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Husband has to pay maintenance for children irrespective of his wife earning
Farooq Ahmed Shala Vs Marie Chanel Gillier
About/from the judgment:
The Delhi High Court was hearing a revision petition challenging an order of the Sessions Court whereby an appeal of the petitioner against an order of the Trial Court was dismissed.
The petitioner, a Muslim married the respondent, a Christian by performing Nikah in 2004, with their marriage being registered under the Special Marriage Act, 1954. The petitioner already had two daughters from a previous marriage and from the current wedlock, two more were born. After their separation in 2015, the respondent wife started taking care of not only her own daughters but also of a minor daughter of the petitioner from his previous marriage. The other daughter from that marriage had turned a major and started residing with the petitioner out of her own free will.
Allegations of domestic abuse were brought against the petitioner under section 23 of the Domestic Violence Act, 2005. While deciding her petition, the Trial Court directed the husband to pay interim maintenance of Rs.60,000/- per month to the respondent wife observing that this income would not be less than Rs. 2 lakhs. Aggrieved by such order, the petitioner filed an appeal which was again dismissed.
During the course of proceeding before the High Court, the petitioner contended that he had no source of income as the business which was being run by him had been taken over by the respondent. Hence the petitioner requested the Court to absolve him of the liability of taking care of the respondent along with his minor daughters.
The High Court, in consonance with the findings of by the Sessions and Trial Court, noted that the petitioner had not been truthful in his disclosure and had concealed his income and expenditure to avoid paying any maintenance to his wife and daughters. The Court further observed the petitioner has a legal, social and moral responsibility not only to maintain his wife but also his children and hence cannot escape the duty of maintaining his daughters even if his wife is assumed to be earning.
The Court observed that
"A mother who has custody of a child not only spends money on the upbringing of the child but also spent substantial time and effort in bringing up the child. One cannot put value to the time and effort put in by the mother in upbringing of the child."
Referring to Bhuwan Mohan Singh V. Meena (2015) 6 SCC 353, the Court reiterated that to avoid liability under Section 125 of the Cr.P.C, a situation should not be maladroitly created where the wife is compelled to resign to her fate and that it was the sacrosanct duty of the husband to render the financial support even if he is required to earn money with physical labour if he is able-bodied.
Thus, the Court held that the petitioner had to pay maintenance even if the respondent wife was earning:
"The expenditure as disclosed by the respondent wife on the three daughters is far in excess of Rs. 60,000/- per month, the amount that has been fixed as an interim measure by the Trial Court. Clearly, the remaining expenditure for bringing up the three children is being borne by the respondent wife from her own sources. Merely because Respondent – wife is earning, does not give an excuse to the husband to avoid working or undertake the responsibility of maintaining his children."
The plea of the petitioner was thus dismissed.
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