December 29, 2017
In this article we bring for you a conspectus of important judgments which aid in contouring and determining cases pertaining to claim of maintenance including interim maintenance in India.
Merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her
Shailja & Anr. v. Khobanna – In this case, the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.
In the case, the Family Court had awarded the Appellant-wife an amount of Rs.25,000/-. However, the High Court reduced the amount to Rs.12,000/-.
In appeal, the Supreme Court restored the Family Court’s order by opining that whether the appellant is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.
25% of the husband’s net salary would be just and proper as maintenance to wife
Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy– In this case, the Supreme Court seminally delved into the issue of enhancement of maintenance under Section 25 (2) of the Hindu Marriage Act, 1955. This provision confers discretion on the Court to vary, modify or rescind maintenance order in such manner as the court deems fit.
With reference to this provision, the Supreme Court remarked that it confers ample power on the Court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding having regard to the “change in the circumstances of the parties”. There must be some change in the circumstances of either party which may have to be taken into account when an application is made under Sub-section (2) of Section 25 for variation, modification or rescission of the order as the Court may deem just.
In the case, the Respondent- wife filed review petition. In the earlier order the Court had awarded a maintenance of Rs. 16,000/- to the respondent-wife as well as to her minor son. However, later on the husband’s net salary increased to Rs. 95,527/-. The Supreme Court while deciding the review petition made reference to the case of Dr. Kulbhushan v. Raj Kumari & Anr., wherein it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife.
Other remarkable observations made by the Court in the case were:
- That the amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance.
- That maintenance is always dependant on the factual situation of the case and the Court would be justified in moulding the claim for maintenance passed on various factors. That since in February, 2016, the net salary of the husband was Rs. 95,000/- per month, the High Court was justified in enhancing the maintenance amount.
Judicially Separated Wife is also entitled to Maintenance
Sanju Devi v. State of Bihar– In this recent case taken up by the Supreme Court, the Court rejected High Court’s order whereby the Petitioner was disentitled from maintenance under Section 125 of the Code of Criminal Procedure, 1973 on the ground that the husband and wife had already judicially separated. The Court also remarked that that if a divorced wife is entitled for maintenance then there is no reason why a wife who is judicially separated is not entitled for maintenance.
Read more here.
Also read Judicial Separation and Divorce in India
Both Parents Have Moral Duty to Maintain the Child
Sukhjinder Singh Saini vs Harvinder Kaur– In this case, the Delhi High Court while deciding the issue of maintenance of child made the following observations:
- That it is a settled principle of law that both the parents have a legal, moral and social duty to provide to their child the best education and standard of living within their means.
- That the mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contributiontowards the maintenance and welfare of the child.
- That monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and the child of the aggrieved person as a result of the domestic violence.
Read more here.
Maintenance order under Domestic Violence Act cannot be substituted by Maintenance under Section 125 CrPC
Prakash Babulal Dangi v. The State of Maharashtra– In this case, the wife had initially claimed maintenance under Section 125 CrPC and the Court had awarded maintenance of Rs. 6000 to the wife and Rs. 4000 to her minor daughter. While the case under Section 125 of CrPC was pending, a case was filed and an interim maintenance was sought by the wife under Domestic Violence Act, whereby the husband was directed to pay maintenance of Rs. 8000 and Rs. 5000 to wife and daughter respectively.
In view of the aforesaid context, the Bombay High Court made reference to Section 36 of Domestic Violence Act, 2015 which entails that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law and held that that the amount of maintenance awarded under the Domestic Violence Act cannot be substituted to the order of maintenance under Section 125 of CrPC.
Maintenance to be paid to husband only if he is incapable or handicap
Nivya V.M. v. Shivaprasad N.K.– In this case, the Kerala High Court dismissed husband’s claim for maintenance from his wife holding that maintenance under Section 24 of Hindu Marriage Act, 1955 is to be paid to the husband only when he is able to prove any incapability or handicap.
The Court also observed that in absence of such circumstances as enumerated above, endowing maintenance on the husband would only promote idleness.
The Court also remarked that a husband seeking maintenance from the wife can be treated only as exceptional case as normally he has got the liability or obligation to maintain the wife and vice versa is only exceptional.
Maintenance under Section 125 CrPC cannot be denied to a Divorced Wife
Manoj Kumar v. Champa Devi– In this case, the Supreme Court in appeal upheld the order passed by the High Court of Himachal Pradesh, whereby the Court had ordered the husband in the case to grant maintenance to his deserted and divorced wife.
In the case, the husband had contended that as the decree of divorce had been passed he was under no obligation to pay maintenance to the wife as contemplated under Section 125(4) of CrPC. However, the High Court held that a divorced woman continues to enjoy the status of ‘wife’ for claiming maintenance under Section 125 of CrPC.
Wife living separately from Husband without any reason cannot claim maintenance under Section 125 CrPC
Anil v. Mrs. Sunita– In this case, the wife left her husband’s home and resided at her matrimonial home. In the case, the husband also claimed that he went to bring her wife back but she refused. The wife in the case had claimed maintenance from her husband of Rs. 5000.
The husband in the case claimed that the wife without any sufficient reason was refusing to stay with him and also that she was an advocate and capable of earning and still was demanding maintenance.
In view of the aforesaid facts, the Madhya Pradesh High Court denied maintenance to the wife and observed that in view of the facts of the case, wife resided in her matrimonial home for the first time for 7 days and second time for 12 days and it is alleged that in these 12 days she was harassed. It is practically impossible that she could have been so harassed that it is impossible for her to live in her matrimonial home. After 12 days she had voluntarily gone with her brother with a view to select a girl for marriage of her brother. Thus, it cannot be held that she was thrown with force from her matrimonial home or she was forced to leave her matrimonial home.
 CRIMINAL APPEAL NOs. 125-126 of 2017
 III (2017) SLT 535
 (1970) 3 SCC 129
 Special Leave to Appeal (Crl.) No(s).4057/2015, decided on December 06, 2017
 CRL.REV.P. 494/2015 and Crl.M.A.No. 11437/15, decided on November 10, 2017
 Criminal Application No. 296 of 2017, decided on October 10, 2017
 OP (FC).No. 26 of 2015 (R), decided on February 14, 2017
 Special Leave to Appeal (Crl.) No(s).10137/2015, decided on April 06, 2017
 Criminal Revision No.829 of 2014