Domestic Violence: Qualification And The Capacity To Earn Cannot Be A Ground To Deny Interim Maintenance To Wife: Delhi HC [Read Judgment]

The Delhi High Court on August 9, 2019, in the case of Binita Dass v. Uttam Kumar has held that the Magistrate cannot deny interim maintenance to wife only because she has earning capacity or is a qualified person.

A Bench of Justice Sanjeev Sachdeva was hearing an appeal filed by the petitioner being aggrieved by the decision of the Trial Court and the Appellate Court.

In this case, the petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with the application had filed an interim application under Section 23 seeking interim maintenance. The said application was rejected by the Trial Court solely on the ground that the petitioner and respondent are equally qualified and petitioner was previously employed and has not disclosed any cogent explanation or disability on her part so as to disable her to earn her living.

Subsequently, the Appellate Court also dismissed the appeal on the ground that the petitioner was earlier working in a private company and has the capacity to work and with earnest efforts she shall be able to search a suitable job for herself.

When the matter reached the Delhi High Court, the court placed reliance on its decision in Kanupriya Sharma v. State & Anr, and observed: "Clearly both the Trial Court as well as the Appellate Court have erred in not appreciating the judgments of this Court wherein it has specifically been held that capacity to earn and actually earning are two different things.

The High Court held that "It is not the case of the respondent, that petitioner is actually employed or earning. The only ground taken is that she is qualified and capable of earning.......... Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependant and does not have any source of income.

[Read Judgment]