Delhi High Court
Subhash vs Mamta @ Raksha on 26 May, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~73
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26.05.2025
+ MAT.APP.(F.C.) 195/2025
SUBHASH .....Appellant
Through: Mr. Ravi Kumar, Mr. Shailesh
Kumar Sinha, Mr Suman
Kumar, Mr. Rajeev Ranjan, Mr.
Shubhanshu Singh and Ms.
Nisha, Advs.
versus
MAMTA @ RAKSHA .....Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
RENU BHATNAGAR, J. (ORAL)
1. Allowed, subject to all just exceptions.
MAT.APP.(F.C.) 195/2025 and CM APPL. 32386/2025
2. This appeal has been filed under Section 19 of the Family
Courts Act, 1984, challenging the Order dated 19.04.2025 passed by
the learned Judge, Family Courts, District Central, Tis Hazari Courts,
Delhi (hereinafter referred to as, „Family Court‟) in HMA No.
34/2021, titled Subhash v. Mamta @ Raksha, whereby the learned
Family Court allowed the application under Section 24 of the Hindu
Marriage Act, 1955 (hereinafter referred to as „HMA‟) filed by the
respondent-wife, directing the appellant to pay a monthly payment of
Rs. 15,000/- towards the maintenance of the respondent-wife and the
child of the parties.
3. Brief facts that give rise to the present appeal are that the
marriage between the parties was solemnized on 27.02.2009 at New
Delhi in accordance with Hindu rites and ceremonies. One male child
was born out of the said wedlock on 11.03.2015, who is currently in
the care and custody of the respondent-wife. Due to several
differences and acrimonies between the parties, they started living
separately on 16.03.2020.
4. The appellant approached the learned Family Court by way of
filing a divorce petition under Section 12(1)(c) read with Sections
13(1)(ia) and 13(1)(iii) of the HMA, registered as HMA No. 34/2021.
5. In the said divorce petition filed by the appellant, the
respondent-wife filed an application under Section 24 of the HMA
seeking interim maintenance at the rate of Rs. 30,000/- per month.
6. The learned Family Court, after considering the submissions
and the relevant material on record, including the income affidavit of
the appellant placed on record before it, assessed the monthly income
of the appellant at Rs. 47,128/-. Accordingly, the Court directed the
appellant to pay a sum of Rs. 15,000/- per month (Rs. 8,000/- per
month towards the respondent-wife and Rs. 7,000/- per month for the
support of the child) to be paid by the appellant to the respondent as
maintenance.
7. Being aggrieved by the aforesaid direction passed in the
impugned order, the appellant has filed the instant appeal.
8. The learned counsel for the appellant submits that the learned
Family Court has passed the impugned order based on conjectures and
surmises, as it failed to consider the fact that the appellant has been
consistently paying the EMIs of a sum of Rs. 15,092/- since
05.01.2018 towards loan of Rs. 17,38,000/- taken for purchase of the
property, being Flat No. A. M-912, located on the 9th Floor at Raj
Nagar Extension, Ghaziabad, UP, in the joint ownership of the parties.
He has also taken loan of Rs. 1,35,000/- for which he is paying EMI
of Rs, 4,108/- and a further loan of Rs. 1,50,000/- for which an EMI of
Rs. 7,407/- is being paid by him.
9. He has also contended before us that while passing the
impugned order, the learned Family Court failed to consider the
Mediclaim policy maintained by the appellant, towards which he pays
an annual premium of Rs. 23,989/-, and wherein the respondent-wife
and their child are also covered.
10. He further contends that the learned Family court erred in
interpreting the mandate under Section 24 of the HMA, as a spouse
who is well-qualified should not be expected to remain idle and milk
out the benefits from the other spouse by seeking benefits in the nature
of pendente lite alimony.
11. The learned counsel for the appellant further submits that the
appellant is a contractual employee, and the presumption that he is a
person of immense means is erroneous.
12. In view of the foregoing submissions, the learned counsel for
the appellant submits that the impugned order passed by the learned
Family Court is untenable in the eyes of law and is, therefore, liable to
be set aside.
13. We have considered the submissions of the learned counsel for
the appellant; however, we are not impressed with the same.
14. The Impugned Order takes note of the income affidavits filed
by both parties. The appellant admits to being employed as a Data
Entry Operator with M/s EDCIL (India) Ltd., drawing a monthly
income of Rs. 40,128/-, and further earning Rs. 7,000/- as rental
income from a jointly owned property. The learned Family Court,
after a detailed analysis of the bank statements and income tax
records, rightly concluded that the appellant‟s monthly income was
Rs. 47,128/-.
15. It is trite law that while computing the income of a spouse for
the purpose of determining the quantum of maintenance under
matrimonial statutes, only statutory and mandatory deductions such as
income tax and compulsory contributions to provident fund or similar
schemes, are to be considered as permissible deductions.
16. As regards the appellant‟s claim that EMIs and other loan
obligations erode his take-home income, we find no merit in such a
contention. Deductions such as house rent, electricity charges,
repayment of personal loans, premiums towards life insurance, or
EMIs for voluntary borrowings do not qualify as legitimate deductions
for this purpose. These are considered to be voluntary financial
obligations undertaken by the earning spouse, which cannot override
the primary obligation to maintain a dependent spouse or child. In this
context, reference may be drawn to the Judgment passed by the
Supreme Court in Kulbhushan Kumar (Dr) v. Raj Kumari, (1970) 3
SCC 129, where the Court held as follows:
"19. It was further argued before us that the High
Court went wrong in allowing maintenance at 25
per cent of the income of the appellant as found by
the Income Tax Department in assessment
proceedings under the Income Tax Act. It was
contended that not only should a deduction be
made of income tax but also of house rent,
electricity charges, the expenses for maintaining a
car and the contribution out of salary to the
provident fund of the appellant. In our view, some
of these deductions are not allowable for the
purpose of assessment of "free income" as
envisaged by the Judicial Committee. Income tax
would certainly be deductible and so would
contributions to the provident fund which have to
be made compulsorily. No deduction is
permissible for payment of house rent or
electricity charges..."
17. From the above position of law, it is evident that the Courts
have consistently held that a person cannot wriggle out of his/her
statutory liability to maintain his/her spouse and dependents by
artificially reducing his/her disposable income through personal
borrowings or long-term financial commitments undertaken
unilaterally. Maintenance is not to be assessed based on the net
income after such personal deductions, but rather on the "free income"
that reflects the actual earning capacity and standard of living of the
party concerned.
18. In the present case, other than stating that an amount of Rs.
15,092/- is being paid towards the property bought in the joint name
of the parties, the purpose of taking the other loan appears to be
motivated to deny maintenance to the respondent and the child.
Though, the benefit of the mediclaim is also for respondent, the
amount of premium paid for the same does not, in any manner, make
the maintenance amount determined by the learned Family Court,
unreasonable or suspect to challenge in the present appeal.
19. The law is also equally settled that a claim for maintenance
under Section 24 of the HMA is not defeated merely because the
applicant is educated or theoretically capable of earning. The Supreme
Court in Manish Jain v. Akanksha Jain, (2017) 15 SCC 801,
observed as follows:
"16. An order for maintenance pendente lite or for
costs of the proceedings is conditional on the
circumstance that the wife or husband who makes
a claim for the same has no independent income
sufficient for her or his support or to meet the
necessary expenses of the proceeding. It is no
answer to a claim of maintenance that the wife is
educated and could support herself. Likewise, the
financial position of the wife's parents is also
immaterial. The court must take into consideration
the status of the parties and the capacity of the
spouse to pay maintenance and whether the
applicant has any independent income sufficient
for her or his support. Maintenance is always
dependent upon factual situation; the court
should, therefore, mould the claim for
maintenance determining the quantum based on
various factors brought before the court."
20. It is also significant to underscore that the concept of being
capable of earning and actually earning are distinct. It is trite law that
potential earning capacity cannot be conflated with actual income
received. In this regard, the observation of the Supreme Court in
Shailja v. Khobbanna, (2018) 12 SCC 199, are as follows:
"That apart, we find that the High Court has
proceeded on the basis that Appellant 1 was
capable of earning and that is one of the reasons
for reducing the maintenance granted to her by
the Family Court. Whether Appellant 1 is capable
of earning or whether she is actually earning are
two different requirements. Mere capacity to earn
is not, in our opinion, sufficient reason to reduce
the maintenance awarded by the Family Court."
21. It is also pertinent to note that the respondent is suffering from a
medical condition and is simultaneously responsible for the care and
upbringing of the minor child born out of the wedlock. The physical,
emotional, and financial responsibilities, coupled with the burden of
single-handedly raising a child, particularly while managing one‟s
own health constraints, place an additional burden upon the
respondent. In such circumstances, the inability to engage in full-time
or gainful employment cannot be viewed as a voluntary choice, but
must be seen in light of the practical limitations imposed by her dual
responsibilities. The requirement of maintenance, therefore, stands not
only in the absence of income but also on the inability to earn, due to
genuine and compelling circumstances.
22. Therefore, we find no merit in the contention that the
maintenance awarded is excessive or unwarranted, especially
considering the needs of two individuals and the appellant‟s disclosed
income. The learned Family Court has rightly held that such an
obligation flows from Section 24 of the HMA, and a husband, even if
employed on a contractual basis, cannot shirk his statutory
responsibility under the pretext of financial liabilities voluntarily
undertaken.
23. In the present appeal, the appellant has failed to demonstrate
any illegality, perversity or procedural impropriety in the Impugned
Order warranting interference by this Court. The findings of the
learned Family Court are based on cogent material on record,
including bank statements, tax returns and income affidavits submitted
by both parties, and are in accordance with the binding guidelines laid
down in Rajnesh v. Neha, 2020 SCC OnLine SC 903.
24. For the aforesaid reasons, the appeal is devoid of merit and is
accordingly dismissed.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
MAY 26, 2025/sm
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