Delhi High Court: In a revision petition filed by the petitioner (‘husband’), seeking to set aside the order dated 21-10-2023, passed by the Family Judge, North District, Rohini Courts, Delhi (‘Family Court’), Swarana Kanta Sharma, J.*, stated that it is well settled that the responsibility of caregiving to a minor child fell disproportionately upon the parent with custody, often limiting their ability to pursue full-time employment, especially in cases where there was no family support to take care of the child. In such circumstances, the cessation of employment by the respondent (‘wife’) could not be viewed as voluntary abandonment of work but consequently necessitated by the paramount duty of childcare.
The Court found no perversity or legal infirmity in the said assessment by the Family Court and further stated that, while awarding interim maintenance, the Family Court had rightly considered the needs of the child, and the standard of living to which the parties were accustomed.
Background
The marriage between the parties was solemnized on 12-1-2016 and a child was born from wedlock, who was currently in the custody of the wife. The parties have been living separately since July 2017. The wife alleged that she was subjected to cruelty and harassment by the husband, who was a practicing advocate. The wife was earlier employed as a guest teacher with the Delhi Government but became unemployed upon the termination of her contractual employment on 8-12-2022.
The wife filed a petition under Section 125 of Criminal Procedure Code, 1973, seeking maintenance, and the Family Court, had vide impugned order, directed the husband to pay a monthly interim maintenance of Rs. 7,500 each to the six-year-old child and to the wife. However, since the wife was admittedly earning a notional income equivalent to the husband until December 2022 and was equally responsible for the child’s upkeep, no maintenance was awarded for the period prior to January 2023. Thus, the husband was made liable to pay arrears from January 2023 onwards until further orders.
The husband contended that since the wife was capable of earning, she was not entitled for maintenance. He further contended that he was already struggling financially and emotionally and was in no position to comply with the maintenance order. Hence, the impugned order deserved to be set aside.
Analysis, Law, and Decision
The Court observed that the wife was employed as a TGT, earning approximately Rs. 30,000 per month until 2022. However, she was compelled to resign from her position due to the demands of single-handedly raising the minor child, coupled with the burden of long commuting hours. These circumstances, as reflected in the pleadings and submissions, reasonably explained her discontinuation from employment. It was undisputed that the wife was presently unemployed.
The Court stated that in the present case, it was not in dispute that the parties were residing separately, and the wife was taking care of the minor child as a single parent. Further, the Court observed that the wife was previously employed as a guest teacher. However, owing to the compelling responsibilities of single-handedly raising the child and the considerable distance of her workplace, she had to discontinue her employment. The Court found the explanation both reasonable and justified.
The Court stated that it is well settled that the responsibility of caregiving to a minor child fell disproportionately upon the parent with custody, often limiting their ability to pursue full-time employment, especially in cases where there was no family support also to take care of the child while the mother was at work. In such circumstances, the cessation of employment by the wife could not be viewed as voluntary abandonment of work.
The Court stated that it was not the potential earning capacity of the wife but her actual income at the relevant time that has to be considered while determining the amount of maintenance. Thus, the Family Court had rightly observed that there exists a material distinction between being ‘capable of earning’ and ‘actually earning’.
The Court stated that the Family Court had rightly held that for the period during which the wife was employed, she was not entitled to maintenance. However, for the period thereafter, when it was prima facie evident that she remained unemployed due to her role as the primary caregiver for the minor child, the notional income of the husband was appropriately assessed.
The Court further stated that, while awarding interim maintenance, the Family Court had rightly considered the needs of the child, and the standard of living to which the parties were accustomed. The Court stated that it found no perversity or legal infirmity in the said assessment.
However, considering that the income affidavit filed by the husband was not taken into consideration, the Court remanded the matter back to the Family Court. The Court stated that the Family Court should reconsider the application for interim maintenance afresh, specifically considering the income affidavits and bank statements filed by both parties and pass a reasoned order in accordance with law. The said exercise should be completed within one month of the date of receipt of this order.
Meanwhile, as an interim arrangement, the husband should continue to pay Rs. 7,500 per month to the wife and Rs. 4,500 per month to a minor child, which should be without prejudice to the final determination by the Family Court, and any amount paid should remain adjustable in future maintenance. Accordingly, the Court disposed of the present petition.
[X v. Y, CRL.Rev.P. 1373 of 2024, decided on 13-5-2025]
*Judgment authored by- Justice Swarana Kanta Sharma
Advocates who appeared in this case:
For the Respondent: Mayank Maini, Anmol Chadha, Biman Sethi, Aryan Sharma and Ankit Verma, Advocates
Buy Code of Criminal Procedure, 1973 HERE
