The most common defence in maintenance proceedings under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, Section 24 of the Hindu Marriage Act, 1955 or Section 20 of the Domestic Violence Act, 2005 is the simplest: "I have no income." Businesses are said to have failed, jobs to have been lost, and income-tax returns arrive showing sums that could not sustain the litigation itself. Delhi's Family Courts meet this defence with a settled principle — an able-bodied person with earning capacity has an obligation to maintain, and the court may impute income where the disclosed figure is implausible. This explainer sets out how imputation works and how both sides should prepare.
Capacity, not just cash flow
Maintenance law works on two levels of income: what the payer shows, and what the payer can earn. The first is a document; the second is a finding. Statutory text supports the distinction — Section 144 BNSS speaks of a person "having sufficient means" who neglects or refuses to maintain, and "means" has always been read to include earning capacity, not merely current receipts. The Hindu Marriage Act's Sections 24 and 25 direct regard to the parties' "income and other property" and their conduct and circumstances, a matrix wide enough to weigh what a party has chosen not to earn.
The disclosure architecture
Contested maintenance in Delhi proceeds on sworn affidavits of income, assets, expenditure and liabilities filed by both parties — a discipline directed by the Supreme Court and enforced by the Family Courts. The affidavit covers employment, business interests, immovable and movable assets, bank accounts, dependants, monthly expenditure and litigation expenses. Three features give it teeth: it is sworn, so falsehood invites prosecution for perjury; it is comprehensive, so omissions are themselves telling; and it is comparative, so each side's claims are tested against the other's version and the documents summoned.
Wife's toolkit
Summon bank statements, ITRs, GST returns, Form 26AS; prove lifestyle through travel, vehicles, club memberships, school fees; place the matrimonial standard of living on record with photographs, bookings, cards.
Husband's toolkit
Prove genuine incapacity with medical records; document real business losses with books, not assertions; show the wife's qualifications, employment history and actual earnings; disclose fully — credibility is the currency.
How courts impute
Imputation is reasoned, not punitive. Where a husband with an engineering degree and a decade of employment claims zero income, courts ask what such a person earns in the market and fix a figure. Where a trader's declared income cannot fund his own household, the court works backwards from expenditure. Where income flows through cash or family-held entities, courts look to the business's scale — premises, staff, turnover indicators — rather than the return filed. And where nothing else is available, minimum-wage rates for the relevant skill level supply the floor: even an unskilled able-bodied man is treated as capable of earning that much. The exercise is a prima facie assessment at the interim stage, refined after cross-examination at the final stage.
Suppression carries compounding costs: interim maintenance fixed on imputed income, adverse inference at the final hearing, possible perjury proceedings on a false affidavit, and striking of defence in an extreme case of persistent non-disclosure. Arrears accumulate meanwhile, and enforcement can reach salary attachment and property.
Quantum once capacity is found
Once the court settles the payer's real or imputed income, quantum follows familiar coordinates: the status of the parties and the standard of living during marriage; the reasonable needs of the claimant and children including education and medical care; the claimant's own income and earning capacity; the payer's legitimate liabilities and other dependants; and the duration of the marriage. No arithmetic rule governs, but awards in Delhi commonly resolve into a workable fraction of the payer's established income after accounting for dependants — with children's expenses often ring-fenced as a separate head so that spousal disputes do not starve the child's schooling.
The chamber of Advocate Manish Jha conducts maintenance and matrimonial proceedings — interim and final, claimant-side and respondent-side — before the Family Courts and the High Court of Delhi. This article is for general information; it is not legal advice and does not create an advocate-client relationship.
Frequently Asked Questions
Can maintenance be awarded against a genuinely unemployed husband?
Yes, where he is able-bodied and capable of earning. The obligation to maintain a spouse and children is treated as a moral and legal duty that cannot be evaded by choosing idleness; courts assess what such a person could reasonably earn — by reference to qualifications, work history and even minimum wage rates for unskilled labour — and fix maintenance accordingly. Genuine incapacity (illness, disability) stands on a different footing and must be proved.
What is imputation of income?
Where the court disbelieves the disclosed income — because lifestyle, assets, expenditure or business realities contradict it — it attributes a realistic figure to the payer and computes maintenance on that basis. Imputation is an inference from evidence: bank statements, credit-card spending, property, vehicles, foreign travel, school fees paid, rent of the residence, and the standard of living during the marriage.
What if the husband resigns or downgrades his job after the case begins?
Courts scrutinise the timing. A resignation, transfer of business to relatives, or sudden fall in declared income coinciding with the maintenance claim is routinely treated as suppression, and maintenance is assessed on the pre-litigation earning level. The affidavit of assets and liabilities both sides must file makes such manoeuvres easier to expose through cross-examination.
Does the wife's own income defeat her claim?
Not automatically. A qualified or earning wife may still receive maintenance where her income is insufficient to sustain a standard of living comparable to the matrimonial one; her earnings go to quantum, not entitlement. Children's maintenance stands on an independent footing — both parents share the obligation in proportion to their capacities.