Right to maintenance is provided in law to women and minor children when they do not have sufficient means to maintain themselves. The primary duty of providing maintenance is that of the husband who has sufficient means to do so. The law on maintenance is governed by Section 125 of the Code of Criminal Procedure, 1973 and other personal laws.
Further, under the Protection of Women from Domestic Violence, 2005 (DV Act) the scope of maintenance has been expanded to enable an “aggrieved person” (Section 2(a)) to claim monetary relief (Section 20) from the “respondent” including that of maintenance for herself as well as her children, including an order under or in addition to the maintenance under Section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force. The cases cited below are precedents which can be used to obtain maintenance orders under the DV Act.
“Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. (Section 2(a))
“Domestic relationship” means a relationship between two persons who live or have, at any point in time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. (Section2(f))
“Respondent” means any person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the DV Act. (Section 2(q))
Who can seek monetary relief and maintenance under the DV Act?
Lalita Toppo v. State of Jharkhand & Ors., 2019 (3) SCC 796 [Supreme Court of India, 3 Judge Bench]
The court was answering certain issues referred to it by a two judge bench prior to the DV Act.
It was noted here that an efficacious remedy to seek maintenance under the DV Act was available to a woman even if she is not the legally wedded wife and that this would include an estranged wife or live-in partner.
Juveria Abdul Majid Patni v. Atif Iqbal Mansoori & Anr., 2014 (10) SCC 736 [Supreme Court of India, 2 Judge Bench]
18th September 2014; Supreme Court of India
The court here was considering the question if a divorced woman can seek reliefs against her ex-husband under the DV Act.
It was held that a woman who has been in a domestic relationship with the respondent, who is subjected to an act of domestic violence by the respondent, would come within the meaning of “aggrieved person”. Further, the court held that the monetary relief as stipulated under Section 20 is different from maintenance, which can be in addition to an order of maintenance under Section 125 CrPC or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person. Therefore, the Magistrate can grant interim ex parte relief as he deems just and proper, if he is satisfied that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence.
Krishna Bhattacharjee v. Sarathi Choudhury & Anr., 2016 (2) SCC 705 [Supreme Court of India, 2 Judge Bench]
20th November 2015; Supreme Court of India
The question that arose for consideration in the instant case is if a person who has been judicially separated can claim the status of a “aggrieved person” under the DV Act.
The court taking into consideration several judgments held that, in a judicial separation the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. Thus, a person who has obtained a judicial separation is qualified to be an “aggrieved person” under the DV Act.
Indra Sarma v. V.K.V. Sarma, 2013 (15) SCC 755 [Supreme Court of India, 2 Judge Bench]
Here the court was concerned with the question whether a “live-in relationship” would amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the DV Act.
The court ruled that a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f). In doing so it set out certain factors as guidelines for identification of a live-in relationship. They are: 1. Duration of period of relationship, 2. Shared household, 3. Pooling of resource and financial arrangements, 4. Domestic arrangements, 5. Sexual relationship, 6. Children, 7. Socialization in public, and 8. Intention and conduct of parties.
Definition of “respondent” under Section 2(q) explained
Hiral P. Harsora & Ors v. Kusum Narottamdas Harsora, 2016 (10) SCC 165 [Supreme Court of India, 2 Judge Bench]
The Supreme Court here was deciding an appeal from a writ proceeding in which the constitutional validity of Section 2(q) which defined “respondent” was questioned. The definition of “respondent” earlier stood as “means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under the DV Act. Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”
While striking down the words “adult male” before the word “person” in Section 2(q), the court held that the microscopic difference between male and female, adult and non-adult, regard being had to the object sought to be achieved by the DV Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. Consequently, the proviso to Section 2(q), being rendered otiose, was deleted.
Ajay Kumar v. Lata @ Sharuti & Ors., 2019 SCC OnLine SC 726 [Supreme Court of India, 2 Judge Bench]
The wife filed a complaint under Section 12 of the DV Act seeking an award of maintenance against her brother-in-law. The complainant and her deceased spouse resided at a house which constitutes ancestral Hindu Joint Family Property. Further, it was alleged that the deceased spouse and his brother were running a business jointly. The trial court granted interim maintenance which was to be payable by the brother-in-law. The same was challenged before the High Court and subsequently before the Supreme Court in a Special Leave Petition.
The court upholding the interim award of maintenance held that the expression “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom relief can be sought. The proviso indicates that both, an aggrieved wife or a female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband or the male partner, as the case may be.
What are the circumstances under which maintenance is ordered?
Manish Jain v. Akansha Jain, 2017 (15) SCC 801 [Supreme Court of India, 2 Judge Bench]
The court in the instant case was considering an appeal against an interim order of maintenance which was granted both under Section 24 of the Hindu Marriage Act, 1955 and the DV Act.
Here the court held “that an order for maintenance pendente lite or for costs of proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support to meet the necessary expenses of the proceedings. It is no answer to a claim of maintenance that the wife is educated and could support herself.
Likewise, the financial position of the wife’s parents are immaterial. The court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the court should, therefore, mould the claim for maintenance determining the quantum based on various factors the court”. In the factual of the case, the court allowed the appeal and reduced the amount of maintenance pendente lite from Rs. 60,000 to Rs. 25,000 per month which is in addition to Rs. 10,000 paid under the proceedings of the DV Act.