Ritu Manoj Prithiani v. Manoj Dharamdas Prithiani

10. The intent of Section 125 Cr.P.C. and the objects which it aims to achieve were discussed by Hon‟ble Apex Court in case of Bhuwan Mohan Singh v. Meena (2015) 6 SCC 353 with the following observations:

11. It is also a settled proposition of law that wife is entitled to same status and to enjoy same facilities as enjoyed by husband. In Bhagwan Dutt v. Kamla Devi (1975) 2 SCC 386, it was observed by Hon‟ble Supreme Court that the wife should be in a position to maintain a standard of living which is consistent with the status of her marital family, neither luxurious nor penurious in comparison.

12. Further, as regards contention of learned counsel for respondent that petitioner is capable of earning sufficient amount of income, this Court takes note of the decision of Hon‟ble Apex Court in Shailja v. Khobbanna (2018) 12 SCC 199 and Sunita Kachwaha v. Anil Kachwaha (2014) 16 SCC 715 whereby it was categorically held that capability of earning money is different from actual earnings and the former cannot be a ground to deny maintenance to the wife. These observations were reiterated by the Hon‟ble Apex Court in Rajnesh v. Neha (2021) 2 SCC 324 in the following manner: “...90. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.

90.1. In Shailja v. Khobbanna, this Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.

90.2. In Sunita Kachwaha v. Anil Kachwaha, the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance...”

13. In the case of Rajnesh v. Neha (supra), the Hon‟ble Apex Court has categorically given the guidelines and principles which are to guide all the Courts across the country for the purpose of grant of interim maintenance and maintenance at the final stage of trial. It is mentioned in the said judgment that the Affidavits of Disclosure of Assets and Liabilities to be filed by both the parties have to become criteria to decide grant of interim maintenance. Further, the factors to be kept in mind while deciding such a question have also been discussed in the said judgment. The relevant observations of Hon‟ble Apex Court in this regard are reproduced herein-under:

14. In the present case, learned Family Court has come to the conclusion that the net salary of the respondent, after statutory and essential deduction, is Rs.82,330/-, which is also not disputed by the respondent. The Court has also mentioned in the order itself that wife is entitled to maintenance equal to status and stature of her husband. Therefore, from the impugned order itself, it is not clear that though the learned Family Court had come to such a conclusion, as to why only Rs. 18,000/- per month had been granted as interim maintenance to petitioner. In this regard, a reference can be made to the decision of this Court in Annurita Vohra v. Sandeep Vohra 2004 SCC OnLine Del 192, wherein it was observed as under: “1. This revision petition is directed against the Order dated 20.8.2001 whereby the Additional District Judge had granted maintenance at the rate of Rs. 6,000/- per month to the Petitioner/Applicant/Wife for herself and her minor children. The Court had come to the conclusion that the net disposable income of the Respondent/Husband is about Rs. 32,000/- per month which is exclusive of his perks and reimbursements. It had also been found that there were no dependents other than the wife and children. In Jasbir Kaur Sehgal v. District Judge, Dehradun and others, (1997) 7 SCC 7, it has been observed that - “no set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate”.

2. In other words the court must first arrive at the net disposable income of the Husband or the dominant earning spouse. If the other spouse is also working these earnings must be kept in mind. This would constitute the Family Resource Cake which would then be cut up and distributed amongst the members of the family. The apportionment of the cake must be in consonance with the financial requirements of the family members, which is exactly what happens when the spouses are one homogeneous unit. Ms. Geeta Luthra, learned counsel for the Respondent, had fervently contended that normally 1/5th of the disposable income is allowed to the Wife. She has not shown any authority or precedent for this proposition and the only source or foundation for it may be traceable to Section 36 of the Indian Divorce Act, 1869. This archaic statute mercifully does not apply to the parties before the Court, and is a vestige of a bygone era where the wife/woman was considered inferior to the husband as somewhat akin to his chattels. The law has advanced appreciably, and for the better. In the face of Legislatures reluctant to bring about any change over fifty years ago the Courts held that the deserted wife was entitled to an equal division of matrimonial assets. I would be extremely loath to restrict maintenance to 1/5th of the Husband's income where this would be insufficient for the Wife to live in a manner commensurative with her Husband's status or similar to the lifestyle enjoyed by her before the marital severance. In my view, a satisfactory approach would be to divide the Family Resource Cake in two portions to the Husband since he has to incur extra expenses in the course of making his earning, and one share each to other members.”

15. The respondent has not disputed that the petitioner is suffering from several ailments and needs medical treatment. Learned Family Court has mentioned in para no. 6 of its order that mediclaim card has been provided to her and she can avail the facilities free of cost and therefore, any amount for grant of medical treatment was not granted or considered while granting interim maintenance. The petitioner has categorically stated in her petition that when she had used the same mediclaim card at a hospital on 11.09.2018, after she had suffered from „Vertigo‟, she was not able to use the said card since it was not renewed and premium for the same had not been paid and, therefore, she had to spent the amount for her medical treatment by borrowing money. In this context, it becomes essential that some provision is made for the purpose of medical treatment of the petitioner also.

16. As far as the provision regarding looking after the needs of mother of the respondent is concerned, this Court is of the opinion that though the learned counsel for petitioner stated that respondent‟s mother has rental income from properties in her name, no such evidence as of now is on record. It is not disputed that she is suffering from Polio since long and needs to be looked after. It is not clear from the record as to whether there are any other persons, like siblings of petitioner to look after her. In such circumstances, this Court cannot hold that respondent should neglect his mother or not spend anything for her as he is living with him which is not disputed by the petitioner herself. Looking after one‟s mother or old age parents is also a moral duty of a man. Considering the same, learned Family Court did not commit any error by keeping some amount from the salary of the respondent for looking after the needs of the mother of petitioner.

17. Needless to say in case at the end of the trial, if the petitioner is able to place on record any evidence that mother of the respondent has her own income which was not disclosed by the respondent, the learned Family Court may take the decision on the same as per law.

18. Considering the overall facts & circumstances of the case, this Court is of the opinion that since the net income of the respondent as per the affidavit and as per finding of the learned Family Court is Rs.82,330/- which was not disputed before the learned Family Court and a salary slip in this regard was placed before it, the learned Family Court had committed an error by granting only Rs. 18,000/- per month as maintenance to the present petitioner.

19. In view thereof, this Court, enhances the interim maintenance granted to petitioner from Rs. 18,000/- to Rs. 22,000/- per month, which will include all the expenses.

20. It is also noted that the petitioner was working prior to her marriage as an Accountant with Air India on contract basis and has a diploma in D.T.P. In this Court‟s opinion, she should also try and find some work and to not waste her time and talent sitting at home. However, since at this stage, there is no proof that she is earning, the husband, as per his duty towards his wife, is directed to pay interim maintenance of Rs. 22,000/- per month.

21. It is to be noted that the amount of maintenance granted vide this order is only interim and the final maintenance will be decided only on the basis of evidence led by both the parties before the learned Family Court.

22. Accordingly, the present petition stands disposed of.

23. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J MAY 8, 2023