A husband must prove genuine inability to maintain family; onus lies on him, given his earning capacity. Maintenance for wife is contingent on her ability to sustain her prior standard of living.

O R D E R

This revision petition has been filed challenging the order dated 20.04.2016 in M.C. No.344/2013 passed by the Family Court, Ernakulam.

2. The petitioner is the husband of the first respondent and the father of the second respondent. The respondents filed maintenance case against the petitioner claiming monthly maintenance at the rate of Rs.15,000/- each. The Family Court, after trial, granted monthly maintenance at the rate of Rs.15,000/- each to the respondents from the date of the petition. It is challenging the said order that this revision petition has been filed.

3. I have heard Adv.Girija K. Gopal, the learned counsel for the petitioner, and Adv.Philip T. Varghese, the learned counsel for the respondents.

4. The learned counsel for the petitioner submitted that the specific case of the petitioner is that the first respondent was employed and able to maintain herself and the said fact was not appreciated by the Family Court in the correct perspective. Reliance was placed on Annexure A7 deposition of the first respondent given by her in O.P. No.2251 of 2013 before the Family Court, Ernakulam. The learned counsel further submitted that the quantum of maintenance fixed by the Family Court for the second respondent is absolutely without any basis. On the other hand, the learned counsel for the respondents submitted that the Family Court has rightly granted the maintenance to the respondents at the rate of Rs.15,000/- per month taking into account the evidence on record in the correct perspective. The learned counsel further submitted that reappreciation of evidence is impermissible while exercising revisional jurisdiction vested with this Court under Sections 401 and 397 of Cr.P.C.

5. The marriage and paternity are not in dispute. The petitioner being the legally wedded husband of the first respondent and the father of the second respondent is legally and morally bound to maintain them. It has come out in evidence, or rather it is more or less admitted, that the petitioner is an MBA graduate and was employed abroad. The first respondent has clearly pleaded in the petition that the petitioner is employed with M/s.Orient Exchange Company, LLc, Dubai, UAE. The said pleading has not been specifically denied in the counter affidavit. There is only a general denial in the counter affidavit that he has no job or income. That apart, the petitioner has admitted in cross examination that he had worked in Dubai for two years and he had come back in June, 2015. This evidence would clearly prove that at the time of filing of the maintenance case, the petitioner was well-employed in Dubai.

6. The learned counsel for the petitioner submitted that after the petitioner came back from Dubai, he has no job at all. A husband who is capable of earning could not evade his lawful duty of maintaining his wife merely by stating that he is not presently employed. An able bodied husband must be presumed to be capable of earning enough to support his family unless he can prove genuine inability through evidence. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference can be drawn by the Court [SeeRajnesh v. Neha and Another (2021) 2 SCC 324 andReema Salkan v. Sumer Singh Salkan (2019) 12 SCC 303 ].

7. As per Section 125(1) of Cr.P.C. , a husband who has means is liable to maintain his wife. However, the wife’s right to claim maintenance from the husband is not absolute. She is disentitled from maintenance if she is able to mai