FATHER CAN’T AVOID MAINTAINING CHILDREN JUST BECAUSE MOTHER IS EARNING
The Delhi High Court recently ruled that man cannot avoid the responsibility of maintaining his children on the ground that his estranged wife is earning because a lot of time and effort also go into the upbringing.
In Farooq Ahmed Shala v. Marie Chanel Gillier CRL.REV.P. 855/2018, Justice Sanjeev Sachdeva said it would be incorrect to hold both parents equally responsible for the expenses of a child.
In the case, the Petitioner has challenged the order of interim maintenance @ Rs.60,000/- per month. The Petitioner challenged the order on the ground that he is a pauper and does not have any source of income and that the respondent wife herself is running a business.
The High Court of Delhi dismissed the appeal and made the following observations in the case:
Para 18. Mere fact that the respondent wife is earning does not absolve the petitioner of his responsibility to maintain his three minor daughters. Admittedly, the petitioner is a businessman and was running businesses not only in Delhi but also in Jammu & Kashmir, before the time disputes commenced and even after that for some time. No reason or material has been placed on record by the petitioner to even prima facie show that he is incapable or incapacitated from earning.
Para 21. Petitioner has a legal, social and moral responsibility to not only maintain his wife but also his children. Even if assuming that the respondent is earning, the same cannot be a reason for the petitioner to avoid the responsibility and duty of maintaining his minor daughters.
Para 22. A child for her upbringing does not only require money. A lot of time and effort goes in upbringing of a child. It would be incorrect to hold that both the parents are equally responsible for the expenses of the child. 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. No doubt,mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two.
Para 23. The Supreme Court of India in Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 has held that Section 125 of the Code of Criminal Procedure was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.
Para 26.The Appellate Court has rightly held that the respondent wife is singlehandedly raising the children regardless of the fact that she is also bringing up the biological child of the petitioner from his previous marriage.
Court dismissed the petition and held that keeping in view of the dependency factor and the fact that the only dependent member of the petitioner are his three minor daughters, who are presently in the custody of the respondent, who is taking care of them, the award of interim maintenance of Rs.60,000/- per month, to my mind, is not unjustified.
Farooq Ahmed Shala v. Marie Chanel Gillier CRL.REV.P. 855/2018
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