Go through this judgement and talk to your lawyer and see if it suits your case .
Giving a new dimension to equality of s*xes in modern times, the Delhi High Court on Friday held that an unemployed man cannot be forced by the laws to “beg, borrow and steal” but pay alimony to his wife.
“Under the prevalent laws, a husband is supposed to maintain his unearning spouse out of the income he earns. No law, however, provides a husband has to maintain his wife, living separately from him, irrespective of the fact whether he earns or not,” said Justice S N Dhingra.
Interpretating the laws pertaining to maintenance in the wake of changing times, Justice Dhingra said, “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 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 per month to his wife. It noted that 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.
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 1 of 6
* 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
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 2 of 6
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
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 3 of 6
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.
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 4 of 6
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
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 5 of 6
(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
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 6 of 6
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.
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