Wife’s earning capacity not ‘actual’ income, says Delhi High Court in maintenance case

“A professionally qualified spouse may be required to make bona fide efforts towards securing suitable employment. Such a direction is neither beyond the jurisdiction nor outside the discretion of the court. However, the capacity to earn cannot be equated with actual earnings,” the July 30 order read.

The court was hearing two cross-revision pleas filed by the husband and wife challenging an October 2021 appellate order, which upheld the trial court’s direction requiring the husband to pay interim maintenance of Rs 1 lakh per month from the date of filing of the complaint.

The husband sought a reduction in the maintenance amount, while the wife sought an increase from Rs 1 lakh to Rs 3.38 lakh per month. She also challenged the appellate court’s direction asking her to make efforts to secure employment within one year, after which the trial court could review the maintenance amount.

Marriage, separation, maintenance dispute

The couple married in May 2010 according to Hindu rites and later had a son, who is presently living with and being maintained by the husband. They started living separately in January 2019, following which the wife filed a complaint under the Protection of Women from Domestic Violence Act.

She also sought interim maintenance of Rs 3.38 lakh per month for herself and the minor son. In May 2019, the trial court awarded her Rs 35,000 per month as interim maintenance.

Justice Madhu Jain held that after the husband’s services with Air India were terminated, the interim maintenance would stand reduced to Rs 15,000 per month.

The husband challenged that order, and in February 2020 the matter was sent back to the trial court for fresh consideration. The court noted that the wife held a B.Tech degree in Telecommunications but was unemployed, while the husband was employed with Air India. Based on his salary records, the trial court estimated his monthly income at around Rs 4-5 lakh. Since the son was residing with the husband, maintenance was awarded only to the wife.

Subsequently, by an order of September 2020, the trial court awarded interim maintenance of Rs 1 lakh per month to the wife from the date of filing of the complaint. Aggrieved by this order, the husband challenged the order seeking reduction, while the wife filed an appeal seeking enhancement.

The appellate court upheld the assessment of the husband’s income at Rs 4-5 lakh per month and found no reason to interfere with the Rs 1 lakh maintenance award. However, it observed that since the wife was professionally qualified and had worked earlier, she should make efforts to find employment. The couple then approached the Delhi High Court.

Meanwhile, the husband informed the court that he had stopped receiving salary after November 2020 and that his services with Air India had been terminated in April 2022.

‘Capacity to earn not same as actual income’

Noting that the minor son has been residing with and maintained by the husband, “The expenditure incurred towards him cannot be included in the wife’s individual requirement while determining the maintenance payable exclusively to her,” the court said.

Pointing out that a subsequent change in employment, income or liabilities does not make the original order illegal from its inception, the court said, “It may, however, require a prospective adjustment of the subsisting liability.”

The high court rejected the wife’s claim to enhance the maintenance, finding no ground to enhance the interim maintenance beyond Rs 1 lakh per month for the period during which he continued to receive substantial salaried remuneration.

Arguments

Representing the man, advocates Ajit Kumar and Shivam Singh argued that the order dated September 2022 granting an interim maintenance of Rs 1 lakh per month proceeds on an incorrect appreciation of his salary records. It was submitted that the husband had been taken off flying duties with effect from September 2019, and had not received any salary for July 2020.

It was further added that the minor son has been residing with the husband, who has been bearing his expenses. It was further submitted that the wife holds a B Tech. degree in Telecommunications and is residing with her family members in the residential flat owned by the husband.

The wife, appearing in person, argued that the husband had failed to comply with earlier directions to pay interim maintenance and had concealed his true income. She submitted that the maintenance of Rs 1 lakh per month was inadequate considering his income reflected in his Form-16 and the standard of living enjoyed during the marriage.