Maintenance Under Domestic Violence Act Doesn't Depend On Whether Wife Is Capable Of Earning: Delhi HC [Read Judgment]

The Delhi High Court on May 31, 2019, in the case of Kanupriya Sharma v. State & Anr., has observed that whether the wife is “capable of earning” or whether she is “actually earning” are two different requirements.

The court held that while determining maintenance under the Protection of Women from Domestic Violence Act, 2005, a court cannot assume that the wife would be gainfully employed merely because she was educated or was employed prior to her marriage.

A Single Judge Bench of Justice Sanjeev Sachdeva was hearing a plea filed by the wife against the judgment passed by the Appellant Court in which it had set aside a Trial Court order of interim maintenance to the petitioner of Rs. 16,500/- per month from the date of filing of the petition under Section 23(1) of the Protection of Women from Domestic Violence Act, 2005.

The Appellate Court has reversed the maintenance awarded by the Trial Court primarily on the ground that petitioner was duly qualified and educated person and there was no reason mentioned as to why she was unemployed.

It was also noted that the respondent-husband had produced material to show that the petitioner was gainfully employed and that his uncle had even managed to get her a job in the Indian Railways.

Thus, Appellant Court held that as petitioner was in a position to work and earn her livelihood, she could not be said to be a victim of vagrancy and being a self-created situation, she was disentitled to maintenance.

The learned counsel, appearing for the petitioner submitted before the High Court that the petitioner was not gainfully employed, although she had made several attempts to secure an employment but was unable to do so.

It was also submitted that the petitioner never worked with the Indian Railways. Her husband’s uncle had fraudulently secured an employment in her name in Indian Railways from which salary was being credited to an account opened in her name and the money deposited in the said account was being debited by the uncle and credited to his son’s account.

The court noted that while the issue of whether the wife was in gainful employment was a disputed fact that was required to be determined by a trial, an application under Section 23(1) of the DV Act for fixing interim maintenance was to be decided on a prima facie basis.

“Serious disputed questions of facts raised at that stage, requiring evidence cannot be gone into. Unless undisputed evidence is produced by the husband clearly establishing that the wife is gainfully employed, relief of interim maintenance cannot be declined,” the court said.

The court placed reliance on a Supreme Court decision in Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, and observed that the rationale for grant of maintenance under Section 125  of the Code of Criminal Procedure, 1973, applied “on all fours” to the grant of maintenance under the DV Act. Yet, the wife’s capability to earn was not a requirement for determining maintenance under the DV Act.

The court noted that a claim of maintenance by a wife under Section 125 CrPC was qualified by the expression “unable to maintain herself”. However, there were no such qualifying words under the DV Act.

“Under section 20 DV Act, the magistrate has powers to direct Respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may inter alia include the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 Cr.P.C. or any other law for the time being in force. Under section 20(2) the monetary relief granted has to be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed,” the court said.

It thus recorded that whether the wife was capable of earning or whether she was actually earning were two different requirements.

Since the husband had not placed any material before any court to show that the wife had secured any employment or was receiving any salary or income, there was no justification to deny maintenance to the wife, the court concluded.

“In case there is a dispute as to whether the wife is gainfully employed or not, a court cannot assume, as has been done in this case by the Appellate Court, that because she is educated or was employed prior to her marriage, she would be gainfully employed.

The Appellate Court while reversing the well-reasoned finding of the Trial Court has erred in holding that it is a self-created situation of the Petitioner.”

Therefore, the court set aside the order passed by the Appellant Court and restored the order of maintenance of the Trial Court.

[Read Judgment]