Family Dispute

In a historic judgement, Supreme Court provides guidelines for deciding compensation and maintenance in matrimonial cases

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Citation of the matter: CRIMINAL APPEA L NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018).

Referred Sections in the Judgement:

 Section 125 and 128 in The Code of Criminal Procedure, 1973

Key happenings in the matter Chronologically:

1.Family Court: (24.08.2015)

The Wife (Neha) first filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). The Family Court awarded her an Order for interim maintenance of Rs.15,000/- per month to Wife starting from 01.09.2013 and Rs.5,000/- per month to their son starting from 01.09.2013 to 31.08.2015 and Rs.10,000/- per month from 01.09.2015 till further orders.

2. Bombay High Court- Nagpur Bench (14.08.2018)

The above order was challenged by the husband as he was unemployed and could not pay the maintenance amount as directed by the Court. He challenged by way of a Criminal Writ Petition No.875/2015 before Bombay High Court, Nagpur Bench. High Court dismissed the Writ Petition dated 14.08.2018 and affirmed the Order of the Family Court.

3. Supreme Court: (2020)

Husband appealed against the High Court’s judgement in the Hon’ble Supreme Court of India. The Supreme Court directed the Husband to pay the entire arrears of maintenance @Rs.15,000/- per month within a period of 12 weeks from the date of judgment and to comply with all the orders u/s 125 of CrPC. In addition to this, Supreme Court observed that this application of interim maintenance was pending before the court for 7 years now and Courts could not pass orders for enforcement against the successive applications filed by the Wife.

For the above purpose, Supreme Court provided for framing of guidelines on the issue of maintenance, which would remove issues of  overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read complete Judgement:     https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf

 

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How much should be the Maintenance to the Spouse? Supreme Court Decided in its judgement.
Family Dispute

How much should be the Maintenance to the Spouse? Supreme Court Decided in its judgement.

Case No: CRIMINAL APPEAL NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018)

 

Referred Acts in the Judgement:

  • The Code of Criminal Procedure (CrPC), 1973
  • The Protection of Women from Domestic Violence Act (DVA), 2005
  • Hindu Marriage Act (HMA), 1955
  • Special Marriage Act (SMA), 1954
  • Hindu Adoption and Maintenance Act (HAMA), 1956

 

Summary of the Case:

The Wife (Neha) filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). Family Court granted her a favourable Order of Rs.15,0000/- p.m. and Rs.5,000/-p.m. to their child to be paid by the Husband (Rajnesh). This Order was challenged by the Husband by way of a Criminal Writ Petition in Bombay High Court (Nagpur Bench) wherein the Court affirmed the Order of the Family Court and dismissed the Criminal Writ Petition. Husband lastly appealed to the Supreme Court. The Hon’ble Court awarded additional costs and relevant Order in maintenance of the Wife and their son by the Husband and also provided detailed guidelines on the third issue amongst the five (5) problems mentioned in the judgment that is issue of criteria for determining quantum of maintenance. 

 

Criteria for Determining Quantum of Maintenance:

Why a spouse (husband or wife) seek maintenance? The purpose of maintenance is to save either of the spouse from financial crisis and tough time away from their marital home. They too deserve a better life and should not face hardship just because their marriage got failed. Hence, the laws provided for maintenance are gender-neutral i.e. in the eyes of law both  husband or wife are equal and the maintenance amount(quantum)  should be decided neutrally.    Courts have not prescribed any set formula in determining the quantum (amount) of maintenance.

Hon’ble Supreme Court by way of this judgment determined the factors which should be identified and kept in consideration while determining the quantum of maintenance including a) status of the parties;

b) Reasonable needs of the wife and dependent children;

c) Whether the applicant is educated and professionally qualified;

d) Whether the applicant has any independent source of income;

e) Whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home;

f) Whether the applicant was employed prior to her marriage;

g) Whether she was working during the subsistence of the marriage;

h) Whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; and

i) Reasonable costs of litigation for a non-working wife.

Apart from the factors stated above, Supreme Court also provided for additional factors in determining the quantum of maintenance including:

a) Age and employment of parties;

b)  Right to residence (shared household by the couple);

c) Where Wife is earning some income; maintenance of minor children; and

d) Serious disability  ill health of her, child/ren, family members and relatives, if any.

 

To read the complete judgement:                   https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf

Now  spouse (husband or wife) can claim maintenance from the date on which the application for maintenance was filed: Supreme Court
Family Dispute

Now spouse (husband or wife) can claim maintenance from the date on which the application for maintenance was filed: Supreme Court

Case No: CRIMINAL APPEAL NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018)

Referred Acts in the Judgement:

  • The Code of Criminal Procedure (CrPC), 1973
  • The Protection of Women from Domestic Violence Act (DVA), 2005
  • Hindu Marriage Act (HMA), 1955
  • Special Marriage Act (SMA), 1954
  • Hindu Adoption and Maintenance Act (HAMA), 1956

 

Summary of the Case:

The Wife (Neha) filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). Family Court granted her a favourable Order of Rs.15,0000/- p.m. and Rs.5,000/-p.m. to their child to be paid by the Husband (Rajnesh). This Order was challenged by the Husband by way of a Criminal Writ Petition in Bombay High Court (Nagpur Bench) wherein the Court affirmed the Order of the Family Court and dismissed the Criminal Writ Petition. Husband lastly appealed to the Supreme Court. The Hon’ble Court awarded additional costs and relevant Order in maintenance of the Wife and their son by the Husband and also provided detailed guidelines on the fourth issue amongst the five (5) problems mentioned in the judgment that is issue of date from which maintenance to be awarded. 

In this Judgement Hon’ble Supreme Court observed and analysed all the precedents and regulatory frameworks used to decide a date from which maintenance can be awarded.

 

What should be the date from which Maintenance to be Awarded?

Hon’ble court observed that since there is no uniform regime and there are multiple practices adopted by the family courts across the country to decide the date from which the maintenance can be awarded. Hon’ble court also observed that there are three possibilities mostly adopted as the maintenance date:

a) Date on which the application for maintenance was filed;

b) Date of the order granting maintenance;

c) Date on which the summons was served upon the respondent.

 

Hon’ble court observed various precedent & judgements from different family courts and reached to the conclusion that family matters take a lot of time for their disposal and this delay is not in favour of justice and against the human rights & basic dignity of the individual.

 

Hon’ble court also provided the rationale for the above direction that it will enable the wife to survive  the financial tough time because if a dependent spouse loses its financial strength then it became very challenging to represent themselves before the court.  

 

To bring uniformity and consistency in the orders passed by all the Courts Hon’ble Supreme Court’s direction is very clear that the date on which  the maintenance application is filed will be considered as the date from which Maintenance can be awarded.  Hon’ble court also observed that 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.  

 

Read the judgement here:                   https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf

In a historic judgement, Supreme Court provides guidelines for deciding compensation and maintenance in matrimonial cases
Family Dispute

In a historic judgement, Supreme Court provides guidelines for deciding compensation and maintenance in matrimonial cases

Citation of the matter: CRIMINAL APPEA L NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018).

Referred Sections in the Judgement:

 Section 125 and 128 in The Code of Criminal Procedure, 1973

Key happenings in the matter Chronologically:

1.Family Court: (24.08.2015)

The Wife (Neha) first filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). The Family Court awarded her an Order for interim maintenance of Rs.15,000/- per month to Wife starting from 01.09.2013 and Rs.5,000/- per month to their son starting from 01.09.2013 to 31.08.2015 and Rs.10,000/- per month from 01.09.2015 till further orders.

2. Bombay High Court- Nagpur Bench (14.08.2018)

The above order was challenged by the husband as he was unemployed and could not pay the maintenance amount as directed by the Court. He challenged by way of a Criminal Writ Petition No.875/2015 before Bombay High Court, Nagpur Bench. High Court dismissed the Writ Petition dated 14.08.2018 and affirmed the Order of the Family Court.

3. Supreme Court: (2020)

Husband appealed against the High Court’s judgement in the Hon’ble Supreme Court of India. The Supreme Court directed the Husband to pay the entire arrears of maintenance @Rs.15,000/- per month within a period of 12 weeks from the date of judgment and to comply with all the orders u/s 125 of CrPC. In addition to this, Supreme Court observed that this application of interim maintenance was pending before the court for 7 years now and Courts could not pass orders for enforcement against the successive applications filed by the Wife.

For the above purpose, Supreme Court provided for framing of guidelines on the issue of maintenance, which would remove issues of  overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read complete Judgement:     https://main.sci.gov.in/supremecourt/2018/37875/37875_2018_39_1501_24602_Judgement_04-Nov-2020.pdf

 

Unmarried major Daughter if Physically Or Mental sound is Not Entitled To Claim Maintenance From Father U/s 125 Of CrPC: Supreme Court.
Family Dispute

Unmarried major Daughter if Physically Or Mental sound is Not Entitled To Claim Maintenance From Father U/s 125 Of CrPC: Supreme Court.

Referred Sections in the Judgement:

 

Case number: CRIMINAL APPEAL NO. 615  of 2020 (arising out of SLP (Crl.) No.8260/2018)

  • Section 125 in The Code Of Criminal Procedure, 1973:
  • Section 20 in The Code Of Criminal Procedure, 1973 read with Section 3(b)
  • Section 482 in The Code Of Criminal Procedure, 1973

Key happenings in the matter Chronologically:

1. Judicial Magistrate: (16.03.2011)

This matter was first filed u/s 125 CrPC claiming maintenance by Ms Abhilasha’s mother  (Abhilasha  is the one who filed the current matter in Supreme Court) from her husband (father of Abhilasha) for herself and her three children (one of them was Abhilasha). The learned Judicial Magistrate by their judgment dated 16.02.2011 dismissed the application under Section 125 allowed the grant of maintenance for Abhilasha till she attains majority.

2. Session Judge: (17.02.2014)

The above judgement was challenged before the court of Session Judge. This was dismissed by the learned Additional Sessions Judge by order dated 17.02.2014 and the Hon’ble Judge midified the order  and said that Abhilasha  shall be entitled to maintenance till 26.04.2005 when she attains majority.

3. Punjab Haryana High-Court (16.02.2018)

The above order was challenged through an application under Section 482 Cr.P.C. which was was filed before the  Punjab Haryana, High court. High Court through its judgment dated16.02.2018 dismissed the application filed under Section 482 Cr.P.C. and said that previous both courts were correct in their judgement and said that Abhilasha was entitled to get maintenance till she is attaining majority and not thereafter since she is not suffering from any physical or mental abnormality or injury. High Court also said that in such a situation when a child, who though has attained majority but is unable to maintain itself only then is entitled to get maintenance.

4. Supreme Court: (2020)

Abhilasha Appealed against the High Court’s judgement in the Hon’ble Supreme Court of India. The Supreme Court also dismissed the appeal and confirmed that Abhilasha is not entitled for maintenance from here father. Hon’ble Supreme Court also reaffirm that under Section 125 of Cr.P.C an unmarried Hindu daughter can claim maintenance from her father till she is married or attained majority.  If she proves that that she is unable to maintain herself only in that situation she can claim maintenance.

Read the complete judgement here: 

https://main.sci.gov.in/supremecourt/2018/34880/34880_2018_35_1501_23965_Judgement_15-Sep-2020.pdf

Who gets the child’s custody anyway?
Child Custody

Who gets the child’s custody anyway?

It is nerve-wrecking for me to even think about the agony couples suffer while their marriage falls apart. But it pains us so much more to imagine the suffering their child experiences in the process. Yes, you read it right, we are talking about the painful process of getting divorced from your spouse and the struggle thereafter of getting the custody of your child(ren). The whole journey of separation is ugly but settling the matter of child custody is even uglier. While amicable resolution is a possibility, in reality it is farfetched considering the relations between two adults have already turned bitter due to irreconcilable differences and sometimes inflated egos.

This makes us ponder over the first thought that would possibly come in the minds of divorced parents – who gets the child’s custody after separation? There could be reasons for which each parent would want to win the custody of the child after divorce. Division of parental property, financial support for child’s education, good upbringing, safety and maintenance, visit rights, alimony, comfort with the child, right to take decisions with regard to child’s life, etc. are some that we could imagine. They would hire the best child custody lawyer to win the custody and block it for the other parent. However, as per the Indian child custody law, both parents have equal rights over the child even after their legal separation. The custody of the child who is less than 18 years in age only implies, with which parent the child will physically stay. One parent winning the custody does not mean that the other parent seizes to be the parent of the child and loses all rights over the child. The child custody law clearly states that irrespective of their marriage being annulled, they continue to be the natural guardians of the child. In other words, the custodial parent becomes the primary caretaker and the non-custodial parent retains the right to meet the child.

People Also Read This: Child’s wish & will is important in a Child Custody matter: Hon’ble Supreme Court

In most of the cases in India, the custody of the child is granted, by the family court, to one parent and the access of child is granted to both of them. Data clearly shows that out of around 90 cases in a particular year, the custody of the child has been granted to fathers in only 2 cases. What does this signify? Do mothers have an upper hand in the child custody cases in India? No, despite data favouring the mothers, it is not the case. Many-a-times fathers also believe that they can claim the custody once the child attains a particular age. However, this is nothing more than a myth, a disbelief that many continue to live with.

It has been evident in several landmark judgements that the courts have given high importance to the best interest and the ‘right of the child’ compared to the ‘right of a parent’ than anything else while assigning the custody after divorce to a particular parent. However, there may be exceptions or special circumstances that courts consider on case-to-case basis. For example, a) in case a child is less than 5 years old, the custody is usually given to the mother, b) generally father gets the custody of older boys and mother is given the custody of older girls and c) courts also consider the choice of the child who is above the age of 9 years.

Types of Child Custody

It brings us to a point where it becomes imperative to throw light on the types of child custody allowed by Indian law. It can be one of the following kinds:

  • Physical Custody – where the child is handed over to the custodial parent for living and the other parent is allowed to visit, meet and interact with the child at regular intervals.
  • Joint Custody – where child lives with both parents on rotational basis and duration of child’s stay may vary from several days to weeks to months based on mutual agreement between the separated parents.
  • Sole Custody – where the child is handed over entirely to one parent in case the court finds the other parent to be abusive, unstable, offensive or incapable of upbringing the child.
  • Third Party Custody – where a guardian or third person gets the custody of the child from court instead of the biological parents. This is also often termed as non-parental custody.

Those who read this Article also Consulted a Lawyer about Child Custody process in India.  

Child Custody Laws In India

We must also briefly know legal provisions that are applicable. In India, the Guardian and Wards Act 1890 has provisions related to child custody after divorce. At the same time, India is a vast nation with diverse religions and there are corresponding laws to deal with separation and child custody. The legal provisions that exist in the Indian Constitution based on the religion we belong to are:

  • Custody under Hindu Law – which has provisions under the Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38) and the Hindu Minority and Guardianship Act 1956.
  • Custody under Muslim Law – which allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
  • Custody under Christian Law – which allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.
  • Custody under Parsi Law – which allows for child custody under the Guardian and Wards Act 1890 and gives high importance to welfare of the child.

People Also Read This: Inheritance Rights of Grandchildren in India

It is already a nightmare for parents who are beleaguered with separation. Adding to woes, is the complications of getting the custody of their biological child(ren). It is a battle that none would want to lose. Imagine yourself in this situation where you are looking for information on how decisions are taken and judgements granted with respect to child custody after divorce. The best way is to contact a child custody lawyer who not only can guide you in the process but sail you through with bare minimum stress. 

चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय
Child Custody

चाइल्ड कस्टडी की मामलों में बच्चे की इच्छा भी बहुत महत्वपूर्ण: सर्वोच्च न्यायलय

Case: Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Section 17(3) of the Guardian & Wards Act 1890

17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will".

Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020) केस जहाँ Guardian & Wards Act 1890  की धारा 17(3) को समक्ष रखते हुए माननीय सर्वोच्च न्यायालय ने ये माना की चाइल्ड कस्टडी की मामले में नाबालिग की इच्छा भी सामान रूप से महत्वपूर्ण है तथा उसकी वरीयताओं पर भी विचार किया जाना चाहिए खास कर जब वो एक ऐसे उम्र में हो जहां उसमे अपनी पसंद और नापसंद की बारे में पर्याप्त जानकारी हो तथा वो भी अपनी वरीयता की अनुसार चुनाव करने योग्य हो.

सुप्रीम कोर्ट की तीन जज की बेंच जिसमे न्यायमूर्ति यु यु ललित, न्यायमूर्ति इंदु मल्होत्रा तथा न्यायमूर्ति हेमंत गुप्ता थे उन्होंने एक अत्यंत महत्वपूर्ण फैसले में एक नाबालिग बालक की कस्टडी उसके पिता को प्रदान की जो की नैरोबी, केन्या  में रहते है।

यह क़ानूनी लड़ाई लगभग दस साल चली जिसमे आदित्य (वह नाबालिग बालक जिसकी कस्टडी की लिए ये केस था) की कस्टडी की लिए उसके माता पिता ने परिवार कोर्ट से ले कर सुप्रीम कोर्ट तक ये कठिन कनूनी राह तय की तथा अंततः सुप्रीम कोर्ट ने आदित्य की सम्पूर्ण कस्टडी उसके पिता को प्रदत्त की।

यह जानना भी बेहद रोचक है की इस लम्बी और कठिन क़ानूनी लड़ाई की दौरान माननीय न्यायमूर्ति आदित्य से व्यक्तिगत रूप से अपने चैम्बर में कई बार मिले और यह जानने की कोशिश करी की आदित्य की व्यक्तिगत राय क्या है तथा उसकी वरीयता में उसके माता या पिता में उसकी अधिक नज़दीकी किसके साथ है। इस प्रकार की अनौपचारिक बातचीत से माननीय न्यायमूर्ति संतुष्ट हुए की बालक की समझ और वरीयता में वो अपने पिता से ज्यादा करीब था तथा उसकी इच्छा अपने पिता के साथ रहने की थी।

माननीय सुप्रीम कोर्ट ने अपने फैसले में स्पष्ट तौर Guardian & Wards Act 1890 अधिनियम की धारा १७(३)  का उल्लेख किया तथा स्पष्ट किया की इस केस में बालक की भविष्य का फैसला इस प्रकार से होना चाहिए जो उसके भले के लिए सर्वोपरि हो तथा उसके सभी हितों की सम्पूर्ण रक्षा भी हो।

माननीय सुप्रीम को ने परिवार कोर्ट, हाई कोर्ट के फैसले तथा कौंसिलर की रिपोर्ट को भी बहुत गौर से परखा और पाया की बालक आदित्य ने अपने पिता की अधिक झुकाव दिखाया था। अपने फैसले को अंतिम रूप देते हुए माननीय सर्वोच्च न्यायालय ने बालक की हितों को सर्वोपरि मानते हुए उसकी संगरक्षण की ज़िम्मेदारी उसके पिता को सौंप दी। सुप्रीम कोर्ट का पूरा फैसला यहाँ से पढ़े।:

https://main.sci.gov.in/supremecourt/2020/8161/8161_2020_34_1501_24506_Judgement_28-Oct-2020.pdf

 

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