Ruling that an unemployed husband cannot be asked to pay maintenance to his wife, the Delhi High Court on Friday set aside orders of a Metropolitan Magistrate and then by an Additional Sessions Judge asking a jobless man to pay maintenance of Rs. 5,000 per month to his estranged wife.

The Magistrate had allowed the plea by the wife for maintenance which was later upheld by the Sessions Judge. The High Court order came on a petition challenging the two orders by the husband, Sanjay Bhardwaj,

The couple had married in 2007 and, according to the husband, it lasted only for three weeks as he sought divorce accusing the wife and her family of hiding the fact from him that she was suffering from a chronic disease.

Before the marriage, the husband worked in a company in Angola. However, after the marriage he lost his job there as he could not join back his duty due to seizure of his passport by the police here. He could not manage a job here as well.

When Bhardwaj filed the divorce petition, the wife lodged an FIR against him under the Domestic Violence Act and Section 498A (subjecting a woman to cruelty for dowry) of the Indian Penal Code.

Setting aside the two orders, Justice S.N. Dhingra said that while passing the orders for maintenance the presiding judicial officers could not take into account the fact that Bhardwaj was without a job.

Justice Dhingra further noted that both the husband and the wife were equally qualified and had the potential to earn. The wife worked in a multi-national company before the marriage.

Observing that no court can tell a man to beg or borrow or steal to pay maintenance to his wife in case of estrangement, Justice Dhingra said: ``No law provides that a husband has to maintain his wife, living separately from him, irrespective of the fact that whether he earns or not.’’

The Magistrate and the Sessions Judge had rationalised their orders asking the husband to grant maintenance to his wife on the ground of his past `handsome income’ when he was in job.

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