Case Analysis;
Sanjay Bhardwaj & Ors. v. The State & Anr.
Facts;
Background of Parties: The Petitioner (husband) was a Non-Resident Indian (NRI) working as a Manager in Luanda, Angola (Africa). The Respondent No. 2 (wife) had an M.A. in English and MBA degree and was working with a Multinational Corporation (MNC) before marriage.
Marriage & Co-habitation: The marriage was solemnized on May 14, 2007 and registered on May 25, 2007 but the parties lived together for only 10 days in two brief spells.
Breakdown & Legal Proceedings:
The husband filed a petition under Section 12 of the Hindu Marriage Act to declare the marriage null and void on the ground of fraud as the wife had a pre-existing chronic disease.
The wife filed FIR under Sections 498A/406 IPC for dowry demand and harassment and afterwards initiated proceedings in the court under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act).
Impugned Maintenance Orders:
On 16 th January, 2008, the Metropolitan Magistrate (MM) granted interim maintenance of ₹5,000/- per month to the wife under the DV Act.
On 29 th February, 2008, the Additional Sessions Judge (ASJ) dismissed the husband's appeal and confirmed the interim maintenance, observing since the husband had worked abroad as a Manager and earned well, he had an obligation under the DV Act to maintain the wife who claimed to be unable to maintain.
Loss of Employment: The husband contended in both the lower courts that his passport was impounded by the police during criminal investigation and thus he became unemployed in India and had no source of income and was living on loans. Both the lower courts awarded maintenance without verifying whether the husband had any income/employment in India.
Issue Involved;
Whether an unemployed husband who lost his employment abroad due to criminal proceedings and passport impounded can be directed to pay interim maintenance to an equally qualified unemployed wife under the Protection of Women from Domestic Violence Act, 2005 without any prima facie proof regarding his employment/earning capability in India.
Submissions of Both Parties;
Petitioner (Husband):
He lost his job in Angola as his passport was seized by the police and thus he couldn't resume his duties abroad.
He is currently unemployed in India and has no source of income, is unable to maintain himself and has incurred loans.
The wife has high educational qualifications (M.A. and MBA) and was gainfully employed in an MNC before marriage, hence both parties stand equally in financial and educational ground.
Respondents (State & Wife):
Under the DV Act, the husband has statutory obligation to provide monetary relief and maintain his wife who is currently unable to maintain herself.
Since the husband had a lucrative position abroad as a Sales Manager before marriage, he is capable to pay the interim maintenance of ₹5,000/- per month.
Court Analysis;
Scope of Maintenance under the DV Act:
The DV Act doesn't create any new or independent right to maintenance in favor of a wife; it provides only expeditious forum/mechanism for a Magistrate to grant maintenance in accordance with the existing substantive laws (e.g. Section 125 Cr.P.C., Hindu Marriage Act, Hindu Adoptions and Maintenance Act) so as to provide monetary relief to an un-earning spouse.
Existing laws mandate to maintain an un-earning spouse out of the actual income of the husband and no law stipulates that husband must maintain a separately living wife irrespective whether he earns or not.
Equivalence of Gender and Qualifications:
Constitutional equality (Article 14/15) demands same treatment irrespective of sex; an unemployed husband holding MBA degree can't be put under harsher burden than an unemployed wife holding MBA degree. Where both spouses are equally qualified and capable of earning one can't be compelled to maintain the other unless one is gainfully employed and other isn't.
Court observed that "Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife" where both are equally qualified.
Parental Responsibility:
Once children grow up and receive education, they cannot be expected to beg or borrow from their parents to pay maintenance. Parents fulfill their duty by educating them and cannot be burdened to support both adult children and their spouses.
Absence of Presumption on Failed Marriages:
The High Court stressed that there is no legal presumption that every failed marriage involves dowry harassment or domestic violence; marriages fail for diverse reasons and mechanical orders of maintenance without any prima facie proof of employment is legally unsustainable.
Conclusion;
The High Court held that granting of interim maintenance without any prima facie proof regarding husband being employed in India and in light of clear proof that his passport is impounded, is against the law and unsustainable under the DV Act.
Order: The petition under Section 482 Cr.P.C. was allowed and orders dated 16 th January, 2008 (passed by the Metropolitan Magistrate) and 29 th February, 2008 (passed by Additional Sessions Judge) were set aside.
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