Maintenance under the Domestic Violence Act is governed by prevalent laws where a husband must possess actual income to maintain a spouse; an unemployed husband cannot be forced to maintain an equally qualified and capable wife by borrowing or begging.

JUDGMENT

1. The present petition under Section 482 Cr.P.C. assails an order of interim maintenance under The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) passed by the learned MM on 16th January, 2008 and confirmed by the learned Additional Sessions Judge in appeal by order dated 29th February, 2008.

2. The petitioner was a Non-Resident Indian, working in Luanda, Angola in Africa as a Manager. He came to India taking leave from his job for marriage. Marriage between the petitioner and respondent no.2/wife was settled through matrimonial advertisement. The respondent wife was MA (English) and MBA. As per her bio-data sent before marriage, she was doing job with a Multinational Company. The marriage between the parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant Kunj and was got registered on 25th May, 2007. The parties lived together for a limited period of 10 days i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 6th June, 2007. While the allegations of husband are that marriage failed within 3 weeks since the wife was suffering from a chronic disease about which no information was given to him before marriage and a fraud was played. The allegations made by wife were as usual of dowry demand and harassment. Since the marriage did not succeed, the husband/petitioner filed a petition under Section 12 of Hindu Marriage Act for declaring the marriage as null and void and the wife first filed an FIR against the husband under Section 498A /406 IPC and then filed an application under Section 12 of Domestic Violence Act.

3. It is not relevant for the purpose of this petition to go into the details of allegations and counter allegations made by each other. Suffice it to say that the learned MM passed an order dated 16th January, 2008 directing husband to pay an interim maintenance of ₹ 5000/- pm to the wife. He fixed this maintenance without considering the contentions raised by the husband (as is stated in the order) that the husband lost his job in Angola (Africa) where he was working before marriage because his passport was seized by police and he could not join his duties back. After marriage he remained in India, he was not employed. In the appeal, learned Additional Session Judge noted the contentions raised by the husband that he had become jobless because of the circumstances as stated by him and he had no source of income, he was not even able to maintain himself and had incurred loan, but observed that since the petitioner had earlier worked abroad as Sales Manager and in view of the provisions of Domestic Violence Act, he had the responsibility to maintain the wife and monetary relief was necessarily to be provided to the aggrieved person i.e. wife. He observed that the wife was not able to maintain herself therefore husband, who earned handsomely in past while working abroad, was liable to pay ₹ 5000/- pm to the wife as fixed by the learned MM.

4. A perusal of Domestic Violence Act shows that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws. While, the Act specifies the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband or the duties of wife. Thus, maintenance can be fixed by the Court under Domestic Vi