A spouse's capacity to earn does not negate maintenance entitlement; both parents share the responsibility for child's welfare and upbringing.

JUDGMENT

Neena Bansal Krishna, J. (Oral)

CM APPL. 24526/2020 (Delay of 6 days in filing appeal)

1. By this application, the appellant seeks condonation of 6 days' delay in filing the appeal.

2. For the reasons stated in the application, delay of 6 days in filing the appeal is condoned.

3. Application is disposed of.

MAT.APP.(F.C.) 112/2020

4. The present appeal has been filed by Anju Kumari (hereinafter referred to as `appellant') under Section 19 of the Family Court Act, 1984 (hereinafter `the Act, 1984) against the order dated 09th December, 2019 passed by the learned Principal Judge, Family Court, East, Karkardooma Court, whereby the learned Principal Judge denied the maintenance under Section 24 of the Hindu Marriage Act, (hereinafter referred to as the `Act, 1955').

5. The appellant got married to Puneet Kumar (hereinafter referred to as `respondent') according to Hindu rites and customs and one son, namely, Master Diyan was born from the said wedlock on 10th February, 2017. Differences arose and the parties have been living separately since 04th April, 2017. The respondent filed the petition for divorce under Section 13 (1) (ia) of the Act, 1955, which is pending trial. During the proceedings, an application under Sections 24 and 26 of the Act, 1955, seeking pendente lite maintenance at the rate of sum of Rs.90,000/- per month, was filed by the appellant for herself and the minor son.

6. The learned Principal Judge, Family Court observed that as per the affidavit of the appellant, she had educational qualifications of Master in Social Work and she was working as DCPU in State Child Protection Society from 24th October, 2017 to 23rd October, 2018 and thereafter, she took leave for taking care of the child. She is owner of flat bearing No.304, Tower-B, Lotus Panche, Section 110, Noida, Uttar Pradesh and has income from FDRs, she also owned one car, namely, Polo, Volkswagen.

7. Considering the financial capacity and the resources of the appellant, her qualifications, her earnings of about of Rs.33,000/- per month while working in State Child Protection Society and that she has the potential to maintain herself from her independent sources of income, the appellant was denied any interim maintenance. In regard to the child, it was observed that she was already getting Rs.5,000/- per month for the minor under Section 125 of Cr. P.C., which was adopted herein and the application was accordingly disposed of.

8. Aggrieved by the said order, the appellant preferred the present appeal.

9. The main grounds of challenge are that she has already resigned from the post of DCPU in State Child Protection Society to be able to take care of her son, who was barely 10 months old at that time. She had purchased Polo, Volkswagen car after selling her Honda City car. Furthermore, the learned Principal Judge has overlooked earnings and the assets of the respondent and also misinterpreted the decision of the Division Bench of this Court in the case of Sujit Kumar vs. Vandana, MAT. APP.(F.C.) 35/2015 dated 08th August, 2016, wherein it was observed that the status of parties, their assets, their liabilities and such other aspects must be considered while awarding the maintenance. Moreover, this Court in the case of Kusum Sharma vs. Mohinder Sharma had observed that maintenance is a basic human right and the survival rests on maintenance. The object of this provision is two-fold, namely, to prevent vagrancy and destitution and secondly, to ensure that indigent litigating spouse is not handicapped in defending of prosecuting the case due to want of money. Moreover, in the case of Shailja & Anr. vs. Khobbanna, 2018(12) SCC 199, the di