Delhi high court: Pension-drawing parents can't be 'fully dependent' to slash wife, child's maintenance

NEW DELHI: The Delhi high court has ruled that pension-receiving parents cannot be treated as "fully dependent" on their son so as to substantially reduce the maintenance payable to his wife and minor child, as per a report by LiveLaw.Justice Swarana Kanta Sharma made the observation while setting aside a family court order which ruled the maintenance of Rs 8,000 per month to a wife and Rs 5,000 per month to the minor daughter under Section 125 Code of Criminal Procedure (CrPC).The family court had assessed that the husband's net income at about Rs 50,833 per month after deducting the housing loan, vehicle loan and other liabilities from his gross salary which is nearly Rs 1 lakh per month. It further treated the husband's mother as fully dependent upon him and apportioned the income into five shares while calculating the maintenance.The wife argued before the high court that the family court had wrongly reduced the husband's income by considering non-statutory deductions and had also erred in substantially reducing the maintenance amount on the assumption that the husband's mother was fully dependent on him even though she receives pension."While it is true that a son has a legal and moral obligation to maintain his parents, the extent of such dependency has to be assessed on the basis of the financial position of the parent. Where the parent is receiving a regular pension, the dependency cannot be treated as absolute so as to substantially reduce the share of the wife and minor child."While a husband does have a responsibility towards his aged parents, such responsibility cannot be exaggerated to defeat the legitimate maintenance claims of his wife and child, the court added.The high court also held that repayment of personal loans and EMIs voluntarily undertaken by the earning spouse cannot be treated as permissible deductions so as to dilute the primary obligation to maintain a dependent spouse or child.The court further observed that there was no material to show that the wife was actually earning and held that mere earning capacity cannot be a ground to deny or reduce maintenance.Finding that the family court's approach had resulted in a maintenance amount disproportionate to the husband's admitted gross income of about Rs 1 lakh per month, the high court set aside the order and remanded the matter for fresh determination of maintenance within a month.