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(Guest)

Unemployed man can't be forced to pay maintenance to wife

Unemployed man can't be forced to pay maintenance to wife : HC

 

 


An unemployed man cannot be forced to pay maintenance to his estranged wife, the Delhi High Court on Friday ruled saying that in an era of equality of s*xes a person cannot be compelled to maintain others if spouses are on an equal footing.

 

"Under prevelant laws, a husband is supposed to maintain his unearning spouse out of the income he earns. No law provides that a husband has to maintain his wife, living seperately from him, irrespective of the fact whether he earns or not," Justice S.N. Dhingra said.

 

The court passed the order while setting aside the order of a family court which had directed the husband, who was unemployed, to pay a maintenance of Rs 5,000 to his wife.

 

The court said the wife, who was equally qualified as her husband and was working in an MNC, cannot ask for maintenance from her husband who lost his job.

 

"Court cannot tell the husband that he should beg, borrow or steal but give maintenance to his wife, more so when the husband and wife are almost qualified and capable of earning and both of them claimed to be gainfully employed before marriage," the court said while granting relief to the husband who was an NRI working in Angola in Africa.

 

"We are living in an era of equality of s*xes. The Constitution provides equal treatment to be given irrespective of s*x, caste and creed. An unemployed husband who is holding an MBA degree cannot be treated differently to an unemployed wife who is also holding an MBA degree.

 

"Since both are on equal footing, one cannot be asked to maintain the other unless one is unemployed and the other is employed," the court said.

 

Source: https://www.deccanchronicle.com/national/unemployed-man-cant-be-forced-pay-maintenance-wife-hc-962

 


Source: https://news.in.msn.com/national/article.aspx?cp-documentid=4314490

 

Source: https://www.expressindia.com/latest-news/Unemployed-man-cant-be-forced-to-pay-alimony-HC/673385/

 

Source: https://timesofindia.indiatimes.com/city/delhi/-Without-job-man-not-to-pay-maintenance-HC/articleshow/6448441.cms



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 32 Replies

Adv Archana Deshmukh (Practicing Advocate)     28 August 2010

Good information..


(Guest)
JUDGEMENT
 
 
 
Crl.M.C.No. 491/2009      Sanjay Bhardwaj & Ors. v. The State & Anr.   
 
 
* IN THE HIGH COURT OF DELHI AT NEW DELHI
 
 
Date of Reserve: 9th August, 2010
Date of Order: 27th August, 2010
+Crl.M.C.No. 491/2009
                  
 
  27.08.2010
 
 
  Sanjay Bhardwaj & Ors.        ... Petitioner 
      Through: Dr. Naipal Singh, Advocate
 
Versus
 
  The State & Anr.                ... Respondents
 
 
      Through: Mr. O.P.Saxena, APP for the State
      With Mr. Gajraj Singh, SI
      Mr. K.C.Jain, Adv. for the Complainant/Wife
 
 
JUSTICE SHIV NARAYAN DHINGRA
 
 
1. Whether reporters of local papers may be allowed to see the judgment?  Yes.
2. To be referred to the reporter or not?            Yes.
3. Whether judgment should be reported in Digest?        Yes.
 
 
JUDGMENT 
 
 
The present petition under Section 482 Cr.P.C. assails an order of interim maintenance under  The Protection of Women from  Domestic Violence  Act, 2005 (in short Domestic Violence Act)  passed by the learned MM  on 16th January, 2008  and confirmed by the learned  Additional Sessions Judge in appeal by order dated 29th February, 2008.
 
 
2.    The petitioner was a Non-Resident Indian, working in  Luanda,  Angola  in Africa as a Manager.  He came to India  taking leave from his job for marriage.  Marriage between the petitioner and respondent  no.2/wife was settled through matrimonial advertisement.  The respondent wife was MA (English) and MBA.  As per her bio-data sent before marriage, she was doing job with a Multinational Company.  The marriage between the parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant Kunj and was got registered on 25th May, 2007.  The parties lived together for a limited period of 10 days i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 6th  June, 2007.  While the allegations of husband are  that marriage failed within 3 weeks since  the wife was suffering from a chronic disease about which no information was given to him  before marriage  and a fraud was played.  The allegations made by wife were as usual of dowry demand and harassment.   Since the marriage did not succeed,  the husband/petitioner filed a petition under Section 12 of Hindu Marriage Act for declaring the marriage  as  null and void and the wife  first  filed an FIR against the husband under Section 498A/406 IPC and then filed an application under Section 12 of Domestic Violence Act.
 
 
3.    It is not relevant for the purpose of this petition  to go into the details of allegations and counter allegations made  by each other.  Suffice it to say that the learned MM passed an order dated 16th  January, 2008 directing husband to pay an interim maintenance of  ` 5000/- pm to the wife.  He fixed this maintenance without considering the contentions raised by the husband  (as is stated in the order)  that  the husband  lost his job in Angola  (Africa) where he was working  before marriage because his passport was seized by police  and he could not join his duties back.  After marriage he remained  in India, he was not employed.  In  the appeal,  learned Additional Session Judge noted the contentions raised by the husband that he had become jobless because of the circumstances as stated by him and  he had no source of income,  he was not even able to maintain himself and had incurred  loan,  but observed that since the petitioner had earlier worked abroad as  Sales Manager  and  in view  of the  provisions of  Domestic Violence Act,  he had the  responsibility to maintain  the  wife and monetary  relief  was  necessarily  to be provided to  the aggrieved person i.e. wife.  He observed that the wife was not able to maintain herself therefore husband,  who  earned handsomely  in past while working abroad, was liable to pay 5000/- pm to the wife as fixed by the learned MM. 
 
 
4.    A perusal of Domestic Violence Act  shows  that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance.  It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws.  While, the Act specifies  the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband  or the duties of  wife.  Thus,  maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife.  Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act,  Section 125 Cr.P.C  -  a husband is supposed to maintain his un-earning spouse out of the income which he earns.  No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not.   Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife,  more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage.  If the husband was BSc.  and Masters  in Marketing Management from Pondicherry University,  the wife was MA  (English) & MBA.  If  the  husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India.  Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.  
 
 
5.  We are living in an era of equality of s*xes.  The Constitution provides equal treatment to be given irrespective of s*x, caste and creed.  An unemployed husband,  who is holding an  MBA degree,  cannot be treated differently  to an unemployed wife, who is also holding an MBA degree.  Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed.  As far as  dependency  on parents is concerned,  I consider that once  a person is  grown up,  educated  he  cannot  be asked to beg and  borrow from the parents and maintain  wife.  The parents had done their duty of educating them and  now  they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves.
 
 
6.    It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence.  Marriages do fail for various other reasons.  The difficulty is that real causes of failure of marriage are rarely admitted in Courts.  Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts. 
 
 
7.    I therefore find that the order  dated 16th  January, 2008 passed by the learned MM and order dated 29th February, 2008 passed by the learned Additional Sessions Judge  fixing maintenance without there being any prima  facie proof of the husband being employed  are  not tenable  under  Domestic
Violence Act.  The petition is allowed.   The orders passed by Metropolitan Magistrate and learned Additional Sessions Judge are hereby set aside.
 
 

August 27,  2010               SHIV NARAYAN DHINGRA, J. 

(Guest)

yes a very good judgenment, this will help stop begging in DELHI.


(Guest)

great Mr. Justice Dhingra 

haa  

"Opportunity cost" gone with the wind now atleast  for sub ordinate courts in Delhi !

Now put in philosophy of Labor Wages Act and Bhopal Compensation into errant wife's "compensation" read with "opportunity cost" pleas and approach Hon'ble SC .....


(Guest)

DELHI HAS SO MANY BEGGARS, SHIKHANDIS AND RA*DIS. SOME BEG AT ROAD, SOME IN HOUSES. SOME BEG HUMBLY SOME SHOW YOU GUN OF 498A AND BEG IN COURT.

1 Like

(Guest)

agree madam. shikandis and randis have destroyed our culture and tradition. delhi metro life and culture is almost as comparable to advanced countries.but here instead of bullet gun randis have 498a gun. i really sympathise with real women sufferers as these randis make even their cases look weak.


(Guest)

@ Swatirswatir

"Second reminder"

Without use of words as in your above thread posting the same meaning could be conveyed with use of better expressions so why use such wordings in public platform where all forum threads are seen / read by public? 


Kindly use wordings which general public can relate to and kindly donot use such wordings in public platforms, it brings down your own message credibility which you are trying to say. 

1 Like

(Guest)

@Swatir: I agree with Arun sir. Without using such words also, we can send across the message effectively.

1 Like

(Guest)

mr arun kumar THE GREAT 

wat do u consider urself? a moderator on this website?

in a recent post u compared wives asking for maintenance to beggars how dare u?

if there are rules they apply to everybody including YOU

1 Like

(Guest)

@ Swatirswatir


I am not a moderator nor I waish to become one.


Prostitutes word that you use so often here in Family Law forum is more harsh a take given to a women (it could be a wife, mother and even sister) compared to beggers word which even Govt. of India in Census as well as Hon'ble SC has ridiculed to Govt. of India. If you understand this much then apply the Rules to me on usage of word beggers. BTW, all openning line of Ld. Advocate of wife's side is "I beg to state that my client is having no money to run this case"  so @ Swatirswatir, is it not begging before Court on rights of a wife than what it is, whereas no ld. Advocate can ever dream to use to open his brief before Court by saying "I beg to state that my client is prostitute and having no money to run this case".


I am fully aware that I called for writers discrition and publically warned you not once but twice not to use such words and if you pounce on me then I suggets kindly write to Admin. / Mods. of LCI Forum and delete my account for which I will not have any worry.

Arup (UNEMPLOYED)     29 August 2010

Mr Arun,

once you compared wives in case of 498a, with vamps.

A single hand can not clap. What about the other hand?

I also request him ( mr. swatir), not to use the said words, but not at public forum, but as a private message.


(Guest)

@ Arup ji,

Yes, I admitt usage of "vamps" and assure readers that some sea changes coming henceforth....shall we roll on now !

Supratim Paul (E)     30 August 2010

Good one ....

Equality must be there and our laws must not be gender biased any more. It must be equal for both men and women.

With the change in society where girls ...also are well educated and are working ... so both women and men must have equal rites and not bend towards towards women only.

Arup (UNEMPLOYED)     30 August 2010

yes mr sup,

Our so called constitutional equality also bised.

One can understand easily by the contradiction of Arts 15(1) & 15(3), of The Constitution of India. If Art 15 (3) was not there; then acts like 498a, dv act, could easily be challenged under arts 15 (1); 14; 13 & 12.

The unbiased position will be -  Either it is applicable to both, male and female, or the act will not be there.


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