The duty of a husband to financially support his wife under Section 125 of Cr.P.C. is based on his capability to earn and the need to consider the parties' lifestyle and means.

JUDGMENT

Purushaindra Kumar Kaurav, J. - This petition is directed against the order dated 21.12.2018 passed in MT No. 361/2018 by the Principal Judge, Family Courts, West, Tis Hazari Courts, Delhi, whereby an application under Section 125 of Cr.P.C. filed by the respondent-wife has been allowed in part.

2. The facts of the case show that the marriage between the parties was solemnized on 25.10.2015. Soon after the marriage, on account of some family disputes between them, they started living separately. There is no issue out of the wedlock. The respondent-wife filed an application under Section 125 of Cr.P.C. before the Family Court. She stated that on account of harassment being caused by her husband at the matrimonial [2] house, she had to undergo intense mental agony. She narrated various instances in her application and she further stated that her husband i.e. revisionist is doing a job of a Graphic Designer in NIIT Company at Gurugram and is earning Rs. 40,000/- per month. She also stated that her husband has rental income from the house bearing No. B-4/152, Tulsi Lodge, Committee Bazaar, Hoshiarpur, Punjab-146001, and is getting an additional sum of Rs. 40,000/- per month. That apart, she further stated that her husband has his own residential accommodation. She further stated that there is no liability on her husband and the mother of her husband is also getting pension of Rs. 25,000/- per month and he is the only son. According to her, she did not have any sources of income to run her livelihood. The respondent-wife further stated that she is fully dependent on her widowed mother. Accordingly, she prayed for a grant of a sum of Rs. 40,000/- per month towards maintenance and Rs. 25,000/- towards litigation expenses.

3. The aforesaid application was opposed by the revisionist-husband before the Family Court by filing his reply. The revisionist-husband stated that the respondent-wife herself is guilty of causing mental cruelty and torture to the revisionist. He stated that the respondent-wife had left the matrimonial house without any reason and justification. He also stated that his wife made a false complaint before CAW cell and thereafter she herself remained absent during the counseling proceedings being conducted by CAW cell. He also stated that earlier he was working in NIIT, as Graphic Designer, however, he left the job and had become jobless. According to the revisionist, respondent-wife, is well-qualified and is earning a handsome amount, hence she is not entitled for any maintenance. [3]

4. The learned Family Court recorded the evidence of the parties and after consideration of the entire material available on record, has held that the respondent-wife is entitled for a sum of Rs. 10,000/- per month towards maintenance.

5. The revisionist feeling aggrieved by the said order, has filed the instant revision.

6. Mr. Saurabh Kansal, alongwith Ms. Pallavi Sharma, learned counsel appearing on behalf of the revisionist submits that the impugned order is in complete ignorance of the settled principle of law. The same also ignores important material available on record and therefore, the same requires to be set-aside by this Court. Learned counsel has pointed out that as on the date of passing of the impugned order, there was nothing on record, so as to indicate actual income of the revisionist. No salary certificate or employment details etc. are available on record and hence, the learned Family Court has grossly erred in assuming that when the revisionist was under an employment of NIIT Ltd., he was earning about Rs. 30,000/- per month and therefore, after leaving the earlier job, the revisionist must be earning more than his earlier income. Such an assumption is not permissible in law. He also submits that in view of the provisions of Section 125 (4) of Cr.P.C., the respondent-wife has left the matrimonial house and is living separately without their being any justification, and hence, she is not entitled for any maintenanc