Does Custody of One Child Relieve a Husband from Paying Maintenance?

Maintenance jurisprudence in India has consistently evolved to prevent destitution and ensure dignity for dependent spouses and children. A recurring question that arises before courts is whether a husband can be absolved of his obligation to pay maintenance to his wife when one of the children from the marriage is residing with him and he claims to be bearing that child’s expenses.

This issue acquired renewed judicial scrutiny in the Delhi High Court decision in Pankaj v. Archana & Anr., CRL.REV.P. 409/2024, decided on 5 January 2026. The custody of one child with the husband does not automatically relieve him of the obligation to maintain the wife and the other child living with her. Custody may be relevant for determining the quantum of maintenance, but it does not extinguish the statutory duty itself. 

Facts of the Case

The petitioner husband and respondent wife were married on 28 November 2011. Two children were born from the wedlock. The son, born in 2012, was residing with the husband, while the daughter, born in 2017, was living with the wife.

Due to matrimonial discord, the parties started living separately in January 2021. The wife alleged that she was compelled to leave the matrimonial home due to cruelty and physical assault. She subsequently shifted to rented accommodation along with her minor daughter.

The wife filed an application under Section 125 CrPC (Section 144 BNSS) seeking maintenance for herself and her minor daughter. She claimed that she had no independent source of income and was dependent on her parents for survival. The husband opposed the claim, contending that he earned only about ₹13,500 per month from a contractual job with the Municipal Corporation of Delhi and that he was already maintaining the minor son in his custody.

The Family Court, after examining income affidavits and bank statements, found discrepancies in the husband’s declared income and expenditure. It assessed his monthly income at ₹60,000 and awarded interim maintenance of ₹20,000 per month to the wife and daughter.

Aggrieved by this order, the husband filed a criminal revision petition before the Delhi High Court.

Issue

• Whether the custody of one child with the husband relieves him of his legal obligation to pay maintenance to the wife and the other minor child living with her under Section 125 CrPC (Section 144 BNSS).

Nature and Object of Maintenance Proceedings

The Court reiterated that proceedings under Section 125 CrPC (Section 144 BNSS) are summary in nature and are intended to provide immediate relief. They are not meant to finally determine civil rights or punish a spouse. The object is to prevent vagrancy and ensure that a wife and children are not rendered destitute due to marital breakdown.

At the interim stage, the Court is not required to conduct a detailed trial or conclusively decide disputed facts. The inquiry is limited to determining whether the claimant is unable to maintain herself and whether the respondent has the means to provide support. 

Assessment of Wife’s Earning Capacity

The husband alleged that the wife was earning approximately ₹50,000 per month from a beauty parlour business. However, the Court noted that beyond bald assertions, no documentary or prima facie material was placed on record to substantiate this claim.

In maintenance proceedings, allegations of earning capacity must be supported by some material. Mere suspicion or conjecture is insufficient. The Family Court, therefore, rightly declined to draw an adverse inference against the wife at the interim stage.

Although the wife did not file her bank statements, the Court held that this omission, by itself, could not outweigh the complete lack of evidence from the husband regarding her alleged income. 

Scrutiny of Husband’s Income and Expenditure

The High Court upheld the Family Court’s detailed scrutiny of the husband’s bank statements. While the husband claimed a monthly income of ₹13,500, his expenditure pattern told a different story.

His own affidavit showed expenses exceeding his declared income, even without accounting for his personal necessities. Further, the bank statements revealed frequent withdrawals and payments to fuel stations, service centres, restaurants, retail outlets, and finance entities. These transactions were inconsistent with the projected picture of subsistence-level income.

The absence of regular withdrawals for rent or school fees further undermined his version. The Court found that these discrepancies justified the inference that the husband had concealed his true income.

Income from Unorganised and Informal Sectors

An important aspect of the judgment is its recognition of the realities of unorganised economic activity. The Court noted that individuals engaged in property dealing and similar businesses often do not have neatly documented income streams.

In such cases, courts cannot insist on strict proof of income. A reasonable assessment based on surrounding circumstances, lifestyle indicators, and expenditure patterns is permissible and often necessary. Mathematical precision is neither possible nor required at the interim maintenance stage.

The material indicating the husband’s involvement in property dealing under the name “Neel Associates” further supported the conclusion that his income was higher than disclosed.

Balancing Competing Responsibilities

While affirming the husband’s liability, the High Court adopted a balanced approach. It acknowledged that the husband was also maintaining the minor son in his custody and that this fact could not be ignored while determining the quantum of maintenance.

Taking into account the overall circumstances, the Court modified the Family Court’s assessment. It reassessed the husband’s income at ₹50,000 per month and reduced the interim maintenance payable to the wife and daughter from ₹20,000 to ₹17,500 per month.

This adjustment reflects judicial sensitivity to competing responsibilities without undermining the core obligation to maintain dependent family members 

Key Highlight

The Court clearly settled the legal position in the following terms:

"The mere fact that one child is in the custody of the petitioner-husband cannot, by itself, be a ground to absolve him of his obligation to maintain respondent no.1-wife and the minor child residing with her. The responsibility of maintenance does not stand divided merely because each parent has custody of one child. If the wife is not working and has no independent source of income, the husband continues to be under a legal obligation to provide maintenance to the wife and the minor child in her custody, irrespective of whether the other child is residing with him. The position would remain the same even if both children were in the custody of the wife." 

Conclusion

The Delhi High Court in Pankaj v. Archana & Anr. has decisively held that the custody of one child with the husband does not relieve him of his statutory obligation to pay maintenance to his wife and the other minor child. While such custody may be relevant in determining the amount payable, it cannot be used to deny maintenance altogether.

The judgment strengthens the welfare-oriented purpose of Section 125 CrPC (Section 144 BNSS) and serves as an important precedent against attempts to evade maintenance obligations through strategic custody claims.