The main legal point established in the judgment is the importance of considering the earning capacity and potential of both parties in awarding interim maintenance under Section 24 of the Hindu Marriage Act, 1955.

1. Rule. Rule made returnable forthwith.

2. With consent of learned counsel for both the parties, heard finally at the stage of admission itself.

3. By this petition, the order passed by the Family Court No.2, Mumbai in Petition No. A-2070 of 2015 on 13th October, 2016 is challenged by the Petitioner-husband. By the said order, the Petitioner-husband is directed to pay an amount of Rs.30,000/- per month as interim maintenance to the Respondent-wife from the date of filing of the application i.e. 4th January, 2016.

4. Facts leading to the Petition are to the effect that Respondent, herein, has filed a petition for divorce against the Petitioner and in the said petition, she has filed an application at Exh.10 claiming interim maintenance under Section 24 of Hindu Marriage Act, 1955. She has claimed interim alimony at the rate of Rs.50,000/- per month for herself and Rs.50,000/- per month to both the children. She has also given break-up of her expenses in paragraph No.10 of the Application according to which the total of the expenses comes to Rs.1,13,650/- per month. However, some of these expenses are, though claimed to be per month, they appear to be once in a year.

5. Be that as it may, though, the Respondent has claimed maintenance for her two children also, it is a matter of record that both the children have become major. The daughter Palomi is a Dentist with MYDENTIST and earning Rs.10,000/- per month; whereas the son Karan is also educated and has become major. The trial Court has thus held that both the son and daughter have lost their right to claim maintenance and this finding of the trial Court is not challenged in this petition. The application for maintenance, therefore, filed by the Respondent was considered only qua herself.

6. The trial Court has, while deciding her application, taken into consideration the documents filed by the Petitioner, including the Bank Statement of ICICI Bank showing that various amounts are withdrawn for household expenses. The Petitioner has also filed his salary slip for April 2016 and the termination letter dated 22nd June, 2016. His salary slip showed that he was working with Reliance Communication Limited and earning gross salary of Rs.2,05,652/- per month. Much reliance was placed by the Petitioner on the letter of termination dated 22nd June, 2016 stating that on account of his unsatisfactory performance, the management has terminated his services and therefore, it was urged that he is having no source of income.

7. The trial Court has, however, taken into consideration, the earning capacity and potentiality of the Petitioner, which was reflected in the salary slip of April, 2016 showing his gross salary of Rs.2,05,652/- per month. The trial Court has then also taken into consideration the contention advanced by the Petitioner that the Respondent was a qualified lady, as she was doing a job of Stenographer and having her own source of income. The trial Court, however, found that the Respondent has left her job long back in the year 1996 and since then she has no source of income. Therefore, trial Court held her entitled for maintenance and having regard to the standard of living of both the parties and earning capacity of the Petitioner awarded interim maintenance at the rate of Rs.30,000/- per month from the date of filing of the application.

8. Against this order of the trial Court, two submissions are advanced by learned counsel for the Petitioner. In the first place it is submitted that at the time of deciding the application for interim maintenance on 13th October, 2016, the Petitioner was not having any job. The letter of termination of his service from Reliance Communication Limited was produced on record before the trial Court. Therefore, when apparently there was no source of income for the Petitioner, the impugned order passed by the trial Court, merely on the basis of his earning capacity and potentiality, cannot be legal and correct, especially when in this case, t