Maintenance When the Wife Earns: Claim and Defence

You have been told that because you draw a salary, you cannot ask your husband for maintenance. That advice is wrong, and it is repeated in family courts every week, usually by the husband's counsel and sometimes by a well-meaning relative. The law on maintenance if wife is working does not switch off the moment a pay slip lands in her account. Her income changes the arithmetic of the claim; it does not delete the claim. If you are employed, or you run a small business from home, the question before the court is not whether you earn, but whether what you earn lets you live the way the marriage let you live.

Earning Does Not Automatically End the Claim

Section 144(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced Section 125 of the Code of Criminal Procedure, 1973, allows a Magistrate to order a monthly allowance for a wife who is "unable to maintain herself". The first proviso to that sub-section lets the Magistrate award interim maintenance and the expenses of the proceeding while the application is pending. Nowhere does the section exclude a woman who is employed. Courts have generally read "unable to maintain herself" as a genuine inability to sustain a reasonable standard of living, not as a demand that the wife be destitute before she can be heard.

The other statutes are even clearer that the legislature had an earning wife in mind. Section 24 of the Hindu Marriage Act, 1955, empowers the court to award maintenance pendente lite "having regard to the applicant's own income and other property, if any, and the income and other property of the respondent". The applicant's own income is expressly a factor in the calculation. It is not a bar to the application. Section 23(2)(d) of the Hindu Adoptions and Maintenance Act, 1956, works the same way: while fixing the amount, the court must consider "the value of the claimant's property and any income derived from such property, or from the claimant's own earning or from any other source". Note that this appears in the section on quantum, not in Section 18, which creates the wife's right to be maintained. Sections 36 and 37 of the Special Marriage Act, 1954, follow the same design.

In Rajnesh v. Neha, (2021) 2 SCC 324, the Supreme Court consolidated the criteria that family courts across the country must apply, and directed both spouses to file affidavits disclosing their assets and liabilities. The applicant's independent income is one criterion in that list. It sits alongside the status of the parties and the standard of living the wife was accustomed to in the matrimonial home. A single factor among several is not a defence on its own.

Where an earning wife's claim is strongest

• Her take-home pay is modest compared with the husband's, even if the gross figure looks healthy.
• She is supporting children, and their school fees, medical costs and day care come out of her account.
• She had to move out of the matrimonial home and now pays rent she never paid before.
• Her employment carries costs that a stay-at-home spouse never incurred, such as commuting and paid child care.

Maintenance if Wife Is Working: The Standard of Living Test

The comparison a court makes is not "her salary versus zero". It is the life she actually has after separation set against the life she had inside the marriage. That is why a woman earning ₹60,000 a month can still be awarded maintenance by a husband earning ₹3 lakh a month, and why a woman earning nearly as much as her husband usually cannot.

The practical work for you is to quantify the matrimonial standard of living in documents, not adjectives. If the household paid ₹35,000 in rent, ran two cars, employed domestic help and sent the children to a school charging ₹9,000 a month, show the rent agreement, the EMIs or lease papers, salary records of the household help, and fee receipts. Credit card statements and bank statements for the last two or three years are particularly persuasive because they show actual spending rather than a claim about it. A court will not reconstruct a lifestyle from a paragraph in an affidavit.

Courts also use rough benchmarks. In Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nandy, (2017) 14 SCC 200, the Supreme Court referred to 25% of the husband's net salary as a reasonable measure of maintenance for a wife, after accounting for statutory deductions. Treat this as a working benchmark, not a statutory formula. Where the wife earns, the award is usually scaled back from that figure rather than refused.

Expenses That Offset Her Salary

The figure that matters is not your gross salary on the offer letter. It is your net take-home after tax deducted at source, provident fund, professional tax and any other statutory deduction, less the costs you must incur because you are working and because you are now running a separate household. A court that hears "she earns ₹80,000" and nothing else will award almost nothing. A court that sees ₹58,000 credited to the account and ₹49,000 committed before the month begins will understand the gap.

Legitimate offsets include rent and utilities for the residence you now occupy, day care or a crèche, school fees and transport for the children, commuting costs, medical insurance premiums, EMIs on loans taken jointly during the marriage, and any regular support you give to dependent parents. Expenses you should not pad: holidays, personal shopping, entertainment and savings. Inflating these does real damage. The husband's counsel will compare your affidavit with your bank statements, and once one number is shown to be invented, the court discounts the rest.

How Courts Treat Her Family Assets and Inheritance

Two different things get confused here. An asset you own is relevant under Section 23(2)(d) of the Hindu Adoptions and Maintenance Act, 1956. An asset you may one day inherit is generally not, because it is not yours yet and produces no income today.

A share in your parents' house that has not been partitioned, a coparcenary right that has not been worked out, or an expectation from a grandparent's will is speculative. Where you hold property that could generate rent and you deliberately leave it vacant, expect the husband to argue that notional income should be added to your side of the ledger. Jewellery and gifts received at marriage are your absolute property, but income-bearing assets will be looked at. The husband's family's wealth is irrelevant to your claim against him, and yours is relevant only to the extent it actually supports you.

Presenting Her Business Income Honestly and Usefully

If you are self-employed, the court will want to know what you actually draw from the business, not what the business turns over. Produce your income tax returns for three years, the computation of income, the profit and loss account, bank statements of both the current account and your personal account, GST returns if registered, and Form 26AS from the Income Tax Department's e-filing portal.

Presumptive taxation under Sections 44AD and 44ADA of the Income-tax Act, 1961, creates a specific problem. Those provisions deem a percentage of turnover to be profit, and a court may simply read the deemed figure as your income even when your actual drawings were lower. If your real monthly drawings differ materially from the deemed profit, explain the difference with a working note rather than leaving the bench to guess.

Do not suppress income. Your returns are discoverable, and a mismatch between what you disclose in court and what you disclosed to the tax department is far more damaging than a higher but honest figure. A wife who presents clean books, a modest drawing and a clear separation between business and personal money is far more credible than one whose numbers shift between affidavits.

Responding When the Husband Pleads Her Income as a Defence

His assertion that you earn well is a pleading, not proof. Under the disclosure regime in Rajnesh v. Neha, he must file his own affidavit of assets and liabilities, and his claim about your income should be met with your salary slips, Form 16, bank statements and returns. Where he alleges income you do not have, ask for the source of his information. Vague allegations that "she has a family business" or "her father supports her" carry little weight without documents.

A worked illustration

Priya, 36, teaches at a school in Pune and has been separated from her husband since March 2025. Her husband is a regional sales manager. She filed under Section 144 of the BNSS before the Judicial Magistrate First Class, claiming interim maintenance. Her figures were set out as follows.

On those numbers she was running a monthly shortfall of ₹4,300 before a single discretionary expense. Her husband's net income was about ₹1.85 lakh a month. She produced rent receipts, the school's fee circular, day care invoices and two years of bank statements showing the household's spending before separation, including a car loan and a domestic help salary. She also produced the matrimonial home's rent agreement at ₹32,000 a month. The Magistrate awarded ₹20,000 a month as interim maintenance from the date of the application, plus ₹15,000 towards the costs of the proceeding. The 25% benchmark would have suggested roughly ₹46,000; her salary pulled the figure down, but did not extinguish it.

Your checklist before the first hearing

• Collect twelve months of salary slips, Form 16 and bank statements for every account you hold.

• Prepare a one-page monthly statement showing net income, compulsory work costs and household expenses, with a document against each line.

• Photograph or copy the matrimonial home's rent agreement, school fee receipts, loan statements and utility bills from before separation.

• File your own affidavit of assets and liabilities in the format the court requires, and keep it consistent with your returns.

• Note the date of filing, since interim maintenance is ordinarily payable from that date.

• Keep a diary of every expense you incur on the children, with receipts, from the month you separated.

• If you are self-employed, get your accountant to sign a working note reconciling deemed profit under the presumptive scheme with actual drawings.

Documents to keep, and mistakes to avoid

Keep three years of income tax returns, bank and credit card statements, rent agreements for both homes, children's school and medical bills, and the marriage invitation and photographs that establish the standard of the wedding household. The three mistakes that cost working wives the most are quoting gross salary without deductions, claiming lifestyle expenses that the bank statements contradict, and leaving a property or a business interest undisclosed. Each one hands the husband's counsel an argument about credibility that has nothing to do with the merits.

The single most useful step you can take this month is to build the one-page monthly statement described above, with a document attached to every figure, and put it before your lawyer before the reply to the husband's counter-affidavit is drafted.

This article is for general information only and is not legal advice. Consult a qualified professional for your specific facts.