The Delhi High Court in its recent order held that in maintenance proceedings, the onus to prove that the wife can sustain herself is on the husband. The court also remarked that the man cannot simply show magazine covers depicting that the wife is into modelling.
The order was passed by Single Judge Bench of Justice Subramonium Prasad.
The couple got married in 1985 and have been living separately since 2012.
The respondent wife thereafter filed a petition under Section 125 of Code of Criminal Procedure (CrPC) for grant of maintenance for her sustenance stating that she was treated with cruelty and was thrown out of the house in 2012.
The family court granted maintenance of Rs 17,000 per month to the wife back then. However, the same was challenged before the High Court by the husband.
Arguments By Husband
The petitioner-husband highlighted that the respondent in her statement under Section 165 of the Indian Evidence Act had herself revealed that she was doing modelling. Therefore, he argued, it was for the respondent to establish that the income earned by her was so less that she could not maintain herself.
To support his case, the petitioner also showed certain covers of magazines and newspaper articles to establish that the respondent was employed and capable of maintaining herself.
High Court Observation & Order
According to the guidelines laid down by the Supreme Court, the High Court observed that Section 125 CrPC was enacted to remedy or reduce the financial sufferings of a woman who is forced to leave her matrimonial house. The court said,
It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes.
Analysing the present case, the court was of the opinion that, although the respondent had admitted that she was doing modelling infrequently, that by itself would not mean that she would be able to sustain herself.
The Court noted that the petitioner had not brought any evidence to establish that the respondent was earning sufficiently to maintain herself. Justice Prasad said,
Her affidavit of income does not show that she is earning enough to sustain herself. The onus then shifts on the petitioner to show as to how much the respondent is earning and that is sufficient to maintain herself…It is well settled and the Supreme Court has time and again laid down that newspaper clippings etc. are not evidence. Apart from filing a few covers of magazines and one newspaper clipping nothing has been filed by the petitioner to substantiate that the respondent is earning sufficient income to maintain herself.
Further, the court considered that the petitioner husband was working as an Assistant Sub-Inspector (ASI), there had been no divorce between the two, and that both his sons were majors and well employed, the Court concluded that it is the moral and legal obligation of the petitioner to maintain the respondent wife. Dismissing the appeal, Delhi High Court said,
The petitioner has not been able to point out any perversity in the impugned order. The petitioner is an ASI and is earning well so as to pay Rs 17,000 to his wife who has no stable source of income. No material has been placed on record to show that the respondent is able to sustain herself. Magazine covers are not sufficient evidence to demonstrate that the respondent can sustain herself.
When the court reviewed whether the petitioner has filed any petition for divorce, the learned counsel for the husband stated that the children did not want the petitioner to take divorce from his wife. In view of the above, it becomes the moral and legal obligation of the petitioner/husband to maintain his wife.
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