New Delhi:
A woman’s decision to leave her job to take care of her child does not count as voluntary unemployment and she would be entitled to alimony, the Delhi High Court has ruled. The court has also stressed that it is not the wife’s earning capacity, but her actual income, that must be considered while determining the maintenance amount.
The high court was hearing a petition by the woman’s estranged husband, challenging a 2023 court order to pay Rs 7,500 each to the woman and their six-year-old son. The husband said he was an advocate at a district court and earns only Rs 10,000 – Rs 15,000. He said his estranged wife was highly educated and was Rs 40,000-Rs 50,000 a month before she quit her teaching job. The petitioner argued that since his estranged wife is capable of earning, she is not entitled to maintenance. He said he was struggling financially and emotionally and could not comply with the maintenance order.
The couple, married in 2016, have been living separately since 2017. The woman has alleged cruelty and harassment by her partner. Her husband says he was willing to live with his estranged wife and son.
The woman’s lawyer said her estranged husband is financially stable and has rental income besides earnings from his legal career. “It is argued that the respondent is currently unable to engage in employment due to her responsibilities in caring for their minor son, and her past employment as a teacher cannot be a valid ground to deny her rightful maintenance,” the order said.
The woman said that she was working as a teacher but had to quit the job because it took long hours to commute and she did not find a job near her home. The woman said she had to give up her teaching career to take care of her minor child as a single parent.
The court said it finds the woman’s arguments explaining why she quit her job “both reasonable and justified”. “It is well settled that the responsibility of caregiving to a minor child falls disproportionately upon the parent with custody, often limiting their ability to pursue full-time employment, especially in cases where there is no family support also to take care of the child while the mother is at work. In such circumstances, the cessation of employment by the respondent cannot be viewed as voluntary abandonment of work, but as a consequence necessitated by the paramount duty of child care,” the order said.
Justice Swarana Kanta Sharma cited a Supreme Court ruling that mere capability to earn is not the same as actually earning, and being capable of earning alone is not a valid reason to reduce maintenance. “It is not the potential earning capacity of the wife but her actual income at the relevant time that is to be considered while determining the amount of maintenance. Thus, the learned Family Court has rightly observed that there exists a material distinction between being “capable of earning” and “actually earning”.
The court said the family court assessed the husband’s notional monthly income at Rs 30,000 because he had been working since 2010. This, the high court said, is not entirely disproportionate.
“Considering the above discussion and taking into account the fact that income affidavit filed by the petitioner herein was not taken into consideration, this Court deems it appropriate to remand the matter back to the learned Family Court. The Family Court shall reconsider the application for interim maintenance afresh, specifically taking into account the income affidavits and bank statements filed by both parties, and pass a reasoned order in accordance with law. The said exercise shall be completed within a period of one month from the date of receipt of this order,” the court said.
“In the meantime, as an interim arrangement, the petitioner shall continue to pay a sum of Rs 7,500 per month to the respondent/wife and Rs 4,500/- per month to respondent no. 2/minor child, which shall be without prejudice to the final determination by the learned Family Court, and any amount paid shall remain adjustable in future maintenance,” it added.
