Delhi High Court
Dhirendra Kumar vs Swati Saista on 30 July, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21.7.2026
Pronounced on: 30.7.2026
Uploaded on: 30.7.2026
+ CRL.REV.P. 363/2021 & CRL.M.A. 17986/2021, CRL.M.A.
5429/2023, CRL.M.A. 20458/2023
DHIRENDRA KUMAR .....Petitioner
Through: Mr. Ajit Kumar and Mr. Shivam
Singh, Advs.
versus
SWATI SAISTA .....Respondent
Through: Ms. Isha Khanna, Amicus Curiae with
Ms. Ruchika Malik and Mr. Shivam
Parashar, Advs.
Petitioner in person (Through VC)
AND
+ CRL.REV.P. 43/2022 & CRL.M.A. 4464/2023, 28877/2023,
35406/2024, 12188/2025, 15729/2025, 13907/2026, 13908/2026,
16911/2026 & 16912/2026
SWATI SAISTA .....Petitioner
Through: Ms. Isha Khanna, Amicus Curiae with
Ms. Ruchika Malik and Mr. Shivam
Parashar, Advs.
Petitioner in person (Through VC)
versus
DHIRENDRA KUMAR .....Respondent
Through: Mr. Ajit Kumar and Mr. Shivam
Singh, Advs.
Signature Not Verified
Signed By:RENUKA
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Signing Date:30.07.2026
20:23:56
CORAM:
HON'BLE MS. JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present judgment disposes of two cross-revision petitions arising
from the common order dated 01.10.2021 passed by the learned Principal
District and Sessions Judge, South-West District, Dwarka Courts, New
Delhi, in Criminal Appeal Nos. 169/2020 and 188/2020. The said appeals
arose from the order dated 07.09.2020 passed by the learned Metropolitan
Magistrate, Mahila Court-02, South-West District, Dwarka Courts, New
Delhi, in CC No. 1582/2019, directing the husband to pay interim
maintenance of Rs. 1,00,000/- per month to the wife from the date of
institution of the complaint.
2. CRL. REV. P. 363/2021 has been preferred by the husband, Mr.
Dhirendra Kumar, seeking setting aside or reduction of the interim
maintenance. CRL. REV. P. 43/2022 has been preferred by the wife, Ms.
Swati Saista, seeking enhancement thereof from Rs. 1,00,000/- to Rs.
3,38,500/- per month. The wife also challenges the direction contained in the
common order dated 01.10.2021 requiring her to obtain employment within
one year and directing the learned Metropolitan Magistrate (hereinafter
referred to as the “MM”) to reconsider the maintenance upon expiry of the
said period.
3. During the pendency of these revision petitions, the husband’s
services with Air India were terminated and, on an application filed by him
under Section 25(2) of the Protection of Women from Domestic Violence
Act, 2005 (hereinafter referred to as the “DV Act” or “the Act”), the
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maintenance was reduced to Rs. 15,000/- per month with effect from
20.05.2022. The order of reduction has subsequently been affirmed by the
learned Sessions Court and by this Court. The controversy before this Court,
therefore, concerns the correctness of the original award of Rs. 1,00,000/-
per month, the wife’s prayer for enhancement, the legality of the direction
requiring her to obtain employment and the effect of the subsequent order
passed under Section 25(2) of the Act.
FACTUAL MATRIX
4. The parties were married on 08.07.2010 according to Hindu rites and
ceremonies. A son was born from the wedlock, who is presently residing
with and being maintained by the husband. The parties have been living
separately since January 2019. On 11.01.2019, the wife instituted a
complaint under Section 12 of the DV Act. Along with the complaint, she
filed an application under Section 23 of the Act seeking, inter alia, interim
maintenance of Rs. 3,38,500/- per month for herself and the minor son. By
an ad-interim order dated 25.05. 2019, the learned MM directed the husband
to pay Rs. 35,000/- per month to the wife.
5. The husband challenged the said order in Criminal Appeal No.
38/2019. By order dated 27.02.2020, the learned Sessions Court set aside the
ad-interim order and remanded the matter to the learned MM for passing a
reasoned order after considering the financial documents filed by the parties.
Pursuant thereto, both sides placed their income affidavits, salary
documents, bank statements and written submissions before the learned
MM.
6. By order dated 07.09.2020, the learned MM awarded interim
maintenance of Rs. 1,00,000/- per month to the wife from the date of
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institution of the complaint. The learned MM noticed that although the wife
possessed a B.Tech. degree in Telecommunications, she was not employed
and the occasional deposits reflected in her bank account did not establish
any regular source of income. The husband disclosed his monthly income as
approximately Rs. 1,50,000/-, apart from rent of Rs. 26,000/- and monthly
expenditure of approximately Rs. 1,45,000/-. He also disclosed that the
minor son was residing with and being maintained by him. The learned MM,
however, found that the income disclosed by the husband was inconsistent
with the salary documents, Form-16 and the substantial recurring credits
reflected in his ICICI Bank and Axis Bank accounts. On an overall
assessment of the said material, his monthly income was estimated in the
range of ₹4-5 lakh. Since the minor son was residing with the husband, the
award was confined to the wife. The relevant portion of the order dated
07.09.2020 is reproduced hereinbelow:
“There is no evidence on record that the complainant
has any regular source of income. The deposits
reflected in her bank account are irregular and
insufficient to show that she is in a position to maintain
herself. It is the responsibility of her husband to fulfill
her daily requirements. The respondent is directed to
pay an amount of Rs. 1,00,000/- per month to the
complainant towards her maintenance, from the date
of filing of petition till further orders.
The application of the complainant for interim relief
and the application filed by the respondent on
21.08.2020 for filing fresh response due to change of
circumstance are accordingly disposed off.
Respondent is directed to clear the arrears within 6
months from today in equal installments and to furnish
the monthly amount towards her maintenance, after the
date of this order by way of money order or deposit in
the bank account of the petitioner on furnishing ofSignature Not Verified
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account number of the same, by or before 15th day of
each month of the English Calendar…”
7. The husband challenged the said order in Criminal Appeal No.
169/2020, whereas the wife preferred Criminal Appeal No. 188/2020
seeking enhancement. The husband contended that the financial documents
had been incorrectly appreciated and that the second component reflected in
his salary account represented variable flying allowance. The wife, on the
other hand, relied upon the salary account and the Form-16 to contend that
the husband had understated his income. The learned Appellate Court
independently examined the husband’s ICICI Bank salary account and found
that two components of remuneration were being credited each month. The
relevant portion of the common order is reproduced hereinbelow:
“6.1. A study of the salary account statement of the
husband maintained in ICICI Bank reveals that he has
two components of salary, which are credited each
month. For example, in the month of April-2019, the
credits are Rs.1,52,333/- on 05.04.2019 and
Rs.4,02,919/- on 09.04.2019 respectively. For the
month of March-2019, the credits are Rs.1,48,318/- on
07.03.2019 and Rs.3,19,202/- on 13.03.2019. For the
month of February-2019, the credits are Rs.1,44,359/-
on 07.02.2019 and Rs.2,85,326/- on 14.02.2019. There
are similar credit entries almost each month.”
8. On the basis of the aforesaid entries, the learned Appellate Court
upheld the assessment of the husband’s monthly income in the range of ₹4-
5 lakh and found no ground to interfere with the award of ₹1,00,000/- per
month. It, however, held that since the wife was technically qualified and
had previously been employed, her entitlement ought to be subject to her
seeking employment. The relevant portion is reproduced hereinbelow:
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“6.3. However, the argument raised by
husband’s counsel that the wife being technically
qualified and employed in the past and is not entitled to
maintenance, has not been addressed by the Trial
Court. This Court is, therefore, of the opinion that the
entitlement of wife for claiming maintenance for self
ought to be circumscribed by time limit of her seeking
employment for self. She cannot be encouraged and
rewarded for not seeking employment, despite being
technically qualified and continue claiming
maintenance from the husband.
7. Nonetheless, this Court is of the opinion that the
order of interim maintenance should have a limit of
one year within which the wife should look for a job
and get re-employed. Genuine efforts made by her in
seeking employment be placed on record before the
Trial Court at the conclusion of one year, from the
passing of this order. Trial Court shall have a re-look
at the interim maintenance at the end of one year,
unless the main case is itself disposed of by the said
date.”
9. Both appeals were accordingly disposed of by upholding the order
dated 07.09.2020, subject to the aforesaid observations. Aggrieved thereby,
the husband and the wife have preferred the present cross-revision petitions.
SUBSEQUENT PROCEEDINGS UNDER SECTION 25(2) OF THE DV ACT
10. During the pendency of the present revision petitions, the husband
filed an application under Section 25(2) of the DV Act seeking modification
of the interim maintenance on the ground of a material change in his
financial circumstances. He asserted that he had ceased to receive salary
after November 2020 and that his services with Air India had been
terminated by notice dated 29.04.2022. The application under Section 25(2)
was filed on 20.05.2022.
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11. By order dated 18.11.2023, the learned MM partly allowed the
application. Upon considering the termination notice, the husband’s fresh
income affidavit, his statement and the bank statements placed on record, the
learned MM found that no salary had been credited since December 2020
and that no material had been produced to establish that the husband
continued to remain employed with Air India or had secured any other
regular source of income.
12. The learned MM, however, did not treat the husband’s earning
capacity as ‘Nil’. Having regard to his qualifications, specialised training,
previous employment and his own disclosure of monthly expenditure of
approximately ₹55,000/-, including the expenditure incurred towards the
minor son, his notional income was assessed at ₹60,000/- per month. Since
the minor son was residing with and being maintained by the husband, the
maintenance payable to the wife was reduced to ₹15,000/- per month with
effect from 20.05.2022. The operative portion is reproduced hereinbelow:
“Keeping three portions of assessed income for
respondent, taking into consideration that the minor
son is maintained by respondent himself, he is directed
to pay Rs.15,000/- per month in favour of complainant
from the date of filing of application w.e.f. 20.05.2022
till final disposal of the petition or till she is legally
entitled to receive the same, whichever is earlier.”
13. The wife challenged the order dated 18.11.2023 before the learned
Additional Sessions Judge. Her appeal was dismissed by judgment dated
13.05.2025. She thereafter preferred CRL.REV.P. (MAT.) 308/2025 before
this Court, which was dismissed by judgment dated 04.08.2025.
Accordingly, for the period commencing 20.05.2022, the parties continue to
be governed by the maintenance of ₹15,000/- per month fixed under Section
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25(2) of the DV Act.
SUBMISSIONS ON BEHALF OF THE HUSBAND
14. Learned counsel for the husband submits that the order dated
07.09.2020 awarding interim maintenance of Rs.1,00,000/- per month
proceeds on an incorrect appreciation of his salary records. It is submitted
that the husband had been taken off flying duties with effect from
20.09.2019 and had not received any salary for July 2020. The amount of
approximately Rs.4.63 lakh reflected in the salary record was, therefore,
incorrectly treated as his regular monthly salary. According to the husband,
the amounts credited thereafter till November 2020 represented arrears and
leave encashment and did not constitute his recurring monthly income.
15. Learned counsel further submits that the husband has not received any
salary since December 2020 and that his services with Air India were
terminated on 29.04.2022. The termination has been challenged by him
before the competent industrial forum and the proceedings are stated to be
pending. On account of the cessation of his salary and the subsequent
termination of his employment, the husband moved an application under
Section 25(2) of the DV Act seeking stoppage of interim maintenance with
effect from December 2020.
16. Learned counsel further submits that the minor son has been residing
with the husband, who has been bearing his expenses. The husband claims
to be residing with the minor son in rented accommodation and meeting
their expenses by borrowing from friends and relatives. It is also submitted
that the wife holds a B.Tech. degree in Telecommunications and is residing
with her family members in the residential flat owned by the husband.
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17. Learned counsel submits that, despite his unemployment and financial
difficulties, the husband has been paying Rs.15,000/- per month to the wife.
It is further contended that the income figures relied upon by the wife relate
to earlier Assessment Years and do not reflect the husband’s disposable
income, as they do not account for the taxes paid and the expenditure and
liabilities claimed to have been incurred by him. On these grounds, learned
counsel prays that the husband’s revision petition be allowed.
SUBMISSIONS ON BEHALF OF THE WIFE
18. The wife, appearing in person, submits that the husband has failed to
comply with the directions issued by this Court towards payment of interim
maintenance and has suppressed his true income. Reliance is placed upon
the orders recording his failure to deposit the amount directed by this Court,
the striking off of his defence and the initiation of contempt proceedings
against him. According to the wife, the husband cannot seek reduction of
maintenance while continuing to remain in default of the subsisting
directions.
19. The wife further submits that the husband has consistently understated
his income. It is contended that his claim of earning approximately Rs.1.50
lakh per month is contradicted by his Form-16 for the Assessment Year
2019-2020, which reflects a gross salary of approximately Rs.92.45 lakh.
She also alleges that the husband failed to make complete disclosure of his
Form-16s, income-tax returns and other financial records in the Affidavits
filed before this Court. On this basis, the wife submits that the assessment of
the husband’s income in the range of Rs.4-5 lakh per month does not reflect
his actual earnings.
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20. The wife further submits that, although the Courts below did not
accept the husband’s claim that his monthly income was approximately
Rs.1.50 lakh and awarded interim maintenance of Rs.1,00,000/- per month,
the amount so awarded is inadequate having regard to the income reflected
in his Form-16 and the standard of living enjoyed by him. She accordingly
seeks enhancement of the interim maintenance from Rs.1,00,000/- to
Rs.3,38,500/- per month.
21. The wife also assails the observations contained in paragraphs 6.3 and
7 of the order dated 01.10.2021, directing her to seek re-employment within
one year, place the efforts made by her before the learned Trial Court and
requiring the learned Trial Court to reconsider the interim maintenance
thereafter. It is submitted that her educational qualifications or mere capacity
to earn cannot be equated with actual employment or an independent source
of income.
SUBMISSIONS OF THE AMICUS CURIAE
22. Ms. Isha Khanna, learned Amicus Curiae, submits that the
controversy in the present cross-revision petitions is confined to the
correctness of the interim maintenance of Rs.1,00,000/- per month awarded
by the learned Trial Court and upheld by the learned Appellate Court. The
question arising in the present proceedings is whether the said amount is
liable to be reduced, enhanced or maintained.
23. Learned Amicus submits that the subsequent order reducing the
maintenance to Rs.15,000/- per month was passed under Section 25(2) of the
DV Act on the basis of a subsequent change in circumstances. The said
determination is distinct from the issue arising in the present revision
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petitions and does not govern the correctness of the original award of
Rs.1,00,000/- per month for the earlier period.
ANALYSIS AND FINDINGS
24. This Court has heard learned counsel for the husband, the wife
appearing in person and learned Amicus Curiae, and has perused the written
submissions and the material placed on record.
25. Having regard to the rival submissions and the material placed on
record, the following questions arise for consideration: –
i. Whether the assessment of the husband’s income and the award of
interim maintenance of Rs.1,00,000/- per month suffer from any
illegality, perversity or material irregularity warranting interference in
Revision;
ii. Whether the wife has made out a case for enhancement of the interim
maintenance to Rs.3,38,500/- per month;
iii. Whether the observations and directions contained in paragraphs 6.3
and 7 of the common order dated 01.10.2021, requiring the wife to
obtain employment within one year and directing reconsideration of
maintenance thereafter, are sustainable; and
iv. What is the effect of the cessation of the husband’s salary and the
subsequent proceedings under Section 25(2) of the DV Act upon the
liability arising under the original order.
26. At the outset, it may be noted that a Full Bench of the Allahabad High
Court in Dinesh Kumar Yadav v. State of U.P. and Others, AIR 2017 All
29, has held that an order passed by the Court of Sessions in an Appeal
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under Section 29 of the DV Act is amenable to the revisional jurisdiction of
the High Court under Sections 397 and 401 CrPC. The DV Act does not
expressly exclude the ordinary revisional jurisdiction of the High Court.
This Court finds the reasoning adopted by the Full Bench applicable to the
present proceedings as well. The present revision petitions are, therefore,
maintainable.
27. However, the scope of interference in Revision is limited. In Neelesh
Srivastava v. Sukriti Srivastava, MANU/DE/9660/2025, this Court
observed:
“15. The scope of revisional jurisdiction under Sections
397 and 401 Cr.P.C. is narrow and circumscribed.
Interference is warranted only where the impugned
order suffers from patent illegality, perversity, gross
impropriety, or results in miscarriage of justice.
16. It is equally well-settled that orders granting
interim maintenance are interlocutory in nature, based
on a prima facie assessment of material placed before
the Court, and ordinarily ought not to be interfered
with unless the finding is wholly arbitrary or
untenable.”
28. An order fixing interim maintenance is founded upon a prima facie
assessment of the financial material then available. The Revisional Court is
not expected to conduct a final adjudication of disputed financial entries or
substitute its own view merely because another estimation is possible.
Interference would nevertheless be justified where a material component has
been incorrectly read, a relevant change in the financial position has been
overlooked or the quantum bears no reasonable relationship with the income
and liabilities disclosed on record.
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29. The requirement of a reasoned, though provisional, assessment was
explained by this Court in Tasmeer Qureshi v. Asfia Muzaffar,
2025:DHC:9479, in the following terms:
“35. While determining interim maintenance, the learned
Family Courts are expected to make at least a provisional
assessment of the income earned by a spouse, who is being
directed to pay interim maintenance, based on the
affidavits, documents, and submissions before it. Even if
such assessment is tentative and subject to final
determination, the order must record: (i) what material
has been considered; (ii) what income or earning capacity
has been assumed; and (iii) how that assumption has
translated into the figure of interim maintenance fixed.”
30. Thus, although some estimation may be inevitable at the interim
stage, such estimation must have a rational foundation in the Affidavits,
financial documents and other material placed before the Court.
STATUTORY FRAMEWORK GOVERNING INTERIM MAINTENANCE
31. Section 20(1) of the DV Act empowers the Magistrate to grant
monetary relief, including maintenance, to meet the expenses incurred and
losses suffered by the aggrieved person and her children. Section 20(2)
requires such monetary relief to be adequate, fair and reasonable and
consistent with the standard of living to which the aggrieved person was
accustomed.
32. Section 23 empowers the Magistrate to pass such interim order as is
just and proper. Section 25(2), on the other hand, enables alteration,
modification or revocation of an order where a subsequent change in the
circumstances of either party so requires.
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33. The original award must, therefore, be tested on the basis of the
financial position and the material relevant to the period for which it was
made. A subsequent alteration in employment, income or liabilities does not
render the original order illegal from its inception. It may, however, require
a prospective adjustment of the subsisting liability.
34. In the leading decision of Rajnesh v. Neha, (2021) 2 SCC 324, the
Supreme Court held that there is no inflexible formula for determining
maintenance. The status of the parties, the reasonable needs of the claimant,
her independent income, the standard of living enjoyed during the marriage,
the income and liabilities of the respondent and the responsibility of
maintaining dependent children are all relevant considerations. The
principles governing determination of quantum were explained in in the
following terms:
“…On the other hand, the financial capacity of the
husband, his actual income, reasonable expenses for his
own maintenance, and dependant family members whom
he is obliged to maintain under the law, liabilities if any,
would be required to be taken into consideration, to arrive
at the appropriate quantum of maintenance to be paid.
The Court must have due regard to the standard of living
of the husband, as well as the spiralling inflation rates and
high costs of living. The plea of the husband that he does
not possess any source of income ipso facto does not
absolve him of his moral duty to maintain his wife if he is
able bodied and has educational qualifications.”
(ii) A careful and just balance must be drawn between all
relevant factors.
The test for determination of maintenance in matrimonial
disputes depends on the financial status of the Respondent,
and the standard of living that the Applicant was
accustomed to in her matrimonial home.
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The maintenance amount awarded must be reasonable
and realistic, and avoid either of the two extremes i.e.
maintenance awarded to the wife should neither be so
extravagant which becomes oppressive and unbearable for
the Respondent, nor should it be so meagre that it drives
the wife to penury. The sufficiency of the quantum has to
be adjudged so that the wife is able to maintain herself
with reasonable comfort.”
35. The exercise is, therefore, not confined to the salary figure asserted by
either party. Salary slips, Form-16, income-tax information, bank
statements, recurring employer-related credits, statutory deductions,
reasonable personal liabilities and expenditure incurred towards dependent
children must be considered together. The assessment at the interim stage
may be approximate, but it cannot be arbitrary.
36. The principal grievance of the husband is that the learned MM
incorrectly read the salary slip for July 2020 and treated the figure of
approximately Rs.4,63,040/- as the salary actually received by him for that
month. The record supports the husband’s contention to the limited extent
that the said figure could not have been treated, by itself, as his net salary for
July 2020. A cumulative figure or a Form-16 summary cannot be equated
with the amount actually received for a particular month.
37. The said error, however, does not by itself invalidate the entire
assessment made by the learned MM. The order dated 07.09.2020 did not
rest solely upon the figure of Rs.4,63,040/-. The learned MM also
considered the husband’s Income Affidavit, Form-16, ICICI Bank account,
Axis Bank account and the substantial recurring credits reflected therein.
38. The ICICI Bank statement reflected, inter alia, credits of
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Rs.1,52,333/- and Rs.4,02,919/- in April 2019; Rs.1,48,318/- and
Rs.3,19,202/- in March 2019; and Rs.1,44,359/- and Rs.2,85,326/- in
February 2019. Similar employer-related credits were noticed for several
other months. These entries were materially inconsistent with the husband’s
disclosure that his monthly income was confined to approximately
Rs.1,50,000/-.
39. The learned Appellate Court did not mechanically affirm the finding
of the learned MM. It independently examined the salary account and
noticed that two components of remuneration were being credited to the
husband in successive months. It was on that basis that the assessment of the
husband’s monthly income in the range of Rs. 4 – 5 lakh was upheld.
40. The husband contends that the second component constituted flying
allowance and was variable in nature. The entire gross flying allowance
could not necessarily have been treated as disposable income without
examining its nature, the expenditure attached to flying assignments and the
applicable deductions. At the same time, the recurring employer-related
credits could not be excluded altogether while assessing the financial
resources available to the husband.
41. The record relating to the period preceding the order dated 07.09.2020
thus established that the husband was receiving remuneration substantially
exceeding the amount disclosed by him. The assessment in the range of Rs.
4-5 lakh per month, though necessarily approximate, had an identifiable
foundation in the salary account, Form-16 and recurring credits. It cannot be
characterised as conjectural or wholly unsupported.
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42. The wife had not demonstrated any regular source of income. The
occasional deposits reflected in her bank account did not establish that she
was employed or possessed income sufficient to maintain herself in a
manner commensurate with the standard of living enjoyed during the
marriage.
43. The minor son was residing with and being maintained by the
husband. The learned MM, therefore, confined the award of Rs.1,00,000/-
per month to the wife. The husband’s responsibility towards the minor son
and his own reasonable needs were, nevertheless, material liabilities and
were required to be accounted for while examining the proportionality of the
amount awarded.
44. Maintenance cannot be determined by applying an inflexible
mathematical fraction to gross remuneration. Nevertheless, considering the
husband’s financial position during the relevant period, the recurring salary
credits, the absence of any regular income of the wife and the responsibility
of the husband towards the minor son, the award of Rs.1,00,000/- per month
was not manifestly excessive when made.
45. Accordingly, no interference is warranted with the original quantum
for the period from 11.01.2019, being the date of institution of the
complaint, until 07.11.2021. The incorrect reading of the July 2020 salary
entry does not vitiate the award for that period, as the conclusion was
supported by the remaining financial material and was independently
examined by the learned Appellate Court.
46. The wife seeks enhancement of interim maintenance from
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Rs.1,00,000/- to Rs.3,38,500/- per month. She relies substantially upon the
husband’s Form-16 and the income information reflecting gross total income
of Rs.93,34,331/- for Assessment Year 2019 – 2020 and Rs.74,29,540/- for
Assessment Year 2020 – 2021. The aforesaid figures undoubtedly establish
that the husband had substantial gross income during the corresponding
periods. They do not, however, establish that the entirety of the gross annual
income was available as monthly disposable income. Income tax, statutory
deductions, the variable nature of flying allowance and reasonable
employment – related expenditure could not be disregarded.
47. The original claim of Rs.3,38,500/- was also made for the wife and
the minor son. The minor son has, however, been residing with and
maintained by the husband. The expenditure incurred towards him cannot be
included in the wife’s individual requirement while determining the
maintenance payable exclusively to her.
48. The wife’s asserted monthly expenditure was required to be tested
against the material on record. The quantum claimed could not be accepted
merely by applying a percentage to the husband’s gross annual
remuneration. The record does not establish that Rs.3,38,500/- per month
was required to meet the wife’s reasonable needs or to maintain the standard
of living to which she was accustomed.
49. Applying the balance mandated in Rajnesh v. Neha (supra), this
Court finds that enhancement to Rs. 3,38,500/- per month would consume a
substantial portion of the income assessed during the relevant period without
adequately accounting for the husband’s reasonable needs and his
responsibility towards the minor son. Conversely, the amount of
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Rs.1,00,000/- per month cannot be regarded as so meagre as to deprive the
wife of reasonable sustenance.
50. This Court, therefore, finds no ground to enhance the interim
maintenance beyond Rs. 1,00,000/- per month for the period during which
the husband continued to receive substantial salaried remuneration. The
wife’s prayer for enhancement is accordingly rejected.
51. The directions contained in paragraphs 6.3 and 7 of the common order
dated 01.10.2021 require separate consideration. The learned Appellate
Court noticed that the wife holds a B.Tech. degree in Telecommunications.
It accordingly directed her to seek suitable employment within one year,
place on record the genuine efforts made by her and required the learned
MM to reconsider the interim maintenance thereafter.
52. Interim maintenance is provisional in nature. The Court may grant it
for a specified period or direct its reconsideration after a reasonable interval.
While doing so, the Court may take into account the age, qualifications,
previous employment, health, family responsibilities and present
employability of the spouse claiming maintenance. A professionally
qualified spouse may, therefore, be required to make bona fide efforts
towards securing suitable employment. Such a direction is neither beyond
the jurisdiction nor outside the discretion of the Court. However, the
capacity to earn cannot be equated with actual earnings.
53. In Shailja and Another v. Khobbanna, (2018) 12 SCC 199, the
Supreme Court expressly distinguished between the capacity to earn and
actual earning and observed:
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“4. We are not satisfied with the order passed by the High
Court considering the income of the respondent husband,
which we have been told, is more than Rs 80,000 per
month since the respondent husband is a Senior Lecturer
in a college. It is stated by the learned counsel for the
appellants that the respondent husband is also the owner
of 26 acres of irrigated land.
5. That apart, we find that the High Court has proceeded
on the basis that Appellant 1 was capable of earning and
that is one of the reasons for reducing the maintenance
granted to her by the Family Court. Whether Appellant 1
is capable of earning or whether she is actually earning
are two different requirements. Merely because
Appellant 1 is capable of earning is not, in our opinion,
sufficient reason to reduce the maintenance awarded by
the Family Court.”
54. In the present case, the learned Appellate Court did not direct
automatic cessation of maintenance upon the expiry of one year. It required
the wife to make genuine efforts to obtain employment and directed the
learned MM to reconsider the matter thereafter. The direction is within the
jurisdiction of the learned Appellate Court and does not call for interference.
It is, however, clarified that the wife cannot be compelled to secure
employment within the stipulated period. Her obligation is confined to
making bona fide and reasonable efforts. Any reconsideration of
maintenance shall depend upon her actual employment and income, the
efforts made by her, her reasonable needs, the financial capacity and
liabilities of the husband and the circumstances prevailing at the relevant
time. Mere expiry of one year shall not result in automatic cessation of
maintenance.
CESSATION OF SALARY AND THE PERIOD AFTER FILING OF THE
HUSBAND’S REVISION
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55. The position materially altered after the period considered by the
learned MM while passing the order dated 07.09.2020. The husband’s case
is that he had been taken off flying duties, that no regular salary was
received after November 2020 and that his services were ultimately
terminated on 29.04.2022.
56. The common order dated 01.10.2021 noticed the submission that the
husband’s income had reduced owing to the pandemic and the consequent
absence of flying duties. It nevertheless assessed his continuing financial
capacity principally on the basis of salary credits pertaining to 2019. The
effect of the subsequent cessation of regular salary was not separately
examined.
57. The husband instituted CRL.REV.P. 363/2021 on 08.11.2021 and
sought interference with the continuation of maintenance of Rs.1,00,000/-
per month. He specifically relied upon the cessation of regular flying duties
and the absence of regular salary. Thus, the reduction in his salaried income
was not a development arising for the first time after the institution of the
present revision petition.
58. The subsequent proceedings under Section 25(2) of the DV Act have
since provided judicial confirmation of the said financial position. Upon
examining the husband’s bank statements, termination notice, fresh income
affidavit and statement, the learned MM recorded that no salary was credited
after December 2020 and that no regular alternative source of income had
been demonstrated.
59. The learned MM did not, however, accept that the husband’s earning
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capacity was ‘Nil’. Having regard to his specialised qualifications,
professional background and his own disclosure of monthly expenditure of
approximately Rs.55,000/-, his notional income was assessed at Rs.60,000/-
per month. Since the minor son was being maintained by him, a sum of
Rs.15,000/- per month was awarded to the wife.
60. The said determination was affirmed by the learned Additional
Sessions Judge on 13.05.2025. The wife’s further challenge in
CRL.REV.P.(MAT.) 308/2025 was rejected by this Court on 04.08.2025.
While affirming the subsequent determination, this Court observed:
“……Applying the well-established ratio in Annurita
Vohra v. Sandeep Vohra, the Court carved out a one-
fourth share for the Petitioner and fixed interim
maintenance at INR 15,000 per month. Crucially, the
appellate reasoning reiterates that the standard at this
stage is not one of proof beyond doubt, but of forming a
reasonable view pending final determination. The
court was satisfied that there had been a demonstrable
reduction in the Respondent’s financial capacity,
warranting a downward revision of interim
maintenance. It also took into account the fact that
the minor child was in the care of the Respondent,
thereby increasing his financial expenditure.”
61. This Court thus found no arbitrariness or perversity in the conclusion
that the husband’s financial circumstances had materially changed or in the
assessment of Rs.15,000/- per month as interim maintenance.
62. The subsequent adjudication cannot be ignored while deciding the
present revisions. It does not retrospectively create the cessation of salary, it
confirms, on the basis of the bank statements and other material, that regular
salary had ceased after December 2020. At the same time, the later
determination cannot be employed to reopen the entire liability arising
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before the husband sought Revisional relief.
63. In S. Vijikumari v. Mowneshwarachari C., 2024 INSC 732, the
Supreme Court explained the operation of an order under Section 25(2) of
the DV Act in the following terms:
“14. However, for the invocation of Section 25(2) of the
Act, there must be a change in the circumstances after the
order being passed under the Act. Alexander Sambath
Abner vs. Miron Lede, 2009 SCC OnLine Mad 2851 is
also to the same effect. Thus, an order for alteration,
modification or revocation operates prospectively and not
retrospectively. Though the order for grant of a
maintenance is effective retrospectively from the date of
the application or as ordered by the Magistrate, the
position is different with regard to an application for
alteration in an allowance, which may incidentally be
either an increase or a reduction – to take effect from a
date on which the order of alteration is made or any other
date such as from the date on which an application for
alteration, modification or revocation was made
depending on the facts of each case.”
64. The application under Section 25(2) in the present case was filed on
20.05.2022. Accordingly, the order dated 18.11.2023 operates from that
date, and its effective date is not being altered in the present proceedings.
65. The present revisions, however, arise from the original appellate order
dated 01.10.2021. The husband had already invoked the revisional
jurisdiction of this Court on 08.11.2021 and challenged the continued
application of the original quantum after cessation of his regular salary. The
relief granted for the period commencing 08.11.2021 is, therefore, not a
retrospective application of the order under Section 25(2). It is the
consequence of the independent adjudication of the husband’s challenge to
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the common appellate order.
66. This Court does not consider it appropriate to reduce the maintenance
with effect from December 2020. Until the husband approached this Court,
the original order continued to bind him. The liability accrued prior to
08.11.2021 cannot, therefore, be reopened on the basis of the subsequent
determination under Section 25(2) of the DV Act. At the same time,
continuation of maintenance at Rs.1,00,000/- per month after 08.11.2021
would overlook the cessation of the husband’s regular salary, which was
specifically pleaded in the revision petition and subsequently verified in the
proceedings under Section 25(2) of the DV Act. The husband is also
pursuing proceedings arising from the termination of his employment and
has disclosed expenditure towards litigation. This constitutes an additional,
though secondary, financial liability. Considering his notional income of
Rs.60,000/- per month, his responsibility towards the minor son and his
existing liabilities, maintenance of Rs.15,000/- per month provides a fair and
reasonable basis for the period commencing from the filing of the present
revision petition.
CONCLUSION
67. The original award of Rs.1,00,000/- per month was supported by the
salary credits, Form-16 and bank statements relating to the period during
which the husband was receiving substantial remuneration. Although the
figure reflected in the salary slip for July 2020 was not correctly appreciated,
the assessment did not rest upon that entry alone. The award of Rs.
1,00,000/- per month is, therefore, upheld from 11.01.2019 to 07.11.2021.
The wife has not made out any ground for enhancement thereof to
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Rs.3,38,500/- per month.
68. CRL.REV.P. 363/2021 is partly allowed. The common order dated
01.10.2021 and the order dated 07.09.2020 are modified to the extent that
the husband shall be liable to pay interim maintenance of Rs.1,00,000/- per
month from 11.01.2019 to 07.11.2021 and Rs.15,000/- per month from
08.11.2021 to 19.05.2022.
69. With effect from 20.05.2022, the parties shall continue to be governed
by the order dated 18.11.2023, whereby maintenance of Rs.15,000/- per
month was awarded under Section 25(2) of the DV Act. The said amount
shall continue until the final disposal of CC No.1582/2019 or until the wife
ceases to be legally entitled to receive the same, whichever is earlier.
70. With effect from 20.05.2022, the parties shall continue to be governed
by the order dated 18.11.2023, whereby maintenance of Rs.15,000/- per
month was awarded from the date of the application under Section 25(2) of
the DV Act. The said amount shall continue until the final disposal of CC
No.1582/2019 or until the wife ceases to be legally entitled to receive the
same, whichever is earlier.
71. CRL.REV.P. 43/2022 is dismissed. The wife’s prayer for
enhancement of interim maintenance is rejected. The observations and
directions contained in paragraphs 6.3 and 7 of the common order dated
01.10.2021 are upheld, subject to the clarification that the maintenance shall
not cease automatically upon expiry of one year. Any reconsideration
thereof shall be undertaken by the learned MM on the basis of the material
and circumstances prevailing at the relevant time.
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72. The observations made herein are confined to the determination of
interim maintenance and shall not influence the learned MM while finally
adjudicating the complaint on the basis of the evidence led by the parties.
73. The cross-revision petitions are disposed of in the aforesaid terms.
Pending application(s), if any, also stand disposed of.
MADHU JAIN
(JUDGE)
JULY 30, 2026/b/m
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