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Maintenance In All Cases To Be Awarded From The Date Of Filing Application: Supreme Court [Read Judgment]

Ashok Kini
4 Nov 2020 9:58 AM GMT
Maintenance In All Cases To Be Awarded From The Date  Of Filing Application: Supreme Court [Read Judgment]
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The Supreme Court has held that the right to claim maintenance under all enactments must date back to the date of filing the application.It would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C., the bench comprising Justices Indu Malhotra and R. Subhash Reddy observed in a judgment [Rajnesh vs. Neha] in which it issued...

The Supreme Court has held that the right to claim maintenance under all enactments must date back to the date of filing the application.

It would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C., the bench comprising Justices Indu Malhotra and R. Subhash Reddy observed in a judgment [Rajnesh vs. Neha] in which it issued exhaustive guidelines on payment of maintenance in matrimonial matters.

The court noted that Section 125(2) of the Code of Criminal Procedure provides that the Magistrate may award maintenance either from the date of the order, or from the date of application. It also noticed that there is no provision in the Hindu Marriage Act or the Domestic Violence Act which provides the date from which the maintenance is to be awarded. The Court observed that divergent views have been taken by the Family Courts as follows : first, from the date on which the application for maintenance was filed; second, the date of the order granting maintenance; third, the date on which the summons was served upon the respondent. Referring to many such judgments of the High Court, the bench said:

"Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application."

The court said that rationale of granting maintenance from the date of application is to enable the wife to overcome the financial crunch which occurs on separation from the husband. The court said:

"Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.". 
"The delay in adjudication was not only against human rights, but also against the basic embodiment of dignity of an individual. The delay in the conduct of the proceedings would require grant of maintenance to date back to the date of application."

Therefore the bench directed thus:

"It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. 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."

Enforcement of Maintenance Order

The bench also observed that the enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. 'If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law.", it said.

The court has also held that the order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI. "Striking off the defence of the respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court.", it directed.


Case: RAJNESH vs. NEHA [Cr. A No. 730 OF 2020 ]
Coram: Justices Indu Malhotra and R. Subhash Reddy 

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