Divorce More Traumatic For Woman When Husband Resists Maintenance Claim, Capable Man Can't Take Defence Of “Inadequate Resources”: Kerala HC

While hearing a man's plea challenging the amount of maintenance ordered to be given to his ex-wife and four children, the Kerala High Court reiterated that a man/obligant who is capable of earning and has no physical incapacities, cannot take the defence of having "no resources" to maintain the beneficiaries.A division bench of Justice Devan Ramachandran and Justice M. B. Snehalatha said: “Our view which is nothing novel – having been cemented by the Supreme Court through the years – is firmly that, when the maintenance claimed is the most essential for beneficiaries to sustain, the defence of “no resource” is untenable, particularly when the obligant is capable of earning, without any physical incapacitation.”The court observed that "otherwise", the obligant can choose not to work, or "lie idle" or choose to earn solely for himself/herself and claim the defence of "lack of resources". The court further said that while ending a marriage is traumatic for most people, it is "exacerbated for women who have to navigate settlement terms and follow up on sums for maintenance of themselves and their children". Observing that while stigma of divorce persists in many communities, the court said even in a divorce if not most but a large number of women still continue to be home makers and "claims for maintenance - not merely for the wife, but also for the children – are met with obdurate resistance".The court said that it is already laid down by Supreme Court in Rajnesh v Neha (2020) that a man with no physical ailments or incapability to earn cannot argue that he does not have enough money to take care of his family. The court also noted that the Supreme Court in Apurva @ Apurvo Bhuvanbabu Mandal v Dolly & Others had held that right to maintenance being a part of fundamental right to life will have priority over statutory rights of creditors under SARFAESI Act and IBC.The court passed the order while hearing a husband's plea who had challenged the family court's 2019 order on maintenance arguing that he can only pay a lesser amount. He argued that the quantum of maintenance ordered by the Family Court is excessive and beyond his means. The high court noted that the Family Court had only asked the petitioner to pay a sum of Rs. 5,000 per month to his wife and 4,000 each to his minor children. The Court said that it is "unimaginable in these days that a child or an adult can sustain with an amount as low as Rs.5,000/-, or 4,000/-, as the case may be". "Axiomatically, when a learned Family Court has granted only the most essential amounts, barely sufficient for mere sustenance of the wife and children, the income of the petitioner would be irrelevant to be taken into account, particularly, when he is, concededly, one without any incapacitation to earn enough," the court added. It also said that the children are school going and they also have other expenses–like food, medicines and other basic requirements.While observing that the petitioner evidence on record indicated to a great extent, if not conclusively, that the petitioner is running a business in his own name, the court said, "...the question relevant is not whether the petitioner is earning enough, but if the maintenance offered to the respondents is excessive, or beyond what they essentially require. The amounts now granted vide the order of the learned Family Court dated 30.11.2019, is undoubtedly the minimum required to exist and sustain, much less to live well with dignity. When the quantum fixed is so low, which is the absolute minimum that any husband or father can be asked to foot, we see no reason why we should even consider the evidence as to his earning capacity, particularly when he does not have a case that he is physically or otherwise incapacitated from earning enough". The Court also rejected petitioner's claim that he is unable to maintain as he has remarried and has got a child from his second marriage and has to maintain his second family as well. The Court said that it was choice of the petitioner to marry again and have another family. The Court said that this cannot be a reason for him to shirk from his responsibilities towards the respondent wife and children. Accordingly, the petition was dismissed.Case Title: X. v Y and OthersCounsel for Petitioners: Advocate C. K. SreejithCounsel for Respondents: Advocate Abdul Raoof PallipathCitation: 2025 LiveLaw (Ker) 22Click Here To Read/Download Order

Divorce More Traumatic For Woman When Husband Resists Maintenance Claim, Capable Man Can't Take Defence Of “Inadequate Resources”: Kerala HC

Manju Elsa Isac

Tags