IMPORTANT POINT
A court cannot presume a person's ability to maintain themselves based solely on educational qualifications without current evidence of income.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. The challenge in this revision is made to the order dated 24.05.2023 passed in Miscellaneous Criminal Case No. 57 of 2022, Smt. Sunita Bhatt vs. Girish Chandra Bhatt, under Section 125 of the Code of Criminal Procedure, 1973 (“the Code”) by the Judge, Family Court, Nainital (“the case”).

2. Heard learned counsel for the parties and perused the record.

3. It appears that the revisionist and respondent no. 2, both were married on 30.04.2021. But after marriage, there was some dispute between the parties, therefore, the revisionist filed an application under Section 125 of the Code. According to the revisionist, she was tortured and harassed in connection with demand of dowry. She is not able to maintain herself. She is staying separate from her husband, the respondent no. 2. Therefore, she sought maintenance which is basis of the case. In the case, an application for interim maintenance has also been filed, which has been rejected by the impugned order.

4. The application for interim maintenance was objected by the respondent no. 2, inter alia, on the grounds that he is ready and willing to keep his wife (revisionist) with him. It has also been the case of respondent no. 2 that the revisionist is highly qualified and having qualification of M.Sc. and B.Ed. She teaches in some private school. According to respondent no. 2, the revisionist can maintain herself.

5. The parties were married on 30.04.2021. The court in the impugned order records that since the revisionist did not file any bank statement, it reflects that she is not willing to disclose entire facts. The Court had taken judicial notice that a person who is M.Sc. and B.Ed. and who had been teaching in the past, must have been earning in present also. By observing so, the application for interim maintenance filed by the revisionist was rejected by the court below.

6. Learned counsel for the revisionist would submit that the revisionist was never required to file Bank statements. She was never advised to do so. It is argued that whatever job, the revisionist had done that was done prior to marriage. It is argued that the matter may be remanded to the court below for hearing a fresh after permitting the revisionist to file the bank statement.

7. Learned counsel for respondent no. 2 would submit that the revisionist failed to file her bank statements. She was doing some job and she is concealing it.

8. Admittedly, the court below did not have any document to reveal that the revisionist has been working at the relevant point to time. The record which was before the court relates to the period prior to her marriage, when the revisionist was working in some school as a teacher. The court presumed the fact that a person who is M.Sc. B.Ed. & who had been teaching in the past, must have been earning in the present.

9. This Court is of the view that perhaps such presumption is beyond the limits of presumption. It cannot be presumed that a person who is qualified must have the means to survive. If the revisionist has not filed her bank statement the court below could have asked her to submit her bank statement and thereafter the matter could have been decided.

10. Therefore, this Court is of the view that the impugned order deserves to be set aside and the matter has to be remanded to the court below for decision afresh after affording an opportunity to the revisionist to file all the bank statements.

11. The impugned order is set aside. The matter is remanded back to the court below for decision afresh after affording an opportunity to the revisionist to file the bank statements.

12. The revision is allowed accordingly.