Safiya Malik

The High Court of Delhi, Single Bench of Justice Dr. Swarana Kanta Sharma, issued a significant order on May 13, 2025, remanding a matrimonial maintenance dispute back to the Family Court for reconsideration. The Court directed the Family Court to specifically assess the income affidavits and bank statements submitted by both parties before passing a fresh reasoned order. Meanwhile, the High Court ordered the petitioner to continue paying interim maintenance to his estranged wife and minor child.

The petitioner-husband, Praveen Kumar, filed a criminal revision petition seeking to set aside the Family Court’s order dated October 21, 2023, passed in MT. Case No. 287/2022. The marriage between the parties was solemnized on January 12, 2016. A child was born out of the wedlock, who is currently in the custody of the respondent-wife, aged about six years. The couple has been living separately since July 2017.

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The respondent-wife filed a petition under Section 125 of the Code of Criminal Procedure, 1973, seeking maintenance. The Family Court, through its impugned order, directed the petitioner to pay monthly interim maintenance of ₹7,500 to the respondent and ₹7,500 to the minor child. However, no maintenance was awarded for the period before January 2023, as the respondent was found to have been earning until December 2022.

The petitioner argued that the petition was filed solely to harass and humiliate him and that he was already under mental stress from the ongoing litigation. He contended that he earns only ₹10,000–₹15,000 per month as a practicing advocate at District Court, Jind, Haryana, and supports his 72-year-old mother. In contrast, he argued that the respondent-wife is highly educated and previously earned ₹40,000–₹45,000 per month, including from tuition work. Her bank statements and ITRs reflected high-value transactions, indicating her financial stability. He further stated that major expenses for the child’s education are borne by the Delhi Government.

The learned counsel for the respondent contended that the petitioner is a well-established advocate practicing before the High Court of Punjab & Haryana since 2010 and also derives income from rental properties. The respondent is currently unemployed and has the responsibility of single-handedly raising the minor child. The Family Court correctly assessed the petitioner’s notional income at ₹30,000 per month and awarded a reasonable interim maintenance.

The respondent’s counsel further submitted that the respondent had to give up her job as a teacher due to long commuting hours and the absence of family support for childcare. Her discontinuation from employment was thus justified. It was also argued that the petitioner failed to produce credible proof of the respondent’s alleged income, whereas she presented sufficient evidence of his affluent lifestyle.

The Court recorded that it is undisputed that the respondent was employed as a TGT earning approximately ₹30,000 per month until 2022. However, she resigned due to the demands of single-handedly raising the minor child and the burden of long commuting hours. Justice Dr. Swarana Kanta Sharma observed:

“The responsibility of caregiving to a minor child falls disproportionately upon the parent with custody, often limiting their ability to pursue full-time employment, especially in cases where there is no family support to take care of the child while the mother is at work.”

The Court referred to the Supreme Court’s decision in Rajnesh v. Neha & Anr.: (2021) 2 SCC 324, which states:

“On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, this factor would be required to be given due importance.”

The Court further noted that the Family Court had committed no error in appreciating the factual matrix and applying the correct legal principles, including the judgment in Shailja v. Khobbana: (2018) 12 SCC 199, where it was held that “mere capability to earn is not the same as actually earning.”

However, the High Court also recorded that while assessing the petitioner’s notional income, the Family Court had not specifically referred to the petitioner’s income affidavit or bank statements, instead estimating his income based on assumptions. Although such estimation is permissible at the interim stage, the Family Court should have explicitly noted the insufficiency in the petitioner’s financial disclosures before resorting to a notional assessment.

The Court concluded that although the notional income assessed is not entirely disproportionate, the proper course is to remand the matter to the Family Court for fresh consideration.

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The High Court passed the following directives:

1. The matter is remanded to the learned Family Court to reconsider the application for interim maintenance afresh, taking into account the income affidavits and bank statements submitted by both parties.

2. The Family Court shall pass a reasoned order in accordance with the law within one month from the date of receipt of the order.

3. In the interim, the petitioner shall continue to pay ₹7,500 per month to the respondent-wife and ₹4,500 per month to the minor child. This arrangement is without prejudice to the final determination and the amount paid shall remain adjustable against future maintenance.

4. The payments shall be made regularly before the 10th day of each calendar month either directly or by deposit in the bank accounts of the respondents.

5. The judgment was directed to be uploaded on the official website forthwith, and a copy was ordered to be forwarded to the learned Family Court for compliance.

Advocates Representing the Parties

For the Respondent: Mr. Mayank Maini, Mr. Anmol Chadha, Mr. Biman Sethi, Mr. Aryan Sharma, and Mr. Ankit Verma, Advocates.

Case Title: Praveen Kumar v. Pooja Arya

Neutral Citation: 2025: DHC:3627

Case Number: CRL.REV. P. 1373/2024 & CRL.M.A. 38590/2024

Bench: Justice Dr. Swarana Kanta Sharma

[Read/Download order]