Andhra Pradesh High Court - Amravati

S Madhusudhana Rao vs N J Prasanthi on 30 November, 2021

     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

                               AND

     THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                        F.C.A.No.57 of 2021

JUDGMENT : (Per Hon'ble Sri Justice C. Praveen Kumar)

      The present appeal came to be filed, under Section

19 of the Family Courts Act, 1984 [for short, "F.C. Act"],

challenging the Order, passed in I.A.No.186 of 2015 in

F.C.O.P.No.61 of 2014 on the file of Judge, Family Court-

cum-IV Additional District Judge, Kurnool, wherein the

application filed by the applicant/respondent herein was

allowed in part, granting monthly maintenance of

Rs.15,000/- to the applicant/respondent herein from the

date of passing of the order. The respondent therein was

further directed to pay maintenance on or before 10th of every

succeeding month.

2. Before going to the merits of the case, it is to be noted

that F.C.O.P. is of the year 2014 and the I.A., which was filed

in the year 2015 was disposed in the month of May, 2018.

3. The averments in the affidavit filed in support of the I.A.

disclose that the petitioner/respondent herein was working

as a Horticulture Officer, drawing a monthly salary of

Rs.70,000/-. The respondent herein claims that she

needs Rs.40,00,000/- towards permanent residence,

Rs.20,00,000/- towards food and clothing, Rs.10,00,000/-

towards medical aid and Rs.10,00,000/- for miscellaneous

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expenditure. However, she finally sought permanent alimony

of Rs.80,00,000/- at the time of passing of divorce decree.

4. The respondent i.e., the petitioner/appellant herein

filed his counter stating that he is working as Sub-Assistant

in Horticulture Department, drawing a sum of Rs.26,603/-

as salary which fact is known to the respondent/wife. It is

stated that the respondent/wife is working as Senior

Assistant, drawing more salary than the petitioner herein. It

is further stated that she has purchased a flat with her own

earnings and is better placed than the petitioner herein.

5. In order to prove her case, the respondent examined

herself as P.W.1 and got marked Exs.A1 to A3. No oral or

documentary evidence was adduced on behalf of the

petitioner/husband.

6. P.W.1, in her evidence deposed that since June, 2008,

her husband is not taking care of her family and has not

spent even a single paisa for the maintenance though he is

drawing a salary of Rs.70,000/- per month. It is further

deposed that the petitioner/appellant is in possession of

Ac.1 ½ cents of land in Kadumur Village, Midthur Mandal

and also has a residential house worth of Rs.One Crore. She

also claims that her husband is having cash worth more than

Rs.One Crore. It is further stated by her that she purchased

a house by taking loan and she has to educate her son apart

CPK, J & RNT, J F.C.A.No.57 of 2021

from the obligation to perform the marriage of her daughter

with a person of her status. In view of the above, she sought

for Rs.50,00,000/- towards permanent residence and also

other claims referred to earlier.

7. In the cross-examination, P.W.1 admits that her gross

salary is of Rs.66,235/- and that of her husband is

Rs.57,945/-. She also admitted that her promotion is due

and she will become Superintendent in her office.

8. From the above evidence and the answers elicited in the

cross-examination, it is clear that the husband was working

as Sub Assistant in Horticulture Department, drawing a

salary of Rs.57,945/-. The Order impugned also discloses

that due to fear of petitioner/husband, the respondent/wife

has given consent to divorce. At this stage, it is to be noted

that the Children are with the respondent/wife and the

children along with their mother have to live a life in dignity

befitting in the family status. Merely because the wife is

drawing a little more salary than her husband does not by

itself mean that she would be disentitled to claim permanent

alimony. More so, having regard to the responsibilities with

which she is living.

9. Learned counsel for the petitioner/appellant mainly

submits that the alimony can be granted only in the case the

claimant falls within the parameters laid down in Section 25

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of the Hindu Marriage Act, 1955. To appreciate the same, it

would be useful to extract the same which reads as under:

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favor an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind the order.

10. A reading of the above provision, prima-facie does not

contemplate that permanent alimony can be ordered only

when she is unable to maintain herself, like in Section 125 of

the Code of Criminal Procedure, 1973. It only speaks about

payment to the applicant for her/his maintenance and

support, such gross or such monthly or periodical sum for a

term not exceeding the life of the applicant. It is nodoubt

true that Section 25 of the Hindu Marriage Act, 1955 does

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not contemplate payment of money/maintenance to the

children, but at the same time, it does not bar the Court from

granting alimony/monthly payment of money to wife, if the

situation warrants, in spite of applicant having some other

source of income. At this stage, it is apt to refer to the

judgment of the Hon'ble Supreme Court in the case of

Rajnesh vs. Neha and another1 in which the Hon'ble

Supreme Court has held as under in paragraph No.90 with

sub paras 90.1 to 90.5 which are being reproduced:-

"90. 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.

90.1. In Shailja & Anr. Vs. Khobbanna2, this Court held that merely because the wife is capable of earning, it would not be a sufficient 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. Sustenance does not mean, and cannot be allowed to mean mere survival.

90.2. In Sunita Kachwaha & Ors. Vs. Anil Kachwaha3, the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient 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.

(2021) 2 SCC 324

(2018) 12 SCC 199

(2014) 16 SCC 715

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90.3. The Bombay High Court in Sanjay Damodar Kale vs. Kalyani Sanjay Kale4 while relying upon the judgment in Sunita Kachwaha (4 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.

90.4. 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 vs. Shila Rani Chander5. 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 reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.

90.5. This Court in Shamima Farooqui (2 supra), cited the judgment in Chander Prakash (6 supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife".

From the aforesaid, it is well settled that if the wife is

earning, it cannot operate as a bar from being awarded

maintenance by the husband and it could not be a ground to

reject her claim for maintenance.

11. Taking into consideration, the responsibilities and the

obligations with which the applicant/wife is living and the

expenditure which she is incurring or likely to incur, we feel

that the amount of Rs.15,000/- awarded by the Trial Court

requires no interference at this stage.

2020 SCC Online Bom 694

1968 SCC Online Del 52

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