Ankit Kapoor v. Manya Vijh

15. Subsequently, the respondent moved an application under Section 151 of the Civil Procedure Code, 1908 („CPC‟) read with Section 26 of the HMA, praying that the appellant be directed to bear the cost obtained from the Centre for ENT for the implants along with the cost of the surgery and speech therapy.

16. The appellant then moved an application averring that since there was a significant difference in the estimated cost of surgery obtained by the parties, an estimate be also obtained from AIIMS or RML Hospital.

17. The learned Family Court, vide an order passed on 07.02.2025, directed a medical examination of the child by a Medical Board at AIIMS and an opinion on the medical condition of the child, implant compatible with his requirements and the estimated cost of surgery was sought. The examination was conducted by a duly constituted Medical Board on 04.03.2025.

18. The AIIMS Medical Board issued its report dated 05.03.2025, confirming the medical requirement for cochlear implant surgery. While the report did not specify any particular model of implant, however, it bore the following remarks: “It is informed that various cochlear implant devices from different manufacturers are available in the market, with costs varying based on MRI compatibility and technical specifications. AIIMS, New Delhi, has a rate contract for a basic model at Rs. 3,86,610/-. The cost of advanced models, if self-funded, may range between Rs. 15-17 lakhs per device.”

19. On 21.04.2025, the learned Family Court disposed of the aforementioned applications and directed that the cochlear implant procedure be undertaken at AIIMS using a „basic model implant‟. It also apportioned the cost between the parties, holding the appellant responsible for 75% and the respondent for 25% of the cost, with the appellant bearing the entire expenses of the surgery and subsequently adjusting the same from the arrears of the pendent lite maintenance granted to the respondent.

20. Aggrieved of the above direction, the respondent has filed MAT.APP.(F.C.) No. 185/2025, challenging the Impugned Order dated 21.04.2025 and praying for a direction to the appellant to bear the entire cost of surgery as recommended by Dr. J.M. Hans.

SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL

FOR THE APPELLANT:

21. It is the plea of the appellant before us that the learned Family Court has failed to consider the misrepresentation and deceit of the respondent in her application filed under Sections 24 and 26 of the HMA as well as in her income affidavit. It is the case of the appellant that the said application seeking interim maintenance has been filed by the appellant with the sole purpose to extort money from the appellant.

22. With regard to the income of the appellant, the learned counsel for the appellant submits that the learned Family Court has erred in drawing an average total of sum credited to the bank account of the appellant in the preceding last five years, as a yardstick to assess the income of the appellant as Rs.6,50,000/-, and on the basis of which, a direction of monthly payment of Rs.1,00,000/- towards the respondent and monthly payment of Rs.2,25,000/- towards the minor child has been passed. He further submits that the reliance placed on the credit entries from the bank account of the appellant, while ignoring the corresponding debit entries in the appellant‟s bank account, is erroneous.

23. The learned counsel for the appellant further contends that the assumption of the learned Family Court that the money lent by the appellant‟s father or his friends to him, constitutes the income of the appellant, is erroneous, as the said loans availed by him were for the purpose of starting a business, however, the same has been returned and thus, cannot be computed as his income. With regard to the entries, totaling to Rs. 1,89,15,000/-, in the appellant‟s account by his father, it is contended that there have been reverse entries of Rs. 1,84,55,000/-, which have been not taken into consideration by the learned Family Court while deciding the application for interim maintenance. He submits that similar was the scenario with respect to credit entries made against Gurpreet Singh, Sulochna Vig, Navgrow Constructions and Manmoham Singh Soni.

24. He submits that the learned Family Court erroneously came to the conclusion that the average credit entries of the appellant come to an amount of Rs.6,50,000/- per month and the same has to be considered as his income, whereas, the appellant only has a rental income in the sum of Rs.92,327/- per month and the same is evident from his Income Tax Return (hereinafter referred to as „ITR‟), which has been duly accepted by the Income Tax Department. He places reliance on Sapna Paul v. Rohin Paul, 2024:DHC:382 to submit that the income of the husband cannot be assessed by ignoring relevant documents such as ITRs.

25. The learned counsel for the appellant further submits that the property in Defence Colony is owned and possessed by his parents and any rental income being accumulated from the same is not part of the income of the appellant. There is also an arithmetical error in the Impugned Order in so far as the rental income earned from renting out of the 3rd floor of the said property amounts to Rs.6,57,789/- per quarter, but has been erroneously recorded as the rental income accruing per month.

26. With regards to the income of the respondent, the learned counsel on behalf of the appellant contends that the learned Family Court has failed to appreciate that respondent has been a working woman all her life and had approached the learned Family Court with unclean hands. He further argued that as the learned Family Court itself observed that the respondent has an earning capacity of at least Rs. 70,000/- per month, the directions passed in the Impugned Order are contrary, arbitrary and untenable in the eyes of law.

27. Placing reliance on the Judgments of this Court in Sanjay Bhardwaj and Ors. vs. The State & Anr., 2010 SCC Online Del 2912, Damanpreet Kaur v. Indermeet Juneja and Anr., 2012 SCC Online Del 2811, Rupali Gupta v. Rajat Gupta, 2016 SCC Online Del 5009, Chetram Mali v. Karishma Saini, 2023: DHC: 8322-DB, and Anju and Anr. v. Rinku Dahiya, 2023:DHC:7571-DB, the learned counsel for the appellant further submits that a person having earning capacity cannot merely sit idle and live on the maintenance being received from the husband nor can the husband be reduced to beg, borrow and steal to given maintenance to the wife.

28. He submits that the Impugned Order has erroneously awarded interim maintenance of Rs.1,00,000/- per month to the respondent in addition to her earning capacity as commuted by the learned Family Court.

29. The learned counsel for the appellant submits that the learned Family Court has further failed to appreciate that the respondent wife is a member of two Hindu Undivided Family (hereinafter referred to as „HUF‟), which fact has been concealed by her in her affidavit of income filed before the learned Family Court. The respondent is, therefore, well capable to sustain herself and thus the directions in the Impugned Order are bad in law as well as on facts. Relying on the Judgment of the Supreme Court in Pradip Buragohain v. Pranati Phukan, (2010) 11 SCC 108, Rama Paswan & Ors. v. State of Jharkhand, (2007) 11 SCC 19, and on the Judgment of the Calcutta High Court in Samit Kapoor v. Punam Kapoor, 2021 SCC Online Cal 2095,he submits that an adverse presumption exists against a party that wrongfully withholds evidence in its possession to gain undue advantage.

30. He submits that various important factors were not taken into consideration by the learned Family Court while determining the maintenance amount. He submits that an amount of Rs.29,88,227/was received by the respondent on account of the sale of a flat purchased in the joint name of the parties. The same has not been returned to the appellant and this fact, although noted in the Impugned Order, has not been taken into consideration.

31. The learned counsel also averred that the expenses and expenditures claimed on account of the child are unexplained and the amount of Rs.2,25,000/- being commuted in this regard is arbitrary.

32. As far as the implant surgery of the child and the direction to share the expenses, the learned counsel appearing on behalf of the appellant submits that the learned Family Court acted within its jurisdiction in relying upon the AIIMS report and directing that the cochlear implant surgery of the minor child be carried out at AIIMS using a „basic model implant‟. He further submits that the AIIMS Medical Board examined the child on 04.03.2025 and confirmed the necessity of cochlear implant surgery, without prescribing any particular model.

33. The learned counsel appearing on behalf of the appellant submits that the appellant had placed on record an estimate from BLK Max Hospital dated 16.06.2023, amounting to Rs.23,74,996/-, which reflected the standard cost of the surgery, and that this estimate was provided in good faith. He also submits that the appellant has already paid a sum of Rs.3.25 lakhs towards the expenses for the surgery, in compliance with the impugned order.

34. It is reiterated that the appellant‟s income is limited to Rs.92,327/- per month from rental sources and that he is not in a financial position to bear the entire cost of the advanced implant, particularly considering that he has been burdened with paying interim maintenance to the respondent and the child to the tune of Rs.3,25,000/- per month.

35. He submits that the learned Family Court has already exercised equitable discretion in fixing the cost-sharing ratio as 75:25 between the appellant and the respondent.

36. The appellant also contends that the choice of implant must be guided by public hospital norms and expert medical consensus, and that the learned Family Court‟s direction to use a basic implant constitutes a valid exercise of jurisdiction and is in the best interests of the child.

37. In view of the above submissions, the appellant prays that the appeal filed by the respondent be dismissed as being devoid of merit.

38. The learned counsel for the appellant further submits that the interim maintenance awarded is exorbitant and arbitrary and prays that the Impugned Order passed by the learned Family Court be set aside.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPONDENT:

39. On the other hand, the learned counsel for the respondent submits that the findings in the Impugned Order are correct and have been passed by the learned Family Court after duly perusing the relevant material placed on record before it.

40. It is the case of the respondent that the appellant has failed to pay any amount to the respondent towards the maintenance of herself or the minor child, while on the contrary, the appellant, from his social media accounts, can be seen travelling to various cities and foreign countries from December, 2022 till February, 2025. He therefore submits that despite living such lavish life, and even being in an extramarital affair, the appellant has purposely avoided bearing any expenses for the respondent or for the minor child, who, admittedly, has special needs.

41. He contends on behalf of the respondent that the appellant has, with a mala fide intent, suppressed his income to be Rs.92,327/- per month. He submits that apart from this rental income, the appellant has concealed his income derived from M/s Kinetic Constructions Pvt. Ltd., a Company where he is the key managerial person and owns about 29,965 shares in the same. He has also concealed other investments, mutual funds, shares etc., income from which comes to be more than Rs.5,00,000/- per month. He submits that the learned Family Court has, therefore, rightly considered all these facts in assessing the income of the appellant in directing the interim maintenance in the Impugned Order.

42. The learned counsel for the respondent also submits that the respondent, having been a housewife, could not complete her M. Phil in German Language, on account of her conceiving the child. Furthermore, at the time of their marriage, it is stated that the appellant had disclosed his income as Rs. 1 to 5 crores per annum in his bio-data given to the matrimonial services. Therefore, his affluent background was correctly observed by the learned Family Court, also keeping in view the fact that the parties were residing together in a posh area of Defence Colony.

43. The learned counsel for the respondent also submits that the respondent wife has relinquished her rights in the Yash Pal and Son (HUF) vide a Relinquishment Deed dated 21.12.2015 and that the respondent has no other interest in any other HUFs.

44. The learned counsel for the respondent submits that, therefore, the learned Family Court has rightly awarded the interim maintenance and thus, prays that the instant appeal may be dismissed being devoid of any merit.

45. As far as the appeal filed by the respondent, the learned counsel appearing on behalf of the respondent submits that the learned Family Court has erred in directing that the cochlear implant surgery of the minor child be carried out using a „basic model implant‟ at AIIMS, despite the absence of any such recommendation in the report dated 05.03.2025 issued by the Medical Board of AIIMS. He further submits that the treating specialist, Dr. J.M. Hans, has consistently recommended the HiRes Ultra 3D Implant with Marvel Sky M90 Kit as being medically appropriate, considering the child‟s condition, particularly in view of future MRI requirements.

46. He submits that the HiRes Ultra 3D Implant with Marvel Sky M90 Kit, or an equivalent 3 Tesla MRI-compatible device, is medically necessary for the child, considering his neurological vulnerabilities and the likelihood of undergoing future MRIs. He further submits that basic implants are not compatible with 3 Tesla MRI machines and would necessitate surgical removal and reinsertion of the internal magnet before and after each MRI, thereby rendering the child temporarily deaf during the recovery period and exposing him to repeated anesthesia and surgical risk.

47. He submits that, in contrast, advanced MRI-compatible implants, as recommended by Prof. Dr. J.M. Hans, allow safe, surgery-free MRIs and are technologically aligned with the child‟s long-term auditory, cognitive, and therapeutic needs. Such implants minimize disruption to speech development and eliminate avoidable surgical trauma, making them far more suitable for a child with special needs.

48. He submits that the cost estimate for the said surgery, which includes both implant units and ancillary expenses, amounts to Rs.36,42,500/-, and the same has been placed on record. Moreover, it is pointed out that the earlier cost estimates produced by the respondent from BLK Max Hospital do not specify the model of implant and was obtained unilaterally, without disclosing the earlier prescription dated 14.05.2023 issued by the same hospital, which had recommended surgery at the earliest.

49. He submits that the learned Family Court did not take into consideration the affidavit dated 20.03.2025 filed by the appellant, bringing on record these suppressed materials, despite specific directions for placing complete records. He also submits that the learned Family Court lacked the jurisdiction to direct the use of a specific model of implant, particularly in the absence of a conclusive expert opinion and contrary to the statutory guidelines mandating that such decisions must be based on expert medical evaluation.

50. He submits that the father of the respondent expressed his willingness to bear 50% of the total cost, which clearly demonstrates the urgency and bona fides of the respondent in ensuring timely surgery for the child. He further contends that the Impugned Order disproportionately burdens the respondent with 25% of the cost, despite her being the sole caregiver of the child and lacking any substantial income or independent means.

51. Accordingly, the respondent prays that the Impugned Order dated 21.04.2025 be set aside, and that the surgery be directed to be carried out using the HiRes Ultra 3D Implant with Marvel Sky M90 Kit, or an equivalent device, as per the recommendation of the treating doctor. The respondent further prays that the entire cost of the surgery be directed to be borne by the appellant.

ANALYSIS AND FINDINGS:

52. We have considered the submissions made by the learned counsels for the parties and have perused the material on record including their income affidavits.

53. The issue in one of the present appeals pertains to the quantum of interim maintenance awarded by the learned Family Court in the Order impugned herein. The learned counsels for the parties have made their submissions at length regarding the financial conditions of both the parties before this Court.

54. Before delving into the merits of the case, it is imperative to discuss the settled position of law regarding the determination of maintenance. The Supreme Court, as well have various High Courts, have time and again, in a catena of Judgments, highlighted the factors that ought to be considered by a Court before arriving at a just and fair conclusion in awarding a reasonable amount of maintenance, which adequately supports the dependent spouse, while at the same time, does not lead to unjustified burden on the other.

55. Undoubtedly, there is no straight jacket formula to arrive at a reasonable amount of maintenance, however, the Supreme Court in Rajnesh v. Neha,(2021) 2 SCC 324,has laid down a comprehensive list of factors to be looked into before awarding a sum of maintenance. In matrimonial cases pertaining to the question of maintenance, a Court shall inter alia consider the following variables: i. Status of the parties, social and financial. ii. Reasonable needs of the wife and the dependent children. iii. Parties‟ individual qualifications and employment statuses. iv. Independent income or assets owned by the applicant. v. Standard of life enjoyed by the wife in the matrimonial home. vi. Any employment sacrifices made for the family responsibilities. vii. Reasonable litigation costs for a non-working wife. viii. Financial capacity of the husband, his income, maintenance obligations, and liabilities.

56. The aforementioned judicial dictum has been reiterated by the Supreme Court in Kiran Jyot Maini v. Anish Pramod Patel, 2024 SCC OnLine SC 1724. In the said Judgment, although in the context of permanent alimony, the Court has also defined that while it is the husband‟s obligation to maintain the wife and his children, it is important to examine his financial capacity in deciding his paying capability. It is crucial to strike a balance between the rights and interest of both the parties, by considering the relevant factors for awarding maintenance, which is neither excessively high nor unduly low, so that the dependent spouse is not deprived of a reasonable standard of life post the separation.

57. In the present appeal, the learned Family Court, while deciding the application under Sections 24 read with 26 of the HMA after meticulously perusing the income affidavits of the parties, has passed a detailed speaking order, categorically recording therein that being a recipient of huge amount of sum from the bank account of his father, Sh. Anil Kapoor, the appellant husband was found to be actively involved in the business of M/s Kinetic Constructions Pvt. Ltd., with his father. Admittedly, the appellant, not only in his own name, but also being the only son of his parents and as a member of the HUF, owns a considerable number of shares in the abovementioned company.

58. Furthermore, it is noted by the learned Family Court that even though the residential property in Defence Colony, New Delhi, owned by the parents of the appellant, does not belong to the HUF, the third floor of the said premises was let out by the father of the appellant in the capacity of a Karta in the HUF at the rent of Rs.1,65,000/- per month, from a period of 01.12.2015 to 30.11.2017. In fact, it is admitted by the appellant that the said property is fetching a rent of Rs.6,57,780/- per quarter.

59. From the travelling history of the appellant, it is also noteworthy herein that the expenses of the international trips after the marriage, were borne by the appellant himself. To further strengthen the arguments, the learned counsel for the respondent has apprised this Court of the fact that the appellant is in an extra-marital affair and continues to travel to several countries, which fact, has been shared by him on his social media accounts. The learned counsel for the appellant did not dispute the foreign visits of the appellant. The learned counsel for the respondent further contends that the appellant has a fleet of cars.

60. In addition, there are large credit entries in the bank accounts of the appellant. Though the learned counsel for the appellant submits that these entries were reversed and represented loans, prima facie, they also reflect the huge source of funds available to the appellant. They also cast a huge doubt on the income declared. Even the learned Family Court has opined that the income disclosed in the ITRs of the appellant amounting to around Rs. 92,327/- per month cannot prima facie be accepted. It is in this context that the average of the total amounts credited in the bank accounts of the appellant over the period of 5 years was taken to compute the approximate monthly income of the appellant. Though the ITRs are an important document to be taken into account for determining the income, it cannot be the sole consideration. Where the other material casts a doubt on the income declared in the ITRs, the same can be disregarded while making an informed and reasoned Judgment on the reasonable income of the spouse. In the present case, with the other material, the income of the appellant, in our view, has been most conservatively assessed by the learned Family Court.

61. While it cannot be disputed that the husband cannot be expected to beg, borrow or steal to maintain the wife and the child, at the same time, the husband cannot escape his liability to maintain the wife and the child while himself living an extravagant lifestyle. The Judgment in Sanjay Bhardwaj (supra), therefore, is of no assistance to the appellant.

62. Additionally, it is also an equally settled position of law that a claim for interim maintenance under Section 24 of the HMA is not defeated merely because the applicant is educated or capable of earning. It is also not defeated because in law or fact, she is a coparcener of a HUF of her father or her father will be able to support her otherwise. The Supreme Court in Manish Jain v. Akanksha Jain,

63. It is also a settled position of law that a wife is entitled to the same standard of living as she was accustomed to, during the period of her marriage.

64. At this stage, it is also pertinent to note that income of the respondent has been assessed by the learned Family Court at Rs.70,000/- per month, we find that the gap between the income of both parties is astonishingly large. We have assessed the standard of living that the respondent would have had when she was with the appellant. Rs.70,000/- per month cannot be said to suffice for the same, also given the luxurious standards of living of the appellant himself.

65. The plea of concealment of income by the respondent also has no legs to stand on as the same has been duly considered by the learned Family Court. In fact, it is the appellant who has concealed his real income and sources of funds. The Judgments in Pradip Buragohain (supra), Rama Paswan (supra), Samit Kapoor (supra), therefore, instead of coming to the help of the appellant, in fact of the present appeal, pursued us to draw an adverse inference against the appellant.

66. As far as the amount received by the respondent from the sale of the flat is concerned, in our opinion the same can also not be a factor to reduce the interim maintenance due to the respondent. The amount received by her will at best give her some surety about her future.

67. Therefore, keeping in view the peculiar facts and circumstances of the present case, this Court does not deem it appropriate to interfere with the findings of the learned Family Court qua the quantum of interim maintenance. Accordingly, the present appeal is dismissed being devoid of any merit.

68. Proceeding now to MAT.APP.(F.C.) No. 185/2025, the learned Family Court directed that the cochlear implant surgery of the minor child be carried out at AIIMS using a „basic model implant‟. It is noteworthy that neither party had sought such a direction regarding the specific place of surgery or the exact nature of the implant to be used. Furthermore, the Medical Board report from AIIMS, while recommending surgery, did not express any preference or evaluation of implant models. In such a situation, the learned Family Court, is not only justified but duty-bound to determine the best interest of the child. Where the learned Family Court‟s order reflects either a misappreciation of evidence or an exercise of discretion in disregard of medical material, it warrants correction through appellate review.

69. The record reveals that the child has been under the care of Prof. (Dr.) J.M. Hans, a senior ENT specialist of national eminence, since early 2017. Multiple evaluations by Dr. Hans and other specialists, including those at BLK-Max Hospital and subsequently at AIIMS, have consistently indicated that the child suffers from bilateral profound hearing loss and requires bilateral cochlear implantation at the earliest to facilitate auditory development and prevent long-term cognitive and speech deficits.

70. The material on record also indicates that the child has additional neurological vulnerabilities, including the need for MRI surveillance in the future, given the risk of associated Central Nervous System (CNS) complications in cases of Congenital Rubella Syndrome (CRS). This specific medical context renders the choice of implant critical, as basic cochlear implants, which require surgical removal of the internal magnet prior to each MRI, pose a heightened risk of repeated surgical trauma and prolonged auditory deprivation.

71. The cumulative evidence, therefore, unequivocally establishes that the child‟s condition is not only medically urgent but also uniquely sensitive to the type of implant used, given his need for longterm non-invasive imaging and the challenges posed by repeated anesthesia and surgery in a child with special needs.

72. In such circumstances, the decision regarding the medical management of the child cannot be divorced from an informed appreciation of his long-term neuro-developmental needs. The learned Family Court, in attempting to balance costs and treatment modalities, appears to have discounted this critical dimension. The necessity of the surgery is not in dispute; what is at issue is the choice of implant best suited to the specific medical profile of the child.

73. When dealing with the medical care of a minor child, particularly in cases involving permanent and life-altering procedures such as cochlear implantation, the Court must necessarily be guided by the opinions of qualified and experienced medical professionals. The evidentiary weight of such opinions increases manifold where the issue falls outside the expertise of the Court and involves matters of long-term physiological and cognitive impact.

74. In the present case, there are three sets of medical opinions available on record: a. First, from Prof. (Dr.) J.M. Hans, a Padma Shri awardee and leading ENT surgeon, who has consistently advised bilateral cochlear implantation using the HiRes Ultra 3D Implant with Marvel Sky M90 Kit, emphasizing its 3 Tesla MRI compatibility, superior post-operative adaptability, and reduced surgical burden. b. Second, from Dr. A.V. Ramesh at BLK-Max Hospital, who reaffirmed the urgent need for surgery, in his report dated 14.06.2023. c. Third, from the AIIMS Medical Board, constituted pursuant to learned Family Court directions, which examined the child on 04.03.2025 and, while recommending that surgery followed by intensive and prolonged speech and language therapy post implantation may have potential benefit, remained silent on the specific type of implant suitable for the child.

75. The record shows that the learned Family Court treated the absence of a specific device recommendation in the AIIMS report as tacit approval for the use of a basic implant. This inference is neither medically justified nor legally sustainable. The AIIMS report does not contradict Dr. Hans‟s recommendation; it merely refrains from offering an alternative. In such a situation, where the expert who has continuously examined and treated the child has made a reasoned and repeated medical recommendation, and no contrary expert opinion exists, the learned Family Court ought to have deferred to such expert guidance.

76. The medical opinions on the record, when considered cumulatively, establish that the child requires cochlear implantation with a 3 Tesla MRI-compatible device for both present rehabilitation and future safety.

77. In matrimonial proceedings, particularly those involving minor children, Family Courts exercise a jurisdiction that is both statutory and equitable. Its paramount concern is to protect and promote the welfare of the child.

78. In the present case, the learned Family Court seems to have been influenced with consideration of medical expenses while unilaterally directing that the minor child‟s cochlear implant surgery be conducted at AIIMS, and more significantly, that the implant to be used must be a “basic model”.

79. Notably, the learned Family Court had sought an expert opinion from AIIMS vide its Order dated 07.02.2025, directing the Medical Board to examine the child and opine on the “implant/device compatible with his requirements.” However, the resulting AIIMS report dated 05.03.2025remained silent on this crucial query.

80. A longstanding treating specialist (Dr. Hans) has consistently recommended a particular class of implant, and there is no contrary expert opinion, the learned Family Court‟s direction to the contrary, unsupported by any medical evidence, falls afoul of the limits of judicial discretion.

81. In the present case, the child has special needs. His diagnosis of Congenital Rubella Syndrome, involving hearing and visual impairments along with developmental vulnerabilities, places upon both parents and the Court a heightened responsibility to act in his long-term interest. The opportunity to intervene medically through cochlear implant surgery falls within a narrow developmental window, and each month of delay potentially forecloses gains in speech and cognition.

82. The welfare principle thus mandates not only that the child receive surgical intervention urgently, but that it be performed using the implant best suited to his condition, as advised by his long-term treating specialist. The use of a basic model, while ostensibly costeffective, would expose the child to the risk of repeated invasive surgeries in the event MRI imaging is required, something that is medically foreseeable given his condition.

83. As far as the expenses are concerned, this Court has already considered the lifestyle and income of the appellant. There is therefore, absolutely no justifiable reason for directing that the child must have only the basic implant and keep suffering agony, when a better implant can save him from such agony.

84. This Court is therefore constrained to hold that the learned Family Court, in issuing specific directions regarding the type of implant and place of surgery has committed a grave error.

85. With the issue of the place and the nature of implant settled, the next question that arises for adjudication before this Court is whether the cost-sharing ratio of 75:25 for the surgery, as fixed by the learned Family Court, requires any modification.

86. The respondent has prayed that the entire cost of the child‟s cochlear implant surgery, amounting to Rs. 36,42,500/-, be directed to be borne solely by the appellant. This prayer rests on two main grounds: first, that the appellant possesses the financial capacity to bear the full cost; and second, that he has willfully failed to contribute toward the child‟s upkeep, with arrears of interim maintenance stated to be in excess of Rs.[1] crore as on the date of filing the appeal.

87. The learned Family Court, in its Impugned Order dated 21.04.2025, has directed that the cost of the surgery be shared in a 75:25 ratio between the appellant and the respondent. However, recognizing that the appellant had not paid any amount up to that stage, the Court directed him to bear the entire amount initially, with the liberty to adjust 25% from the respondent‟s share against pending arrears of maintenance. The question before this Court is whether the respondent‟s demand that the entire cost be borne by the appellant is legally sustainable.

88. It is no doubt true that the appellant has, by his own conduct and admissions, neglected his financial obligations toward the child, as evidenced by his non-compliance with the interim maintenance Order dated 18.11.2024. However, the present appeal is not an enforcement proceeding under Order XXI of the CPC, nor is it one for civil contempt. The relief must therefore be evaluated within the four corners of the pending matrimonial litigation and the nature of interlocutory directions.

89. The legal position remains that both parents share financial responsibility for the upbringing and medical care of a minor child, unless there is material to show that one parent is without means to do so.

90. In the present case, the respondent is solely looking after the child. Her income is insufficient to maintain herself, leave alone bear the expenses of the surgery required for the child. It has been held hereinabove, the appellant is having a sufficient income and is living a lifestyle of extravagance. There is absolutely no justification for the appellant to not bear the entire expenses of the surgery of the child and the implant.

91. Though the father of the respondent may have offered to bear the cost of the surgery, this only shows the desperate need for the same. It would have been a different story had the appellant not had the means to bear the expenses for the surgery, but this is not so. The primary responsibility for the welfare of the child is of the appellant and not the father of the respondent.

92. There is therefore, neither any justification for the proportionment of the expenses of the surgery between the appellant and the respondent, and the appellant must bear the same fully, nor was there any justification for directing the adjustment thereof from the maintenance dues owed by the appellant to the respondent. The direction in this regard issued by the learned Family Court cannot be sustained and is therefore, set aside.

93. In light of the foregoing discussion, this Court is of the view that the direction of the learned Family Court that the child would require the use of a basic implant and mandating surgery at AIIMS, was issued without keeping in view the best interest of the child and is liable to be set aside. The Court is further of the opinion that the implant recommended by Prof. (Dr.) J.M. Hans, namely, the HiRes Ultra 3D with Marvel Sky M90 Kit, or any other 3 Tesla MRIcompatible device of equivalent specification, should be used for the child‟s surgery.

94. In view of the above, the present appeal stands allowed.

DIRECTIONS IN MAT APP.(F.C.) No. 6/2025

95. In view of the findings and observations made hereinabove, this appeal stands dismissed and the findings of the learned Family Court qua the interim maintenance are upheld, with directions to the appellant-father to clear the arrears of maintenance within a period of one month and continue to pay the above-said maintenance on 10th of each calendar month, till the final disposal of the case.

DIRECTIONS IN MAT APP.(F.C.) No. 185/2025

96. In view of the aforesaid findings and observations, this appeal stands allowed with the following directions: a. The direction in the Impugned Order dated 21.04.2025 requiring that the child‟s surgery be conducted at AIIMS using a basic implant is hereby set aside. b. The minor child shall undergo Bilateral Cochlear Implant Surgery using the implant recommended by Prof. (Dr.) J.M. Hans, namely, the HiRes Ultra 3D with Marvel Sky M90 Kit, or an equivalent 3 Tesla MRI-compatible device, in accordance with medical advice. c. The appellant-father shall bear the full cost of the surgery, including the cost of the implant, surgical procedure, and post-operative rehabilitation. d. The learned Family Court shall monitor compliance and pass consequential directions, if required.

97. With the aforementioned directions, the appeals, along with pending applications, stand disposed of. However, it is made clear that no observations made hereinabove shall affect the merits of the case. RENU BHATNAGAR, J. NAVIN CHAWLA, J. JULY 9, 2025/p/sm/kj Click here to check corrigendum, if any