Wife’s Capability To Earn No Reason To Reduce Maintenance Awarded To Her…

“That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.”


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 125-126 of 2017

(Special Leave Petition (Crl.) No(s). 6025-6026/2013)

SHAILJA & ANR. Appellant(s)

VERSUS

KHOBBANNA Respondent(s)

O R D E R Leave granted.

The matters have been called out twice but there is no appearance on behalf of the respondent.

We have gone through the impugned judgment and order dated 17.04.2013 passed by the High Court and order dated 22.11.2012 passed by the Family Court.

The Family Court had directed payment of maintenance for an amount of Rs.15,000/- per month to the appellant – wife and Rs.10,000/- per month to the son.

The High Court while considering the correctness of the order passed by the Family Court did not accept the contention of the respondent – husband that the appellant – wife was working. All that was held was that the appellant – wife was capable of earning and therefore maintenance was reduced to an amount of Rs.6000/- from Rs.15,000/- for her and Rs.6000/- from Rs.10,000/- for the son

. In other words, out of an amount of Rs.25,000/- (total) awarded by the Family Court for the appellant No.1 and the son, 1 the High Court has reduced the amount to Rs.12,000/- (total).

We are not satisfied with the order passed by the High Court considering the income of the respondent – husband, which we have been told, is more than Rs.80,000/- per month since the respondent – husband is a Senior Lecturer in a college. It is stated by learned counsel for the appellants that the respondent – husband is also the owner of 26 acres of irrigated land.

That apart, we find that the High Court has proceeded on the basis that the appellant No.1 was capable of earning and that is one of the reasons for reducing the maintenance granted to her by the Family Court. Whether the appellant No.1 is capable of earning or whether she is actually earning are two different requirements. Merely because the appellant No.1 is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the Family Court.

Under the circumstances, we set aside the order passed by the High Court and restore the order passed by the Family Court.

It appears that the son has now attained the age of majority. If that is so, the son will be entitled to maintenance only till the age of reaching majority.

Subject to the above, the order passed by the Family Court is affirmed.

2 The appeals are accordingly allowed. ………………….

.J. [MADAN B. LOKUR] …………………..J.

[PRAFULLA C. PANT]

NEW DELHI; JANUARY 18, 2017.

 

Maintenance For Wife And Children under Sec.125 Cr.p.c

 

Maintenance For Wife And Children- Sec.125 Crpc.

Maintenance For Wife And Children- Sec.125 Crpc.

 

125. Order for maintenance of wives, children and parents.

1.

If any person leaving sufficient means neglects or refuses to maintain-

A.

his wife, unable to maintain herself, or

B.

his legitimate or illegitimate minor child, whether married or not, unable to maintain

 

itself, or;

C.

his legitimate or illegitimate child (not being a married daughter) who has attained

 

majority,where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

D.

his father or mother, unable to maintain himself or herself,

 

A Magistrate of’ the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate1[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of’ sufficient means.

[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]