Grant of maintenance under Domestic Violence not dependent on earning of wife

The Delhi High Court has held that granting of maintenance by wife in divorce petitions under the Protection of women from Domestic Act, 2005 a court cannot assume that wife would be gainfully earning because she was working or is educated prior to her marriage. The court more emphasizely made it very clear that there is difference between “whether a wife is capable of earning” or “whether she is actually earning” and are to be treated as two different requirements. Further the court observed that rationale for the grant of maintenance under 125 CrPC on all fours to grant maintenance under the DV Act.

The court observed that the maintenance should not be granted merely on the earning capacity of wife. The court further stated that the wife’s capability to earn was not a requirement for determining maintenance under the DV Act. The court also noted that a claim for maintenance under the DV Act by the wife under Section 125 of CrPC was qualified by the expression unable to maintain herself. However, there were no such qualifying words under the DV Act. Thus, to conclude it can be said that in a case where there is dispute as to whether wife is gainfully employed or not a court cannot assume that the wife is educated or employed  or was employed prior to her marriage or she will be gainfully employed for the claim of maintenance under the DV Act.