Delhi High Court has held that Magistrate cannot deny interim maintenance to wife only because she has earning capacity or is a qualified person.
A bench of Justice Sachdeva has passed the order in the case titled as BINITA DASS vs UTTAM KUMAR on 09.08.2019.
Petitioner had filed an application under Protection of Women from Domestic Violence Act, 2005 and along with the application had filed an interim application under Section 23 seeking interim maintenance. Said application has been rejected by the Trial Court by order dated 04.08.2015 solely on the ground that the petitioner and respondent are equally qualified and petitioner was previously employed and has not disclosed any cogent explanation or disability on her part so as to disable her to earn her living.
High Court observed "Clearly both the Trial Court as well as the Appellate Court have erred in not appreciating the judgments of this Court wherein it has specifically been held that capacity to earn and actually earning are two different things".
High Court then observed and held "It is not the case of the respondent, that petitioner is actually employed or earning. The only ground taken is that she is qualified and capable of earning.......... Qualification of the wife and the capacity to earn cannot be a ground to deny interim maintenance to a wife who is dependant and does not have any source of income".
Read the Order here:
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