Delhi Court: Notional Income and Earning Capacity Insufficient Grounds to Deny Interim Maintenance Under Section 125 of the CrPC

Introduction

In Praveen Kumar v. Pooja Arya[i], the Hon’ble Delhi High Court has, while adjudicating on a criminal revision petition filed against an interim maintenance order passed under s. 125 of the Code of Criminal Procedure, 1973 (‘CrPC’), proceeded to observe and reiterate that the mere capability of a spouse to earn is different from his/her actual earnings. Further, the ruling also, in the alternative, observes the notional methodology being used by the family courts to quantify maintenance, wherein the amount payable as maintenance is arrived upon without scrutinizing the income affidavit that each spouse has to now mandatorily file in furtherance of the judgment delivered by the Hon’ble Supreme Court in Rajnesh v. Neha[ii].

The ruling discusses certain important questions pertaining to the assessment of notional income, the evidentiary standards required for interim relief, and the balance between procedural fairness and the immediate financial needs of dependents.

Brief Facts

• Praveen Kumar (‘Petitioner’) got married to Pooja Arya (‘Respondent’) on 12.01.2016, and subsequently, a child was born out of the said wedlock.

• The Respondent, allegedly having been subject to cruelty by the Petitioner, moved out of her matrimonial house in 2017, along with her son, and since then, the Petitioner and the Respondent (‘Parties’) have been living separately.

• Until December 2022, the Respondent was employed as a guest teacher at a government school and was earning approximately Rs. 30,000 per month; however, her contract for employment was not renewed, and as a result, she lost her job.

• Consequently, since she had no active income and a young child to take care of, she filed a petition under s. 125 of the CrPC, seeking maintenance for herself and the child, which the Family Court allowed and passed an order in favour of the Respondent, granting interim maintenance of Rs. 7,500 per month to the wife and Rs. 7,500 per month to the child.

• The maintenance so awarded was, however, payable from January 2023, considering that prior to the said date, the wife was earning and hence,  not entitled to maintenance before that date.

• Aggrieved by such grant of maintenance, the Petitioner challenged the maintenance order before the Court, contending that:

  • The Petitioner’s monthly income was only between Rs. 10,000 to Rs. 15,000, and not Rs. 30,000, as notionally assessed by the Family Court;

  • The Respondent, an educated person, was capable of maintaining herself and the application under s. 125 CrPC was only filed with an intention to harass the Petitioner.

  • The Petitioner had significant financial responsibilities and was solely responsible for taking care of his elderly mother.

Held

The Court, while upholding the order passed by the Family Court granting payment of interim maintenance in favour of the Respondent and the child, made the following observations:

• It recognized the distinction between a person’s “capacity to earn” and their “actually earning”, while applying the ratio laid down in  Shailja v. Khobbana[iii] to the present case and observed that the the Family Court had rightly considered the Respondent’s actual income, i.e., what she was earning at the time of filing for maintenance,  as compared to what she could have earned while determining whether maintenance is at all payable and the amount payable thereof.

• Further, while taking note of the fact that the Respondent was a single parent and a sole caregiver to the child, the Court observed that cessation of employment in such a scenario would not amount to voluntary abandonment of work, a ground on which the  Respondent could have been disentitled to seek maintenance. The present case was one wherein the Respondent, to fulfil her duties as a parent, was compelled to disengage as a teacher. Thus, the order was neither perverse nor legally infirm.

• While the Court, in an interim set up, directed the Petitioner to pay a sum of Rs. 7,500 to the wife and Rs. 4,500 to the child, as interim maintenance, it remanded the matter back to the Family Court, directing it to adjudicate upon the interim maintenance application afresh, within a month’s time and pass a reasoned order after considering in detail the income affidavit and bank account statement filed by the Parties, in compliance with directions passed by the Supreme Court in Rajnesh v. Neha (supra).

Our Analysis

The Court in the present matter has passed an extremely balanced and judicially sound observation. While on one hand the Family Court has been appreciated jurisprudential wisdom with regards to allowing the grant of interim maintenance qua the Respondent and the child, particularly for distinguishing effectively between a person’s capacity to earn and its actual earning, it has also on the other hand remanded the matter back to the lower court for proper evaluation of the interim maintenance application, in lieu of the guidelines laid down by the Supreme Court in Rajnesh v. Neha (supra).

Further, the Court has rather considerately acknowledged that the Respondent’s decision to discontinue employment to care for her child, albeit voluntary, flows from her primary caregiver role that is protected under law and only on such basis, a definitive claim for maintenance ought not have been defeated; what matters is the party’s real and present earning status. This aligns with the remedial, humanitarian purpose of s. 125 of the CrPC. The High Court also held that where there were documents available testifying to the actual income of a party, the Family Court was expected to consider that and not the notional income of a party to decide the maintenance payable.

The application of notional income while deciding a case leads to inaccurate results. Notional income refers to an estimated earning, based on factors such as education and previous employment, and other secondary information available to the court. The actual income can be very different from notional income, as was evident in the present case, wherein neither of the Parties was earning anywhere near their notional income assessments; the Respondent was unemployed, while, as per the Petitioner, he was barely earning half of what was calculated to be his notional income. This brings us to a conclusion as to why the concept of awarding maintenance on the basis of notional income has not been adopted by the Courts in India, and the sound system of filing income affidavits and bank account details has been put in place by the Supreme Court, and rightly so.

End Notes

[i] 2025 SCC OnLine Del 3258 dated 13.05.2025.

[ii] (2021) 2 SCC 324.

[iii] (2018) 12 SCC 199.

Authored by the Metalegal Editorial Board, the views expressed are personal and do not constitute legal advice or opinion.