Danial Latifi v. Union of India, (2001) 7 SCC 740.

Maintenance not restricted to iddat period

A divorced Muslim wife is entitled to maintenance not merely until the completion of the iddat period, but for her entire life unless she remarries. Sabra Shamim v. Maqsood Ansari, (2004) 9 SCC 616.

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of M.S. Sonak, J. held in a petition by relying on several decisions that, “an agreement, in which wife gives up or relinquish her right to claim maintenance at any time in the future,is  opposed to public policy and therefore, such an agreement, even if voluntarily entered, is not enforceable.”

The facts in the present case are as follows, Learned Counsel Sandeep Koregave placed his submissions for the petitioner that, during the Lok Adalat proceedings, petitioner and respondent 1 filed a consent pursis, in which they not only agreed to dissolve their marriage but also agreed not to claim any maintenance from each other. Further, he stated that respondent-wife had made false allegations that her consent was obtained by fraud. The main contention placed by the learned counsel for the petitioner was that, in terms of agreement recorded in the consent decree, respondent having waived her right to receive maintenance, cannot now maintain an application under Section 125 CrPC.

Counsel for the respondent-wife Mr Nagesh Chavan stated that there can be no agreement in derogation of the provisions of Section 125 CrPC since such provisions have been designed as a matter of public policy to protect against destitution and vagrancy.

The High Court, relied on various decisions, such as Shahnaz Bano v. Babbu Khan ; 1985 SCC OnLine Bom 200, wherein it was observed: “even in a case covered by Clause (c) of Section 127 (3) of CrPC, where the wife has surrendered her rights voluntarily, in a given case, if after waiving her rights to maintenance, she becomes vagrant and destitute and is unable to maintain herself, then irrespective of her personal law, she would be entitled to avail statutory remedy for maintenance under Section 125 of CrPC.”

and Ranjit Kaur v. Pavittar Singh; 1991 SCC OnLine P&H 693 for the proposition that: “The statutory right of a wife of maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision”

After so referring, the Court stated that there is no reason to interfere with the views taken by the two courts in the present matter. Therefore, application of respondent 1 under Section 125 CrPC is held as maintainable and there is no doubt that the Magistrate will dispose of the application under Section 125 CrPC, in accordance with law and on its own merits. Further, learned Judicial Magistrate in the present case is directed to dispose of application of respondent 1. [Ramachandra Laxman Kamble v. Shobha Ramachandra Kamble, 2018 SCC OnLine Bom 7039, dated 21-12-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Raja Vijayaraghavan V, J. set aside an order of Family Court refusing maintenance to wife on the basis of husband’s submissions.

Petitioner, who was respondent’s wife, filed a petition seeking maintenance for herself and her daughter under Section 125 of the Code of Criminal Procedure 1973. The respondent undertook to pay his daughter’s fee directly to school but refused to maintain his wife. He submitted a memo stating that petitioner was a qualified doctor having BDS degree who refused to work and earn for herself, and therefore he was not willing to provide maintenance to her. On the basis of said memo, Family Court refused the petitioner’s claim. Aggrieved thereby, the instant petition was filed.

The Court noted that petitioner had been refused maintenance on the sole ground that she was qualified and could maintain herself. No reasons had been stated in the impugned order, other than making a reference to the respondent’s memo. The Court relied on the decision in Sunita Kachwaha v. Anil Kachwaha, (2014) 16 SCC 715 holding that even if the wife was earning some amount, that may not be a reason to outrightly reject her maintenance application. It was held that, in the instant case, Family Court should have applied its mind carefully before rejecting petitioner’s prayer for maintenance.

It was further opined that the concept of sustenance does not necessarily mean to live life in penury and roam around for basic maintenance. Wife is entitled to lead a life in the same manner as she would have lived in the house of her husband. Husband is not entitled to contend that he is not prepared to pay any maintenance and courts are not expected to accept the blatant refusal of the husband with folded hands.

In view of the above, the petition was allowed and Family Court was directed to pass fresh orders in the petition expeditiously and in any case within one month. [Alphonsa Joseph v. Anand Joseph,2018 SCC OnLine Ker 5012, decided on 29-11-2018]

Case BriefsSupreme Court

“When the parties live together as husband and wife, there is presumption that they are legally married couple for claim of maintenance of wife under Section 125 CrPC.”

Supreme Court: The Bench comprising of R. Banumathi and Indira Banerjee, JJ., while setting aside the impugned judgment of the High Court of Karnataka and allowing the present appeal stated that “proceedings under Section 125 CrPC do not require strict standard proof of marriage.”

In the present case, the appellant had filed the present appeal against the judgment of Karnataka High Court which has set aside the family court’s decision of paying maintenance. The facts and submissions of the appellant were that the Appellant 1 had two children from wedlock between Appellant 1 and respondent. Further, while the marriage of Appellant 1 and respondent was subsisting, the respondent got married to one of his colleagues and started harassing and neglecting the appellants. Due to the stated reasons, Appellant 1 filed a police complaint after which the respondent was asked to pay Rs 3000 as maintenance. Appellant on not being able to maintain herself and her two children filed a criminal miscellaneous application under Section 125 CrPC for maintenance.

Respondent, in his submission, submitted of never being married to Appellant 1 and contended as there was no valid marriage, petition for maintenance was not maintainable. High Court had set aside the order of the family court and held that Appellant 1 was unable to prove she was the legally wedded wife of the respondent. Aggrieved by the same, the appellants approached the Supreme Court.

The Apex Court on a careful consideration of the submissions and impugned judgment along with the material placed on record and placing reliance on Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675, stated that:

“Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under Section 125 CrPC, such strict standard proof is not necessary as it is summary in nature meant to prevent vagrancy.”

Therefore, the Supreme Court stated that family court on the basis of documentary and oral evidence held rightly in favour of the appellant and High Court being the revisional court had no power of reassessing the evidence and substitute its views on findings of facts. Hence, the impugned judgment of the High Court was set aside and the present appeal was allowed with a liberty given to the appellants to approach the family court for further enhancement of maintenance if required. [Kamala v. M.R. Mohan Kumar,2018 SCC OnLine SC 2121, decided on 24-10-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Division bench comprising of Rajiv Sharma and Alok Singh, JJ. dismissed an appeal filed against the judgment of Family Court, granting a decree of divorce, for want of substantiation of the appellant-wife’s allegations against the respondent-husband.

Facts of the case were that marriage was solemnized between the parties as per Hindu rites and ceremonies. Immediately after their marriage, a few differences cropped up between them and the appellant/ wife left the matrimonial home after seven months of marriage as she wanted to stay away from her in-laws. The respondent was working in Indian Army and posted in Kanpur. In order to maintain peace in his marital life, he took the appellant along with him to Kanpur where they stayed in the government-allotted quarters. However, their disputes continued and in the meantime, respondent got transferred to Arunachal Pradesh. He could not take the appellant along with him over there due to duty restrictions and sent her back to his parents’ home. After two months, the appellant left her matrimonial home and made complaints to the superior officers of respondent; pursuant to which the respondent/ husband sent her a legal notice to stop harassing him. Thereafter, the appellant along with her parents threatened to implicate him in a dowry case and filed a case under Section 125 CrPC. The respondent also filed a suit under Section 13 of the Hindu Marriage Act, 1955 which was decreed vide impugned judgment.

The High Court perused entire evidence on record and noted that there were several inconsistencies in the appellant’s statements – on one hand, she stated that she wanted to live with her husband and on the other hand, she stated that she has a threat to her life from him. Further, the appellant had failed to produce any witness or documentary evidence in support of her bare allegations of harassment, torture, and demand for dowry. While she contended of having complained to the respondent’s senior officers at Kanpur, no copy of the complaint was filed by her. She also alleged demand for dowry, harassment and that her husband wanted to have a second marriage but had failed to substantiate all of her allegations.

As such, the High Court opined that the Family Court had appreciated and discussed the evidence on record elaborately and there was no infirmity in the impugned judgment. On this holding, the instant appeal was dismissed. [Sangeeta Bhakuni v. Pushkar Singh Bhakuni,2018 SCC OnLine Utt 868, decided on 28-09-2018]

Case BriefsSupreme Court

“Classic case of taking revenge by the husband against the wife on being aggrieved by the maintenance petition filed.”

Supreme Court: The Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ., allowed a petition while setting aside the order passed by Allahabad High Court under Section 482 CrPC for quashing of proceedings.

Appellant 1 was the wife of Respondent 2, in accordance to the facts stated, Appellant 1 was in her final year of MCA and Respondent 2 had completed his MBBS at the time of marriage. Appellant had taken admission in an institute to pursue MBA but after a while she moved back to her parent’s house due to the demand of dowry being placed by Respondent 2. In February, 2008 Respondent 2 while working as an ad-hoc medical officer in M.P. stayed with Appellant 1 at her parent’s house and thereafter moved to U.P. in order to continue as a permanent medical officer. Appellant 1 on giving birth to her first child moved with Respondent 2 but again after some time she returned to her parent’s house due to harassment by Respondent 2.

It was alleged by the Appellant 1 that continuous dowry demands and harassment by Respondent 2 compelled her to go before the Concilliation centre which also proved to be a failed move as the respondent did not change, thereafter, appellant filed a maintenance petition under Section 125 CrPC. Respondent 2 as a counterblast filed an FIR against appellant 1 under Sections 420 and 504 IPC for cheating and intentional insult with intent to provoke breach of the peace. Further, appellant filed a petition under Section 482 CrPC which was dismissed by the High Court.

The Supreme Court observed that the primary allegation submitted by the respondent against the appellant was that Appellant 1 had wrongly represented that she had completed her MCA at the time of marriage and merely on the said basis, it cannot be said that appellant had cheated upon the respondent and therefore, Court found that absolutely no offence could be found under Section 420 IPC and the FIR is just a counterblast against the maintenance proceeding against the appellant. The petition is allowed. [Anupriya Pal v. State of U.P.,2018 SCC OnLine SC 1316, Order dated 13-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Mangesh S. Patil, J. dismissed a husband’s challenge to the award of compensation to his divorced wife granted by the Additional Sessions Judge.

The appellant-husband and respondent-wife were married in 2003. Subsequently, they developed discord and the wife left the husband alleging harassment. The husband filed petition for restitution of conjugal rights which was allowed. However, even after that, the parties couldn’t live together. Thereafter, the husband filed a divorce petition on grounds of desertion by the wife. The said petition was allowed and the marriage between the parties was dissolved, which decree had become final. Subsequent to that, the wife filed an application for maintenance under Section 125 CrPC. The application was rejected by the Judicial Magistrate; however, on appeal, the Additional Session Judge allowed the same. Aggrieved by the order of the Additional Sessions Judge, the husband had filed the present petition.

The High Court perused the record and found that the facts stated above were the admitted position of the parties. Marriage between the parties was indeed dissolved by a decree of dissolution which had become final. The question before the  Court was whether, under Section 125 CrPC, the Court could grant maintenance to a wife who was divorced on grounds of desertion. For adjudication, the Court relied on the Supreme Court decision in Rohatash Singh v. Ramendri, 2000 (3) SCC 180  wherein it was held that even such a wife can claim maintenance under the section; however, it would be available to her only from the date on which decree for dissolution of marriage had been passed. Accordingly, the husband’s challenge to award of maintenance granted to the wife was dismissed. However, it was held that the wife would be entitled to maintenance only from the date of divorce decree, and not from the date of filing of an application under Section 125 as held by the Additional Sessions Judge. The petition was disposed of in the terms above. [Dnyaneshwar Eknath Kachre v. Sunita,2018 SCC OnLine Bom 2243, dated 24-08-2018]

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,2017 SCC OnLine Kar 452, order dated 12-04-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: While determining whether a live-in partner would be entitled to maintenance under Section 125 of Code of Criminal Procedure, 1973, the Bench of Jaishree Thakur J. reiterated the holding of the Supreme Court in Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, that where partners live together as husband and wife, a presumption would arise in favour of a wedlock.

In the instant case, as alleged by the respondent, she began residing with the petitioner in 2008 and bore him twins in 2011. After a while she obtained a decree of divorce from her previous husband. Later on, it was revealed that the petitioner was married. The petitioner argued that without dealing with the question of a valid marriage between the parties, the Family Court awarded maintenance under Section 125 CrPC and that owing to the permanent alimony by her previous husband, she has adequate source of income to maintain herself.

The Court referred to the 2003 report of the Malimath Committee on Reforms of Criminal Justice System, which recommended that the word ‘wife’ in Section 125 CrPC should be amended to include a woman who was living with the man like his wife for a reasonably long period. Applying the grounds laid down by the Hon’ble Supreme Court in Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 as to when a live-in relationship would fall within the expression “relationship in the nature of marriage”, the Bench said that the fact that twins were born out of this relationship indicated the couple’s intent to give it some permanence and that can entitle the woman to claim interim maintenance.

The Court awarded a reduced sum of maintenance to the woman in order to tide over any immediate difficulty without interfering with the order of maintenance for children and directed that the Family Court seized of the matter will also have to see if respondent herein is able to maintain herself on account of the fact that she had been granted  Rs 40 lakhs as permanent alimony from her earlier divorce proceedings. In case the respondent is not entitled to maintenance, necessary deductions are permitted from the amounts already paid. [Ajay Bhardwaj v. Jyotsna, 2016 SCC OnLine P&H 9707, decided on 23.11.2016]