A spouse's capability to earn does not preclude the entitlement to maintenance, emphasizing that actual earnings must be considered, not merely potential income.

JUDGMENT

(VIA VIDEO CONFERENCING)

Manoj Kumar Ohri, J. (Oral)--The present revision petition has been filed under Section 401 Cr.P.C. read with Section 397 Cr.P.C. on behalf of the petitioner assailing the order dated 22.07.2021 passed by the learned Principal Judge, Family Courts, North-East District, Karkardooma Courts, Delhi, vide which the petitioner has been directed to pay interim maintenance of Rs.6,500/- per month to the respondent till the disposal of the petition.

2. Learned counsel for the petitioner submitted that the parties were married on 19.06.2020 according to Hindu rites and ceremonies in Agra, U.P. No child was born out of this wedlock. Due to matrimonial disputes, the parties are not residing together since 14.07.2020. It is further submitted that MT No. 293/2020, in which the order on maintenance has been passed, was filed only to create pressure on the petitioner and his family, since there is another dispute pending between the parties regarding allegations of rape of sister of the petitioner by the brother of the respondent.

3. From a perusal of the impugned order, it is apparent that the petitioner has disclosed that he is working as Senior Marketing Sales Executive with M/s Barahi Ltd, Natural Mineral Water Polymers (Indian), Kirti Nagar, New Delhi and is getting an income of Rs.20,324/- per month. After perusing the salary slip, the Family Court came to the conclusion that his gross income is Rs.21,343/- per month and the net income is Rs.20,324/- per month.

4. With respect to the financial status of the respondent, the Family Court had noted on the basis of affidavit filed that she was not employed anywhere. She claimed that she was in possession of no moveable or immoveable asset and was therefore unable to maintain herself. She had further claimed to have an expenditure of Rs.25,500/- per month. The statement of her savings bank account revealed that no regular income was being credited to her account.

5. In Annurita Vohra v. Sandeep Vohra reported as 2004 SCC OnLine Del 192, the Delhi High Court in connection with the issue at hand has noted thus:

"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 satisfact