A spouse's ability to earn and actual earning are distinct; mere capability does not justify denial of maintenance if genuine efforts to secure income are not demonstrated.

ORDER :

CHANDRA DHARI SINGH, J.

1. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter “CrPC”) [now under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter “BNSS”)] read with Sections 19 (4) of the Family Court Act, 1984 has been filed on behalf of the petitioner seeking setting aside of the impugned order dated 5^th November, 2022 passed by the learned Principal Judge, Family Courts South District, Saket Courts, New Delhi, wherein the learned Principal Judge has declined the interim maintenance to the petitioner under Section 125 of the CrPC in MT cases/198/2021.

2. The brief facts that led to the filing of the instant petition are that the petitioner-wife married the respondent-husband on 11^th December, 2019 in New Delhi and immediately left for Singapore on 24^th December, 2019. It is alleged by the petitioner that owing to the cruelties at the hands of her husband and his family members, the petitioner came back to India on 20^th February, 2021. It is also alleged that the respondent got the petitioner‟s spousal visa revoked and the petitioner was stranded all alone in Singapore by her husband. Further, he got into possession of all the petitioner‟s valuables due to which, the petitioner was forced to sell all her jewelleries to reach India.

3. Thereafter, due to the financial hardships, the petitioner started residing with her maternal uncle. Pursuant to the same, in June, 2021, the petitioner filed a petition under Section 125 of the CrPC against her husband praying for maintenance before the learned Principal Judge. Along with the said petition, an application praying for interim maintenance was also moved by the petitioner herein. The said application was dismissed by the learned Principal Judge vide impugned order. Being aggrieved by the same, the petitioner has filed the instant revision petition seeking setting aside of the impugned order.

4. Learned counsel appearing on behalf of the petitioner submitted that the learned Principal Judge erred in passing the impugned order as the same is based on surmises and conjectures and is full of arbitrariness as well as against the settled principles of law.

5. It is submitted that the learned Principal Judge has failed to appreciate the fact that the parties had married at a later stage of their life where the petitioner was about 36 years old, and the respondent was 40 years of age. It is also submitted that the petitioner graduated in her master‟s degree in the year 2006, worked from the year 2005 to 2007 in Dubai and thereafter, she was never financially and gainfully employed. Moreover, she was not even employed at the time of her marriage and the said fact was well known to the respondent and his family. The said facts have been ignored by the learned Principal Judge and thus, the impugned order is liable to be set aside.

6. It is submitted that the learned Principal Judge ignored the substantial gap between the petitioner‟s graduation, her last job and the date of marriage, which showcases that she chose to not be employed gainfully and willingly remained idle.

7. It is submitted that the learned Principal Judge failed to apply the settled position of law regarding grant of maintenance. The petitioner is unemployed and has no independent source of income. She has been financially dependent on her family since her return from Singapore, and despite her continuous efforts, she has been unable to secure employment.

8. It is submitted that the learned Principal Judge erred in rejecting her application solely on the assumption that she is capable of earning without considering the ground reality of her financial and social condition.

9. It is further submitted that the learned Principal Judge failed to consider that the respondent, despite being financially well-off, abandoned the petitioner and left her without any financial support. The respondent was earning a substantial salary in Singapore, i.e., Rs. 27,22,723/- per mon