Maintenance is dependent upon the factual situation and should be determined based on various factors, including the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for support.

1. Heard learned counsels for the petitioner and respondents.

2. Rule.

3. Rule made returnable forthwith with the consent of parties.

4. This writ petition is preferred by the petitioner husband, challenging the order dated 25.01.2016, passed by the Family Court, Nashik in P.A. No.52 of 2014, thereby allowing the respondent's application for interim maintenance filed under section 24 of the Hindu Marriage Act and granting her Rs.3,000/- per month from the date of application, Rs.5,000/- towards litigation expenses, plus Rs.100/- per trip when she remains present in the court towards her travelling expenses.

5. The submission of learned counsel for the petitioner is that respondent is more qualified than the petitioner as she is double graduate i.e. M.A. whereas petitioner is merely a graduate in Arts. Secondly, it is submitted that the earning of the petitioner is only Rs.7,000/- per month from his service as clerk in a private company. Thirdly, it is submitted that respondent has not produced any documentary evidence to prove the income of the petitioner. Despite that the trial Court has awarded maintenance of Rs.3,000/- per month.

6. An attempt is also made to contend that respondent herself does not want to cohabit with the petitioner unless he resides separately from his parents and therefore, she can not be entitled to get any amount of maintenance, especially as per her own statement as reflected in the chat of Whats APP, she is having earning capacity of Rs.30,000/- per month.

7. Learned counsel for the petitioner, has further submitted that in the proceeding filed under Section 125 of Code of Criminal Procedure, respondent is awarded interim maintenance at the rate of Rs.2,000/- per month and the petitioner is ready to pay the said amount. He is also paying the same regularly. Therefore, the impugned order awarding interim maintenance at the rate of Rs.3,000/- per month passed in this proceeding needs to be set aside.

8. Coming to the various contentions raised by the learned counsel for petitioner, about first contention that respondent is more qualified and having earning capacity of Rs.30,000/- per month. The law is well settled that merely having earning capacity is not sufficient unless it is shown that wife is actually having some permanent source of income and getting the income. In this respect a useful reference can be made to the decision of Apex Court in case of Manish Jain vs. Akanksha Jain. In this case, the application for interim alimony filed by the wife was resisted by the husband on the ground that she is an educated lady. While rejecting this contention, in paragraph No.15, the Hon'ble Supreme Court was pleased to hold that:-

“15. An order for maintenance pendente lite or for costs of the proceedings is conditional on the circumstance that the wife or husband who makes a claim for the same has no independent income sufficient for her or his support or to meet the necessary expenses of the proceeding. It is no answer to a claim of maintenance that the wife is educated and could support herself. Likewise, the financial position of the wife’s parents is also immaterial. The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.” (Emphasis supplied)

9. In this case, there is no pleading or any material to show that respondent is actually working at some place and having any permanent source of income.

10. As regards the contention that respondent has not produced any documentary evidence about the income of the petitioner, as a matter of fact, it was for the petitioner himself to produce on record, his own salary slip or his income tax returns. However, the petitioner has no