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Delhi HC: Interim Maintenance Can’t Be Denied Unless It Is Proved That Wife Is gainfully Employed (Read with Judgment)

Author: Ankita Karn (REVA University, Bangalore)

The High Court of Delhi held that the when interim maintenance is once sought by a wife under Protection of Women from Domestic Violence Act 2005 (Section 23), then it cannot be denied unless it is proved that she is gainfully employed.

The petition was filed by one Kanupriya Sharma who challenged the order of the Appellate court. The Appellate Court had set aside an order awarding interim maintenance to Kanupriya of Rs. 16,500 per month. The petitioner (Kanupriya Sharma) got married to her husband on February 14, 2015 and she claimed that her parents had fulfilled each and every demand of her husband and her in-laws.

She was staying in her husband’s house after the marriage in Muradnagar, Uttar Pradesh along with her husband and his family. She alleged the misbehaviour done by her in-laws because they were dissatisfied with the dowry. Further it was noticed that her in-laws took all the jewellery and Istridhan from her claiming that they will keep it safe in a bank locker. It was also reported that the petitioner was consistently harassed by her husband and his family. One day, her husband left the house and started living in Pune, Maharashtra which was unknown to the petitioner and he also refused to come back. Subsequently, the petitioner went to live with her husband in Pune and she came to know that her husband was living in a flat which even doesn’t have any separate toilets but then also she was forced to live with him. It is alleged that she became unwell and was forced to leave her husband’s home and live with her parents in Muradnagar and then she Shifted to Laxmi Nagar, Delhi for her banking preparation.

The petitioner filed petition under Section 12 of the D.V. Act. On the interim application under Section 23(1) of the D.V. Act, the trial court by its order held that the Respondent no.2 is earning Rs. 50,000/- per month and the court divided it into three parts and awarded Rs. 16,500/- to the petitioner per month as maintenance. Disappointed from the order given by the trial court, the Respondent no. 2 filed an appeal in Appellate Court.

The Respondent no. 2 in Appellate court produced the material that the Petitioner was gainfully employed and was working in Aastha Infracity Ltd and the respondent further added that the Respondent’s uncle had also managed to get her job in Indian Railways and she was receiving salary from there also. By seeing all these materials produced by the Respondent no. 2, the Appellate Court has reversed the maintenance given by the Trial court and stated that the Petitioner was well Qualified and had failed to disclose her employment and she did not approach the court with clean hands and she is able to earn her livelihood so she was disentitled to maintenance.

The petition now presented before Justice Sanjeev Sachdeva. Advocate KK Sharma represented the Petitioner and Advocate Tushar Sannu represented the Respondent.

The petitioner stated that the Respondent’s Uncle has fraudently gained a job in Indian Railways by her name and the salary also comes in an account which is opened in her name and it is used by the Respondent’s Uncle. She added that she never worked at the said job and has even made a complaint to the Prime Minister’s office about the Fraudlent employment. Further with the allegation of the Employment in said Firm (Astha Infracity Ltd) she produced that she went to that firm for work experience and she didn’t received any salary for the same.

The Court Observed-

“There is no material produced by the Respondent no. 2 either before the Trial Court, Appellate Court or before this court to show that the Petitioner, in fact, had secured any salary or income. An application under Section 23(1) of the D.V. Act is an application for fixing interim maintenance. Interim maintenance is fixed on taking a prima facie view of the matter. Serious disputed questions of facts raised at that stage requiring evidence cannot be gone into. Unless undisputed evidence is produced by the husband clearly establishing that the wife is gainfully employed, relief of interim maintenance cannot be declined”

The bench further noted-

“As noticed above, no material has been produced by Respondent no. 2 to show that the petitioner is gainfully employed or receiving any salary and actually earning. The pleas raised by the Respondent no. 2 would be required to be established at trial. Till Respondent no. 2 establishes by leading cogent evidence that Petitioner is gainfully employed and receiving salary, there is no justification to deny maintenance to the Petitioner-wife”

It was concluded that the petitioner was allowed to get the trial court’s order of awarding maintenance of Rs. 16,500 per month to his wife.
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