A spouse's capability of earning does not automatically disqualify them from receiving maintenance under Section 125 Cr.P.C., and the apportionment of family resources must consider the financial requirements of the family members.

ORDER

Manoj Kumar Ohri, J. (Oral). - The present revision petition has been filed under Section 397 Cr.P.C. assailing the interim maintenance order dated 15.11.2018 passed by the Family Court, South-West District, Dwarka Courts, New Delhi in MTNo.1132/17.

2. As per the facts narrated in the petition, the petitioner/husband was married to respondent/wife on 28.02.2017. However, owing to matrimonial discord the respondent filed a petition for maintenance under Section 125 Cr.P.C. in December, 2017.

3. In the aforesaid application, the respondent claimed that she was a housewife having no source of income, and she was totally dependent upon her parents for her day to day needs and expenses. It was claimed that the petitioner was running the business of cable network under the name and style of M/s Tarun Cable Network. It was further stated that besides earning Rs. 3,00,000/- per month from the said business was also having a rental income of approximately of Rs. 50,000/- from his flat at Sector-7 Rohini and property bearing No. 53-A, Ber Sarai, New Delhi. It was also claimed that the petitioner was also having other source of income including interests from FDRs, mutual funds and share market. It was thus claimed that the petitioner was earning about Rs.3.5 lakhs to 4 lakhs per month.

4. The petitioner filed his reply. It was stated that the respondent was highly qualified being B.A., B.Ed., J.B.T and CTET. It was also stated that the respondent was taking tuitions and also earning rental income from property bearing No. 53 Bijwasan, New Delhi.

5. The petitioner had denied that he was running the business in the name and style of M/s Tarun Cable Network as the same was in the name of his mother. The petitioner filed his income affidavits and also placed on record his ITR for the assessment year 2017-2018 which showed his annual gross income at Rs.2,52,933/-. The petitioner had also placed on record a pay slip to show that at that time his monthly income was only Rs. 15,000/-.

6. The Family Court noted that on the said payslip neither the name nor the post of the petitioner was mentioned. The Family Court also took note of the fact that the petitioner had filed Income Tax Return for the assessment year 2018-2019 showing his gross annual income as Rs. 1,250/- only. The Family Court noted that the said Income Tax Return was filed only after filing of the maintenance petition by the respondent. While granting interim maintenance, the Family Court took note of the Income Tax Return for the year 2017-2018, as per which the income is stated to be Rs.2,52,932/- p.a. Taking the income at Rs.21,000/- per month, the Family Court had granted 1/3rd share i.e., Rs.7,000/- to the respondent from the date of filing of the maintenance application till the disposal of the petition.

7. It is contended that the respondent is highly qualified. The issue, whether the wife can be denied maintenance only on account of the fact that she is capable of earning, came before this court in Sh. Arun Vats v. Pallavi Sharma and Another reported as 2019 SCC OnLine Del 11817, wherein while relying on decision rendered in the case of Shailja and Another v. Khobbanna reported as (2018) 12 SCC 199, it was held that 'capable of earning' and 'actual earning' are two different requirements. Merely because wife is capable of earning was held not be a sufficient reason to reduce the maintenance awarded by the Family Court.

8. In Sarwan Kumar Sharma v. Ranjana Sharma @ Ranj ana Rani & Anr. in CRL. REV.P. 590/2018 decided on 24.02.2020, this Court had the occasion to deal with the expression "unable to maintain herself". It was held that it does not mean that the wife must be absolutely destitute before she could apply for the maintenance under Section 125 Cr.P.C. [Refer: Chaturbhuj v. Sita Bai reported as (2008) 2 SCC 316 and Vinny Parmvir Parmar v. Parmvir Parmar reported as (2011) 13 SCC 112]. Reference was also made to the following observations of the Supreme Court in Sunita K