The Himachal Pradesh High Court partly allowed a petition, filed by the petitioner for quashing and setting aside the order dated 20.8.2022, passed by learned Principal Judge Family Court, Shimla vide which the petition under Section 125(1) of the Cr.P.C. for seeking interim maintenance was allowed and the maintenance of ₹5,000/- per month was granted to the respondent. The Court observed that the plea of the respondent that he is earning less than the minimum wage cannot be accepted and the income of the respondent has to be considered based on minimum wages.
Brief Facts:
The petitioner had filed a petition under Section 125 of Cr.P.C. for seeking maintenance. It was asserted that the marriage between the petitioner and respondent was solemnized on 5-6th March 2018. The parties resided together after the marriage. The respondent and his family members started harassing the petitioner after about two months of the marriage without any reason. The respondent and his family members asked the petitioner to persuade her parents to give her more dowry. The respondent physically and mentally tortured the petitioner and abused her in filthy language. The petitioner made a complaint to the Women's Police Station. The petitioner has no source of income, whereas the respondent is working as a Chartered Accountant. Hence, the petition seeking the maintenance. Learned Principal Judge, Family Court, Shimla held that the relationship between the parties was not disputed and granted maintenance to the petitioner.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the learned Principal Judge, Family Court had taken a very harsh view, which has caused gross injustice to the respondent. The petitioner had deserted the respondent without any reasonable cause and the respondent had never neglected or refused to maintain the petitioner. The income of the respondent is ₹6,000/- per month and payment of maintenance of ₹5,000/- per month would be unjust.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the respondent is an able-bodied person. He is bound to maintain his wife and cannot escape from the liability on the ground that he is incapable of earning. The learned Principal Judge, Family Court, Shimla rightly held that the question of the petitioner leaving her matrimonial home voluntarily or not is not to be adjudicated at this stage.
Observations of the Court:
The Court noted that it is undisputed that the respondent is an able-bodied person and therefore, he is expected to earn the minimum wages fixed by the State Government.
The Court observed that an able-bodied person cannot escape from paying maintenance to the wife on the ground that he has no income to pay maintenance to her. Therefore, the plea of the respondent that he is earning less than the minimum wage cannot be accepted and the income of the respondent has to be considered based on minimum wages. Further, the Court remarked that maintenance cannot be denied to a wife on the grounds that she is capable of earning. Therefore, the maintenance cannot be denied to the wife because she is highly qualified and capable of earning for herself. To deny the maintenance, it has to be shown that the wife is earning something, which is sufficient for her maintenance and it is not sufficient to establish that she is capable of earning for herself.
The decision of the Court:
The Himachal Pradesh High Court, partly allowing the petition, held that the interim maintenance is reduced from ₹5,000/- to ₹4,500/- per month from the date of filing of the petition.
Case Title: Dharmender Kumar Kaushal v Seema Devi
Coram: Hon’ble Justice Rakesh Kainthala
Case no.: Cr. Revision No. 660 of 2023
Advocate for the Petitioner: Ms. Anu Tuli
Advocate for the Respondents: Mr. Bhim Raj Sharma
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