Can a husband avoid paying maintenance by claiming he has no income?

Allahabad High Court has ruled that a husband capable of earning cannot escape his obligation to maintain his wife by citing unemployment or poor business performance

A husband cannot avoid paying maintenance to his wife merely by claiming that he is unemployed, has no permanent source of income or is facing business losses, the Allahabad High Court has held.

 

The ruling highlights that courts can examine a husband's earning capacity and financial circumstances rather than accept his claim of financial hardship at face value.

 

In Mohammad Kamil vs. State of U.P. and Another, the court dismissed a husband's revision petition challenging an order directing him to pay Rs 3,500 per month to his wife. The husband had argued that his wife had left the matrimonial home of her own choice and that he could not afford the amount.

 

 

The court, however, found that the wife had no independent income and was unable to maintain herself. It also noted that the trial court had found material indicating that the husband had turned her out over the non-fulfilment of dowry demands.

 

The court described claims of unemployment or poor business performance as "bald excuses" that have no acceptability in law when a husband is capable of earning and the statutory conditions for maintenance are met.

 

How do courts assess a husband's earning capacity?

 

Courts do not necessarily accept a husband's declared income as the only measure of his ability to pay maintenance. They can examine his qualifications, professional skills, work experience, employment history, health, assets and standard of living to assess his financial position.

 

Bank statements, income-tax returns, property holdings and business interests may also help establish whether the husband has sufficient resources or is suppressing income.

 

"The assessment must remain evidence-based and case-specific," says Apoorva Pandey, advocate, Supreme Court.

 

A mere assertion that a person has no permanent employment or earns too little does not automatically absolve him of his legal obligation, she says. However, earning capacity should not automatically be treated as proof of a specific income.

 

Shashank Agarwal, founder, Legum Solis, says courts must distinguish genuine financial incapacity from an attempt to avoid maintenance by claiming unemployment or inadequate earnings. The assessment must also take account of the reasonable needs and financial resources of both parties.

 

How much maintenance can a wife claim?

 

Maintenance is intended to ensure that a dependent wife can meet her reasonable expenses and live with dignity. The amount is not determined by a fixed formula and depends on the circumstances of each case.

 

In the Allahabad High Court case, the husband challenged the monthly payment of Rs 3,500 as excessive. The court rejected this argument, observing that the amount was modest and that the husband would have incurred at least comparable expenses had his wife continued living with him.

 

The court also referred to the Supreme Court's ruling in Jasbir Kaur Sehgal vs. District Judge, Dehradun (1997), which identified factors relevant to deciding maintenance. These include the parties' social and financial status, the wife's reasonable needs, the husband's capacity to pay after meeting reasonable expenses, and the standard of living she could reasonably expect.

 

Maintenance is also a measure of social justice, as recognised by the Supreme Court in Chaturbhuj vs. Sita Bai (2008).

 

"The objective is to ensure that the wife can live with dignity and reasonable comfort, without making the amount excessive or extortionate," says Akansha Agarwal, associate, TAS Law.

 

Courts may also consider the wife's financial circumstances, including her income and actual earning capacity. A well-qualified woman who is capable of earning but deliberately chooses not to work may, depending on the facts, face a different assessment. However, qualifications alone do not establish that she can maintain herself.

 

Can maintenance be reduced if the husband's income falls?

 

Yes. A maintenance order is not necessarily permanent at the amount originally fixed. If the husband's financial circumstances change substantially, he can approach the competent court for a reduction or modification.

 

Possible grounds include involuntary job loss, a sustained fall in income, serious illness, disability or business failure. The husband must support his claim with credible evidence, such as a termination letter, medical records, income-tax returns or business accounts.

 

Section 127 of the Code of Criminal Procedure (CrPC) provided for alteration of maintenance orders when circumstances changed. Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the corresponding provision is Section 146.

 

"A husband may seek reduction by proving a genuine, material change," says Alay Razvi, managing partner, Accord Juris. However, the existing order remains enforceable until the court modifies it. A pending application does not, by itself, remove the obligation to pay the ordered amount or clear outstanding arrears.

 

Aastha Sharma, senior associate, PSL Advocates & Solicitors, says a genuine job loss, business collapse or serious illness may justify a change in maintenance, provided the applicant produces supporting evidence. Until the court passes a fresh order, the original amount remains payable, and non-payment can result in enforcement proceedings.

 

B. Shravanth Shanker, managing partner, B. Shanker Advocates LLP, says the husband must provide a reasonable level of financial support if he is capable of earning. A genuine change in circumstances may justify modifying the amount, but it does not permit him to stop payments unilaterally.

 

What should couples understand from the ruling?

 

The Allahabad High Court's decision does not mean that every husband must pay whatever amount is claimed or that genuine financial hardship is irrelevant. Instead, it reinforces the need to assess maintenance claims on evidence, the parties' financial circumstances and their reasonable needs.

 

For husbands, the implication is that merely declaring unemployment or poor business performance may not be enough to avoid liability. For wives, the ruling underlines that maintenance is intended to protect their financial security and dignity when they cannot maintain themselves.

 

Anyone seeking a change in an existing order should approach the competent court with supporting documents rather than unilaterally changing or stopping payments.