How Do Courts Calculate Maintenance in Divorce?

Neha left the matrimonial home in January 2013, shortly after the birth of her son. On 2 September 2013 she filed an application under Section 125 of the Code of Criminal Procedure for interim maintenance for herself and the child. What followed was a long fight over the amount, and over the wait to receive it.

The Family Court at Nagpur passed a detailed order on 24 August 2015. It gave Neha Rs 15,000 a month from 1 September 2013. For the boy it fixed Rs 5,000 a month from 1 September 2013 to 31 August 2015, and Rs 10,000 a month from 1 September 2015 onwards. Rajnesh challenged that order in the Bombay High Court's Nagpur Bench. His writ petition was dismissed on 14 August 2018.

By the time the case reached the Supreme Court, the interim application had been pending for over seven years. The Court asked Rajnesh to file his income tax returns and assessment orders from 2005-2006 onwards, plus a photocopy of his passport. On 11 September 2019 it directed him to pay Rs 2,00,000 in arrears and a further Rs 3,00,000 that, by his own admission, was due to his wife. Only part was paid. On 17 December 2019 he was told to pay Rs 1,45,000 within 45 days. An Affidavit of Compliance filed on 4 August 2020 said the Rs 1,45,000 of arrears till 11 September 2019 had been paid in January 2020, but nothing more had gone to Neha since. The son's Rs 10,000 had been paid till July 2020. In an affidavit dated 23 August 2020, Rajnesh himself admitted that Rs 5,00,000 of arrears was pending for his wife.

Mediation by a Nagpur advocate failed. Rajnesh then gave the Court his excuses:

• He was unemployed.
• He owned no immovable property and had one operational bank account.
• He had borrowed from his father to pay.
• The Family Court had wrongly relied on his 2006 income tax returns to fix maintenance in 2013.
• He was exploring new business projects.

He declined to pay any further amount for his wife. Neha said he had invested in real estate and other businesses, diverted income to his parents, and kept her streedhan. She also said the Rs 10,000 fixed when her son was 2½ was now far too little for a 7½-year-old schoolboy whose admission fee was still unpaid.

The Supreme Court affirmed the Family Court's order of 24 August 2015: Rs 15,000 a month for Neha and Rs 10,000 a month for the son. Rajnesh had to clear all arrears at Rs 15,000 a month within 12 weeks and keep paying while the Section 125 case ran. The Family Court was asked to decide that case within six months. Because Rajnesh was the one who had appealed, the Court did not raise the son's maintenance, though Neha was free to ask the Family Court for that.

Parliament inserted a proviso into Section 24 of the Hindu Marriage Act (Act 49 of 2001) and a third proviso into Section 125 CrPC (Act 50 of 2001). Both say interim maintenance applications should, as far as possible, be disposed of within 60 days of service of notice. In practice they sat for years. The Court blamed heavy dockets, repeated adjournments and slow pleadings, and said the delay defeated the purpose of the law.

Nobody followed a single method either. Family Courts started maintenance from the date of application, the date of the order, or the date summons was served. A wife could also claim under the Hindu Marriage Act, the Hindu Adoptions and Maintenance Act, the Special Marriage Act, the Domestic Violence Act or Section 125 CrPC. Some High Courts, including the Madhya Pradesh and Calcutta High Courts in the cases the judgment lists, held that each proceeding is distinct and independent, so maintenance granted in one cannot be adjusted or set off in another. The Bombay and Delhi High Courts held that in parallel proceedings adjustment or set-off must take place, and the Supreme Court approved that line.

Both spouses also tended to hide the ball. The Court noted that wives tend to exaggerate their needs while husbands tend to conceal their income, leaving judges to guess. To fix this, it framed the Affidavit of Disclosure guidelines under Articles 136 and 142 of the Constitution and issued its final directions under Article 142.

People often ask how maintenance is calculated in a divorce in India. Rajnesh v. Neha (2020) offers no calculator, and says plainly that there is no straitjacket formula. It treats maintenance as a way to stop a dependent spouse sliding into destitution, not as punishment. The court begins with the prescribed Affidavits of Disclosure from both spouses. It then weighs the claimant's status, reasonable needs, education, independent income, employment history, any career sacrificed for the family, and reasonable litigation costs. Against that it sets the other spouse's actual income, reasonable expenses, dependants and liabilities.

Some points from the judgment decide many real disputes:

• A wife's earning, even a small amount, does not bar maintenance. The question is whether it lets her keep the lifestyle of her matrimonial home.
• Her parents' wealth is not material.
• Being educated is no answer to a claim.
• An able-bodied husband cannot escape just by saying he has no income.
• The final amount must be neither so high that it oppresses the husband nor so low that it pushes the wife into penury.
• A child's education expenses are normally borne by the father, shared proportionately if the mother earns enough. Extra coaching is allowed only at a reasonable amount.

The same logic applies to permanent alimony and maintenance, the heading of Section 25 of the Hindu Marriage Act and Section 37 of the Special Marriage Act. Parties may lead oral and documentary evidence on income, expenditure and standard of living. The Court added that many modern marriages do not last long, so lifelong alimony may be inequitable, and the length of the marriage is a relevant factor. Where the wife has custody, reasonable expenses for the children's marriages must be provided for, and any trust funds or investments for the children are taken into account.

• The hidden-income loophole. Both sides must now file the Affidavit of Disclosure of Assets and Liabilities. The respondent must reply within four weeks and the court may not allow more than two opportunities. If a respondent seeks more than two adjournments, the court may consider striking off the defence where the conduct is wilful and contumacious. If no affidavit comes in time, the Family Court may decide on the applicant's affidavit and the pleadings.
• The double-recovery and start-date loophole. An applicant must disclose any earlier maintenance proceeding and its orders. The later court considers adjusting or setting off what was already awarded, and any change to the earlier order must be sought in that same proceeding. Maintenance in all cases will be awarded from the date of filing the application, not the date of the order.

• Gather the records the Affidavit of Disclosure asks for.

  • Personal details: date of marriage, date of separation, qualifications and monthly expenses.
  • Children: names, ages and expenses, including education.
  • Medical records or a disability certificate, where relevant.
  • Bank statements of all accounts for the last 3 years.
  • Income tax returns for the year before marriage, the year before separation and the year the application is filed.
  • Proof of income: salary certificates or pay slips for government service, or an employer's certificate and Form 16 for private employment.
  • Property, investments, loans and EMIs, plus every earlier maintenance order with details of arrears.

• File a concise interim maintenance application with the affidavit. Go to the Family Court, District Court or Magistrate's Court, as applicable. Use Enclosure I for non-agrarian parties, Enclosure II for agrarian parties, or Enclosure III in Meghalaya. The court may modify the format if the case needs it. The other spouse must reply with an affidavit within four weeks. If either party's finances change, an amended or supplementary affidavit can be filed. The court must try to decide the interim application by a reasoned order within four to six months at the latest after the affidavits are filed.

• Put the right facts before the court. For the calculation, stress these points:

  • the standard of living in the matrimonial home;
  • any job you gave up to raise children or care for elders;
  • your children's expenses;
  • any serious disability or ill health;
  • the other spouse's real income, expenses, dependants and liabilities.

  For permanent alimony, also raise the length of the marriage and any trust funds for the children. If you suspect the other side is hiding income, you can ask the court's permission to serve interrogatories and seek documents under Order XI of the CPC.

• Enforce the order if payment stops. Apply under Section 128 CrPC before the Magistrate's Court. For a Section 24 Hindu Marriage Act order, apply under Section 28A of that Act with Section 18 of the Family Courts Act and Order XXI Rule 94 CPC before the Family Court. Under the Domestic Violence Act, apply under Section 20(6) before the Judicial Magistrate. An order can also be enforced like a money decree under Sections 51, 55, 58 and 60 of the CPC read with Order XXI. Under Section 125(3) as quoted in the judgment, a recovery warrant is not issued unless the application is made within one year from the date the amount fell due. Striking off the defence is a last resort, for wilful and contumacious default. The mistake to avoid is making false statements or misrepresentations in the pleadings or affidavit: the Court said it may consider proceedings under Section 340 CrPC and contempt.