Merely Because Wife Is ‘Capable Of Earning’, Maintenance Can’t Be Denied

Shubhani Mittal | Vivekananda Global University | 13th January 2020

Arun Vats v. Pallavi Sharma, Crl Revision Petition No. 751 of 2018

Facts –

Justice Manoj Kumar Ohri dismissed a revision petition which challenged the order of the Family Court whereby it directed the petitioner husband to pay Rs. 33,005 every month as  interim maintenance of the wife-respondent and their minor child.

This above order was made by a magistrate while reviewing the application the application under the provisions of Section 125 CrPC resorted to by the respondent wherein she alleged that she was thrown out of the matrimonial home and thus was living with her mother at her parental home along with her minor child. The respondent claimed that since she was not a working woman, she didn’t had any  source of income and thus claimed Rs.80,000/- per month as maintenance.

The  wife-respondent further stated  that she has completed LLB and was enrolled as an advocate. She used to practice  prior to her marriage and was pursuing her LLM but couldn’t pursue her profession because of the young age of her .

The husband- petitioner submitted that he was working as an Executive Chef in Convention Hotels Pvt. Ltd., Goa and earned about Rs.88,000/- per month. He was looking after his old parents and had other liabilities towards loan and rent.  He was paying Rs.4,000/- per month as maintenance for the minor child.

After calculating the net income of the husband, the court awarded  interim maintenance of Rs.33,005/- per month for wife-respondent and the minor child.

Learned counsel for the husband- petitioner referred to the bio data of the wife and submitted that she was professionally qualified, an LL.B graduate, and had a sufficient income to look after herself.

However Learned counsel for the husband- petitioner couldn’t produce any document regarding that his wife-respondent was actually practising and earning,

Jugement –

The court noted that even though husband- petitioner claimed that her wife was well off, he could not produce any document in support of the same. Thus, the court refused to interfere with the order of the family court. And held

“The petitioner’s aforementioned contention, in absence of any supporting document, remains a disputed question and needs to be tested in trial. The Family Court has recorded in the impugned order that any amount paid as maintenance in favour of the respondent/wife and her minor child for the period in question would be liable to be adjusted.”
 The HC thus held that the previous order had no illegality in it and thus dismissed the petition. Reliance was placed on Shalija & Anr. v. Khobbana, (2018) 12 SCC 199,wherein it was held that ‘capable of earning’ and ‘actual earning’ are two different requirements. Merely because wife is capable of earning was held not to be a sufficient reason to reduce the maintenance awarded by the Family Court.