Apex court laydown the Guidelines for determining compensation and maintenance in matrimonial cases:
Yesterday, the apex court laid down the guidelines for determining the payment of compensation and maintenance to be paid in matrimonial cases.
Last year in the month of September the court-appointed Senior Advocates Gopal Sankaranarayanan and Anitha Shenoy as amicus curiae to assist it in framing guidelines on payment of interim maintenance.
The bench of Justice consisting of Justice Indu Malhotra and R Subhash Reddy also laid down directions to be followed by family courts, district courts, and magistrate courts across the country to address the issue of overlapping jurisdiction and to avoid conflicting orders being passed in different proceedings in the same matter.
The court observed that in Payment of interim compensation the Court ruled that an affidavit of disclosure of assets and liabilities annexed to the judgment should be filed by both parties in all maintenance proceedings, including pending proceedings before the concerned family courts, district courts or magistrate courts throughout the country.
Further for determining the quantum of maintenance payable to an applicant, the concerned court shall consider the criteria enumerated in the judgment. The apex court made it clear that there can be no straitjacket formula for fixing the quantum of maintenance to be awarded.
Some guidelines to be accounted while fixing the quantum of maintenance:
- Age and employment of parties– when the marriage is of long duration, where parties have endured the relationship for several years, this would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years
- Right to residence: The court observed that Section 17 of the Domestic Violence Act grants an aggrieved woman the right to live in the “shared household”. The right of a woman to reside in a “shared household” defined under Section 2(s) of the DV Act entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared household may not necessarily be owned or tenanted by the husband singly or jointly. Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household.
- Where wife is earning some income- courts has held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. with reference to the case of Shailja & Anr. v Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home.
- Maintenance of minor children-It should be a reasonable amount to be awarded for extra-curricular/coaching classes and not an overly extravagant amount which may be claimed. The education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.The living expenses of the child, would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be also factored in, while awarding child support.
- Serious disability or ill health: The court further held that serious disability or ill health of a spouse, child/children from the marriage/dependant relative who requires constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance. With reference to the case of Jasbir Kaur Sehgal v District Judge, Dehradun & Ors , court held that the following factors should be considered:(a) the status of the parties; (b) reasonable needs of the wife and dependant children; (c) whether the applicant is educated and professionally qualified; (d) whether the applicant has any independent source of income; (e) whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; (f) whether the applicant was employed prior to her marriage and whether she was working during the subsistence of the marriage; (g) reasonable costs of litigation for a non-working wife.
But the court had made clear out that factors laid down are not exhaustive and that judicial discretion is vested in the family courts to consider any other factor which may arise in the facts and circumstances of the case.
Overlapping jurisdiction –The Court said that it has become necessary to issue directions to overcome the issue of overlapping jurisdiction and to avoid conflicting orders being passed in different proceedings.In this regard directions were issued by the Court
- Where successive claims for maintenance are made under different statutes, the court would consider adjustment or set-off of the amount awarded in a previous proceeding while determining whether any further amount is to be awarded in the subsequent proceedings.
- It is mandatory for the applicant to disclose during the subsequent proceedings, details of the previous proceeding and the orders passed in such previous proceedings.
- If the order passed in the previous proceedings requires any modification or variation, the party would be required to move the concerned court in the same proceeding.
Lastly on the Enforcement and Date from which maintenance is to be awarded:
The court said that the right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant and the order of maintenance may be enforcedor executed under Section 28A of the Hindu Marriage Act, Section 20(6) of the Domestic Violence Act or Section 128 of CrPC. Further, an order for maintenance may be enforced as a money decree under the Code of Civil Procedure.