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The Delhi High Court has held that while determining maintenance under the Protection of Women from Domestic Violence Act, 2005 (DV Act), a court cannot assume that the wife would be gainfully employed merely because she was educated or was employed prior to her marriage.
Thus, whether the wife is “capable of earning” or whether she is “actually earning” would be two different requirements, the Court said.
The judgment was passed by a Single Judge Bench of Justice Sanjeev Sachdeva in a plea challenging an appellate court’s order that reversed a trial court order of interim maintenance to the petitioner-wife.
After forming a prima facie view, the trial court had awarded interim maintenance of Rs. 16,500 per month to the petitioner-wife under Section 23(1) of the DV Act.
The order was set aside by the appellate court primarily on the ground that petitioner was an educated person and there was no reason mentioned as to why she was unemployed now when she working prior to her marriage.
It held that since the wife was in a position to work and earn her livelihood, she could not be said to be a “victim of vagrancy” and hers was a self-created situation. The appellate court thus disentitled her to maintenance.
The appellate court also noted that the respondent-husband had produced material to show that the wife was gainfully employed and that his uncle had even managed to get her a job in the Indian Railways.
Before the High Court, the wife pleaded that she was never gainfully employed in any organization. She submitted that although several attempts were made to secure employment, she was unable to do so.
She also claimed that she never worked with the Indian Railways, as the husband’s uncle had fraudulently secured employment in her name. Salary was credited to an account opened in her name, but the money was debited by the uncle.
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.”
Further, the Court observed that the rationale for grant of maintenance under Section 125 CrPC 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.”
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.”
The appellate court’s order was, therefore, set aside and the order passed by the trial court awarding maintenance of Rs. 16,500 per month to the wife was restored.
The petitioner was represented by Advocate KK Sharma.
The respondent was represented by Advocate Tushar Sannu.
Read the judgment: