Del HC | It is for the wife to establish alleged source of husband’s income; Husband would have paid maintenance rather than going jail: HC reduces interim maintenance to wife and son

Delhi High Court: Subramonium Prasad, J., partly allowed a revision petition filed by the husband and reduced the amount of interim maintenance granted to the respondent-wife and son from Rs 12,500 per month to Rs 4,500 per month. While so deciding, the Court held that:

It is trite law that it is for the wife to establish that the petitioner [husband] was earning some amount from the business of his father and that even after the death of the petitioner’s father the business was continued by the family members. Some material ought to have been produced by the respondent to substantiate the contention that the petitioner was also running some business in the name of Rakesh & Company.

The husband filed the instant petition against the order of the Family Court, Saket, whereby he was directed to pay the maintenance at Rs 12,500 per month to the applicant wife and their son (Rs 7,500 for the wife and Rs 5,000 for the son).

Backdrop

The petitioner and respondent 1 got married in 2012. A son was born to them. However, disputes arose, and the husband filed a petition for restitution of conjugal rights against the wife under Section 9 of the Hindu Marriage Act, 1955. On the other hand, the wife filed an application under Section 125 CrPC for grant of maintenance. An application for interim maintenance was also pressed. The wife alleged that the husband was earning Rs 35,000 per month. This included salary of Rs 20,000 drawn by working in a shop and another Rs 15,000 earned from his father’s business. An amount of Rs 18,000 (Rs 10,000 for the wife and Rs 8,000 for the son) was claimed as maintenance.

The husband disputed his income as alleged by the wife. The Family Court, however, estimated the husband’s income at Rs 30,000 per month and fixed the maintenance at Rs 12,500 per month.

On the husband’s inability to pay the amount as awarded by the Family Court, he was taken into judicial custody.

Contentions

The petitioner contended that the judgment of the Family Court was based on conjectures and surmises. He filed an affidavit and stated that his father was running a business of Sesame Oil, but it was closed after the father’s death. The petitioner husband also filed an affidavit of the Manager of the shop where the petitioner was working. The Manager deposed that the petitioner was drawing a salary of Rs 9,000 per month.

On the other hand, the respondent-wife contended that the husband was concealing his actual income.

Law, Analysis and Decision

Perusing the record, the High Court was of the opinion that the entire judgment of the Family Court was based on guesswork. There was no material, whatsoever, for the Family Court to conclude that the husband was earning Rs 30,000 per month. No reason was forthcoming as to why the appointment letter given by the employer of the husband was disbelieved/discarded by the Family Court.

It was held that it is trite law that it is for the wife to establish that the petitioner was earning some amount from the business of his father and that even after the death of the petitioner’s father the business was continued by the family members. Some material ought to have been produced by the respondent to substantiate the contention that the petitioner was also running some business in the name of Rakesh & Company. The Court was of the view that:

“In the absence of any material on record, the judgment of the Family Court fixing the salary of the petitioner at Rs 30,000 per month and awarding Rs 12,500 for the wife and children cannot be sustained.”

Further, the High Court found that it cannot ignore the fact that the husband was in jail because of his inability to pay maintenance to his wife:

Had the petitioner been capable of paying the maintenance, the petitioner would have made the payment rather than going to jail.

In view of the above and in view of the absence of any material to the contrary and the only material being the affidavit filed by the husband that he is earning Rs 9,000 per month, the High Court reduced the amount of maintenance as granted by the Family Court and directed the husband to pay a sum of Rs 4,500 as interim maintenance to the wife and their son from the date of filing of the petition, i.e. 1-3-2016. He was further directed to clear the arrears of maintenance within two months.

It was made clear that all the observations made in the instant order are only restricted for the purpose of calculating the interim maintenance; and the amount of maintenance to be paid under Section 125 CrPC would be arrived at by the Family Court after taking into account the entire evidence adduced by the parties before it. [Amit Kumar Sindhi v. Monika, 2021 SCC OnLine Del 1324, decided on. 23-3-2021]

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