Amount spent by a man to support his divorced sister should be kept in mind when awarding alimony to his wife: Delhi High Court

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The Delhi High Court observed that in India, a brother does not abandon his divorced sister and, therefore, the expenses incurred by him for the maintenance of his sister must be taken into account when making a maintenance order in favor of his wife.

There is no skepticism about the sister receiving child support from her husband, but the brother cannot be a silent spectator of his misery if and when she needs his help. Some provision must be made in his list of expenses to support his brother…although when apportioning the respondent’s income, some of the respondent’s income cannot be attributed to the sister, a certain amount, because expenses on an annual basis must be reserved for the divorced sister as a moral obligation of the respondent,Judge Swarana Kanta Sharma observed.

The Court was dealing with a review plea filed by the wife challenging a family court order ordering her husband to pay revised child support of Rs. 6,000 per month.

The husband later remarried and had a child from the new marriage. He also had a 79-year-old dependent father and a divorced sister who once received child support from her husband.

Relations cannot be caged in a mathematical formula alone in all cases. Each case must be decided in view of its special and particular circumstances which may justify the indulgence of the Court. Undoubtedly, in cases involving the granting of alimony, the calculation must be made in terms of financial capacity, the same must be done taking into account all family circumstances,“said the Court.

The Court further added that it is the duty of the son or daughter to take care of their parents during the best days of their lives.

He noted that the husband’s father was a family member with no income who should enjoy his old age seeing his family happy.

The Court also found that the applicant’s lawyer was unable to specify whether the husband’s 79-year-old father was not supported by him or was able to support himself.

“It is the respondent’s (son’s) moral and legal duty to care for his father in the golden years of his life and to provide him with every comfort and support because ‘it is because of him’. I am therefore of the opinion that in the absence of any proof of income independent of the father, at this stage, the respondent must spend a certain amount of money to care for his father.“, observed the Court.

The Court also rejected another argument put forward by the petitioner’s lawyer that a divorced sister cannot be held dependent on the wife.

“In my view, this position is baseless as in India, the bond between siblings and their dependence on each other may not always be financial, but a sibling is expected to or a sister does not abandon or neglect her brother or sister in difficult times,“said the Court.

The Court thus observed that although the divorced sister could legally and morally claim alimony from her husband, the defendant brother, at the same time, must spend and is expected to spend a certain amount for his sister on special occasions and in emerging need.

“Therefore, although when apportioning the respondent’s income, a portion of the respondent’s income cannot be attributed to the sister, a certain amount for annual expenses must be set aside for the divorced sister as a moral obligation of the Respondent. The Petitioner’s plea that no amount should be considered spent on the divorced sister is without merit, particularly in the Indian context and the particular circumstances of this case.“, said the Court.

The Court also noted that although the respondent’s father 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 for maintenance in court. Sometimes parents may feel sad and inferior even at the thought of being supported by their child and asking for child support. Their love and affection for their child is so overwhelming that they may decide to live uncomfortably but not ask for maintenance.Parents want to feel independent because they don’t live with their children, their children live with them. these thoughts in mind, I consider that the needs of the father are not much as he remains with the respondent but a certain amount of expenses must be apportioned for his needs“, observed the Court.

On the aspect of dependency, the Court stated that the definition must be read in the light of Indian culture which upholds unity among family members.

“The affection shared by family members culminates in bonds, and family members are each other’s strongest support system. In particular, the relationship between a brother and a sister has a deep sense of caring for each other. Festivals, norms and traditions in India are an affirmation and recognition of the care, affection and responsibility of siblings towards each other.“, he added.

The Court thus noted that the son of the respondent’s first wife, applicant in the case, had already reached majority and, therefore, the respondent husband would have 4 dependents on his income, namely himself , the applicant wife, the next wife and the daughter born of the subsequent marriage, apart from some expenses for his father and his divorced sister.

Therefore, the Court held that her income should be divided into 5 shares, two shares to be allocated to the respondent husband as gaining member and one share each to other dependants.

“Given the particular circumstances of this case, where Respondent No. 2 remarried after divorcing the Applicant and has a child from the marriage, there is a need to find a balance between the sensitive and delicate situation of the respondent vis-à-vis the applicant and the child from their marriage, as well as the subsequent marriage and child,“said the court.

Noting that approximately Rs.7,500 will be shared among all dependants, the Court increased the amount of maintenance 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 premium salary, which according to the trial court was February 2018, which was not contested by either the petitioner or the respondent.

“The alimony cannot be increased from the date of the application because the present application falls under section 127 Cr.PC in which the amount of the alimony must be decided on the basis of the date on which the salary of the husband has changed.“, ordered the Court.

Accordingly, the plea was dismissed.

Defenders GP Thareja and Rahul Singh appeared for the petitioner. APPLICATION Panna Lal Sharma appeared for State.

Case Title: SARITA BAKSHI v. STATUS & ANR.

Citation: 2022 LiveLaw (Del) 540

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