IMPORTANT POINT
The obligation of a husband to provide maintenance to his wife is fundamental, and the wife's earning capacity does not negate this obligation.

ORDER :

1. The challenge is given by the wife as present applicant to the order passed by Family Court, Amreli on 21.10.2022 in Criminal Miscellaneous Application No.65 of 2022, whereby the maintenance application of the petitioner came to be dismissed. Aggrieved by the judgment and order, the petitioner has preferred the present revision application.

2. The facts of the case suggest that the applicant and the respondent’s marriage was solemnized on 01.02.2019. They resided together in the joint family. The applicant has alleged that she was treated with mental and physical cruelty by the respondent and his family members with a view to get dowry, and without any reasonable cause, on 26.01.2022 she was deserted by the respondent. Therefore, on 06.02.2022, she moved the office of ‘Sakhi One Stop’, and thereafter she was taken back by the respondent. It is stated by the applicant that she was put to threat by the respondent and was instructed not to give such a writing or else she would not be allowed in the house. But, since the applicant denied so, she was deserted by the respondent and now she is living her life without any source of income.

2.1 It is the case of the applicant that the respondent is serving in the Bank of Baroda and having monthly salary of Rs.40,000/-. The father of the respondent is having a hair cutting saloon and his monthly income is Rs.20,000/-. Except the applicant, the respondent has no other responsibility; thus, has made a prayer for maintenance of Rs.20,000/- per month.

3. The Family Court served the notice and written statement of the respondent was placed on record at Exh.12, where he had denied the contention raised by the applicant in totality, and had also denied of treating her with mental and physical cruelty. The respondent has alleged that the applicant is fond of living luxurious life, whereas the respondent has a limited income, therefore, the respondent could not fulfill the requirement of the applicant, and she has harassed the respondent by filing such an application.

3.1 It is also the case of the respondent that the applicant is having a degree of M.Com., M.B.A. and she earns monthly income of Rs.10,000/- by doing private job, and, thus should not be awarded any maintenance amount.

4. The Family Court had noted that the petitioner does not have any job, but this fact itself could not prove that she is unable to maintain herself. It was also noted that in the past also, she was doing job and thereafter, at present, also she can maintain her by doing job or other business.

4.1 The opponent is a peon-cum-sweeper in Bank of Baroda. His yearly salary income as per income tax return is Rs.4,05,003/- for the year 2021-2022 after standard deduction.

5. In case of Rajnesh Vs. Neha & Ors., reported in (2021) 2 SCC 324, the Hon’ble Supreme Court in regard to the maintenance to the wife, has observed that, Chapter IX of the Code of Criminal procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance under Section 125 of the Cr.P.C. may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions: (i) the husband has sufficient means; and (ii) “neglects” to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors.

5.1 The Hon’ble Supreme Court in the said judgment referred to the case of Bhagwan Dutt v. Kamla Devi, reported in (1975) 2 SCC 386, wherein it has been held as under:

“19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which