Delhi High Court Upholds Order Asking Man To Provide Maintenance For Wife's Child From Previous Marriage, Says Can't Avoid Responsibility Now

The Delhi High Court has observed that an individual marrying a person who has a child cannot be allowed to argue later that the child is not his or her responsibility.

“When a person solemnizes a marriage with a person who already has a child, said person shall be presumed to have undertaken the responsibility of the child and also cannot later be permitted to contend that the child is not his/her responsibility,” a division bench of Justice Sanjeev Sachdeva and Justice Vikas Mahajan observed.

The court dismissed a plea moved by a husband challenging an order passed by the family court dismissing his application seeking modification of the final judgment wherein divorce was granted to him from his wife on the ground of desertion.

The family court had directed the petitioner to pay Rs. 2,500 to the two children for first five years and Rs. 3,500 for another five years. He was also directed to pay Rs. 5,000 each till both the children get married or become financially independent.

While the elder daughter was born out of the wife’s first marriage with an Army personnel, the younger daughter was born out of the wedlock with the petitioner. The petitioner had sought modification of the family court’s order on the ground that the elder daughter was shown as a dependent in the order issued by the Army and a family member of his former wife's late first husband.

Upholding the impugned order passed by family court, the division bench said that the order passed by the Army Authority merely recognized a fact which was within the knowledge of the petitioner. The court observed that it would not constitute a change in circumstance as required under section 25(2) of the Hindu Marriage Act.

The court said that it is not in dispute that the petitioner was aware that the first daughter of his wife was born out of her first marriage at the time when he solemnized the marriage with her.

“If the Respondent had known that the appellant was not going to maintain her first daughter, she would not even have married him. It is not in dispute that appellant was bringing up the elder daughter and maintaining her till the parties fell out,” the court said.

The court observed that the order passed by the Army Authorities showing the elder daughter of the wife from her marriage as a family member of her late husband would not have any bearing on the family court’s order as the petitioner was aware of existence of the daughter and had also undertaken her responsibility.

“Accordingly, we find no infirmity in the view taken by the Family Court that there is no change in the circumstances entitling the appellant for modification of the order. The appeal is, consequently, dismissed,” the court said.

Title: RKY v. MD

Citation: 2023 LiveLaw (Del) 207