The Delhi High Court held that the findings of cruelty against the wife in the divorce proceedings cannot be the basis to deny maintenance to her under the Protection of Women from Domestic Violence Act, 2005 (DV Act).

The Court held thus in a revision petition filed by the wife against the judgment of the Additional Sessions Judge (Appellate Court) by which the judgment of the Trial Court was set aside and the matter was remanded back to it.

A Single Bench of Justice Amit Bansal observed, “The findings/observations qua cruelty passed by the Division Bench of this Court cannot be disputed. However, in this regard, counsel for the Wife has placed relied on the judgement of the Apex Court in Raj Talreja v. Kavita Talreja, (2017) 14 SCC 194, wherein it has been observed that even if there is a finding of cruelty against the wife, it cannot by itself be a ground for denying maintenance. A similar view has been taken by a Coordinate Bench of this Court in Pradeep Kumar Sharma v. Deepika Sharma, (2022) SCC OnLine Del 1035, wherein the Court held that there is no bar of cruelty in the right of the wife to claim maintenance. … In light of the aforesaid legal position, in my considered view, the findings of cruelty against the Wife in the divorce proceedings, by itself cannot be the basis to deny maintenance to the Wife under the provisions of the DV Act.”

The Bench also referred to the judgment in the case of Dr. Swapan Kumar Banerjee v. State of West Bengal (2020) 19 SCC 342, in which it was held by the Apex Court that even if divorce has been granted on the grounds of desertion by the wife, this cannot be a ground to deny maintenance to the wife.

Advocate Shirin Khajuria represented the petitioner/wife while Senior Advocate Deepika V. Marwaha represented the respondent/husband.

Brief Facts -

The parties got married in 1991 as per Arya Samaj rituals and a child was born. As per the wife, the husband was alcoholic and a womanizer and had several extra marital relationships. He used to beat the child under the influence of alcohol on account of which the child had suffered 80% loss of hearing in his left ear. The wife had therefore filed a complaint against him. The Trial Court had allowed the application of the wife under Section 12 of the DV Act and directed the husband to pay a sum of Rs. 1 lakh per month towards maintenance as well as compensation under Section 22 of DV Act to the wife.

Being aggrieved, the husband approached the Appellate Court and the judgment of the Trial Court was set aside by it. Hence, the wife filed a petition along with an application for condonation of delay and an application for stay of the proceedings before the Trial Court. The application for condonation of delay was allowed by the predecessor bench and the proceedings before the Trial Court pursuant to the remand judgment passed by the Appellate Court were stayed by the said bench. Whereas, the husband relied on the grounds of cruelty and desertion by wife and the judgment of High Court upholding the same.

The High Court in view of the facts and circumstances of the case noted, “A perusal of the aforesaid extracts from the impugned judgment of the Appellate Court would show that the Appellate Court noted various errors in the judgment of the Trial Court. For instance, the Trial Court ignored that the sum of Rs.1,05,000/- per month claimed by the Wife included a sum of Rs.40,000/- per month towards expenses of the son of the parties and at the time the judgment was delivered by the Trial Court, the son had already attained the age of majority and thus, no relief could be granted to him. However, the Appellate Court failed to take into account that the Trial Court had granted maintenance from 2009 to 2016 and for a large part of this period, the son of the parties, even though he had attained the age of majority, was still pursuing his studies.”

The Court further said that the obligation of a father towards his child does not end when the child attains majority even though he is still pursuing his studies. It added that there was no justification at all to remand the case back to the Trial Court and hence, the order of remand is cryptic without giving any reasons justifying the same.

“Even while remanding the matter back to the Trial Court, the Appellate Court did not deem it appropriate to fix an amount towards interim maintenance. The intention of the DV Act is to provide immediate succour to the aggrieved wife, especially when civil remedies towards maintenance are drastically delayed. The Supreme Court in Rajnesh v. Neha, (2021) 2 SCC 334, has observed that if the maintenance is not made in a timely manner, it defeats the object of social welfare legislation”, it also noted.

It observed that even if the Appellate Court was remanding the matter to the Trial Court, it should have fixed an interim amount to be paid by the husband to the wife.

“It is unfortunate that in the present case, the complaint was filed in the year 2009 and almost 14 years have elapsed and the Wife has not been granted any interim maintenance other than the sum of Rs.10,00,000/- paid by the Husband pursuant to the aforesaid order passed by this Court”, it added.

The Court, therefore, concluded that twenty-five percent of the net income of the husband be granted to the wife as interim maintenance and it directed him to pay a sum of Rs. 50,000/- per month to the wife as interim maintenance from the date when the complaint under the DV Act was filed till the date when the judgment was passed by the Appellate Court.

Accordingly, the High Court disposed of the revision petition.

Cause Title- ABC v. XYZ (Neutral Citation: 2024:DHC:382)


Petitioner: Advocates Ranjeet Mishra, Poulomi Barik, and Nayan Gupta.

Respondent: Advocates Raunika Johar and Faiz Khan.

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