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A Bench comprising Justice Sanjeev Sachdeva of Delhi High Court delivered judgment on 31st May, 2019 by reversing the Appellate Court order in the case of “ Kanupriya Sharma v State and Anr.”  High Court directed the Respondent (husband) to pay interim maintenance amounting to 1/3rd of his salary to the petitioner (wife).

The Trial Court held that the husband should pay the interim maintenance under Section 23(1) of Protection of Women from Domestic Violence Act, 2005. The Appellant Court set aside the order of trial Court and held that since the petitioner is educated and used to earn before the marriage, she will not be entitled to maintenance. Though the respondents were not able to produce any evidence regarding the earnings of the petitioner.

The High Court relied on the judgment of Supreme Court in the case of Shailja and Ors. v Khobanna which said that “wife is capable of earning or whether she is actually earning are two different requirements.” Further, this court observed that:

“It may be seen that a claim of maintenance by a wife under Section 125 of Cr.P.C. is qualified by the expression unable to maintain herself. The grant of maintenance under the Domestic Violence Act has not been made dependent upon the expression unable to maintain herself. Further, the expression unable to maintain herself does not mean capable of earning.”

The High Court thus directed the respondent/husband to pay one-third of his salary i.e. Rs. 16,500/- as interim maintenance to the petitioner until she starts to earn by herself.

-India Legal Bureau

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