Delhi HC: Both Parents Have Moral Duty to Maintain the Child

November 16, 2017

Sukhjinder Singh Saini vs Harvinder Kaur

Date of Judgment: November 10, 2017

In this revision petition, the petitioner sought setting aside the impugned order passed the learned Special Judge CBI, whereby the learned Special Judge had dismissed an appeal filed by the present petitioner under the Protection of Women under the Domestic Violence Act, 2005.  In the case, the Respondent wife had filed application to the magistrate as required under Section 12 of Domestic Violence Act.

Factual Matrix in the case: The marriage between the Petitioner and Respondent was solemnized in 2009 and they have a child born in 2013. As alleged by the Respondent, her mother-in-law and sister-in law used to taunt her for lesser dowry and aggrieved by the same she left her matrimonial home and since then has been living with her parents along with her minor child.

Subsequently, the respondent filed an application under Section 12 of Domestic Violence Act against the petitioner herein-Sukhjinder Singh Saini and Varinder Kaur (sister in law) along with an application under Section 23 of Domestic Violence Act.

Consequently, the learned Metropolitan Magistrate after hearing the argument of both parties and after perusal of the documents placed directed the petitioner to pay interim maintenance of Rs. 40,000- per month which included the maintenance of her minor child as well as maintenance for alternative accommodation, if any, from the date of filing of the petition.

Aggrieved by the aforesaid order, the petitioner preferred an appeal before the learned Sessions Court and the learned Special Judge, CBI, dismissed the appeal of the petitioner.

Petitioner’s contention- That the Appellate Court and the Trial Court failed to consider the evidences placed on record, particularly the affidavits of the parties, documentary evidences which established that no cruelty or harassment has ever been caused by the petitioner and also the salary details of the respondent and passed the order in a very mechanical way.

That unless domestic violence is proved, no relief can be granted to the respondent/complainant as per the mandate of the Protection of Women under the Domestic Violence Act, 2005.

That the Respondent is a well-educated lady and earning sufficiently and she does not require any maintenance and she is intentionally not doing the job, earlier she was earning Rs. 55,000/- per month.

Respondent’s submission The Respondent contended that she is having four year old minor child and her father is also paralytic and she is residing with her parents and unable to maintain herself and her minor child.

Bench’s Verdict- The Delhi High Court passed an order in favour of the Respondent and dismissed the revision petition filed by the Petitioner. The Court made the following observations:

  • That in the absence of denial of existence of the marriage and denial of paternity of the minor child, the petitioner cannot shy away from his statutory obligation of maintaining his legally wedded wife and his minor child.
  • That it is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means.
  • That the mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child.
  • That monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and the child of the aggrieved person as a result of the domestic violence.
  • That an act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the husband from the offence committed or to deny the benefit to which the aggrieved person- wife is entitled.

The present case, conveys the principle of law that even if the spouse with whom the child is living is an earning member, the other spouse cannot absolve himself/herself from the liability to maintain the child.

Other recent cases on Maintenance

Shailja v. Khobbanna (Criminal Appeal Nos. 125-126 of 2017)- In this recent case, the Supreme Court had observed that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.

About the Author

Shilpi Sharan

- Shilpi Sharan is the Editor at - an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.