Husband’s Liability To Maintain Children From First Wife Not Subordinate To Any Financial Commitment Of Paying EMI: Gujarat High Court

The Court noted that even in cases where the mother is gainfully employed and earning a higher salary than the father, the father remains legally bound to contribute proportionally to the children's upkeep, ensuring their maintenance is not treated as a secondary priority to his self-created financial liabilities.

Justice Gita Gopi while referring to Deepa Joshi v. Gaurav Joshi, 2026 SCC OnLine SC 597, observed, “…financial commitment such as loan repayment cannot be placed on the same footing as necessary expenditure so as to substantially reduce the liability of the maintenance, considering the fact that the father in the present case has been not ordered to pay for the maintenance amount for his fi₹t wife, but his liability to maintain the child cannot be subordinate to any such financial arrangement of paying EMI or loan repayment. The father cannot deny payment for the food, clothing, residence, medical need of the children, even the tuition expenses”.

Senior Advocate I.H. Syed appeared for the applicant and Advocate Hemant B. Raval appeared for the respondent.

In the matter, triplets were born to the parties involved, where following the separation of the husband and wife, the mother, a primary teacher currently earning ₹.88,368/- per month, sought enhanced maintenance for the three children, who are now in the 11th standard.

The father, employed as a 'water bearer' with a monthly income of ₹ 14,600/-, resisted the enhancement, citing his mother, second wife, and a son from his second marriage as dependents. He further argued that his income was significantly lower than the mother's and that his financial capacity was constrained by a loan of ₹ 40,000/- taken for his second wife and insurance premiums.

Thereafter, a January 31, 2017 order had initially fixed maintenance at ₹ 1,800/- per child. A subsequent application for enhancement under Section 127 of the CrPC was rejected by the Family Court, Nadiad in 2019, on the grounds that the mother had suppressed her salary increase and the children’s receipt of government scholarships.

Following a series of applications and a remand from the Supreme Court directing a fresh decision in light of the Rajnesh v. Neha (2021) 2 SCC 324 guidelines, the High Court restored the revision application to hear the matter on its merits.

The Court relied on the Supreme Court's directives in Rajnesh and Deepa Joshi, noting that a wife’s income is not a bar to seeking maintenance for children.

“…Having considered the judgment of Rajnesh (supra), where inspite of the fact that wife is earning, the liability of the father to maintain his child cannot be denied. The mother individually is handling the educational and medical expenses of all the three children. Mother is only the total support system for the three children. Some centre demand sheet has been produced which reflects the name of Pushpaben - the second wife of the respondent – father. What is that document has not been clarified. Since no evidence could be led and that no cross-examination could be conducted, this Court would not make any appreciation or analysis of that document, to be read as evidence”, the Bench noted.

Accordingly, the Court allowed both applications, recalling its previous order and setting aside the 2019 Family Court judgment.

The prayer for enhancement was granted, increasing the maintenance from ₹1,800/- to ₹3,000/- per month for each of the three children. The order was made effective from July 16, 2019, coinciding with the notification of the father’s current salary level, with directions that previous payments be appropriated accordingly.

Cause Title: X v. Y R/CR.MA/15576/2024

Appearances:

Applicant: I.H. Syed, Senior Advocate, Vidhi J. Bhatt, appeared for the applicant-husband,

Respondents: Hemant B. Raval represented the respondent-mino₹. Mr. Niraj Sharma, APP, appeared for the State.

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