Delhi High Court
Preeti Nagar vs State (Govt.) Of Nct Of Delhi on 3 April, 2018
$~50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 03.04.2018
+ CRL.REV.P.480 /2015
PREETI NAGAR ..... Petitioner
versus
STATE (GOVT.) OF NCT OF DELHI ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr G.P.Thareja with Mr Satyam Thareja, Mr
Sushant Sharma and Ms Neha Mishra.
For the Respondent : Mr Akshai Malik, APP.
SI Prempal Singh, PS Bhajanpura.
Mr S.P.Aggarwal and Mr Pradeep Kumar for R-2.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
03.04.2018
SANJEEV SACHDEVA, J. (ORAL)
1. The petitioner impugns order dated 20.04.2015 of the Trial
Court whereby the application of the petitioner seeking interim
maintenance under Section 125 of the Code of Criminal Procedure
(Cr.P.C.) was rejected.
2. The sole reason for rejection of the application, as noticed by
the Trial Court, is that considering the educational qualification, it
could not be said that the applicant - wife was unable to maintain
herself -- for the reason that she has got many avenues to make out her
livelihood. The Trial Court was of the view that since the petitioner
was qualified and could maintain herself, she could not maintain the
application for maintenance against her husband.
3. It is an admitted position that the Trial Court, at that stage, did
not go into the merits of the matter to assess the income, if any, of the
petitioner and the income of the respondent.
4. Learned counsel for the petitioner relies on the decision of the
Supreme Court in Sunita Kachwaha & Others versus Anil Kachwaha
2014(16) SCC 715 to contend that merely because the petitioner was a
qualified person would not be sufficient ground to hold that she is in
a position to maintain herself. Learned counsel contends that the Trial
Court was obliged to examine as to whether the petitioner was able to
maintain herself or not.
5. Learned counsel for the respondent though concedes the Trial
Court has not considered the merits of the matter, however, submits
that the petitioner has sufficient income, which has been brought on
record of the Trial Court and, as such, the petitioner is even otherwise
disentitled to any order of interim maintenance in her favour.
6. The Supreme Court in Sunita Kachwaha (supra) has held as
under:-
"7. Inability to maintain herself is the precondition for
grant of maintenance to the wife. The wife must positively
aver and prove that she is unable to maintain herself, in
addition to the fact that her husband has sufficient means
to maintain her and that he has neglected to maintain
her. In her evidence, the appellant wife has stated that
only due to help of her retired parents and brothers, she
is able to maintain herself and her daughters. Where the
wife states that she has great hardships in maintaining
herself and the daughters, while her husband's economic
condition is quite good, the wife would be entitled to
maintenance.
"8. The learned counsel for the respondent submitted
that the appellant wife is well-qualified, having
postgraduate degree in Geography and working as a
teacher in Jabalpur and also working in the Health
Department. Therefore, she has income of her own and
needs no financial support from the respondent. In our
considered view, merely because the appellant wife is a
qualified postgraduate, it would not be sufficient to hold
that she is in a position to maintain herself. Insofar as
her employment as a teacher in Jabalpur, nothing was
placed on record before the Family Court or in the High
Court to prove her employment and her earnings. In any
event, merely because the wife was earning something, it
would not be a ground to reject her claim for
maintenance."
(underlining supplied)
7. The Supreme Court has specifically held that merely because
the claimant - wife is qualified would not be sufficient ground to hold
that she is in a position to maintain herself. A wife must positively
aver and prove that she is unable to maintain herself, in addition to the
fact that her husband has sufficient means to maintain her and that he
has neglected to maintain her. Merely because the wife was earning
something, would not be a ground to reject her claim for maintenance.
8. The Trial Court has rejected the application for interim
maintenance solely on the basis of the qualification of the petitioner
and her capacity to earn. The Trial Court has clearly erred in rejecting
the application solely considering the educational qualification and
thereby holding that it could not be said that the applicant - wife was
unable to maintain herself and further based on her qualifications she
had many avenues to make out her livelihood.
9. The Trial Court has not considered the question as to whether
the petitioner was able to maintain herself or not. The Trial Court
could not have rejected the application without at least considering as
to whether the petitioner was unable to maintain herself, as alleged by
her, or was having sufficient means to maintain herself, as contended
by the respondent.
10. Since the Trial Court has rejected the application without
considering the merits of the matter, the decision fall foul of the ratio
in Sunita Kachwaha (supra). The impugned order is clearly
unsustainable and an order of remit if liable to be passed.
11. Accordingly, the impugned order is set aside. The matter is
remitted to the Trial Court to reconsider the application of the
petitioner seeking interim maintenance, in accordance with law.
12. It is clarified that this Court has neither examined nor
commented on the merits of the respective contention of the parties.
The Trial Court would be at liberty to pass appropriate orders on the
application without being influenced by anything stated in this order.
13. I am informed that the matter is listed before the Trial Court for
recording the evidence of the petitioner on 11.04.2018. The parties
shall appear before the Trial Court on the said date.
14. The Petition is disposed of in the above terms.
15. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
APRIL 03, 2018
'Sn'
