Increasing or Decreasing Maintenance in India | Supreme Court Jurisprudence
Increasing
or Decreasing Maintenance in India: Supreme Court Jurisprudence, Statutory
Provisions and Litigation Strategy
Blog by:
Jayprakash B. Somani,
Advocate, Supreme Court of India & IP,
Cell: PA 9322188701
www.jayprakashsomani.com
www.supremecourtlawfirm.com
1. The Basic Principle
Maintenance is not a punishment and is not
intended to make one spouse rich or the other destitute. The Supreme Court has
repeatedly held that the amount must be fair, reasonable and sufficient to
preserve dignity and meet reasonable needs, having regard to the parties’
circumstances and capacity to pay. There is no fixed mathematical formula
for determining maintenance.
The key question in an enhancement or reduction case
is:
What has materially changed since the earlier
maintenance order, and what reliable evidence proves that change?
2.
The Main Types of Maintenance
A. Maintenance under Section 144 BNSS, 2023
Formerly Section 125 CrPC, 1973
This is the principal summary remedy for:
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wife;
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divorced wife who has not remarried;
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legitimate or illegitimate minor children;
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major child suffering from physical or mental
abnormality;
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father or mother.
Important provisions
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Section 144(1), BNSS — entitlement to
maintenance;
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Section 144(2) — procedure and date from
which maintenance may be awarded;
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Section 144(3) — enforcement of
maintenance order;
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Section 146 — alteration in allowance due
to change in circumstances.
The corresponding former provisions were Sections 125
and 127 CrPC.
Enhancement
A person seeking increase should generally demonstrate:
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increased income of the payer;
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increased cost of living;
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increased educational expenses of children;
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medical expenses;
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changed housing expenses;
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changed circumstances of the claimant;
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inflation and deterioration in the real value of
the earlier amount.
Reduction
The payer may seek reduction where there is:
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genuine reduction in income;
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loss of employment;
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permanent disability;
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retirement;
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increased statutory family obligations;
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major change in the claimant’s independent
income;
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remarriage, where legally relevant;
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other material change in circumstances.
Mere assertion of financial difficulty is not
enough.
3.
Maintenance under the Hindu Marriage Act, 1955
Section 24 — Maintenance Pendente Lite
This applies during the pendency of matrimonial
proceedings under the Hindu Marriage Act.
The Court may grant:
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maintenance during the proceeding; and
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expenses of the proceeding.
It may be claimed by either spouse, depending
upon the statutory conditions.
The essential question is whether the applicant has no
independent income sufficient for support and necessary litigation expenses.
The Supreme Court has recently reiterated that Section
24 is discretionary and requires consideration of the statutory conditions and
relevant circumstances.
Section 25 — Permanent Alimony and Maintenance
The Court may grant:
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lump-sum payment;
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monthly or periodical payment;
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permanent alimony.
The Court may subsequently vary, modify or rescind
the order in appropriate circumstances, including a material change in
circumstances.
Important Factors
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income;
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property;
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conduct;
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needs;
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standard of living;
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duration of marriage;
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health;
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liabilities;
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dependent family members.
The Supreme Court has emphasised that Section 25
involves equitable and discretionary considerations, including the conduct of
the parties.
4.
Maintenance under the Protection of Women from Domestic Violence Act, 2005
Important provisions include:
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Section 12 — application to Magistrate;
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Section 17 — right to reside in shared
household;
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Section 18 — protection orders;
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Section 19 — residence orders;
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Section 20 — monetary relief;
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Section 22 — compensation and damages;
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Section 23 — interim and ex parte orders.
Section 20 — Monetary Relief
Monetary relief may include:
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loss of earnings;
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medical expenses;
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property damage;
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maintenance for the aggrieved woman and her
children.
A DV Act maintenance order may coexist with other
maintenance proceedings, but the Court must prevent double recovery for the
same period and same purpose.
5.
Hindu Adoptions and Maintenance Act, 1956
Important provisions include:
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Section 18 — maintenance of wife;
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Section 19 — maintenance of widowed
daughter-in-law;
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Section 20 — maintenance of children and
aged parents;
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Section 22 — maintenance of dependants;
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Section 23 — amount of maintenance;
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Section 25 — alteration of maintenance on
change of circumstances.
Section 23
The Court considers:
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status and position of parties;
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reasonable wants;
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justification for separate residence;
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value of the claimant’s property and income;
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number of persons entitled to maintenance.
6.
Other Important Statutory Remedies
Depending on the parties and applicable personal law:
Special Marriage Act, 1954
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Section 36 — alimony pendente lite;
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Section 37 — permanent alimony.
Muslim Women (Protection of Rights on Divorce) Act, 1986
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Section 3 — provision and maintenance;
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Section 4 — maintenance by relatives/Waqf
Board in appropriate circumstances.
Divorce Act, 1869
Relevant provisions include:
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Section 36 — alimony pendente lite;
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Section 37 — permanent alimony.
Parsi Marriage and Divorce Act, 1936
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Section 39 — alimony pendente lite;
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Section 40 — permanent alimony.
7.
Supreme Court's Central Framework: Rajnesh v. Neha
Rajnesh v. Neha
Citation: (2021) 2 SCC 324
This is the most important modern Supreme Court
authority on maintenance litigation.
The Court laid down comprehensive guidelines
concerning:
- overlapping
maintenance jurisdictions;
- disclosure of assets and
liabilities;
- determination of
quantum;
- date from which
maintenance should be awarded;
- enforcement
of maintenance orders.
The Court stated that maintenance is intended to
prevent destitution and preserve dignity, not to punish the payer. Relevant
factors include the parties' status, reasonable needs, independent income,
standard of living, sacrifices made for family responsibilities, actual income,
liabilities and dependent family members.
8.
The Supreme Court's Key Formula for Quantum
The Court does not apply a rigid formula such
as:
“Maintenance must always be 25% of salary.”
Instead, it examines the total circumstances.
Factors Supporting Enhancement
1. Increase in payer's income
Example:
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earlier salary: ?80,000 per month;
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current salary: ?2,00,000 per month;
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earlier maintenance: ?15,000 per month.
The increase in income alone may not automatically
justify a proportionate increase, but it is a strong factor.
2. Increased cost of living
Evidence may include:
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rent;
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school fees;
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medical expenses;
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transport;
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inflation;
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special educational needs.
3. Increased needs of children
A child's expenses may rise substantially due to:
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higher education;
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coaching;
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medical treatment;
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disability;
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relocation;
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special needs.
4. Concealed income discovered later
If the payer originally disclosed ?1 lakh monthly
income but later evidence shows:
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business profits;
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rental income;
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substantial investments;
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upcoming campaign
