Courtesy: Harsh Vardhan
The law of maintenance reflects the state’s commitment to protect the vulnerable sections of society from neglect and destitution. The Hon’ble Supreme Court in the case of Chaturbhuj v. Sita Bai (2008) 2 SCC 316, has explained the law of maintenance in the Indian Context. Relevant portion is as follows:
“Maintenance is not a matter of charity but a legal right intended to prevent exploitation and secure basic welfare.”
Maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. Among those who are entitled to such support, children form a very, if not the most, important class. The law recognizes that every child possesses a right to financial support, irrespective of the disputes among the parents. Consequently, the Indian courts have treated the maintenance of the child not as an act of generosity but as an act of legally enforceable right.
Read about Child Rights here: https://childrightsawarenessblog.wordpress.com/blog-articles/page/10/
The legal framework governing the maintenance of children is primarily provided under Section 144 of Bhartiya Nagarik Suraksha Sanhita 2023 (125 CrPC, 1973), The Hindu Marriage Act, 1955, The Protection of Women from Domestic Violence Act, 2005, and the Hindu Adoption and Maintenance Act, 1956. Though the objective of these laws is to protect the welfare of the children, they differ in their scope, procedure and remedies, creating a holistic net for protection and welfare of children.
Any discussion regarding the maintenance should necessarily engage with the Supreme Court’s decision in the landmark case of Rajnesh v. Neha, reported in (2021) 2 SCC 324. This landmark case lays down the governing principal framework in the maintenance proceedings in India. Guidelines laid down in the aforesaid judgment regarding the disclosure of assets, liabilities, enforcement of order and determination of quantum have settled the law on the maintenance claim across the jurisdictions.
Who is entitled to maintenance as a child?
As a general rule, every minor child who is not able to maintain himself or herself is entitled to claim maintenance from his or her father under the relevant provisions of law.
Section 144 of the BNSS (earlier 125 CrPC) provides for maintenance to children apart from wife and the parents, upon refusal to maintain or neglect.
The right under this section is available to every child irrespective of religion. Importantly, the law does not distinguish between the legitimate and illegitimate children. In the case of Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636, the Hon’ble Supreme Court reaffirmed that an illegitimate child is equally entitled to claim maintenance under section 125 CrPC. The rationale being that children should not suffer because of the circumstances of birth.
The maintenance is not only confined to minor children. In certain circumstances, children who have attained the age of majority are also entitled to maintenance. Section 144 of BNSS lays down the condition where a major suffering from some mental or physical abnormality is entitled to maintenance. In the case of Abhilasha v. Parkash, AIR 2020 SC 4355, the Hon’ble Supreme Court held that a healthy adult child cannot claim maintenance under Section 125 of CrPC (144 of BNSS), however, a hindu daughter, adult but unmarried, can claim maintenance not under Section 125 Cr.P.C/ Section 144 B.N.S.S. but under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956. In the case of Kumari Nidhi Gupta vs. State of U.P. and Another 2023:AHC:209485, the Hon’ble Allahabad High Court, while exercising its revisional jurisdiction, directed that the Family Court, seisin of the jurisdiction to decide both the application under Section 125 Cr.P.C. as well as the application under Section 20 (3) of the Hindu Adoption and Maintenance Act, 1956, can decide the said applications treating the former to be the latter.
Further, children born from the void or voidable marriage are also entitled to maintenance. The Indian courts have consistently taken the view that children should not be penalized for circumstances that are beyond their control. In the case of Ramesh Chandra Daga v. Rameshwari Daga, (2005) 2 SCC 33, the Hon’ble Supreme Court recognized that the children born from the void or voidable marriage are entitled to maintenance under Section 26 of the Hindu Marriage Act.
How do Courts calculate the maintenance amount?
There is no fixed formula to calculate the amount of maintenance. Instead, the court considers the financial capabilities of the parties and the needs of the child while calculating the maintenance.
The Supreme Court in the landmark case of Rajnesh v. Neha, (2021) 2 SCC 324, introduced the mandatory disclosure of assets and liabilities. Hence, both the parties, the father and the mother, are required to file a detailed affidavit disclosing their assets, liabilities and income at the early stage of proceedings. The affidavit includes disclosure of all the sources of income, bank accounts, investments, and movable and immovable property parents hold. The disclosures made in affidavits are crucial in deciding the quantum. However, it is not only the aspect of parents’ capability, but also the needs of a child that require assessment.
The Hon’ble Supreme Court has laid down various factors to be considered for deciding the quantum of maintenance to be provided to the child. These factors are as follows:
- Living Expenses – The living expenses of the child would include expenses for food, clothing, residence, medical expenses, and education of the child. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular/coaching classes, and not an overly extravagant amount which may be claimed.
- Educational Expenses – Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties.
- Serious disability or ill health
- Other factors as may arise in the relevant facts and circumstances of the case
Who bears more responsibility, father or the mother?
Indian law does not proceed on the assumption that only one parent is solely responsible for the child’s welfare. In the case of Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, the Hon’ble Supreme Court emphasised that both the parents share equal responsibility towards the child. Therefore, the obligation is on both the parents to maintain the child. However, the law is settled that the father is more responsible in case of maintenance to be awarded to a child, and the father, in all circumstances, must provide for the children. In case the mother is earning, some relief may be granted by proportional sharing of expenses to a limited extent.
How can the orders granting maintenance be challenged?
Courts retain the power to alter, enhance, reduce or, in appropriate cases, discontinue the maintenance, subject to material change in the circumstances. An order for maintenance can be modified when there is a substantial change in the financial circumstances of the parents or the children. For instance, loss of employment, serious illness, birth of any additional dependent or increase in the educational or medical expense of the child can be the relevant grounds for the reassessment of the maintenance amount. Parties may also challenge the order of maintenance.
Orders of maintenance are revisable; hence, one may file a Criminal Revision under Section 438 read with Section 442 of the Bhartiya Nagarik Suraksha Sanhita, 2023 before the Hon’ble Allahabad High Court challenging the order granting or rejecting maintenance to the child. Since such orders are summary orders, one must challenge them by pointing out the illegality, impropriety, and incorrectness of the order. Even an order granting interim maintenance or rejecting the same can also be challenged by means of Criminal Revision before the Hon’ble Allahabad High Court.