While setting aside an order granting maintenance, the Madhya Pradesh High Court has held that the Family Court committed illegality in accepting the income of the wife based on an assertion in her affidavit in the absence of any pay slip.

The High Court was considering a criminal revision preferred by the petitioner (husband) challenging the order of the Family Court allowing an application under Section 125 of the CrPC and awarding an amount of Rs 10,000 to the respondent wife and Rs 5,000 to the respondent-minor son, towards monthly maintenance.

The Single Bench of Justice Dwarka Dhish Bansal held, “In my considered opinion, in absence of any pay slip of the respondent 1/wife, the Family Court has committed an illegality in accepting the income of the respondent 1/wife to be Rs.6,000/- p.m. on the basis of assertion in the affidavit filed by the respondent 1/wife and even in presence of the pay slip of the petitioner/husband, has committed an illegality in presuming the income of the petitioner/husband to be Rs.50,000/- p.m.”

Advocate Nilesh Kotecha represented the Petitioner while Advocate Paritosh Trivedi represented the respondents.

Arguments

It was the case of the petitioner husband that the Family Court committed an illegality in passing the impugned order without taking into consideration the actual income of the parties, and it was the respondent/wife, who was residing separately without there being any sufficient cause. It was further argued that although the respondent/wife had admitted her monthly income to be Rs 6,000, she had not produced any pay slip for the same.

Reasoning

On a perusal of the facts of the case, the Bench held that the Family Court had taken into consideration each and every aspect of the matter while recording a finding to the effect that the respondent wife was residing separately with sufficient cause. “Upon due consideration of the entire material available on record, this Court also does not find any illegality in the said findings recorded by the Family Court in respect of separate living of the respondent 1/wife with sufficient cause”, it added.

The Bench further noticed that the Family Court had, on the basis of the post/designation of the petitioner/husband held by him as Marketing Manager in an Agro Tech Company and presumed the monthly salary/income of the petitioner to be Rs 50,000 per month. The Bench was of the view that the Family Court ought to have directed both the parties to produce the current pay slip on record, as the same constituted cogent evidence for determining the Income/financial status of the parties to the lis and then on that basis ought to have passed the impugned order awarding maintenance to the respondent.

“Without there being any proper proof of income of Respondent 1/wife, the Family Court is not right in accepting the income of Respondent 1/wife to be Rs.6,000/- per month. Similarly, the Family Court is not right in presuming monthly salary of the petitioner/husband to be Rs.50,000/- p.m. ignoring the available pay-slip regarding salary of the petitioner/husband. If the Court was not satisfied with the photocopy of pay slip of the petitioner/husband’s income, then the production of a fresh/original pay slip could have been ordered”, it stated.

Setting aside the impugned order, the Bench remanded the matter back to the Family Court to decide the application under Section 125 CrPC afresh after restoring the application to its original number.

Cause Title: A v. B (Neutral Citation: 2026:MPHC-JBP:53157)

Appearance

Petitioner: Advocates Nilesh Kotecha, Namrata Kotecha,

Respondent: Advocate Paritosh Trivedi

Click here to read/download Order


Madhya Pradesh HCJustice Dwarka Dhish Bansal

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.