Maintenance for wife and children: final and interim

What is the law’s position on maintenance for the wife and children, after a divorce? What happens if the courts take years to arrive at a final decision regarding maintenance? Can the wife and children avail of interim maintenance during pendency of the proceedings?

Section 125 of the Criminal Procedure   Code (CrPC) and Section 18 of the Hindu Adoption and Maintenance Act make   provision for maintenance for wife and children by the husband. However, given   the protracted nature of legal proceedings, the wife and children often have to   suffer tremendous hardship by the time the courts pass the final order granting   maintenance. The judgment in the recent case of Shail Kumari Devi versus Krishna   Bhagwan Pathak, reported as 2008 (10) SCALE 602, is important from the point of   view of the date from which maintenance is to be fixed and the grant of interim   maintenance during pendency of the proceedings.

Shail Kumari and Pathak were married   around 30 years ago. They had nine children. The youngest, Kumari Babli, is the   only child presently staying with the mother and entitled to maintenance. On   July 21, 1997, Shail Kumari and her daughter Babli filed for maintenance before   the chief judicial magistrate, Bhojpur, under Section 125 of the CrPC, on   grounds that the husband had failed to maintain his wife and daughter. In their   application for maintenance, they claimed Rs 500 per month for the wife and a   similar amount of Rs 500 per month for the daughter.

An upper limit of Rs 500 per month as   maintenance had been fixed under the CrPC provision. This unrealistic and   extremely low upper limit was removed by an amendment as late as 2001, and   discretion was conferred on the magistrate to decide on the amount to be paid as   maintenance. The amendment specifically mentioned that the magistrate could   grant interim maintenance during the pendency of proceedings over monthly   allowance.  

Shail Kumari and her daughter’s   application for maintenance under Section 125 of the CrPC (considered a speedier   remedy) remained pending with the court for over two years. On November 20,   1999, both wife and daughter filed an application requesting the court to grant   “interim” maintenance during pendency of the proceedings. The chief judicial   magistrate allowed the application and fixed interim maintenance at the rate of   Rs 300 per month for each of the applicants, with effect from February 12, 1998.   Finally, on September 3, 2001, after a lapse of four years since the first   filing of the application, the case was adjourned for final arguments — the   penultimate step before the court passed an order.

Meanwhile, family courts came to be   established and the case was transferred to the principal judge, family court,   Bhojpur.

According to the evidence, Pathak, the   husband, worked as a cashier with the State Bank of India and was drawing a   gross salary of around Rs 18,500. After deductions, the amount came to Rs 9,831   a month. Pathak retired from service in January 2006. His wife and daughter   filed a petition on September 12, 2006, for payment of maintenance arrears   amounting to Rs 11,600. On October 30, 2006, the court directed the husband to   pay the entire arrears amount in a lumpsum by the next date of hearing.  

After a lapse of over nine years, on   November 29, 2006, the family court finally directed the husband to pay   maintenance of Rs 2,000 per month to the wife, and Rs 1,000 per month to his   minor daughter Babli from the date of application for maintenance, that is, July   21, 1997. Pathak was also directed to pay the maintenance arrears within three   months.

Pathak approached the high court against   the order of the family court, Bhojpur. The high court reduced the maintenance   amount from Rs 2,000 to Rs 750 per month in the case of the wife, and from Rs   1,000 to Rs 750 per month in the case of the daughter. The high court also   directed that the maintenance amount would be payable to the wife and daughter   not from the date of application — July 21, 1997 — but from the date of the   family court’s order — November 29, 2006. Aggrieved by the reduction in amount   as well as denial of maintenance for a period of nine years, during which the   application was pending with the court, Shail Kumari and her daughter Babli   appealed to the Supreme Court.

It was argued on behalf of the wife and   daughter that the high court was wrong in reducing the amount fixed as   maintenance as well as in directing that maintenance be paid from the date of   the family court’s order and not from the date of the initial application.  

The submission on behalf of the husband   was that the family court was wrong in granting maintenance from the date of   application. It was urged that the granting of maintenance of more than Rs 500   per month by the family court to either wife or daughter was wrong, as, prior to   the 2001 amendment, the maximum amount permissible was Rs 500 per month. The   grant of interim maintenance for the period prior to the 2001 amendment was   submitted as non-permissible in law. On merit, it was argued that some of the   husband’s properties were with the wife who had also inherited land from her   father, and therefore the reduction in maintenance amount by the high court was   valid and did not merit interference by the apex court.  

The Supreme Court examined Section 125 of   the CrPC prior to and after the 2001 amendment. It noted that the amendment   removed the ceiling of Rs 500 and left the discretion of fixing a monthly   maintenance amount with the magistrate. Both prior to and after the amendment,   allowance is payable from the date of the order, but the court can direct   payment from the date of application for maintenance. The court observed that   prior to the 2001 amendment, Section 125 of the CrPC did not expressly empower   the magistrate to grant interim maintenance. However, equally, the provision did   not prohibit the grant of interim maintenance. Taking into account the social   purpose behind Section 125 of the CrPC — providing relief to deserted wives,   neglected children and aged parents — it held that by necessary implication the   provision conferred power on the magistrate to grant interim maintenance even   prior to the 2001 amendment. Applying the interpretation to the present case,   the apex court judgment upheld the granting of interim maintenance to the wife   and daughter for the period prior to the 2001 amendment.

The court observed that, according to   Section 125 of the CrPC, the magistrate can award maintenance payable from the   date of the order or, if he so directs, from the date of application for   maintenance. The judgment held that an express order from the magistrate was   necessary to award maintenance from the date of application, but that there was   no requirement for recording special reasons for the same. Reversing the high   court’s decision granting maintenance from the date of the order — November 29,   2006 — the Supreme Court’s judgment upheld the decision of the family court,   granting maintenance from the July 21, 1997 date of application.

However, the judgment held that in view   of the express ceiling of Rs 500 per month in Section 125 of the CrPC prior to   the amendment, the family court was wrong in law in granting more maintenance   even for the period prior to the 2001 amendment. Regarding the quantum, the   court observed that on merit the family court was not right in fixing Rs 2,000   per month as maintenance for the wife. The wife was living in a house that   belonged to the husband. She also received income from land that belonged to her   husband but was in her possession. In addition, she had inherited some land from   her father. Taking all this into account, the judgment directed that both Shail   Kumari and her daughter Babli were each entitled to maintenance of Rs 1,000 per   month for the period following the 2001 amendment.

To summarise: The judgment upholds the   power of the magistrate to grant interim maintenance even prior to the 2001   amendment. It also lays down that an express order from the magistrate is enough   for the grant of maintenance from the date of application, and that it is not   necessary to record special reasons for the same. However, under Section 125 of   the CrPC, a maintenance amount higher than Rs 500 per month cannot be granted   for periods prior to the 2001 amendment.