Right To Maintenance: Why High Courts Should follow The Lead Taken By The Delhi High Court
Yuvraj Francis
5 Jun 2020 5:39 PM IST
Family Courts throughout India have faced issues pertaining to grant of maintenance. There is always a tussle to figure the accurate income of the parties while Courts consider granting maintenance under various personal laws, Section 125 Cr.P.C and the Domestic Violence Act. The term maintenance is defined, in Blacks Law Dictionary [6th Edn., pp. 953-54], as "the furnishing by one...
Family Courts throughout India have faced issues pertaining to grant of maintenance. There is always a tussle to figure the accurate income of the parties while Courts consider granting maintenance under various personal laws, Section 125 Cr.P.C and the Domestic Violence Act. The term maintenance is defined, in Blacks Law Dictionary [6th Edn., pp. 953-54], as "the furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc. particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child, or husband and wife." According to the Punjab & Haryana High Court in Jaspreet Singh Vs. Gurleen Kaur [CRM-M-36522/2017]; "The right to maintenance is not awarded as a punitive measure but to serve social cause to prevent the wife form being forced into vagrancy." Courts in India in most cases have taken a liberal approach to granting maintenance to wife and preventing the wife from undue suffering. The Supreme Court in Badshah vs Sou. Urmila Badshah Godse [(2014) 1 SCC 188] had observed that the "Provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from "adversarial" litigation to social context adjudication is the need of the hour." The Courts on various occasions have observed and the purpose of maintenance is not only to provide basic necessitates but also similar standard of living in her matrimonial home. The Delhi High Court in Jayant Bhargava Vs. Priya Bhargava [181(2011) DLT 602] had held that "It is settled position of law that a wife is entitled to live in a similar status as was enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it should not be a case that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation, poverty."
However, for Courts to grant appropriate maintenance to wife it is imperative that Courts are able to figure the accurate income of the husband and the cost of maintaining their standard of living. The issue is not only to prevent the husband from disclosing lower income but also to prevent the wife from claiming exaggerated or inflated income of the husband. The Supreme Court in Jasbir Kaur Sehgal vs. District Judge, Dehradun & Ors. [(1997) 7 SCC] had observed that in matrimonial disputes, there is an invariable tendency of the wife to present inflated or exaggerated income of the husband as a consequence of which some guess work on the part of the court is permissible. The Delhi High Court in Radhika Vs. Vineet Rungta [AIR 2004 Delhi 323] had stated that "Cases where the parties disclose their actual income are extremely rare and that experience dictates that a safer and surer method should be employed for coming to a realistic conclusion." The Madras High Court in Ashok Subramaniam vs. Srividhya [CMA No. 1354/1355 of 2018] had observed that "Maintenance is always dependent upon factual situation, the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court."
Therefore, it became important for Courts to evolve a mechanism by which the Court could figure the income of the parties and the cost to sustain their lifestyles. The lead to evolve such a mechanism was taken by the Delhi High Court in 2011 when it passed the Judgment in Puneet Kaur vs. Inderjit Singh Sawhney [2011(30) RCR (Civil) 271]. The High Court in the case directed the parties to file affidavits containing details such as Educational qualifications, Professional qualifications, Income, Brand of vehicle or mobile owned, Investments, Liabilities, instalments of different categories of loans, educational expenses of children, mobile bills, club membership fees, salary of domestic helps etc. However it was in 2015 when the Delhi High Court via its Judgement in Kusum Sharma Vs. Mahinder Kumar Sharma [2015(5) RCR (Civil)] issued directions that affidavits shall be filed by the parties in a format of "Affidavit of assets, income and Expenditure", forming part of the judgement as Annexure 'A'. The High Court directed that affidavits should be filed in prescribed format only. The Delhi High Court in 2017 modified the 2015 Kusum Sharma Judgement [2017(241 DLT 252] and the format of the Affidavits required to be filed by the parties as prescribed in Annexure 'A' was modified and fresh format of affidavits was circulated as Annexure 'A-1'. It was further held that it shall not be mandatory to file the requisite affidavits along with the petition and written statement, but the same are required to be filed simultaneously by the parties immediately after the completion of the pleadings. The High Court further granted liberty to Family Courts in Delhi to determine the nature and extent of information/documents necessary and shall direct the parties to disclose such relevant information and documents to determine their true income. The High Court also granted exemption in appropriate cases such as cases belonging to the lowest strata of society or of a litigant who is permanently disabled/paralytic, the Court in such cases may dispense with requirement of the filing of the affidavit or modify the information required. The High Court through its various modifications in the Kusum Sharma judgement had evolved a mechanism for determining the actual income of the parties in all matrimonial cases including cases under Hindu Marriage Act, 1955, Protection of Women from Domestic Violence Act, 2005, Section 125 Cr.P.C., Hindu Adoption and Maintenance Act, 1956, Special Marriage Act, 1954, Indian Divorce Act, 1869, Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.
The guidelines issued by the Delhi High Court are today followed by all the family Courts within its jurisdiction. However, other High Courts have not fully adopted the mechanism evolved by the Delhi High Court. The Punjab & Haryana High Court is the only other High Court that has directed all the family courts in Punjab, Haryana and Chandigarh to follow the directions issued in the Kusum Sharma Judgements and prescribed the Affidavit of assets, income and expenditure to be filed mandatorily though its judgment passed in Jaspreet Singh Vs. Gurleen Kaur [CRM-M-36522/2017]. The Punjab and Haryana High Court granted liberty to family courts within its jurisdiction to modify the format and the directions as may be deemed necessary in the facts and circumstances of the case. The Madras High Court in Shanmugasundaram vs Sudha [CMA/CMP -726/5894 of 2016] observed that it is high time that the procedure laid down by the Delhi High Court is a model to be emulated by all the Courts dealing with matrimonial disputes. The Madras High Court upheld the Family Court, Coimbatore, maintenance order which was granted after considering "essential factors" such as considering the nature of job done by the husband, his earnings from his business and personal earnings by conducting yoga classes. However, the Madras High in Shanmugasundaram judgement refrained from directing Family Courts in Tamil Nadu and Puducherry from making filing of income affidavits mandatory. Madhya Pradesh High Court in Sudhakar Kumar Vs. Navita Kumar [M.Cr.C. NO. 17494/2017] upheld the Order for maintenance under Section 125 Cr.PC based on the income particulars ordered to be filed by both the parties by the Trial Court. The High Court did not find any abuse in the process of law if the particulars of income was demanded by the Court if they are relevant and helpful to the Court and if it also helps in proper adjudication of the dispute between the parties. The Gujarat High Court in Whether this case involves A vs. Palvinder Singh Sampuran Singh Oberoi [R/CR.MA/24632/2015] had modified the maintenance granted to the wife after the wife submitted income tax returns obtained under the RTI Act on the basis of the Kusum Sharma Judgement which had held that I.T. Returns, annual returns of assets, investments, etc. though were declared as private or personal or third party information, however, as far as spouses are concerned, they are not private, personal or third party information particularly in the context of matrimonial disputes, and especially for maintenance purpose.
The Affidavit of assets, income and expenditure introduced by the Delhi High Court was also prescribed by the Supreme Court in Shalu Ojha Vs. Prashant Ojha [(2015) 2 SCC 99]. The Supreme Court directed the wife to file her income affidavit which would be in the format prescribed in the judgement of the Delhi High Court in Kusum Sharma. The Supreme Court pawed way for High Courts to draw inspiration and introduce income affidavits introduced by the Delhi High Court as legitimate and time saving method for granting maintenance. However, Majority of the High Courts have not followed yet.
