The Delhi High Court has observed that in India, a brother does not abandon his divorced sister and accordingly, the expenditure borne by him in supporting his sister must be taken into account while passing an order of maintenance in favour of his wife.
\”There is no skepticism about the fact that the sister receives maintenance from her husband, but the brother cannot be a mute spectator to her misery if and when she needs his help. Some provision needs to be made in his list of expenditure to support her sibling…though while apportioning the income of the respondent, one portion of income of the respondent cannot be apportioned to the sister, some amount as expenditure on yearly basis has to be kept aside for the divorced sister as moral obligation of the respondent,\” Justice Swarana Kanta Sharma observed.
The Court was dealing with a revision plea filed by the wife challenging an order of Family Court directing her husband to pay revised maintenance of Rs. 6,000 per month.
The husband had later remarried and had a child born out of the new marriage. He also had a dependent father aged 79 years and a divorced sister who used to receive maintenance from her husband.
\”Relationships cannot be caged in a mathematical formula alone in every case. Each case has to be decided in view of its special and peculiar circumstances which may warrant indulgence of the Court. No doubt in cases involving grant of maintenance calculation has to be made in terms of financial capacity, the same needs to be done keeping in mind all family circumstances,\” the Court said.
The Court further added that it is the duty of the son or daughter to take care of his or her parents during the golden days of their life.
It noted that the father of the husband was a non-earning member of the family who should enjoy his old age seeing his family happy.
The Court also opined that the counsel for the petitioner was not able to point out as to whether the 79 years old father of the husband was not being maintained by him or was able to maintain himself having some income of his own.
\”It is the moral and legal duty of the respondent (son) to look after his father in the golden years of his life and ensure every comfort and support to him as „He is because of Him‟. I, therefore, am of the opinion that in absence of any proof of independent income of the father, at this stage, the respondent must be spending some amount on looking after his father. The learned Principal Judge of Family Court has rightly held the same,\” the Court observed.
The Court also rejected another argued put forth by the counsel for the petitioner that a divorced sister cannot be held to be dependent on the wife.
\”In my opinion, this stand is meritless to the extent that in India, the bond between siblings and their dependence on each other may not always be financial but it is expected that a brother or sister will not abandon or neglect his or her sibling in time of need,\” the Court said.
The Court thus observed that though the divorced sister can legally and morally claim maintenance from her husband, however the respondent brother, at the same time, must be spending and is expected to spend some amount for his sister on special occasions and in case of any emergent need.
\”Therefore, though while apportioning the income of the respondent, one portion of income of the respondent cannot be apportioned to the sister, some amount as expenditure on yearly basis has to be kept aside for the divorced sister as moral obligation of the respondent. The plea of the petitioner that no amount should be considered to be spent on the divorced sister is meritless especially in the Indian context and the peculiar circumstances of the present case,\” the Court said.
The Court also noted that even though the father of the respondent did not appear before the Court, it cannot be denied that he had to depend on his son at the age of 79.
\”The father may not have considered filing case for maintenance before a Court of law. At times, parents may feel sad and inferior even at the thought of being maintained by their child and asking for maintenance. Their love and affection for their child is so overpowering that they may decide to live uncomfortably but not ask for maintenance. Parents want to feel independent as they don‟t live with their children, their children live with them. With these thoughts in mind, I hold that the needs of the father are not many as he is staying with the respondent but a certain amount of expenditure must be apportioned for his needs,\” the Court observed.
On the aspect of dependency, the Court said that the definition is to be read in light of Indian culture which champions togetherness amongst family members.
\”The affection shared by family members culminates into bonds and family members are the strongest support system of each other. In particular, the relationship between a brother and a sister has a deep sense of care towards one another. Festivals, norms and traditions in India are an affirmation and recognition of care, affection and responsibility of siblings towards each other,\” it added.
The Court thus noted that the son of the respondent from the first wife, petitioner in the matter, had already attained majority and, therefore, the respondent husband would have 4 dependents on his income i.e. he himself, the petitioner wife, the subsequent wife and the daughter born from the subsequent wedlock, apart from some expenditure on his father and his divorced sister.
Therefore, the Court opined that his income would have to be divided into 5 shares, two shares to be allocated to the respondent husband as being the earning member and one share each to the remaining dependents.
\”In view of the peculiar circumstances of this case, wherein respondent no. 2 has remarried after divorce with the Petitioner and has a child from the wedlock, there exists a need to strike a balance between the sensitive and delicate situation of the respondent towards the petitioner and the child from their wedlock, as well as the subsequent marriage and child,\” the Court said.
Noting that approximately Rs.7,500 will come to share of all the dependents, the Court enhanced the maintenance amount awarded to the petitioner from Rs. 6,000 to Rs. 7,500 per month from the date on which the respondent husband received his first enhanced salary, which according to the Trial Court was February, 2018, which was not disputed either by the petitioner or by the respondent.
\”The maintenance cannot be enhanced from the date of the application as the present petition is under Section 127 Cr.P.C. wherein, the maintenance amount has to be decided on the basis of the date on which the salary of the husband had changed,\” the Court ordered.
Accordingly, the plea was disposed of.
Advocates G.P. Thareja and Rahul Singh appeared for the petitioner. APP Panna Lal Sharma appeared for State.
Source : https://www.livelaw.in/news-updates/delhi-high-court-wife-maintenance-divorced-sister-section-125-crpc-200870