Delhi High Court: Shared custody no escape from maintenance: Delhi High Court says husband must support wife & child living with her – The Times of India

The Delhi High Court has held that a husband cannot evade his obligation to maintain his wife and minor child residing with her merely because another child from the marriage is living with him, and that this duty is not bifurcated on the grounds of custody.Deciding a revision petition challenging an interim maintenance order, Justice Swarana Kanta Sharma observed that proceedings under Section 125 Cr.P.C. are meant to secure immediate subsistence and cannot be converted into a “mini trial” at the interim stage.Background and Family Court FindingsThe dispute arose out of matrimonial discord between the parties, who have been living separately since January 2021. While the minor son remained in the custody of the husband, the minor daughter has been residing with the wife.The wife approached the Family Court seeking maintenance, stating that she had no independent source of income and had shifted to rented accommodation due to lack of space at her parental home. She also claimed that the husband was engaged in property dealing and had additional sources of income.The husband, on the other hand, claimed that he was earning only about Rs.13,500/- per month through contractual work with the Municipal Corporation of Delhi and asserted that the wife was earning through a beauty parlour.

Upon examining the material on record, including income affidavits and bank statements, the Family Court found that the husband’s expenditure pattern did not align with his claimed income. It noted frequent withdrawals, transactions inconsistent with basic subsistence, and material indicating involvement in property dealing under the name “Neel Associates”.Holding that the husband had concealed his true income, the Family Court assessed his monthly earnings at not less than Rs.60,000/- and directed payment of ₹20,000 per month as interim maintenance to the wife and minor daughter.Challenge by HusbandBefore the High Court, the husband argued that the Family Court had proceeded on assumptions and had subjected his bank statements to unnecessary scrutiny at the interim stage.It was argued that occasional fuel-related transactions could not justify an inference of higher income and that the Court had failed to adopt a consistent approach, particularly when the wife had not produced her bank statements despite claiming substantial monthly expenses.The husband also stated that as parental responsibilities were being shared by the two parties with one child on each it was not reasonable and too demanding to place the full burden of responsibility on maintenance upon him.Scope of Interim Maintenance ProceedingsAt the outset, the High Court clarified the limited scope of inquiry at the stage of interim maintenance.The Court observed:“At the stage of consideration of interim maintenance, this Court is neither expected nor required to embark upon a detailed inquiry or conduct a mini trial…”It emphasized that the exercise is confined to a prima facie assessment of whether the claimant is unable to maintain herself and whether the respondent has the means to provide support. Reiterating the object of Section 125 Cr.P.C., the Court noted that such proceedings are intended to prevent “vagrancy and destitution” and provide immediate financial relief.Maintenance Liability Not Diluted by Shared CustodyDissenting to the main argument of the husband, the Court found shared custody of children to have no effect on the husband obligation to maintain the wife and the child staying with her.The Court categorically observed:“The mere fact that one child is in the custody of the petitioner-husband cannot, by itself, be a ground to absolve him of his obligation…”It further clarified:“The responsibility of maintenance does not stand divided merely because each parent has custody of one child.”The Court, however, observed that the issue of one of the children living with the husband is a considerable factor when it comes to deciding how much maintenance will be awarded, but not to decline maintenance completely.Assessment of Wife’s IncomeOn the submission that the wife was earning through a beauty parlour, the Court found that no material had been placed on record to substantiate such claims.It observed that “beyond bare allegations, no material whatsoever was placed” to demonstrate any independent income of the wife.

In such circumstances, the Family Court was justified in not drawing any adverse inference against her, though it was noted that she had not filed her bank statements.The High Court upheld the Family Court’s approach in examining the husband’s financial disclosures.It discovered that the claims that the husband had made in his own account of expenses such as rent, child education and household needs were higher than his own claimed income, making his account inherently untrustworthy.Further, the Court noted that the bank statements revealed:“frequent withdrawals… and no identifiable or regular withdrawals corresponding to payment of rent or school fees…”In addition, recurring payments to fuel stations, restaurants, and commercial establishments were found inconsistent with the claim of subsistence on Rs.13,500/- per month. The explanation that such transactions were incidental or due to borrowed vehicle usage was found inadequate to explain the overall financial pattern.Concealment of Income and Role of Circumstantial AssessmentThe Court also took note of material linking the husband to property dealing activities under the name “Neel Associates”, including listings associated with his mobile number.While the husband claimed that such business had been discontinued, the Court found the explanation unconvincing in light of the financial inconsistencies. Significantly, the Court endorsed the approach adopted in cases involving unorganized sectors, observing that:“Persons engaged in unorganised or semi-formal sectors… do not have neatly documented income streams…”In such cases, the Court held, a reasonable assessment based on surrounding circumstances, expenditure patterns and lifestyle indicators is both permissible and necessary, and strict insistence on mathematical precision is neither feasible nor required.While affirming the finding that the husband had concealed his true income, the High Court found that the Family Court’s estimation of Rs 60,000/- per month required moderation.The Court noted that although there was clear indication of suppression, there was no direct proof of fixed higher earnings beyond the contractual income. Balancing these factors, along with the responsibility of maintaining the minor son, the Court held:“the ends of justice would be adequately met by assessing the petitioner’s monthly income at Rs.50,000/-…”Accordingly, the Court modified the interim maintenance and directed the husband to pay Rs.17,500/- per month to the wife and minor daughter from the date of application, subject to adjustment of amounts already paid.Final DirectionsThe revision petition was disposed of with modification of the maintenance amount. The Court directed that arrears, if any, be cleared in the manner directed by the Family Court.It was clarified that the observations made were based on a prima facie assessment at the stage of interim maintenance and would not influence the final adjudication of the main proceedings, which shall be decided on the basis of evidence led by the parties.

(Vatsal Chandra is a Delhi-based Advocate practicing before the courts of Delhi NCR.)