The obligation of an able-bodied husband to maintain his wife and minor child, and the consideration of income and expenses in determining the maintenance amount.

JUDGMENT

Swarana Kanta Sharma, J. The present petition has been filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") against the order dated 11.03.2020 passed by learned Additional Sessions Judge-05, South East District, Saket Courts, New Delhi (hereinafter "learned ASJ") whereby the learned Session Judge has reduced the maintenance amount from Rs.15,000/- to Rs.10,000/- (Rs.7,000/- for Petitioner and Rs.3,000/- for the son of the parties).

2. The brief facts of the case are that the marriage between the parties was solemnized on 19.02.2006 and from the wedlock, a child namely Harshit was born on 05.07.2008. It is alleged by the petitioner that respondent and his family used to ill-treat the petitioner as she had failed to fulfill their demand of dowry. In the year 2013, respondent's family allegedly threw the petitioner as well as respondent out of the matrimonial home and thereafter in 2015, respondent deserted the petitioner and returned to his parents. It is further alleged that respondent had also filed a divorce petition under Section 13(1)(a) of the Hindu Marriage Act (hereinafter "HMA") before the Family Court, Saket and petitioner had filed a complaint under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter "DV Act"). The learned Metropolitan Magistrate, Mahila Court, Saket Courts (hereinafter "learned MM") vide order dated 04.02.2019 directed the respondent to pay an interim maintenance of Rs.15,000/- i.e., Rs.10,000/- to petitioner and Rs.5,000/- to their son. The relevant portion of the order dated 04.02.2019 passed by learned MM reads as under:

"...I have perused the income affidavits of both the parties and documents filed in support. Marriage between the parties and paternity of minor son is not disputed. Respondent has further not disputed that the complainant is merely 12th class, while has concealed his own specific educational qualification by vaguely stating himself to be a graduate from DU and post graduate from Himachal University without providing details of such qualifications. He has not disputed complainant to be unemployed and has claimed himself to be earning Rs.8,000/- per month as daily service executive at Uma Maheshwari Traders. He has filed an undated certificate purportedly issued by an employer to declare that he is working as such since 21.07.2015, at a salary of Rs.8,000/- per month which is even below the minimum wages prescribed under Minimum Wages Act for an uneducated unskilled labour. Even the statement of accounts filed by respondent does not show credit of any such income to his account. It is therefore difficult to believe that a hale hearty man who is admittedly a post graduate is working at a meager salary of Rs.8,000/- per month. It is pertinent to note that the bank account statement filed by him reveals a average withdrawal of Rs.10,000/- to Rs.30,000/- every month prior to the litigation. His claim to his earnings is also subsequent to the filing of the petition. His affidavit of income is also an admission of fact that he is not paying maintenance or bearing even the educational expenditure of his minor son despite claiming to be earning Rs.8,000/-. He has not produced any documents to show his educational status and thus appears to be concealing his true income. At the same time, complainant is unable to prime facie show respondent to be owner of any immovable property.

In view these facts and that the respondent is a post graduate and capable of withdrawing and expending Rs.10,000/- to Rs.30,000/- each month, his income is ascertained to be earning atleast Rs.25,000/- 30,000/- per month. Having no other liability but to maintain his legally wedded wife and minor son, respondent no. 1 is directed to pay interim month maintenance of Rs.10,000/- to complainant form the date of this order (as ad-interim maintenance was awarded vide order dated 16.07.2015) and Rs.5,000/- per