"A child for her upbringing does not only require money. It would be incorrect to hold that both the parents are equally responsible for the expenses of the child. A mother who has custody of a child not only spends money on the upbringing of the child but also spent substantial time and effort in bringing up the child….One cannot put value to the time and effort put in by the mother in upbringing of the child," the Delhi High Court has observed.
Justice Sanjeev Sachdeva said so while deciding the appeal of a woman seeking maintenance from her former husband for herself and their minor daughter.
The high court also held that the maintenance should ideally be granted from the date of the application and not from the date of the order.
The trial court, in this case, had refused to grant maintenance to the woman but asked the man to pay a maintenance of Rs 10,000 per month to their daughter (till she attains majority) whose custody was with the mother while holding that both parents are responsible for meeting the day-to-day expenses, nourishment, medical and other expenses of the child.
While deciding the appeal filed by the woman against this order of the trial court, Justice Sachdeva observed, "The view was taken by the trial court that both the parents are responsible for meeting the day-to-day expenses, nourishment, medical and other expenses of the child, in my view, is erroneous. Admittedly the custody of Petitioner No. 2 (child) is with Petitioner no. 1 (ex-wife).
"A child for her upbringing does not only require money. A lot of time and effort goes in the upbringing of a child. It would be incorrect to hold that both the parents are equally responsible for the expenses of the child. A mother who has custody of a child not only spends money on the upbringing of the child but also spent substantial time and effort in bringing up the child. The trial court has erred in equalizing the effort of both the parents in the upbringing of the child. One cannot put value to the time and effort put in by the mother in upbringing of the child. No doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two," it said.
In the instant case, Petitioner No. 1 and the respondent solemnized the marriage under the Special Marriage Act in the year 2002. A daughter was born from the wedlock in the year 2004. Petitioner No. 1 was allegedly forced to leave the matrimonial house in the year 2005 after being subjected to mental and physical torture by the ex-husband and his family. The marriage was dissolved in the year 2007 by way of an ex parte decree.
In her application for maintenance under Section 125 CrPC, the woman had sought a maintenance Rs 50,000 per month for both her daughter and herself.
The trial court in the year 2012 held that the woman was employed in a private company and was not entitled to any maintenance as she was capable of maintaining herself. It, however, directed the man to pay maintenance of Rs 10,000 to their minor daughter till she attained majority.
The maintenance was directed to be paid from the date of the order.
In appeal before the high court, the petitioner contended that the trial court had erred in fixing the quantum of maintenance as the man is a government contractor and businessman while the petitioner does not earn sufficient to meet the daily expenditure of herself and the child as the monthly expenditure of minor child is approximately Rs 45,000.
After contesting the claims that he was reasonably employed, the man submitted on record that he also had a garment and furniture business but pleaded that he needed money to raise the child he has from the second marriage.
Disagreeing with the trial court's view that both parents are responsible for meeting the day-to-day expenses, nourishment, medical and other expenses of the child, Justice Sachdeva noted that the man did not correctly disclose his businesses.
"Initially he denied having any business, however during cross-examination he has admitted that he is engaged in several businesses," the court noted.
Maintenance should ideally be from the date of application
The high court further held that the trial court had erred in granting maintenance to Petitioner No. 2 only from the date of the order.
"The object of Section 125 Cr.P.C is to afford subsistence allowance to the dependents mentioned in the provision, who are not able to maintain themselves, thus the maintenance awarded ideally should be from the date of application. For the court to award maintenance from the date of the order there have to be compelling circumstances for the court to take such a view.
"The fact that sufficient time has been spent between the date of application and a final adjudication and an award in favour, does not mean that they had enough funds to maintain themselves. When the trial court comes to a conclusion, after trial, that the person claiming maintenance is entitled to an amount of maintenance the assessment in fact relates back to the date of the application. When the assessment relates back to the date of the application then there have to be compelling circumstances for the trial court to restrict the award of maintenance to a period post the date of the order," said Justice Sachdeva.
He relied on the Supreme Court's decision in Shail Kumari Devi v. Krishan Bhagwan Pathak (2008) wherein it was held that "the High Court was not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. And if he intends to pass such an order, he is required to record reasons in support of such order".
Based on this, Justice Sachdeva held that there was no infirmity in the view taken by the trial court that Petitioner No. 1 is in a position to maintain herself and as such is not entitled to any maintenance.
However, the monthly maintenance awarded to Petitioner No. 2 has been enhanced to Rs. 20,000 per month payable from the date of the application i.e., 13.07.2010.
Read the Judgment Here