In nearly every contested maintenance proceeding — under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, Section 24 of the Hindu Marriage Act, 1955, or Section 20 of the DV Act — the paying spouse’s affidavit lists a stack of EMIs: home loan, car loan, personal loan, credit card dues. Whether those outgoings shrink the maintenance award is one of the most frequently asked and most frequently misunderstood questions in Delhi’s family courts. The answer is that liabilities are one factor in a multi-factor balance — never an automatic deduction from income.
The starting principle: earning capacity, not take-home convenience
Maintenance law measures the payer by capacity, not by what remains after every chosen outgoing. If the rule were otherwise, any earning spouse could neutralise a maintenance claim by acquiring debt. Courts therefore begin with gross income, allow compulsory deductions like income tax, and then ask what the payer, the claimant and the children each reasonably need — with the payer’s genuine legal obligations, including documented liabilities, entering the scales at that stage.
How courts sort liabilities
| Type of liability | Typical judicial treatment |
|---|---|
| Home loan on the matrimonial home where the wife or children reside | Significant weight — the EMI is itself a form of family provision, and double-counting is avoided. |
| Pre-existing education or medical loans for dependants | Considered as legitimate obligations to persons the payer must maintain under law. |
| Car loan, gadget financing, lifestyle credit card dues | Little weight — voluntary consumption cannot rank ahead of the family’s subsistence. |
| Loans taken after the dispute began | Viewed with suspicion; frequently disregarded as an attempt to depress disposable income. |
| Business borrowings of a self-employed payer | Examined against turnover and lifestyle; courts look at the standard of living the business actually funds. |
The Rajnesh framework in practice
Weak presentation
A bare list of EMIs in the reply, unsupported by sanction letters, with loans taken months after the Section 144 BNSS petition, and no explanation of what the borrowings funded.
Persuasive presentation
Documented pre-dispute liabilities tied to family purposes, bank statements matching the affidavit, and a computation showing what genuinely remains — inviting the court to fix a fair figure rather than reject the defence wholesale.
For claimants, the mirror strategy is equally effective: obtain the loan documents in disclosure, date every liability against the timeline of the dispute, and show where an EMI builds the payer’s own asset. A court told precisely which debts are genuine and which are litigation furniture will usually strike the balance visibly in the order — which also makes the award more durable on appeal.
The Delhi picture
Family courts in Delhi apply the affidavit discipline strictly and increasingly annex a tabulated needs-and-means analysis to interim orders. The consistent thread in the case law is candour: a payer who discloses and explains liabilities is heard; one who manufactures them is not — and, as the appellate courts remind both sides, suppression by either party invites adverse inference on the very point the affidavit concealed.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
Are EMIs deducted from salary before computing maintenance?
No. Courts start from gross earning capacity and allow only statutory deductions such as income tax as a matter of course. Voluntary outgoings — EMIs, insurance premia, investments — are considered as part of the overall balance of needs and means, and courts examine whether the liability is genuine, pre-existing and reasonable, or a device to depress disposable income.
What did Rajnesh v. Neha say about liabilities?
The Supreme Court’s guidelines (4 November 2020) require both sides to file affidavits of assets and liabilities, and list the respondent’s reasonable expenses, dependants he is legally obliged to maintain, and "liabilities if any" among the factors bearing on capacity to pay. Liabilities are thus expressly relevant — but only as one input into the quantum exercise.
Will a loan taken after the maintenance petition help reduce the award?
Almost never. A liability incurred after proceedings began, or one that primarily builds the payer’s own capital — such as an EMI on a flat in his name — carries little weight, because the spouse and children cannot be made to finance the payer’s asset creation out of their subsistence.
How should a paying spouse present genuine liabilities?
Disclose them fully in the affidavit of assets and liabilities with sanction letters, statements of account and proof that the loan predates the dispute and serves family needs — for example, the matrimonial home or a child’s education. Courts respond to documented, explained liabilities; they discount bald EMI tables.