Husband is duty-bound to pay maintenance to wife and children, even in the absence of regular income, says Supreme Court

The loss of regular income cannot be a legitimate reason for not fulfilling the obligation to pay maintenance if the husband is otherwise able-bodied, the Supreme Court has held. 


THE Supreme Court bench of Justices Dinesh Maheshwari and Bela M. Trivedi recently held that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children.  To fulfil this obligation, the husband is required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute, the bench held. 

The bench made this observation, when the respondent-husband in the case before it, submitted that he had no source of income as his business had been closed, and therefore he could not pay maintenance to his wife and children, as directed.  The bench said that it was neither impressed by nor was ready to accept such submissions, and observed that the respondent, being able-bodied, is obliged to earn by legitimate means and maintain his wife and the minor child.  

In this case, the bench found that the respondent had a sufficient source of income, but yet failed and neglected to maintain the appellants, the wife and the children. 

The wife, in this case, has filed a Special Leave Petition against the judgment passed by the Punjab and Haryana High Court which had, in 2018, dismissed her revision application, arising out of the order rejecting maintenance allowance, passed by the Family Court, Faridabad.

The wife, had sought maintenance under section 125 of the Code of Criminal Procedure, 1973, on the ground that the husband had allegedly inflicted cruelty on her, and also tortured her for dowry and neglected their daughter and son. The wife along with the children was compelled to leave the matrimonial home because of the harassment. 

The husband contested the petition and denied all allegations of harassment and demand for dowry. 

In 2014, the Family Court passed an order of interim maintenance of Rs.40,000 per month in favour of the wife and the minor son. No interim maintenance was granted to the daughter as the court said that she has attained the age of majority. However, despite the conditional warrants of arrest issued against the husband, he failed to appear before the court and make payment for the interim maintenance. As a result, the Family Court denied his right to cross-examination in 2015. 

The husband, while admitting that the marriage took place and that they had a daughter, however, claimed that the minor son was not his biological child. He filed an application before the Family Court for a DNA test to substantiate his allegation, which was refused. 

The husband then challenged all the orders of the Family Court before the high court through a revision application. The high court refused to stay the proceedings of the Family Court. 

Despite the fact that the evidence and testimony of the wife remained unchallenged, the Family Court rejected the maintenance allowance of the wife and daughter. It appreciated all evidence put forth by the wife and only allowed the application of the minor son, granting him a maintenance allowance of Rs. 6,000/ per month till he attained the age of majority. 

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A revision application was filed challenging this order before the high court. However, the same was dismissed, compelling the wife to approach the Supreme Court. 

The Supreme Court had initially asked the parties to explore the possibility of mediation for settlement, at the request of the counsels. However, it found efforts for settlement have not been fructified. 

But it found that the allegations made by the husband against the wife were personal in nature questioning her chastity and she was prima facie justified in leaving the marital home. Thus, her entitlement to claim maintenance cannot be ignored, the court had observed. 

The bench found that the Family Court had conducted the proceedings without being alive to the objects and reasons, and the spirit of the provisions under section 125 Cr.P.C.

“The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children,” the judgment, authored by Justice Trivedi,  observed. 

Relying on Chaturbhuj versus Sita Bai (2007), the bench emphasised that it is the settled position of the court that section 125 is a measure of social justice and is specially enacted to protect women and children. In Chaturbhuj, this court had held that the object of maintenance is to prevent the vagrancy and destitution of a deserted wife by providing her food, clothing, and shelter through a speedy remedy. 

It also falls within the constitution sweep of Article 15(3) and is reinforced by Article 39 of the Constitution, the court noted.  The Family Court, in the instant case, had not only overlooked and disregarded this settled legal position, but had proceeded with the case in an absolutely perverted manner, the bench held. 

Also read: Divorced Muslim woman can claim maintenance as long as she does not remarry: Lucknow bench of Allahabad High Court

The very fact that the right of the respondent to cross-examine the witnesses of the appellant-original applicant was closed, as he had failed to appear before the Family Court despite the issue of warrants, clearly established that he had no regard for his own family nor had any regards for the Court or for the law, the bench added.  

The Supreme Court also found evidence to believe that money was being paid to the respondent by the father of the appellant-wife, which substantiated her allegation that the respondent was demanding money from her father and was subjecting her to harassment. 

The bench found that there was nothing on record to substantiate the husband’s baseless allegations questioning the wife’s chastity.  Although the Family Court had granted a maintenance petition so far as the son was concerned, it had thoroughly misdirected itself by not granting the maintenance to his wife, it concluded.

Such an erroneous and perverse order of the Family Court was unfortunately confirmed by the High Court by passing a very perfunctory impugned order, the bench found.  The bench indicated the high court for passing the impugned order without assigning any reasons, in a very casual manner. 

The bench added that it could have remanded the case to the high court for rehearing the case, but deemed it proper to pass the order, to avoid further delay. The bench granted a maintenance allowance of Rs.10000 per month to the wife, over and above the maintenance allowance of Rs.6000 granted by the Family Court to the son.  The bench thus directed the respondent to pay a maintenance amount of Rs.10000 per month to the appellant-wife from the date of filing of her Maintenance Petition before the  Family Court, within eight weeks. 

Click here to view the full judgment of the Supreme Court. 

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