Chattisgarh High Court
Koushlesh @ Raja Tripathi vs Smt. Seema Tripathi on 27 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No. 104 of 2019
Koushlesh @ Raja Tripathi, son of Shri S.N. Tripathi, aged about 39 years,
Near Bijali Office, Manendragarh, P.S. and Tahsil Manendragarh, District
Korea (C.G.)
---- Applicant
Versus
1. Smt. Seema Tripathi, wife of Koushlesh @ Raja Tripathi, aged about 38
years,
2. Arpit Tripathi, S/o. Shri Koushlesh Tripathi, aged about 10 years, Minor
through legal guardian mother Smt. Seema Tripathi,
Both R/o. Patpar Dafai, Jhagrakhand, P.S. Jhagrakhand, Tahsil
Manendragarh, District Korea (C.G.)
---- Respondents
For Applicant : Mr. Rudranath Mukherjee, Advocate
For Respondents : Mr. Pragalbha Sharma, Advocate
Hon'ble Shri Justice Rakesh Mohan Pandey
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 15.05.2018 passed
by the Family Court, Manendragarh, District Korea (C.G.) in Misc. Criminal
Case No. 10/2018, whereby, application moved by the respondents under
Section 125 of Cr.P.C. has been allowed and the applicant has been directed
to pay Rs.2,000/- per month to respondent No.1/wife and Rs.2,000/- per
month to respondent No.2/son in total Rs.4,000/- per month as maintenance
from May 2018.
2. Learned counsel for the applicant submits that learned Family Court has
committed illegality in awarding Rs.4,000/- per month to the respondents,
whereas respondent No.1/wife is working on the post of Aaganbadi Worker
at Nagar Panchayat Jhagrakhand and she has sufficient means of income.
The applicant has no regular source of income as he is working as petty
contractor.
3. On the other hand, learned counsel for the respondents submits that the
income of wife cannot be a ground to deny her maintenance. He further
submits that respondent No.1 has liability of her son and it is duty of the
applicant/husband to maintain his child. He also submits that the learned
Family Court, after scrutinizing the entire material available on record has
rightly awarded Rs.2,000/- per month to respondent No.1 and Rs.2,000/- per
month to respondent No.2 as maintenance which does not require for
interference by this Court.
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 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
(Chatturbhuj v. Sita Bai, (2008) 2 SCC 316). Sustenance
does not mean, and cannot be allowed to mean mere
survival (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 teacher in Jabalpur. The husband raised a
contention that since the wife and 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.
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 obligation of the husband to
provide maintenance stands on a higher pedestal than the
wife.
7. After going through the judgment passed by the Hon'ble Supreme Court, it
appears that the learned Family Court has rightly awarded maintenance of
Rs.2,000/- per month to the respondent No.1 and Rs.2,000/- per month to
respondent No.2. The contention advanced by Mr. Rudranath Mukherjee,
learned counsel for the applicant/husband, is not tenable in the light of the
judgment of Hon'ble Supreme Court in the case of Shailja & Anr. v.
Khobbanna, (2018) 12 SCC 199 and Sunita Kachwaha & Ors. v. Anil
Kachwaha, (2014) 16 SCC 715, where it was held that merely because the
wife was earning some income, it could not be a ground to reject her claim
for maintenance.
8. Consequently, this criminal revision is dismissed.
Sd/-
(Rakesh Mohan Pandey)
Judge
vatti
