IMPORTANT POINT
A wife's earning does not preclude her from receiving maintenance; courts must assess the overall financial situation and standard of living.

JUDGMENT :

RAM MANOHAR NARAYAN MISHRA, J.

1. Heard learned counsel for the revisionist and learned counsel for the respondent and perused the material on record.

2. The present criminal revision is filed against the order dated 24.5.2022 passed by Principal Judge, Family Court, Rampur in Criminal Misc. Case No. 596 of 2019 (Smt. Nancy Saxena v. Arpit Saxena) under Section 125 Cr.P.C. whereby application moved under Section 18A by the applicant (opposite party) has been partly allowed and the revisionist had been directed to pay Rs. 4,000/- as maintenance on monthly basis to opposite party Smt. Nancy Saxena from the date of filing of the application and during the pendency of application under Section 125 Cr.P.C.

3. The brief facts of the case are that the opposite party filed an application under Section 125 Cr.P.C. before the Principal Judge, Family Court against her husband-revisionist with averments that marriage of the applicant and opposite party was solemnized on 9.5.2017 as per Hindu rites and rituals at Rampur and no dowry was agreed between the parties in the marriage, however, after solemnizing marriage, opposite party and his family members started demanding dowry on pretext of purchasing a plot in Delhi and when the applicant expressed inability of her father to fulfill the demand of her husband and in-laws, they subjected her to mental and physical agony and opposite party used to make unnatural physical relation with the applicant against her will and she was ultimately turned out from her matrimonial home; she is presently residing at the place of her parents; he is not paying a single penny for her maintenance after keeping her out from his home therefore, it is prayed for providing interim maintenance from the date of filing of application, which was partly allowed on 24.5.2022 directing the revisionist to pay interim maintenance Rs. 4,000/- per month to the applicant.

4. Learned counsel for the revisionist submitted that impugned order passed by the family Court is manifestly erroneous and unsustainable in the eyes of law as same was passed without considering the materials placed on record; findings recorded in the impugned order are based on misreading of facts and illegal presumption; the findings in the impugned order that as per the income tax return 2021-22 submitted by the husband, his annual income is Rs. 2,59,000/-, therefore, prima facie, he has sufficient income; it is apparent from the said income tax return 2021-22 that under Section 44AD of the Income Tax Act the annual income of the husband from his business/medical shop is Rs. 79,000/- only and the arrears of salary Rs. 1,80,000/- received by him for the services rendered earlier in the private concern has been shown under Section 44ADA that is not his regular income but while passing the impugned order the family Court has illegally added both said income (mentioned under 44AD and under Section 44ADA) in his regular income. In the income tax return total income has been added for the purpose of computation of income tax in that particular assessment year; it is not the regular income of the husband. In the impugned order the family Court recorded the findings that the wife has been working as a teacher and receiving Rs. 13,000/- per month as her salary, therefore, it was incumbent upon the Court below to assess the income of the husband and compare it to the income of the wife before granting the interim maintenance but it has wholly illegally observed, “his income is sufficient” which is misconceived and against the settled proposition of law. It is apparent from the record that monthly income of the wife is admittedly more than the income of the husband and she is able to maintain herself, therefore, she is not entitled for maintenance. There are three cases including the present one filed by the wife against the husband which are pending before the District Court, Rampur, which is too far from the district Bhopal of Madhya Pradesh and on differ