The Delhi High Court has held that in maintenance proceedings, the onus to prove that the wife can sustain herself is on the husband and the same cannot be met simply by showing magazine covers depicting that the wife is into modelling.
An order to this effect was passed by a Single Judge Bench of Justice Subramonium Prasad.
In the present case, after being married in 1985, the petitioner-husband and respondent-wife had been living separately since 2012.
The respondent thereafter filed a petition under Section 125 of Code of Criminal Procedure (CrPC) for grant of maintenance for her sustenance stating that she was treated with cruelty and was thrown out of the house in 2012.
The family court fixed an amount of Rs. 17,000 per month as maintenance to be paid to the respondent.
The same was challenged before the High Court by the husband. The petitioner-husband highlighted that the respondent in her statement under Section 165 of the Indian Evidence Act had herself revealed that she was doing modelling.
Therefore, it was argued, it was for the respondent to establish that the income earned by her was so less that she could not maintain herself.
To support his case, the petitioner also showed certain covers of magazines and newspaper articles to establish that the respondent was employed and capable of maintaining herself.
In view of the law laid down by the Supreme Court, the High Court observed that Section 125 CrPC was enacted to remedy or reduce the financial sufferings of a woman who is forced to leave her matrimonial house.
“It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes,” the Court said.
In the present case, although the respondent had admitted that she was doing modelling infrequently, that by itself would not mean that she would be able to sustain herself, the Court opined.
The Court noted that the petitioner had not brought any evidence to establish that the respondent was earning sufficiently to maintain herself.
“Her affidavit of income does not show that she is earning enough to sustain herself. The onus then shifts on the petitioner to show as to how much the respondent is earning and that is sufficient to maintain herself…It is well settled and the Supreme Court has time and again laid down that newspaper clippings etc. are not evidence. Apart from filing a few covers of magazines and one newspaper clipping nothing has been filed by the petitioner to substantiate that the respondent is earning sufficient income to maintain herself.”
Further, considering that the petitioner was working as an Assistant Sub-Inspector (ASI), there had been no divorce between the two, and that both his sons were majors and well employed, the Court concluded that it is the moral and legal obligation of the petitioner to maintain the respondent.
“The petitioner has not been able to point out any perversity in the impugned order. The petitioner is an ASI and is earning well so as to pay Rs.17, 000/- to his wife who has no stable source of income. No material has been placed on record to show that the respondent is able to sustain herself. Magazine covers are not sufficient evidence to demonstrate that the respondent can sustain herself,” the Court said.
The challenge was accordingly dismissed.