It is the duty of the father to maintain his minor child. A specific legal obligation has been cast on him under Section 125 of the Criminal Procedure Code in this regard. Therefore, there is nothing wrong if an application is filed under Section 125 of the Cr.P.C. seeking maintenance for the minor child.
The facts mentioned by you in the question are the mitigating circumstances. You may mention all these facts in the reply to be submitted by you as a response to the application for maintenance.
While it may be true that your wife being an earning person cannot claim any maintenance from you for herself, since she can maintain herself. But, your minor child is not working anywhere and the child is not earning. So, the child can still ask for maintenance from you even if the child is living with your wife who is earning person. Of course, you can take a stand that you are willing to take care of the full expenses of the minor child if the child lives with you and also that you are more than willing to keep the child with you. However, whether the child should live with you or with your wife, is an entirely different issue, which has to be decided on various independent grounds (such as emotional needs of the child, for example), which are unconnected with the maintenance issue. But at the same time, suppose the child continues to live with your wife, you may still be asked by the court to contribute towards the maintenance of the child. Ultimately, it will depend on the discretion to be exercised by the Magistrate and a maintenance may still be ordered against you in favour of the child. However, while ordering the maintenance to be paid by you, the Magistrate will definitely take into consideration various mitigating circumstances mentioned by you, including higher income of your wife. So, in all likelihood, while the maintenance may be directed, the amount may be comparatively less (since your wife may also be contributing for child’s upkeep) in view of the specific facts of your case.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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