IMPORTANT POINT
The obligation of a husband to maintain his wife under Section 125 of the Cr.P.C. is not diminished by the wife's earning capacity, and proper financial disclosures are essential in maintenance proceedings.

JUDGMENT :

Anubha Rawat Choudhary, J.

1. Heard the learned counsel for the parties.

2. This application has been preferred against order dated 15.12.2021 passed by learned Principal Judge, Family Court, Dhanbad in Original Maintenance Case No. 198 of 2018, whereby petition for maintenance under section 125 Cr. P.C. filed by the wife (opposite party herein) has been allowed directing the petitioner to pay maintenance @ Rs. 50,000/- (Rs. Fifty Thousand Only) per month to his wife.

3. The findings of the learned Family Court, interalia, recorded at paragraph Nos. 10 to 12 are quoted as under: -

“10. From the assertions and allegations made by the parties it has transpired that marital status is an admitted aspect of this case, therefore, at this juncture I am required to examine whether the petitioner has a reasonable excuse for living separately from her husband and getting allowance for her monthly maintenance from him. I have further to determine whether the petitioner has been able to maintain herself and if both the questions are replied in affirmative for should be the reasonably quantum of maintenance.

11. In the instant case marriage between the parties is admitted. It is also admitted aspect of this case that the petitioner has been living separately in her parent's house and the respondent has sufficient monthly income to maintain his wife nevertheless he is not making payment to her and the respondent himself is not willing to keep the petitioner with him and he has intentionally ousted the petitioner from his house, so, the petitioner is totally justified in living separately from him. In view of the above facts and circumstances, I find and hold that the respondent having sufficient means has neglected and refused to maintain his wife who is unable to maintain herself.

12. So far as the contention of the respondent that the petitioner and her parents have sufficient income for her maintenance is concerned, in a catena of cases the Superior Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband.

In Shailja & Anr. V Khobbanna, the Apex Court has held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family court. The court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.

In the case of Sunita Kachwaha & Ors. V Anil Kachwaha through the wife had a postgraduate degree, and was employed as a teacher the Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

The Bombay High Court in Sanjay Damodar Kale V Kalvani Sanjay Kale while relying upon the judgment in Sunita Kachwaha held that neither the mere potential to earn, nor the actual earning of the wife, however meagre, i sufficient to deny the claim of maintenance.”

Arguments of the petitioner (husband)

4. The first point raised by the petitioner is that the impugned order calls for interference in revisional jurisdiction in view of the fact that the conditions as mentioned in Section 125(4) of the Cr. P.C. is not at all satisfied. He submits that the opposite party no. 2 had left the matrimonial home on her own free will and thereafter she did not return back. She had no reason to refuse to live with the petitioner. The learned counsel has relied on the evidence of P.W. 1 and has referred to paragraph No. 29 of her cross examination wherein she has stated that she lived with the petitioner for 15 days and had gone to the hostel for her studies and from the hostel only she used to visit the petitioner. Learned counsel has also submitted that a divorce suit is also pending which has been filed by the petitioner in the year 2017. The learned counse