Merely Because One Child Is In Husband’s Custody Can’t Be Ground To Absolve Him Of His Obligation To Maintain Wife & Another Child Residing With Her: Delhi High Court
The Delhi High Court was considering a revision petition filed by the husband seeking the setting aside of the order of the Family Court in a Maintenance Petition filed by the wife.
Justice Swarana Kanta Sharma, Delhi High Court
While asking the husband to pay maintenance to his wife and his daughter, the Delhi High Court has held that the mere fact that one child is in the custody of the husband cannot, by itself, be a ground to absolve him of his obligation to maintain the wife and the minor child residing with her.
The High Court was considering a revision petition filed by the petitioner/husband seeking setting aside of the order of the Judge, Family Court, New Delhi District, Patiala House Courts [Family Court] in a Maintenance Petition filed by the respondent wife under Section 125 of the Code of Criminal Procedure, 1973 [CrPC] vide which interim maintenance in the sum of ₹20,000 per month was granted in favour of the respondents.
The Single Bench of Justice Swarana Kanta Sharma held, “In the present case, this Court is of the view that the mere fact that one child is in the custody of the petitioner-husband cannot, by itself, be a ground to absolve him of his obligation to maintain respondent no.1-wife and the minor child residing with her. The responsibility of maintenance does not stand divided merely because each parent has custody of one child. If the wife is not working and has no independent source of income, the husband continues to be under a legal obligation to provide maintenance to the wife and the minor child in her custody, irrespective of whether the other child is residing with him. The position would remain the same even if both children were in the custody of the wife.”
Advocate L. K. Singh represented the Petitioner, while Advocate Rajiv Shrivastava represented the Respondent.
Factual Background
The petitioner and the first respondent were married. However, owing to matrimonial discord, the parties started living separately, with the respondent alleging that she was compelled to leave the matrimonial home due to physical assault and cruelty committed upon her. From the wedlock, a son was born, who was in the custody of the petitioner husband, while the daughter was in the custody of the respondent wife.
The wife filed an application under Section 125 of the CrPC, seeking maintenance from the petitioner, contending that due to the lack of adequate accommodation, she had shifted to rented premises and was paying rent of ₹7,000 per month. She further alleged that the petitioner owned properties at Munirka fetching rental income, possessed another flat, and was engaged in property dealing besides working on a contractual basis with MCD, on which basis maintenance of ₹75,000 per month for herself and ₹50,000 per month for the minor daughter was claimed. The petitioner denied these allegations. The Family Court assessed his monthly income to be not less than ₹60,000, and it also found no material to substantiate the allegation regarding the wife’s earnings, and directed payment of ₹20,000 per month as interim maintenance to the respondent wife and daughter.
Reasoning
The Bench, at the outset, explained that at the stage of consideration of interim maintenance, the Court is neither expected nor required to embark upon a detailed inquiry or conduct a mini-trial to resolve such disputes conclusively. The exercise at this stage is limited. The Bench stated that the Court is only required to examine, on a prima facie basis, whether the spouse and the minor child seeking maintenance are unable to maintain themselves and whether the person against whom maintenance is claimed has the means to provide such support.
“The obligation of a husband to maintain his wife and minor children, where they are unable to maintain themselves, is firmly embedded in law. This obligation flows not only from Section 125 of the Code of Criminal Procedure but also from the larger social and constitutional objective of preventing vagrancy and destitution. Proceedings for maintenance are, by their very nature, meant to provide immediate relief and basic subsistence. They are not intended to penalise a spouse, nor to finally adjudicate the rights and liabilities of the parties”, it added.
The Bench took note of the wife’s assertion that she had no independent source of income and was largely dependent upon support from her parents, whereas the petitioner alleged that she was gainfully employed and earning substantial amounts. It was noticed that the Family Court rightly observed that beyond bare allegations, no material whatsoever was placed by the petitioner to show that the wife was running a beauty parlour or had any regular source of income. No documentary record or any supporting material was produced even at a prima facie level in this regard.
The Bench was satisfied that the Family Court’s assessment was not based on mere suspicion, but on a holistic appreciation of the material available. As per the Bench, the Family Court had also correctly noted that persons engaged in unorganised or semi-formal sectors, such as property dealing, often do not have neatly documented income streams. In such situations, the Court cannot be expected to insist on mathematical precision. “A reasonable and pragmatic assessment, drawn from surrounding circumstances, expenditure patterns and lifestyle indicators, is both permissible and necessary. The approach adopted by the learned Family Court, therefore, cannot be characterised as perverse or speculative”, it added.
Considering the overall facts and circumstances of the case, including the nature of the material relied upon, the absence of direct proof of fixed monthly earnings beyond the contractual engagement, and the fact that the petitioner is also maintaining the minor son in his custody, the Bench assessed the petitioner’s monthly income at ₹50,000 for the purpose of interim maintenance. “Accordingly, in modification of the impugned order, the petitioner is directed to pay a consolidated sum of ₹17,500/- per month towards interim maintenance to respondent Nos.1 and 2”, it ordered.
Cause Title: A v. B (Neutral Citation: 2026:DHC:15
Appearance
Petitioner: Advocates L. K. Singh, Raj Kumar
Respondent: Advocates Rajiv Shrivastava, Aftab Ahmad