The minor is in custody of well earning mother and father raises the plea of father that he wants to bring his daughter home and can maintain her. The court below finds force in argument that the daughter has a feeling of discard towards her father, so she may not be entitled for maintenance. These developments were part of the case Km. Ankita Dikshit v. State of U.P. & Anr. [Criminal Revision No. – 398 Of 2016., the Allahabad High Court]. The court held that the father cannot absolve from his legal liability to maintain his child, even if the mother earns a decent income. The court also reiterated the principles laid down by the Hon’ble Supreme Court in Rajnesh vs. Neha [(2021) 2 SCC 324] to be observed in the similar cases.
Father’s obligation to maintain child when mother also earns an income.
The Allahabad Court, in this regard, takes note of the settled law enunciated by Hon’ble Supreme Court, rendered in Rajnesh Vs. Neha case, that both, the working mother and working father, have to take the liability of the child and if the mother is working, it does not mean that the father will be absolved from taking responsibility of his child. The father is legally bound to maintain his child according to the status and lifestyle. The Hon’ble Supreme Court has taken a serious note that maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. The relevant extracts of Rajnesh (supra), are quoted below:
“Guidelines / Directions on Maintenance
A. Constitution provides for special law: Maintenance laws is a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. Article 15(3) of the Constitution of India for a special law that State can make special provision for women and children.” Article 15(3) reinforced by Article 39 of the Constitution of India, which envisages a positive role for the State in fostering change towards the empowerment of women, led to the enactment of various legislations from time to time.
B. Not for past neglect but 125 to prevent vagaries of laws: In Chaturbhuj v Sitabai this Court held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing, and shelter by a speedy remedy. Section 125 of the Cr.P.C. is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution.
C. Proceedings under Section 125 of the Cr.P.C. are summary in nature. In Bhuwan Mohan Singh v Meena & Ors. this Court held that Section 125 of the Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.
D. Criteria for determining quantum of maintenance as per the judgment
- 77. The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
- 78. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.
Where wife is earning some income
90. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.
- 90.1. In Shailja & Anr. v Khobbanna,39 this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.
- 90.2. In Sunita Kachwaha & Ors. v Anil Kachwaha the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.”
Study of the Child Support Assessment Act, 1989 of Australia
In our research study of laws in Australia, we found that child support is usually dealt with administratively, rather than through the Court. It is governed primarily by the Child Support (Assessment) Act 1989. The Court may consider child support proceedings only in limited circumstances. The law clearly outlines the parents of a child have the primary duty to maintain the child and has priority over all commitments of the parent other than commitments necessary to enable the parent to support: himself or herself; and any other child or another person that the parent has a duty to maintain; and This duty is not affected by the duty of any other person to maintain the child; or
Objects of this Act in Australia considers following important aspects.
- Financial support: The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
- Capacity to Support: That the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings;
- Standard of Living: That children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them.
Finances is the biggest concern of separating parents, especially when the child is involved. The greater or lesser or no obligation, often leads to a battle between parents before court, in which the child is often dragged even indirectly with a tutored mind or uncomfortable facts to his or her loving heart. This in no way can account for welfare of the child in larger picture as before the final verdict on this premise, the child faces a lot as the parents are opposite parties before the court. Is there a need to change the way we look at these cases, right from the level of legal advisory by evolving guidelines with force of law for child maintenance. Do we need to evolve the law that has less involvement of matter before court except for limited grounds of appeal and providing a platform to arrive answers to the joint responsibility of maintenance without representing themselves as opposite parties to decide the issue. Is it possible to decide the issue with more involvement of mediation in the process or administrative bodies like in Australia, to decide the issue of child maintenance under legally sound principles to guide the experts. The Supreme Court has so far guided for the gaps and as mentioned above already ruled that the father is not absolved from his duty, if the mother is working, or child is less loving towards father due to separation. The judgment is well known in legal corridors and now with media coming forward to take legal information to public why does the notion carried in masses that father does not have a shared responsibility for a separated parent. There is a common plea at times either parent take defense of that they are not working or want to take custody of the child instead of maintenance. All such circumstances considered can cause legal thinkers and philosophers to come to identify a route of child maintenance that goes to take care answers all possible pleas and cause due participation of disputed matrimonial relationship working towards welfare of child with the aid of law.
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