A wife's earning does not disqualify her from maintenance, and maintenance should be determined based on the lifestyle during the marriage and the cost of living.

JUDGMENT/ORDER :

Pushpendra Singh Bhati, J.

1. The petitioner-husband (respondent herein in Petition No. 1345/2018) has preferred S.B. Criminal Revision Petition No. 1095/2018 against the order dated 30.08.2018 passed by the learned Judge, Family Court No. 2, Bikaner in Criminal Misc. Case No. 18/2016 (268/2015), whereby the learned court below has allowed the application under Section 125 Cr.P.C. preferred by the wife, while awarding a monthly maintenance to the wife and son, to the tune of Rs. 50,000/- and Rs. 20,000/- (totalling Rs. 70,000/-) respectively, and thus, the husband sought quashing and setting aside of the said order. The petitioner-wife (respondent herein in Petition No. 1095/2018) has preferred S.B. Criminal Revision Petition No. 1345/2018, challenging the same order dated 30.08.2018, while making prayer only to the extent that the amount of monthly maintenance, as already awarded by the learned court below, be enhanced to Rs. 2,50,000/- (for wife) and Rs. 1,30,000/- (for son).

2. Mr. Shadan Farasat assisted by Mr. Harshit Bhurani, learned counsel, who appeared on behalf of the husband submitted that the marriage in this case was solemnized on 27.05.2010 at Bikaner; thereafter, the couple went to reside in United States of America (USA). Learned counsel further submitted that out of the said wedlock, Master Anay (son) was born on 21.05.2011.

2.1. Learned counsel further submitted that however, on count of the alleged disharmony in their (husband and wife) matrimonial relationship, the wife left her matrimonial home at USA on 13.11.2013 and came back to India alongwith the son. Learned counsel also submitted that thereafter, on 19.06.2015, the wife filed an application against the husband under Section 125 Cr.P.C. before the learned court below, which was allowed vide the impugned order dated 30.08.2018, while awarding the monthly maintenance to the wife and the son (who is in custody of the wife), as mentioned above.

2.2. Learned counsel further submitted that it is an admitted position that the wife is earning Rs. 85,000/- per month and staying at Hyderabad, and thus, competent to earn her own livelihood, while the husband does not oppose the maintenance granted to the son vide the impugned order. Learned counsel also submitted that the wife deserted the husband of her own sweet and free will, and thus, she is not entitled for any kind of maintenance.

2.3 Learned counsel relied upon the order dated 16.09.2019 passed by the Hon'ble Supreme Court in Kusum Bhatia v. Sagar Sethi (Special Leave to Appeal (C) No(s).16051/2017. Learned counsel further relied upon the judgment rendered by the Hon'ble Supreme Court in Deb Narayan Halder v. Anushree Halder (Smt.), (2003) 11 SCC 303, and the judgment rendered by the Hon'ble High Court of Delhi in K.N. v. R.G.

3. On the other hand, Mr. Parvej Moyal, learned counsel for the wife submitted that the husband is taking the plea of desertion by the wife, merely to deny maintenance to her, as awarded by the learned court below, whereas, he himself had sought divorce in the Court at USA and the same was ex parte done in favour of the husband on 29.04.2015, while passing the necessary decree.

3.1. Learned counsel further submitted that there is no factual dispute to the extent that the wife is earning Rs. 85,000/- and husband is earning about 15000 US$, which comes to Rs. 11,62,000/- (INR per month).

3.2. Learned counsel also submitted that in accordance with the precedent law laid down by the Hon'ble Supreme Court in Rajnesh v. Neha & Anr., AIR 2021 SC 569, even if the wife is earning, then also she is entitled for the determination of maintenance, in accordance with the lifestyle of her husband in the matrimonial home.

Relevant portion of the judgment rendered in Rajnesh v. Neha & Anr. (supra), reads as under:

"........

(c) Where wife is earning some income

The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts