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DV Landmark Judgment #11: Delhi High Court Has Held That Magistrate Cannot Deny Interim Maintenance To Wife Only Because She Has Earning Capacity Or Is A Qualified Person

Mayur Shrestha ,
  02 April 2022       Share Bookmark

Court :
Hon’ble High Court of Delhi
Brief :
The petitioner being aggrieved by the impugned order dated 04.08.15, after her application for interim maintenance was declined has subsequently filed an application under the Protection of Women from Domestic Violence Act, 2005.
Citation :
Crl. M.A. 14463/2017

Binita Dass v. Uttam Kumar.

9th August 2019.

Hon’ble Mr. Justice Sanjeev Sachdeva.

Petitioner: Binita Dass.
Respondent: Uttam Kumar.


The Hon’ble High Court (hereinafter referred to as ‘Hon’ble High Court’ or ‘the Court’), has set aside the impugned order of the Trial Court and held that there is a substantive difference between earning and capacity to earn.The Court upheld that the wife’s capacity to earn cannot be a basis for the Court to deny her interim maintenance, who is supposedly dependent upon her spouse as she does not have any other source of income.


Protection of Women from Domestic Violence Act, 2005

  • Section 23 –states that if the Magistrate is pleased that an application prima facie reveals that the respondent is committing, has committed, or is likely to commit an act of domestic violence, he may grant an ex parte order based on the affidavit in such form.

Code of Criminal Procedure, 1872

  • Section 125 – states that specify the right to maintenance of parents, children, and wives, as well as other provisions about the same. The section states that if a person fails to support his wife, children, or parents, he may seek maintenance by applying with the Magistrate.


  • The petitioner being aggrieved by the impugned order dated 04.08.15, after her application for interim maintenance was declined has subsequently filed an application under the Protection of Women from Domestic Violence Act, 2005.
  • The Hon’ble Court observed that the learned Trial Court had rejected the application on the sole grounds that the petitioners and respondents were both equally capable of earning a living for themselves and the applicant was previously employed and the fact that the applicant had not disclosed any explanation for her inability on her part to earn her self a decent living.
  • Furthermore it was also observed that the learned court of appeals had also dismissed the applicant’s petition on similar grounds as the learned Trial Court, stating that the petitioner was earlier working in a private company and she can work and make a decent living for herself.
  • Per contra, the Hon’ble High Court has observed that both the Trial Court and the Appellate Court erred by failing to recognize this Court's previous precedents, further stating that there subsists a difference between ‘having the capacity to earn’ and ‘actually earning’, the placed its reliance on the case of Kanupriya Sharma v. State & Anr, to substantiate itself from giving the aforesaid reason.


  • Whether the Trial court, as well as the Appellate Court, was justified in passing the judgment to deny interim maintenance to the wife on unjustified grounds of ‘capacity to earn?


  • At the outset, the Court noted that both the learned Courts were inconsiderate in deciding the present instance and delivering an apt judgment, Hon’ble Court pointed out that respondents cannot substantiate their case on the grounds of the capability of the petitioner to earn for herself.
  • The Court placed reliance on the judgment passed by the Hon’ble Supreme Court in the case of Shailja & Anr. V. Khobbanna, in this instance the Apex Court has laid requirements/guidelines that whether the wife is capable of earning or whether she is earning are polar concepts and cannot be intermixed together.
  • Furthermore, the Hon’ble Court being considerate of the wife’s financial incapability had stated that the wife’s capacity to earn cannot be a valid ground to deny her interim maintenance.
  • Likewise, the Court stated that the impugned order dated 19.05.16 and order dated 4.08.15 cannot be sustained and are to be set aside.


Thus, allowing the petition the Hon’ble High Court directed the learned Trial Court to pass appropriate order about his matter as well as grant interim maintenance after taking due account of the respondent’s income and the same shall be disposed of within three months from the date of this judgment. The Court has observed the economic suffering of a woman who left her marital home for the reasons specified in the provision the Courts are to make appropriate arrangements so that the wife can support herself as well as her children if there are any, further the Court also stated that Subsistence does not always indicate trying to live the life of an animal, feeling like an object of ridicule cast out of grace, and wandering for her basic survival, thus implying that the need for the Courts to be careful in assessing these types of cases.

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