Factors to be considered while Deciding Interim Maintenance

In Mat. App. (F.C.) 35/2015, decided on 08.08.2016, the Hon'ble High Court of Delhi has enumerated the various factors which should be considered while granting interim maintenance to the indigent spouse.

In the present case the Appellant Husband was directed by the Trial Court to pay maintenance to the Respondent Wife in the sum of `Rs 65,000/- per month. Its justification is: (i) `Rs 20,000/- per month for the respondent; and (ii) `Rs 15,000/- each for the three children born to the appellant and the respondent.

The grievance of the Appellant Husband is that learned Trial Judge did not take into account the monthly EMIs paid by the Appellant Husband to the various banks and financial institutions to whom motor vehicles have been pledged while availing the finance.

The Appellant Husband is in the business of Tours & Travels. He does not dispute owning twenty-one vehicles. He claims that he has to repay EMIs each month

Before the matrimonial dispute arose, the appellant was having eight LIC policies. He admits advancing loan in sum of `Rs 3,00,000/- and `Rs 1,00,000/- to friends as friendly loans without any interest being charged.

Currently monthly deposits in the banks range between `Rs 17,00,000/- to `Rs 76,00,000/- with huge cash withdrawals. The Appellant Husband justifies the cash withdrawal towards expenditure incurred on petrol, salary paid to the drivers, parking, toll-tax etc.

Except for oral account the Appellant Husband has not given any cogent proof of exact amount which he pays to the bank towards EMI of the vehicles purchased on finance.

The Court while deciding the application has held that:

  • Object of Section 24 of the Hindu Marriage Act, 1955 is to provide for maintenance, pendente-lite, to a spouse in matrimonial proceedings so that the spouse can maintain herself/himself and also have sufficient funds to carry on the litigation avoiding any suffering in conduct of case due to want of funds
  • A spouse unable to maintain himself/herself is entitled to maintenance on the principle of equi-status and respect that the spouse would have enjoyed if he/she continued to live with other spouse
  • Court exercises a power under Section 24 by way of a judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse.
  • While deciding application for grant of an interim maintenance under Section 24 the Court has to necessarily arrive at prima- facie determination about the earning capacity of the rival claimants. Capacity of the other party to earn cannot be taken into consideration
  • It is only the actual earning of the opposite party on the basis of which relief can be granted. Permanent income and not casual income is relevant.
  • Where the parties do not come forward with exact income they have, the Court would have no alternative but to apply its guess-work.

The Court has upheld the ratio given in Sh. Bharat Hegde Vs. Smt. Saroj Hegde wherein it was held that under noted eleven factors have to be taken into account while deciding the quantum, of maintenance:-

  1. Status of the parties.
  2. Reasonable wants of the claimant.
  3. The independent income and property of the claimant.
  4. The number of persons, the non-applicant has to maintain.
  5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
  6. Non-applicant's liabilities, if any.
  7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
  8. Payment capacity of the non-applicant.
  9. Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
  10. The non-applicant to defray the cost of litigation.
  11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/s. 24 of the Act.