Domestic Violence is a type of abuse in the general domestic setting, such as in a marriage or cohabitation. Domestic violence usually gives rise to divorces between the couples as domestic violence is mostly witnessed in a marriage. In India, most of the wives file for a divorce due to domestic violence. In the times of Covid-19, the rate of domestic violence has increased rapidly due to the lockdown.
Discussion regarding the payment of maintenance need always refer to Sec. 125 of the CrPC which has been upheld to pay maintenance to the wife in a divorce proceeding, such that her status and standard of living will be maintained. The general rule of thumb is that the maintenance depends on the wife’s own capacity of earning and maintaining herself, and this will always play a role in determining the court’s decision to award maintenance. This paper is regarding a specific version of maintenance, and special legislative and judicial changes that have been made to it. This paper focuses on the payment of maintenance under the Domestic Violence Act, and the difficulties, if any that a petitioner has to undergo in receiving such maintenance.
To begin with, a little statutory introspection is necessary: Sections 12 and 23 of thr Act, provide for maintenance, in its own way Section 12 allows the filing before a magistrate for any of the reliefs provided in this act, including interim relief. Section 23, on the other hand, allows the magistrate to provide interim, or ex-part orders. Note here that neither of these sections describe maintenance, and the responsibility of the Judge, or discretion to pay maintenance. This is because maintenance is covered under Sec. 20 of the act, in the limited sense that it is mandated despite any payments already being made under Sec. 125 of the IPC. This means that there is no special power or relief under the Domestic Violence Act that covers women that face domestic abuse and needed protection under the law. Another important aspect of the statute to be kept in mind is the definition of economic abuse: Sec. 3 of the act includes the non-payment of maintenance as a separate form of domestic abuse. This paper will discuss the wisdom of doing so later on, but this definition makes it clear that the withholding of maintenance is a further offence and additional ground for filing under the act.
It is important to note that the act is not a family statute, and it does not provide a civil law remedy of divorce, separation or any of the conventional family law remedies, but it simply provides for maintenance, compensation and other tortious remedies and is rooted in criminal law. Most remedies are reflected in Sec. 18 and 19. Interim maintenance in this act is something similar, and it is not a power bestowed by statute, but rather has been left to the discretion of the magistrate. Interim maintenance under the act is not provided for, and needs to be specifically listed and filed for. The aggrieved party has to file an application as provided in the Rules framed by the central Government and make a prima facie case for providing maintenance. This is the crux of all difficulty in making an interim maintenance application under the act.
It was recently decided by a bench in the Delhi HC, in Gaurav Machanda v Namrata Singh 2019 SCC Del 7353, that the right in Sec 23 was not an entitlement to maintenance under the statute, but rather merely to present the application thereto. This has been the watchword in most Domestic Violence Act cases, the maintenance doesn’t become an automatic right, and in fact, this decision is in line with previous decisions by the same court regarding the status of maintenance of a woman in domestic violence. It is true that no such rights or any regular payment exist as a separate and distinct award under the act, as held in Javeria iqbal Majid Khan Patni v Atif Iqbal Mansoori (2014) 10 SCC 76. The consensus through many ratios of the High Courts is that the applicant needs to establish a prima facie case for eligibility of maintenance under the act, or rather, in general: In Rajeev Preejna v Sarika and Ors. The Delhi HC held that at the time of decision regarding the interim maintenance, questions such as the financial capacity of the petitioner, the pendency of the suit in court, etc.was not the matter of focus if the petitioner has submitted documentation before the court establishing the right to interim maintenance. It is in fact little that the petitioner needs to establish, as we see in the decision of Rahul Arun Suryacanshi v Anita Rahul Suryavanshi where the petitioner for interim maintenance, as per the lower courts, has not even submitted proper documentation pertaining to her painful employment and salary attached thereto, yet her application for interim maintenance has been accepted by the HC.
Furthermore, under the provisions of the act, such maintenance can be given even if parallel maintenance is being provided in another jurisdiction: Anwar v Mr Shameena bano. In fact, the SC in its decision in Shameena Farooqui v Shahid Khan held that the relief under such provisions of the Domestic Violence Act needs to be acted on in a timely manner and that if there were questions of law and fact that need to be determined in order for proper adjudication of maintenance, the same needs to be done without causing inordinate delay to the petitioner that might be in a vulnerable situation.
This decision was again reflected in R. Sanjeevi v Pushpalatha in the Madras HC where despite aa running dispute regarding concealment of fact in adjudication for interim maintenance, the MM passed an order for maintenance anyway.
These cases demonstrate that getting interim maintenance is very easy and that the right, even if it is not directly provided in the act. This should, by all means, be a good thing, this should by all accounts, allow for more easy filings, but that is not the case. More often than not, at the lower court level, the discussion surrounding an application for interim maintenance is overtaken by a discussion about the petitioners’ ability to maintain themselves, and time and time again High Court have had to step in and reiterate that self-sufficiency has never been a direct factor in determining maintenance in the statute. In the case of Bhuwan Mohan Singh v Meena (2915) 6 SCC 253 where it was held that while all the grounds for the grant of interim relief asunder Sec. 125 of the CrPC applied to the act, the income and gainful employment status was not one of them. Similarly, the Delhi HC had to clear the air once more, when it rendered a decision that, the mere possession of the petitioner of a degree, or higher education qualification did not automatically imply gainful and self-sufficient employment. Furthermore, it is a common perception in courts to assume that the quantum of maintenance can be lesser of the petitioner herself is earning and able to provide for herself, even when the application is under the act, where the purpose is more punitive than anything else. The case of Rahul S/o Ram halde v Rashmi demonstrates the essentiality of submitting before a court in a Domestic Violence matter, the status of previous litigation and status thereof. The same has again been reiterated in Suryavanshi. While both these measures make sense from a purely eco-legal standpoint, it is important to note that there is more than meets the eye.
The combined requirement of establishing a prima facie case, with the debate about self-sufficiency, and the obligation to disclose the status of previous and pending litigation: This becomes extremely difficult to convince a judge to make a favourable decision, and in the event that the Judge might be amenable to a decision, these preconditions to granting interim maintenance give the opposite party enough cause to introduce doubt in the mind of the magistrate about eligibility and the genuineness of the petition itself. As the whole act and remedy depend on judicial discretion, it is always an uphill battle to get maintenance, and even when the award is made, the opposite party can always file for review as in Sanjeevi.
These are the remedies available to the women (wife) against non- payment of interim maintenance:
1. The Bombay High Court considers the matter related to failure to make payment of interim maintenance under the domestic violence can result in the issuance of non-bailable warrant against the person failing to pay such maintenance under the Court order. Wife failed to receive the maintenance awarded by the court if fails to receive should lodge the complaint against the court which has issued such order. The Bombay High Court ruling out the ambiguity in issuing a non-bailable warrant against the husband said that the Judge has complete authority to issue such order under section 28(2) Domestic Violence Act, 2005
Case Law; Sagar Sudhakar Shedge v/s Naina Sagar Shedge.
2. The law Commission report states that if any women under the Domestic Violence Act, 2005 has undergone or is dealing with the pending proceeding fails to receive the alimony/ maintenance should inform the court about such disobedience of the decree of the court, the court on reviving such complaint can charge such person with a fine amounting the twice of such arrears pending to be paid and with not less than six months of rigorous imprisonment. Such a person should commit such an offence if without malice or for a reasonable excuse, then such a person should be considered. Should there be any pending interim maintenance should be passed by the court of justice.
The time-bound treatment of domestic violence matters needs to be reflected in the statute more than in precedent. It is important that there is a proper mechanism or a comity that can ensure the speedy disposal of cases and solve the issue where the women don’t receive the maintenance for several months even after the court passes an order in her favour.