Delhi High Court
Ms Afreen vs Govt Of Nct Delhi & Anr on 24 February, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.REV. P. 491/2018
Date of Decision: 24.02.2020
IN THE MATTER OF:
MS. AFREEN ..... Petitioner
Through: Mr.Dalvinder Singh, Mr.Rajat
Vadehra and Mr.Rishabh Jain, Advocates
versus
GOVT OF NCT DELHI & ANR ..... Respondents
Through: Ms.Manjeet Arya, APP for State
Mr.Ritesh Bawri, Mr.Vipin Bansal, Mr.Vinesh
Kumar and Mr.Sarthak Sharma, Advocates for
R-2.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
MANOJ KUMAR OHRI, J. (ORAL)
1. The present petition is directed against the order dated 02.04.2018
passed by the Family Court, Delhi in CC No.241/2017 whereby the
application for interim maintenance filed by the petitioner was dismissed.
2. Learned counsel for the petitioner has assailed the impugned order
on the ground that merely because the petitioner is educated and capable
of earning, interim maintenance cannot be denied to her. Per contra,
learned counsel for respondent No.2 has supported the impugned order.
He submitted that respondent No.2 is a single parent taking care of the
minor child. He further submitted that respondent No.2 is unemployed.
In rebuttal, learned counsel for the petitioner submitted that in the
petitioner's evidence, bank records of respondent No.2 have been
summoned and the statements of account have been placed on record of
the Family Court.
3. I have heard learned counsels for the parties and have also gone
through the case records.
4. The marriage between the parties was solemnised on 09.02.2014
and one girl child was born out of the wedlock, who is in custody of
respondent No.2.
5. It was stated in the petition that respondent No.2 is working as a
Manager in a company known as M/s Ansari Discount Whole Seller in
Johannesburg, South Africa and earning a salary of Rs.1,50,000/- p.m. It
was also submitted that respondent No.2 was earning an additional
amount of Rs.2,00,000/- per month through his side business in the name
of Africa Fabric Centre.
6. The Family Court, while passing the impugned order, reasoned it
on the basis that the petitioner holds an M.Com degree and since the
minor daughter is living with respondent No.2, she can go out of the
house and search for a job or at least earn something by giving tuitions.
The Family Court held that "Non-doing of any job or even searching for
the same at all itself is not excusable and it can create a ground for
denial of any maintenance to her". The Family Court also came to the
conclusion that there was nothing on record to indicate that respondent
No.2 has any source of income.
7. The issue whether a wife being qualified and capable to earn can
be denied maintenance only on account of the fact that she is capable of
earning, came before this Court in Arun Vats v. Pallavi Sharma, reported
as (2019) SCC OnLine Delhi 11817 wherein, while relying on the
decision rendered in the case of Shalija v. Khobbana reported as (2018)
12 SCC 199, it was held that 'capable of earning' and 'actual earning'
are two different things. Merely because the wife is capable of earning is
not a sufficient reason to deny her maintenance. I also deem it profitable
to reproduce the observations of the Supreme Court in Sunita Kachwaha
& Ors. v. Anil Kachwaha reported as (2014) 16 SCC 715 as follows :-
"8. The learned counsel for the respondent submitted that the
appellant-wife is well qualified, having post graduate degree
in Geography and working as a teacher in Jabalpur and also
working in Health Department. Therefore, she has income of
her own and needs no financial support from respondent. In
our considered view, merely because the appellant-wife is a
qualified post graduate, 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."
8. It has been informed that the petitioner has summoned the bank
records from the respondent's bank which show credits of different
amounts. For the reasons discussed above, the impugned order is set
aside. The family court will hear the parties afresh on the point of interim
maintenance.
9. The parties shall appear before the concerned Family Court on
11.03.2020.
10. A copy of this order be communicated to the concerned Family
Court.
11. The petition is disposed of in the above terms.
(MANOJ KUMAR OHRI)
JUDGE
FEBRUARY 24, 2020
na
