The main legal point established is that under Section 24 of The Hindu Marriage Act, the lack of independent income sufficient for support is the key condition for granting interim maintenance, and the capability to earn does not automatically disqualify a party from receiving maintenance.

JUDGMENT :

S.G. Pandit, J.

The petitioner is before this Court challenging the order dated 17.11.2018 passed on IA.No. I in M.C.No.36/2017 on the file of the I Addl. Senior Civil Judge, Bagalkot.

2. The petitioner is wife and respondent is husband. The respondent-husband filed M.C.No.3746/2016 under Section 13(1) (ia) of The Hindu Marriage Act, 1955 (for short 'the Act'). In the said proceedings, the petitioner wife filed IA.No. I under Section 24 of The Hindu Marriage Act, seeking an ad-interim maintenance of Rs.50,000/- per month for food, clothing, shelter and medical expenses and Rs.5,000/- for litigation expenses. In the affidavit filed in support of her application, she stated that prior to her marriage she was working and subsequent to marriage at the instance of respondent-husband, she left the job. As on the date of filing the petition, she had no independent source of income and she was completely dependant on her parents. From the marriage, they have a child aged about 4 years and the child is with the wife and she is taking care of the child. It is further stated that the respondent husband is an Engineer and working in Saskin Tele Communication at Bengaluru and having income of Rs.2,50,000/- per month. The parents of the husband are staying independently at Gulbarga and having their independent source of income. The husband filed objections contending that the wife is not entitled for maintenance. It is stated that petitioner wife hardly cared for respondent's health or happiness. The husband states that the wife got a job in Bengaluru and started working in Silicon Edge Technologies from 01.06.2011. Later on, she shifted to Hexad Info Soft Pvt. Limited, where she was getting very good salary than the petitioner. Now, she can do the job based on her educational qualification as well as she will become a gainful working woman. The husband in his objections states that in October 2015, petitioner wife gave birth to a baby boy. It is stated that wife deserted the husband and he tried all possibilities to bring her back. It is stated that the husband is having aged parents who are suffering from age related ailments. Further, it is stated that the parents of the husband are completely dependant on him. The trial Court on considering the contention of husband and wife, by impugned order dismissed IA.No.I filed by the wife, under Section 24 of The Hindu Marriage Act, 1955. Aggrieved by the same, the wife is before this Court.

3. Heard the learned counsel petitioner-wife and learned counsel for respondent-husband and perused the writ papers.

4. Learned counsel for the petitioner would submit that dismissal of IA.No.I by the trial Court is wholly erroneous and perverse. During the pendency of the petition for divorce, wife filed an application under Section 24 of the Act, seeking maintenance of Rs.50,000/- per month. He submits that the wife has no avocation of her own and she has no independent income. She has to depend on her parents for her daily needs. It is also submitted that 4 years old child is with the wife and she has to look after the child. He further submits that respondent-husband, who is an Engineer, is earning more than Rs.2 Lakhs per month. The wife who has no income of her own, is not able to maintain herself. Under Section 24 of the Act, she is entitled for maintenance as sought in IA.No.I.

5. Per contra, learned counsel appearing for the respondent-husband would submit that the petitioner-wife is not entitled for any maintenance. She is also an Engineer and she is capable of earning and maintaining herself. Further he states that the wife was working and subsequently she has left the job. It is further contended that the respondent-husband has aged parents, who are suffering from old age ailments and he has to look after his parents, which needs substantial amount. Further, he submits that respondent-husband has to pay housing loan installment of Rs.58,000/- per month. Therefore, he would not be in a positio