Estranged wife having a source of income is not a ground for reduced maintenance to estranged wife and minor children

Delhi High Court: A Single Judge Bench comprising of I.S Mehta, J, dismissed a revision petition before it against the interim maintenance awarded under Section 397 read with Section 482 to set aside/reduce the interim maintenance awarded to Respondents 2 and 3 under Section 125 CrPC.

The petitioner and Respondent 1 were married and had 2 issues during the wedlock, Respondents 2 and 3. The petitioner and his family members chased away Respondent 1 along with Respondents 2 and 3 from her matrimonial home. Subsequently, a complaint was filed against the petitioner. However, the parties settled their disputes through mediation and Respondent 1 returned to her matrimonial home with Respondents 2 and 3. Months later, the petitioner beat the respondents and expelled them from the house. The respondents then started living in Respondent 1’s parental house.

Consequently, after hearing the counsel for the parties and after perusal of the documents placed on record the learned Principal Judge, Family Courts, North-East District, Vishwas Nagar, Delhi vide impugned order dated 09.03.2015 in MT No. 24/14 directed the petitioner to pay an interim maintenance of Rs. 3,000 per month each to his children, i.e. Respondents 2 and 3 from the date of filing of application, i.e. 15.10.2013, and every month thereafter regularly till the disposal of main petition. The revision petition was filed against this interim measure.

The learned counsel for the petitioner submitted that the learned trial court failed to appreciate the documents on record filed by the petitioner and the trial court has itself presumed the salary of the petitioner as Rs. 15,000 per month, whereas the petitioner had mentioned his salary as Rs. 8,200 per month on record and the petitioner is not capable to provide the said awarded amount to the respondents.

The Court held that the object of Section 125 CrPC is to provide speedy remedy to women and children who are unable to support themselves and are in distress. It is intended to achieve a social purpose and maintenance cannot be denied to the children on the premise that their mother is employed or has enough means to maintain them or that they are in the custody of their mother and also that it is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means. The mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child, even if, the means/income/salary of that spouse may be less than the means/income/salary of the other spouse.

In view of the circumstances, the Court found no infirmity in the impugned order. Revision petition dismissed.[Jetender Kumar v. Kamlesh,  2017 SCC OnLine Del 11622, decided on 10.11.2017]

2 comments

  • The expression”born out of wedlock” means born outside the marriage i.e. the parents were not married at the time of birth. In the present case, the correct phrase is “born during wedlock .” (Duhaime’s Law Dictionary: Collins Dictionary: Dictionary.com)
    “Child born out of wedlock. A bastard or illegitimate child is one born out of lawful wedlock. A child may be born out of lawful wedlock, either because he is the child of a woman who is not lawfully married at all, or because he is the child of a woman who is lawfully married, but upon whom he is begotten by another than her lawful husband.”
    Phipson on Evidence: “The legitimacy of a child born during wedlock is presumed; but if its parents are shown to have been judicially separated or to have been living apart under an order more than nine months before its birth, the presumption is reversed.”
    The Michigan Paternity Act, circa 2011 (§722.711 of the Michigan Compiled Laws): “Child born out of wedlock means a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage.”

  • The phrase “born out of wedlock” means born of parents who were not married at the time of birth.(Duhaime’s law dictionary: Collins dictionary: Dictionary. com). In the present case, the correct expression is “born during wedlock”.
    “The legitimacy of a child born during wedlock is presumed; but if its parents are shown to have been judicially separated or to have been living apart under an order more than nine months before its birth, the presumption is reversed.” (The Michigan Paternity Act, circa 2011 (§722.711 of the Michigan Compiled Laws)
    ” A bastard or illegitimate child is one born out of lawful wedlock. A child may be born out of lawful wedlock, either because he is the child of a woman who is not lawfully married at all, or because he is the child of a woman who is lawfully married, but upon whom he is begotten by another than her lawful husband.” (Phipson on Evidence)

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