Marital discord does not absolve father from duty of maintaining child borne out of marriage: Supreme Court

The Supreme Court recently remarked that whatever be the dispute between man and wife, a child should not be made to suffer. "The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority", added the top court.

A bench of Justices MR Shah and AS Bopanna made these observations while hearing an appeal filed by one Neha Tyagi against an order of the Rajasthan High Court whereby it had upheld the Family Court decision of dissolving the marriage between the appellant and the respondent, Lieutenant Colonel Deepak Tyagi on the ground of cruelty and desertion.

The marriage between the appellant and the respondent was solemnised in 2005 and they have a one son aged 13 years. 

Neha had filed number of complaints against her husband before his employer – Army Authorities including the  issues of extra-marital affairs of her husband.

An enquiry was initiated by the Army Authorities against Deepak Tyagi and he was later exonerated.

While Deepak Tyagi had approached the Family Court, Jaipur seeking a decree of divorce and dissolution of marriage on the ground of cruelty and desertion, in the meantime and since 2012, the Army Authorities were deducting 27.5% of the salary per month from his pay and allowances as per Section 90(1) of the Army Act, 1950.

Arguing before the top court, Neha urged that in the alternative, the findings against her on “cruelty” may be expunged and marriage may be continued to remain dissolved on account of irretrievable breakdown of marriage since both wife and husband are residing separately since May, 2011 and her husband had already re-married.

She further sought that her husband should pay maintenance to her and minor son as they have no independent income to sustain themselves.. Neha had further submitted that since December 2019, they were not being paid any maintenance which they were receiving from the Army Authorities as per order passed by the Army Authorities in 2012.

The court was of the view that no useful purpose shall be served to further enter into the merits of the findings recorded by the courts below on “cruelty” and “desertion” as the husband had already remarried.

"However, at the same time, the respondent-husband cannot be absolved from his liability and responsibility to maintain his son (name withheld) till he attains the age of majority.... It also cannot be disputed that the son (name withheld) has a right to be maintained as per the status of his father..... Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education etc. which shall have to be paid by the respondent-husband, irrespective of the decree of dissolution of marriage....", opined the Bench.

With this view, the Court has directed the husband to pay Rs.50,000/- per month with effect from December, 2019 and the arrears since December, 2019 to November, 2021 shall be paid within a period of eight weeks.

"The current maintenance @ Rs. 50,000/- per month from the month of December, 2021 onwards be deducted from the salary of the respondent-husband by the Army Authorities, which shall be 6 directly credited in the bank account of the appellant-mother", it added.

Cause Title: Neha Tyagi v. Lieutenant Colonel Deepak Tyagi