Del HC | Qualification of wife and capacity to earn cannot be ground to deny her interim maintenance if she is without source of income

Delhi High Court: Sanjeev Sachdeva, J. allowed a criminal revision petition filed by the petitioner-wife against the order of the Appellate Court whereby her appeal against the trial court order rejecting the application for grant of interim maintenance was dismissed.

The petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with it filed another application under Section 23 seeking interim maintenance. The application was rejected by the trial court on the sole ground that the petitioner and the respondent-husband were equally qualified. That she was previously employed and had not disclosed any cogent explanation so as to disable her to earn her living. The appeal filed by the petitioner against this order was dismissed by the Appellate Court. Aggrieved thereby, the petitioner filed the present revision.

Arvind Kumar with Vaibhav Kumar, Advocates represented the petitioner. Per contra, Sofia Bhambri, Advocate appeared for the respondent.

The High Court was of the view that both the courts below erred in not appreciating the decisions wherein it had been specifically held: “capacity to earn and actually earning are two different things.” Reference was made to the recent decisions in Kanupriya Sharma v. State, 2019 SCC OnLine Del 8816 and Bisht v. Dharmender Singh Bisht, 2019 SCC OnLine Del 8775.

In the present case, the Court noted that it was not the case of the respondent that petitioner was actually employed or earning. The only ground taken was that she is qualified and capable of earning. Reliance was placed on the Supreme Court decision in Shailja v. Khobbanna, (2018) 12 SCC 199, wherein it was held that whether the wife is capable of earning or whether she is actually earning two different things. The High Court observed: “Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependent and does not have any source of income.”

In such view of the matter, it was held that the impugned orders of the trial court as well as the Appellate court could not be sustained and were, therefore, set aside. Accordingly, the petition was allowed and the matter was remitted to the trial court with a direction to pass appropriate order assessing interim maintenance after taking into consideration the income of the respondent as well as his dependant family members within 3 months.[Binita Dass v. Uttam Kumar, 2019 SCC OnLine Del 9666, decided on 09-08-2019]

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