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In the recent matter of Kanupriya Sharma V. State the Delhi High Court on 31st May held that while determining maintenance under Domestic Violence (DV) Act, 2005 the court cannot assume that the wife would be gainfully employed merely because she was educated or was employed prior to her marriage. The court in its decision made a clear distinction between “Capability of Wife to earn” and “Wife actually earning”.
Facts of the Case: The aggrieved wife Kanupriya Sharma had earlier filed a suit before the Trial Court for claiming maintenance from her husband. The trial court in its decision awarded interim maintenance of Rs. 16,500 per month to the petitioner-wife under Section 23(1) of the DV Act. However, the said order of trial court was set aside by the appellate court on the ground that petitioner was an educated person and there was no reason mentioned as to why she was unemployed. It was held that since the wife was in a position to work and earn her livelihood, therefore on that basis the appellate court denied her maintenance. The Wife has now filed a petition Before the Bombay High Court against the order of appellant court in which the wife pleaded that she was never gainfully employed in any organization. She submitted that although several attempts were made to secure employment, she was unable to do so. The HC in its proceeding observed that the rationale for grant of maintenance under Section 125 CrPC applies to the grant of maintenance under the DV Act. The wife’s capability to earn was not a requirement for determining maintenance under the DV Act. It thus recorded that whether the wife was capable of earning or whether she was actually earning were two different requirements.
The HC bench therefore held that since the husband has not placed any material before any court to show that the wife had secured any employment or was receiving any salary or income, there was no justification to deny maintenance to the wife and further stated that “In case there is a dispute as to whether the wife is gainfully employed or not, a court cannot assume, as has been done in this case by the Appellate Court, that because she is educated or was employed prior to her marriage, she would be gainfully employed.” Thereafter, the appellate court’s order was set aside and the order passed by the trial court awarding maintenance to the wife was restored.
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