The obligation to provide maintenance supersedes claims of insufficient resources when the obligor is capable of earning.

O R D E R DEVAN RAMACHANDRAN (J)

Ending a marriage is traumatic for most;

and it is exacerbated for women who have to navigate settlement terms and follow up on sums for maintenance of themselves and their children.

2. To add to the complexity is the stigma of divorce, particularly in many communities in India.

3. In a divorce, large number of - if not most - women still continue to be home makers, thus pushing them to a spot. In most cases, claims for maintenance - not merely for the wife, but also for the children – are met with obdurate resistance.

4. The defences erected are sometimes formidable, other times ingenuous; but they are for another day to speak on.

5. Out of the most ubiquitous response to a claim for maintenance is that the obligator has no resources to honour it. This is so even when the claims are so exiguous that the beneficiaries will be able to barely exist on it, rather than luxuriate.

6. This is where we deem it important to speak. Our view, which is nothing novel – having been cemented by the Hon’ble Supreme Court through the years - is firmly that, when the maintenance claimed is the most essential for the beneficiaries to sustain, the defence of “no resource” is untenable, particularly when the obligant is capable of earning, without any physical incapacitation.

7. Otherwise, it would be open to the obligant not to work; or lie idle; or choose to earn solely for himself/herself and then impel the defence of lack of adequate resources.

8. This is impermissible in the constitutional and statutory Scheme of this Nation; which has now been declared beyond pale of any doubt by the Hon’ble Supreme Court very recently in Apurva @ Apurvo Bhuvanbabu Mandal v. Dolly & others [ (2024) LiveLaw (SC 977)] elevating the sums of maintenance in priority to even that of creditors under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 (SARFAESI Act) and Insolvency and Bankruptcy Code , 2016. While doing so, the Hon’ble Court has declared basic maintenance to be a part of fundamental right to life. These declarations being acme, need to be read and understood carefully, for which we reproduce them below:

“The right to maintenance being equivalent to a fundamental right will be superior to and have overriding effect than the statutory rights afforded to Financial Creditors, Secured Creditors, Operational Creditors or any other such claimants encompassed within the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 (SARFAESI Act) the Insolvency and Bankruptcy Code , 2016 or similar such laws.”

9. We proceed to answer the issues in this case in the backdrop of the preface above.

10. The order of the learned Family Court, Thalassery, in M.C.No.105/2019, is called into question by the petitioner, who is the husband of the 1^st respondent and father of respondents 2 to 5.

11. Sri.T.Ramesh Babu – learned counsel for the petitioner, argued that the quantum of maintenance ordered by the learned Family Court is excessive and beyond the means of his client; and therefore, that he has been constrained to approach this Court. Interestingly, he then offered that his client is willing to pay maintenance to the respondents, however, to a lesser figure; and prayed that this Petition be thus allowed.

12. Sri.T.Ramesh Babu explained that, going by the evidence on record, it becomes luculent that his client is only an employee of a shop run by his brother; and that he is not even earning the amount that has been o