Calcutta High Court: Calculation of Maintenance ‘Pendente Lite’

Sections 24 and 25 of the Hindu Marriage Act provides for the payment of maintenance to a party who does not have the adequate independent income to support themselves. It is a known fact that in order to calculate maintenance pendente lite, the income of the wife has to be taken into account. However, the wife's potential or real earnings would not be enough to deny the claim of support or maintenance

The Hindu Marriage Act (the Act) is a comprehensive Code that governs the rights, responsibilities, liabilities, and obligations that arise from a Hindu marriage. Sections 24 and 25 of the Act provide for the payment of maintenance to a party who does not have the adequate independent income to support himself or herself and cover required costs. This is a gender-neutral provision that allows either the wife or the husband to seek support in form of maintenance. It must be noted that the petitioner claiming the same must not have the adequate independent income to support himself or herself during the duration of the case.
 
The Calcutta High Court in the case of Upanita Das v. Arunava Das held that while calculating the maintenance pendente lite, the income of the wife has to be taken into account. However, the wife's potential or real earnings would not be enough to deny the claim of support or maintenance. A revisional application was filed in the High Court by the wife who was aggrieved with the quantum of maintenance awarded by the lower court.
 
Brief Background to the Case:
 
The woman concerned in this case had filed an application under Section 24 of the Hindu Marriage Act for claiming maintenance pendente lite for INR 30,000 per month. It was argued by the opposite party (the husband) that the wife should be asked to produce her income tax returns and employment status before this Court. The lower Court considered both the arguments advanced and only allowed 1/5th of the income of the husband as maintenance pendente lite stating that the husband’s parents were also dependent on him and he did not have any extra income over and above his expenses. The Court considered the husband’s income to be INR 60,000 per month and proceeded to calculate the maintenance pendente lite to be in the ratio of 1/5th of his income as the standard rate and therefore awarded maintenance of INR 12,000 per month.
 
Factors to be Considered for Determining Maintenance:
 
The purpose of providing maintenance is to guarantee that the ‘dependent spouse’ is not relegated to poverty or vagrancy as a result of the marriage's breakdown. These laws are in no way structured to punish the other spouse. The Supreme Court in the case of Rajnesh v. Neha had discussed numerous criteria for estimating the amount of maintenance to be paid and the important aspects to be considered when calculating this amount. The Supreme Court had laid down the following factors to be considered for determining maintenance:
  • Status of the parties.
  • Reasonable wants of the claimant.
  • The independent income and property of the claimant.
  • The number of dependants the non-applicant has to maintain.
  • The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
  • Non-applicant’s liabilities, if any.
  • Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
  • Payment capacity of the non-applicant.
  • Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
  • The non-applicant to defray the cost of litigation.
  • The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded under Section 24 of the Act.
 
The Supreme Court further stated that the financial situation of the wife's parents, her education, and her ability to earn money would not be relevant considerations in granting maintenance. While providing maintenance pendente lite, the wife's potential or real earnings would not be enough to deny the claim of support. In this case, the Supreme Court reaffirmed the idea that the husband must establish his income and show that the said income would be insufficient to provide the wife with the maintenance she sought under Section 24 of the Act.
 
Maintenance for a Wife who is Earning:
 
In general, the Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. In Shailja v. Khobbanna, the Supreme Court held that based on the fact that the wife is capable of working would not be sufficient grounds for the Family Court to decrease the maintenance award. The Court must consider whether the wife's income is sufficient to allow her to keep herself in the matrimonial home, given her husband's lifestyle. Sustenance is not the same as survival, and it cannot be allowed to be.
 
In Sunita Kachwaha v. Anil Kachwaha the Supreme Court was of the view that even if the wife had a postgraduate degree, and was employed as a teacher in Jabalpur, it cannot be a sole ground to reject her claim for maintenance. The husband in the case had argued that because the wife earned enough money, she should not seek financial aid from him in the form of maintenance.
 
The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale had held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meager, is sufficient to deny the claim of maintenance. An able-bodied husband must be assumed capable of earning enough money to support his wife and children, and he cannot claim he is unable to do so. The husband has the burden of proof to show that there are adequate grounds to indicate that he is unable to support his family and fulfill his legal obligations due to circumstances beyond his control. The Court may draw an adverse inference if he does not reveal the actual amount of his income.
 
Analysis by the Calcutta High Court: Calculating the Maintenance Pendente Lite
 
In the case in hand, the Court took into consideration the wife’s potential to earn as she had a postgraduate degree, but from the evidence which was presented before the Court, she was out of employment since 2014. She also indicated that she had applied for positions in a variety of places, including educational institutions, since the beginning of May, 2014. She had also filed certain documents with the court in support of her claims, but she said that despite the applications, she had not been offered any employment in any educational institution.
 
It has been settled that while calculating the maintenance pendente lite the income of the wife has to be taken into account. What had emerged from the wife's testimony, in this case, was that she had been out of work since 2014. The husband had not shown any evidence to the contrary. The wife's cross-examination has already been mentioned. In addition, the other spouse has been unable to demonstrate the expenses that he must expend for himself and his parents. Food, clothes, shelter, medical bills, rent, and other out-of-pocket expenses must all be taken into account before maintenance pendente lite for the wife may be granted. The wife should be able to live in the status and condition at par with the husband.

The High Court finally modified the order of the lower Court and increased the amount of maintenance to INR 20,000.
 
Conclusion:
 
Initially, there was a misperception that a working woman could not claim for maintenance solely because she was earning and thus was in a capacity to support herself. Relying on the judgments like Bhagwan v. Kamla Devi and Chaturbhuj v. Sita Bai, it is clear that even though a woman could be employed, she is not disentitled to claim maintenance. The Supreme Court and High Courts have time and now established that if her monthly income is insufficient, an estranged woman might seek maintenance from her husband despite her efforts to acquire a monthly income. It further explains that a wife does not have to be completely destitute to ask for maintenance if she is unable to maintain herself.