Order on Board

27.09.2022

1. The applicant/husband has filed this instant criminal revision under Section

19 (4) of the Family Courts Act against the order dated 15.01.2018 passed by 1st Additional Principal Judge, Family Court, District Raipur (C.G.) in Misc. Judicial Case No. 270/2016, whereby, application moved by the respondent/wife under Section 125 of Cr.P.C. has been allowed and the applicant has been directed to pay Rs.2,500/- per month as maintenance to the respondent from the date of order i.e. 15.01.2018.

2. The applicant/husband has challenged the order on the ground that his wife is working on the post of Programer in CSPDL and she is getting handsome salary, whereas he is unemployed person and he has no means of income, therefore, the order passed by the learned Family Court is not proper looking to the facts and circumstances of the case.

3. On the other learned counsel for the respondent/wife opposed the argument advanced by learend counsel for the applicant. He submits that even the wife is earning that cannot be a ground to deny her maintenance, therefore, learned Family Court has rightly awarded Rs.2,500/- per month maintenance.

4. I have heard the arguments of learned counsel for the parties and perused the record with utmost circumspection.

5. Only issue for consideration is that whether earning wife is not entitled for grant of maintenance?

6. In case of Rajnesh vs. Neha & Anr., Criminal Appeal No. 730 of 2020 (Arising out of SLP (Crl.) No. 9503 of 2018, Decided on November 4, 2020, the Hon'ble Supreme Court has relied various judgments on the issue involved in present case and held as under in para (vi) (c) Where wife is earning some income as under:-

The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.

In Shailja & Anr. v. Khobbanna, (2018) 12 SCC 199, this Court held that merely because the wife is capable of earning, it would not be a sufficent ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home (Chatturbhuj v. Sita Bai, (2008) 2 SCC 316). Sustenance does not mean, and cannot be allowed to mean mere survial (Vipul Lakhanpal v. Smt. Pooja Sharma, 2015 SCC OnLine HP 1252).

In Sunita Kachwaha & Ors. v. Anil Kachwaha, (2014) 16 SCC 715, the wife had a postgraduate degree, and was employed as a teahcer in Jabalpur. The husband raised a contention that since the wife and sufficent income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.

The Bombay High Court in Sanjay Damodar Kale v.

Kalyani Sanjay Kale, 2020 SCC OnLine Bom 694, while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.

An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj v. Shila Rani Chander Prakash, AIR 1968 Delhi 174. 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 reason beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.

This Court in Shamima Farooqui v. Shahid Khan, (2015)

5 SCC 705 cited the judgment in Chander Prakash (supra) with approval, and held that the oblig