Domestic Violence- Interim maintenance to a wife cannot be denied

Domestic Violence- Interim maintenance to a wife cannot be denied
Domestic Violence- Interim maintenance to a wife cannot be denied


The article talks about that interim maintenance to a wife cannot be denied on the grounds that she is qualified or is capable of earning which can be understood through the case of Binita Dass v. Uttam Kumar.

The right to the maintenance of a wife in India is provided for under the Protection of Women from Domestic Violence Act 2005.

This right as provided under Section 23 of the Act has been subjected to legal and academic disputation from the inception of the Act in 2005.

On one hand, it is always contended that for a wife to be entitled to maintenance under the Act it must be established in evidence that such wife is unable or incapable of earning a living while on the other hand it is contended that it is immaterial whether the wife can earn a living.

The controversy highlighted above seems to have been laid to rest on the 9th day of August 2019 by the judgment of the Delhi High Court, Coram Honourable Justice Sanjeev Sachdeva in the case of Binita Dass v. Uttam Kumar.

The Facts of Binita Dass v. Uttam Kumar-

The Appellant/Petitioner got married to the Respondent on February 14, 2015. The Appellant/Petitioner because she was harassed and subjected to cruel and inhuman treatments by the family of the Respondent, her husband made an application to the magistrate.

The application was made under Section 23 of the Protection of Women from Domestic Violence Act of 2005.

In the said application, she prayed the Court to direct the respondent to maintain her in line with the dictates of the law.

In her application, she contended that the obvious reason for the maltreatment from her in-laws was because the in-laws are not satisfied with the dowry paid by her at the time of her marriage to the respondent.

The Respondent at the hearing of the application urged the trial court to refuse the application of the Petitioner/Appellant.

In support, the respondent argued amongst others that the only basis upon which the Petitioner/Appellant may be entitled to maintenance under the Act is if she can establish through cogent and compelling evidence that she is incapacitated and unable to earn a living.


  1. The trial court upheld the argument of the respondent and dismissed the case of the Petitioner/Appellant because the Petitioner/Appellant is as qualified as the respondent to earn a living.
    The court placed heavy reliance on the evidence of the respondent to the effect that the Petitioner/Appellant was previously employed before their marriage.
  2. The petitioner/appellant dissatisfied with the decision of the trial court appealed the said judgment again the court resolved against the petitioner/appellant.
  3. On further appeal to the High Court of Delhi, the decisions of the lower courts were set aside.
    The high court relying on its earlier decision in Kanupriya Sharma v. State ruled that there is a huge difference between earning a living and the capacity to earn a living.
    Therefore the lower courts erred in law when they held that the Petitioner/Appellant is not entitled to maintenance because she can earn a living.


The decision of the High Court of India sitting in Delhi is commendable and is an advancement of the rights and protection of women in India.

On the other hand, the decision of the High Court may be criticized because same was reached in isolation of some certain principles of law. It is trite that a party seeking a judgment in his/her favour must succeed on the strength of the evidence he or she presented before the court.

In the case at hand, the Petitioner/Appellant merely averred in support of her application that she is unfairly treated by the respondents family.

With due respect to the Honorable Court the reason adduced by the appellant does not support the relief sought as such the judgment reached is not supported by the evidence.


The Delhi High Court’s say and ruling-


It has been clarified and ruled by the Delhi High Court that granting maintenance under the Domestic Violence Act was not dependent on the expression, “unable to maintain herself”. Also, the expression “unable to maintain herself” does not signify capable of earning.


The court clearly differentiated and said that whether the wife was actually earning a living or was qualified and capable of earning are two different things.

The Delhi High Court held and stated that it is not the case of the respondent, that the petitioner is actually employed or earning. The only ground taken is that she is qualified and capable of earning.

Hence, the qualification of the wife and her capacity to earn cannot be considered a ground to deny interim maintenance to the wife who is dependent and does not have any source of income.  



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