Maintenance/Alimony: The term Alimony signifies maintenance in case of separation. It is of two types- interim alimony and permanent alimony. Maintenance during the pendency of the proceeding in a case as well as to pay the wife”s expenses of proceedings is known as interim maintenance. The maintenance given to a wife on dissolution of marriage or passing a decree of nullity is called permanent alimony.
Kinds of ancillary reliefs:
The matrimonial statute postulates the following kinds of ancillary reliefs:
- Order of maintenance of needy spouse. All statutes, except the Hindu Marriage Act 1955, provides maintenance to the wife alone. Only HMA stipulates maintenance for the husband as well.
- Orders for custody, maintenance and education of children.
- Settlement of spousal property. In this regard, the provision in the matrimonial statutes is different.
The ancillary reliefs can be claimed not merely in divorce but also in case of divorce but also in nullity, judicial separation and restitution proceedings.
Ancillary orders can be made at three stages:
- During the pendency of proceedings
- At the time of passing of a decree in a matrimonial case
- Subsequently, at any time after the passing of a decree in the case.
CUSTODY, MAINTENANCE AND EDUCATION OF CHILDREN
The most sensitive and important problem relates to the custody, maintenance and education of children. Section 26 of the HMA regulates the provisions relating to Custody and maintenance of children. Section 26 says decree for the maintenance of minor children can be passed by the court. While deciding upon the custody of the child, the wishes of the child are considered.
The HMA uses the words ”minor children” but does not specify as to who are minor children. Normally, the definition in Indian Majority Act 1875 will apply. A person ordinarily remains a minor till he attains the age of 28 years. Ordinarily, a child who has completed the age of 18 is not entitled to maintenance. The children of a void and voidable marriage are included in the expression marriage.
The courts will have jurisdiction to pass orders in respect of children if it has jurisdiction on the main petition. From the date of filing of the petition in a matrimonial case till its termination, the court will have the jurisdiction to pass interim orders.
1) Interim orders for custody etc. of children i.e. an order may be passed at any time from the date of filing the petition and before its final disposal.
2) Permanent orders of custody etc. of children. Such orders may be passed:
- At the time of passing of the decree in a matrimonial case.
- Subsequent to the passing of the decree in a matrimonial case. The question may come up in two ways:
- If the earlier, or at the time of passing of the decree, no prayer was made for custody etc. of children, a fresh application by petition may be made subsequently at any time.
- When orders have already been made, an application may be made for revoking, suspending or varying such orders.
Custody of Children: Custody is dwindling right which the court will hesitate to enforce against the wishes of the child and more so the older he is. It starts with the right of control and ends with little more than advice.
When parents separate from each other, obviously the custody of the child is with the single parent. But the child cannot be absolutely cut off from the access of the other parent. The normal principle is that the children should grow up in the full knowledge of both parents. Most Indian Statutes do not specifically provide for access but access is a part of the custody. The court has the power to pass order regarding both access and custody. While passing the order of access the court will have regard to the welfare of the child. And if the child is mature enough then it will always consider the wishes of the child.
Under the present day law the court would take into consideration the following:-
- Welfare of the child which of is the paramount consideration
- Wishes of the parents,
- Wishes of the Child
- Age and sex of the child
The court is also free to consider any other matter which helps it to determine the question in the interest of the child.
BAR ON MATRIMONIAL RELIEF
The theory lays down that even if the petitioner has been able to establish the guilt of the respondent, he cannot get matrimonial relief prayed for if he is not able to establish that he is innocent. Generally, bars are applicable in case of divorce by mutual consent or irretrievable breakdown of the marriage. The conceptual justification for bars is drawn from the equitable principle that he, who seeks equity, must come with clean hands. The purpose of divorce law should not only be to punish the guilty party but also to do justice. The delinquent spouse should be punished only when the other spouse is innocent and in no way contribute to the offence of the respondent.
Section 23(1) of the Hindu Marriage Act contains the bars on matrimonial reliefs. The various bars under the Hindu Marriage Act are:
- Accomplice/ Accessory: – The term is a term of Criminal Law. It means an active participation to the crime of the respondent. Thus, an act, which directly aids or abets or commands or procures the respondent”s adultery, is accessory. Accessory is a bar when a petition is filed on the ground of Adultery under HMA.
- Connivance: – The bar also operates on the party if there is a collusion or connivance in an act of adultery, though the bar of collusion is a discretionary relief. Connivance means the same as accessory, but in connivance, there is no active participation, but there is a tacit permission. To constitute connivance, an express or implied consent to the respondent”s act is essential. When one stimulates or tolerates a situation in which seeds of adulterous association are sown and allows the seeds to germinate by his passive tolerance and when they blossom into adultery, one is to blame himself.
- Collusion: The distinction between connivance and collusion is not easy. In a case where the conduct of a spouse induces the other to commit adultery, it is collusion. If there is a corrupt motive in tolerating adultery, it is connivance. However, if the conduct is such that adultery is the probable conclusion without any corrupt motive, it would be collusion. Under English law, collusion is also defined as an agreement, arrangement or understanding, express or implied, between the parties or their agents whereby matrimonial relief is designed to be obtained, where in fact no ground or sufficient ground exists, by deceiving the court by misrepresentation, exaggeration or suppression of facts or by cooking up entirely false evidence.
- Improper delay: Matrimonial remedies are civil remedies, but no time period of limitation is prescribed for it. However, the equitable principle of latches applies in this case: delay defeats equity. Inordinate delay in filing proceedings is a bar to all reliefs under the Hindu Marriage Act, e.g. a petition for annulment of marriage on the ground of pre-marriage pregnancy or for annulment of marriage on the ground of consent, being obtained by force or fraud, cannot be filed after expiry of one year from the date of marriage in the first case, and from the date of discovery of the fraud or cessation of force in the later case, is filed. In case of void marriages, delay depends on the facts and circumstances of each case.
- Condonation: (Resumption or continuance of marital intercourse after the full knowledge of respondent”s guilt is condonation). Condonation is a technical word which means and implies a conditional waiver of the right of the injured spouse to take matrimonial proceedings. Condonation essentially implies two things, (a) forgiveness of the offence after knowledge of material fact, (b) Reinstatement of guilty spouse to his or her original place. Under the HMA, condonation is a bar to matrimonial relief on the ground of adultery and cruelty.
Apart from the above mentioned, there is no other ground on which relief should be refused under the HMA. However, other matrimonial statutes have other reliefs.
PERMANENT ALIMONY AND MAINTENANCE (SECTION 25)
The object of providing maintenance to a wife on the dissolution of marriage is that she should no be left a destitute after divorce. The principle was extended to a decree of nullity also. In case of a judicial separation and restitution of conjugal rights, the marriage subsists and therefore, there is all the more reason for making provisions for alimony on the decree being passed.
Duration: Generally a decree of permanent alimony remains valid till the applicant remains unmarried. Since a decree of restitution of conjugal rights or judicial separation does not dissolve the marriage, the words “applicant remains unmarried” are inapplicable. The basis of the fact is that the claimant has no means sufficient to maintain her. The fact that she is educated and has potential to maintain herself is immaterial. The statute clearly specifies orders for permanent maintenance and alimony beyond the life of the applicant. The court may not necessarily rescind the order of maintenance in case the wife is unchaste or is remarried, but it may modify or vary in certain circumstances e.g. if a wife having children remarries a poor man, and he does not have sufficient means to maintain her children.
If a gross sum has been ordered to be paid, the order for such payment cannot be rescinded, modified or varied. Modifications, variations, and recessions do not apply when a lump sum is awarded; they apply only in case of periodical payments. The death of the applicant terminated all such orders. In case of unsecured payments, death of the other party also terminates such orders.
Application for permanent alimony is made the same way as it is made for interim maintenance.
Consideration for fixation of permanent Alimony:
- Income and other property of the parties
- Conduct of the applicant and non-applicant
- Any particular or special circumstances
Some other factors related to maintenance:
- A female can claim maintenance for herself but not for the unborn child because due to natural or unforeseen circumstances, the birth of a child alive cannot be taken for granted. However, she can claim maintenance after the birth of the child.
- There is no time limit for claiming maintenance.
- Right to maintenance is a right granted and protected by law and thus, cannot be dismissed by way of a contract.
- A lady cannot be deprived of maintenance on the ground that she is highly educated, when she is unemployed and unable to support herself.
- A persistent refusal to have sex amounts to cruelty and entitles a lady to claim maintenance
- A lady is entitled to stay separately and yet claim if her husband is suffering from an infectious form of leprosy.
Enforcement: Orders of alimony and maintenance are enforceable under the Code of Civil Procedure 1908. These may be enforced by attachment and sale of property of the other party (the Judgment-debtor). The JD can also be put in civil prison. The court also has the power to issue an injunction, restraining the other party from disposing of his property.
There can be an injunction, issued against a husband from alienating his property in order to avoid maintenance. The Provident Fund cannot be charged for payment of the amount of alimony or maintenance (The PF Act). Similarly, the wife”s right to the amount of maintenance is not a deductible debt from the estate of the husband unless it has been so decreed.
Appeal: The order of permanent alimony is a final order, irrespective of the fact that it can be modified. The appeal lies to the Higher Court.
INTERIM MAINTENANCE (SECTION 24 OF HMA)
Only the Hindu Marriage Act and the Parsi Marriage and Divorce Act provides that either spouse may claim interim maintenance, while the other statutes provide that only the wife can claim it.
Interim maintenance may be claimed in all four matrimonial causes, namely nullity of marriage (both void and voidable marriages), judicial separation, dissolution of marriage and petition for restitution of conjugal rights.
The provision for interim maintenance includes:
- Personal maintenance of the claimant and
- Expenses of the proceedings.
Who can apply for maintenance?
Under the HMA 1955 and Parsi Marriage & Divorce Act 1936, the needy spouse, husband/wife can apply for interim maintenance. Under most other statutes, only the wife can apply for interim maintenance. The applicant has to show that she/he has no income sufficient for her maintenance and support and she has no means to meet the expenses of the proceedings. Once the averments of the applicant are established prima facie, the court will pass the order requiring the other party to pay the applicant some monthly or periodic monthly or periodic payment for maintenance and some lump sum amount to meet the expenses of the proceedings.
Generally, it is the duty of the court to decide the interim application as expeditiously as possible and in every case before the trial, or in any event before the decision in the petition. It is immaterial that the applicant has some independent property movable or immovable. If the property does not yield any income, it will not be considered. It will be considered only if the property yields income. The money received by the applicant from friends or relatives as charity or goodwill also cannot be considered.
However, the grant of interim maintenance is a discretionary relief. But discretion is a judicial discretion, which is to be exercised very prudently.
This application should be made at the earliest opportunity. It can be made at the time of filing of the petition. When an appeal is filed against the decree of the trial court, during the pendency of the appeal, interim maintenance can be claimed. Interim maintenance can be allowed from the date of service of summons, both by trial court or appellate court irrespective of the date when the application is made.
Procedure for Application of Maintenance
The proceedings for interim maintenance are initiated by an application made to the matrimonial court where the main petition is filed. The rules provide that, in the application, the applicant should state his average monthly income as well as of the other party, sources of these incomes, particulars of movable and immovable properties, owned by either party, the number of dependants and their age and relationship. Every application must be supported by an affidavit. However, absence of affidavit or non-furnishing of the aforesaid details in the application does not affect the jurisdiction of the court and the court may direct the parties to furnish the particulars. An application for maintenance can be filed at any of the following places: (a) where the husband resides; (b) where the wife resides; (c) where the husband last resided with the wife or, as the case may be, with the mother of the illegitimate child.
Income in section 24: Income, even in its widest amplitude, could not include capital assets like lands and hereditaments and could include the return, accruing from those assets. It should be noted that the legislature has used the word “income” and not “property.” There is a deliberate omission of the word “property” and hence it cannot include any assets while computing income. Any property which is the subject-matter of a suit or subject to partition between brothers cannot be taken as an income-yielding property.
Enforcement: A maintenance order can be enforced like any other order of the Civil Procedure Code.
What are the criteria for determining the quantum of maintenance?
These are the following factors for determining the quantum of maintenance:
- The position and the status of the parties
- The reasonable wants of the claimant
- If the claimant is living separately whether the claimant is justified in doing so;
- The value of the claimant property and any income derived from such property; or from the claimant’s own earnings from any other source;
- The number of persons entitled to be maintained.
The maintenance can be claimed by the petitioner or the respondent of the petition. While deciding an application for interim maintenance, the court takes into consideration the following circumstances:
- Position and the status of the parties.
- Reasonable wants of the claimant (food, shelter etc.)
- Income of the claimant.
- Income of the opposite party
- Number of persons dependant on the opposite party.